20 November 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> How long can a spouse of a British citizen/Settled person can remain outside the UK on one single visit while caring for a sick relative ?
Continue to collect evidence of a genuine and subsisting relationship with partner, and mother’s medical condition.
E-LTRP.1.10.
The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.
“An Immigration Officer may cancel an entry clearance which is capable of having effect as leave to enter if the holder arrives in the United Kingdom before the day on which the entry clearance becomes effective or if the holder seeks to enter the United Kingdom for a purpose other than the purpose specified in the entry clearance.”
The Upper Tribunal judgment in MS (British citizenship; EEA appeals) Belgium [2019] UKUT 356 (IAC) confirms that certain EU citizen children in the UK can be considered lawfully resident for the purposes of Article 8 of the European Convention on Human Rights, even if they (or their EU citizen parents or carers) have not exercised treaty rights and have no official Home Office documentation.
The Upper Tribunal’s decision
The tribunal agreed with the Secretary of State’s position that an adult EU national who is not exercising treaty rights and who has no other lawful basis for being in the UK is not lawfully resident here (see paragraphs 133 to 135 and 138).
But compliance with Article 8 requires tribunals to make appropriate allowances, particularly where an EU citizen was a minor during their time in the UK. A flexible approach should be adopted where the facts suggest that an EU child’s time in the UK should not be categorised as unlawful.
The official headnote
"(1) If, on appeal, an issue arises as to whether the removal of a person (P) from the United Kingdom would be unlawful because P is a British citizen, the tribunal deciding the appeal must make a finding on P’s citizenship; just as the tribunal must do so where the consideration of the public interest question in Part 5A of the Nationality, Immigration and Asylum Act 2002 involves finding whether another person falls within the definition of a “qualifying child” or “qualifying partner” by reason of being a British citizen.
(2) The fact that P might, in the past, have had a good case to be registered as a British citizen has no material bearing on the striking of the proportionality balance under Article 8(2) of the ECHR. The key factor is not whether P had a good chance of becoming a British citizen, on application, at some previous time but is, rather, the nature and extent of P’s life in the United Kingdom.
(3) If P is prevented by regulation 37 of the Immigration (European Economic Area) Regulations 2016 from initiating an appeal under those Regulations whilst P is in the United Kingdom, it would defeat the legislative purpose in enacting regulation 37 if P were able, through the medium of a human rights appeal brought within the United Kingdom, to advance the very challenge to the decision taken under the Regulations, which Parliament has ordained can be initiated only from abroad.
(4) In considering the public interest question in Part 5A of the 2002 Act, if P is an EEA national (or family member of an EEA national) who has no basis under the 2016 Regulations or EU law for being in the United Kingdom, P requires leave to enter or remain under the Immigration Act 1971. If P does not have such leave, P will be in the United Kingdom unlawfully for the purpose of section 117B(4) of the 2002 Act during the period in question and, likewise, will not be lawfully resident during that period for the purpose of section 117C(4)(a).
(5) The modest degree of flexibility contained in section 117A(2) of the 2002 Act, recognised by the Supreme Court in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, means that, depending on the facts, P may nevertheless fall to be treated as lawfully in the United Kingdom for the purpose of those provisions, during the time that P was an EU child in the United Kingdom; as in the present case, where P was under the control of his parents; was able to attend school and college without questions being asked as to P’s status; and where no action was taken or even contemplated by the respondent in respect of P or his EU mother."
21 November 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
In Idahosa v R [2019] EWCA Crim 1953 the Court of Appeal has ruled that an asylum seeker who had stopped over in the United Kingdom for 54 days en route to Canada can rely on the exception to false documents offences available to refugees. The court took a purposive and generous approach to interpreting the Refugee Convention to conclude that even a stopover of 54 days met the requirement of remaining “in transit” to another country to claim asylum.
22 November 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Ever wondered how Sopra Steria wants the applicant to prepare/upload their supporting documents ?
This version replaces the Tier 2 modernised guidance version 33.0 which has been withdrawn and archived. It has been updated following changes to the Immigration Rules on 6 October 2019 to:
• remove PhD-level occupations from the Tier 2 limit
• add an exemption from the 180 days absence requirements for continuous leave for applicants in PhD-level occupations who are undertaking research overseas
• add statutory parental leave, sick leave, absence due to assisting in a national or international environmental or humanitarian crisis overseas and taking part in legal strike action to the list of permitted absences that can benefit from certain exemptions under Tier 2
• add the Department of Education ‘Teaching Vacancies’ service on GOV.UK as an acceptable form of advertising under the Resident Labour Test
• make other minor amendments.
The guidance also confirms those completing 12 months of the equivalent level of a PhD not just a PhD can switch into Tier2 from Tier4.
In Idahosa v R [2019] EWCA Crim 1953 the Court of Appeal has ruled that an asylum seeker who had stopped over in the United Kingdom for 54 days en route to Canada can rely on the exception to false documents offences available to refugees. The court took a purposive and generous approach to interpreting the Refugee Convention to conclude that even a stopover of 54 days met the requirement of remaining “in transit” to another country to claim asylum.
25 November 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> UKVI Information on Settlement Visa Applications – Supporting Document Submission Options Settlement Visa Applications – Supporting Document Submission Options
VFS Global
If the settlement application is lodged in a location where VFS Global is the UKVI commercial partner, then there are four options available to submit supporting documents:
1. Self-upload supporting documents without an additional charge.
2. Document Scanning Assistance Service at the Visa Application Centre, for an additional fee.
3. UK settlement scanning service – walk in, for an additional fee.
4. UK settlement Scanning Service – postal, for an additional fee.
If the settlement application is lodged in a location where TLScontact is the UKVI commercial partner, then there are two options available to submit supporting documents:
1. Self-upload supporting documents without an additional charge.
2. Assisted Scanning Settlement service in the UK – postal, for an additional fee.
26 November 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
Most people born in Northern Ireland have dual citizenship, British and Irish. Generally people apply for the passport of the country which they identify with — nationalists for Irish passports, unionists for British — and are never troubled by the legal fact that they technically possess the other nationality as well.
The recently reported case of De Souza (Good Friday Agreement: nationality) United States of America [2019] UKUT 355 (IAC) is part of a campaign, led by the redoubtable Emma DeSouza, challenging this state of affairs. Ms DeSouza accepts only her Irish citizenship and strongly objects to having British nationality, to the point that she will not use the procedure available to renounce it (as that would be to acknowledge having British citizenship in the first place).
Ms DeSouza says that her position — that Northern Irish people cannot be forced to start life with dual citizenship — is supported by the Good Friday Agreement. That is because the UK and Ireland said in that agreement that both countries:
“…recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.”.
This campaign has gained the support, or at any rate the attention, of the prime ministers of both countries. The attempt to change the legal position on citizenship via the courts has, however, been rejected by the Upper Tribunal.
The case arose out of Mr DeSouza’s visa problems, as an American who wished to live with his wife in Northern Ireland. In an attempt to avoid being caught by the notoriously harsh family immigration rules that apply to the spouses of British citizens, he applied for a residence card as the spouse of an EU citizen.
The Home Office said that this procedure is not available to people who have British citizenship, Ms DeSouza being legally a UK citizen as well as Irish. This will be little surprise to those familiar with the case of C-434/09 McCarthy, in which the facts were similar.
The First-tier Tribunal found that “the constitutional changes effected by the Good Friday Agreement with its annexed British-Irish Agreement, the latter amounting to an international treaty between sovereign governments, supersede the British Nationality Act 1981 in so far as the people of Northern Ireland are concerned”.
The Upper Tribunal reversed this finding. The headnote to its decision says simply:
“The Belfast (or Good Friday) Agreement did not amend the law of British citizenship, as contained in the British Nationality Act 1981.”.
That is a very short official summary for an Upper Tribunal case. It reflects the fact that this is Law 101: international treaties do not override Acts of Parliament (or indeed Acts of the Oireachtas in Ireland).
Members of the public are, of course, entitled to be surprised that a treaty as eminent as the Good Friday Agreement doesn’t have that effect. But the Upper Tribunal pointed out that it is not altogether clear that the “birthrate provisions” quoted above were ever intended to give people the right to reject his or her Irish or British citizenship, in a legal rather than personal identity sense. If the point was to give people the right to turn dual nationality on and off at will, it is “inconceivable” that the Agreement wouldn’t have said so explicitly, or that this would not have been written into the Northern Ireland Act 1998.
The judgment also raises the possibility that citizenship by consent was never intended or devised because it would be unworkable. It said that “a person’s nationality cannot depend in law on an undisclosed state of mind, which could change from time to time, depending on how he or she felt”.
There is also the minor snag that it would mean everyone in Northern Ireland being born stateless: if the UK could not confer automatic citizenship at birth to Northern Irish people, nor logically could Ireland. Such a result would be in breach of the UN conventions on statelessness, which both countries have signed.
The Upper Tribunal, understandably, was in no rush to violate one treaty in the name of another. The couple are crowdfunding in the amount of £120,000 to take the case to the Court of Appeal — but if there is a satisfactory solution, it seems more likely to emerge from politics rather than the law.
27 November 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
“Be careful what you wish for!”, could be the headline for the case of Ahmed (rule 18; PTA; Family Court materials) Pakistan [2019] UKUT 357 (IAC).
Haseeb Ahmed, a Pakistani citizen, was initially refused an application for leave to remain by the Secretary of State. He won his appeal at the First-tier Tribunal, but the Secretary of State was granted permission to appeal to the Upper Tribunal. Shortly before the date of the appeal hearing, Mr Ahmed’s solicitors wrote to the tribunal asking to withdraw the appeal, so that they could submit a new application for leave to remain for their client.
This mistake could have been made by many, but they simply had no appeal to withdraw, as the Secretary of State was the party who appealed.
Instead, the Upper Tribunal treated the request as meaning that Mr Ahmed was no longer going to defend his case and the Secretary of State’s case was unopposed. It then proceeded to rule in the Secretary of State’s favour, finding that the initial refusal of Mr Ahmed’s application for leave to remain was correct. Mr Ahmed was back to square one, but now with two negative decisions against him!
Thankfully in this case, Mr Ahmed went on to apply for permission to appeal to the Court of Appeal, which sent the decision back to the Upper Tribunal. This time, the Upper Tribunal ruled in Mr Ahmed’s favour, finding that the First-tier Tribunal’s decision had been correct. So things could have gone even worse for poor Mr Ahmed…
A second procedural issue which arose in this case was about appeal deadlines. The Secretary of State applied for permission to appeal well out of time. This didn’t seem to have been picked up by anyone until the second Upper Tribunal hearing, when Mr Ahmed’s legal representatives tried to argue that the Secretary of State’s application could not be admitted on that basis.
The Upper Tribunal found, rather ironically, that it was too late to raise this issue. When a party wants to raise the issue of lateness, they should do it before the Upper Tribunal makes a substantive decision on whether or not the First-tier Tribunal erred in law.
Last but not least, the tribunal reminds us again of the danger of submitting family court documents without permission, as Rachel explained in detail in her recent post on the issue. In this case, the Upper Tribunal picked up that Mr Ahmed’s legal representatives did not have permission to disclose the documents and wrote to the Designated Family Judge to bring the matter to their attention. Mr Ahmed’s lawyers just need to hope they won’t be found in contempt of the Family Court.
The official headnote:
“(1) Where P is the respondent to the Secretary of State’s appeal in the Upper Tribunal against the decision of the First-tier Tribunal to allow P’s appeal, P cannot give notice under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 so as to withdraw his appeal, since P has no appeal in the Upper Tribunal. In such a situation, the giving of notice under rule 17 to withdraw P’s case will, if the Upper Tribunal gives consent, have the effect of leaving the Secretary of State’s appeal to the Upper Tribunal unopposed and therefore may well lead to a reasoned decision from the Upper Tribunal, setting aside the decision of the First-tier Tribunal.
(2) If an application by a party for permission to appeal against a decision of the First-tier Tribunal has been granted by that Tribunal, but the application was made late and time was not extended by the granting judge, the other party may raise the timeliness issue before the Upper Tribunal, as described in Samir (FtT permission to appeal: time) [2013] UKUT 3 (IAC), provided the Upper Tribunal has not reached a substantive decision. The issue may not, however, be raised after the Upper Tribunal has reached such a decision. Rule 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 means that the grant of permission by the First-tier Tribunal is to be treated as valid, notwithstanding the procedural irregularity, with the result that the ensuing decision of the Upper Tribunal is, likewise, valid.
(3) If a party intends to rely before the Tribunal on material emanating from proceedings in the Family Court, that party must ensure that the material can be disclosed, without any breach of restrictions on the disclosure of such material. Failure to do so may amount to contempt of the Family Court. Judges in the Immigration and Asylum jurisdiction must be alert to this issue.”
28 November 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The Court of Appeal has given judgment in CI (Nigeria) v SSHD [2019] EWCA Civ 2027, providing further guidance on the law relating to the deportation of foreign criminals, and in particular on the meaning in section 117C(4) of the Nationality Immigration and Asylum Act 2002 of “lawful residence”, “social and cultural integration”, and “very significant obstacles” to integration.
The Supreme Court has confirmed in the case of Hemmati v Secretary of State for the Home Department [2019] UKSC 56 that the detention of asylum seekers for their removal to other EU states under the Dublin Regulation was unlawful between 1 January 2014 and 15 March 2017, when new regulations were belatedly adopted. There are no publicly available statistics on how many asylum seekers are detained for removal under the Dublin system, but we do know that around 10,000 “take back” requests were sent by the UK to other EU states during that time frame.
When the EU legislated specifically to protect those being transferred between member states under a new Dublin Regulation, and that regulation came into force on 1 January 2014, the UK failed to implement any new or specific protections. The Supreme Court finds that existing UK law was insufficient, making the detention of the claimants and all other Dublin detainees unlawful.
Переход на EU Pre-Settled Status для родителей с гостевой визой
На основании существующего Appendix EU в данный период времени вероятно осуществить изменение иммиграционного статуса для родителей, имеющих британские гостевые визы, чьи дети являются гражданами EU или чьи дети (не граждане EU) являются супругами граждан EU.
Например, если Вы из России, и Вы находитесь в браке с гражданином EU, Вы живете в Великобритании и у Вас сейчас в гостях родители из России, то Ваши родители потенциально могли бы остаться в Великобритании и получить EU Pre-Settled Status.
29 November 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The Innovator visa, launched in March 2019 to “enhance the UK’s offer to overseas entrepreneurial talent“, has attracted a grand total of 14 applications in its first six months of operation. That compares to 997 applications for its predecessor visa, Tier 1 (Entrepreneur), over the same period last year.
Figures published by the Home Office today show that there were ten applications for an Innovator visa between June and September 2019. That is a modest improvement on the just 4 applications recorded in April-June 2019.
Statistically, only 12 out of those 14 applicants have now been approved. Those who do meet the criteria seem fairly likely to be waved through. The problem is that the visa is extremely unappealing to the type of experienced entrepreneurs it is pitched at, for reasons repeatedly stated by the Legal Centre (www.legalcentre.org) in many of their regular online updates.
02 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Appeal overturned after bus stop rant by court interprete: https://www.bailii.org/uk/cases/UKUT/IAC/2019/352.html
An asylum appeal by an Eritrean woman, initially rejected by an immigration judge, has been overturned by the Upper Tribunal after it emerged the court interpreter embarked on a political rant to the woman’s barrister at the bus stop outside court afterwards.
04 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
R (Al-Enein) v Secretary of State for the Home Department [2019] EWCA Civ 2024 is another valiant but failed attempt to challenge the Home Office’s good character policy in relation to applications for British citizenship.
The issue in this case was whether the policy of looking back at a person’s immigration status in the decade prior to the application was lawful. Mr Al-Enein had been in the UK without valid leave between 20 November 2007 and 27 January 2010, when he was removed to Lebanon. He returned to the UK lawfully in 2012 as the fiancé of a British citizen and subsequently progressed to indefinite leave to remain. He applied for naturalisation in June 2015, but was refused for failing to meet the good character requirement due to non-compliance with UK immigration laws in the decade prior to application.
NB Should Mr Al-Enein approach the Legal Centre (www.legalcentre.org) before his application for Naturalization, he would have been warned about the consequences of applying at that stage and the imminent possibility of a refusal.
The particular challenge attempted here was to argue that the British Nationality Act 1981 already sets out a specific time period over which an applicant for naturalisation must have been resident in the UK and not in breach of the immigration laws. That period is three years for spouses/civil partners of British citizens, or five years for everyone else. This is what Parliament decided in enacting the legislation. But then the Secretary of State, using his statutory discretion to determine whether or not a person is of good character, is actually expanding that time period by a further seven or five years depending on the category. Doing so, it was argued, is ultra vires.
It seems fundamentally unfair that Parliament, after appropriate debate and scrutiny, specifies a required period of immigration compliance for would-be citizens, only for the Home Office to effectively lengthen it. One would think that if Parliament had intended an examination of a person’s immigration status over a longer period, Parliament would have passed legislation to that effect. But the Court of Appeal, like the Scottish courts, was having none of it:
“Although those requirements laid down by Parliament are statutory minimum requirements, there is no reason in law why the Secretary of State cannot impose an additional or extended requirement relating to breach of immigration laws as properly being a matter which is relevant to the more general question of good character… that requires an assessment or evaluation by the Secretary of State of all the relevant circumstances going to that issue.”
In other words, since Parliament has required the Secretary of State to determine whether a citizenship applicant is of good character without specifying how this is to be done, the Secretary of State can apply whatever policy he or she likes.
05 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Administrative review under the EU Settlement Scheme: the 90% decision overturned success rate
As of 12 September 2019, the Home Office had received 451 administrative review requests for Settlement Scheme decisions. More recent figures for administrative reviews have been requested but have been refused by the Home Office.
Half of the refusals could have been due to the case worker’s error…
As always, it is best to have at least a one-off consultation with our exerts from the Legal Centre (https://legalcentre.org/Initial-Consultation.html) in order to get a clear idea as to who to apply for the EU Settled or EU Pr-settled scheme.
06 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Update on registration applications under s4C BNA 1981
It may assist readers to know that the Home Office will grant registration as British without a citizenship ceremony under the relatively new provision to allow registration as British under s4C where the applicant has a criminal record (following the coming into force on 25 July 2019 of the BNA 1981 (Remedial) Order 2019 which removes the usual good character requirement).
For example, by the time the applicant’s application was approved the applicant was back in prison on a long-term basis and was thus not able to attend a citizenship ceremony. It is possible to make representations to the Home Office that when the guidance about when to waive the requirement to attend a citizenship ceremony was drafted, the possibility of a candidate being in custody had not been contemplated, as all adult applications were subject to a good character requirement. The Home Office then simply sent a registration certificate by post.
A mentally ill Iranian man who was kept in immigration detention for 838 days in total has secured £100,000 in compensation from the Home Office. The test case concerning a man known as AKE was settled in the High Court recently.
The settlement does mean the legal issues in the case will not now be thrashed out in court. The Court of Appeal has repeatedly held that he immigration detention system discriminates against migrants with mental health conditions, in breach of the Equality Act 2010.
“…This is not a comfortable interpretation to apply. But that is what Parliament has decided…”
So held Lord Justice Baker, giving judgment in SSHD v KF (Nigeria) [2019] EWCA Civ 2051, and yet another deportation case in the Court of Appeal.
The case considered the meaning of “unduly harsh” in family separation cases, and endorses the line taken in SSHD v PG (Jamaica) [2019] EWCA Civ 1213 following the Supreme Court case of KO (Nigeria) v SSHD [2018] UKSC 53.
KF and his son.
In appealing against a 2014 deportation order following a three-year prison sentence for burglary and two robberies, KF relied on his relationship with family members in the UK, and in particular with his British son. He argued that it would be “unduly harsh” on his son for him to be deported (see Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002).
The First-tier Tribunal agreed, and this finding was upheld by the Upper Tribunal. In its assessment of the impact of KF’s deportation on his son the First-tier Tribunal had held:
“For [KF’s son], the adverse consequences remaining in the UK are likely to be that he would be deprived of a proper relationship with his father. I do not accept that maintaining a relationship, while living on different continents, via modern means of communication is in any way a substitute for growing up with a parent. [KF’s] son is very young. This is the time when he would normally be bonding with his father. I think I am entitled to take judicial notice of the fact that being deprived of a parent is something a child is likely to find traumatic and that will potentially have long-lasting adverse consequences for that child. I take into account that in this case [KF’s] son has limited knowledge of his father and has the benefit of a supportive extended family. However in my view that is no substitute for the emotional and developmental benefits for a 3 year old child that are associated with being brought up by both parents during its formative years. These benefits have been recognised by the courts on numerous occasions and the consequences of losing them should not be minimised.”
In November 2017, the Secretary of State applied out of time for permission to appeal to the Court of Appeal against the decision of the Upper Tribunal (made in August 2017). This was granted a year later following the judgment in KO (Nigeria).
Risk of trauma? No worries!
The Court of Appeal did not dispute the facts of the case. It described the conclusions relating to the importance of being brought up by both parents as “indisputable”. But:
“…those benefits are enjoyed by all three-year-old children in the care of both parents. The judge observed that it was a “fact that being deprived of a parent is something a child is likely to find traumatic and that will potentially have long-lasting adverse consequences for that child” and that he was entitled to take judicial notice of that fact. But the “fact” of which he was taking “judicial notice” is likely to arise in every case where a child is deprived of a parent. All children should, where possible, be brought up with a close relationship with both parents. All children deprived of a parent’s company during their formative years will be at risk of suffering harm. Given the changes to the law introduced by the amendments to [the] 2002 Act, as interpreted by the Supreme Court, it is necessary to look for consequences characterised by a degree of harshness over and beyond what every child would experience in such circumstances.”
The court reinforced the finding in PG (Jamaica) that there must be something in the factual matrix of a case which distinguishes it from other cases where a family is separated. It went on to allow the appeal and restore the original deportation order.
It’s what the people want
As well as continuing a trend in which the Court of Appeal remakes deportation appeal decisions rather than remitting them to the tribunal (and here for example, not considering at all whether “very compelling circumstances” might prevent deportation under section 117C(6), a step required where neither of the exceptions apply), this decision further embeds the problematic interpretation of the “unduly harsh” test as explored in our write-up of PG (Jamaica).
In reality, then, notwithstanding the real and accepted prospect of trauma and long-lasting adverse consequences for the children of deported parents, foreign national offenders sentenced to longer than 12 months facing deportation will need to show more than this to meet the test.
It is unsurprising that this causes the judges deciding these cases some discomfort.
09 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
This guidance is supplementary guidance relating to refusals on grounds of false representation under Part 9 of the Immigration Rules (the general grounds for refusal or GGfR) and the parallel provisions in Appendix Armed Forces, Appendix FM and Appendix V.
11 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
In the case of R (Karagul & Ors) v Secretary of State for the Home Department [2019] EWHC 3208 (Admin), the High Court has found that the Home Office breached the principle of procedural fairness when refusing applications under the Ankara Agreement on the basis of bad faith or dishonesty.
Refused leave to remain amid dishonesty allegations
The case involved four Turkish nationals refused leave to remain in the UK as businesspersons under the Turkish European Communities Association Agreement (ECAA), commonly known as the “Ankara Agreement”.
All four applications were refused on the ground that the Home Office did not believe the applicants had a genuine intention to establish a business. As those were not human rights claims, the only remedies available to those applicants was administrative review or judicial review. The system of administrative review did not allow them to submit further evidence in answer to the allegations of dishonesty. So they turned to judicial review, arguing that:
1. The remedial regime for challenging the refusals violates the EU law principle of effectiveness; and
2. The way in which the decisions were made by the Home Office was in breach of common law fairness standards.
The High Court dismissed the first argument. It held that the claimants could not explain why a judicial review was incapable of providing effective protection to their rights to an effective remedy and fair trial.
It did, however, accept the second argument, relying heavily on the recent Court of Appeal case of Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673.
Officials must interview or follow a “minded to refuse” process
When refusing the claimants’ applications for leave, on the basis that they did not have a genuine intention or wish to establish their proposed businesses, the Home Office did not afford them an opportunity to address those allegations. Once their applications were refused, the claimants could only challenge the refusals by way of administrative review.
Following Balajigari, the High Court found that, before making a refusal on the basis of bad faith or dishonesty, the Home Office should either interview the claimants; or let them know that they were minded to refuse the application, and allow them an opportunity to submit representations in response to the allegations. Not doing so denied the claimants a fair process:
“If the Secretary of State on reconsideration decides to maintain her position that she does not accept the Claimants’ statements and implicit positions as to their true and genuine intentions, she is obliged to follow a fair process in which the Claimants have the opportunity to address this allegation before a final decision by a caseworker and also without being subject to an absolute prohibition on evidence being submitted in the AR [administrative review] in a challenge to the caseworker’s decision. The way to meet fairness standards in such cases can be either by way of interview or a “minded to decide” written process.”
The fact that the applicants could challenge the refusal by way of administrative review was not enough because of the limitations on putting forward new evidence. As Mr Justice Saini put it, “they have been found to have effectively been dishonest and then face an appeal process to be conducted without any chance to rebut that allegation that they did not have the relevant genuine intention with new evidence”.
Home Office policy still too narrow
This is a good result for the claimants and anyone making an application under the Ankara Agreement. However, the Home Office should adopt a fairer and less restrictive policy on when they will use the “Minded to refuse” procedure.
In addition, we still find it hard to understand how, in view of this case and the case of Balajigari, one can still justify visit visa refusals not attracting a right of appeal or a right of administrative review. They are routinely phrased as “I am not satisfied that you are a genuine visitor”, and therefore also making an accusation of dishonesty. We hope those are next in line for a challenge on the basis of procedural unfairness.
Judges have a sense of humour
Just to end on a lighter note, this sentence from the judgment made us smile:
“The Secretary of State has made an implicit finding of some form of bad faith (in the form of applications falsely claiming a certain genuine intention) and it is no comfort to a claim that he can hunt down the Guidance and will appreciate that when the Secretary of State says X she in fact means Y according to some special dictionary of terms used in the Home Office.”
12 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> “Positive narrative” behind improved public attitudes to immigration
One fifth of British people have become more relaxed about immigration over the last few years, mainly because of a more “positive narrative” about immigration.
Over 20% of people surveyed by the research firm Ipsos MORI have recently become more positive, or less negative, about the impact of immigration, of which half had changed their views after becoming more aware of what migrants contribute to the country.
Research manager Charlotte Peel said that “these findings highlight the influence a positive narrative surrounding the contribution of immigrants has on public perception”.
Ipsos MORI has been surveying British adults on their attitudes to immigrants since 2015. The headline finding is that 47% of people now think that immigration has had a positive impact, compared to 29% who think it is negative. That is a significant improvement since the EU referendum.
The High Court has declared that the Home Office policy of waiting until an asylum decision is made before considering whether to grant trafficking victims Discretionary Leave to Remain is unlawful. Under that policy, a recognised victim of human trafficking who has claimed asylum might wait months or years for the asylum decision before being granted leave. In the meantime, the person would only be entitled to a basic level of asylum support, prohibited from working or studying, and denied benefits. They would also suffer from ongoing uncertainty about their immigration status. In R (JP) v Secretary of State for the Home Department [2019] EWHC 3346 (Admin), Mr Justice Murray concluded that the blanket policy of delay is unlawful.
13 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The Court of Appeal has given judgment in Akinyemi v SSHD (No 2) [2019] EWCA Civ 2098, a long-running appeal concerning the deportation of a man who was born in the UK in 1983, and has never left.
In reversing (again) the decision of the Upper Tribunal to dismiss Mr Akinyemi’s appeal, the Court of Appeal has given important guidance on the nature of the public interest in the deportation of foreign criminals and the circumstances in which its weight might be reduced.
16 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> The Conservative plan for immigration after Brexit - EXECUTIVE SUMMARY
"For too long, politicians have been out of touch with the hardworking majority’s concerns about immigration. The vote to leave the EU was, amongst other things, a vote to take back control of our borders. That is why, with a functioning Conservative majority government, we will get Brexit done, end free movement and introduce a new Australian-style points-based immigration system.
This new system will give us control over who comes to this country on the basis of the skills they have to offer – not where they come from. Only by installing proper controls and ending the preferential treatment of EEA migrants will we be able to attract the brightest and the best from around the world to come here and contribute to our society and economy, while relying on far fewer low-skilled migrants and getting overall migration down.
Here we outline three key changes a majority Conservative government would make after Brexit:
1. A points-based system
o Our single new system will allocate points on a range of criteria. It will, de facto, allocate people into three separate categories:
‘Exceptional talent / contribution’ – highly educated migrants who have received world-leading awards or otherwise demonstrated exceptional talent, sponsored entrepreneurs setting up a new business or investors. These will not require a job offer and will receive fast-track entry.
‘Skilled workers’ – workers who meet the criteria of the points-based system and have a confirmed job offer. Special types – such as our NHS Visa – will also receive fast-track entry and reduced fees.
‘Sector-specific rules-based’ – made up of specific temporary schemes such as for low-skilled labour, youth mobility or short term visits (e.g., touring). These will be revised on an ongoing basis based on expert advice from the MAC. These visas will be time-limited and will not provide a path to settlement.
o The new system will give us control of migration, allow us to reduce total net migration, while meeting the needs of our economy and improving the UK’s productivity.
o Once we have ended free movement and introduced electronic travel authorisation (ETAs), we will be able to screen all prospective migrants on the basis of previous criminality, and bar those with serious convictions from coming here.
2. A new role for the Migration Advisory Committee (‘the MAC’)
o The MAC will be required to publish an annual report via a public letter to the Home Secretary, advising the Government on how to deliver on its objectives – i.e. to get net migration down while addressing emerging gaps in the labour market – including sector specific advice.
o The role of the MAC will continue to be advisory and the Home Secretary will have full discretion over decisions related to the future immigration system.
o The MAC will also be required to monitor the needs of the labour market on an ongoing basis to ensure that the Home Secretary has the information needed to make decisions rapidly.
o Once the new digital immigration status is in place, this will enable the MAC to better understand the impact of immigration on specific communities.
3. A digital immigration status to crack down on illegal overstaying beyond 2022
o The fundamental principle of the new immigration system is that the government will be in control.
o Beyond 2022, all migrants will have a full digital status, making it easier for legal migrants to prove their status, as well as allowing for improved enforcement.
o All visas will be time-limited, with usual indefinite leave to remain rules applying for those who are identified as ‘exceptional’ or ‘high-skilled’. In-country switching between visas will be allowed, but overstaying a visa will count against an individual in their new application.
o All migrants will pay the health surcharge for every year of their visa, unless and until they have gained settled status – usually not before they have been here for five years.
o We will ensure equal treatment of EEA and non-EEA migrants’ regarding access to benefits, making sure people pay in before they can take out.
In order to achieve this we will:
• Immediately begin work to set up a formal exchange programme with the Australian and Canadian governments to allow experts to come to the UK and share best practice with officials during the development of the system.
• Appoint an expert implementation group to ensure roll-out of the new immigration system from January 2021.
Commenting, Priti Patel, Home Secretary said:
“The vote to leave the EU was a vote to take back control of our borders, and that is exactly what a Conservative majority government will do by getting Brexit done and ending freedom of movement.
“Immigration will finally be subject to democratic control. We will be able to create a fairer system, which will attract the brightest and the best from around the world to come here and contribute to our society and economy, while getting overall immigration down.
“Corbyn’s Labour want uncontrolled and unlimited immigration, placing huge strain on public services like our NHS.”
18 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The Supreme Court has found in the case of Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59 that the carers of EU citizen children can derive a Zambrano right of residence only where the child will as a practical matter of fact be forced to leave the EU. The best interests of the child are not strictly relevant to that question. This stark finding is leavened somewhat by the court also holding that parental choice or preference plays no role in the assessment, contrary to the findings of the Court of Appeal.
>>> Home Office submits inaccurate witness statement in national security case: siac.decisions.tribunals.gov.uk/Documents/outcomes/documents/SR%20-%20OPEN%20Judgment%20-%2004.12.2019.pdf
SR, who is from Iraq but settled in the UK in 2002, wants to become a British citizen. The Home Office does not want to grant him citizenship, accusing SR of holding “extremist Islamic beliefs” and raising concerns about “financial irregularities”. The case came to the Special Immigration Appeals Commission, SIAC, because of the national security angle: SR v Secretary of State for the Home Department (SN/71/2018).
Ms Hughes from the Home Office submitted a witness statement about the department’s decision to deny SR citizenship. In the witness statement, she said that she had reviewed the paperwork in SR’s case. But the judges spotted that the document she was referring to, a “minute sheet”, was not about SR at all.
The judges were not best pleased, expressing “our dismay at this turn of events”. They added that SIAC:
“…relies on the Secretary of State and her representatives to prepare these cases with meticulous care. It is particularly important, also, that applicants, such as SR, who are able to play only a limited part in their appeals and applications, should have complete confidence that the Secretary of State is taking every possible care in the decision making [in] their cases, and in preparing those cases for court.”.
19 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
In all likelihood, the events of last Thursday mean the UK will be exiting the EU on 31 January 2020 with a deal. This means EU law will remain in place during a transitional period at least until 31 December 2020. After this date, either the transitional period is extended (although the government appears to be moving to legislate against this), or an agreement on the future UK-EU relationship is put in place — or there is no deal from 1 January 2021.
What future arrangements are in place matters for many obvious reasons. Perhaps not so high on the list would be British citizens’ holidays in the EU. Or perhaps we will all need a long holiday by the time this is all over.
Travelling to the EU after Brexit
Currently, holidaying in the EU is covered by the free movement directive. But if we assume that there will be no extension to the transitional period, a new regime will be in place from 1 January 2021 onwards.
Other non-EEA citizens — as British nationals will be at after Brexit — can enter the EU’s Schengen travel zone for 90 days either with a pre-obtained Schengen visa or, for nationalities that don’t need a visa, as long as they meet entry conditions broadly similar to the Schengen visa requirements. The political declaration on the future EU/UK relationship aims at putting short-term UK visitors to the EU into the visa-free category (and vice versa for short-term EU visitors to the UK).
These non-visa nationals will still have to get pre-travel authorisation from 2021 under the proposed ETIAS system, based on a similar system that already exists for the USA. The UK government has plans to introduce a similar scheme. The purpose of pre-travel authorisation is to pick up on security risks presented by non-visa nationals before they travel and enter the destination country.
But what happens if you find yourself in hot-water after you have entered an EU member state for a visit? This situation was examined by the Court of Justice of the European Union in Case C 380/18 Staatssecretaris van Justitie en Veiligheid v EP.
The treatment of non-EU citizens who get in trouble in Europe
The case was about a non-EEA citizen visiting the Schengen zone under the visa-free arrangements mentioned above. He was arrested in the Netherlands for a drugs offence.
The Dutch authorities moved to expel EP on the basis that the arrest and suspicion of committing a crime alone was sufficient to show that he presented a security risk. EP tried to argue that although he was not protected by the free movement directive, the approach taken to expulsion in this directive should be applied to their situation. This would mean that expulsion has to be based on a threat to public policy; that is, the person’s conduct has to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society. That represents a relatively high bar to removal.
The Court of Justice rejected this submission. It pointed out that, had the drafters of the Schengen legislation wanted it to set the same high standards for expulsion as under the free movement directive, they would have worded the Schengen security clauses that way. The conclusion the court came to was that:
“… Article 6(1)(e) of the Schengen Borders Code cannot be interpreted as precluding, as a matter of principle, a national practice under which a return decision is issued to a third-country national not subject to a visa requirement, who is present on the territory of the Member States for a short stay, if that national is suspected of having committed a criminal offence, without it having been established that his or her conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned. [Paragraph 46]”.
Whilst we hope that no British citizens find themselves in such an unfortunate situation, this case does highlight the inferior treatment afforded to those no longer in the EU club. It also seems likely that, under the ETIAS pre-travel authorisation regime, some British citizens with criminal convictions will find themselves denied approval to visit the EU for holidays.
The Upper Tribunal has rejected an attempt by the Home Office to ignore the clear meaning of an Immigration Rule. Sahebi (Para 352(iii): meaning of “existed”) Pakistan [2019] UKUT 394 (IAC) is about paragraph 352A(iii), which covers reunion for the family members of people who have been granted refugee status in the UK. It states that in order for someone to qualify for refugee family reunion as a partner, the relationship must have existed before the refugee left their country of origin.
Mrs Sahebi is from Pakistan. She is married to Mr Sahebi, who successfully claimed asylum in the United Kingdom. Before Mr Sahebi left Pakistan, their relationship broke down due to domestic violence and they separated, but remained married. The couple reconciled after Mr Sahebi left Pakistan and applied for refugee family reunion. The First-tier Tribunal ruled that the marriage clearly “existed” before Mr Sahebi left Pakistan to come to the UK and allowed the appeal, granting the couple family reunion.
In the Upper Tribunal, the Home Office argued that the word “existed” in paragraph 352 actually means “subsisted”. Since the couple were separated at the point of Mr Sahebi’s departure, the Home Office argued that the marriage was no longer subsisting and did not meet the family reunion requirements.
The Upper Tribunal consulted the Shorter Oxford English Dictionary (6th Ed, 2007) and concluded that “existed” merely refers to a condition objectively being fulfilled, whereas “subsisted” implies an additional qualitative element. When drafting the Immigration Rules the Home Office had deliberately used the term “existed”. Interpreting it to mean “subsisted” would amount to re-writing the rules. The Upper Tribunal therefore concluded:
“On its true construction, para 352A(iii) of the Immigration Rules is satisfied by showing nothing more than the formal existence of a marriage or civil partnership as at the time of the refugee’s departure from his/her country of former habitual residence. In contrast to less formal relationships, there is no requirement to show that the relationship had the qualitative character of it having subsisted at the time of the refugee’s departure.”.
20 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The High Court has ruled that charging a citizenship fee of over £1,000 to children is unlawful. The decision will be widely welcomed by campaigners who have long argued that the fee charged to register a child as British, which is set far above the administrative cost of processing applications, is “pricing children out of their rights”.
The challenge succeeded only on the limited ground of failing to assess children’s best interests, meaning that the Home Office could maintain the current fees after taking that step, or perhaps introduce a limited scheme of fee waivers. But the claimants are trying to take the matter to the Supreme Court in order to get a more substantial verdict on the lawfulness of the fee. The case is R (The Project for the Registration of Children As British Citizens & Ors) v Secretary of State for the Home Department [2019] EWHC 3536 (Admin).
Children charged £1,000 to exercise citizenship rights
Many children born in the UK or living here from an early age do not actually have British citizenship, but can get it through a process called registration. Processing applications for registration costs the Home Office an estimated £372, but it charges applicants £1,012. Analysis carried out by Free Movement last year, and not disputed by the Home Office, found that the surplus on child registration fees amounted to almost £100 million between 2012 and 2017.
Mr Justice Jay said the evidence before him showed that “for a substantial number of children a fee of £1,012 is simply unaffordable”. That includes the two children in whose name the case was taken, O and A. 12-year-old O was born in the UK and has never left the country, but is not a British citizen. She is entitled to register, but her mother can’t afford it. In O’s own words:
“I was born in this country and have lived here all my life. I feel as British as any of my friends and it’s not right that I am excluded from citizenship by a huge fee.
I want to be able to do all the things my friends can. I don’t want to have to worry they will find out I don’t have a British passport and think that means I am not the same as them.”
Three-year-old A would be entitled to automatic citizenship if not for the fact that her mother is married to someone other than her father; her family can’t afford the registration fee either.
As Jay J said, children without citizenship are “in an obviously precarious position, and in addition to their risk of being removed or deported have limited or no access to the welfare state”. But the registration fee had been unsuccessfully challenged before, in Williams [2017] EWCA Civ 98. The decision in Williams closed the door on some of the legal arguments. In particular, the claimants failed on the argument that the fee was so high as to make the right to register impossible to realise in practice.
Failure to consider children’s best interests
A different argument did land. Section 55 of the Borders, Citizenship and Immigration Act 2009 instructs the Home Office to consider the best interests of children in immigration, asylum and nationality cases. Jay J found, in short, that the Home Office had not bothered to weigh up the best interests of children in making the fees policy:
“...there is no evidence in the voluminous papers before me that his client [the Secretary of State] has identified where the best interests of children seeking registration lie, has begun to characterise those interests properly, has identified that the level of fee creates practical difficulties for many (with some attempt being made to evaluate the numbers); and has then said that wider public interest considerations, including the fact that the adverse impact is to some extent ameliorated by the grant of leave to remain, tilts the balance.”
Sir James Eadie QC for the Home Office argued that Parliament had considered, and rejected, attempts to lower the fee. It was therefore not for the courts to interfere. But the court found that “nowhere on the Government’s side” in these debates “has there been any recognition of where the best interests of children might repose”.
But Jay J rejected an argument based on the Equality Act 2010, saying that “impecuniosity is not a protected characteristic”. Nor did he quash the relevant fee regulations, granting instead a declaration that they are unlawful unless there is a best interests consideration process under section 55.
Solange Valdez-Symonds of the Project for the Registration of Children as British Citizens said:
“It is significant that the court has recognised British citizenship is the right of these and thousands of children and that the consequences of blocking their registration rights is alienating and harmful.”
While that recognition is a great step forward, the fact remains that tens of thousands of British children are growing up in this country deprived of their rights to its citizenship, including by this shamelessly profiteering fee.
The High Court has granted a certificate to the claimants to apply direct to the Supreme Court for permission to appeal on the point they lost on. It has also granted permission to appeal to the Home Office. In the meantime, there is no immediate basis for those who have paid a registration fee to be refunded. There may eventually be a case for refunds, though, particularly if the fee is ultimately reduced.
>>> Tier 1 (Investor) – the programme's evolution since its conception in 1994
-October 1994: Immigrant Investor scheme launched, with a minimum threshold of £1 million.
-June 2008: Tier 1 (Investor) introduced.
-February 2014: Migration Advisory Committee review finds limited economic benefit to Tier 1 (Investor) and make various recommendations for adjustments.
-November 2014: minimum investment raised to £2 million; caseworkers are empowered to refuse applications if there are reasonable grounds to suspect that the money was obtained unlawfully.
-April 2015: investors required to open UK bank account, with associated money laundering checks, before applying.
- March 2019: government bonds removed as qualifying investment.
The Upper Tribunal has shot down a scheme under which people looking for a Tier 1 (Investor) visa would borrow money from one company and invest in a closely related company. In a judicial review against the Home Office for refusing the Tier 1 (Investor) applications of two Chinese citizens who had availed of the scheme, the tribunal held that the money was not under their control as required by the Immigration Rules. The case is R (JW & Ors) v Secretary of State for the Home Department (Tier 1 Investor; control; investments) [2019] UKUT 393 (IAC).
The case involved a woman known as A1, who was applying for an extension of her Tier 1 (Investor) visa, and another called Jiaqi Wu who was seeking indefinite leave to remain. The essence of the scheme was that a company called Maxwell Holding would lend £1 million to clients such as A1, “the express purpose of which was to enable A1 to meet the requirements of the Immigration Rules as a Tier 1 (Investor)”. The owner of Maxwell Holding was Dmitry Petrovich Kirpichenko.
The clients then signed the money loaned to them over to a company called Eclectic Capital. The sole director of this company was Mr Kirpichenko’s wife, Nika Kirpichenko. Over 100 people have used this service, according the judgment. Eclectic Capital therefore ended up with a pot of over £100 million, which was mostly invested in “companies in Russia”.
The question was whether this arrangement satisfied the requirement of the Immigration Rules that money used for Tier 1 (Investor) must be under the investor’s “control”. The Home Office, in refusing A1 a visa extension and refusing Ms Wu settlement, said that the loan agreement required them to put the Maxwell Holding money into Eclectic Capital. It accordingly took the view that “the money that was lent to you is not under your control because it is evident that you are not able to invest the money anywhere other than in Eclectic”. In other words, they never had control of it in the first place.
The investors launched a judicial review, arguing among other things that “something less than complete and unfettered control is required” to satisfy the Immigration Rules. They claimed to have “effective and ultimate control” over the loans and investments, as neither were secured; they had the legal right to channel the Maxwell loan into a company of their choosing; and they had the right to redeem their shares in Eclectic after six years.
The Upper Tribunal found that the word “control” means that the person should be able to “manage and/or direct the use of the money, asset or investment” in real life, including an element of “choice and use”. It also noted that while the investors claimed to be making a business decision to invest their loaned money in Eclectic, the returns were so poor — the upfront interest payments outweighing the promised dividends after six years — that it “cannot possibly have been for good commercial reasons”. This, combined with the links between the two companies and the terms of the loan, entitled the Home Office to conclude that the investors did not choose to invest in Eclectic but were required to.
For good measure, it held that the Eclectic shares were not a qualifying investment for the purposes of Tier 1 (Investor). They were caught by paragraph 65(b) of Appendix A of the Immigration Rules, which disqualifies investments in companies that simply pool the money and invest it in other firms, rather than using it to run their own business. The tribunal also refused permission to appeal.
The official headnote
“1. The meaning of ‘control’ in paragraph 245ED(e) and in Appendix A (specifically in Table 8B and 9B) of the Immigration Rules is to be interpreted in accordance with its natural and ordinary meaning, namely that a person has the authority to manage and/or direct the use of the money, asset or investment (depending on the context). It includes not just a question of legal or beneficial ownership but includes an element of choice of use. The money must be under a person’s control at the point of investment.
2. To determine whether a person has the requisite control, it is necessary to look at all of the facts and circumstances of the case and with reference to the overriding requirement in paragraph 245ED(e) of the Immigration Rules (at least for the purposes of an application for further leave to remain as a Tier 1 (Investor) Migrant) that the “assets and investment he is claiming points for must be wholly under his control”.
3. The terms listed in paragraph 65(b) of Appendix A to the Immigration Rules are not to be interpreted by reference to statutory definitions outside of the Immigration Rules but in accordance with the ordinary rules of interpretation applicable to the Immigration Rules, the terms bearing their ordinary and natural meaning.”
23 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
In recent years the United Kingdom government has resorted to indirect measures like the hostile environment to force people to leave the UK, alongside directly removing people. The government can then claim that the person left the UK voluntarily, and may have thought that there could be no liability for any breaches of the person’s human rights after they have returned to their country of origin.
However, the Strasbourg court has now ruled that voluntary return must be a free and informed choice. It will not be free and informed for a failed asylum seeker who is placed under pressure to leave by the immigration system.
NA v Finland (application no. 25244/18) was a case brought against the Finnish government by the daughter of a man who had claimed asylum in Finland. He was originally from Iraq and had fled after an assassination attempt against him. His asylum application was refused and although he initially challenged the decision, he decided in the face of plans to detain and remove him to accept a voluntary return package offered by the International Organisation for Migration. As part of the deal, he signed a waiver stating that the Finnish government could not be held liable or responsible for his return in any way.
Shortly after the man returned to Iraq he was killed. His daughter brought the case alleging that Finland had breached Article 3 of the European Convention on Human Rights.
The Finnish government argued that the application was not admissible because the applicant’s father had voluntarily returned to Iraq and therefore the consequences of his return had nothing to do with Finland.
The court rejected this argument:
“In the light of the circumstances of the case, in particular the factual background of the applicant’s father’s flight from Iraq as acknowledged by the domestic authorities, the Court sees no reason to doubt that he would not have returned there under the scheme of “assisted voluntary return” had it not been for the enforceable removal order issued against him. Consequently, his departure was not “voluntary” in terms of his free choice.”
Therefore, the application concerned acts within the jurisdiction of the Finnish government.
The court then considered the supposed waiver of liability. It declined to consider whether it is possible in principle to waive one’s rights under Article 3 ECHR, but ruled that any waiver would have to be free and informed which was not the case here:
“In the present case, the applicant’s father had to face the choice between either staying in Finland without any hope of obtaining a legal residence permit, being detained to facilitate his return by force, and handed a two year entry ban to the Schengen area, as well as attracting the attention of the Iraqi authorities upon return; or agreeing to leave Finland voluntarily and take the risk of continued ill-treatment upon return. In these circumstances the Court considers that the applicant’s father did not have a genuinely free choice between these options, which renders his supposed waiver invalid. Since no waiver took place, his removal to Iraq must be considered as a forced return engaging the responsibility of the Finnish State.”
Having found that the application was admissible, the court went on to rule that there was a breach of Article 3. The Finnish immigration authorities failed to consider properly the cumulative effect of the various dangers in Baghdad or give sufficiently careful consideration to the previous attacks against the applicant’s father.
This is a very sad case and it is unfortunate that the Strasbourg court only became seized of the matter after the applicant’s father had returned to Iraq. But it is an important statement by the court that it will not tolerate attempts to use indirect removal measures against failed asylum seekers whose applications have not been considered with sufficient care and attention.
24 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The Upper Tribunal has confirmed that it is for asylum seekers to disprove the possibility of safe and reasonable internal relocation if the Home Office identifies a potential safe haven. In MB (Internal relocation – burden of proof) Albania [2019] UKUT 392 (IAC), the Upper Tribunal reconsidered the earlier decision of AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) and concluded that it remains good law on this point. That is notwithstanding a decision of the Court of Justice of the European Union which emphasizes the need for cooperation by both parties in collating evidence for asylum appeals.
[align=justify][size=medium]08 January 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)[/size][/align]
[size=small]>>> [/size]Delays in child asylum decisions not the Home Office’s fault, High Court finds:
The Home Office has successfully defended its processing of asylum claims by unaccompanied children despite chronic delays in decision-making. The case is R (MK) v Secretary of State for the Home Department[2019] EWHC 3573 (Admin).
The court decided that that:
[size=medium]“In my judgment, the statistics and evidence show that real priority and significantly increasing resources have been, and are being, devoted to deciding UASC [unaccompanied asylum seeking children] cases. The Claimant seeks to analyse these figures in terms of percentages as against applications, but such a metric is in my judgment highly questionable. It depends upon the highly variable number of applications, which is outside the control of the Defendant.[/size]”
[size=medium]>>> Vulnerable adults in the immigration tribunal: https://www.bailii.org/uk/cases/UKUT/IAC/2019/398.html[/size]
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[size=medium]In SB (vulnerable adult: credibility) Ghana[2019] UKUT 398 (IAC) the Upper Tribunal has provided a steer on how immigration judges should approach evidence given by vulnerable adults, in addition to that provided in the Joint Presidential Guidance Note No 2 of 2010. The key point is that adverse credibility findings can be made against vulnerable adults and it is not necessary for the tribunal judge to refer to the vulnerability when making each finding.[/size]
Official headnote: [size=medium]The official headnote[/size]
[size=medium](1) The fact that a judicial fact-finder decides to treat an appellant or witness as a vulnerable adult does not mean that any adverse credibility finding in respect of that person is thereby to be regarded as inherently problematic and thus open to challenge on appeal.[/size]
[size=medium](2) By applying the Joint Presidential Guidance Note No 2 of 2010, two aims are achieved. First, the judicial fact-finder will ensure the best practicable conditions for the person concerned to give their evidence. Secondly, the vulnerability will also be taken into account when assessing the credibility of that evidence.[/size]
[size=medium](3) The Guidance makes it plain that it is for the judicial fact-finder to determine the relationship between the vulnerability and the evidence that is adduced.[/size]
[size=medium] [/size]
[size=medium] [/size]
09 January 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
White smoke rises from Stormont, where the British and Irish governments have produced a draft deal to bring back power-sharing government in Northern Ireland following lengthy talks with the region’s main political parties.
The agreement includes a promise to address the fallout from the DeSouza case. That case confirmed that people from Northern Ireland are legally British citizens as well as Irish, and so cannot rely on the more liberal rules on family visas available to EU — but not UK — citizens.
The deal says:
“14. The Government will change the rules governing how the people of Northern Ireland bring their family members to the UK. This change will mean that eligible family members of the people of Northern Ireland will be able to apply for UK immigration status on broadly the same terms as the family members of Irish citizens in the UK.
15. This immigration status will be available to the family members of all the people of Northern Ireland, no matter whether they hold British or Irish citizenship or both, no matter how they identify.”
While the UK government says that this is a unilateral measure, it is being made “in the context of an agreement being reached”. That suggests that it may be dropped if the deal is not signed off by the regional parties.
It also seems likely to become redundant once Brexit takes hold and the bonus family reunion rights of Irish citizens in the UK come to an end. The time will show.
14 January 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - http://bit.ly/legalcentre – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
The Law Commission’s long-awaited report on Simplification of the Immigration Rules says that rewriting and paring down the “overly complex and unworkable” document would improve legal certainty and transparency for applicants as well as save money for the courts and the Home Office.
The Immigration Rules are the document that set out the precise criteria for granting or refusing permission to enter and remain in the United Kingdom. It is the single most important legal instrument for day to day immigration law. The dire drafting of the Rules has for some time been an acute source of frustration for individual applicants, the lawyers trying to help them and even the judges deciding their cases.
The independent law reform body recommends a rewrite of the 1,100 pages of the Rules, with a complete restructure complemented by improved drafting and fewer changes in future. The last such exercise took place in 1994, over 25 years ago, and the current version of the rules has grown hugely and chaotically since then. The two separate sections both entitled ‘Asylum’ at Part 11 and Part 11B, separated by Part 11A entitled ‘Temporary Protection’ are probably “personal favourite” among many lawyers.
The report’s 41 recommendations include:
- A new 24-part structure to the Rules, covering definitions, commons provisions and specific routes, followed by seven appendices
- Giving each paragraph a number, rather than a confusing blend of letters and numbers
- A new drafting guide, including advice such as “get straight to the point” and “use simple, everyday English”
- An advisory committee to review the text at regular intervals
- Producing “booklets” of the Rules that apply to each visa category
- Simplifying and consolidating Home Office guidance documents in tandem with tackling the Rules themselves
- “A less prescriptive approach to evidential requirements”, with lists of accepted and acceptable evidence provided (similar to the approach in Appendix EU)
- Only two statements of changes to the Rules a year, unless there is “an urgent need for additional change”
A separately published impact assessment concludes that the savings across government — including reductions in unnecessary cases for the immigration tribunals and in Home Office casework costs — would be £70 million over ten years.
In Odubajo v Secretary of State for the Home Department [2020] CSOH 2, the Court of Session has ruled that the three-month time limit for raising judicial review proceedings starts on the date of the decision, even though the person affected may not have been notified of that decision. This is a departure from what everyone previously thought in Scotland – which was that you cannot be expected to challenge a decision until you have been notified of it.
16 January 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
>>> Visa appointment fees rise with no warning
The cost of an appointment at visa application centres in the UK has risen with no warning given to applicants or their representatives.
Sopra Steria, the outsourcing company that runs UK Visa and Citizenship Services, has hiked appointment costs from £60 to £69.99 for a standard appointment and from £125 to £135 for appointments on Saturdays or out of regular office hours.
It appears to be applicable nationwide rather than to any particular UKVCAS centre.
The government website still lists the old cost, but the Sopra Steria website now says that “prices start at £69.99 per person”.
Free appointments are available, in theory, at six “core service points” in major cities, but fees are charged at the other 50 application centres.
The Immigration Law Practitioners’ Association says that it has contacted the Home Office and Sopra Steria to ask for more information.
20 January 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)
UKVI has published new supplementary guidance relating to applicants who previously held Tier 1 (General) leave where UKVI have concerns that false representations have been made regarding their earnings. This guidance must be applied in conjunction with the main guidance on False Representations and the guidance on General Grounds for Refusal (GGfR) under Part 9 of the Immigration Rules.
This guidance relates to issues decided by the Court of Appeal in Balajigari v SSHD [2019] EWCA Civ 673.
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>>> How long can a spouse of a British citizen/Settled person can remain outside the UK on one single visit while caring for a sick relative ?
Guidance: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/830599/5-and-10-year-partner-parent-private-life-and-exceptional-circumstances-v2.0-ext.pdf#page25
Continue to collect evidence of a genuine and subsisting relationship with partner, and mother’s medical condition.
E-LTRP.1.10.
The applicant and their partner must intend to live together permanently in the UK and, in any application for further leave to remain as a partner (except where the applicant is in the UK as a fiancé(e) or proposed civil partner) and in any application for indefinite leave to remain as a partner, the applicant must provide evidence that, since entry clearance as a partner was granted under paragraph D-ECP1.1. or since the last grant of limited leave to remain as a partner, the applicant and their partner have lived together in the UK or there is good reason, consistent with a continuing intention to live together permanently in the UK, for any period in which they have not done so.
>>> Can I extension my Visitor’s visa in the UK ?
Only in limited circumstances.
See Part 8 of the relevant Guidance: https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-v-visitor-rules
>>> My visa was issued but the start date is in 3 months from now. Can I Enter the UK before my visa starts ?
Not recommended as under the Para 30C - https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-1-leave-to-enter-or-stay-in-the-uk#pt1entryclearance :
“An Immigration Officer may cancel an entry clearance which is capable of having effect as leave to enter if the holder arrives in the United Kingdom before the day on which the entry clearance becomes effective or if the holder seeks to enter the United Kingdom for a purpose other than the purpose specified in the entry clearance.”
>>> EU children can be lawfully resident in the UK without exercising treaty rights: https://www.bailii.org/uk/cases/UKUT/IAC/2019/356.html
The Upper Tribunal judgment in MS (British citizenship; EEA appeals) Belgium [2019] UKUT 356 (IAC) confirms that certain EU citizen children in the UK can be considered lawfully resident for the purposes of Article 8 of the European Convention on Human Rights, even if they (or their EU citizen parents or carers) have not exercised treaty rights and have no official Home Office documentation.
The Upper Tribunal’s decision
The tribunal agreed with the Secretary of State’s position that an adult EU national who is not exercising treaty rights and who has no other lawful basis for being in the UK is not lawfully resident here (see paragraphs 133 to 135 and 138).
But compliance with Article 8 requires tribunals to make appropriate allowances, particularly where an EU citizen was a minor during their time in the UK. A flexible approach should be adopted where the facts suggest that an EU child’s time in the UK should not be categorised as unlawful.
The official headnote
"(1) If, on appeal, an issue arises as to whether the removal of a person (P) from the United Kingdom would be unlawful because P is a British citizen, the tribunal deciding the appeal must make a finding on P’s citizenship; just as the tribunal must do so where the consideration of the public interest question in Part 5A of the Nationality, Immigration and Asylum Act 2002 involves finding whether another person falls within the definition of a “qualifying child” or “qualifying partner” by reason of being a British citizen.
(2) The fact that P might, in the past, have had a good case to be registered as a British citizen has no material bearing on the striking of the proportionality balance under Article 8(2) of the ECHR. The key factor is not whether P had a good chance of becoming a British citizen, on application, at some previous time but is, rather, the nature and extent of P’s life in the United Kingdom.
(3) If P is prevented by regulation 37 of the Immigration (European Economic Area) Regulations 2016 from initiating an appeal under those Regulations whilst P is in the United Kingdom, it would defeat the legislative purpose in enacting regulation 37 if P were able, through the medium of a human rights appeal brought within the United Kingdom, to advance the very challenge to the decision taken under the Regulations, which Parliament has ordained can be initiated only from abroad.
(4) In considering the public interest question in Part 5A of the 2002 Act, if P is an EEA national (or family member of an EEA national) who has no basis under the 2016 Regulations or EU law for being in the United Kingdom, P requires leave to enter or remain under the Immigration Act 1971. If P does not have such leave, P will be in the United Kingdom unlawfully for the purpose of section 117B(4) of the 2002 Act during the period in question and, likewise, will not be lawfully resident during that period for the purpose of section 117C(4)(a).
(5) The modest degree of flexibility contained in section 117A(2) of the 2002 Act, recognised by the Supreme Court in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, means that, depending on the facts, P may nevertheless fall to be treated as lawfully in the United Kingdom for the purpose of those provisions, during the time that P was an EU child in the United Kingdom; as in the present case, where P was under the control of his parents; was able to attend school and college without questions being asked as to P’s status; and where no action was taken or even contemplated by the respondent in respect of P or his EU mother."
>>> 54-day stopover counts as “in transit” for Refugee Convention: https://www.bailii.org/ew/cases/EWCA/Crim/2019/1953.html
In Idahosa v R [2019] EWCA Crim 1953 the Court of Appeal has ruled that an asylum seeker who had stopped over in the United Kingdom for 54 days en route to Canada can rely on the exception to false documents offences available to refugees. The court took a purposive and generous approach to interpreting the Refugee Convention to conclude that even a stopover of 54 days met the requirement of remaining “in transit” to another country to claim asylum.
>>> Ever wondered how Sopra Steria wants the applicant to prepare/upload their supporting documents ?
Here is a photo of their Guidance, found in their office one day: https://legalcentre.org/files/Sopra_Steria_Document_Sorting_List.jpg
>>> Tier 2 of the points-based system
Updated guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwi3ve230f3lAhVOrxoKHcAjCZMQFjAAegQIARAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/846380/tier-2-v34.0ext.pdf&usg=AOvVaw23a9V-N18_zD9dVywyhFQQ
This version replaces the Tier 2 modernised guidance version 33.0 which has been withdrawn and archived. It has been updated following changes to the Immigration Rules on 6 October 2019 to:
• remove PhD-level occupations from the Tier 2 limit
• add an exemption from the 180 days absence requirements for continuous leave for applicants in PhD-level occupations who are undertaking research overseas
• add statutory parental leave, sick leave, absence due to assisting in a national or international environmental or humanitarian crisis overseas and taking part in legal strike action to the list of permitted absences that can benefit from certain exemptions under Tier 2
• add the Department of Education ‘Teaching Vacancies’ service on GOV.UK as an acceptable form of advertising under the Resident Labour Test
• make other minor amendments.
The guidance also confirms those completing 12 months of the equivalent level of a PhD not just a PhD can switch into Tier2 from Tier4.
>>> 54-day stopover counts as “in transit” for Refugee Convention: https://www.bailii.org/ew/cases/EWCA/Crim/2019/1953.html
In Idahosa v R [2019] EWCA Crim 1953 the Court of Appeal has ruled that an asylum seeker who had stopped over in the United Kingdom for 54 days en route to Canada can rely on the exception to false documents offences available to refugees. The court took a purposive and generous approach to interpreting the Refugee Convention to conclude that even a stopover of 54 days met the requirement of remaining “in transit” to another country to claim asylum.
>>> UKVI Information on Settlement Visa Applications – Supporting Document Submission Options
Settlement Visa Applications – Supporting Document Submission Options
VFS Global
If the settlement application is lodged in a location where VFS Global is the UKVI commercial partner, then there are four options available to submit supporting documents:
1. Self-upload supporting documents without an additional charge.
2. Document Scanning Assistance Service at the Visa Application Centre, for an additional fee.
3. UK settlement scanning service – walk in, for an additional fee.
4. UK settlement Scanning Service – postal, for an additional fee.
The link below describes these services in detail including the fee –
https://www.vfsglobal.co.uk/in/en/vacs/supporting-documents
TLScontact
If the settlement application is lodged in a location where TLScontact is the UKVI commercial partner, then there are two options available to submit supporting documents:
1. Self-upload supporting documents without an additional charge.
2. Assisted Scanning Settlement service in the UK – postal, for an additional fee.
The link below describes these services in detail including the fee –
https://static.tlscontact.com/media/global/ww/uk/settlement_visa_applications_-_new_additional_process.pdf
>>> Good Friday Agreement doesn’t stop Northern Irish people being born automatically British: https://www.bailii.org/uk/cases/UKUT/IAC/2019/355.html
Most people born in Northern Ireland have dual citizenship, British and Irish. Generally people apply for the passport of the country which they identify with — nationalists for Irish passports, unionists for British — and are never troubled by the legal fact that they technically possess the other nationality as well.
The recently reported case of De Souza (Good Friday Agreement: nationality) United States of America [2019] UKUT 355 (IAC) is part of a campaign, led by the redoubtable Emma DeSouza, challenging this state of affairs. Ms DeSouza accepts only her Irish citizenship and strongly objects to having British nationality, to the point that she will not use the procedure available to renounce it (as that would be to acknowledge having British citizenship in the first place).
Ms DeSouza says that her position — that Northern Irish people cannot be forced to start life with dual citizenship — is supported by the Good Friday Agreement. That is because the UK and Ireland said in that agreement that both countries:
“…recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.”.
This campaign has gained the support, or at any rate the attention, of the prime ministers of both countries. The attempt to change the legal position on citizenship via the courts has, however, been rejected by the Upper Tribunal.
The case arose out of Mr DeSouza’s visa problems, as an American who wished to live with his wife in Northern Ireland. In an attempt to avoid being caught by the notoriously harsh family immigration rules that apply to the spouses of British citizens, he applied for a residence card as the spouse of an EU citizen.
The Home Office said that this procedure is not available to people who have British citizenship, Ms DeSouza being legally a UK citizen as well as Irish. This will be little surprise to those familiar with the case of C-434/09 McCarthy, in which the facts were similar.
The First-tier Tribunal found that “the constitutional changes effected by the Good Friday Agreement with its annexed British-Irish Agreement, the latter amounting to an international treaty between sovereign governments, supersede the British Nationality Act 1981 in so far as the people of Northern Ireland are concerned”.
The Upper Tribunal reversed this finding. The headnote to its decision says simply:
“The Belfast (or Good Friday) Agreement did not amend the law of British citizenship, as contained in the British Nationality Act 1981.”.
That is a very short official summary for an Upper Tribunal case. It reflects the fact that this is Law 101: international treaties do not override Acts of Parliament (or indeed Acts of the Oireachtas in Ireland).
Members of the public are, of course, entitled to be surprised that a treaty as eminent as the Good Friday Agreement doesn’t have that effect. But the Upper Tribunal pointed out that it is not altogether clear that the “birthrate provisions” quoted above were ever intended to give people the right to reject his or her Irish or British citizenship, in a legal rather than personal identity sense. If the point was to give people the right to turn dual nationality on and off at will, it is “inconceivable” that the Agreement wouldn’t have said so explicitly, or that this would not have been written into the Northern Ireland Act 1998.
The judgment also raises the possibility that citizenship by consent was never intended or devised because it would be unworkable. It said that “a person’s nationality cannot depend in law on an undisclosed state of mind, which could change from time to time, depending on how he or she felt”.
There is also the minor snag that it would mean everyone in Northern Ireland being born stateless: if the UK could not confer automatic citizenship at birth to Northern Irish people, nor logically could Ireland. Such a result would be in breach of the UN conventions on statelessness, which both countries have signed.
The Upper Tribunal, understandably, was in no rush to violate one treaty in the name of another. The couple are crowdfunding in the amount of £120,000 to take the case to the Court of Appeal — but if there is a satisfactory solution, it seems more likely to emerge from politics rather than the law.
>>> A respondent cannot withdraw an appeal, confirms the Upper Tribunal: https://www.bailii.org/uk/cases/UKUT/IAC/2019/357.html
“Be careful what you wish for!”, could be the headline for the case of Ahmed (rule 18; PTA; Family Court materials) Pakistan [2019] UKUT 357 (IAC).
Haseeb Ahmed, a Pakistani citizen, was initially refused an application for leave to remain by the Secretary of State. He won his appeal at the First-tier Tribunal, but the Secretary of State was granted permission to appeal to the Upper Tribunal. Shortly before the date of the appeal hearing, Mr Ahmed’s solicitors wrote to the tribunal asking to withdraw the appeal, so that they could submit a new application for leave to remain for their client.
This mistake could have been made by many, but they simply had no appeal to withdraw, as the Secretary of State was the party who appealed.
Instead, the Upper Tribunal treated the request as meaning that Mr Ahmed was no longer going to defend his case and the Secretary of State’s case was unopposed. It then proceeded to rule in the Secretary of State’s favour, finding that the initial refusal of Mr Ahmed’s application for leave to remain was correct. Mr Ahmed was back to square one, but now with two negative decisions against him!
Thankfully in this case, Mr Ahmed went on to apply for permission to appeal to the Court of Appeal, which sent the decision back to the Upper Tribunal. This time, the Upper Tribunal ruled in Mr Ahmed’s favour, finding that the First-tier Tribunal’s decision had been correct. So things could have gone even worse for poor Mr Ahmed…
A second procedural issue which arose in this case was about appeal deadlines. The Secretary of State applied for permission to appeal well out of time. This didn’t seem to have been picked up by anyone until the second Upper Tribunal hearing, when Mr Ahmed’s legal representatives tried to argue that the Secretary of State’s application could not be admitted on that basis.
The Upper Tribunal found, rather ironically, that it was too late to raise this issue. When a party wants to raise the issue of lateness, they should do it before the Upper Tribunal makes a substantive decision on whether or not the First-tier Tribunal erred in law.
Last but not least, the tribunal reminds us again of the danger of submitting family court documents without permission, as Rachel explained in detail in her recent post on the issue. In this case, the Upper Tribunal picked up that Mr Ahmed’s legal representatives did not have permission to disclose the documents and wrote to the Designated Family Judge to bring the matter to their attention. Mr Ahmed’s lawyers just need to hope they won’t be found in contempt of the Family Court.
The official headnote:
“(1) Where P is the respondent to the Secretary of State’s appeal in the Upper Tribunal against the decision of the First-tier Tribunal to allow P’s appeal, P cannot give notice under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 so as to withdraw his appeal, since P has no appeal in the Upper Tribunal. In such a situation, the giving of notice under rule 17 to withdraw P’s case will, if the Upper Tribunal gives consent, have the effect of leaving the Secretary of State’s appeal to the Upper Tribunal unopposed and therefore may well lead to a reasoned decision from the Upper Tribunal, setting aside the decision of the First-tier Tribunal.
(2) If an application by a party for permission to appeal against a decision of the First-tier Tribunal has been granted by that Tribunal, but the application was made late and time was not extended by the granting judge, the other party may raise the timeliness issue before the Upper Tribunal, as described in Samir (FtT permission to appeal: time) [2013] UKUT 3 (IAC), provided the Upper Tribunal has not reached a substantive decision. The issue may not, however, be raised after the Upper Tribunal has reached such a decision. Rule 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 means that the grant of permission by the First-tier Tribunal is to be treated as valid, notwithstanding the procedural irregularity, with the result that the ensuing decision of the Upper Tribunal is, likewise, valid.
(3) If a party intends to rely before the Tribunal on material emanating from proceedings in the Family Court, that party must ensure that the material can be disclosed, without any breach of restrictions on the disclosure of such material. Failure to do so may amount to contempt of the Family Court. Judges in the Immigration and Asylum jurisdiction must be alert to this issue.”
>>> Child abuse victim given deportation reprieve: https://www.bailii.org/ew/cases/EWCA/Civ/2019/2027.html
The Court of Appeal has given judgment in CI (Nigeria) v SSHD [2019] EWCA Civ 2027, providing further guidance on the law relating to the deportation of foreign criminals, and in particular on the meaning in section 117C(4) of the Nationality Immigration and Asylum Act 2002 of “lawful residence”, “social and cultural integration”, and “very significant obstacles” to integration.
>>> Supreme Court finds detention of asylum seekers unlawful: https://www.supremecourt.uk/cases/uksc-2018-0197.html
The Supreme Court has confirmed in the case of Hemmati v Secretary of State for the Home Department [2019] UKSC 56 that the detention of asylum seekers for their removal to other EU states under the Dublin Regulation was unlawful between 1 January 2014 and 15 March 2017, when new regulations were belatedly adopted. There are no publicly available statistics on how many asylum seekers are detained for removal under the Dublin system, but we do know that around 10,000 “take back” requests were sent by the UK to other EU states during that time frame.
When the EU legislated specifically to protect those being transferred between member states under a new Dublin Regulation, and that regulation came into force on 1 January 2014, the UK failed to implement any new or specific protections. The Supreme Court finds that existing UK law was insufficient, making the detention of the claimants and all other Dublin detainees unlawful.
На основании существующего Appendix EU в данный период времени вероятно осуществить изменение иммиграционного статуса для родителей, имеющих британские гостевые визы, чьи дети являются гражданами EU или чьи дети (не граждане EU) являются супругами граждан EU.
Например, если Вы из России, и Вы находитесь в браке с гражданином EU, Вы живете в Великобритании и у Вас сейчас в гостях родители из России, то Ваши родители потенциально могли бы остаться в Великобритании и получить EU Pre-Settled Status.
Каждая дело рассматривается индивидуально во время предварительной консультации, на которую Вы можете записаться по этой ссылке: https://legalcentre.org/Konsultacija-s-Advokatom.html
>>> Innovator visa continues to “impress” with a whopping 14 applications in six months (12 approved): https://www.gov.uk/government/statistical-data-sets/managed-migration-datasets
The Innovator visa, launched in March 2019 to “enhance the UK’s offer to overseas entrepreneurial talent“, has attracted a grand total of 14 applications in its first six months of operation. That compares to 997 applications for its predecessor visa, Tier 1 (Entrepreneur), over the same period last year.
Figures published by the Home Office today show that there were ten applications for an Innovator visa between June and September 2019. That is a modest improvement on the just 4 applications recorded in April-June 2019.
Statistically, only 12 out of those 14 applicants have now been approved. Those who do meet the criteria seem fairly likely to be waved through. The problem is that the visa is extremely unappealing to the type of experienced entrepreneurs it is pitched at, for reasons repeatedly stated by the Legal Centre (www.legalcentre.org) in many of their regular online updates.
>>> Appeal overturned after bus stop rant by court interprete: https://www.bailii.org/uk/cases/UKUT/IAC/2019/352.html
An asylum appeal by an Eritrean woman, initially rejected by an immigration judge, has been overturned by the Upper Tribunal after it emerged the court interpreter embarked on a political rant to the woman’s barrister at the bus stop outside court afterwards.
>>> Another failed challenge to the good character citizenship requirement: https://www.bailii.org/ew/cases/EWCA/Civ/2019/2024.html
R (Al-Enein) v Secretary of State for the Home Department [2019] EWCA Civ 2024 is another valiant but failed attempt to challenge the Home Office’s good character policy in relation to applications for British citizenship.
The issue in this case was whether the policy of looking back at a person’s immigration status in the decade prior to the application was lawful. Mr Al-Enein had been in the UK without valid leave between 20 November 2007 and 27 January 2010, when he was removed to Lebanon. He returned to the UK lawfully in 2012 as the fiancé of a British citizen and subsequently progressed to indefinite leave to remain. He applied for naturalisation in June 2015, but was refused for failing to meet the good character requirement due to non-compliance with UK immigration laws in the decade prior to application.
NB Should Mr Al-Enein approach the Legal Centre (www.legalcentre.org) before his application for Naturalization, he would have been warned about the consequences of applying at that stage and the imminent possibility of a refusal.
The particular challenge attempted here was to argue that the British Nationality Act 1981 already sets out a specific time period over which an applicant for naturalisation must have been resident in the UK and not in breach of the immigration laws. That period is three years for spouses/civil partners of British citizens, or five years for everyone else. This is what Parliament decided in enacting the legislation. But then the Secretary of State, using his statutory discretion to determine whether or not a person is of good character, is actually expanding that time period by a further seven or five years depending on the category. Doing so, it was argued, is ultra vires.
It seems fundamentally unfair that Parliament, after appropriate debate and scrutiny, specifies a required period of immigration compliance for would-be citizens, only for the Home Office to effectively lengthen it. One would think that if Parliament had intended an examination of a person’s immigration status over a longer period, Parliament would have passed legislation to that effect. But the Court of Appeal, like the Scottish courts, was having none of it:
“Although those requirements laid down by Parliament are statutory minimum requirements, there is no reason in law why the Secretary of State cannot impose an additional or extended requirement relating to breach of immigration laws as properly being a matter which is relevant to the more general question of good character… that requires an assessment or evaluation by the Secretary of State of all the relevant circumstances going to that issue.”
In other words, since Parliament has required the Secretary of State to determine whether a citizenship applicant is of good character without specifying how this is to be done, the Secretary of State can apply whatever policy he or she likes.
>>> Administrative review under the EU Settlement Scheme: the 90% decision overturned success rate
Statistics – see https://www.whatdotheyknow.com/request/euss_administrative_review_stati#incoming-1450411 on administrative reviews of Settlement Scheme decisions show that 89.5% of initial decisions reviewed were overturned.
As of 12 September 2019, the Home Office had received 451 administrative review requests for Settlement Scheme decisions. More recent figures for administrative reviews have been requested but have been refused by the Home Office.
Half of the refusals could have been due to the case worker’s error…
As always, it is best to have at least a one-off consultation with our exerts from the Legal Centre (https://legalcentre.org/Initial-Consultation.html) in order to get a clear idea as to who to apply for the EU Settled or EU Pr-settled scheme.
Should you wish to be assisted further, the Legal Centre offers a cost effective package to assist migrant in order to get their EU Settled or EU Pre-settled status: https://legalcentre.org/EU-settled-and-eu-pre-settled-status-and-eu-settelment-scheme.html
>>> Update on registration applications under s4C BNA 1981
It may assist readers to know that the Home Office will grant registration as British without a citizenship ceremony under the relatively new provision to allow registration as British under s4C where the applicant has a criminal record (following the coming into force on 25 July 2019 of the BNA 1981 (Remedial) Order 2019 which removes the usual good character requirement).
For example, by the time the applicant’s application was approved the applicant was back in prison on a long-term basis and was thus not able to attend a citizenship ceremony. It is possible to make representations to the Home Office that when the guidance about when to waive the requirement to attend a citizenship ceremony was drafted, the possibility of a candidate being in custody had not been contemplated, as all adult applications were subject to a good character requirement. The Home Office then simply sent a registration certificate by post.
>>> Mentally ill man detained for 838 days awarded £100,000 compensation: https://www.gardencourtchambers.co.uk/news/home-office-admits-unlawful-detention-of-mentally-ill-man
A mentally ill Iranian man who was kept in immigration detention for 838 days in total has secured £100,000 in compensation from the Home Office. The test case concerning a man known as AKE was settled in the High Court recently.
The settlement does mean the legal issues in the case will not now be thrashed out in court. The Court of Appeal has repeatedly held that he immigration detention system discriminates against migrants with mental health conditions, in breach of the Equality Act 2010.
>>> Risk of trauma for children not enough to prevent deportation: https://www.bailii.org/ew/cases/EWCA/Civ/2019/2051.html
“…This is not a comfortable interpretation to apply. But that is what Parliament has decided…”
So held Lord Justice Baker, giving judgment in SSHD v KF (Nigeria) [2019] EWCA Civ 2051, and yet another deportation case in the Court of Appeal.
The case considered the meaning of “unduly harsh” in family separation cases, and endorses the line taken in SSHD v PG (Jamaica) [2019] EWCA Civ 1213 following the Supreme Court case of KO (Nigeria) v SSHD [2018] UKSC 53.
KF and his son.
In appealing against a 2014 deportation order following a three-year prison sentence for burglary and two robberies, KF relied on his relationship with family members in the UK, and in particular with his British son. He argued that it would be “unduly harsh” on his son for him to be deported (see Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002).
The First-tier Tribunal agreed, and this finding was upheld by the Upper Tribunal. In its assessment of the impact of KF’s deportation on his son the First-tier Tribunal had held:
“For [KF’s son], the adverse consequences remaining in the UK are likely to be that he would be deprived of a proper relationship with his father. I do not accept that maintaining a relationship, while living on different continents, via modern means of communication is in any way a substitute for growing up with a parent. [KF’s] son is very young. This is the time when he would normally be bonding with his father. I think I am entitled to take judicial notice of the fact that being deprived of a parent is something a child is likely to find traumatic and that will potentially have long-lasting adverse consequences for that child. I take into account that in this case [KF’s] son has limited knowledge of his father and has the benefit of a supportive extended family. However in my view that is no substitute for the emotional and developmental benefits for a 3 year old child that are associated with being brought up by both parents during its formative years. These benefits have been recognised by the courts on numerous occasions and the consequences of losing them should not be minimised.”
In November 2017, the Secretary of State applied out of time for permission to appeal to the Court of Appeal against the decision of the Upper Tribunal (made in August 2017). This was granted a year later following the judgment in KO (Nigeria).
Risk of trauma? No worries!
The Court of Appeal did not dispute the facts of the case. It described the conclusions relating to the importance of being brought up by both parents as “indisputable”. But:
“…those benefits are enjoyed by all three-year-old children in the care of both parents. The judge observed that it was a “fact that being deprived of a parent is something a child is likely to find traumatic and that will potentially have long-lasting adverse consequences for that child” and that he was entitled to take judicial notice of that fact. But the “fact” of which he was taking “judicial notice” is likely to arise in every case where a child is deprived of a parent. All children should, where possible, be brought up with a close relationship with both parents. All children deprived of a parent’s company during their formative years will be at risk of suffering harm. Given the changes to the law introduced by the amendments to [the] 2002 Act, as interpreted by the Supreme Court, it is necessary to look for consequences characterised by a degree of harshness over and beyond what every child would experience in such circumstances.”
The court reinforced the finding in PG (Jamaica) that there must be something in the factual matrix of a case which distinguishes it from other cases where a family is separated. It went on to allow the appeal and restore the original deportation order.
It’s what the people want
As well as continuing a trend in which the Court of Appeal remakes deportation appeal decisions rather than remitting them to the tribunal (and here for example, not considering at all whether “very compelling circumstances” might prevent deportation under section 117C(6), a step required where neither of the exceptions apply), this decision further embeds the problematic interpretation of the “unduly harsh” test as explored in our write-up of PG (Jamaica).
In reality, then, notwithstanding the real and accepted prospect of trauma and long-lasting adverse consequences for the children of deported parents, foreign national offenders sentenced to longer than 12 months facing deportation will need to show more than this to meet the test.
It is unsurprising that this causes the judges deciding these cases some discomfort.
Сегодня очередная клиентка из Кипра получил EU Pre-Settled Status.
Заявление было не простое – клиентке пришлось несколько раз переделывать и добавлять документы.
Я работал с клиенткой по принципу полного сопровождения: https://legalcentre.org/Pomosh.html
Результат не заставил себя ждать – заявление рассмотрели довольно быстро.
Я помог десяткам тысяч других клиентов, и я могу помочь Вам.
Вы можете записаться на телефонную/online консультацию со мной, Антоном Ковалем, 24 часа в сутки: https://legalcentre.org/Konsultacija-s-Advokatom.html
Антон Коваль
Legal Centre
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>>> General grounds for refusal: false representation: https://www.gov.uk/government/publications/general-grounds-for-refusal-false-representation
This guidance is supplementary guidance relating to refusals on grounds of false representation under Part 9 of the Immigration Rules (the general grounds for refusal or GGfR) and the parallel provisions in Appendix Armed Forces, Appendix FM and Appendix V.
>>> UKVI update: Applying for a UK visa: approved English language tests: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiI0qfIyKjmAhXvA2MBHYeZCR8QFjAAegQIAxAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/850654/Approved_Secure_English_Language_Tests_and_Test_Centres__-_5_December_2019.pdf&usg=AOvVaw3L96Cma3I0MH37VOuJb-kj
Change made:
List of approved tests and providers from 7 November 2019 replaced with current list from 5 December 2019
>>> High Court win for Turkish citizens accused of dishonesty: https://www.bailii.org/ew/cases/EWHC/Admin/2019/3208.html
In the case of R (Karagul & Ors) v Secretary of State for the Home Department [2019] EWHC 3208 (Admin), the High Court has found that the Home Office breached the principle of procedural fairness when refusing applications under the Ankara Agreement on the basis of bad faith or dishonesty.
Refused leave to remain amid dishonesty allegations
The case involved four Turkish nationals refused leave to remain in the UK as businesspersons under the Turkish European Communities Association Agreement (ECAA), commonly known as the “Ankara Agreement”.
All four applications were refused on the ground that the Home Office did not believe the applicants had a genuine intention to establish a business. As those were not human rights claims, the only remedies available to those applicants was administrative review or judicial review. The system of administrative review did not allow them to submit further evidence in answer to the allegations of dishonesty. So they turned to judicial review, arguing that:
1. The remedial regime for challenging the refusals violates the EU law principle of effectiveness; and
2. The way in which the decisions were made by the Home Office was in breach of common law fairness standards.
The High Court dismissed the first argument. It held that the claimants could not explain why a judicial review was incapable of providing effective protection to their rights to an effective remedy and fair trial.
It did, however, accept the second argument, relying heavily on the recent Court of Appeal case of Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673.
Officials must interview or follow a “minded to refuse” process
When refusing the claimants’ applications for leave, on the basis that they did not have a genuine intention or wish to establish their proposed businesses, the Home Office did not afford them an opportunity to address those allegations. Once their applications were refused, the claimants could only challenge the refusals by way of administrative review.
Following Balajigari, the High Court found that, before making a refusal on the basis of bad faith or dishonesty, the Home Office should either interview the claimants; or let them know that they were minded to refuse the application, and allow them an opportunity to submit representations in response to the allegations. Not doing so denied the claimants a fair process:
“If the Secretary of State on reconsideration decides to maintain her position that she does not accept the Claimants’ statements and implicit positions as to their true and genuine intentions, she is obliged to follow a fair process in which the Claimants have the opportunity to address this allegation before a final decision by a caseworker and also without being subject to an absolute prohibition on evidence being submitted in the AR [administrative review] in a challenge to the caseworker’s decision. The way to meet fairness standards in such cases can be either by way of interview or a “minded to decide” written process.”
The fact that the applicants could challenge the refusal by way of administrative review was not enough because of the limitations on putting forward new evidence. As Mr Justice Saini put it, “they have been found to have effectively been dishonest and then face an appeal process to be conducted without any chance to rebut that allegation that they did not have the relevant genuine intention with new evidence”.
Home Office policy still too narrow
This is a good result for the claimants and anyone making an application under the Ankara Agreement. However, the Home Office should adopt a fairer and less restrictive policy on when they will use the “Minded to refuse” procedure.
In addition, we still find it hard to understand how, in view of this case and the case of Balajigari, one can still justify visit visa refusals not attracting a right of appeal or a right of administrative review. They are routinely phrased as “I am not satisfied that you are a genuine visitor”, and therefore also making an accusation of dishonesty. We hope those are next in line for a challenge on the basis of procedural unfairness.
Judges have a sense of humour
Just to end on a lighter note, this sentence from the judgment made us smile:
“The Secretary of State has made an implicit finding of some form of bad faith (in the form of applications falsely claiming a certain genuine intention) and it is no comfort to a claim that he can hunt down the Guidance and will appreciate that when the Secretary of State says X she in fact means Y according to some special dictionary of terms used in the Home Office.”
>>> “Positive narrative” behind improved public attitudes to immigration
One fifth of British people have become more relaxed about immigration over the last few years, mainly because of a more “positive narrative” about immigration.
Over 20% of people surveyed by the research firm Ipsos MORI have recently become more positive, or less negative, about the impact of immigration, of which half had changed their views after becoming more aware of what migrants contribute to the country.
Research manager Charlotte Peel said that “these findings highlight the influence a positive narrative surrounding the contribution of immigrants has on public perception”.
Ipsos MORI has been surveying British adults on their attitudes to immigrants since 2015. The headline finding is that 47% of people now think that immigration has had a positive impact, compared to 29% who think it is negative. That is a significant improvement since the EU referendum.
>>> Delay policy leaving trafficking victims in limbo found unlawful: https://www.bailii.org/ew/cases/EWHC/Admin/2019/3346.html
The High Court has declared that the Home Office policy of waiting until an asylum decision is made before considering whether to grant trafficking victims Discretionary Leave to Remain is unlawful. Under that policy, a recognised victim of human trafficking who has claimed asylum might wait months or years for the asylum decision before being granted leave. In the meantime, the person would only be entitled to a basic level of asylum support, prohibited from working or studying, and denied benefits. They would also suffer from ongoing uncertainty about their immigration status. In R (JP) v Secretary of State for the Home Department [2019] EWHC 3346 (Admin), Mr Justice Murray concluded that the blanket policy of delay is unlawful.
>>> Public interest in deporting criminals can be reduced, says Court of Appeal: https://www.freemovement.org.uk/public-interest-in-deportation-cases/?utm_source=rss&utm_medium=rss&utm_campaign=public-interest-in-deportation-cases&utm_source=Free+Movement&utm_campaign=3be77bb958-Deportation+and+detention+updates&utm_medium=email&utm_term=0_792133aa40-3be77bb958-116194677&mc_cid=3be77bb958&mc_eid=1af5cd4d48
The Court of Appeal has given judgment in Akinyemi v SSHD (No 2) [2019] EWCA Civ 2098, a long-running appeal concerning the deportation of a man who was born in the UK in 1983, and has never left.
In reversing (again) the decision of the Upper Tribunal to dismiss Mr Akinyemi’s appeal, the Court of Appeal has given important guidance on the nature of the public interest in the deportation of foreign criminals and the circumstances in which its weight might be reduced.
>>> The Conservative plan for immigration after Brexit - EXECUTIVE SUMMARY
"For too long, politicians have been out of touch with the hardworking majority’s concerns about immigration. The vote to leave the EU was, amongst other things, a vote to take back control of our borders. That is why, with a functioning Conservative majority government, we will get Brexit done, end free movement and introduce a new Australian-style points-based immigration system.
This new system will give us control over who comes to this country on the basis of the skills they have to offer – not where they come from. Only by installing proper controls and ending the preferential treatment of EEA migrants will we be able to attract the brightest and the best from around the world to come here and contribute to our society and economy, while relying on far fewer low-skilled migrants and getting overall migration down.
Here we outline three key changes a majority Conservative government would make after Brexit:
1. A points-based system
o Our single new system will allocate points on a range of criteria. It will, de facto, allocate people into three separate categories:
‘Exceptional talent / contribution’ – highly educated migrants who have received world-leading awards or otherwise demonstrated exceptional talent, sponsored entrepreneurs setting up a new business or investors. These will not require a job offer and will receive fast-track entry.
‘Skilled workers’ – workers who meet the criteria of the points-based system and have a confirmed job offer. Special types – such as our NHS Visa – will also receive fast-track entry and reduced fees.
‘Sector-specific rules-based’ – made up of specific temporary schemes such as for low-skilled labour, youth mobility or short term visits (e.g., touring). These will be revised on an ongoing basis based on expert advice from the MAC. These visas will be time-limited and will not provide a path to settlement.
o The new system will give us control of migration, allow us to reduce total net migration, while meeting the needs of our economy and improving the UK’s productivity.
o Once we have ended free movement and introduced electronic travel authorisation (ETAs), we will be able to screen all prospective migrants on the basis of previous criminality, and bar those with serious convictions from coming here.
2. A new role for the Migration Advisory Committee (‘the MAC’)
o The MAC will be required to publish an annual report via a public letter to the Home Secretary, advising the Government on how to deliver on its objectives – i.e. to get net migration down while addressing emerging gaps in the labour market – including sector specific advice.
o The role of the MAC will continue to be advisory and the Home Secretary will have full discretion over decisions related to the future immigration system.
o The MAC will also be required to monitor the needs of the labour market on an ongoing basis to ensure that the Home Secretary has the information needed to make decisions rapidly.
o Once the new digital immigration status is in place, this will enable the MAC to better understand the impact of immigration on specific communities.
3. A digital immigration status to crack down on illegal overstaying beyond 2022
o The fundamental principle of the new immigration system is that the government will be in control.
o Beyond 2022, all migrants will have a full digital status, making it easier for legal migrants to prove their status, as well as allowing for improved enforcement.
o All visas will be time-limited, with usual indefinite leave to remain rules applying for those who are identified as ‘exceptional’ or ‘high-skilled’. In-country switching between visas will be allowed, but overstaying a visa will count against an individual in their new application.
o All migrants will pay the health surcharge for every year of their visa, unless and until they have gained settled status – usually not before they have been here for five years.
o We will ensure equal treatment of EEA and non-EEA migrants’ regarding access to benefits, making sure people pay in before they can take out.
In order to achieve this we will:
• Immediately begin work to set up a formal exchange programme with the Australian and Canadian governments to allow experts to come to the UK and share best practice with officials during the development of the system.
• Appoint an expert implementation group to ensure roll-out of the new immigration system from January 2021.
Commenting, Priti Patel, Home Secretary said:
“The vote to leave the EU was a vote to take back control of our borders, and that is exactly what a Conservative majority government will do by getting Brexit done and ending freedom of movement.
“Immigration will finally be subject to democratic control. We will be able to create a fairer system, which will attract the brightest and the best from around the world to come here and contribute to our society and economy, while getting overall immigration down.
“Corbyn’s Labour want uncontrolled and unlimited immigration, placing huge strain on public services like our NHS.”
>>> Visa decision waiting times: applications outside the UK: https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk?utm_source=ceecdd1b-e452-4cff-9511-f7e6a7373d58&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
>>>UKVI update: EUSS Caseworker Guidance Suitability requirements: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwip9cDF7rnmAhUL8BQKHXshAO0QFjAAegQIBBAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/851469/EUSS-suitability-guidance-v2.0.pdf&usg=AOvVaw0qMYelCCnjhl0iTxTGTuny
>>> Supreme Court says Zambrano test is usually a simple one: https://www.bailii.org/uk/cases/UKSC/2019/59.html
The Supreme Court has found in the case of Patel and Shah v Secretary of State for the Home Department [2019] UKSC 59 that the carers of EU citizen children can derive a Zambrano right of residence only where the child will as a practical matter of fact be forced to leave the EU. The best interests of the child are not strictly relevant to that question. This stark finding is leavened somewhat by the court also holding that parental choice or preference plays no role in the assessment, contrary to the findings of the Court of Appeal.
>>> Home Office submits inaccurate witness statement in national security case: siac.decisions.tribunals.gov.uk/Documents/outcomes/documents/SR%20-%20OPEN%20Judgment%20-%2004.12.2019.pdf
SR, who is from Iraq but settled in the UK in 2002, wants to become a British citizen. The Home Office does not want to grant him citizenship, accusing SR of holding “extremist Islamic beliefs” and raising concerns about “financial irregularities”. The case came to the Special Immigration Appeals Commission, SIAC, because of the national security angle: SR v Secretary of State for the Home Department (SN/71/2018).
Ms Hughes from the Home Office submitted a witness statement about the department’s decision to deny SR citizenship. In the witness statement, she said that she had reviewed the paperwork in SR’s case. But the judges spotted that the document she was referring to, a “minute sheet”, was not about SR at all.
The judges were not best pleased, expressing “our dismay at this turn of events”. They added that SIAC:
“…relies on the Secretary of State and her representatives to prepare these cases with meticulous care. It is particularly important, also, that applicants, such as SR, who are able to play only a limited part in their appeals and applications, should have complete confidence that the Secretary of State is taking every possible care in the decision making [in] their cases, and in preparing those cases for court.”.
>>> Court of Justice case confirms lower legal protections for Brits visiting the EU after Brexit: http://curia.europa.eu/juris/document/document.jsf?text=&docid=221510&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=7338990
In all likelihood, the events of last Thursday mean the UK will be exiting the EU on 31 January 2020 with a deal. This means EU law will remain in place during a transitional period at least until 31 December 2020. After this date, either the transitional period is extended (although the government appears to be moving to legislate against this), or an agreement on the future UK-EU relationship is put in place — or there is no deal from 1 January 2021.
What future arrangements are in place matters for many obvious reasons. Perhaps not so high on the list would be British citizens’ holidays in the EU. Or perhaps we will all need a long holiday by the time this is all over.
Travelling to the EU after Brexit
Currently, holidaying in the EU is covered by the free movement directive. But if we assume that there will be no extension to the transitional period, a new regime will be in place from 1 January 2021 onwards.
Other non-EEA citizens — as British nationals will be at after Brexit — can enter the EU’s Schengen travel zone for 90 days either with a pre-obtained Schengen visa or, for nationalities that don’t need a visa, as long as they meet entry conditions broadly similar to the Schengen visa requirements. The political declaration on the future EU/UK relationship aims at putting short-term UK visitors to the EU into the visa-free category (and vice versa for short-term EU visitors to the UK).
These non-visa nationals will still have to get pre-travel authorisation from 2021 under the proposed ETIAS system, based on a similar system that already exists for the USA. The UK government has plans to introduce a similar scheme. The purpose of pre-travel authorisation is to pick up on security risks presented by non-visa nationals before they travel and enter the destination country.
But what happens if you find yourself in hot-water after you have entered an EU member state for a visit? This situation was examined by the Court of Justice of the European Union in Case C 380/18 Staatssecretaris van Justitie en Veiligheid v EP.
The treatment of non-EU citizens who get in trouble in Europe
The case was about a non-EEA citizen visiting the Schengen zone under the visa-free arrangements mentioned above. He was arrested in the Netherlands for a drugs offence.
The Dutch authorities moved to expel EP on the basis that the arrest and suspicion of committing a crime alone was sufficient to show that he presented a security risk. EP tried to argue that although he was not protected by the free movement directive, the approach taken to expulsion in this directive should be applied to their situation. This would mean that expulsion has to be based on a threat to public policy; that is, the person’s conduct has to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society. That represents a relatively high bar to removal.
The Court of Justice rejected this submission. It pointed out that, had the drafters of the Schengen legislation wanted it to set the same high standards for expulsion as under the free movement directive, they would have worded the Schengen security clauses that way. The conclusion the court came to was that:
“… Article 6(1)(e) of the Schengen Borders Code cannot be interpreted as precluding, as a matter of principle, a national practice under which a return decision is issued to a third-country national not subject to a visa requirement, who is present on the territory of the Member States for a short stay, if that national is suspected of having committed a criminal offence, without it having been established that his or her conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State concerned. [Paragraph 46]”.
Whilst we hope that no British citizens find themselves in such an unfortunate situation, this case does highlight the inferior treatment afforded to those no longer in the EU club. It also seems likely that, under the ETIAS pre-travel authorisation regime, some British citizens with criminal convictions will find themselves denied approval to visit the EU for holidays.
>>> Upper Tribunal slams Home Office for inability to read dictionary: https://www.bailii.org/uk/cases/UKUT/IAC/2019/394.html
The Upper Tribunal has rejected an attempt by the Home Office to ignore the clear meaning of an Immigration Rule. Sahebi (Para 352(iii): meaning of “existed”) Pakistan [2019] UKUT 394 (IAC) is about paragraph 352A(iii), which covers reunion for the family members of people who have been granted refugee status in the UK. It states that in order for someone to qualify for refugee family reunion as a partner, the relationship must have existed before the refugee left their country of origin.
Mrs Sahebi is from Pakistan. She is married to Mr Sahebi, who successfully claimed asylum in the United Kingdom. Before Mr Sahebi left Pakistan, their relationship broke down due to domestic violence and they separated, but remained married. The couple reconciled after Mr Sahebi left Pakistan and applied for refugee family reunion. The First-tier Tribunal ruled that the marriage clearly “existed” before Mr Sahebi left Pakistan to come to the UK and allowed the appeal, granting the couple family reunion.
In the Upper Tribunal, the Home Office argued that the word “existed” in paragraph 352 actually means “subsisted”. Since the couple were separated at the point of Mr Sahebi’s departure, the Home Office argued that the marriage was no longer subsisting and did not meet the family reunion requirements.
The Upper Tribunal consulted the Shorter Oxford English Dictionary (6th Ed, 2007) and concluded that “existed” merely refers to a condition objectively being fulfilled, whereas “subsisted” implies an additional qualitative element. When drafting the Immigration Rules the Home Office had deliberately used the term “existed”. Interpreting it to mean “subsisted” would amount to re-writing the rules. The Upper Tribunal therefore concluded:
“On its true construction, para 352A(iii) of the Immigration Rules is satisfied by showing nothing more than the formal existence of a marriage or civil partnership as at the time of the refugee’s departure from his/her country of former habitual residence. In contrast to less formal relationships, there is no requirement to show that the relationship had the qualitative character of it having subsisted at the time of the refugee’s departure.”.
>>> UKVI update: Sponsor change of circumstances form: https://www.gov.uk/government/publications/sponsor-change-of-circumstances-form
Interactive form for sponsors who do not have access to the sponsorship management system (SMS) to appoint a new level 1 user.
Form has been updated and edited description to reflect that the form should no longer be used to surrender part of a licence.
>>> £1,000 child citizenship fee found unlawful: https://www.bailii.org/ew/cases/EWHC/Admin/2019/3536.html
The High Court has ruled that charging a citizenship fee of over £1,000 to children is unlawful. The decision will be widely welcomed by campaigners who have long argued that the fee charged to register a child as British, which is set far above the administrative cost of processing applications, is “pricing children out of their rights”.
The challenge succeeded only on the limited ground of failing to assess children’s best interests, meaning that the Home Office could maintain the current fees after taking that step, or perhaps introduce a limited scheme of fee waivers. But the claimants are trying to take the matter to the Supreme Court in order to get a more substantial verdict on the lawfulness of the fee. The case is R (The Project for the Registration of Children As British Citizens & Ors) v Secretary of State for the Home Department [2019] EWHC 3536 (Admin).
Children charged £1,000 to exercise citizenship rights
Many children born in the UK or living here from an early age do not actually have British citizenship, but can get it through a process called registration. Processing applications for registration costs the Home Office an estimated £372, but it charges applicants £1,012. Analysis carried out by Free Movement last year, and not disputed by the Home Office, found that the surplus on child registration fees amounted to almost £100 million between 2012 and 2017.
Mr Justice Jay said the evidence before him showed that “for a substantial number of children a fee of £1,012 is simply unaffordable”. That includes the two children in whose name the case was taken, O and A. 12-year-old O was born in the UK and has never left the country, but is not a British citizen. She is entitled to register, but her mother can’t afford it. In O’s own words:
“I was born in this country and have lived here all my life. I feel as British as any of my friends and it’s not right that I am excluded from citizenship by a huge fee.
I want to be able to do all the things my friends can. I don’t want to have to worry they will find out I don’t have a British passport and think that means I am not the same as them.”
Three-year-old A would be entitled to automatic citizenship if not for the fact that her mother is married to someone other than her father; her family can’t afford the registration fee either.
As Jay J said, children without citizenship are “in an obviously precarious position, and in addition to their risk of being removed or deported have limited or no access to the welfare state”. But the registration fee had been unsuccessfully challenged before, in Williams [2017] EWCA Civ 98. The decision in Williams closed the door on some of the legal arguments. In particular, the claimants failed on the argument that the fee was so high as to make the right to register impossible to realise in practice.
Failure to consider children’s best interests
A different argument did land. Section 55 of the Borders, Citizenship and Immigration Act 2009 instructs the Home Office to consider the best interests of children in immigration, asylum and nationality cases. Jay J found, in short, that the Home Office had not bothered to weigh up the best interests of children in making the fees policy:
“...there is no evidence in the voluminous papers before me that his client [the Secretary of State] has identified where the best interests of children seeking registration lie, has begun to characterise those interests properly, has identified that the level of fee creates practical difficulties for many (with some attempt being made to evaluate the numbers); and has then said that wider public interest considerations, including the fact that the adverse impact is to some extent ameliorated by the grant of leave to remain, tilts the balance.”
Sir James Eadie QC for the Home Office argued that Parliament had considered, and rejected, attempts to lower the fee. It was therefore not for the courts to interfere. But the court found that “nowhere on the Government’s side” in these debates “has there been any recognition of where the best interests of children might repose”.
But Jay J rejected an argument based on the Equality Act 2010, saying that “impecuniosity is not a protected characteristic”. Nor did he quash the relevant fee regulations, granting instead a declaration that they are unlawful unless there is a best interests consideration process under section 55.
Solange Valdez-Symonds of the Project for the Registration of Children as British Citizens said:
“It is significant that the court has recognised British citizenship is the right of these and thousands of children and that the consequences of blocking their registration rights is alienating and harmful.”
While that recognition is a great step forward, the fact remains that tens of thousands of British children are growing up in this country deprived of their rights to its citizenship, including by this shamelessly profiteering fee.
The High Court has granted a certificate to the claimants to apply direct to the Supreme Court for permission to appeal on the point they lost on. It has also granted permission to appeal to the Home Office. In the meantime, there is no immediate basis for those who have paid a registration fee to be refunded. There may eventually be a case for refunds, though, particularly if the fee is ultimately reduced.
>>> Tier 1 (Investor) – the programme's evolution since its conception in 1994
-October 1994: Immigrant Investor scheme launched, with a minimum threshold of £1 million.
-June 2008: Tier 1 (Investor) introduced.
-February 2014: Migration Advisory Committee review finds limited economic benefit to Tier 1 (Investor) and make various recommendations for adjustments.
-November 2014: minimum investment raised to £2 million; caseworkers are empowered to refuse applications if there are reasonable grounds to suspect that the money was obtained unlawfully.
-April 2015: investors required to open UK bank account, with associated money laundering checks, before applying.
- March 2019: government bonds removed as qualifying investment.
>>> Tribunal shoots down £100m investment visa loan scheme – dealing with the Russian etc investments: https://www.bailii.org/uk/cases/UKUT/IAC/2019/393.html
The Upper Tribunal has shot down a scheme under which people looking for a Tier 1 (Investor) visa would borrow money from one company and invest in a closely related company. In a judicial review against the Home Office for refusing the Tier 1 (Investor) applications of two Chinese citizens who had availed of the scheme, the tribunal held that the money was not under their control as required by the Immigration Rules. The case is R (JW & Ors) v Secretary of State for the Home Department (Tier 1 Investor; control; investments) [2019] UKUT 393 (IAC).
The case involved a woman known as A1, who was applying for an extension of her Tier 1 (Investor) visa, and another called Jiaqi Wu who was seeking indefinite leave to remain. The essence of the scheme was that a company called Maxwell Holding would lend £1 million to clients such as A1, “the express purpose of which was to enable A1 to meet the requirements of the Immigration Rules as a Tier 1 (Investor)”. The owner of Maxwell Holding was Dmitry Petrovich Kirpichenko.
The clients then signed the money loaned to them over to a company called Eclectic Capital. The sole director of this company was Mr Kirpichenko’s wife, Nika Kirpichenko. Over 100 people have used this service, according the judgment. Eclectic Capital therefore ended up with a pot of over £100 million, which was mostly invested in “companies in Russia”.
The question was whether this arrangement satisfied the requirement of the Immigration Rules that money used for Tier 1 (Investor) must be under the investor’s “control”. The Home Office, in refusing A1 a visa extension and refusing Ms Wu settlement, said that the loan agreement required them to put the Maxwell Holding money into Eclectic Capital. It accordingly took the view that “the money that was lent to you is not under your control because it is evident that you are not able to invest the money anywhere other than in Eclectic”. In other words, they never had control of it in the first place.
The investors launched a judicial review, arguing among other things that “something less than complete and unfettered control is required” to satisfy the Immigration Rules. They claimed to have “effective and ultimate control” over the loans and investments, as neither were secured; they had the legal right to channel the Maxwell loan into a company of their choosing; and they had the right to redeem their shares in Eclectic after six years.
The Upper Tribunal found that the word “control” means that the person should be able to “manage and/or direct the use of the money, asset or investment” in real life, including an element of “choice and use”. It also noted that while the investors claimed to be making a business decision to invest their loaned money in Eclectic, the returns were so poor — the upfront interest payments outweighing the promised dividends after six years — that it “cannot possibly have been for good commercial reasons”. This, combined with the links between the two companies and the terms of the loan, entitled the Home Office to conclude that the investors did not choose to invest in Eclectic but were required to.
For good measure, it held that the Eclectic shares were not a qualifying investment for the purposes of Tier 1 (Investor). They were caught by paragraph 65(b) of Appendix A of the Immigration Rules, which disqualifies investments in companies that simply pool the money and invest it in other firms, rather than using it to run their own business. The tribunal also refused permission to appeal.
The official headnote
“1. The meaning of ‘control’ in paragraph 245ED(e) and in Appendix A (specifically in Table 8B and 9B) of the Immigration Rules is to be interpreted in accordance with its natural and ordinary meaning, namely that a person has the authority to manage and/or direct the use of the money, asset or investment (depending on the context). It includes not just a question of legal or beneficial ownership but includes an element of choice of use. The money must be under a person’s control at the point of investment.
2. To determine whether a person has the requisite control, it is necessary to look at all of the facts and circumstances of the case and with reference to the overriding requirement in paragraph 245ED(e) of the Immigration Rules (at least for the purposes of an application for further leave to remain as a Tier 1 (Investor) Migrant) that the “assets and investment he is claiming points for must be wholly under his control”.
3. The terms listed in paragraph 65(b) of Appendix A to the Immigration Rules are not to be interpreted by reference to statutory definitions outside of the Immigration Rules but in accordance with the ordinary rules of interpretation applicable to the Immigration Rules, the terms bearing their ordinary and natural meaning.”
>>> When voluntary return is not voluntary at all: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-198465%22]}
In recent years the United Kingdom government has resorted to indirect measures like the hostile environment to force people to leave the UK, alongside directly removing people. The government can then claim that the person left the UK voluntarily, and may have thought that there could be no liability for any breaches of the person’s human rights after they have returned to their country of origin.
However, the Strasbourg court has now ruled that voluntary return must be a free and informed choice. It will not be free and informed for a failed asylum seeker who is placed under pressure to leave by the immigration system.
NA v Finland (application no. 25244/18) was a case brought against the Finnish government by the daughter of a man who had claimed asylum in Finland. He was originally from Iraq and had fled after an assassination attempt against him. His asylum application was refused and although he initially challenged the decision, he decided in the face of plans to detain and remove him to accept a voluntary return package offered by the International Organisation for Migration. As part of the deal, he signed a waiver stating that the Finnish government could not be held liable or responsible for his return in any way.
Shortly after the man returned to Iraq he was killed. His daughter brought the case alleging that Finland had breached Article 3 of the European Convention on Human Rights.
The Finnish government argued that the application was not admissible because the applicant’s father had voluntarily returned to Iraq and therefore the consequences of his return had nothing to do with Finland.
The court rejected this argument:
“In the light of the circumstances of the case, in particular the factual background of the applicant’s father’s flight from Iraq as acknowledged by the domestic authorities, the Court sees no reason to doubt that he would not have returned there under the scheme of “assisted voluntary return” had it not been for the enforceable removal order issued against him. Consequently, his departure was not “voluntary” in terms of his free choice.”
Therefore, the application concerned acts within the jurisdiction of the Finnish government.
The court then considered the supposed waiver of liability. It declined to consider whether it is possible in principle to waive one’s rights under Article 3 ECHR, but ruled that any waiver would have to be free and informed which was not the case here:
“In the present case, the applicant’s father had to face the choice between either staying in Finland without any hope of obtaining a legal residence permit, being detained to facilitate his return by force, and handed a two year entry ban to the Schengen area, as well as attracting the attention of the Iraqi authorities upon return; or agreeing to leave Finland voluntarily and take the risk of continued ill-treatment upon return. In these circumstances the Court considers that the applicant’s father did not have a genuinely free choice between these options, which renders his supposed waiver invalid. Since no waiver took place, his removal to Iraq must be considered as a forced return engaging the responsibility of the Finnish State.”
Having found that the application was admissible, the court went on to rule that there was a breach of Article 3. The Finnish immigration authorities failed to consider properly the cumulative effect of the various dangers in Baghdad or give sufficiently careful consideration to the previous attacks against the applicant’s father.
This is a very sad case and it is unfortunate that the Strasbourg court only became seized of the matter after the applicant’s father had returned to Iraq. But it is an important statement by the court that it will not tolerate attempts to use indirect removal measures against failed asylum seekers whose applications have not been considered with sufficient care and attention.
>>> Burden of proof on internal relocation still on appellant says Upper Tribunal: https://www.bailii.org/uk/cases/UKUT/IAC/2019/392.html
The Upper Tribunal has confirmed that it is for asylum seekers to disprove the possibility of safe and reasonable internal relocation if the Home Office identifies a potential safe haven. In MB (Internal relocation – burden of proof) Albania [2019] UKUT 392 (IAC), the Upper Tribunal reconsidered the earlier decision of AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) and concluded that it remains good law on this point. That is notwithstanding a decision of the Court of Justice of the European Union which emphasizes the need for cooperation by both parties in collating evidence for asylum appeals.
[size=small]>>> [/size]Delays in child asylum decisions not the Home Office’s fault, High Court finds:
The Home Office has successfully defended its processing of asylum claims by unaccompanied children despite chronic delays in decision-making. The case is R (MK) v Secretary of State for the Home Department [2019] EWHC 3573 (Admin).
The court decided that that:
[size=medium]“In my judgment, the statistics and evidence show that real priority and significantly increasing resources have been, and are being, devoted to deciding UASC [unaccompanied asylum seeking children] cases. The Claimant seeks to analyse these figures in terms of percentages as against applications, but such a metric is in my judgment highly questionable. It depends upon the highly variable number of applications, which is outside the control of the Defendant.[/size]”
>>> UKVI: Examples of UK visa vignettes: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=2ahUKEwjlyYCl4fbmAhUOyoUKHQ8rBysQFjABegQIDRAE&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F854601%2Fvisa-vignettes-used-for-certain-categories-of-UK-visas-Dec-19.pdf&usg=AOvVaw3rAqQBCnY09w8Y9NIBEoVY
[size=medium]New visa vignettes document published. [/size]
[size=medium]>>> Vulnerable adults in the immigration tribunal: https://www.bailii.org/uk/cases/UKUT/IAC/2019/398.html[/size]
[size=medium] [/size]
[size=medium]In SB (vulnerable adult: credibility) Ghana [2019] UKUT 398 (IAC) the Upper Tribunal has provided a steer on how immigration judges should approach evidence given by vulnerable adults, in addition to that provided in the Joint Presidential Guidance Note No 2 of 2010. The key point is that adverse credibility findings can be made against vulnerable adults and it is not necessary for the tribunal judge to refer to the vulnerability when making each finding.[/size]
Official headnote:
[size=medium]The official headnote[/size]
[size=medium](1) The fact that a judicial fact-finder decides to treat an appellant or witness as a vulnerable adult does not mean that any adverse credibility finding in respect of that person is thereby to be regarded as inherently problematic and thus open to challenge on appeal.[/size]
[size=medium](2) By applying the Joint Presidential Guidance Note No 2 of 2010, two aims are achieved. First, the judicial fact-finder will ensure the best practicable conditions for the person concerned to give their evidence. Secondly, the vulnerability will also be taken into account when assessing the credibility of that evidence.[/size]
[size=medium](3) The Guidance makes it plain that it is for the judicial fact-finder to determine the relationship between the vulnerability and the evidence that is adduced.[/size]
[size=medium] [/size]
[size=medium] [/size]
>>> Government promises extra family reunion rights for people of Northern Ireland: https://www.gov.uk/government/news/deal-to-see-restored-government-in-northern-ireland-tomorrow
White smoke rises from Stormont, where the British and Irish governments have produced a draft deal to bring back power-sharing government in Northern Ireland following lengthy talks with the region’s main political parties.
The agreement includes a promise to address the fallout from the DeSouza case. That case confirmed that people from Northern Ireland are legally British citizens as well as Irish, and so cannot rely on the more liberal rules on family visas available to EU — but not UK — citizens.
The deal says:
“14. The Government will change the rules governing how the people of Northern Ireland bring their family members to the UK. This change will mean that eligible family members of the people of Northern Ireland will be able to apply for UK immigration status on broadly the same terms as the family members of Irish citizens in the UK.
15. This immigration status will be available to the family members of all the people of Northern Ireland, no matter whether they hold British or Irish citizenship or both, no matter how they identify.”
While the UK government says that this is a unilateral measure, it is being made “in the context of an agreement being reached”. That suggests that it may be dropped if the deal is not signed off by the regional parties.
It also seems likely to become redundant once Brexit takes hold and the bonus family reunion rights of Irish citizens in the UK come to an end. The time will show.
>>> Law Commission calls for total rewrite of Immigration Rules: https://www.lawcom.gov.uk/project/simplifying-the-immigration-rules/
The Law Commission’s long-awaited report on Simplification of the Immigration Rules says that rewriting and paring down the “overly complex and unworkable” document would improve legal certainty and transparency for applicants as well as save money for the courts and the Home Office.
The Immigration Rules are the document that set out the precise criteria for granting or refusing permission to enter and remain in the United Kingdom. It is the single most important legal instrument for day to day immigration law. The dire drafting of the Rules has for some time been an acute source of frustration for individual applicants, the lawyers trying to help them and even the judges deciding their cases.
The independent law reform body recommends a rewrite of the 1,100 pages of the Rules, with a complete restructure complemented by improved drafting and fewer changes in future. The last such exercise took place in 1994, over 25 years ago, and the current version of the rules has grown hugely and chaotically since then. The two separate sections both entitled ‘Asylum’ at Part 11 and Part 11B, separated by Part 11A entitled ‘Temporary Protection’ are probably “personal favourite” among many lawyers.
The report’s 41 recommendations include:
- A new 24-part structure to the Rules, covering definitions, commons provisions and specific routes, followed by seven appendices
- Giving each paragraph a number, rather than a confusing blend of letters and numbers
- A new drafting guide, including advice such as “get straight to the point” and “use simple, everyday English”
- An advisory committee to review the text at regular intervals
- Producing “booklets” of the Rules that apply to each visa category
- Simplifying and consolidating Home Office guidance documents in tandem with tackling the Rules themselves
- “A less prescriptive approach to evidential requirements”, with lists of accepted and acceptable evidence provided (similar to the approach in Appendix EU)
- Only two statements of changes to the Rules a year, unless there is “an urgent need for additional change”
A separately published impact assessment concludes that the savings across government — including reductions in unnecessary cases for the immigration tribunals and in Home Office casework costs — would be £70 million over ten years.
>>> Court of Session clarifies time limits for judicial review challenges in Scotland: https://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_2.html
In Odubajo v Secretary of State for the Home Department [2020] CSOH 2, the Court of Session has ruled that the three-month time limit for raising judicial review proceedings starts on the date of the decision, even though the person affected may not have been notified of that decision. This is a departure from what everyone previously thought in Scotland – which was that you cannot be expected to challenge a decision until you have been notified of it.
>>> Visa appointment fees rise with no warning
The cost of an appointment at visa application centres in the UK has risen with no warning given to applicants or their representatives.
Sopra Steria, the outsourcing company that runs UK Visa and Citizenship Services, has hiked appointment costs from £60 to £69.99 for a standard appointment and from £125 to £135 for appointments on Saturdays or out of regular office hours.
It appears to be applicable nationwide rather than to any particular UKVCAS centre.
The government website still lists the old cost, but the Sopra Steria website now says that “prices start at £69.99 per person”.
Free appointments are available, in theory, at six “core service points” in major cities, but fees are charged at the other 50 application centres.
The Immigration Law Practitioners’ Association says that it has contacted the Home Office and Sopra Steria to ask for more information.
>>> New guidance: False representations – Tier 1 (General) earnings concerns: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiN1ez-_JHnAhVnA2MBHcm4AncQFjAAegQIBBAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/858658/false-representations-tier1-_general_-cases-v1.0.pdf&usg=AOvVaw3eQJH5dMWI2Cb13VV1o2_P
UKVI has published new supplementary guidance relating to applicants who previously held Tier 1 (General) leave where UKVI have concerns that false representations have been made regarding their earnings. This guidance must be applied in conjunction with the main guidance on False Representations and the guidance on General Grounds for Refusal (GGfR) under Part 9 of the Immigration Rules.
This guidance relates to issues decided by the Court of Appeal in Balajigari v SSHD [2019] EWCA Civ 673.