UK & EEA Immigration Law Updates from the Legal Centre, www.legalcentre.org, 07791145923
• The Home Office rights of appeal guidance does not deem a Domestic Violence Settlement application as human rights claim. In order for the Settlement (Domestic Violence) application to raise a human rights (appeal) point an applicant may at the same time as lodging the SET (DV) application also lodge an FLR(FP) application with a cover letter explaining the secondary nature of the application which should be stayed pending consideration of the SET(DV). The Fee Regulations make provision for multiple applications so that only the highest fee will be payable in this scenario
The Home Office has issued new guidance to employers on right to work checks in light of the new illegal working offences under the Immigration Act 2016 coming into force today, 12 July 2016.
Recent case-law
• O.M. v. Hungary (no. 9912/15), [Article 5 ECHR], 5 July 2016
The Fourth Section of the European Court of Human Rights has given its ruling in the case of O.M. v. Hungary (no. 9912/15) regarding the immigration detention in Hungary of an Iranian LGBT asylum seeker.
In June 2014, O.M had arrived in Hungary, where he was apprehended and subsequently applied for asylum. On 25 June 2014, the Office of Immigration and Nationality ordered for the applicant to be detained, referring to the fact that his identity and nationality had not yet been clarified and to the risk of absconding. He was then arrested and placed in a detention facility, where he was kept for 58 days.
The Court reiterated that Article 5 ECHR protects individuals against arbitrary interference by a Member State with his or her right to liberty. Any deprivation of liberty will only be lawful when it falls within the exhaustive list of permissible grounds listed in the sub-paragraphs (a) to (f) of Article 5 § 1 ECHR. In addition, detention measures must be prescribed by law and be of a sufficient quality to protect from arbitrariness. The authorities must further carry out a proportionality and necessity analysis, which includes an analysis of alternative means of detention. In this assessment the Court considers the following points relevant: the nature of the obligation arising from the relevant legislation, including its underlying object and purpose; the person being detained and the particular circumstances leading to the detention; and the length of the detention.
In the circumstances of the applicant’s case, the Court found that Article 5 § 1 (b) ECHR could not serve as a legal basis of the immigration detention. The Court therefore unanimously ruled that the applicant’s detention was arbitrary and unjustified, in violation of Article 5 § 1 ECHR. In particular, the Court found that the Hungarian authorities had failed to make an individualised assessment and to take into account the applicant’s vulnerability in the detention facility based on his sexual orientation. The Court emphasised special care the authorities should exercise when deciding on deprivation of liberty in order to avoid situations which may reproduce the plight that forced asylum seekers to flee in the first place.
• A.M. v. the Netherlands (no. 29094/09), [Articles 3, 13 ECHR], 5 July 2016
The Third Section of the European Court of Human Rights has given its ruling in the case of A.M. v. the Netherlands (no. 29094/09) concerning the removal of an asylum seeker to Afghanistan in light of the prohibition of torture and of inhuman and degrading treatment and the right to an effective remedy.
The case relates to an Afghan national of Hazara origin, who had applied for asylum in the Netherlands. The applicant stated to fear persecution and ill-treatment in Afghanistan for his membership of the communist People’s Democratic Party of Afghanistan and for his involvement in the Revolutionary Guard and the party Hezb-e Wahdat. The Minister for Immigration and Integration rejected his asylum application based on the application of Article 1F of the 1951 Refugee Convention. The Regional Court of The Hague rejected his subsequent appeal. The applicant did not submit a further appeal with the Administrative Division of the Council of State. Instead, the applicant submitted an application to the ECtHR claiming that he would face a real risk of being subjected to treatment contrary to Article 3 ECHR, if expelled from the Netherlands to Afghanistan. He further claimed that he did not have an effective remedy on this point as safeguarded by Article 13 ECHR.
Notably, the Court rejected the argument by the government that the applicant had failed to exhaust the domestic remedies, as required by Article 35 § 1 ECHR. The Court observed that a further appeal to the Administrative Jurisdiction Division does not have automatic suspensive effect. This is however required under Article 13 taken together with Article 3 for a domestic remedy to be considered effective.
Nevertheless, the Court held that there had been no violation of Article 13 ECHR in conjunction with Article 3 ECHR. Under Article 13 ECHR, Member states are not required to set up a second level of appeal. As the appeal with the Regional Court of the Hague in asylum cases did have an automatic suspensive effect, the applicant had at his disposal an effective remedy for challenging the rejection of his asylum application. In addition, the Regional Court was empowered to rigorously examine any risks of treatment contrary to Article 3.
The Court further held that the applicant had also failed to demonstrate that there are substantial risks for believing that he would be subjected to treatment contrary to Article 3 ECHR. The Court observed that the applicant had remained in Afghanistan after the overthrow of the communist regime without encountering any problems with the Taliban. Moreover, the applicant had not been sought-after by the party Jamiat-e Islami or attracted any negative attention from any governmental or non-governmental body or any private individual in the country on account of his communist past or his activities for Hezb-e Wahdat. The Court also considered that there would not be a real risk of ill-treatment for people of Hazara origin. Lastly, there was no general situation of violence to the extent that there would be a real risk of ill-treatment for the general return of people to Afghanistan.
July 2016/2 UK & EEA Immigration Law Updates from the Legal Centre, www.legalcentre.org
“I can help you. Anton Koval, Legal Centre. Direct line: 07791145923”
• UK Supreme Court: Residence Test judgment issued, R(on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39, 13 July 2016
The UK Supreme Court has now issued its written judgment in R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39 after unanimously allowing Public Law Project’s appeal on the ultra vires issue on the day of the hearing: https://www.supremecourt.uk/cases/uksc-2015-0255.html
• There is no DV application that can be made within the Rules for the spouse of a Refugee with limited leave (whether pre- or post-flight). Hence such an application will be outside the Rules. A Judicial Review (JR) succeeded on these grounds recently in Scotland: https://www.scotcourts.gov.uk/search-judgments/judgment?id=856415a7-8980-69d2-b500-ff0000d74aa7 The relevant case on a post-flight spouse failed in the High Court – http://www.bailii.org/ew/cases/EWHC/Admin/2014/2453.htm , but is due to be shortly heard in the Court of Appeal . Applicants may submit SET(DV) application form. Also, if an applicant wants to submit a Human Rights (HR) claim the FLR(FP) form may also be submitted. Further, an applicant may claim fee exemption if the applicant is destitute
(i) The effect of the amendment of the regime in paragraph 41/SD of Appendix A to the Immigration Rules via HC628, dated 06 September 2013, is that any application for entry clearance or leave made before 01 October 2013 is to be decided in accordance with the Rules in force on 30 September 2013.
(ii) Every applicant for Tier 1 Entrepreneurial status bears the onus of proving satisfaction of all of the material requirements of the Immigration Rules.
(iii) The Rules stipulate that every Tier 1 Entrepreneurial applicant have available £50,000 to invest in the proposed business venture. “Available” in this context denotes that the applicant must be in a position to invest this money in his business consequential upon a positive decision of the Secretary of State. The clear import of the Rules is that the investment must be capable of being made almost immediately thereafter.
(iv) A mere intention on the part of a Tier 1 Entrepreneurial applicant to invest £25,000 at the outset of the business venture, coupled with a further intention to invest the balance of £25,000 at some unspecified future date from some unspecified source, does not satisfy the Rules
The purpose and intention of Parliament in incorporating section 117C of the Nationality, Immigration and Asylum Act 2002 was to ensure that all of the criminal convictions providing a reason for the deportation decision are to be examined within the framework provided by that section.
What is required when undertaking the exercise required by sections 117C(1) to (6) is careful scrutiny of those offences which are on a person’s criminal record which have provided a reason for the decision to deport.
The IDIs do not fully reflect section 117C(7) in that it is not necessarily the case that, once a foreign criminal has been convicted and sentenced to more than four years’ imprisonment, he will never be eligible to be considered under the Exceptions
• Jan (Upper Tribunal: set-aside powers) [2016] UKUT 00336 (IAC)
The decision of the Court of Appeal in Patel [2015] EWCA Civ 1175 entails the view that the Upper Tribunal’s powers to set aside its own decisions are limited to those in rules 43 and 45-6 of the Upper Tribunal Rules
• Gurung v The Entry Clearance Officer, New Delhi [2016] EWCA Civ 358 (07 April 2016)
• Ait-Rabah, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 1099 (Admin) (12 May 2016)
Another case here that serves as a warning against attempting to arrive on a visitor visa to marry an EU national while not telling the Immigration Officer that this is in fact your reason for entering the UK. Despite significant amount of documentary evidence substantiating the genuineness of the relationship at the marriage interview, the Claimant’s withholding the true reason for his coming to the UK from the Immigration Officer at Luton Airport proved fatal to his case that he did not enter the country by deception
The results of the referendum on the UK’s membership of the European Union on 23 June 2016 and the absence of plans on how to proceed following the vote in favour of leaving the EU have created enormous levels of uncertainty, not least for EU nationals living in the UK and British citizens at home and abroad worried about the future.
Given the uncertainties, there is a shared view that EEA nationals and their family members should be advised to take steps as soon as possible to protect their immigration position by obtaining the best migration status and/or documents to which they are entitled. Suggested steps include applying for a permanent residence card or, if not eligible, obtaining a registration certificate to confirm rights of residence and retaining evidence of exercising treaty rights until eligible for permanent residence. Naturalization as a British Citizen for those with a permanent residence card may also be considered, taking into account any disadvantages such as the loss of another citizenship, particularly citizenship of an EU country, tax consequences or the loss of current EU free movement rights for third country national family members.
• EEA Nationals and their family members can also apply under the UK Immigration Rules and not only just under the EEA Regulations:
10. EUN1.10 Can EEA nationals apply under the Immigration Rules?
“Yes. If an EEA national wishes to apply under the immigration rules, they are entitled to do so.”.
11. EUN1.11 Do family members of EEA nationals have to apply under the EEA regulations?
“No, they can choose to apply under the Immigration Rules.”.
• Fees for judicial review applications hare risen yet again from today, Monday 25 July 2016. A new fees order was quietly laid last Friday: The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016. The fees going up are for the permission stage and they rise by 10%. Other fees remain as they were
• EEA citizens and their family members are allowed to use the NHS in the UK, but according to the Home Office the NHS does not count as comprehensive sickness insurance
According to the UK BA, the new expiry date for the Sponsorship License would be 4 years on from the old expiry date, regardless of the date of application
NB. This is a tiny bit of the (almost daily !) changes in the UK and EEA Immigration law that I, as a practicing immigration lawyer, believe may be of interest to the members of public. Enjoy !
• English language test centres: Home Affairs Committee Chair writes to Home Office Permanent Secretary 01 August 2016
In a letter dated the 27th July 2016, the Chair of the Home Affairs Committee, Rt Hon Keith Vaz MP, has written to Mark Sedwill, Permanent Secretary at the Home Office, regarding allegations involving English-language test centres.
Following evidence given to the Home Affairs Committee on English-language testing in July 2016, the Chair of the Committee has written to the Permanent Secretary with follow-up questions regarding test centres, the Educational Testing Service (ETS) and individuals affected by inaccurate test results:
• From the UK BA. “… premium appointments may be used even if the date of the premium appointment is after the expiry of the visa, provided the online application was submitted and Home Office fee paid before expiry of visa. This means that applicants will not be overstaying in such a situation. It is important to note that this only applies for ONLINE applications (and where Home Office fee is paid at same time of submitting online application) not for ones where there is a paper form. If a paper form is required then it is the date of the premium appointment that is the date of the application as defined in the rules”
• U.N. v. Russia (no. 14348/15), [Articles 3, 5 § 4], 26 July 2016
The Third Section of the European Court of Human Rights has given its ruling in the case of U.N. v. Russia (no. 14348/15).
The case relates to a Kyrgyzstan national and ethnic Uzbek, who currently lives in Russia. The applicant arrived in Russia after the mass disorders and inter-ethnic clashes in Kyrgyzstan in 2010. Wanted by the Kyrgyz authorities on charges related to these clashes, including the kidnapping and murder of two law-enforcement officers, he was arrested in Russia in January 2014 and placed in detention. His detention extended on a number of occasions and he was released in July 2015. Following an unsuccessful appeal against the extradition to Kyrgyzstan and a rejection of his asylum application, U.N complained to the ECtHR. He claimed violations of his rights under Articles 3 and 5 § 4 ECHR.
The Court reiterated that it had previously held that there were substantial grounds for believing that the applicants would face a real risk of exposure to treatment proscribed by Article 3 ECHR if returned to Kyrgyzstan (e.g. Khamrakulov, Mamadaliyev, Kadirzhano and Mamashev, Gayratbek Saliyev, and Makhmudzhan Ergashev). It hereby referred to the attested widespread and routine use of torture and other ill-treatment by law-enforcement agencies in the southern part of Kyrgyzstan in respect of members of the Uzbek community, the impunity of law enforcement officers, and the absence of sufficient safeguards for the applicants in the requesting country. As such, the diplomatic assurances and monitoring mechanism relied on by the Russia government were insufficient. In addition, the applicant’s criminal conduct did not overturn the absolute prohibition of ill-treatment under Article 3 ECHR. As the applicant belonged to a vulnerable group, the Court found that he would face a real risk of treatment proscribed by Article 3 ECHR, if returned to Kyrgyzstan.
Furthermore, the Court reiterated that it had previously found a violation of the ECHR where an applicant was unable to bring about a judicial review during a fixed period of detention. This would also be the case if changes in the fixed period of detention would directly affect its lawfulness. In the present case, the applicant was unable to apply for a judicial review of the lawfulness of his detention for almost four months despite the circumstances that justified the review. The Court found a violation of Article 5 § 4 ECHR.
• Despite the current UK Government’s commitments to reduce the use of detention and the reform agenda outlined by Government, there is an expansion taking place at the Gatwick airport sites. Brook and Tinsley will expand by 100 places over this summer: http://detentionforum.org.uk/another-100-beds-at-gatwick-site-expansion-by-stealth/
• Tzur case on comprehensive sickness insurance, 19 August 2016
The Appellant is an Israeli national and the family member of a Greek student (her ‘sponsor’). The couple purchased a BUPA health insurance policy prior to submitting application for residence documentation. The Policy expressly stated that it did not cover pre-existing medical conditions. The sponsor had an asymptomatic ‘systolic heart murmur’ and the Appellant was an ex-smoker who had smoked for a period of three years in the past. It appears to have been understood that there are no insurance policies in the UK which would cover pre-existing medical conditions. The court was provided email correspondence between Appellant and BUPA which stated that the conditions suffered by the Appellant and her Sponsor were not considered to be excluded conditions.
The First-tier Tribunal upheld the Home Office refusal of residence documentation. At paragraph 31, immigration judge Moxon concludes that it was not disproportionate for the Home Office to refuse the application for EEA residence documents here because the Appellant and her Sponsor did not evidence income sufficient to pay for medical treatment (presumably out of pocket for conditions not covered by insurance) and failed to provide a medical assessment which concluded that they did not have ‘...any medical conditions that are as yet asymptomatic but may develop to require treatment and medication in the near future’.
The rationale appears to have been that the couple did not satisfy the Comprehensive Sickness Insurance requirements because they did not definitively disprove by way of medical assessment that they had no other pre-existing medical conditions which at some point in the future would not be covered by medical insurance and would therefore render them an unreasonable burden on social assistance.
The case will be heard in Upper Tribunal on 1 September 2016.
• The ETS English language tests, yet again. Evidence had come to light that ETS tests in the case of these two men may have been taken by a proxy. Therefore their leave to remain in the UK was curtailed. The Court of Appeal agreed with the Home Office, quashing the decisions of the Upper Tribunal, which alongside the First-Tier Tribunal had accepted the two men’s arguments on the facts and law on appeal from the decision: http://www.bailii.org/ew/cases/EWCA/Civ/2016/615.html
• The President has issued an important determination on the correct approach to multiple applications and appeals from family members, specifically a parent or parents and a child or children with 7 years of residence: http://www.bailii.org/uk/cases/UKUT/IAC/2016/108.html
Generally, where a family with a child or children who have lived in the UK for 7 years or more apply for leave to remain on the basis of paragraph 276ADE(1)(iv), there is an increasingly strong argument that the applications should normally be granted if the period of residence is satisfied and there is no bad behaviour by the applicants, they are well settled and integrated and therefore it would not be reasonable for the child or children to have to start over with their life again in another country. The longer the child has lived in the UK, the stronger the case will be. Other factors working in an applicant’s favour would be lawful presence by the parents and residence as an older child.
• The Home Office has issued a new updated version of its policy on section 3C and 3D leave: https://www.gov.uk/government/publications/3c-and-3d-leave Section 3C and 3D leave is an automatic type of leave created by an amendment to the Immigration Act 1971 so that where a person makes a valid application to extend his or her leave to enter or remain and the application is refused, that person’s immigration status would be extended during any waiting time for the application to be decided or for an appeal to be decided. Except that is not quite true any more. Section 3C was amended by the Immigration Act 2014 and no longer protects those who make an application and appeal it where the decision was made by the Home Office before the person’s leave expired. Where the decision is made after the person’s leave expired, section 3C continue to work its magic
• Periods of study for a qualification below degree level, are capable of being counted as time spent studying at degree level for the purpose of paragraph 245ZX(ha), if the period of study is taught at degree level, and when the qualification itself is added to other periods of study, resulting in the award of a degree: http://www.bailii.org/uk/cases/UKUT/IAC/2016/181.html
• The Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016, SI 2016 No. 847, 23 August 2016. This statutory instrument brings into effect the guidance on adults at risk in immigration detention, and comes into force on 12th September 2016: http://www.legislation.gov.uk/uksi/2016/847/pdfs/uksi_20160847_en.pdf
“here a person whose application or claim for leave to remain is being considered requests the return of his passport for the purpose of travel outside the common travel area, the application for leave shall, provided it has not already been determined, be treated as withdrawn on the date that request is received by the Home Office.”
- Judgment of the Grand Chamber of the European Court of Human Rights: J.K. v Sweden European Court of Human Rights Application no. 59166/12 (02 September 2016)
A complex mesh of dissenting and concurring opinions but a violation of Article 3 found in the proposed removal to Iraq of persons who were targeted by Al Qaeda because of business with US clients in Iraq. Interesting for its treatment of the burden of proof in Article 3 cases, aligning this very closely with burden under the 1951 Refugee Convention.
- Those irregular/overstayer migrants, who complete 20 years in the UK, may currently apply to regularize their status on the FLR(FP) application form
UK & EEA Immigration Law updates from the Legal Centre: www.legalcentre.org/Initial-Consultation.html
We can help you
05 September 2016:
• The Home Office is reported to be testing a new online fast track application process for EU migrants in the UK. The Financial Times first carried the story but it was also picked up and confirmed by The Guardian.
In summary, the new fast track application process is said to apply to permanent residence applications, it is being tested with 20 hand picked corporate partners including Deloitte and PwC over the next fortnight and the test is to seek feedback and identify any problems in the system.
Whether the final version will be restricted to permanent residence applications by EU nationals is unknown
• The Section 3C leave. It should be noted that the 3C continuing leave only arises where a person’s leave expires before the HO make a decision on their application. It does not apply if the leave runs out after that decision has been made.
• New permanent residence card requirement for EEA citizens applying for naturalisation after 12 Nov 2015 – UK BA Freedom of Information Request (FOI) response: https://www.whatdotheyknow.com/request/new_permanent_residence_card_req Under the EEA Regulations some EU citizens can backdate their Permanent Residence issue date, so they may not need to wait 12 months after obtaining their PR status
• The Upper Tribunal’s jurisdiction to decide an application for Judicial Review is not affected by the applicant’s being in Scotland. The Tribunal will, however, consider issues of forum non convenience if it is suggested that its jurisdiction should not be exercised.
• The case of AB (Article 1F(a) – defence - duress) Iran [2016] UKUT 00376 (IAC)
1. In response to an allegation that a person should be excluded under Article 1F(a) of the Refugee Convention because there are serious reasons for considering that the person has committed a crime against peace, a war crime or a crime against humanity as defined in the Rome Statute, there is an initial evidential burden on an appellant to raise a ground for excluding criminal responsibility such as duress.
2. The overall burden remains on the respondent to establish that there are serious reasons for considering that the appellant did not act under duress.
The Home Office has issued guidance on the new ‘Adults at Risk in Immigration Detention’ policy which came into force yesterday, 12 September 2016. It has amended its guidance in Chapter 55 of the Enforcement Instructions and Guidance on Detention and Temporary Release to reflect the change in policy. It has also made changes to guidance in Chapters 50 and 60 of the Enforcement Instructions and Guidance where these deal with the removals window to cover circumstances related to adults at risk in immigration detention. The Home Office has also issued a new Detention Services Order providing guidance on Rule 35 reports.
• Case note on Court of Justice of the European Union (CJEU) judgment in CS C-304/14
Article 20 TFEU must be interpreted as precluding legislation of a Member State which requires a third-country national who has been convicted of a criminal offence to be expelled from the territory of that Member State to a third country notwithstanding the fact that that national is the primary carer of a young child who is a national of that Member State, in which he has been residing since birth without having exercised his right of freedom of movement, when the expulsion of the person concerned would require the child to leave the territory of the European Union, thereby depriving him of the genuine enjoyment of the substance of his rights as a Union citizen. However, in exceptional circumstances a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of that third-country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matters which are for the national court to determine.
It must be read in conjunction with C-165/14 Rendon Marin a reference from a Spanish court on a similar issue also issued fairly recently.
• When can the UK BA return the original ID for the applicant to sit the SELT (English language) test ?
According to the UK BA, “what would the Home Office position if a request is made for the return of an identity document to take a SELT test in the following scenarios:
1. the applicant has extant leave;
2. the applicant has leave under section 3C of the Immigration Act 1971;
3. the applicant has permission to remain under the Free Movement Directive;
4. the applicant is an overstayer / illegal entrant.
In the first three scenarios, the identity document should be returned by the Home Office in order to allow the individual to sit the SELT test. In the last scenario the Home Office may not return the passport to allow the individual to sit the SELT test, as they would be in the UK illegally and the passport would assist in the individual’s removal. Guidance on the power to retain passports is available at https://www.gov.uk/government/publications/retaining-valuable-documents
Also, where an individual has requested the return of the identity document after the application has been refused, the Home Office may not return the document as it would assist in the individual’s removal.
In cases where an immigration appeal has been held or is in progress the Home Office will make a decision whether to return the passport or not. In the majority of cases the passport should be returned. In exceptional cases where there are serious concerns that the applicant may abscond if the passport is returned, the Home Office will request that the applicant books a SELT test, then will scan the passport and send this with the booking details to the SELT provider to allow the applicant to sit the test. In these cases the Home Office will confirm to the SELT provider that the passport has been checked and there are no concerns about it being genuine.”
1.The proposed (not yet implemented) potential new terms and conditions of leave granted to refugees and persons in need of humanitarian protection
The proposal explained is a default setting that refugees and persons granted humanitarian protection get three years leave in the first instance, with a possibility of extension of three years at a time and to apply for settlement after 10 years, subject to passing the life and language tests which must be met by other applicants for settlement. It is further proposed that these refugees and persons be given rights to refugee family reunion after two years, rather than immediately.
Those who would continue to get five years leave and then a right to settlement, would be:
- The resettled
- Sur place claimants (persons in the UK when the situation for them in their country of origin changes so that they would risk persecution on return)
- Those who have been trafficked but claim asylum as soon as possible
-Those who travel directly to the UK and claim immediately on arrival (references to Article 31 of 1951 UN Convention Relating to the Status of Refugees and s 31 of the
Immigration and Asylum Act 1999
-Those transferred to the UK under the take charge provisions of Dublin (family unity etc).
Although the three year grant would be the default setting, those it would be targeted at particularly would be:
- Those who enter the UK unlawfully
- Those who claim after they have overstayed
- Those who have passed through a safe third country
- Those who make self-serving claims
2.Independent Chief Inspector of Borders and Immigration (ICIBI) calls for an improvement of the Home Office’s family reunion applications handling, press release, 14 September 2016
Home Office too ready to reject family reunion applications when applicants fail to provide sufficient evidence of their eligibility Withdrawal of Home Office commissioned and funded DNA tests identified as a major reason for first time application refusals The ICIBI report invites the Home Office to recognise the impact of avoidable delays on applicants
David Bolt, Independent Chief Inspector of Borders and Immigration (ICIBI), calls on the Home Office to better manage family reunion applications and show more understanding of the circumstances and difficulties faced by applicants coming from areas of conflict.
Under existing rules, family members of individuals who have been granted asylum in the UK, or five years’ humanitarian protection, can apply to be reunited with their family.
The ICIBI inspection found that, since the Home Office stopped commissioning and funding DNA tests to establish family relationships, the number of family reunion applications rejected for failure to produce sufficient evidence has doubled for certain nationalities.
Inspectors also found that family reunion applications are often refused rather than being deferred to allow applicants to produce the missing evidence. This means that individuals who are eligible for family reunion are delayed in receiving entry clearance. While it accurately reflects the rules, Home Office guidance to applicants should be more helpful in identifying the evidence they are likely to need to provide in order for their applications to succeed.
Mr Bolt asks decision makers to consider all available evidence when processing family reunion applications and, in line with Home Office rules, to take exceptional circumstances and compassionate factors into account when making their decision.
David Bolt said:” The family reunion report identifies a number of areas where the Home Office needs to improve. Applicants, stakeholders and others need to be reassured that the Home Office recognises the particular challenges facing many family reunion applicants, and that it manages applications not just efficiently and effectively, but thoughtfully and with compassion”.
• Huge increase (in some cases as far as 6 fold) in the immigration appeal costs
The Government response to the consultation on proposals to reform the fees charged in the Immigration and Asylum Chamber of the First-tier Tribunal and Upper Tribunal, PLUS Immigration and Nationality (Fees) (Amendment) Regulations 2016, 15 September 2016
The consultation paper was published on 21 April 2016 and the closed on 3 June 2016.
“The response announces our intention to:
- increase the fee payable for an application to the First-tier Tribunal (Immigration and Asylum Chamber) for a decision on the papers from £80 to £490;
- increase the fee payable for an application to the First-tier Tribunal (Immigration and Asylum Chamber) for an oral hearing from £140 to £800;
-introduce a fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal;
- introduce a fee of £350 for an application to the Upper Tribunal for permission to appeal in that Tribunal (where the application to the First-tier Tribunal has been refused);
- introduce an appeal fee in the Upper Tribunal of £510; and
- make extensions to the existing exemptions and remissions scheme that applies in the First-tier Tribunal and extend these to apply to fees for appeals in the Upper Tribunal.
Full details of the fees changes are available at the following links: https://consult.justice.gov.uk/digital-communications/first-tier-tribunal-and-upper-tribunal-fees https://www.gov.uk/government/consultations/proposals-to-amend-immigration-and-asylum-chamber-fees
All customer facing IT systems have been amended to reflect these changes. Any applications received prior to the fee change but returned because of an error on the form will attract the new fees”.
• Brexit and the Norway Option: the EFTA Court upholds Surinder Singh for EEA nationals, E-28/15 Jabbi 26 July
Where an EEA national, pursuant to Article 7(1)(b) and Article 7(b) of Directive 2004/38/EC, has created or strengthened a family life with a third country national during residence in an EEA State other than that of which he is a national, the provisions of that directive will apply by analogy where that EEA national returns with the family member to his home State.
• Government Response to the Home Affairs Select Committee's Second Report of Session 2016–17: The work of the Immigration Directorates (Q4 2015) (16 September 2016)
The Government responds to the recent criticisms made by the Home Affairs Select Committee in its scrutiny of the work of the Home Office on:
• Visa applications
• English Language Tests
• Asylum cases
• The Migration Refusal Pool and curtailment of leave
• Immigration detention
• Foreign national offenders (FNOs)
• Voluntary removals
(1) Lord Neuberger’s judgment in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926 is an authoritative pronouncement on the scope of the Supreme Court’s judgments in R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7.
(2) Parliament’s actions in amending paragraph 353 (fresh claims) of the immigration rules in the light of the changes to the appeal regime made by the Immigration Act 2014, together with its decisions:-
(i) to amend, but without bringing into force, the prospective amendments made in 2006 to the definition of “human rights claim” in section 113 of the Nationality, Immigration and Asylum Act 2002; and
(ii) to amend the existing definition of “human rights claim” in the light of the 2014 Act,
show that Parliament intends paragraph 353 to be used to determine whether further submissions constitute a fresh human rights claim for the purpose of “new” section 82 of the 2002 Act.
(3) If, in the post-2014 Act world, Parliament had intended paragraph 353 to apply only to the Secretary of State’s certification decisions, then Parliament would have made this plain. If the applicant were correct that paragraph 353 currently has only such a limited ambit, commencing the 2006 amendments to section 113 of the 2002 Act would not enable the Secretary of State to make any significantly greater and/or coherent use of paragraph 353.
(4) Parliament’s decision to leave in place the expressions “submissions” and “if rejected” in paragraph 353 are indicative that they continue to serve the function of permitting the Secretary of State to categorise cases as between those that do not amount to a claim at all and those which, though rejected, amount to a fresh human rights claim for the purposes of “new” section 82.
(5) The Secretary of State is not the sole arbiter of whether, in any particular case, she has made a decision to refuse a human rights claim, as opposed to refusing to treat submissions as amounting to a fresh claim.
If the SSHD makes a decision that is one of those specified in s 82(1), it carries a right of appeal even if the intention was not to treat the submissions as a fresh claim.
There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member.
In a statutory appeal, the right of appeal under s 13 of the 2007 Act does not arise until the Upper Tribunal has completed the process required by s 12.
1. The question of whether a person is at art 15(c) risk in Libya should, until further Country Guidance, be determined on the basis of the individual evidence in the case.
2. This decision replaces AT and Others Libya CG [2014] UKUT 318 (IAC) in respect of assessment of the art 15(c) risk.
The Tribunal considered the meaning of ‘compelling evidence’ under Regulation 6(7) of The Immigration (European Economic Area) Regulations 2006 which requires that a person provides ‘compelling evidence’ that they are seeking employment and has a genuine chance of being engaged in order to have a right to reside as a jobseeker for more than the relevant period (in most cases 91 days). The Tribunal held that this means no more than the requirement for evidence to establish on a balance of probabilities that the claimant is continuing to seek employment and has genuine chances of being engaged. To interpret the phrase as meaning that a higher standard of proof is required would be contrary to EU law.
This is a longer and more complex decision but some of the significant points held include the following:
1. Although the fact that someone has been looking for work unsuccessfully for a period of 6 months or more is a relevant factor in determining whether they have a genuine chance of being engaged, it is only one factor among others.
2. The requirement to provide 'compelling' evidence of a genuine chance of being engaged 'cannot raise the bar' of what constitutes a genuine chance of being engaged beyond ‘chances that are founded on something objective and offer real prospects of employment within a reasonable period’.(paras 49-60, especially para 57).
3. Given that evaluating a ‘chance’ necessitates a degree of looking forward, events likely to occur in the near future may be relevant to a claimant’s ‘genuine chance of being engaged’. (para 47)
• Housing Benefit: change in rules on temporary absence if absence outside UK
The Housing Benefit Regulations 2006 were amended by The Housing Benefit and State Pension Credit (Temporary Absence) (Amendment) Regulations 2016 with effect from 28 July 2016.
In brief, the amendments mean that if a person is temporarily absent from their home because they are outside the UK, they will cease to be treated as occupying the property during that temporary absence and therefore cease to be entitled to Housing Benefit after 4 weeks in most cases. Prior to 28 July 2016, it was possible to claim Housing Benefit for up to 13 weeks in most cases. There continue to be some limited exceptions.
• The European Scrutiny Committee assesses the legal and/or political importance of draft EU legislation
Recently it has considered proposals from the European Commission on reform of the EU asylum system, of which there have been two sets.
The Commission presented its first set of proposals for asylum reforms in May, which were subject to two scrutiny reports.
These proposals aimed to:
• streamline the existing Dublin procedures
• include a new “fairness mechanism” designed to ensure a more equitable distribution of asylum seekers amongst Member States.
• transform the European Asylum Support Office into the EU Agency for Asylum, giving it a stronger mandate to monitor the overall functioning of the common European asylum system
• develop the EU’s asylum database (Eurodac) into a broader migration management tool.
In July 2016, the EU Commission published its second set of proposals for changes to asylum law, including:
• Revise EU rules on who qualifies for international protection
• Establish a fully harmonised common EU asylum procedure
• Revise EU rules on reception conditions for asylum seekers
• Establish a new EU framework for the resettlement of individuals in need of international protection
In its report published today, the European Scrutiny Committee recommends that the Government’s opt-in decisions should be debated together in Parliament.
It identifies questions which it considers to be relevant to the opt-in debates. An overarching concern is whether the reforms proposed achieve the Commission’s objectives of establishing “a more humane, fair and efficient European asylum policy” and ensuring that the EU “takes on its fair share of the global responsibility to provide a safe haven for the world’s refugees”. The Committee also look further ahead, inviting the Government to consider the impact that harmonised EU rules on asylum would have on the UK once the UK has left the EU.
• EEA law v self-sufficiency. Please note that (page 37 of the Modernised Guidance (EEA nationals - qualified persons) confirms that an applicant can rely on the income of a spouse to show adequate resources for self-sufficiency. However, the wording in the Modernised Guidance specifically mentions that they must have 'regular access' to this income. lt appears, therefore, that having access to the income means the applicant being able to access it from their own account or from a joint account
The European passport return service is provided by local authorities or nominated premium service centre.
A participating local authority can photocopy your EEA or Swiss passport and forward a copy along with your checklist and application to the Home Office on your behalf. Your passport will then be available for you to use while your application is being processed.
Alternatively, you can make an appointment and take your passport and documents to the premium service centre in Belfast or Glasgow.
The service is available by appointment only and you must attend your appointment within 5 working days of submitting your online form. The service fee can be obtained by contacting the local authority who will also confirm times appointments are available.
The Home Office may contact you for further information after your application has been submitted.
Using the European passport return service does not guarantee the success of the application and the local authority cannot provide any advice. This service will not ensure that your form has been correctly completed and correct supporting documents submitted.
Please note that this service does not extend to the family members as well as that this service is merely a way of retaining your passport and not in any way a quality service of thoroughly checking your application (see https://legalcentre.org/Immigration-Application-Verification-Service.html) before submission to the UK BA
• First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016, Statutory Instrument 2016 No. 928 (L.16), 15 September 2016:
www.legislation.gov.uk/uksi/2016/928/pdfs/uksi_20160928_en.pdf
Into effect 6 October 2016. Provides that where a ‘competent authority’ determines that it has ‘reasonable grounds’ to believe that a person who has been granted limited leave to enter the United Kingdom as an overseas domestic worker, or a private servant in a diplomatic household, is a victim of modern slavery, the person’s leave is extended until 28 days after the competent authority notifies the person of its conclusive decision as to whether or not the person is such a victim.
• Two recent cases in the Administrative Appeals Chamber of the Upper Tribunal have clarified when a worker might in EU law retain his or her status as a worker during a period of unemployment. The cases are KS v Secretary of State for Work and Pensions [2016] UKUT 269 AAC and MB and others v Secretary of State for Work and Pensions [2016] UKUT 372 AAC.
• In the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) the Upper Tribunal has ruled that there is no right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member: The headnote says: “There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member.”
• In two linked cases, CS v UK C-304/14 and Marin v Spain C-165/14, the Court of Justice of the European Union has ruled that Zambran0-like derived rights of residence under EU law are not automatically lost if a crime is committed. Instead, each case must be assessed on its merits and a judgment reached applying normal principles of EU law
• Access to the Court of Appeal is being restricted with effect from 3 October 2016 by means of important changes to the Civil Procedure Rules (CPR)
The headline changes are:
-Removal of the automatic right to an oral hearing when renewing an unsuccessful application for permission to appeal. Renewed applications will be determined on the papers, but a judge can exceptionally direct an oral hearing.
- The test for permission on second appeals is re-worded to require “a real prospect of success” (in addition to an important point of principle or practice).
- New seven day time limit for appeals from refusals of permission to apply for judicial review by the Upper Tribunal.
• No appeal to Court of Appeal until Upper Tribunal appeal concluded
The Upper Tribunal has ruled that there is no right of appeal to the Court of Appeal against decisions of the Upper Tribunal until Upper Tribunal appeal is finally concluded. This means there is no right of appeal to the Court of Appeal against an Upper Tribunal decision that there was or was not an error of law committed by the First-tier Tribunal.
• Fresh claims pay theoretically generate right of appeal after all
Two further cases have added to the jurisprudence on whether it is possible under the Immigration Act 2014 to appeal against a refusal of a fresh protection claim. The cases are R (on the application of Sharif Hussein) v First-Tier Tribunal (para 353: present scope and effect) IJR [2016] UKUT 409 (IAC) and Sheidu (Further submissions; appealable decision) [2016] UKUT 412 (IAC).
• A child born outside the UK to a parent who has ILR is not a British Citizen. In other words because the parent with the ILR is not a British citizen, the child cannot benefit from s3 (3) or (5) of the BNA 1981
• New Immigration Fees
The First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016 (SI 2016/928 (L.16)) came into effect today. It introduces massive fee increases in immigration and asylum cases.
The fee payable for an application to the First-tier Tribunal (Immigration and Asylum Chamber) for a decision on the papers rises from £80 to £490. The fee for an oral hearing rises from £140 to £800. The amendments apply only in respect of an appeal to the First-tier Tribunal against a decision taken on or after today
• Online versions of the FLR(M) and FLR(FP) application forms are now available. The form needs to be printed at the end and sent off to the Home Office with the required supporting documents: https://visas-immigration.service.gov.uk/product/family-routes
• The republic of Ireland citizens are automatically deemed to be "settled" in the United Kingdom on the basis of the section 1(3) of the Immigration Act 1971
• If one’s EEA application is refused and the one appeals, the one can request the UK BA to issue an additional Certificate of Application (with the right of employment for certain categories) while appeal is pending
• The House of Lords Secondary Legislation Scrutiny Committee met on 11 October and has agreed its 9th Report. First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016 (SI 2016/928)
These Regulations introduce an approximately six-fold increase in the fees for an application to the Immigration and Asylum Chamber of the First-tier Tribunal raising them to £490 for a decision on papers and £800 for an oral hearing. Fees for an application to the Upper Tribunal will also be introduced by a subsequent order. Of the 147 responses to the consultation on this proposal, 142 respondents disagreed with the proposed fee increase on the ground that it would deny access to justice. It seems as poor practice that the instrument was laid on the last day before the recess and came into effect on the date Parliament returned, thus allowing no time for scrutiny or comment before the Order’s provisions were applied.
In every case involving exclusion of protection under Article 1F of the Refugee Convention, the onus of proof is on the Secretary of State, a detailed and individualised examination of the facts is required, there must be clear and credible evidence of the offending conduct, and the overall evaluative judgment involves the application of a standard higher than suspicion or belief.
The European Framework Decision 2008/909/JHA has replaced the framework previously set out in the Council of Europe Convention on the Transfer of Sentenced Persons, itself supplemented by the Protocol of 18 December 1997, to provide the framework within which a request may be made to another Member State for the transfer of an EEA national sentenced in the United Kingdom to serve that sentence in his own country. In the United Kingdom context, it is a precondition for making a transfer request that there be in place a deportation order. A decision to make a deportation order is not a decision to transfer a serving prisoner to another Member State to serve his prison there and so in any appeal against a decision to make a deportation order the Tribunal is not concerned with whether there is any legal impediment to such a transfer taking place.
Where the personal conduct of a person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the fact that such threat is managed while that person serves his or her prison sentence is not itself material to the assessment of the threat he or she poses. The threat exists, whether or not it cannot generate further offending simply because the person concerned, being imprisoned, has significantly less opportunity to commit further criminal offences.
(1) As held in Deliallisi (British citizen: deprivation appeal: scope) [2013] UKUT 00439 (IAC), in an appeal under section 40A of the British Nationality Act 1981 the Tribunal is required to determine the reasonably foreseeable consequences of deprivation.
(2) Whilst the Tribunal considering a section 40A appeal cannot pre-judge the outcome of any future legal challenge that the appellant might bring against a decision to remove, following deprivation, the Tribunal must nevertheless take a view as to whether, from its present vantage point, there is likely to be force in any future challenge: cf section 94 of the Nationality, Immigration and Asylum Act 2002 and paragraph 353 of the immigration rules. The stronger the potential case, the less likely it will be that the reasonably foreseeable consequences of deprivation will include removal.
(3) A person who had indefinite leave to remain in the United Kingdom, immediately before acquiring British citizenship, does not thereby become entitled to indefinite leave to remain, upon being deprived of such citizenship under section 40 of the 1981 Act. Leave to remain is effectively extinguished by becoming a British citizen, since the system of controls under the Immigration Act 1971 does not apply to British citizens.
(4) In a section 40A appeal, an appellant may rely on the ground that deprivation would have a disproportionate effect, as regards the rights flowing from citizenship of the EU, only if, on the facts, there is a “cross-border” element. The finding to the contrary in Deliallisi was reached per incuriam in the judgment of the Court of Appeal in G1 v Secretary of State for the Home Department [2012] EWCA Civ 867.
• R (on the application of Hassan and Another) v Secretary of State for the Home Department (Dublin – Malta; Charter Art 18) IJR [2016] UKUT 00452 (IAC)
(i) There have been significant developments in Malta during recent years. While there may be imperfections in the Maltese asylum decision making processes, these are not sufficient to preclude returns under the Dublin Regulation and, in particular, do not amount to a breach of Article 18 of the EU Charter.
(ii) While Article 18 of the EU Charter confers rights of a procedural nature, the evidence does not establish that these will be infringed in the event of either of the Applicants pursuing a fresh asylum claim in Malta.
(iii) The limitations of the mechanisms available under Maltese law for challenging refusal of asylum decisions do not infringe Article 18 of the EU Charter.
(iv) In judicial review, decisions of the Administrative Court are not binding on the Upper Tribunal: Secretary of State for Justice v RB [2010] UKUT 454 (AAC) applied.
(v) Per curiam: Article 18 of the EU Charter provides an avenue for challenging transfer decisions under the Dublin Regulation.
(vi) Per curiam: Where a Dublin Regulation transfer decision is challenged under Article 18 of the EU Charter, the ECHR “flagrant breach” standard does not apply. Rather, the test is whether there is a real risk of a breach of Article 18
• MA (ETS – TOEIC testing) [2016] UKUT 00450(IAC)
(i) The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive.
(ii) Per curiam: where the voice data generated by TOEIC testing are those of a person other than the person claiming to have undergone the tests, there is no breach of EU or UK data protection laws.
- An inspection of Border Force operations at Coventry and Langley postal hubs March to July 2016
- A re-inspection of the handling of Tier 4 sponsor licence compliance July 2016
An inspection of the 'hostile environment' measures relating to driving licences and bank accounts January to July 2016
• JCWI plans to bring a judicial review to challenge the government’s decision to raise fees in the Immigration & Asylum Tribunal by around 500%. Fees for paper applications have increased from £80 to £490, and for appeal hearings they have increased from £140 to £800.
An urgent £5,000-£10,000 crowd funding campaign has been launched so that the charity can bring this legal challenge. A minimum of £5,000 is needed in order to be able to proceed and to meet the costs risk. JCWI is not a large charity and it does not have the funds to take on the risk alone. It has instructed Liberty to act as its solicitors, and counsel instructed are Laura Dubinsky of Doughty Street, led by Karon Monaghan QC of Matrix.
You can contribute here: https://www.crowdjustice.org/case/immigration-tribunal-fees-challenge/
• Brexit is causing significant delays in the processing of EU free movement documentation applications. In normal times, before the Brexit vote on 23 June 2016, an EU national could expect a permanent residence certificate to be issued in about 6 weeks and a family member about 4 months or so. Now it is taking the UK BA some 6 months for the non-EEA nationals and some 5 months for the EEA nationals to be issued with Permanent Residence status. The current policy on expediting the UK BA applications under the EEA law can be found on pages 37-38 here: https://www.gov.uk/government/publications/processes-and-procedures-for-eea-documentation-applications
• R (on the application of Johnson) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2016/0042 - Supreme Court Article 8 child of unmarried parents case - 19th October 2016
Mr Johnson, the appellant, was born in Jamaica in 1985 and moved to the UK aged four. His parents were not married. His father was a British citizen but his mother was not. Under the laws then in force he did not acquire British citizenship at birth. He obtained indefinite leave to remain in the UK in 1992 but he did not apply for permanent citizenship, despite a scheme which had been in place since 1987 that would have allowed him to do so on proof of paternity. In 2006 the law was changed to accord citizenship to illegitimate children with at least one British parent but the change in the law was not retrospective and Mr Johnson could not take advantage of it. In 2008 Mr Johnson was convicted of manslaughter. The Secretary of State for the Home Department, the respondent, issued a deportation order, which Mr Johnson challenged. The High Court found in favour of Mr Johnson. The Secretary of State appealed and the Court of Appeal set aside the High Court’s decision. This appeal considered the circumstances in which the Human Rights Act 1998 can be applied to causative events which occurred prior to its coming into force, but which are alleged to have continuing effect and whether a declaration of incompatibility with the ECHR can, and should be made, in respect of historic legislation (since repealed) which denied automatic British citizenship to illegitimate children with a British father and a non-British mother.
The Supreme Court unanimously allows the appeal, finding that Mr Johnson’s liability to deportation by reason of the accident of his birth outside wedlock is unlawfully discriminatory, in breach of his Convention rights. The consequence is that the certificate granted by the Secretary of State will be quashed and Mr Johnson’s appeal against the decision to deport him will be certain to succeed. The court also makes a declaration that the statutory requirement that a person in Mr Johnson’s position must also be of good character in order to be granted British citizenship is incompatible with Convention rights, pursuant to section 4 HRA.
The Home Office has issued new guidance on what the Home Office should do when an applicant for entry clearance, leave to enter or leave to remain owes a litigation debt to the Home Office. Litigation debt is a debt owed to the Home Office where the court or Tribunal has ordered another party to pay its legal costs.
A power to refuse applications for entry clearance, leave to enter or leave to remain on the basis of litigation debt was added to the Immigration Rules and applies to applications made on or after 6 April 2016. The rule may not be applied to any applications made before 6 April 2016. The guidance does not apply to protection claims, claims of EEA nationals and their family members who apply under EEA regulations or nationality cases.
The document contains guidance on exercising discretion in an application before taking any decision to refuse, relevant factors to consider and evidence that may be requested.
• Guidance: Appeal review: APL07, UK Visas and Immigration, 17 October 2016:
Instructions to local authorities about funding for the support and care of former and unaccompanied asylum seeking children (UASC).
• Urgent Question & Answer in Parliament: Child Refugee Age Checks
Today Philip Davies (Shipley) (Con) asked the Urgent Question: To ask the Minister for Immigration if he will make a statement on what age checks are being carried out on child refugees to ensure they are children.
The House of Commons Answer and ensuing debate is available here:
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• The Home Office rights of appeal guidance does not deem a Domestic Violence Settlement application as human rights claim. In order for the Settlement (Domestic Violence) application to raise a human rights (appeal) point an applicant may at the same time as lodging the SET (DV) application also lodge an FLR(FP) application with a cover letter explaining the secondary nature of the application which should be stayed pending consideration of the SET(DV). The Fee Regulations make provision for multiple applications so that only the highest fee will be payable in this scenario
• Version 2.0 of the Home Office country information and guidance on Albanian blood feud asylum claims: https://www.gov.uk/government/public...n-and-guidance
• Asylum Process Instruction: Processing an asylum application from a child, UK Visas and Immigration, 12 July 2016:
https://www.gov.uk/government/public...ld-instruction
• New employers’ guide to right to work checks issued by Home Office 12 July 2016:
https://www.gov.uk/government/upload..._-_July_16.pdf
The Home Office has issued new guidance to employers on right to work checks in light of the new illegal working offences under the Immigration Act 2016 coming into force today, 12 July 2016.
Recent case-law
• O.M. v. Hungary (no. 9912/15), [Article 5 ECHR], 5 July 2016
The Fourth Section of the European Court of Human Rights has given its ruling in the case of O.M. v. Hungary (no. 9912/15) regarding the immigration detention in Hungary of an Iranian LGBT asylum seeker.
In June 2014, O.M had arrived in Hungary, where he was apprehended and subsequently applied for asylum. On 25 June 2014, the Office of Immigration and Nationality ordered for the applicant to be detained, referring to the fact that his identity and nationality had not yet been clarified and to the risk of absconding. He was then arrested and placed in a detention facility, where he was kept for 58 days.
The Court reiterated that Article 5 ECHR protects individuals against arbitrary interference by a Member State with his or her right to liberty. Any deprivation of liberty will only be lawful when it falls within the exhaustive list of permissible grounds listed in the sub-paragraphs (a) to (f) of Article 5 § 1 ECHR. In addition, detention measures must be prescribed by law and be of a sufficient quality to protect from arbitrariness. The authorities must further carry out a proportionality and necessity analysis, which includes an analysis of alternative means of detention. In this assessment the Court considers the following points relevant: the nature of the obligation arising from the relevant legislation, including its underlying object and purpose; the person being detained and the particular circumstances leading to the detention; and the length of the detention.
In the circumstances of the applicant’s case, the Court found that Article 5 § 1 (b) ECHR could not serve as a legal basis of the immigration detention. The Court therefore unanimously ruled that the applicant’s detention was arbitrary and unjustified, in violation of Article 5 § 1 ECHR. In particular, the Court found that the Hungarian authorities had failed to make an individualised assessment and to take into account the applicant’s vulnerability in the detention facility based on his sexual orientation. The Court emphasised special care the authorities should exercise when deciding on deprivation of liberty in order to avoid situations which may reproduce the plight that forced asylum seekers to flee in the first place.
• A.M. v. the Netherlands (no. 29094/09), [Articles 3, 13 ECHR], 5 July 2016
The Third Section of the European Court of Human Rights has given its ruling in the case of A.M. v. the Netherlands (no. 29094/09) concerning the removal of an asylum seeker to Afghanistan in light of the prohibition of torture and of inhuman and degrading treatment and the right to an effective remedy.
The case relates to an Afghan national of Hazara origin, who had applied for asylum in the Netherlands. The applicant stated to fear persecution and ill-treatment in Afghanistan for his membership of the communist People’s Democratic Party of Afghanistan and for his involvement in the Revolutionary Guard and the party Hezb-e Wahdat. The Minister for Immigration and Integration rejected his asylum application based on the application of Article 1F of the 1951 Refugee Convention. The Regional Court of The Hague rejected his subsequent appeal. The applicant did not submit a further appeal with the Administrative Division of the Council of State. Instead, the applicant submitted an application to the ECtHR claiming that he would face a real risk of being subjected to treatment contrary to Article 3 ECHR, if expelled from the Netherlands to Afghanistan. He further claimed that he did not have an effective remedy on this point as safeguarded by Article 13 ECHR.
Notably, the Court rejected the argument by the government that the applicant had failed to exhaust the domestic remedies, as required by Article 35 § 1 ECHR. The Court observed that a further appeal to the Administrative Jurisdiction Division does not have automatic suspensive effect. This is however required under Article 13 taken together with Article 3 for a domestic remedy to be considered effective.
Nevertheless, the Court held that there had been no violation of Article 13 ECHR in conjunction with Article 3 ECHR. Under Article 13 ECHR, Member states are not required to set up a second level of appeal. As the appeal with the Regional Court of the Hague in asylum cases did have an automatic suspensive effect, the applicant had at his disposal an effective remedy for challenging the rejection of his asylum application. In addition, the Regional Court was empowered to rigorously examine any risks of treatment contrary to Article 3.
The Court further held that the applicant had also failed to demonstrate that there are substantial risks for believing that he would be subjected to treatment contrary to Article 3 ECHR. The Court observed that the applicant had remained in Afghanistan after the overthrow of the communist regime without encountering any problems with the Taliban. Moreover, the applicant had not been sought-after by the party Jamiat-e Islami or attracted any negative attention from any governmental or non-governmental body or any private individual in the country on account of his communist past or his activities for Hezb-e Wahdat. The Court also considered that there would not be a real risk of ill-treatment for people of Hazara origin. Lastly, there was no general situation of violence to the extent that there would be a real risk of ill-treatment for the general return of people to Afghanistan.
“I can help you. Anton Koval, Legal Centre. Direct line: 07791145923”
• UK Supreme Court: Residence Test judgment issued, R(on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39, 13 July 2016
The UK Supreme Court has now issued its written judgment in R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39 after unanimously allowing Public Law Project’s appeal on the ultra vires issue on the day of the hearing: https://www.supremecourt.uk/cases/uksc-2015-0255.html
• Draft guidance on processing asylum claims from children:
https://www.gov.uk/government/publications/processing-an-asylum-application-from-a-child-instruction
• Draft guidance on family tracing:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/537730/Family-tracing-v1.pdf
• There is no DV application that can be made within the Rules for the spouse of a Refugee with limited leave (whether pre- or post-flight). Hence such an application will be outside the Rules. A Judicial Review (JR) succeeded on these grounds recently in Scotland: https://www.scotcourts.gov.uk/search-judgments/judgment?id=856415a7-8980-69d2-b500-ff0000d74aa7 The relevant case on a post-flight spouse failed in the High Court – http://www.bailii.org/ew/cases/EWHC/Admin/2014/2453.htm , but is due to be shortly heard in the Court of Appeal . Applicants may submit SET(DV) application form. Also, if an applicant wants to submit a Human Rights (HR) claim the FLR(FP) form may also be submitted. Further, an applicant may claim fee exemption if the applicant is destitute
Recent case-law:
• Arshad and Others (Tier 1 applicants – funding – “availability”) [2016] UKUT 00334 (IAC)
(i) The effect of the amendment of the regime in paragraph 41/SD of Appendix A to the Immigration Rules via HC628, dated 06 September 2013, is that any application for entry clearance or leave made before 01 October 2013 is to be decided in accordance with the Rules in force on 30 September 2013.
(ii) Every applicant for Tier 1 Entrepreneurial status bears the onus of proving satisfaction of all of the material requirements of the Immigration Rules.
(iii) The Rules stipulate that every Tier 1 Entrepreneurial applicant have available £50,000 to invest in the proposed business venture. “Available” in this context denotes that the applicant must be in a position to invest this money in his business consequential upon a positive decision of the Secretary of State. The clear import of the Rules is that the investment must be capable of being made almost immediately thereafter.
(iv) A mere intention on the part of a Tier 1 Entrepreneurial applicant to invest £25,000 at the outset of the business venture, coupled with a further intention to invest the balance of £25,000 at some unspecified future date from some unspecified source, does not satisfy the Rules
• Rexha (S.117C – earlier offences) [2016] UKUT 00335 (IAC)
The purpose and intention of Parliament in incorporating section 117C of the Nationality, Immigration and Asylum Act 2002 was to ensure that all of the criminal convictions providing a reason for the deportation decision are to be examined within the framework provided by that section.
What is required when undertaking the exercise required by sections 117C(1) to (6) is careful scrutiny of those offences which are on a person’s criminal record which have provided a reason for the decision to deport.
The IDIs do not fully reflect section 117C(7) in that it is not necessarily the case that, once a foreign criminal has been convicted and sentenced to more than four years’ imprisonment, he will never be eligible to be considered under the Exceptions
• Jan (Upper Tribunal: set-aside powers) [2016] UKUT 00336 (IAC)
The decision of the Court of Appeal in Patel [2015] EWCA Civ 1175 entails the view that the Upper Tribunal’s powers to set aside its own decisions are limited to those in rules 43 and 45-6 of the Upper Tribunal Rules
• Gurung v The Entry Clearance Officer, New Delhi [2016] EWCA Civ 358 (07 April 2016)
Article 8 is to be assessed as at the date of decision in Entry Clearance cases, the Court of Appeal (CA) has found: http://www.bailii.org/ew/cases/EWCA/Civ/2016/358.html
• Ait-Rabah, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 1099 (Admin) (12 May 2016)
Another case here that serves as a warning against attempting to arrive on a visitor visa to marry an EU national while not telling the Immigration Officer that this is in fact your reason for entering the UK. Despite significant amount of documentary evidence substantiating the genuineness of the relationship at the marriage interview, the Claimant’s withholding the true reason for his coming to the UK from the Immigration Officer at Luton Airport proved fatal to his case that he did not enter the country by deception
“Anton Koval: I can help you. Book a Skype or phone consultation with me at https://legalcentre.org/Initial-Consultation.html”
• Post-Brexit immigration
The results of the referendum on the UK’s membership of the European Union on 23 June 2016 and the absence of plans on how to proceed following the vote in favour of leaving the EU have created enormous levels of uncertainty, not least for EU nationals living in the UK and British citizens at home and abroad worried about the future.
Given the uncertainties, there is a shared view that EEA nationals and their family members should be advised to take steps as soon as possible to protect their immigration position by obtaining the best migration status and/or documents to which they are entitled. Suggested steps include applying for a permanent residence card or, if not eligible, obtaining a registration certificate to confirm rights of residence and retaining evidence of exercising treaty rights until eligible for permanent residence. Naturalization as a British Citizen for those with a permanent residence card may also be considered, taking into account any disadvantages such as the loss of another citizenship, particularly citizenship of an EU country, tax consequences or the loss of current EU free movement rights for third country national family members.
• The Immigration Act 2016 (Transitional Provision) Regulations
SI 2016 No 712 7 July 2016 http://www.legislation.gov.uk/uksi/2016/712/pdfs/uksi_20160712_en.pdf
• New employers’ guide to right to work checks issued by Home Office 12 July 2016
The Home Office has issued new guidance to employers on right to work checks in light of the new illegal working offences under the Immigration Act 2016 coming into force on 12 July 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf
• Migrant Workers:Written question - 40839, asked by Carol Monaghan MP, answered by: Nick Boles MP, Department for Innovation, Business and Skills, 27 June 2016: http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-06-15/40839/
• Commons Library Analysis: The UK's family reunion rules: striking the right balance?, House of Commons Library Briefing Paper, 23 June 2016: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7511
“I can help. Anton Koval, 07791145923”
Commons Library briefing: The UK's points-based system for immigration: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7662
A short notice inspection of the Home Office response to ‘lorry drops’: http://icinspector.independent.gov.uk/wp-content/uploads/2016/07/ICIBI-report-on-Lorry-Drops-210716.pdf
The Minister for the Cabinet Office, Ben Gummer, today announced the code of practice to support the duty to ensure customer-facing staff can speak fluent English:
https://www.gov.uk/government/speeches/written-ministerial-statement-on-english-language-requirement-july-2016
We can help you: https://legalcentre.org/Initial-Consultation.html
• EEA Nationals and their family members can also apply under the UK Immigration Rules and not only just under the EEA Regulations:
10. EUN1.10 Can EEA nationals apply under the Immigration Rules?
“Yes. If an EEA national wishes to apply under the immigration rules, they are entitled to do so.”.
11. EUN1.11 Do family members of EEA nationals have to apply under the EEA regulations?
“No, they can choose to apply under the Immigration Rules.”.
• Fees for judicial review applications hare risen yet again from today, Monday 25 July 2016. A new fees order was quietly laid last Friday: The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016. The fees going up are for the permission stage and they rise by 10%. Other fees remain as they were
• EEA citizens and their family members are allowed to use the NHS in the UK, but according to the Home Office the NHS does not count as comprehensive sickness insurance
https://www.gov.uk/government/publications/family-reunion-instruction
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7670
House of Commons Library Briefing Paper: Brexit: some legal and constitutional issues and alternatives to EU membership (28 July 2016)
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7214
NB. This is a tiny bit of the (almost daily !) changes in the UK and EEA Immigration law that I, as a practicing immigration lawyer, believe may be of interest to the members of public. Enjoy !
• A list of activities funded in the UK by the European Union asylum, migration and integration fund (AMIF) up to July 2016. May be of interest to those counting the costs of Brexit: https://www.gov.uk/government/publications/eu-asylum-migration-and-integration-fund-activities-july-2016
• English language test centres: Home Affairs Committee Chair writes to Home Office Permanent Secretary 01 August 2016
In a letter dated the 27th July 2016, the Chair of the Home Affairs Committee, Rt Hon Keith Vaz MP, has written to Mark Sedwill, Permanent Secretary at the Home Office, regarding allegations involving English-language test centres.
Following evidence given to the Home Affairs Committee on English-language testing in July 2016, the Chair of the Committee has written to the Permanent Secretary with follow-up questions regarding test centres, the Educational Testing Service (ETS) and individuals affected by inaccurate test results:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news-parliament-2015/english-language-testing-correspondence-16-17/
• Consolidated list of the current and amended EEA Regulations: http://www.eearegulations.co.uk/Latest
• List of the UK Visa Application Centres outside of the UK: https://www.gov.uk/find-a-visa-application-centre
• Visas and immigration operational guidance, Chapters 23 to 44: operational enforcement activity, Immigration Enforcement and UK Visas and Immigration, 29 July 2016:
https://www.gov.uk/government/publications/chapters-23-to-45-operational-enforcement-activity
• Guidance: Contact details for immigration compliance and enforcement teams, UK Visas and Immigration, 28 July 2016:
https://www.gov.uk/government/publications/contact-details-for-immigration-compliance-and-enforcement-teams
• From the UK BA. “… premium appointments may be used even if the date of the premium appointment is after the expiry of the visa, provided the online application was submitted and Home Office fee paid before expiry of visa. This means that applicants will not be overstaying in such a situation. It is important to note that this only applies for ONLINE applications (and where Home Office fee is paid at same time of submitting online application) not for ones where there is a paper form. If a paper form is required then it is the date of the premium appointment that is the date of the application as defined in the rules”
• The Tier 4 Pilot for those applying to study a Masters course for 13 months or less (at the University of Oxford, University of Cambridge, University of Bath or Imperial College London), 5 August 2016 (extra 2 months, 6 months in total, to stay in the UK on completion of their course): http://www.ukcisa.org.uk/studentnews/815/Clarification-on-Tier-4-pilot-scheme and https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/540421/T4_Migrant_Guidance_July_2016.pdf
• Asylum instruction: Sexual orientation issues in the asylum claim – updated guidance. The Asylum Policy Instruction, ‘Sexual orientation issues in asylum claims’, has been updated and republished on the government website at the following location: https://www.gov.uk/government/publications/sexual-identity-issues-in-the-asylum-claim
Recent case-law:
• U.N. v. Russia (no. 14348/15), [Articles 3, 5 § 4], 26 July 2016
The Third Section of the European Court of Human Rights has given its ruling in the case of U.N. v. Russia (no. 14348/15).
The case relates to a Kyrgyzstan national and ethnic Uzbek, who currently lives in Russia. The applicant arrived in Russia after the mass disorders and inter-ethnic clashes in Kyrgyzstan in 2010. Wanted by the Kyrgyz authorities on charges related to these clashes, including the kidnapping and murder of two law-enforcement officers, he was arrested in Russia in January 2014 and placed in detention. His detention extended on a number of occasions and he was released in July 2015. Following an unsuccessful appeal against the extradition to Kyrgyzstan and a rejection of his asylum application, U.N complained to the ECtHR. He claimed violations of his rights under Articles 3 and 5 § 4 ECHR.
The Court reiterated that it had previously held that there were substantial grounds for believing that the applicants would face a real risk of exposure to treatment proscribed by Article 3 ECHR if returned to Kyrgyzstan (e.g. Khamrakulov, Mamadaliyev, Kadirzhano and Mamashev, Gayratbek Saliyev, and Makhmudzhan Ergashev). It hereby referred to the attested widespread and routine use of torture and other ill-treatment by law-enforcement agencies in the southern part of Kyrgyzstan in respect of members of the Uzbek community, the impunity of law enforcement officers, and the absence of sufficient safeguards for the applicants in the requesting country. As such, the diplomatic assurances and monitoring mechanism relied on by the Russia government were insufficient. In addition, the applicant’s criminal conduct did not overturn the absolute prohibition of ill-treatment under Article 3 ECHR. As the applicant belonged to a vulnerable group, the Court found that he would face a real risk of treatment proscribed by Article 3 ECHR, if returned to Kyrgyzstan.
Furthermore, the Court reiterated that it had previously found a violation of the ECHR where an applicant was unable to bring about a judicial review during a fixed period of detention. This would also be the case if changes in the fixed period of detention would directly affect its lawfulness. In the present case, the applicant was unable to apply for a judicial review of the lawfulness of his detention for almost four months despite the circumstances that justified the review. The Court found a violation of Article 5 § 4 ECHR.
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• Despite the current UK Government’s commitments to reduce the use of detention and the reform agenda outlined by Government, there is an expansion taking place at the Gatwick airport sites. Brook and Tinsley will expand by 100 places over this summer: http://detentionforum.org.uk/another-100-beds-at-gatwick-site-expansion-by-stealth/
• Tzur case on comprehensive sickness insurance, 19 August 2016
The Appellant is an Israeli national and the family member of a Greek student (her ‘sponsor’). The couple purchased a BUPA health insurance policy prior to submitting application for residence documentation. The Policy expressly stated that it did not cover pre-existing medical conditions. The sponsor had an asymptomatic ‘systolic heart murmur’ and the Appellant was an ex-smoker who had smoked for a period of three years in the past. It appears to have been understood that there are no insurance policies in the UK which would cover pre-existing medical conditions. The court was provided email correspondence between Appellant and BUPA which stated that the conditions suffered by the Appellant and her Sponsor were not considered to be excluded conditions.
The First-tier Tribunal upheld the Home Office refusal of residence documentation. At paragraph 31, immigration judge Moxon concludes that it was not disproportionate for the Home Office to refuse the application for EEA residence documents here because the Appellant and her Sponsor did not evidence income sufficient to pay for medical treatment (presumably out of pocket for conditions not covered by insurance) and failed to provide a medical assessment which concluded that they did not have ‘...any medical conditions that are as yet asymptomatic but may develop to require treatment and medication in the near future’.
The rationale appears to have been that the couple did not satisfy the Comprehensive Sickness Insurance requirements because they did not definitively disprove by way of medical assessment that they had no other pre-existing medical conditions which at some point in the future would not be covered by medical insurance and would therefore render them an unreasonable burden on social assistance.
The case will be heard in Upper Tribunal on 1 September 2016.
• The ETS English language tests, yet again. Evidence had come to light that ETS tests in the case of these two men may have been taken by a proxy. Therefore their leave to remain in the UK was curtailed. The Court of Appeal agreed with the Home Office, quashing the decisions of the Upper Tribunal, which alongside the First-Tier Tribunal had accepted the two men’s arguments on the facts and law on appeal from the decision: http://www.bailii.org/ew/cases/EWCA/Civ/2016/615.html
• The President has issued an important determination on the correct approach to multiple applications and appeals from family members, specifically a parent or parents and a child or children with 7 years of residence: http://www.bailii.org/uk/cases/UKUT/IAC/2016/108.html
Generally, where a family with a child or children who have lived in the UK for 7 years or more apply for leave to remain on the basis of paragraph 276ADE(1)(iv), there is an increasingly strong argument that the applications should normally be granted if the period of residence is satisfied and there is no bad behaviour by the applicants, they are well settled and integrated and therefore it would not be reasonable for the child or children to have to start over with their life again in another country. The longer the child has lived in the UK, the stronger the case will be. Other factors working in an applicant’s favour would be lawful presence by the parents and residence as an older child.
• The Home Office has issued a new updated version of its policy on section 3C and 3D leave: https://www.gov.uk/government/publications/3c-and-3d-leave Section 3C and 3D leave is an automatic type of leave created by an amendment to the Immigration Act 1971 so that where a person makes a valid application to extend his or her leave to enter or remain and the application is refused, that person’s immigration status would be extended during any waiting time for the application to be decided or for an appeal to be decided. Except that is not quite true any more. Section 3C was amended by the Immigration Act 2014 and no longer protects those who make an application and appeal it where the decision was made by the Home Office before the person’s leave expired. Where the decision is made after the person’s leave expired, section 3C continue to work its magic
• Periods of study for a qualification below degree level, are capable of being counted as time spent studying at degree level for the purpose of paragraph 245ZX(ha), if the period of study is taught at degree level, and when the qualification itself is added to other periods of study, resulting in the award of a degree: http://www.bailii.org/uk/cases/UKUT/IAC/2016/181.html
• An EEA appellant must prove a proxy marriage is lawful in country in which it was contracted and in the relevant EEA Member State: http://www.bailii.org/uk/cases/UKUT/IAC/2016/180.html
• The Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016, SI 2016 No. 847, 23 August 2016. This statutory instrument brings into effect the guidance on adults at risk in immigration detention, and comes into force on 12th September 2016: http://www.legislation.gov.uk/uksi/2016/847/pdfs/uksi_20160847_en.pdf
Para 34J: https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-1-leave-to-enter-or-stay-in-the-uk
“here a person whose application or claim for leave to remain is being considered requests the return of his passport for the purpose of travel outside the common travel area, the application for leave shall, provided it has not already been determined, be treated as withdrawn on the date that request is received by the Home Office.”
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01 September 2016:
- EU asylum, migration and integration fund activities: July 2016, UK Visas and Immigration, 1 August 2016:
https://www.gov.uk/government/publications/eu-asylum-migration-and-integration-fund-activities-july-2016
- Updated Guidance: Syria: country information and guidance, UK Visas and Immigration, 01 September 2016
https://www.gov.uk/government/publications/syria-country-information-and-guidance
- Judgment of the Grand Chamber of the European Court of Human Rights: J.K. v Sweden European Court of Human Rights Application no. 59166/12 (02 September 2016)
A complex mesh of dissenting and concurring opinions but a violation of Article 3 found in the proposed removal to Iraq of persons who were targeted by Al Qaeda because of business with US clients in Iraq. Interesting for its treatment of the burden of proof in Article 3 cases, aligning this very closely with burden under the 1951 Refugee Convention.
- Those irregular/overstayer migrants, who complete 20 years in the UK, may currently apply to regularize their status on the FLR(FP) application form
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05 September 2016:
• The Home Office is reported to be testing a new online fast track application process for EU migrants in the UK. The Financial Times first carried the story but it was also picked up and confirmed by The Guardian.
In summary, the new fast track application process is said to apply to permanent residence applications, it is being tested with 20 hand picked corporate partners including Deloitte and PwC over the next fortnight and the test is to seek feedback and identify any problems in the system.
Whether the final version will be restricted to permanent residence applications by EU nationals is unknown
• The Section 3C leave. It should be noted that the 3C continuing leave only arises where a person’s leave expires before the HO make a decision on their application. It does not apply if the leave runs out after that decision has been made.
• New permanent residence card requirement for EEA citizens applying for naturalisation after 12 Nov 2015 – UK BA Freedom of Information Request (FOI) response: https://www.whatdotheyknow.com/request/new_permanent_residence_card_req Under the EEA Regulations some EU citizens can backdate their Permanent Residence issue date, so they may not need to wait 12 months after obtaining their PR status
• The Upper Tribunal’s jurisdiction to decide an application for Judicial Review is not affected by the applicant’s being in Scotland. The Tribunal will, however, consider issues of forum non convenience if it is suggested that its jurisdiction should not be exercised.
• Parent of a child at school visa can be extended in-country under para 276BU1: https://www.gov.uk/parent-of-a-child-at-school-visa/extend-your-visa and https://www.gov.uk/government/publications/parent-of-a-tier-4-child-student
• Transparency data: Country returns guide, UK Visas and Immigration, 22 August 2016:
https://www.gov.uk/government/publications/country-returns-guide
• The case of AB (Article 1F(a) – defence - duress) Iran [2016] UKUT 00376 (IAC)
1. In response to an allegation that a person should be excluded under Article 1F(a) of the Refugee Convention because there are serious reasons for considering that the person has committed a crime against peace, a war crime or a crime against humanity as defined in the Rome Statute, there is an initial evidential burden on an appellant to raise a ground for excluding criminal responsibility such as duress.
2. The overall burden remains on the respondent to establish that there are serious reasons for considering that the appellant did not act under duress.
• Immigration Act 2016: Guidance on adults at risk in immigration detention: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/547519/Adults_at_Risk_August_2016.pdf
• Rough Sleeping and Home Office Removals, Homeless Link, 23 August 2016:
http://www.homeless.org.uk/connect/blogs/2016/aug/23/rough-sleeping-and-home-office-removals
UK & EEA Immigration Law Updates from the Legal Centre: https://www.legalcentre.org/Initial-Consultation.html
• New and updated UKVI Detention Guidance: Guidance on Adults at Risk in Immigration Detention policy, Rule 35 and other changes
http://www.ilpa.org.uk/resource/32476/newupdated-detention-guidance-12-september-2016-new-enforcement-instructions-and-guidance-adults-at-
The Home Office has issued guidance on the new ‘Adults at Risk in Immigration Detention’ policy which came into force yesterday, 12 September 2016. It has amended its guidance in Chapter 55 of the Enforcement Instructions and Guidance on Detention and Temporary Release to reflect the change in policy. It has also made changes to guidance in Chapters 50 and 60 of the Enforcement Instructions and Guidance where these deal with the removals window to cover circumstances related to adults at risk in immigration detention. The Home Office has also issued a new Detention Services Order providing guidance on Rule 35 reports.
• Case note on Court of Justice of the European Union (CJEU) judgment in CS C-304/14
Article 20 TFEU must be interpreted as precluding legislation of a Member State which requires a third-country national who has been convicted of a criminal offence to be expelled from the territory of that Member State to a third country notwithstanding the fact that that national is the primary carer of a young child who is a national of that Member State, in which he has been residing since birth without having exercised his right of freedom of movement, when the expulsion of the person concerned would require the child to leave the territory of the European Union, thereby depriving him of the genuine enjoyment of the substance of his rights as a Union citizen. However, in exceptional circumstances a Member State may adopt an expulsion measure provided that it is founded on the personal conduct of that third-country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that Member State, and that it is based on consideration of the various interests involved, matters which are for the national court to determine.
It must be read in conjunction with C-165/14 Rendon Marin a reference from a Spanish court on a similar issue also issued fairly recently.
• When can the UK BA return the original ID for the applicant to sit the SELT (English language) test ?
According to the UK BA, “what would the Home Office position if a request is made for the return of an identity document to take a SELT test in the following scenarios:
1. the applicant has extant leave;
2. the applicant has leave under section 3C of the Immigration Act 1971;
3. the applicant has permission to remain under the Free Movement Directive;
4. the applicant is an overstayer / illegal entrant.
In the first three scenarios, the identity document should be returned by the Home Office in order to allow the individual to sit the SELT test. In the last scenario the Home Office may not return the passport to allow the individual to sit the SELT test, as they would be in the UK illegally and the passport would assist in the individual’s removal. Guidance on the power to retain passports is available at https://www.gov.uk/government/publications/retaining-valuable-documents
Also, where an individual has requested the return of the identity document after the application has been refused, the Home Office may not return the document as it would assist in the individual’s removal.
In cases where an immigration appeal has been held or is in progress the Home Office will make a decision whether to return the passport or not. In the majority of cases the passport should be returned. In exceptional cases where there are serious concerns that the applicant may abscond if the passport is returned, the Home Office will request that the applicant books a SELT test, then will scan the passport and send this with the booking details to the SELT provider to allow the applicant to sit the test. In these cases the Home Office will confirm to the SELT provider that the passport has been checked and there are no concerns about it being genuine.”
• The Lords Select Constitution Committee has published its 4th Report, HL Paper 44: The invoking of Article 50, 13 September 2016:
http://www.publications.parliament.uk/pa/ld201617/ldselect/ldconst/44/4402.htm
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1.The proposed (not yet implemented) potential new terms and conditions of leave granted to refugees and persons in need of humanitarian protection
The proposal explained is a default setting that refugees and persons granted humanitarian protection get three years leave in the first instance, with a possibility of extension of three years at a time and to apply for settlement after 10 years, subject to passing the life and language tests which must be met by other applicants for settlement. It is further proposed that these refugees and persons be given rights to refugee family reunion after two years, rather than immediately.
Those who would continue to get five years leave and then a right to settlement, would be:
- The resettled
- Sur place claimants (persons in the UK when the situation for them in their country of origin changes so that they would risk persecution on return)
- Those who have been trafficked but claim asylum as soon as possible
-Those who travel directly to the UK and claim immediately on arrival (references to Article 31 of 1951 UN Convention Relating to the Status of Refugees and s 31 of the
Immigration and Asylum Act 1999
-Those transferred to the UK under the take charge provisions of Dublin (family unity etc).
Although the three year grant would be the default setting, those it would be targeted at particularly would be:
- Those who enter the UK unlawfully
- Those who claim after they have overstayed
- Those who have passed through a safe third country
- Those who make self-serving claims
2.Independent Chief Inspector of Borders and Immigration (ICIBI) calls for an improvement of the Home Office’s family reunion applications handling, press release, 14 September 2016
Home Office too ready to reject family reunion applications when applicants fail to provide sufficient evidence of their eligibility Withdrawal of Home Office commissioned and funded DNA tests identified as a major reason for first time application refusals The ICIBI report invites the Home Office to recognise the impact of avoidable delays on applicants
David Bolt, Independent Chief Inspector of Borders and Immigration (ICIBI), calls on the Home Office to better manage family reunion applications and show more understanding of the circumstances and difficulties faced by applicants coming from areas of conflict.
Under existing rules, family members of individuals who have been granted asylum in the UK, or five years’ humanitarian protection, can apply to be reunited with their family.
The ICIBI inspection found that, since the Home Office stopped commissioning and funding DNA tests to establish family relationships, the number of family reunion applications rejected for failure to produce sufficient evidence has doubled for certain nationalities.
Inspectors also found that family reunion applications are often refused rather than being deferred to allow applicants to produce the missing evidence. This means that individuals who are eligible for family reunion are delayed in receiving entry clearance. While it accurately reflects the rules, Home Office guidance to applicants should be more helpful in identifying the evidence they are likely to need to provide in order for their applications to succeed.
Mr Bolt asks decision makers to consider all available evidence when processing family reunion applications and, in line with Home Office rules, to take exceptional circumstances and compassionate factors into account when making their decision.
David Bolt said:” The family reunion report identifies a number of areas where the Home Office needs to improve. Applicants, stakeholders and others need to be reassured that the Home Office recognises the particular challenges facing many family reunion applicants, and that it manages applications not just efficiently and effectively, but thoughtfully and with compassion”.
3.Revised Detention Services Order 12/2012 Room sharing risk assessment (RSRA):
www.gov.uk/government/publications/room-sharing-risk-assessment-rsra
UK and EEA Immigration Law Updates from the Legal Centre.
We can help you: https://legalcentre.org/Initial-Consultation.html
• Huge increase (in some cases as far as 6 fold) in the immigration appeal costs
The Government response to the consultation on proposals to reform the fees charged in the Immigration and Asylum Chamber of the First-tier Tribunal and Upper Tribunal, PLUS Immigration and Nationality (Fees) (Amendment) Regulations 2016, 15 September 2016
The consultation paper was published on 21 April 2016 and the closed on 3 June 2016.
“The response announces our intention to:
- increase the fee payable for an application to the First-tier Tribunal (Immigration and Asylum Chamber) for a decision on the papers from £80 to £490;
- increase the fee payable for an application to the First-tier Tribunal (Immigration and Asylum Chamber) for an oral hearing from £140 to £800;
-introduce a fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal;
- introduce a fee of £350 for an application to the Upper Tribunal for permission to appeal in that Tribunal (where the application to the First-tier Tribunal has been refused);
- introduce an appeal fee in the Upper Tribunal of £510; and
- make extensions to the existing exemptions and remissions scheme that applies in the First-tier Tribunal and extend these to apply to fees for appeals in the Upper Tribunal.
Full details of the fees changes are available at the following links:
https://consult.justice.gov.uk/digital-communications/first-tier-tribunal-and-upper-tribunal-fees
https://www.gov.uk/government/consultations/proposals-to-amend-immigration-and-asylum-chamber-fees
All customer facing IT systems have been amended to reflect these changes. Any applications received prior to the fee change but returned because of an error on the form will attract the new fees”.
• Brexit and the Norway Option: the EFTA Court upholds Surinder Singh for EEA nationals, E-28/15 Jabbi 26 July
Where an EEA national, pursuant to Article 7(1)(b) and Article 7(b) of Directive 2004/38/EC, has created or strengthened a family life with a third country national during residence in an EEA State other than that of which he is a national, the provisions of that directive will apply by analogy where that EEA national returns with the family member to his home State.
• Government Response to the Home Affairs Select Committee's Second Report of Session 2016–17: The work of the Immigration Directorates (Q4 2015) (16 September 2016)
The Government responds to the recent criticisms made by the Home Affairs Select Committee in its scrutiny of the work of the Home Office on:
• Visa applications
• English Language Tests
• Asylum cases
• The Migration Refusal Pool and curtailment of leave
• Immigration detention
• Foreign national offenders (FNOs)
• Voluntary removals
http://www.publications.parliament.uk/pa/cm201617/cmselect/cmhaff/675/67502.htm
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Recent case-law
• R (on the application of Sharif Hussein) v First-Tier Tribunal (para 353: present scope and effect) IJR [2016] UKUT 00409 (IAC), 19 September 2016
Tribunal link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-409
(1) Lord Neuberger’s judgment in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926 is an authoritative pronouncement on the scope of the Supreme Court’s judgments in R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7.
(2) Parliament’s actions in amending paragraph 353 (fresh claims) of the immigration rules in the light of the changes to the appeal regime made by the Immigration Act 2014, together with its decisions:-
(i) to amend, but without bringing into force, the prospective amendments made in 2006 to the definition of “human rights claim” in section 113 of the Nationality, Immigration and Asylum Act 2002; and
(ii) to amend the existing definition of “human rights claim” in the light of the 2014 Act,
show that Parliament intends paragraph 353 to be used to determine whether further submissions constitute a fresh human rights claim for the purpose of “new” section 82 of the 2002 Act.
(3) If, in the post-2014 Act world, Parliament had intended paragraph 353 to apply only to the Secretary of State’s certification decisions, then Parliament would have made this plain. If the applicant were correct that paragraph 353 currently has only such a limited ambit, commencing the 2006 amendments to section 113 of the 2002 Act would not enable the Secretary of State to make any significantly greater and/or coherent use of paragraph 353.
(4) Parliament’s decision to leave in place the expressions “submissions” and “if rejected” in paragraph 353 are indicative that they continue to serve the function of permitting the Secretary of State to categorise cases as between those that do not amount to a claim at all and those which, though rejected, amount to a fresh human rights claim for the purposes of “new” section 82.
(5) The Secretary of State is not the sole arbiter of whether, in any particular case, she has made a decision to refuse a human rights claim, as opposed to refusing to treat submissions as amounting to a fresh claim.
• Sheidu (Further submissions; appealable decision) [2016] UKUT 000412 (IAC)
Tribunal link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-412
If the SSHD makes a decision that is one of those specified in s 82(1), it carries a right of appeal even if the intention was not to treat the submissions as a fresh claim.
• Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC)
Tribunal link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-411
There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member.
• VOM (Error of law – when appealable) Nigeria [2016] UKUT 00410 (IAC)
Tribunal link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-410
In a statutory appeal, the right of appeal under s 13 of the 2007 Act does not arise until the Upper Tribunal has completed the process required by s 12.
• FA (Libya: art 15(c)) Libya CG [2016] UKUT 00413 (IAC)
Tribunal link: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-413
1. The question of whether a person is at art 15(c) risk in Libya should, until further Country Guidance, be determined on the basis of the individual evidence in the case.
2. This decision replaces AT and Others Libya CG [2014] UKUT 318 (IAC) in respect of assessment of the art 15(c) risk.
• KS v Secretary of State for Work and Pensions [2016] UKUT 269 (AAC)
http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4880
The Tribunal considered the meaning of ‘compelling evidence’ under Regulation 6(7) of The Immigration (European Economic Area) Regulations 2006 which requires that a person provides ‘compelling evidence’ that they are seeking employment and has a genuine chance of being engaged in order to have a right to reside as a jobseeker for more than the relevant period (in most cases 91 days). The Tribunal held that this means no more than the requirement for evidence to establish on a balance of probabilities that the claimant is continuing to seek employment and has genuine chances of being engaged. To interpret the phrase as meaning that a higher standard of proof is required would be contrary to EU law.
Secretary of State for Work and Pensions v MB (JSA) (and linked cases) [2016] UKUT 372 (AAC) http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4931
This is a longer and more complex decision but some of the significant points held include the following:
1. Although the fact that someone has been looking for work unsuccessfully for a period of 6 months or more is a relevant factor in determining whether they have a genuine chance of being engaged, it is only one factor among others.
2. The requirement to provide 'compelling' evidence of a genuine chance of being engaged 'cannot raise the bar' of what constitutes a genuine chance of being engaged beyond ‘chances that are founded on something objective and offer real prospects of employment within a reasonable period’.(paras 49-60, especially para 57).
3. Given that evaluating a ‘chance’ necessitates a degree of looking forward, events likely to occur in the near future may be relevant to a claimant’s ‘genuine chance of being engaged’. (para 47)
• Housing Benefit: change in rules on temporary absence if absence outside UK
The Housing Benefit Regulations 2006 were amended by The Housing Benefit and State Pension Credit (Temporary Absence) (Amendment) Regulations 2016 with effect from 28 July 2016.
In brief, the amendments mean that if a person is temporarily absent from their home because they are outside the UK, they will cease to be treated as occupying the property during that temporary absence and therefore cease to be entitled to Housing Benefit after 4 weeks in most cases. Prior to 28 July 2016, it was possible to claim Housing Benefit for up to 13 weeks in most cases. There continue to be some limited exceptions.
• The European Scrutiny Committee assesses the legal and/or political importance of draft EU legislation
Recently it has considered proposals from the European Commission on reform of the EU asylum system, of which there have been two sets.
The Commission presented its first set of proposals for asylum reforms in May, which were subject to two scrutiny reports.
These proposals aimed to:
• streamline the existing Dublin procedures
• include a new “fairness mechanism” designed to ensure a more equitable distribution of asylum seekers amongst Member States.
• transform the European Asylum Support Office into the EU Agency for Asylum, giving it a stronger mandate to monitor the overall functioning of the common European asylum system
• develop the EU’s asylum database (Eurodac) into a broader migration management tool.
In July 2016, the EU Commission published its second set of proposals for changes to asylum law, including:
• Revise EU rules on who qualifies for international protection
• Establish a fully harmonised common EU asylum procedure
• Revise EU rules on reception conditions for asylum seekers
• Establish a new EU framework for the resettlement of individuals in need of international protection
In its report published today, the European Scrutiny Committee recommends that the Government’s opt-in decisions should be debated together in Parliament.
It identifies questions which it considers to be relevant to the opt-in debates. An overarching concern is whether the reforms proposed achieve the Commission’s objectives of establishing “a more humane, fair and efficient European asylum policy” and ensuring that the EU “takes on its fair share of the global responsibility to provide a safe haven for the world’s refugees”. The Committee also look further ahead, inviting the Government to consider the impact that harmonised EU rules on asylum would have on the UK once the UK has left the EU.
http://www.parliament.uk/business/committees/committees-a-z/commons-select/european-scrutiny-committee/news-parliament-20151/asylum-report-published-16-17/
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• EEA law v self-sufficiency. Please note that (page 37 of the Modernised Guidance (EEA nationals - qualified persons) confirms that an applicant can rely on the income of a spouse to show adequate resources for self-sufficiency. However, the wording in the Modernised Guidance specifically mentions that they must have 'regular access' to this income. lt appears, therefore, that having access to the income means the applicant being able to access it from their own account or from a joint account
• European passport return service, UK Visas and Immigration, 21 September 2016:
https://www.gov.uk/government/collections/european-passport-return-service
The European passport return service is provided by local authorities or nominated premium service centre.
A participating local authority can photocopy your EEA or Swiss passport and forward a copy along with your checklist and application to the Home Office on your behalf. Your passport will then be available for you to use while your application is being processed.
Alternatively, you can make an appointment and take your passport and documents to the premium service centre in Belfast or Glasgow.
The service is available by appointment only and you must attend your appointment within 5 working days of submitting your online form. The service fee can be obtained by contacting the local authority who will also confirm times appointments are available.
The Home Office may contact you for further information after your application has been submitted.
Using the European passport return service does not guarantee the success of the application and the local authority cannot provide any advice. This service will not ensure that your form has been correctly completed and correct supporting documents submitted.
Please note that this service does not extend to the family members as well as that this service is merely a way of retaining your passport and not in any way a quality service of thoroughly checking your application (see https://legalcentre.org/Immigration-Application-Verification-Service.html) before submission to the UK BA
• First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016, Statutory Instrument 2016 No. 928 (L.16), 15 September 2016:
www.legislation.gov.uk/uksi/2016/928/pdfs/uksi_20160928_en.pdf
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• Domestic workers: The Immigration (Variation of Leave) Order 2016 (SI 2016/948) 26 September 2016: http://www.legislation.gov.uk/uksi/2016/948/pdfs/uksi_20160948_en.pdf
Into effect 6 October 2016. Provides that where a ‘competent authority’ determines that it has ‘reasonable grounds’ to believe that a person who has been granted limited leave to enter the United Kingdom as an overseas domestic worker, or a private servant in a diplomatic household, is a victim of modern slavery, the person’s leave is extended until 28 days after the competent authority notifies the person of its conclusive decision as to whether or not the person is such a victim.
• Two recent cases in the Administrative Appeals Chamber of the Upper Tribunal have clarified when a worker might in EU law retain his or her status as a worker during a period of unemployment. The cases are KS v Secretary of State for Work and Pensions [2016] UKUT 269 AAC and MB and others v Secretary of State for Work and Pensions [2016] UKUT 372 AAC.
• In the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) the Upper Tribunal has ruled that there is no right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member: The headnote says: “There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member.”
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• In two linked cases, CS v UK C-304/14 and Marin v Spain C-165/14, the Court of Justice of the European Union has ruled that Zambran0-like derived rights of residence under EU law are not automatically lost if a crime is committed. Instead, each case must be assessed on its merits and a judgment reached applying normal principles of EU law
• Access to the Court of Appeal is being restricted with effect from 3 October 2016 by means of important changes to the Civil Procedure Rules (CPR)
The headline changes are:
-Removal of the automatic right to an oral hearing when renewing an unsuccessful application for permission to appeal. Renewed applications will be determined on the papers, but a judge can exceptionally direct an oral hearing.
- The test for permission on second appeals is re-worded to require “a real prospect of success” (in addition to an important point of principle or practice).
- New seven day time limit for appeals from refusals of permission to apply for judicial review by the Upper Tribunal.
• No appeal to Court of Appeal until Upper Tribunal appeal concluded
The Upper Tribunal has ruled that there is no right of appeal to the Court of Appeal against decisions of the Upper Tribunal until Upper Tribunal appeal is finally concluded. This means there is no right of appeal to the Court of Appeal against an Upper Tribunal decision that there was or was not an error of law committed by the First-tier Tribunal.
• Fresh claims pay theoretically generate right of appeal after all
Two further cases have added to the jurisprudence on whether it is possible under the Immigration Act 2014 to appeal against a refusal of a fresh protection claim. The cases are R (on the application of Sharif Hussein) v First-Tier Tribunal (para 353: present scope and effect) IJR [2016] UKUT 409 (IAC) and Sheidu (Further submissions; appealable decision) [2016] UKUT 412 (IAC).
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• A child born outside the UK to a parent who has ILR is not a British Citizen. In other words because the parent with the ILR is not a British citizen, the child cannot benefit from s3 (3) or (5) of the BNA 1981
• New Immigration Fees
The First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016 (SI 2016/928 (L.16)) came into effect today. It introduces massive fee increases in immigration and asylum cases.
The fee payable for an application to the First-tier Tribunal (Immigration and Asylum Chamber) for a decision on the papers rises from £80 to £490. The fee for an oral hearing rises from £140 to £800. The amendments apply only in respect of an appeal to the First-tier Tribunal against a decision taken on or after today
• Online versions of the FLR(M) and FLR(FP) application forms are now available. The form needs to be printed at the end and sent off to the Home Office with the required supporting documents: https://visas-immigration.service.gov.uk/product/family-routes
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• The republic of Ireland citizens are automatically deemed to be "settled" in the United Kingdom on the basis of the section 1(3) of the Immigration Act 1971
• Contact details for immigration compliance and enforcement teams: https://www.gov.uk/government/publications/contact-details-for-immigration-compliance-and-enforcement-teams
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• Ministry of Justice Consultation: Expedited immigration and asylum appeals for detained appellants, 12 October 2016: https://consult.justice.gov.uk/digital-communications/expedited-immigration-appeals-detained-appellants/
• If one’s EEA application is refused and the one appeals, the one can request the UK BA to issue an additional Certificate of Application (with the right of employment for certain categories) while appeal is pending
• The House of Lords Secondary Legislation Scrutiny Committee met on 11 October and has agreed its 9th Report. First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016 (SI 2016/928)
These Regulations introduce an approximately six-fold increase in the fees for an application to the Immigration and Asylum Chamber of the First-tier Tribunal raising them to £490 for a decision on papers and £800 for an oral hearing. Fees for an application to the Upper Tribunal will also be introduced by a subsequent order. Of the 147 responses to the consultation on this proposal, 142 respondents disagreed with the proposed fee increase on the ground that it would deny access to justice. It seems as poor practice that the instrument was laid on the last day before the recess and came into effect on the date Parliament returned, thus allowing no time for scrutiny or comment before the Order’s provisions were applied.
This Order is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.
http://www.publications.parliament.uk/pa/ld201617/ldselect/ldsecleg/46/4602.htm
• Justice Committee, House of Commons Select Committee inquiry into the implications of Brexit for the justice system, 12 October 2016:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-20151/implications-brexit-inquiry-launch-16-17/
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Most recent case-law
• Al – Sirri (Asylum – Exclusion – Article 1F(c)) [2016] UKUT 00448 (IAC)
In every case involving exclusion of protection under Article 1F of the Refugee Convention, the onus of proof is on the Secretary of State, a detailed and individualised examination of the facts is required, there must be clear and credible evidence of the offending conduct, and the overall evaluative judgment involves the application of a standard higher than suspicion or belief.
• Restivo (EEA – prisoner transfer) [2016] UKUT 00449(IAC)
The European Framework Decision 2008/909/JHA has replaced the framework previously set out in the Council of Europe Convention on the Transfer of Sentenced Persons, itself supplemented by the Protocol of 18 December 1997, to provide the framework within which a request may be made to another Member State for the transfer of an EEA national sentenced in the United Kingdom to serve that sentence in his own country. In the United Kingdom context, it is a precondition for making a transfer request that there be in place a deportation order. A decision to make a deportation order is not a decision to transfer a serving prisoner to another Member State to serve his prison there and so in any appeal against a decision to make a deportation order the Tribunal is not concerned with whether there is any legal impediment to such a transfer taking place.
Where the personal conduct of a person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the fact that such threat is managed while that person serves his or her prison sentence is not itself material to the assessment of the threat he or she poses. The threat exists, whether or not it cannot generate further offending simply because the person concerned, being imprisoned, has significantly less opportunity to commit further criminal offences.
• AB (British citizenship: deprivation; Deliallisi considered) Nigeria [2016] UKUT 00451 (IAC)
(1) As held in Deliallisi (British citizen: deprivation appeal: scope) [2013] UKUT 00439 (IAC), in an appeal under section 40A of the British Nationality Act 1981 the Tribunal is required to determine the reasonably foreseeable consequences of deprivation.
(2) Whilst the Tribunal considering a section 40A appeal cannot pre-judge the outcome of any future legal challenge that the appellant might bring against a decision to remove, following deprivation, the Tribunal must nevertheless take a view as to whether, from its present vantage point, there is likely to be force in any future challenge: cf section 94 of the Nationality, Immigration and Asylum Act 2002 and paragraph 353 of the immigration rules. The stronger the potential case, the less likely it will be that the reasonably foreseeable consequences of deprivation will include removal.
(3) A person who had indefinite leave to remain in the United Kingdom, immediately before acquiring British citizenship, does not thereby become entitled to indefinite leave to remain, upon being deprived of such citizenship under section 40 of the 1981 Act. Leave to remain is effectively extinguished by becoming a British citizen, since the system of controls under the Immigration Act 1971 does not apply to British citizens.
(4) In a section 40A appeal, an appellant may rely on the ground that deprivation would have a disproportionate effect, as regards the rights flowing from citizenship of the EU, only if, on the facts, there is a “cross-border” element. The finding to the contrary in Deliallisi was reached per incuriam in the judgment of the Court of Appeal in G1 v Secretary of State for the Home Department [2012] EWCA Civ 867.
• R (on the application of Hassan and Another) v Secretary of State for the Home Department (Dublin – Malta; Charter Art 18) IJR [2016] UKUT 00452 (IAC)
(i) There have been significant developments in Malta during recent years. While there may be imperfections in the Maltese asylum decision making processes, these are not sufficient to preclude returns under the Dublin Regulation and, in particular, do not amount to a breach of Article 18 of the EU Charter.
(ii) While Article 18 of the EU Charter confers rights of a procedural nature, the evidence does not establish that these will be infringed in the event of either of the Applicants pursuing a fresh asylum claim in Malta.
(iii) The limitations of the mechanisms available under Maltese law for challenging refusal of asylum decisions do not infringe Article 18 of the EU Charter.
(iv) In judicial review, decisions of the Administrative Court are not binding on the Upper Tribunal: Secretary of State for Justice v RB [2010] UKUT 454 (AAC) applied.
(v) Per curiam: Article 18 of the EU Charter provides an avenue for challenging transfer decisions under the Dublin Regulation.
(vi) Per curiam: Where a Dublin Regulation transfer decision is challenged under Article 18 of the EU Charter, the ECHR “flagrant breach” standard does not apply. Rather, the test is whether there is a real risk of a breach of Article 18
• MA (ETS – TOEIC testing) [2016] UKUT 00450(IAC)
(i) The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive.
(ii) Per curiam: where the voice data generated by TOEIC testing are those of a person other than the person claiming to have undergone the tests, there is no breach of EU or UK data protection laws.
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• New reports from the Independent Chief Inspector of Borders and Immigration, 13 October 2016:
http://icinspector.independent.gov.uk/2016/10/13/the-chief-inspector-publishes-5-reports/
Including:
- An inspection of Border Force operations at Coventry and Langley postal hubs March to July 2016
- A re-inspection of the handling of Tier 4 sponsor licence compliance July 2016
An inspection of the 'hostile environment' measures relating to driving licences and bank accounts January to July 2016
• JCWI plans to bring a judicial review to challenge the government’s decision to raise fees in the Immigration & Asylum Tribunal by around 500%. Fees for paper applications have increased from £80 to £490, and for appeal hearings they have increased from £140 to £800.
An urgent £5,000-£10,000 crowd funding campaign has been launched so that the charity can bring this legal challenge. A minimum of £5,000 is needed in order to be able to proceed and to meet the costs risk. JCWI is not a large charity and it does not have the funds to take on the risk alone. It has instructed Liberty to act as its solicitors, and counsel instructed are Laura Dubinsky of Doughty Street, led by Karon Monaghan QC of Matrix.
You can contribute here: https://www.crowdjustice.org/case/immigration-tribunal-fees-challenge/
• Brexit is causing significant delays in the processing of EU free movement documentation applications. In normal times, before the Brexit vote on 23 June 2016, an EU national could expect a permanent residence certificate to be issued in about 6 weeks and a family member about 4 months or so. Now it is taking the UK BA some 6 months for the non-EEA nationals and some 5 months for the EEA nationals to be issued with Permanent Residence status. The current policy on expediting the UK BA applications under the EEA law can be found on pages 37-38 here: https://www.gov.uk/government/publications/processes-and-procedures-for-eea-documentation-applications
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• R (on the application of Johnson) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2016/0042 - Supreme Court Article 8 child of unmarried parents case - 19th October 2016
Mr Johnson, the appellant, was born in Jamaica in 1985 and moved to the UK aged four. His parents were not married. His father was a British citizen but his mother was not. Under the laws then in force he did not acquire British citizenship at birth. He obtained indefinite leave to remain in the UK in 1992 but he did not apply for permanent citizenship, despite a scheme which had been in place since 1987 that would have allowed him to do so on proof of paternity. In 2006 the law was changed to accord citizenship to illegitimate children with at least one British parent but the change in the law was not retrospective and Mr Johnson could not take advantage of it. In 2008 Mr Johnson was convicted of manslaughter. The Secretary of State for the Home Department, the respondent, issued a deportation order, which Mr Johnson challenged. The High Court found in favour of Mr Johnson. The Secretary of State appealed and the Court of Appeal set aside the High Court’s decision. This appeal considered the circumstances in which the Human Rights Act 1998 can be applied to causative events which occurred prior to its coming into force, but which are alleged to have continuing effect and whether a declaration of incompatibility with the ECHR can, and should be made, in respect of historic legislation (since repealed) which denied automatic British citizenship to illegitimate children with a British father and a non-British mother.
The Supreme Court unanimously allows the appeal, finding that Mr Johnson’s liability to deportation by reason of the accident of his birth outside wedlock is unlawfully discriminatory, in breach of his Convention rights. The consequence is that the certificate granted by the Secretary of State will be quashed and Mr Johnson’s appeal against the decision to deport him will be certain to succeed. The court also makes a declaration that the statutory requirement that a person in Mr Johnson’s position must also be of good character in order to be granted British citizenship is incompatible with Convention rights, pursuant to section 4 HRA.
Judgment: https://www.supremecourt.uk/cases/docs/uksc-2016-0042-judgment.pdf
• Guidance: Litigation debt, UK Visas and Immigration, 20 October 2016:
https://www.gov.uk/government/publications/litigation-debt
The Home Office has issued new guidance on what the Home Office should do when an applicant for entry clearance, leave to enter or leave to remain owes a litigation debt to the Home Office. Litigation debt is a debt owed to the Home Office where the court or Tribunal has ordered another party to pay its legal costs.
A power to refuse applications for entry clearance, leave to enter or leave to remain on the basis of litigation debt was added to the Immigration Rules and applies to applications made on or after 6 April 2016. The rule may not be applied to any applications made before 6 April 2016. The guidance does not apply to protection claims, claims of EEA nationals and their family members who apply under EEA regulations or nationality cases.
The document contains guidance on exercising discretion in an application before taking any decision to refuse, relevant factors to consider and evidence that may be requested.
• Guidance: Appeal review: APL07, UK Visas and Immigration, 17 October 2016:
https://www.gov.uk/government/publications/ecm-appeal-review-apl07
UK Visas and Immigration guidance for how it considers the grounds for appeal and supporting documents of an application.
• Guidance: Unaccompanied asylum seeking children and leaving care: funding instructions, UK Visas and Immigration, 19 October 2016:
https://www.gov.uk/government/publications/unaccompanied-asylum-seeking-children-uasc-grant-instructions
Instructions to local authorities about funding for the support and care of former and unaccompanied asylum seeking children (UASC).
• Urgent Question & Answer in Parliament: Child Refugee Age Checks
Today Philip Davies (Shipley) (Con) asked the Urgent Question: To ask the Minister for Immigration if he will make a statement on what age checks are being carried out on child refugees to ensure they are children.
The House of Commons Answer and ensuing debate is available here:
https://hansard.parliament.uk/commons/2016-10-21/debates/13F98FF0-997D-428D-AF64-8CB5C254FDD4/ChildRefugeesAgeChecks
The House of Lords repeated Answer and ensuing debate is here:
https://hansard.parliament.uk/lords/2016-10-21/debates/7A6AC310-48BA-434F-AD40-C9D99C66BA6C/ChildRefugeesAgeChecks