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- Tigere, R (on the application of) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57
Paragraph 49
“the appellant is clearly entitled to a declaration that the application of the settlement criterion to her is a breach of her rights under article 14, read with article A2P1, of the Convention. ...Such a declaration would leave the department in no doubt that this appellant is entitled to a student loan, while leaving it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of other applicants, now and in the future.”
- MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC)
1. The phrase “unduly harsh” in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
2. Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.
3. The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.
- Yusuf (EEA - ceasing to be a jobseeker; effect) [2015] UKUT 00433 (IAC)
An individual who has acquired the status of worker for the purposes of article 45 (ex Article 3) TFEU) (and thus regulation 4 (1) (a) of the Immigration (European Economic Area) Regulations 2006) only through being a jobseeker, who is a qualified person under regulation 6(1)(a), does not retain the status of worker on ceasing to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent.
The term ‘worker’ within article 45 covers, to a greater or lesser extent, not only actual workers but also:
(1) those entering a state for the first time to seek employment (‘first-time’ job seekers’)
(2) those who have had a job and are again seeking work (‘second-time job seekers’)
(3) vocational or occupational trainees; the involuntarily unemployed and sick;
(4) injured and retired workers; and,
(5) women who, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, give up work or jobseeking, provided they return to work or find another job within a reasonable period after the birth of the child.
- R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 00436 (IAC)
(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
(2) Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
- R (on the application of Oyekan) v Secretary of State for the Home Department IJR [2015] UKUT 00410(IAC)
Judicial Review dismissed; evidential requirements for proxy marriages under EEA law following Kareem and TA and Others (Kareem explained) Ghana discussed.
- R (on the application of Chirairo) v Secretary of State for the Home Department IJR [2015] UKUT 00411 (IAC)
Successful judicial review challenging refusal of leave to remain on the basis of inconsistent treatment with the claimant’s sister.
In 2006, the claimant and his sister were accepted as dependents on their father’s application for leave to remain as a student when their appeals were allowed by the Tribunal, the Tribunal taking into account the fact that the claimant had turned 18 years. The Home Office did not appeal and subsequently granted 5 months leave to the whole family. When the claimant’s father then applied for leave to remain as work permit holder, the family were granted leave as his dependents but the claimant was refused. In subsequent applications, the claimant’s parents were granted Indefinite Leave to Remain and his sister, who was by this time over 18 years, Discretionary Leave to Remain. The challenge was brought against refusal of the claimant’s application for Discretionary Leave to Remain in 2012 highlighting the distinction made between his case and that of his sister.
Judicial review was granted, the Tribunal holding: “This decision was only explicable on the basis that the Home Office had chosen, rather than following or appealing the judge’s decision, to side step it by granting a short period of leave and then disregarding it. That amounted to a clear disregard of the statutory appellate procedure and the decision must be set aside.”
- R (on the application of Hamasour) v Secretary of State for the Home Department (supplementary decision letter – effect) IJR [2015] UKUT 00414 (IAC)
The decision in Nash v Chelsea College of Art and Design [2001] EWHC 538 (Admin) may provide a useful tool on the issue of whether a supplementary decision letter amounts to a fresh decision, or whether it merely supplements the decision already made, and in relation to matters to be considered in terms of the effect of such a supplementary decision letter.
(i) The effect of the words “are to be refused” in paragraph 322 of the Immigration Rules is to render refusal of leave to remain the United Kingdom obligatory in cases where any of the listed grounds arises. The decision maker has no discretion.
(ii) The doctrine of substantive legitimate expectations is a nuanced, sophisticated one which should not be prayed in aid without careful reflection.
- NA and VA (protection: Article 7(2) Qualification Directive) India [2015] UKUT 00432 (IAC)
The word “generally” in Article 7(2) of Council Directive 2004/83/EC (the Qualification Directive) denotes normally or in the generality of cases. Thus the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and access to such system by the claimant may not, in a given case, amount to protection. Article 7(2) is non-prescriptive in nature. It prescribes neither minima nor maxima. The duty imposed on states to take “reasonable steps” imports the concepts of margin of appreciation and proportionality.
- R (on the application of GB by litigation friend, Francesco Jeff) v Oxfordshire County Council (age dispute- relevance of documents) IJR [2015] UKUT 00429 (IAC)
The duty of the Tribunal in disputed age assessments is to consider the evidence as a whole, including documentary evidence relied upon, even where there are a number of documents produced purporting to verify the claimed age. SA (Kuwait) v SSHD [2009] EWCA Civ 1157 considered.
- Jobseekers who do not find a job are not workers finds Upper Tribunal
Fortunately, the Upper Tribunal has clarified a pressing issue of European Union law for us in the case of Yusuf (EEA – ceasing to be a jobseeker; effect) [2015] UKUT 433 (IAC):
An individual who has acquired the status of worker for the purposes of article 45 (ex Article 3) TFEU) (and thus regulation 4 (1) (a) of the Immigration (European Economic Area) Regulations 2006) only through being a jobseeker, who is a qualified person under regulation 6(1)(a), does not retain the status of worker on ceasing to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent.
The term ‘worker’ within article 45 covers, to a greater or lesser extent, not only actual workers but also:
(1) those entering a state for the first time to seek employment (‘first-time’ job seekers’)
(2) those who have had a job and are again seeking work (‘second-time job seekers’)
(3) vocational or occupational trainees; the involuntarily unemployed and sick;
(4) injured and retired workers; and,
(5) women who, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, give up work or jobseeking, provided they return to work or find another job within a reasonable period after the birth of the child.
The Supreme Court has refused permission to appeal from the Court of Appeal in the linked medical treatment cases on Article 3 ECHR with the words:
“With regret, the Panel can foresee no reasonable prospect of this Court departing from N v SSHD.”.
In the Court of Appeal the cases were GS (India), EO (Ghana), GM (India), PL (Jamaica), BA (Ghana) & KK (DRC) v The Secretary of State for the Home Department [2015] EWCA Civ 40. The four whose appeals were dismissed by the Court of Appeal and who suffer from end stage kidney disease now face an early and unpleasant death within weeks following their removal from the United Kingdom. The others face very uncertain prospects as they try to obtain some form of treatment.
This Statement of Changes in immigration rules appeared on 13 July 2015 and came partially into effect on 14 July and 3 August 2015, with the remaining provisions coming into effect on 12 November 2015. Its main focus is students but it makes other significant changes.
Changes that took effect on 3 August 2015 mean that administrative review is withdrawn if a person makes a fresh application. This means that 3C leave ends for those in the UK. It means that a person is unable to pursue the correction of an error and thus remove a blot on their immigration history at the same time as moving forward with their application to come to the UK. It is presented in the Explanatory Memorandum to HC 297 as helpful. It hardly is.
New students at publicly funded further education colleges who apply after 12 November 2015 will be prevented from being able to work in the UK from 12 November 2015 and students at colleges will be unable to switch to a work visa or extend their study visa whilst they are in the UK. The time limit on further education study will be reduced from three years to two.
Other changes affect transit passengers, family and private life and returning residents. For example, applicants under Part 8 who fail to meet the requirements for leave to remain or indefinite leave to remain as a victim of domestic violence or as a bereaved partner will be allowed an administrative review. The income of an equity partner, e.g. in a law firm, will be allowed to be included as employment income for the purposes of Appendix FM-SE.
• Tier 2 Review
The Migration Advisory Committee is consulting on its review of Tier 2. A wide swathe of proposals are canvassed which, if implemented, would change the landscape for those coming to work in the UK. Tier 2 could be restricted to shortage occupations and “highly specialist experts.” Spouses and partners of Tier 2 workers could lose their automatic right to work in the UK. The intra-company transfer route, for so long the safety valve under Tier 2, is now ostensibly in the line of fire.
• Right to rent
Fuelled by the images from Calais, the Government is pressing ahead with its “hostile environment” agenda. The Immigration Bill is now expected when parliament returns and the Secretary of State for Communities and Local Government has said that it will contain proposals to allow landlords and landladies to evict tenants without leave to be in the UK more easily. A new criminal offence is proposed whereby those who repeatedly fail to conduct the “right to rent” checks or fail to take steps to remove those without leave to be in their property will face up to five years in prison. There will be blacklists of landlords and landladies.
• Asylum support
The Asylum Support (Amendment No.3) Regulations 2015 (SI 2015/1501) make dramatic cuts to asylum support for families with children with effect from 10 August 2015. All those receiving asylum support will now get the same weekly allowance of £36.95 per person. The effect is particularly dramatic in single-parent families: a single parent with two children will see their support reduced by over twenty-five per cent.
There will be more changes. The government is consulting on support under sections 95 and 4 of the Immigration and Asylum Act 1999. Inter alia, it proposes to repeal s 4(1) of the Act which makes provision for support for those granted bail, temporary admission or temporary release or otherwise released from detention and also to end the scheme under which families with children continue to receive s 95 support while they remain in the UK.
• Visa Requirements for Tier 1 [Requirement to produce criminal record], House of Commons 20 July 2015: Column 80WS
Visa Requirements for Tier 1 [Requirement to produce criminal record], House of Commons 20 July 2015: Column 80WS
The Minister for Immigration (James Brokenshire): “I am announcing today that from 1 September 2015, individuals who are applying for entry clearance as an entrepreneur or an investor under the tier 1 category will be required to provide a criminal record certificate from any country in which they have lived for 12 months or more in the previous 10 years.
Under the previous Government we changed the immigration rules to introduce a requirement to provide an overseas criminal record certificate where that is required. We will introduce this requirement in a controlled way and learn the lessons from implementation as we roll out the requirement to other categories of migrant.”.
• According to the recent Customer Service Operations, UK Visas and Immigration response, there is no deadline to lodge a reconsideration request following a refusal of a Naturalization application
• Beaurish Tigere in R (on the application of) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 (29 July 2015)
Success for The Supreme Court held, by a majority of three to two, that rules rendering persons with limited or discretionary leave for student loans discriminated against her and breached Article 14 of the European Convention on Human Rights read with Article 2 of the First Protocol to the Convention, the right to education. The Supreme Court held that requiring a person to be settled to be eligible for a student loan was not justified, but that the requirement of three years’ lawful ordinary residence was. The dissenting minority based their decision on the right to education’s not importing a right to financial support. It is left to the Department of Business, Innovation and Skill to devise a more carefully tailored criterion for student finance which will avoid breaching Convention rights of other applicants.
• R (on the application of Kuruwitage) v Secretary of State for the Home
Department IJR [2015] UKUT 0402 (IAC)
The claimant had leave as a Tier 4 student with a condition prohibiting employment. He was arrested and admitted under caution to undertaking unpaid voluntary work for 20 hours per week in breach of that condition. The Court held that the Home Office did not act ultra vires in seeking to remove the claimant under section 10(1)(a) Immigration and Asylum Act 1999 for breaching a condition attached to his limited leave rather than consider curtailing that leave giving rise to an in-country right of appeal. An out-of-country remedy was found to be sufficient in this case and the judicial review was dismissed.
• R (on the application of Shabani) v Secretary of State for the Home Department (Legacy – residence – SOS’s limited duty) IJR [2015] UKUT 0403 (IAC)
In giving effect to Chapter 53.1.2 of her Enforcement Instructions and Guidance, the respondent is not required to refer specifically to the particular period of residence. It is sufficient that the respondent can be seen to have been aware of the period of residence when applying the policy to the facts of the particular case.
(i) The public interest in firm immigration control is not diluted by the consideration that a person pursuing a claim under Article 8 ECHR has at no time been a financial burden on the state or is self-sufficient or is likely to remain so indefinitely. The significance of these factors is that where they are not present the public interest is fortified.
(ii) The list of considerations contained in section 117B and section 117C of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) is not exhaustive. A court or tribunal is entitled to take into account additional considerations, provided that they are relevant in the sense that they properly bear on the public interest question.
(iii) In cases where the provisions of sections 117B-117C of the 2002 Act arise, the decision of the Tribunal must demonstrate that they have been given full effect.
• R (on the application of Chirairo) v Secretary of State for the Home Department IJR [2015] UKUT 00411 (IAC)
This is a successful judicial review challenging refusal of leave to remain on the basis of inconsistent treatment with the claimant’s sister.
In 2006, the claimant and his sister were accepted as dependents on their father’s application for leave to remain as a student when their appeals were allowed by the Tribunal, the Tribunal taking into account the fact that the claimant had turned 18 years. The Home Office did not appeal and subsequently granted 5 months leave to the whole family. When the claimant’s father then applied for leave to remain as work permit holder, the family were granted leave as his dependents but the claimant was refused. In subsequent applications, the claimant’s parents were granted Indefinite Leave to Remain and his sister, who was by this time over 18 years, Discretionary Leave to Remain. The challenge was brought against refusal of the claimant’s application for Discretionary Leave to Remain in 2012 highlighting the distinction made between his case and that of his sister.
Judicial review was granted, the Tribunal holding: “This decision was only explicable on the basis that the Home Office had chosen, rather than following or appealing the judge’s decision, to side step it by granting a short period of leave and then disregarding it. That amounted to a clear disregard of the statutory appellate procedure and the decision must be set aside.”
• R (on the application of Hamasour) v Secretary of State for the Home Department (supplementary decision letter – effect) IJR [2015] UKUT 00414 (IAC)
The decision in Nash v Chelsea College of Art and Design [2001] EWHC 538 (Admin) may provide a useful tool on the issue of whether a supplementary decision letter amounts to a fresh decision, or whether it merely supplements the decision already made, and in relation to matters to be considered in terms of the effect of such a supplementary decision letter.
• MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC)
1. The phrase “unduly harsh” in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
2. Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.
3. The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.
(MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) at [46] and BM and others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) at [109] applied.)
• R (on the application of Bilal Ahmed) v Secretary of State for the Home
Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 00436 (IAC)
(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
(2) Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
• R (on the application of Naziri and Others) v Secretary of State for the Home Department (JR – scope - evidence) IJR [2015] UKUT 00437 (IAC)
(i) It is intrinsically undesirable that judicial review proceedings be transacted in circumstances where material evidence on which the Applicants seek to rely has not been considered by the primary decision maker.
(ii) There is a strong general prohibition in contemporary litigation against rolling review by the Upper Tribunal in judicial review proceedings.
(iii) Where a judicial review applicant is proposing to make further representations to the Secretary of State in circumstances where a new decision will forseeably be induced, it will normally be appropriate, to refuse permission or to dismiss the application substantively on the ground that it will be rendered moot and/or an alternative remedy remains unexhausted and/or giving effect to the prohibition against rolling review.
(iv) The principles rehearsed above are to be similarly applied to applications for permission to appeal to the Court of Appeal.
(v) Where a draft judgment is circulated in advance of handing down the function of parties and their representatives is confined to notifying mis-spellings, formatting defects, inadvertent factual errors, ambiguities of expression and kindred blemishes: Edwards & Ors R (on the application of) v Environment Agency & Ors [2008] UKHL 22 applied.
• Yusuf (EEA - ceasing to be a jobseeker; effect) [2015] UKUT 00433 (IAC)
An individual who has acquired the status of worker for the purposes of article 45 (ex Article 3) TFEU) (and thus regulation 4 (1) (a) of the Immigration (European Economic Area) Regulations 2006) only through being a jobseeker, who is a qualified person under regulation 6(1)(a), does not retain the status of worker on ceasing to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent.
The term ‘worker’ within article 45 covers, to a greater or lesser extent, not only actual workers but also:
(1) those entering a state for the first time to seek employment (‘first-time’ job seekers’)
(2) those who have had a job and are again seeking work (‘second-time job seekers’)
(3) vocational or occupational trainees; the involuntarily unemployed and sick;
(4) injured and retired workers; and,
(5) women who, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, give up work or jobseeking, provided they return to work or find another job within a reasonable period after the birth of the child.
(i) The effect of the words “are to be refused” in paragraph 322 of the Immigration Rules is to render refusal of leave to remain the United Kingdom obligatory in cases where any of the listed grounds arises. The decision maker has no discretion.
(ii) The doctrine of substantive legitimate expectations is a nuanced, sophisticated one which should not be prayed in aid without careful reflection.
• R (on the application of GB by litigation friend, Francesco Jeff) v Oxfordshire County Council (age dispute- relevance of documents) IJR [2015] UKUT 00429 (IAC)
The duty of the Tribunal in disputed age assessments is to consider the evidence as a whole, including documentary evidence relied upon, even where there are a number of documents produced purporting to verify the claimed age. SA (Kuwait) v SSHD [2009] EWCA Civ 1157 considered.
• R (on the application of Ali Ahmad Rashid) v The Secretary of State for the Home Department IJR [2015] UKUT 00430 (IAC)
Judicial review granted, quashing a decision not to accept submissions as a fresh claim in the case of an Iranian Kurd. It was not open to the Respondent to conclude that a report by Professor Joffé submitted by the claimant was not sufficient to depart from the country guidance findings. The three country guidance cases of SB, BA and SA do not deal with the risk on return of a Kurd who is a failed asylum seeker. Whilst an immigration judge would have to consider that the claimant has no credible history and that the report of Professor Joffé was a generic report prepared for another case, the report does address risk to Kurds not only on the basis of political activism but also simply by reason of being Kurds and so contains and refers to evidence that would have to be considered seriously by a judge.
• R (on the application of NK) v The Secretary of State for the Home Department IJR [2015] UKUT 00431 (IAC)
Successful judicial review challenging refusal to accept submissions as a fresh asylum claim brought by a Cameroonian woman fearing persecution as a lesbian from both the state and members of her family. The claimant’s case was dismissed at first instance and at appeal within the detained fast track process in 2013. Further evidence was subsequently obtained. This included a letter from an individual who had made enquiries in the country of origin about her situation and letters from members of a lesbian support group in the UK that the Home Office argued were self-serving. The Tribunal rejected the Home Office submissions and also refused permission to the Court of Appeal on these points. The Judge considered that whilst those writing the support letters place weight on what the applicant had told them, they also accepted that she was a lesbian based on their own experiences and their own sexuality. The Tribunal found that taking both the new evidence and the earlier evidence into account, it was not open to the Secretary of State to consider that there would not be a reasonable prospect of success before an Immigration Judge.
Решение European Court of Justice (EUCJ) в отношении Retained Right of Residence
Singh and Others (Judgment) [2015] EUECJ C-218/14 (16 July 2015)
The Grand Chamber of the European Court of Justice gave preliminary rulings in three cases referred by the High Court of Ireland and in which submissions from the European Commission and the Governments of the UK, Denmark, Greece, Spain and Poland were also considered. The Court ruled on the following issues:
1) whether, considering articles 7 and 13(2)(a) of EC Directive 2004/38/EC, a non-EU national may retain a right of residence on divorce if the divorce is preceded by the departure of their EU spouse from the host member state; and
2) whether the requirements of an EU national’s right to reside under article 7(1)(b) on the basis of having sufficient resources to avoid becoming a burden on the social assistance system of the host member state if those resources derive in part from their non-EU spouse;
1. Retention of the right of residence on divorce
Article 13 on the retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership provides at 13(2):
Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State […].
The purpose of article 13 is to provide legal safeguards for family members in the event of the death of the EU citizen, divorce, annulment of marriage or termination of a registered partnership, as indicated by recital 15 of the preamble to the directive.
In each of the three cases referred by the High Court of Ireland, the EU spouse had left the host member state and settled in another country before commencing divorce proceedings against their non-EU spouse remaining in Ireland. The Court considered whether the nonEU spouse retained their right of residence under article 13(2) in these circumstances.
The Grand Chamber held that the non-EU national cannot retain a right of residence in the Member State under that provision where divorce proceedings were preceded by the departure of the EU spouse from the host member state (§70).
The right of residence is retained under article 13(2) if the third country national has a right to reside under article 7(2) in the member state on the date of commencement of the divorce proceedings if the other conditions under article 13 are met (§61). If the EU spouse has left the member state, the third country national no longer meets the conditions for the right to reside under article 7(2) (§65) and so cannot claim the ‘retention’ of a right to reside under article 13 (§67).
The Court stated that this did not mean that Member States, which may grant more extensive protection, could not authorise continued rights of residence under its national laws (§68). The applicants in each of the three cases had been granted renewable temporary permission under national law which enabled them to legally reside and work in Ireland. 2
. Sufficient resources derived in part from non-EU spouse
In each of the three cases referred, there was found to be a period during which the EU spouse was not working in the Member State and the family was supported by the income derived from the business or employment of the non-EU spouse. For example, in the case of the Njume family, the non-EU spouse, Mr Njume supported his EU wife financially during a three-year period (§26).
The Court considered whether the requirements of the right to reside of the EU national under article 7(1)(b) of Directive 2004/38 on the basis of having sufficient resources were met where their income derived in part from the resources of their third country national spouse. Reflecting the framing of the question posed, the Court held that article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that an EU citizen has sufficient resources for himself and his family members even where these derive in part from those of their third country national spouse (§77).
The Court relied on its earlier decisions in Alokpa and Moudoulou, C-86/12, EU:C:2013:645 stating that the expression ‘have’ sufficient resources under article 7(1)(b) lays down no requirement whatsoever as to the origin of those resources, which may be provided by the third country national (§74); and in Zhu and Chen, C-200/02, EU:C:2004:639 stating that an interpretation of sufficiency of resources requiring these to be held by the EU citizen alone, without the resources of an accompanying family member, would be a disproportionate interference with the exercise of the right of freedom of movement as it was not necessary to achieve the objective of protecting public finances (§75).
Statement of changes in immigration rules HC 497 was published on 17 September. Briefly, the domestic workers in receipt of a “conclusive grounds” decision that they are victims of slavery or trafficking will be able to apply, within 28 days, for a period of leave of up to six months, with no recourse to public funds. This will allow them to work as a domestic worker.
Meanwhile changes are made to the allocation of Tier 2 certificates of sponsorship following the cap’s being reached. These create smaller salary bands and also allow the Secretary of State to reclaim unused certificates of sponsorship and return them to the limit. There are minor changes to the visitor rules affecting applicants from Vietnam and Zimbabwe.
• Judicial review
The Administrative Court Office issued a new form N463 for applications for urgent consideration in Judicial Review on 04 September 2015.
The Upper Tribunal (Immigration and Asylum Chamber) has updated forms T480, T481 and T485 for Judicial Reviews lodged with the Upper Tribunal. The forms now direct that failure to provide form T485 to the Upper Tribunal within nine days of lodging the application for judicial review will lead to proceedings being struck out automatically.
It seems that the automatic strike out of an application is a disproportionate measure, particularly in the case of litigants in person.
• Changes to "User pays" visa application centres from 1 September 2015
From 1 September, the Home Office is "converting" some visa application centres into "User pays" centres. Applicants will pay a £52 fee to use the application centre, in addition to their visa application fee.
The affected visa application centres are:
• Al Khobar, Saudi Arabia
• Jalandhar, India
• Osaka, Japan
• Jinan, China*
• Izmir, Turkey
• Rostov, Russia
• Dusseldorf, Germany
• Zurich, Switzerland
• Madrid, Spain
• Rome, Italy
• Warsaw, Poland
*Jinan will convert to a user pays centre on 1 October.
The Home office says:
"The £52 fee only covers the cost of operating application centres in these locations and ensures that customers do not have to travel long distances, or to another country, to apply for a visa.
The fee will apply at all user pays centres and is a reduction from what is currently charged at existing user pays centres in nearly 100 other locations."
The fee will apply to all applications submitted and paid for after midnight (UK time) on 1 September.
• R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 00436 (IAC)
(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
(2) Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
• R (on the application of Myrie) v Secretary of State for the Home Department IJR [2015] UKUT 00464 (IAC)
Judgment of Coker, J in a Judicial Review of the Secretary of State’s decision refusing the Claimant’s application for Leave to Remain on the basis of Article 8 ECHR rights to private and family life.
This was another case in which the Secretary of State had served two further decisions after permission for judicial was granted with her detailed grounds of defence. The Tribunal found that the two supplementary decision letters were not part of the original decisionmaking process and that the original decision was unlawful for failing to give adequate consideration to the applicant’s family life or the best interests of the children involved.
However, instead of quashing the decision (see for example this approach taken by the Judge in R(AB) v Secretary of State for the Home Department IJR [2015] UKUT 00352 (IAC), case note in the reported determinations of the July 2015 mailing), the Judge held that the two supplementary letters were relevant to the question of remedy which was 2 discretionary in Judicial Review. The Judge found that as the two supplementary decisions considered all the matters that the Secretary of State had not previously addressed and the Claimant’s case had therefore been considered, the Judicial Review must fail.
• BM (false passport) DRC [2015] UKUT 00467 (IAC)
The mere fact that an asylum claimant utilised a false passport or kindred document in departing the DRC will not without more engage the risk category specified in [119(iv)] of BM and Others (Returnees: Criminal and Non-Criminal) DRC CG [2015] 293 (IAC). The application of this guidance will be dependent upon the fact sensitive context of the individual case. The Tribunal will consider, inter alia, the likely state of knowledge of the DRC authorities pertaining to the person in question. A person claiming to belong to any of the risk categories will not be at risk of persecution unless likely to come to the attention of the DRC authorities. Thus in every case there will be an intense focus on matters such as publicity, individual prominence, possession of a passport, the standard emergency travel document arrangements (where these apply) and how these matters impact on the individual claimant.
• Amirteymour and others (EEA appeals; human rights) [2015] UKUT 00466 (IAC)
Where no notice under section 120 of the 2002 Act has been served and where no EEA decision to remove has been made, an appellant cannot bring a Human Rights challenge to removal in an appeal under the EEA Regulations. Neither the factual matrix nor the reasoning in JM (Liberia) [2006] EWCA Civ 1402 has any application to appeals of this nature.
• Abbasi and another (visits – bereavement – Article 8) [2015] UKUT 00463 (IAC)
1. The refusal of a visa to foreign nationals seeking to enter the United Kingdom for a finite period for the purpose of mourning with family members the recent death of a close relative and visiting the grave of the deceased is capable of constituting a disproportionate interference with the rights of the persons concerned under Article 8 ECHR.
2. The question of whether Article 8 applies and, if so, is breached will depend upon the fact sensitive context of the particular case. 3. The Tribunal should adopt a structured and sequential approach to the Article 8 issues.
1. In visit appeals the Article 8 decision on an appeal cannot be made in a vacuum. Whilst judges only have jurisdiction to decide whether the decision is unlawful under s.6 of the Human Rights Act 1998 (or shows unlawful discrimination) (see Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) and Adjei (visit visas – Article 8)[2015] UKUT 0261 (IAC)), the starting-point for deciding that must be the state of the evidence about the appellant’s ability to meet the requirements of paragraph 41 of the immigration rules.
2. The restriction in visitor cases of grounds of appeal to human rights does not mean that judges are relieved of their ordinary duties of fact-finding or that they must approach these in a qualitatively different way. Where relevant to the Article 8 assessment, disputes as to the facts must be resolved by taking into account the evidence on both sides: see Adjei at [10] bearing in mind that the burden of proof rests on the appellant.
3. Unless an appellant can show that there are individual interests at stake covered by Article 8 “of a particularly pressing nature” so as to give rise to a “strong claim that compelling circumstances may exist to justify the grant of LTE [Leave to Enter] outside the rules”: (see SS (Congo) [2015] EWCA Civ 387 at [40] and [56]) he or she is exceedingly unlikely to succeed. That proposition must also hold good in visitor appeals.
• R (on the application of SS) v Secretary of State for the Home Department (declaratory orders) IJR [2015] UKUT 00462 (IAC)
(i) The Upper Tribunal has a discretion to make a declaration under section 15(1)(d) of the Tribunals, Courts and Enforcement Act 2007. In common with all remedial orders in judicial review proceedings, this lies within the discretion of the Tribunal.
(ii) In deciding whether to make a declaration the Tribunal should bear in mind the educative and corrective function of judicial review. Furthermore, where a challenge exposes that a public authority has acted unlawfully, a declaration will normally be appropriate in circumstances where a quashing, mandatory or prohibitory order is an inappropriate form of relief.
• R (on the application of Lewis) v Secretary of State for the Home Department IJR [2015] UKUT 00482 (IAC)
Unsuccessful judicial review of the Secretary of State's decision not to grant leave to remain under paragraph 276ADE Immigration Rules or Article 8 European Convention on Human Rights. The Claimant was a Jamaican national and had lived in the UK for all her adult life, a period of 13 years. Her father was a British citizen, her mother had Indefinite Leave to Remain and her siblings also resided in the UK, all but one holding British citizenship. She spent time with her family every week. The Claimant was educated to Masters degree level, had been employed in the UK, volunteered as a bereavement counsellor and was active in her local church. It was argued she no longer had any ties to Jamaica. The Secretary of State argued that she had spent the first 18 years of her life in Jamaica and had completed primary and secondary education there. The Claimant’s relationship with her parents and siblings did not fall within the meaning of family life under Appendix FM and did not go beyond the normal emotional ties between parents and siblings. Her education and employment in the UK would assist her in establishing herself in Jamaica and her life in the UK was developed in the knowledge that her status was unlawful. It was held that the application related to a disagreement with the assessment of the Secretary of State rather than irrationality or illegality on her part. The case of Ogundimu, which related to a statutory appeal of someone who had lived in the UK since the age of 6 years, could not be relied upon.
• R (on the application of Msiza) v Secretary of State for the Home Department IJR [2015] UKUT 00483 (IAC)
Claim for Judicial Review against decision to refuse leave to remain under paragraph 276ADE and article 8 European Convention on Human Rights dismissed. The claimant was unrepresented for the hearing and did not attend herself. The case proceeded in her absence. The Court held that there was no unlawfulness in the Secretary of State’s original decision. The Claimant was a South African national and had lived 15 years of her life there. The absence of family members in the country of origin was not determinative. She could reestablish contact with her stepmother once in South Africa and would be capable of living independently. The second decision made by the Secretary of State in response to the grant of permission for judicial review was held to be a continuation of the first decision considering the factors articulated in Hamasour and Nash, but it was also the case that it contained no error of law.
• R (on the application of Hussain) v Secretary of State for the Home Department IJR [2015] UKUT 00486 (IAC)
Decision of Ockelton, J, Vice President of the Upper Tribunal (Immigration and Asylum Chamber) in an unsuccessful judicial review of the Secretary of State's decision to make a deportation order under s,3(5)(a) of the Immigration Act 1971 on the grounds that she deemed it to be conducive to the public good to deport the applicant from the United Kingdom. The Claimant had 29 convictions for 49 known offences. The application of Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00282 was considered. There had been two previous Tribunal judgments in the case, the first Tribunal finding that the Claimant did not have ties to Bangladesh, his country of origin. The Claimant had argued that following Devaseelan, the Judge of the second Tribunal was not entitled to depart from the findings of the first Tribunal. Though no legal error on the part of the second Judge could be argued, it was submitted that the Secretary of State was obliged to rely on the first Tribunal decision as the starting point for her decision. These arguments were rejected. The Devaseelan guidelines are addressed to Judges not the Secretary of State. The starting point is that the earlier judicial determination is not binding on the second Judge whilst it must be taken into account. Devaseelan has effect at the point at which the Judge takes the second decision. The Secretary of State is required to act on a final judicial decision following R v SSHD ex parte Mersin [2000] EWHC 348 (Admin) and other cases. Further, Devaseelan did not deal with the situation where there were two judicial decisions with conflicting conclusions and there was no reason for a third decisionmaker not to treat the older decision as the starting point. The appropriate remedy would have been an appeal of the second Tribunal decision. On the facts of the case, no injustice was caused to the Claimant as the findings of the second Judge were sustainable given the changed position at that time.
• R (on the application of Sharma) v Secretary of State for the Home Department IJR [2015] UKUT 00484 (IAC)
Unsuccessful judicial review of a decision of the Secretary of State taken in February 2014 to refuse leave to remain on Article 8 ECHR grounds. No unlawfulness was found on public law grounds. It was also held not to be unfair for the Secretary of State not to have served an appealable decision. The legislative regime prior to April 2015 did not confer a right of appeal in the circumstances of the case. The claimant did not fall within the exceptions following the implementation of the Immigration Act 2014 that applied where reconsideration of a case was outstanding. Whilst the respondent’s arguments on what constituted exceptional and compelling circumstances were circular, the claimant’s case did not come close to amounting to such circumstances. The Secretary of State’s delay in decision-making was to be deprecated but did not make her decision unlawful. It was not unfair to require the applicant to make another application and pay a fee for her case to be reconsidered and be granted a right of appeal. The applicant was an overstayer, had come to the UK without expectation of being able to remain and her case had been considered twice by the Secretary of State.
• R (on the application of Bah) v Secretary of State for the Home Department IJR [2015] UKUT 00518 (IAC)
Dismissal of a judicial review against the decision to grant Discretionary Leave to Remain instead of Indefinite Leave to Remain to an applicant relying on a letter received from the Home Office notifying that her case would be considered under the legacy programme.
It was held that the letter received by the applicant did not make a clear, unambiguous promise that her case would be reviewed by July 2011 or 20 July 2011. The case therefore fell within the generality of cases dismissed in R (Geraldo) v Secretary of State for the Home Department [2013] EWHC 2763 (Admin). The language employed in the letter was not accepted as evidencing a clear, unambiguous promise; the variations of wording in the general letters sent to applicants did not have significance; and whilst R (Kadyamarunga) v Secretary of State for the Home Department [2014] EWHC 301 (Admin) could be distinguished on its from Geraldo, where there is conflict, Geraldo is to be preferred.
Though the claim failed on the above question, the submissions on the other points of dispute were set out in the judgment at the request of the parties and the Judge offered observations on these (obiter).
The Judge considered that a promise to review an applicant’s case by July 2011 would not provide a basis for concluding that a promise was made to review the case by 20 July 2011, the date of the policy change. The opinion expressed by John Vine that applicants would have a reasonable expectation that their case would be considered by July 2011 is not binding on the Court and cannot be reconciled with Geraldo.
The applicant would not have a legitimate expectation that the exceptions in paragraph 4.2 of the Discretionary Leave Policy version 6 in place from 24 July 2013 applied to her case and Indefinite Leave to Remain granted as she had not received a clear, unambiguous promise that her case would be dealt with by 20 July 2011. It was rejected in Geraldo that there were or should be other exceptions. It was also stated in Geraldo that there was no evidence before the Court to support the proposition that there was a general undertaking given to deal with legacy or other cases differently from the normal policy guidance.
Finally, whilst the Secretary of State has a residual discretion to depart from policy in ‘compelling’ exceptional circumstances, similar arguments based on fairness were rejected in Geraldo.
• MC (Essa principles recast) Portugal [2015] UKUT 00520 (IAC)
1. Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
2. It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).
3. There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) (Essa (2013) at [23]).
4. Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed (Essa (2013) at [32]-[33]).
5. Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime (Essa (2013) at [35]), not the mere possibility of rehabilitation. Mere capability of rehabilitation is not to be equated with reasonable prospect of rehabilitation.
6. Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) ((Dumliauskas [41]).
7. Such prospects are to be taken into account even if not raised by the offender (Dumliauskas [52]).
8. Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State (Dumliauskas [46], [52]-[53] and [59]).
9. Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like (Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation (Dumliauskas [55])
10. In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor (Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence (Dumliauskas at [46] and [54]).
(i) Sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002 are not confined to an appeal under section 84(1)(c). They apply also to appeals brought under section 84(1)(a) and (g).
(ii) Section 117B(4) and (5) of the 2002 Act, which instruct Judges to attribute “little weight” to the considerations specified therein, do not give rise to a constitutionally impermissible encroachment on the independent adjudicative function of the judiciary.
(iii) A private life “established”, in the wording and in the context of section 117B(4) and (5) of the 2002 Act, is not to be construed and confined to the initiation, or creation, of the private life in question and not its continuation or development. (iv) The adjective “precarious” in section 117B(5) of the 2002 Act does not contemplate only, and is not restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which permits no expectation of a further grant.
Some categories below are mutually exclusive, but the priority will be, subject to above
1) Detained appellants, (including bail)
2) Deprivation of Citizenship
3) Appeals involving children, (including those linked to a parents appeal), both in and out of country
4) Asylum appeals
5) Other appeals
Currently it takes about 8-9 months for the appeal to be heard from the date the appeal is lodged to the IAC, and the gap is growing
• Police Registration using the 30 day visa (to collect the migrant’s BRP card)
• R (on the application of Turay) v Secretary of State for the Home Department IJR [2015] UKUT 00485 (IAC)
Judgment of Ockelton, J dismissing a judicial review of the Secretary of State’s decision to refuse leave to remain as a spouse under Appendix FM.
The challenge was brought on the basis on the basis that the Secretary of State failed to interpret the rules in light of Article 8 of the European Convention on Human Rights and make further enquiries in order to reach a lawful decision in this case where the claimant had made their initial application without representation.
The Court held that there was no basis on which the Secretary of State should have investigated whether there were insurmountable obstacles to family life abroad. The claimant had ticked the box on the form indicating that she and her husband could live together outside the UK if necessary, there was no further information in the application to indicate that was a mistake and no basis for the Secretary of State to override that assertion. The argument that the Secretary of State failed to ask appropriate questions and consider whether paragraph 276ADE of the Immigration Rules on long residence applied instead was also unsuccessful.
• Weldemichael and another (St Prix [2014] EUECJ C-507/12; effect) [2015] UKUT 00540 (IAC)
An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations) for a period in which she was absent from working or job-seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJEU in Jessy St Prix:
(a) at the beginning of the relevant period she was either a worker or seeking employment;
(b) the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);
(c) the relevant period did not extend beyond 52 weeks; and,
(d) she returned to work.
So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.
• Barry (conduct of hearing) [2015] UKUT 00541 (IAC)
In appropriate cases, for example appeals in which the grounds and arguments involve an unmeritorious challenge to the rationality of the decision of the FtT, Upper Tribunal Judges, bearing in mind the overriding objective, should not hesitate to determine the appeal without hearing from the Respondent’s representative.
The Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of s117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.
• Tigere, R (on the application of) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57. Supreme Court upholds challenge to student loan blanket ILR eligibility requirement.
Paragraph 49
“the appellant is clearly entitled to a declaration that the application of the settlement criterion to her is a breach of her rights under article 14, read with article A2P1, of the Convention. ...Such a declaration would leave the department in no doubt that this appellant is entitled to a student loan, while leaving it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of other applicants, now and in the future.”
· Statement of changes to the Immigration Rules HC535 - более подробно
A detailed note on the Statement of Changes in the Immigration Rules HC535, published on 29 October 2015, is enclosed with this mailing.
On asylum, significant changes are made to the revocation of or refusal to renew Refugee Status or Humanitarian Protection that will be applicable to decisions on cases made from 19 November 2015. Asylum claims from EU nationals are also to be considered invalid unless exceptional circumstances apply.
The definition of a case working error for the purpose of administrative review is expanded to include where the original decision-maker’s decision not to request specified documents under paragraph 245AA of the Rules (to correct minor omissions) was incorrect. The rules allow applicants to submit evidence that was not before the original decision-maker to demonstrate this case working error and enable reviewers to request such documents. This is likely to be a response to the judgment in Mandalia v Secretary of State for the Home Department [2015] UKSC 59.
Changes to the Rules on family and private life will require an EEA national to hold a valid document confirming their right of permanent residence in order to meet the requirement of ‘present and settled in the UK’ for applications under the family Immigration Rules. The Rules also make provision for refusal of a child’s application for entry clearance where the Secretary of State considers that the sponsor or their partner poses a risk to the child.
Amendments are made the evidential requirements for applications under the various categories of Tier 1 of the Points Based System. There are also changes affecting sportspersons in Tiers 2 and 5 and charity workers in Tier 5.
Among changes relating to Tier 2 of the Points Based System, nurses are being added to the Shortage Occupation List on an interim basis pending a more detailed examination by the Migration Advisory Committee as to whether there is a national shortage of nurses or specific nursing job titles. The Migration Advisory Committee has issued a call for evidence on nursing shortages with a deadline of 31 December 2015. The change means that nurses will be exempt from the Resident Labour Market Test and given higher priority in the allocation of restricted certificates of sponsorship. It also means that nurses will be exempt from the earnings threshold when they apply for settlement and this exemption will apply to nurses currently sponsored in Tier 2 even if nurses are removed from the Shortage Occupation List following the outcome of the review.
Finally, there is a welcome clarification of the visitor rules allowing visitors to undertake a maximum of 30 days study and 30 days volunteering with a registered charity (each) provided that these are not the main purpose of their visit.
Tier 1
The Migration Advisory Committee has published its report on the Tier 1 (Entrepreneur) category. It is very positive about graduate entrepreneurs; very negative about the Tier 1 (Entrepreneur) category. At the same MAC recommended that the “genuineness” test be scrapped and replaced by an assessment by industry experts. There is also interesting information about the likelihood that international trade links are one of the main benefits that Tier 1 entrepreneurs bring where they are investing into established UK businesses. Meanwhile Professor Sir David Metcalf, giving evidence to the Home Affairs Select Committee, said of the Tier 1 Investor visa “You are not selling passports, you are selling settlement, but right now we are giving it away. We are giving settlement away.” He described it as “absolutely not fit for purpose.” He pointed out that the investor is paid interest on his/her money which, when citizenship is obtained, is given back to the investor. This he did not see as a good deal for the taxpayer.
Transparency International has brought out a report Gold Rush: Investment visas and corrupt capital flows into the UK which identifies that the Tier 1 (Investor) visa has been used for corrupt capital flows into the UK, particularly from China and Russia. The report, citing the National Crime Agency and the Financial Times, identifies that
“…suspicious activity reporting of money laundering is low to negligible. This is particularly concerning for professional gatekeeper sectors, such as accountancy and law that have been rated by the Home Office and HM Treasury as ‘high risk’ in term of vulnerability to money laundering. The National Crime Agency have repeatedly highlighted a concern with poor quality reporting of money laundering suspicions from across the private sector, particularly from the legal sector.
Nationality
The British Nationality (General) (Amendment No. 3) Regulations 2015 (2015/1806) come into force on 12 November 2015. The big change is that applicants relying upon an EU right of permanent residence in the United Kingdom for nationality law purposes must provide with their application a valid permanent residence card or document certifying permanent residence or a residence permit or residence document issued under the Immigration (European Economic Area) Regulations 2000 (SI 2006/1003) which is endorsed under the immigration rules to show permission to remain in the United Kingdom without limit of time. This prevents those fed up with delays and mistakes in EEA casework from cutting to the chase and going straight to the Nationality Directorate which has historically been more reliable in such matters.
• The Supreme Court found a duty on the Secretary of State to apply its policy of evidential flexibility in Mandalia v Secretary of State for the Home Department [2015] UKSC 59
The Court of Appeal has given its judgment on the interpretation of section 94B of the Nationality, Immigration and Asylum Act 2002 (the ‘deport first appeal later’ provisions) in R (Kiarie and Byndloss v Secretary of the State for the Home Department) [2015] EWCA Civ 1020.
• In VS v the Home Office [2015] EWCA Civ 1142, the Court of Appeal provides helpful dicta on the construction of Home Office policies on assessing age and on the detention of children who are age disputed.
1. The decision of the Tribunal in Basnet v SSHD [2012] UKUT 0113 (IAC) does not put the burden of proof on the Secretary of State where the application was, on its face, insufficiently completed. 2. The evidence shows that the payment pages are retained for 18 months. Thus, within that period, any question of the reason for failure to obtain payment can be investigated, although the reasons for declining a payment are available only to the bank account holder, not the Secretary of State. In the light of this, a more nuanced approach to the burden of proof may be needed.
(i) The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen’s EU rights as defined in Article 20.
(ii) The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.
(iii) The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen’s standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.
(iv) The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.
The Queen (Babbage) v SSHD [2016] EWHC 148 (Admin) - In a judgment handed down on 1 February 2016 Mr Justice Garnham gave detailed reasons for his decision, announced on 15 December 2015, that the continued detention of a Zimbabwean national who had been administratively detained by the SSHD for more than two years was unlawful.
A person sentenced to a term of 12 months imprisonment made up of consecutive terms is not a ‘foreign criminal’ within the meaning of the deportation provisions of the Immigration Rules and is not therefore subject to paragraph 398 of those Rules.
R (on the application of Reah) v Secretary of State for the Home Department IJR [2016] UKUT 00055 (IAC)
Grubb, J dismisses this judicial review of a refusal to grant leave to remain outside the Immigration Rules under Article 8 of the European Convention on Human Rights.
The appellant was a Canadian national who entered the UK with entry clearance based on UK ancestry but subsequently overstayed when she did not renew her leave to enter. Her application was based on her family life with her three adult step-children from her first relationship and her family life with her current partner and his child. She had lived with and cared for her step-children for nine years, including after her first partner’s death. The eldest was now 24 years old but all three step-children lived with her and one had continuing needs as a result of his ADHD condition. She did not live with her new partner and his child as they wanted to acclimatise the children to their relationship before moving in together.
The judge found that the Secretary of State had properly considered the applicant’s family life with her three step-children and that despite the tragic circumstances, these were not exceptional or compelling. Their relationships were close, cemented through the loss of their father and her support, but there was no evidence to suggest that they were not growing towards making their own way in the world. In relation to the applicant’s family life with her new partner, the judge accepted that Appendix FM does not address all the issues in a relationship that is a close one but does not involve cohabitation. However, the judge found that she would fail to establish that there ‘exceptional’ or ‘compelling’ circumstances based on her relationship. She had formed the relationship when she had no expectation of remaining in the UK and for the most part when she was living unlawfully in the UK. The judge also found that the Secretary of State had fully considered the best interests of the child in her response to the pre-action protocol letter making this issue academic.
MSM and others (wasted costs, effect of s.29(4)) [2016] UKUT 00062 (IAC)
Section 29(4) of the Tribunals, Courts and Enforcement Act 2007 results in the Upper Tribunal having powers in relation to the making of wasted costs orders (as defined in section 29(5)) which are not subject to the limitations in s.29(3) or r.10 of the Tribunal Procedure ( Upper Tribunal) Rules 2008.
R (on the application of Bhudia) v Secretary of State for the Home Department (para 284(iv) and (ix)) IJR [2016] UKUT 00025 (IAC)
(i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom.
(ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful.
(iii) The requirement previously enshrined in paragraph 284(ix)(a) of the Immigration Rules that an applicant provide an English Language test certificate in specified terms is satisfied where the applicant has already provided a certificate of this kind to the Secretary of State which has been accepted as valid.
(iv) The jurisdiction of the Upper Tribunal in judicial review proceedings to determine any of the issues raised is not extinguished by the Secretary of State’s withdrawal of the decision under challenge: R v Secretary of State for the Home Department, ex parte Salem [1999] AC 450 applied.
· If a visa or a migrant’s passport is lost overseas: https://www.gov.uk/government/publications/transferring-a-visa-to-a-new-passport-ecb17/transferring-a-visa-ecb17
Important point: “If required, you may ask for supporting documentation to establish that their circumstances have not changed. ECOs should use i-search to obtain information on an applicant’s leave granted in the UK. If information is not available on i-search you must make a referral to Evidence and Enquiry.”
· Handbook on European law relating to asylum, borders and immigration, aimed at non specialist lawyers from the European Union Agency for Fundamental Rights covering EU and ECHR law on 3rd country nationals (not EEA citizens): http://www.echr.coe.int/Documents/Handbook_asylum_ENG.pdf
· The Court of Appeal has returned to the issue of “totally without merit” certificates in judicial review cases. These certificates can be imposed by a judge who refuses permission
for an application for judicial review on the papers and it prevents the applicant from seeking an oral hearing. There is a right of appeal to the Court of Appeal but with no right to an oral hearing: http://www.bailii.org/ew/cases/EWCA/Civ/2016/82.html
· Tribunal interprets spouse extension rule on overstay, required documents and language certificate:
(i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom.
(ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful.
(iii) The requirement previously enshrined in paragraph 284(ix)(a) of the Immigration Rules that an applicant provide an English Language test certificate in specified terms is satisfied where the applicant has already provided a certificate of this kind to the Secretary of State which has been accepted as valid.
(iv) The jurisdiction of the Upper Tribunal in judicial review proceedings to determine any of the issues raised is not extinguished by the Secretary of State’s withdrawal of the decision under challenge: R v Secretary of State for the Home Department, ex parte Salem[1999] AC 450 applied.
·
The big change is to interview policy. Shockingly for a protection application, and contrary to UNHCR guidance, the Home Office has given itself power to refuse without an interview. The guidance says:
An interview will normally be arranged to assist the applicant to fully set out their case for being considered stateless and to submit any other relevant evidence. In other instances, questions about evidence submitted as part of the application may be resolved through additional written communications.
Where the applicant does not complete all relevant sections of the application form, caseworkers may request the missing information by writing to the applicant or their legal representative if they have one.
A personal interview will not be required if there is already sufficient evidence of statelessness, it is clear that the individual is not admissible to another country, and is eligible for leave to remain on this basis. An interview will not be arranged, and the application may be refused, where recent and reliable information including the applicant’s previous evidence or findings of fact made by an immigration judge, have already established that the applicant is not stateless or is clearly admissible to another country for purposes of permanent residence and where no evidence to the contrary has been provided.
If the applicant fails to attend an interview without a reasonable explanation or fails to reply to a written request for information, the application may be refused on the basis that they have failed to provide the required evidence, taking into account the general grounds for refusal in paragraph 322 (9) and(10) of the Immigration Rules.
Interviews will be conducted and recorded in accordance with the standards set out in the published policy on Asylum Interviews.
The other significant change is on voluntary renunciation where the guidance now states
…The question of an individual’s free choice is not relevant when determining eligibility for recognition as stateless under Article 1(1) of the 1954 Convention, even if it appears that the applicant may have been motivated by the prospect of securing leave to remain as a stateless person. The applicant must nevertheless be asked the reason for renunciation and the possibility of re-acquiring that nationality must be examined very carefully in such cases.
Loss of nationality and consequential statelessness will not necessarily prevent re-admission to the country concerned. Where there is evidence to suggest that someone has deliberately renounced nationality in an attempt to benefit from stateless provisions, and there remains an option for them to approach the relevant State State to reacquire their former nationality, the stateless application should be refused.
• According to the UK BA, it is possible to backdate Permanent Residence status date, provide the application is successful and the applicant provides sufficient documentary evidence and a corresponding note with the application, requesting to back date the Permanent Residence Certificate date. This backdating may help an EEA national to apply for Naturalization much quicker
(i) There is no hierarchy of weight or importance in the various considerations recited in regulation 21(6) of the EEA Regulations. The weight to be attributed to each factor will vary according to the fact sensitive context of the individual case.
(ii) Where it is contended that the decision maker and/or the First-tier Tribunal (FtT) has acted in contravention of section 55 of the Borders, Citizenship and Immigration Act 2009, the Upper Tribunal will scrutinise the degree of engagement with all material evidence and, in particular, will search for clear findings in the decision of the FtT of what the best interests of any affected child are.
(iii) Article 24(3) of the EU Charter of Fundamental Rights creates a free standing right (although not absolute).
(iv) Where this right is engaged, a failure by the decision maker and/or the FtT to acknowledge it and to decide accordingly may constitute a material error of law.
• R (on the application of Kasicky) v Secretary of State for the Home Department (Reg 29AA: interpretation) IJR [2016] UKUT 00107 (IAC)
1. In reg 29AA(3) of the Immigration (European Economic Area) Regulations 2006, the word “appearance” refers to P’s formal presence at his appeal.
2. In ascertaining whether the exception in reg 29AA applies, the possibility of managing risk by detention or conditions is a factor to be taken into account.
Indefinite Leave to Remain - calculating absence - changes from 6 April 2016
Applications for settlement made before 6 April 2016:
You can include time between your entry clearance being granted and your entering the United Kingdom as part of your continuous period but only if the delay is less than 90 days.
Absences between the date entry clearance is granted and the date you enter the United Kingdom are not treated as an absence from the United Kingdom and do not form part of the 180 days allowed within the relevant 12 month period.
If the delay is more than 90 days, the earliest date you can include in your continuous period will be the date you enter the United Kingdom.
Applications for settlement made on or after 6 April 2016:
You can include time between your entry clearance being granted and you entering the United Kingdom as part of your continuous period.
Absences between the date entry clearance is granted and the date you enter the United Kingdom are treated as an absence from the United Kingdom and will form part of the 180 days allowed within the relevant 12 month period.
For example, if you entered the United Kingdom 100 days after you obtained entry clearance and have a further 81 days absence during the remainder of that 12 month period, you will have exceed the number of absences permitted from the United Kingdom.
Example: see Tier 1 (Entrepreneur) Policy Guidance version 11/2015 - page 54
- It may be possible to succeed in getting a retained right of residence card for a non-EEA national was a durable partner (unmarried) of an EEA national, but whose relationship broke down due to domestic violence. There is no actual provisions in the Directive or the Regulations for this, but it has been reported that a recent court challenge was successful, with the lawyers managing to argue that it was discrimination based on the comparable situation with unmarried partners under the immigration rules
The calculator was originally developed to assist those applying through the points based system (Tiers 1, 2, 4 and 5). However, the Immigration Rules and the way in which applications are made have evolved significantly over recent years. This means that the calculator is no longer cost-effective to manage and maintain.
The calculator helps applicants assess whether they may be eligible to work or study in the UK under the points-based system. It also indicates whether an overseas qualification meets the academic and English language requirements, within the Immigration Rules.
From the above date, applicants requiring guidance on whether they are eligible should assess their circumstances against the criteria on the UKVI website at www.gov.uk/browse/visas-immigration.
Those submitting an application on or after 6 April 2016, who wish to use an overseas qualification to support their immigration application, will need to obtain a statement from UK National Recognition Information Centre (UK NARIC). Applicants will need to contact and pay UK NARIC directly for this. For further details visit www.naric.org.uk/visasandnationality
Комментарии
Раньше такого не встречал.
Получили очередной approval по заявлению клиентки и ее ребенка на гражданство.
UK BA пишет, что "It is Home Office policy not to return a Life in the UK Pass Notification Letter where a person is granted British citizenship. In accordance with this policy, your Pass Notification Letter has been retained".
Обратите внимание.
Case-law:
- Tigere, R (on the application of) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57
Paragraph 49
“the appellant is clearly entitled to a declaration that the application of the settlement criterion to her is a breach of her rights under article 14, read with article A2P1, of the Convention. ...Such a declaration would leave the department in no doubt that this appellant is entitled to a student loan, while leaving it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of other applicants, now and in the future.”
- MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC)
1. The phrase “unduly harsh” in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
2. Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.
3. The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.
- Yusuf (EEA - ceasing to be a jobseeker; effect) [2015] UKUT 00433 (IAC)
An individual who has acquired the status of worker for the purposes of article 45 (ex Article 3) TFEU) (and thus regulation 4 (1) (a) of the Immigration (European Economic Area) Regulations 2006) only through being a jobseeker, who is a qualified person under regulation 6(1)(a), does not retain the status of worker on ceasing to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent.
The term ‘worker’ within article 45 covers, to a greater or lesser extent, not only actual workers but also:
(1) those entering a state for the first time to seek employment (‘first-time’ job seekers’)
(2) those who have had a job and are again seeking work (‘second-time job seekers’)
(3) vocational or occupational trainees; the involuntarily unemployed and sick;
(4) injured and retired workers; and,
(5) women who, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, give up work or jobseeking, provided they return to work or find another job within a reasonable period after the birth of the child.
- R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 00436 (IAC)
(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
(2) Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
- R (on the application of Oyekan) v Secretary of State for the Home Department IJR [2015] UKUT 00410(IAC)
Judicial Review dismissed; evidential requirements for proxy marriages under EEA law following Kareem and TA and Others (Kareem explained) Ghana discussed.
- R (on the application of Chirairo) v Secretary of State for the Home Department IJR [2015] UKUT 00411 (IAC)
Successful judicial review challenging refusal of leave to remain on the basis of inconsistent treatment with the claimant’s sister.
In 2006, the claimant and his sister were accepted as dependents on their father’s application for leave to remain as a student when their appeals were allowed by the Tribunal, the Tribunal taking into account the fact that the claimant had turned 18 years. The Home Office did not appeal and subsequently granted 5 months leave to the whole family. When the claimant’s father then applied for leave to remain as work permit holder, the family were granted leave as his dependents but the claimant was refused. In subsequent applications, the claimant’s parents were granted Indefinite Leave to Remain and his sister, who was by this time over 18 years, Discretionary Leave to Remain. The challenge was brought against refusal of the claimant’s application for Discretionary Leave to Remain in 2012 highlighting the distinction made between his case and that of his sister.
Judicial review was granted, the Tribunal holding: “This decision was only explicable on the basis that the Home Office had chosen, rather than following or appealing the judge’s decision, to side step it by granting a short period of leave and then disregarding it. That amounted to a clear disregard of the statutory appellate procedure and the decision must be set aside.”
- R (on the application of Hamasour) v Secretary of State for the Home Department (supplementary decision letter – effect) IJR [2015] UKUT 00414 (IAC)
The decision in Nash v Chelsea College of Art and Design [2001] EWHC 538 (Admin) may provide a useful tool on the issue of whether a supplementary decision letter amounts to a fresh decision, or whether it merely supplements the decision already made, and in relation to matters to be considered in terms of the effect of such a supplementary decision letter.
- Iqbal (Para 322 Immigration Rules) [2015] UKUT 00434 (IAC)
(i) The effect of the words “are to be refused” in paragraph 322 of the Immigration Rules is to render refusal of leave to remain the United Kingdom obligatory in cases where any of the listed grounds arises. The decision maker has no discretion.
(ii) The doctrine of substantive legitimate expectations is a nuanced, sophisticated one which should not be prayed in aid without careful reflection.
- NA and VA (protection: Article 7(2) Qualification Directive) India [2015] UKUT 00432 (IAC)
The word “generally” in Article 7(2) of Council Directive 2004/83/EC (the Qualification Directive) denotes normally or in the generality of cases. Thus the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and access to such system by the claimant may not, in a given case, amount to protection. Article 7(2) is non-prescriptive in nature. It prescribes neither minima nor maxima. The duty imposed on states to take “reasonable steps” imports the concepts of margin of appreciation and proportionality.
- R (on the application of GB by litigation friend, Francesco Jeff) v Oxfordshire County Council (age dispute- relevance of documents) IJR [2015] UKUT 00429 (IAC)
The duty of the Tribunal in disputed age assessments is to consider the evidence as a whole, including documentary evidence relied upon, even where there are a number of documents produced purporting to verify the claimed age. SA (Kuwait) v SSHD [2009] EWCA Civ 1157 considered.
- Jobseekers who do not find a job are not workers finds Upper Tribunal
Fortunately, the Upper Tribunal has clarified a pressing issue of European Union law for us in the case of Yusuf (EEA – ceasing to be a jobseeker; effect) [2015] UKUT 433 (IAC):
An individual who has acquired the status of worker for the purposes of article 45 (ex Article 3) TFEU) (and thus regulation 4 (1) (a) of the Immigration (European Economic Area) Regulations 2006) only through being a jobseeker, who is a qualified person under regulation 6(1)(a), does not retain the status of worker on ceasing to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent.
The term ‘worker’ within article 45 covers, to a greater or lesser extent, not only actual workers but also:
(1) those entering a state for the first time to seek employment (‘first-time’ job seekers’)
(2) those who have had a job and are again seeking work (‘second-time job seekers’)
(3) vocational or occupational trainees; the involuntarily unemployed and sick;
(4) injured and retired workers; and,
(5) women who, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, give up work or jobseeking, provided they return to work or find another job within a reasonable period after the birth of the child.
The Supreme Court has refused permission to appeal from the Court of Appeal in the linked medical treatment cases on Article 3 ECHR with the words:
“With regret, the Panel can foresee no reasonable prospect of this Court departing from N v SSHD.”.
In the Court of Appeal the cases were GS (India), EO (Ghana), GM (India), PL (Jamaica), BA (Ghana) & KK (DRC) v The Secretary of State for the Home Department [2015] EWCA Civ 40. The four whose appeals were dismissed by the Court of Appeal and who suffer from end stage kidney disease now face an early and unpleasant death within weeks following their removal from the United Kingdom. The others face very uncertain prospects as they try to obtain some form of treatment.
• Comments on the statement of changes HC 297: https://www.gov.uk/government/upload...596_hc_297.pdf
This Statement of Changes in immigration rules appeared on 13 July 2015 and came partially into effect on 14 July and 3 August 2015, with the remaining provisions coming into effect on 12 November 2015. Its main focus is students but it makes other significant changes.
Changes that took effect on 3 August 2015 mean that administrative review is withdrawn if a person makes a fresh application. This means that 3C leave ends for those in the UK. It means that a person is unable to pursue the correction of an error and thus remove a blot on their immigration history at the same time as moving forward with their application to come to the UK. It is presented in the Explanatory Memorandum to HC 297 as helpful. It hardly is.
New students at publicly funded further education colleges who apply after 12 November 2015 will be prevented from being able to work in the UK from 12 November 2015 and students at colleges will be unable to switch to a work visa or extend their study visa whilst they are in the UK. The time limit on further education study will be reduced from three years to two.
Other changes affect transit passengers, family and private life and returning residents. For example, applicants under Part 8 who fail to meet the requirements for leave to remain or indefinite leave to remain as a victim of domestic violence or as a bereaved partner will be allowed an administrative review. The income of an equity partner, e.g. in a law firm, will be allowed to be included as employment income for the purposes of Appendix FM-SE.
• Tier 2 Review
The Migration Advisory Committee is consulting on its review of Tier 2. A wide swathe of proposals are canvassed which, if implemented, would change the landscape for those coming to work in the UK. Tier 2 could be restricted to shortage occupations and “highly specialist experts.” Spouses and partners of Tier 2 workers could lose their automatic right to work in the UK. The intra-company transfer route, for so long the safety valve under Tier 2, is now ostensibly in the line of fire.
• Right to rent
Fuelled by the images from Calais, the Government is pressing ahead with its “hostile environment” agenda. The Immigration Bill is now expected when parliament returns and the Secretary of State for Communities and Local Government has said that it will contain proposals to allow landlords and landladies to evict tenants without leave to be in the UK more easily. A new criminal offence is proposed whereby those who repeatedly fail to conduct the “right to rent” checks or fail to take steps to remove those without leave to be in their property will face up to five years in prison. There will be blacklists of landlords and landladies.
• Asylum support
The Asylum Support (Amendment No.3) Regulations 2015 (SI 2015/1501) make dramatic cuts to asylum support for families with children with effect from 10 August 2015. All those receiving asylum support will now get the same weekly allowance of £36.95 per person. The effect is particularly dramatic in single-parent families: a single parent with two children will see their support reduced by over twenty-five per cent.
There will be more changes. The government is consulting on support under sections 95 and 4 of the Immigration and Asylum Act 1999. Inter alia, it proposes to repeal s 4(1) of the Act which makes provision for support for those granted bail, temporary admission or temporary release or otherwise released from detention and also to end the scheme under which families with children continue to receive s 95 support while they remain in the UK.
• Immigration Health Surcharge: common casework questions, House of Commons Library, 6 August 2015: http://researchbriefings.parliament....mmary/CBP-7274
• The £35,000 salary requirement to settle in the UK: http://researchbriefings.parliament....mmary/CBP-7264
• The UK and the EU: reform, renegotiation, withdrawal? A reading list: http://researchbriefings.parliament....mmary/CBP-7220
• Visa Requirements for Tier 1 [Requirement to produce criminal record], House of Commons 20 July 2015: Column 80WS
Visa Requirements for Tier 1 [Requirement to produce criminal record], House of Commons 20 July 2015: Column 80WS
The Minister for Immigration (James Brokenshire): “I am announcing today that from 1 September 2015, individuals who are applying for entry clearance as an entrepreneur or an investor under the tier 1 category will be required to provide a criminal record certificate from any country in which they have lived for 12 months or more in the previous 10 years.
Under the previous Government we changed the immigration rules to introduce a requirement to provide an overseas criminal record certificate where that is required. We will introduce this requirement in a controlled way and learn the lessons from implementation as we roll out the requirement to other categories of migrant.”.
• According to the recent Customer Service Operations, UK Visas and Immigration response, there is no deadline to lodge a reconsideration request following a refusal of a Naturalization application
• Recent Tier1 (Entrepreneur) guidance: https://www.gov.uk/government/public...1-entrepreneur
• Beaurish Tigere in R (on the application of) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 (29 July 2015)
Success for The Supreme Court held, by a majority of three to two, that rules rendering persons with limited or discretionary leave for student loans discriminated against her and breached Article 14 of the European Convention on Human Rights read with Article 2 of the First Protocol to the Convention, the right to education. The Supreme Court held that requiring a person to be settled to be eligible for a student loan was not justified, but that the requirement of three years’ lawful ordinary residence was. The dissenting minority based their decision on the right to education’s not importing a right to financial support. It is left to the Department of Business, Innovation and Skill to devise a more carefully tailored criterion for student finance which will avoid breaching Convention rights of other applicants.
• R (on the application of Kuruwitage) v Secretary of State for the Home
Department IJR [2015] UKUT 0402 (IAC)
The claimant had leave as a Tier 4 student with a condition prohibiting employment. He was arrested and admitted under caution to undertaking unpaid voluntary work for 20 hours per week in breach of that condition. The Court held that the Home Office did not act ultra vires in seeking to remove the claimant under section 10(1)(a) Immigration and Asylum Act 1999 for breaching a condition attached to his limited leave rather than consider curtailing that leave giving rise to an in-country right of appeal. An out-of-country remedy was found to be sufficient in this case and the judicial review was dismissed.
• R (on the application of Shabani) v Secretary of State for the Home Department (Legacy – residence – SOS’s limited duty) IJR [2015] UKUT 0403 (IAC)
In giving effect to Chapter 53.1.2 of her Enforcement Instructions and Guidance, the respondent is not required to refer specifically to the particular period of residence. It is sufficient that the respondent can be seen to have been aware of the period of residence when applying the policy to the facts of the particular case.
• Forman (ss 117A-C considerations) [2015] UKUT 00412 (IAC)
(i) The public interest in firm immigration control is not diluted by the consideration that a person pursuing a claim under Article 8 ECHR has at no time been a financial burden on the state or is self-sufficient or is likely to remain so indefinitely. The significance of these factors is that where they are not present the public interest is fortified.
(ii) The list of considerations contained in section 117B and section 117C of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) is not exhaustive. A court or tribunal is entitled to take into account additional considerations, provided that they are relevant in the sense that they properly bear on the public interest question.
(iii) In cases where the provisions of sections 117B-117C of the 2002 Act arise, the decision of the Tribunal must demonstrate that they have been given full effect.
• R (on the application of Chirairo) v Secretary of State for the Home Department IJR [2015] UKUT 00411 (IAC)
This is a successful judicial review challenging refusal of leave to remain on the basis of inconsistent treatment with the claimant’s sister.
In 2006, the claimant and his sister were accepted as dependents on their father’s application for leave to remain as a student when their appeals were allowed by the Tribunal, the Tribunal taking into account the fact that the claimant had turned 18 years. The Home Office did not appeal and subsequently granted 5 months leave to the whole family. When the claimant’s father then applied for leave to remain as work permit holder, the family were granted leave as his dependents but the claimant was refused. In subsequent applications, the claimant’s parents were granted Indefinite Leave to Remain and his sister, who was by this time over 18 years, Discretionary Leave to Remain. The challenge was brought against refusal of the claimant’s application for Discretionary Leave to Remain in 2012 highlighting the distinction made between his case and that of his sister.
Judicial review was granted, the Tribunal holding: “This decision was only explicable on the basis that the Home Office had chosen, rather than following or appealing the judge’s decision, to side step it by granting a short period of leave and then disregarding it. That amounted to a clear disregard of the statutory appellate procedure and the decision must be set aside.”
• R (on the application of Hamasour) v Secretary of State for the Home Department (supplementary decision letter – effect) IJR [2015] UKUT 00414 (IAC)
The decision in Nash v Chelsea College of Art and Design [2001] EWHC 538 (Admin) may provide a useful tool on the issue of whether a supplementary decision letter amounts to a fresh decision, or whether it merely supplements the decision already made, and in relation to matters to be considered in terms of the effect of such a supplementary decision letter.
• MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC)
1. The phrase “unduly harsh” in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
2. Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.
3. The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.
(MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) at [46] and BM and others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) at [109] applied.)
• R (on the application of Bilal Ahmed) v Secretary of State for the Home
Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 00436 (IAC)
(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
(2) Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
• R (on the application of Naziri and Others) v Secretary of State for the Home Department (JR – scope - evidence) IJR [2015] UKUT 00437 (IAC)
(i) It is intrinsically undesirable that judicial review proceedings be transacted in circumstances where material evidence on which the Applicants seek to rely has not been considered by the primary decision maker.
(ii) There is a strong general prohibition in contemporary litigation against rolling review by the Upper Tribunal in judicial review proceedings.
(iii) Where a judicial review applicant is proposing to make further representations to the Secretary of State in circumstances where a new decision will forseeably be induced, it will normally be appropriate, to refuse permission or to dismiss the application substantively on the ground that it will be rendered moot and/or an alternative remedy remains unexhausted and/or giving effect to the prohibition against rolling review.
(iv) The principles rehearsed above are to be similarly applied to applications for permission to appeal to the Court of Appeal.
(v) Where a draft judgment is circulated in advance of handing down the function of parties and their representatives is confined to notifying mis-spellings, formatting defects, inadvertent factual errors, ambiguities of expression and kindred blemishes: Edwards & Ors R (on the application of) v Environment Agency & Ors [2008] UKHL 22 applied.
• Yusuf (EEA - ceasing to be a jobseeker; effect) [2015] UKUT 00433 (IAC)
An individual who has acquired the status of worker for the purposes of article 45 (ex Article 3) TFEU) (and thus regulation 4 (1) (a) of the Immigration (European Economic Area) Regulations 2006) only through being a jobseeker, who is a qualified person under regulation 6(1)(a), does not retain the status of worker on ceasing to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent.
The term ‘worker’ within article 45 covers, to a greater or lesser extent, not only actual workers but also:
(1) those entering a state for the first time to seek employment (‘first-time’ job seekers’)
(2) those who have had a job and are again seeking work (‘second-time job seekers’)
(3) vocational or occupational trainees; the involuntarily unemployed and sick;
(4) injured and retired workers; and,
(5) women who, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, give up work or jobseeking, provided they return to work or find another job within a reasonable period after the birth of the child.
• Iqbal (Para 322 Immigration Rules) [2015] UKUT 00434 (IAC)
(i) The effect of the words “are to be refused” in paragraph 322 of the Immigration Rules is to render refusal of leave to remain the United Kingdom obligatory in cases where any of the listed grounds arises. The decision maker has no discretion.
(ii) The doctrine of substantive legitimate expectations is a nuanced, sophisticated one which should not be prayed in aid without careful reflection.
• R (on the application of GB by litigation friend, Francesco Jeff) v Oxfordshire County Council (age dispute- relevance of documents) IJR [2015] UKUT 00429 (IAC)
The duty of the Tribunal in disputed age assessments is to consider the evidence as a whole, including documentary evidence relied upon, even where there are a number of documents produced purporting to verify the claimed age. SA (Kuwait) v SSHD [2009] EWCA Civ 1157 considered.
• R (on the application of Ali Ahmad Rashid) v The Secretary of State for the Home Department IJR [2015] UKUT 00430 (IAC)
Judicial review granted, quashing a decision not to accept submissions as a fresh claim in the case of an Iranian Kurd. It was not open to the Respondent to conclude that a report by Professor Joffé submitted by the claimant was not sufficient to depart from the country guidance findings. The three country guidance cases of SB, BA and SA do not deal with the risk on return of a Kurd who is a failed asylum seeker. Whilst an immigration judge would have to consider that the claimant has no credible history and that the report of Professor Joffé was a generic report prepared for another case, the report does address risk to Kurds not only on the basis of political activism but also simply by reason of being Kurds and so contains and refers to evidence that would have to be considered seriously by a judge.
• R (on the application of NK) v The Secretary of State for the Home Department IJR [2015] UKUT 00431 (IAC)
Successful judicial review challenging refusal to accept submissions as a fresh asylum claim brought by a Cameroonian woman fearing persecution as a lesbian from both the state and members of her family. The claimant’s case was dismissed at first instance and at appeal within the detained fast track process in 2013. Further evidence was subsequently obtained. This included a letter from an individual who had made enquiries in the country of origin about her situation and letters from members of a lesbian support group in the UK that the Home Office argued were self-serving. The Tribunal rejected the Home Office submissions and also refused permission to the Court of Appeal on these points. The Judge considered that whilst those writing the support letters place weight on what the applicant had told them, they also accepted that she was a lesbian based on their own experiences and their own sexuality. The Tribunal found that taking both the new evidence and the earlier evidence into account, it was not open to the Secretary of State to consider that there would not be a reasonable prospect of success before an Immigration Judge.
Singh and Others (Judgment) [2015] EUECJ C-218/14 (16 July 2015)
The Grand Chamber of the European Court of Justice gave preliminary rulings in three cases referred by the High Court of Ireland and in which submissions from the European Commission and the Governments of the UK, Denmark, Greece, Spain and Poland were also considered. The Court ruled on the following issues:
1) whether, considering articles 7 and 13(2)(a) of EC Directive 2004/38/EC, a non-EU national may retain a right of residence on divorce if the divorce is preceded by the departure of their EU spouse from the host member state; and
2) whether the requirements of an EU national’s right to reside under article 7(1)(b) on the basis of having sufficient resources to avoid becoming a burden on the social assistance system of the host member state if those resources derive in part from their non-EU spouse;
1. Retention of the right of residence on divorce
Article 13 on the retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership provides at 13(2):
Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:
(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State […].
The purpose of article 13 is to provide legal safeguards for family members in the event of the death of the EU citizen, divorce, annulment of marriage or termination of a registered partnership, as indicated by recital 15 of the preamble to the directive.
In each of the three cases referred by the High Court of Ireland, the EU spouse had left the host member state and settled in another country before commencing divorce proceedings against their non-EU spouse remaining in Ireland. The Court considered whether the nonEU spouse retained their right of residence under article 13(2) in these circumstances.
The Grand Chamber held that the non-EU national cannot retain a right of residence in the Member State under that provision where divorce proceedings were preceded by the departure of the EU spouse from the host member state (§70).
The right of residence is retained under article 13(2) if the third country national has a right to reside under article 7(2) in the member state on the date of commencement of the divorce proceedings if the other conditions under article 13 are met (§61). If the EU spouse has left the member state, the third country national no longer meets the conditions for the right to reside under article 7(2) (§65) and so cannot claim the ‘retention’ of a right to reside under article 13 (§67).
The Court stated that this did not mean that Member States, which may grant more extensive protection, could not authorise continued rights of residence under its national laws (§68). The applicants in each of the three cases had been granted renewable temporary permission under national law which enabled them to legally reside and work in Ireland. 2
. Sufficient resources derived in part from non-EU spouse
In each of the three cases referred, there was found to be a period during which the EU spouse was not working in the Member State and the family was supported by the income derived from the business or employment of the non-EU spouse. For example, in the case of the Njume family, the non-EU spouse, Mr Njume supported his EU wife financially during a three-year period (§26).
The Court considered whether the requirements of the right to reside of the EU national under article 7(1)(b) of Directive 2004/38 on the basis of having sufficient resources were met where their income derived in part from the resources of their third country national spouse. Reflecting the framing of the question posed, the Court held that article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that an EU citizen has sufficient resources for himself and his family members even where these derive in part from those of their third country national spouse (§77).
The Court relied on its earlier decisions in Alokpa and Moudoulou, C-86/12, EU:C:2013:645 stating that the expression ‘have’ sufficient resources under article 7(1)(b) lays down no requirement whatsoever as to the origin of those resources, which may be provided by the third country national (§74); and in Zhu and Chen, C-200/02, EU:C:2004:639 stating that an interpretation of sufficiency of resources requiring these to be held by the EU citizen alone, without the resources of an accompanying family member, would be a disproportionate interference with the exercise of the right of freedom of movement as it was not necessary to achieve the objective of protecting public finances (§75).
• HC 497
Statement of changes in immigration rules HC 497 was published on 17 September. Briefly, the domestic workers in receipt of a “conclusive grounds” decision that they are victims of slavery or trafficking will be able to apply, within 28 days, for a period of leave of up to six months, with no recourse to public funds. This will allow them to work as a domestic worker.
Meanwhile changes are made to the allocation of Tier 2 certificates of sponsorship following the cap’s being reached. These create smaller salary bands and also allow the Secretary of State to reclaim unused certificates of sponsorship and return them to the limit. There are minor changes to the visitor rules affecting applicants from Vietnam and Zimbabwe.
• Judicial review
The Administrative Court Office issued a new form N463 for applications for urgent consideration in Judicial Review on 04 September 2015.
The Upper Tribunal (Immigration and Asylum Chamber) has updated forms T480, T481 and T485 for Judicial Reviews lodged with the Upper Tribunal. The forms now direct that failure to provide form T485 to the Upper Tribunal within nine days of lodging the application for judicial review will lead to proceedings being struck out automatically.
It seems that the automatic strike out of an application is a disproportionate measure, particularly in the case of litigants in person.
• European Union referendum bill: http://services.parliament.uk/bills/2015-16/europeanunionreferendum.html
• Home Affairs Committee's inquiry on Immigration - skill shortages: http://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/inquiries/parliament-2015/immigration-skill-shortages/
• Immigration detention in the UK: an overview, Commons Briefing papers CBP-7294: http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7294#fullreport
• Ceasing asylum support: instruction: https://www.gov.uk/government/publications/ceasing-asylum-support-instruction
• Changes to "User pays" visa application centres from 1 September 2015
From 1 September, the Home Office is "converting" some visa application centres into "User pays" centres. Applicants will pay a £52 fee to use the application centre, in addition to their visa application fee.
The affected visa application centres are:
• Al Khobar, Saudi Arabia
• Jalandhar, India
• Osaka, Japan
• Jinan, China*
• Izmir, Turkey
• Rostov, Russia
• Dusseldorf, Germany
• Zurich, Switzerland
• Madrid, Spain
• Rome, Italy
• Warsaw, Poland
*Jinan will convert to a user pays centre on 1 October.
The Home office says:
"The £52 fee only covers the cost of operating application centres in these locations and ensures that customers do not have to travel long distances, or to another country, to apply for a visa.
The fee will apply at all user pays centres and is a reduction from what is currently charged at existing user pays centres in nearly 100 other locations."
The fee will apply to all applications submitted and paid for after midnight (UK time) on 1 September.
• Tier 1 Entrepreneur Interview questions: http://www.legalcentre.org//files/Tier-1-Entrepreneur-Interview.pdf
• Review of Tier 2: analysis of salary thresholds: https://www.gov.uk/government/publications/review-of-tier-2-analysis-of-salary-thresholds
• According to the UK BA, a foreign company without a physical presence in the UK may still get a Tier 2 Sponsorship License
• R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 00436 (IAC)
(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
(2) Section 92(4)(b) of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
• R (on the application of Myrie) v Secretary of State for the Home Department IJR [2015] UKUT 00464 (IAC)
Judgment of Coker, J in a Judicial Review of the Secretary of State’s decision refusing the Claimant’s application for Leave to Remain on the basis of Article 8 ECHR rights to private and family life.
This was another case in which the Secretary of State had served two further decisions after permission for judicial was granted with her detailed grounds of defence. The Tribunal found that the two supplementary decision letters were not part of the original decisionmaking process and that the original decision was unlawful for failing to give adequate consideration to the applicant’s family life or the best interests of the children involved.
However, instead of quashing the decision (see for example this approach taken by the Judge in R(AB) v Secretary of State for the Home Department IJR [2015] UKUT 00352 (IAC), case note in the reported determinations of the July 2015 mailing), the Judge held that the two supplementary letters were relevant to the question of remedy which was 2 discretionary in Judicial Review. The Judge found that as the two supplementary decisions considered all the matters that the Secretary of State had not previously addressed and the Claimant’s case had therefore been considered, the Judicial Review must fail.
• BM (false passport) DRC [2015] UKUT 00467 (IAC)
The mere fact that an asylum claimant utilised a false passport or kindred document in departing the DRC will not without more engage the risk category specified in [119(iv)] of BM and Others (Returnees: Criminal and Non-Criminal) DRC CG [2015] 293 (IAC). The application of this guidance will be dependent upon the fact sensitive context of the individual case. The Tribunal will consider, inter alia, the likely state of knowledge of the DRC authorities pertaining to the person in question. A person claiming to belong to any of the risk categories will not be at risk of persecution unless likely to come to the attention of the DRC authorities. Thus in every case there will be an intense focus on matters such as publicity, individual prominence, possession of a passport, the standard emergency travel document arrangements (where these apply) and how these matters impact on the individual claimant.
• Amirteymour and others (EEA appeals; human rights) [2015] UKUT 00466 (IAC)
Where no notice under section 120 of the 2002 Act has been served and where no EEA decision to remove has been made, an appellant cannot bring a Human Rights challenge to removal in an appeal under the EEA Regulations. Neither the factual matrix nor the reasoning in JM (Liberia) [2006] EWCA Civ 1402 has any application to appeals of this nature.
• Abbasi and another (visits – bereavement – Article 8) [2015] UKUT 00463 (IAC)
1. The refusal of a visa to foreign nationals seeking to enter the United Kingdom for a finite period for the purpose of mourning with family members the recent death of a close relative and visiting the grave of the deceased is capable of constituting a disproportionate interference with the rights of the persons concerned under Article 8 ECHR.
2. The question of whether Article 8 applies and, if so, is breached will depend upon the fact sensitive context of the particular case. 3. The Tribunal should adopt a structured and sequential approach to the Article 8 issues.
• Kaur (visit appeals; Article 8) [2015] UKUT 00487 (IAC)
1. In visit appeals the Article 8 decision on an appeal cannot be made in a vacuum. Whilst judges only have jurisdiction to decide whether the decision is unlawful under s.6 of the Human Rights Act 1998 (or shows unlawful discrimination) (see Mostafa (Article 8 in entry clearance) [2015] UKUT 00112 (IAC) and Adjei (visit visas – Article 8)[2015] UKUT 0261 (IAC)), the starting-point for deciding that must be the state of the evidence about the appellant’s ability to meet the requirements of paragraph 41 of the immigration rules.
2. The restriction in visitor cases of grounds of appeal to human rights does not mean that judges are relieved of their ordinary duties of fact-finding or that they must approach these in a qualitatively different way. Where relevant to the Article 8 assessment, disputes as to the facts must be resolved by taking into account the evidence on both sides: see Adjei at [10] bearing in mind that the burden of proof rests on the appellant.
3. Unless an appellant can show that there are individual interests at stake covered by Article 8 “of a particularly pressing nature” so as to give rise to a “strong claim that compelling circumstances may exist to justify the grant of LTE [Leave to Enter] outside the rules”: (see SS (Congo) [2015] EWCA Civ 387 at [40] and [56]) he or she is exceedingly unlikely to succeed. That proposition must also hold good in visitor appeals.
• R (on the application of SS) v Secretary of State for the Home Department (declaratory orders) IJR [2015] UKUT 00462 (IAC)
(i) The Upper Tribunal has a discretion to make a declaration under section 15(1)(d) of the Tribunals, Courts and Enforcement Act 2007. In common with all remedial orders in judicial review proceedings, this lies within the discretion of the Tribunal.
(ii) In deciding whether to make a declaration the Tribunal should bear in mind the educative and corrective function of judicial review. Furthermore, where a challenge exposes that a public authority has acted unlawfully, a declaration will normally be appropriate in circumstances where a quashing, mandatory or prohibitory order is an inappropriate form of relief.
• R (on the application of Lewis) v Secretary of State for the Home Department IJR [2015] UKUT 00482 (IAC)
Unsuccessful judicial review of the Secretary of State's decision not to grant leave to remain under paragraph 276ADE Immigration Rules or Article 8 European Convention on Human Rights. The Claimant was a Jamaican national and had lived in the UK for all her adult life, a period of 13 years. Her father was a British citizen, her mother had Indefinite Leave to Remain and her siblings also resided in the UK, all but one holding British citizenship. She spent time with her family every week. The Claimant was educated to Masters degree level, had been employed in the UK, volunteered as a bereavement counsellor and was active in her local church. It was argued she no longer had any ties to Jamaica. The Secretary of State argued that she had spent the first 18 years of her life in Jamaica and had completed primary and secondary education there. The Claimant’s relationship with her parents and siblings did not fall within the meaning of family life under Appendix FM and did not go beyond the normal emotional ties between parents and siblings. Her education and employment in the UK would assist her in establishing herself in Jamaica and her life in the UK was developed in the knowledge that her status was unlawful. It was held that the application related to a disagreement with the assessment of the Secretary of State rather than irrationality or illegality on her part. The case of Ogundimu, which related to a statutory appeal of someone who had lived in the UK since the age of 6 years, could not be relied upon.
• R (on the application of Msiza) v Secretary of State for the Home Department IJR [2015] UKUT 00483 (IAC)
Claim for Judicial Review against decision to refuse leave to remain under paragraph 276ADE and article 8 European Convention on Human Rights dismissed. The claimant was unrepresented for the hearing and did not attend herself. The case proceeded in her absence. The Court held that there was no unlawfulness in the Secretary of State’s original decision. The Claimant was a South African national and had lived 15 years of her life there. The absence of family members in the country of origin was not determinative. She could reestablish contact with her stepmother once in South Africa and would be capable of living independently. The second decision made by the Secretary of State in response to the grant of permission for judicial review was held to be a continuation of the first decision considering the factors articulated in Hamasour and Nash, but it was also the case that it contained no error of law.
• R (on the application of Hussain) v Secretary of State for the Home Department IJR [2015] UKUT 00486 (IAC)
Decision of Ockelton, J, Vice President of the Upper Tribunal (Immigration and Asylum Chamber) in an unsuccessful judicial review of the Secretary of State's decision to make a deportation order under s,3(5)(a) of the Immigration Act 1971 on the grounds that she deemed it to be conducive to the public good to deport the applicant from the United Kingdom. The Claimant had 29 convictions for 49 known offences. The application of Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00282 was considered. There had been two previous Tribunal judgments in the case, the first Tribunal finding that the Claimant did not have ties to Bangladesh, his country of origin. The Claimant had argued that following Devaseelan, the Judge of the second Tribunal was not entitled to depart from the findings of the first Tribunal. Though no legal error on the part of the second Judge could be argued, it was submitted that the Secretary of State was obliged to rely on the first Tribunal decision as the starting point for her decision. These arguments were rejected. The Devaseelan guidelines are addressed to Judges not the Secretary of State. The starting point is that the earlier judicial determination is not binding on the second Judge whilst it must be taken into account. Devaseelan has effect at the point at which the Judge takes the second decision. The Secretary of State is required to act on a final judicial decision following R v SSHD ex parte Mersin [2000] EWHC 348 (Admin) and other cases. Further, Devaseelan did not deal with the situation where there were two judicial decisions with conflicting conclusions and there was no reason for a third decisionmaker not to treat the older decision as the starting point. The appropriate remedy would have been an appeal of the second Tribunal decision. On the facts of the case, no injustice was caused to the Claimant as the findings of the second Judge were sustainable given the changed position at that time.
• R (on the application of Sharma) v Secretary of State for the Home Department IJR [2015] UKUT 00484 (IAC)
Unsuccessful judicial review of a decision of the Secretary of State taken in February 2014 to refuse leave to remain on Article 8 ECHR grounds. No unlawfulness was found on public law grounds. It was also held not to be unfair for the Secretary of State not to have served an appealable decision. The legislative regime prior to April 2015 did not confer a right of appeal in the circumstances of the case. The claimant did not fall within the exceptions following the implementation of the Immigration Act 2014 that applied where reconsideration of a case was outstanding. Whilst the respondent’s arguments on what constituted exceptional and compelling circumstances were circular, the claimant’s case did not come close to amounting to such circumstances. The Secretary of State’s delay in decision-making was to be deprecated but did not make her decision unlawful. It was not unfair to require the applicant to make another application and pay a fee for her case to be reconsidered and be granted a right of appeal. The applicant was an overstayer, had come to the UK without expectation of being able to remain and her case had been considered twice by the Secretary of State.
• R (on the application of Bah) v Secretary of State for the Home Department IJR [2015] UKUT 00518 (IAC)
Dismissal of a judicial review against the decision to grant Discretionary Leave to Remain instead of Indefinite Leave to Remain to an applicant relying on a letter received from the Home Office notifying that her case would be considered under the legacy programme.
It was held that the letter received by the applicant did not make a clear, unambiguous promise that her case would be reviewed by July 2011 or 20 July 2011. The case therefore fell within the generality of cases dismissed in R (Geraldo) v Secretary of State for the Home Department [2013] EWHC 2763 (Admin). The language employed in the letter was not accepted as evidencing a clear, unambiguous promise; the variations of wording in the general letters sent to applicants did not have significance; and whilst R (Kadyamarunga) v Secretary of State for the Home Department [2014] EWHC 301 (Admin) could be distinguished on its from Geraldo, where there is conflict, Geraldo is to be preferred.
Though the claim failed on the above question, the submissions on the other points of dispute were set out in the judgment at the request of the parties and the Judge offered observations on these (obiter).
The Judge considered that a promise to review an applicant’s case by July 2011 would not provide a basis for concluding that a promise was made to review the case by 20 July 2011, the date of the policy change. The opinion expressed by John Vine that applicants would have a reasonable expectation that their case would be considered by July 2011 is not binding on the Court and cannot be reconciled with Geraldo.
The applicant would not have a legitimate expectation that the exceptions in paragraph 4.2 of the Discretionary Leave Policy version 6 in place from 24 July 2013 applied to her case and Indefinite Leave to Remain granted as she had not received a clear, unambiguous promise that her case would be dealt with by 20 July 2011. It was rejected in Geraldo that there were or should be other exceptions. It was also stated in Geraldo that there was no evidence before the Court to support the proposition that there was a general undertaking given to deal with legacy or other cases differently from the normal policy guidance.
Finally, whilst the Secretary of State has a residual discretion to depart from policy in ‘compelling’ exceptional circumstances, similar arguments based on fairness were rejected in Geraldo.
• MC (Essa principles recast) Portugal [2015] UKUT 00520 (IAC)
1. Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
2. It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).
3. There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) (Essa (2013) at [23]).
4. Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed (Essa (2013) at [32]-[33]).
5. Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime (Essa (2013) at [35]), not the mere possibility of rehabilitation. Mere capability of rehabilitation is not to be equated with reasonable prospect of rehabilitation.
6. Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) ((Dumliauskas [41]).
7. Such prospects are to be taken into account even if not raised by the offender (Dumliauskas [52]).
8. Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State (Dumliauskas [46], [52]-[53] and [59]).
9. Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like (Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation (Dumliauskas [55])
10. In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor (Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence (Dumliauskas at [46] and [54]).
• Deelah and others (section 117B – ambit) [2015] UKUT 00515 (IAC)
(i) Sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002 are not confined to an appeal under section 84(1)(c). They apply also to appeals brought under section 84(1)(a) and (g).
(ii) Section 117B(4) and (5) of the 2002 Act, which instruct Judges to attribute “little weight” to the considerations specified therein, do not give rise to a constitutionally impermissible encroachment on the independent adjudicative function of the judiciary.
(iii) A private life “established”, in the wording and in the context of section 117B(4) and (5) of the 2002 Act, is not to be construed and confined to the initiation, or creation, of the private life in question and not its continuation or development. (iv) The adjective “precarious” in section 117B(5) of the 2002 Act does not contemplate only, and is not restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which permits no expectation of a further grant.
• UK BA Guidance on EEA case-law and appeal: https://www.gov.uk/government/publications/european-economic-area-eea-case-law-and-appeals
• IAC appeal listing priority:
Some categories below are mutually exclusive, but the priority will be, subject to above
1) Detained appellants, (including bail)
2) Deprivation of Citizenship
3) Appeals involving children, (including those linked to a parents appeal), both in and out of country
4) Asylum appeals
5) Other appeals
Currently it takes about 8-9 months for the appeal to be heard from the date the appeal is lodged to the IAC, and the gap is growing
• Police Registration using the 30 day visa (to collect the migrant’s BRP card)
The following information confirms that one only has to register with the Police using either the 30 day visa or the BRP once it has been collected. Any subsequent changes will then need to be made in the usual way: http://content.met.police.uk/Article/How-to-register/1400028544770/1400028544770
Recent case-law
• R (on the application of Turay) v Secretary of State for the Home Department IJR [2015] UKUT 00485 (IAC)
Judgment of Ockelton, J dismissing a judicial review of the Secretary of State’s decision to refuse leave to remain as a spouse under Appendix FM.
The challenge was brought on the basis on the basis that the Secretary of State failed to interpret the rules in light of Article 8 of the European Convention on Human Rights and make further enquiries in order to reach a lawful decision in this case where the claimant had made their initial application without representation.
The Court held that there was no basis on which the Secretary of State should have investigated whether there were insurmountable obstacles to family life abroad. The claimant had ticked the box on the form indicating that she and her husband could live together outside the UK if necessary, there was no further information in the application to indicate that was a mistake and no basis for the Secretary of State to override that assertion. The argument that the Secretary of State failed to ask appropriate questions and consider whether paragraph 276ADE of the Immigration Rules on long residence applied instead was also unsuccessful.
• Weldemichael and another (St Prix [2014] EUECJ C-507/12; effect) [2015] UKUT 00540 (IAC)
An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations) for a period in which she was absent from working or job-seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJEU in Jessy St Prix:
(a) at the beginning of the relevant period she was either a worker or seeking employment;
(b) the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);
(c) the relevant period did not extend beyond 52 weeks; and,
(d) she returned to work.
So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.
• Barry (conduct of hearing) [2015] UKUT 00541 (IAC)
In appropriate cases, for example appeals in which the grounds and arguments involve an unmeritorious challenge to the rationality of the decision of the FtT, Upper Tribunal Judges, bearing in mind the overriding objective, should not hesitate to determine the appeal without hearing from the Respondent’s representative.
• KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 (IAC)
The Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of s117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.
• Tigere, R (on the application of) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57. Supreme Court upholds challenge to student loan blanket ILR eligibility requirement.
Paragraph 49
“the appellant is clearly entitled to a declaration that the application of the settlement criterion to her is a breach of her rights under article 14, read with article A2P1, of the Convention. ...Such a declaration would leave the department in no doubt that this appellant is entitled to a student loan, while leaving it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of other applicants, now and in the future.”
A detailed note on the Statement of Changes in the Immigration Rules HC535, published on 29 October 2015, is enclosed with this mailing.
On asylum, significant changes are made to the revocation of or refusal to renew Refugee Status or Humanitarian Protection that will be applicable to decisions on cases made from 19 November 2015. Asylum claims from EU nationals are also to be considered invalid unless exceptional circumstances apply.
The definition of a case working error for the purpose of administrative review is expanded to include where the original decision-maker’s decision not to request specified documents under paragraph 245AA of the Rules (to correct minor omissions) was incorrect. The rules allow applicants to submit evidence that was not before the original decision-maker to demonstrate this case working error and enable reviewers to request such documents. This is likely to be a response to the judgment in Mandalia v Secretary of State for the Home Department [2015] UKSC 59.
Changes to the Rules on family and private life will require an EEA national to hold a valid document confirming their right of permanent residence in order to meet the requirement of ‘present and settled in the UK’ for applications under the family Immigration Rules. The Rules also make provision for refusal of a child’s application for entry clearance where the Secretary of State considers that the sponsor or their partner poses a risk to the child.
Amendments are made the evidential requirements for applications under the various categories of Tier 1 of the Points Based System. There are also changes affecting sportspersons in Tiers 2 and 5 and charity workers in Tier 5.
Among changes relating to Tier 2 of the Points Based System, nurses are being added to the Shortage Occupation List on an interim basis pending a more detailed examination by the Migration Advisory Committee as to whether there is a national shortage of nurses or specific nursing job titles. The Migration Advisory Committee has issued a call for evidence on nursing shortages with a deadline of 31 December 2015. The change means that nurses will be exempt from the Resident Labour Market Test and given higher priority in the allocation of restricted certificates of sponsorship. It also means that nurses will be exempt from the earnings threshold when they apply for settlement and this exemption will apply to nurses currently sponsored in Tier 2 even if nurses are removed from the Shortage Occupation List following the outcome of the review.
Finally, there is a welcome clarification of the visitor rules allowing visitors to undertake a maximum of 30 days study and 30 days volunteering with a registered charity (each) provided that these are not the main purpose of their visit.
Tier 1
The Migration Advisory Committee has published its report on the Tier 1 (Entrepreneur) category. It is very positive about graduate entrepreneurs; very negative about the Tier 1 (Entrepreneur) category. At the same MAC recommended that the “genuineness” test be scrapped and replaced by an assessment by industry experts. There is also interesting information about the likelihood that international trade links are one of the main benefits that Tier 1 entrepreneurs bring where they are investing into established UK businesses. Meanwhile Professor Sir David Metcalf, giving evidence to the Home Affairs Select Committee, said of the Tier 1 Investor visa “You are not selling passports, you are selling settlement, but right now we are giving it away. We are giving settlement away.” He described it as “absolutely not fit for purpose.” He pointed out that the investor is paid interest on his/her money which, when citizenship is obtained, is given back to the investor. This he did not see as a good deal for the taxpayer.
Transparency International has brought out a report Gold Rush: Investment visas and corrupt capital flows into the UK which identifies that the Tier 1 (Investor) visa has been used for corrupt capital flows into the UK, particularly from China and Russia. The report, citing the National Crime Agency and the Financial Times, identifies that
“…suspicious activity reporting of money laundering is low to negligible. This is particularly concerning for professional gatekeeper sectors, such as accountancy and law that have been rated by the Home Office and HM Treasury as ‘high risk’ in term of vulnerability to money laundering. The National Crime Agency have repeatedly highlighted a concern with poor quality reporting of money laundering suspicions from across the private sector, particularly from the legal sector.
Nationality
The British Nationality (General) (Amendment No. 3) Regulations 2015 (2015/1806) come into force on 12 November 2015. The big change is that applicants relying upon an EU right of permanent residence in the United Kingdom for nationality law purposes must provide with their application a valid permanent residence card or document certifying permanent residence or a residence permit or residence document issued under the Immigration (European Economic Area) Regulations 2000 (SI 2006/1003) which is endorsed under the immigration rules to show permission to remain in the United Kingdom without limit of time. This prevents those fed up with delays and mistakes in EEA casework from cutting to the chase and going straight to the Nationality Directorate which has historically been more reliable in such matters.
• The childcare provision does not count as ‘public funds’ under para 6 of the Immigration Rules
• New AN (Naturalization) Application form: https://www.gov.uk/government/publications/application-to-naturalise-as-a-british-citizen-form-an
Recent case-law
• The Supreme Court found a duty on the Secretary of State to apply its policy of evidential flexibility in Mandalia v Secretary of State for the Home Department [2015] UKSC 59
The Court of Appeal has given its judgment on the interpretation of section 94B of the Nationality, Immigration and Asylum Act 2002 (the ‘deport first appeal later’ provisions) in R (Kiarie and Byndloss v Secretary of the State for the Home Department) [2015] EWCA Civ 1020.
• In VS v the Home Office [2015] EWCA Civ 1142, the Court of Appeal provides helpful dicta on the construction of Home Office policies on assessing age and on the detention of children who are age disputed.
• Mitchell (Basnet revisited) [2015] UKUT 00562 (IAC)
1. The decision of the Tribunal in Basnet v SSHD [2012] UKUT 0113 (IAC) does not put the burden of proof on the Secretary of State where the application was, on its face, insufficiently completed. 2. The evidence shows that the payment pages are retained for 18 months. Thus, within that period, any question of the reason for failure to obtain payment can be investigated, although the reasons for declining a payment are available only to the bank account holder, not the Secretary of State. In the light of this, a more nuanced approach to the burden of proof may be needed.
• Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 00560 (IAC)
(i) The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen’s EU rights as defined in Article 20.
(ii) The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.
(iii) The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen’s standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.
(iv) The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.
A person sentenced to a term of 12 months imprisonment made up of consecutive terms is not a ‘foreign criminal’ within the meaning of the deportation provisions of the Immigration Rules and is not therefore subject to paragraph 398 of those Rules.
R (on the application of Reah) v Secretary of State for the Home Department IJR [2016] UKUT 00055 (IAC)
Grubb, J dismisses this judicial review of a refusal to grant leave to remain outside the Immigration Rules under Article 8 of the European Convention on Human Rights.
The appellant was a Canadian national who entered the UK with entry clearance based on UK ancestry but subsequently overstayed when she did not renew her leave to enter. Her application was based on her family life with her three adult step-children from her first relationship and her family life with her current partner and his child. She had lived with and cared for her step-children for nine years, including after her first partner’s death. The eldest was now 24 years old but all three step-children lived with her and one had continuing needs as a result of his ADHD condition. She did not live with her new partner and his child as they wanted to acclimatise the children to their relationship before moving in together.
The judge found that the Secretary of State had properly considered the applicant’s family life with her three step-children and that despite the tragic circumstances, these were not exceptional or compelling. Their relationships were close, cemented through the loss of their father and her support, but there was no evidence to suggest that they were not growing towards making their own way in the world. In relation to the applicant’s family life with her new partner, the judge accepted that Appendix FM does not address all the issues in a relationship that is a close one but does not involve cohabitation. However, the judge found that she would fail to establish that there ‘exceptional’ or ‘compelling’ circumstances based on her relationship. She had formed the relationship when she had no expectation of remaining in the UK and for the most part when she was living unlawfully in the UK. The judge also found that the Secretary of State had fully considered the best interests of the child in her response to the pre-action protocol letter making this issue academic.
Section 29(4) of the Tribunals, Courts and Enforcement Act 2007 results in the Upper Tribunal having powers in relation to the making of wasted costs orders (as defined in section 29(5)) which are not subject to the limitations in s.29(3) or r.10 of the Tribunal Procedure ( Upper Tribunal) Rules 2008.
(i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom.
(ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful.
(iii) The requirement previously enshrined in paragraph 284(ix)(a) of the Immigration Rules that an applicant provide an English Language test certificate in specified terms is satisfied where the applicant has already provided a certificate of this kind to the Secretary of State which has been accepted as valid.
(iv) The jurisdiction of the Upper Tribunal in judicial review proceedings to determine any of the issues raised is not extinguished by the Secretary of State’s withdrawal of the decision under challenge: R v Secretary of State for the Home Department, ex parte Salem [1999] AC 450 applied.
· Guidance on law enforcement agencies (LEAs) making requests to the Home Office to allow a foreign national to enter or remain in the UK to give evidence at a trial: https://www.gov.uk/government/publications/foreign-witnesses
· If a visa or a migrant’s passport is lost overseas: https://www.gov.uk/government/publications/transferring-a-visa-to-a-new-passport-ecb17/transferring-a-visa-ecb17
Important point: “If required, you may ask for supporting documentation to establish that their circumstances have not changed. ECOs should use i-search to obtain information on an applicant’s leave granted in the UK. If information is not available on i-search you must make a referral to Evidence and Enquiry.”
· Handbook on European law relating to asylum, borders and immigration, aimed at non specialist lawyers from the European Union Agency for Fundamental Rights covering EU and ECHR law on 3rd country nationals (not EEA citizens): http://www.echr.coe.int/Documents/Handbook_asylum_ENG.pdf
· Rule imposing mandatory refusal for deception is not ultra vires says Court of Appeal: http://www.bailii.org/ew/cases/EWCA/Civ/2016/85.html
· Sending an immigration decision to an email address is effective service, subject to rebuttal: http://www.bailii.org/uk/cases/UKUT/IAC/2016/57.html
· The Court of Appeal has returned to the issue of “totally without merit” certificates in judicial review cases. These certificates can be imposed by a judge who refuses permission
for an application for judicial review on the papers and it prevents the applicant from seeking an oral hearing. There is a right of appeal to the Court of Appeal but with no right to an oral hearing: http://www.bailii.org/ew/cases/EWCA/Civ/2016/82.html
· Appeal lapses if leave is granted unless active notice is given to tribunal: http://www.bailii.org/uk/cases/UKUT/IAC/2016/54.html
· Tribunal interprets spouse extension rule on overstay, required documents and language certificate:
(i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom.
(ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful.
(iii) The requirement previously enshrined in paragraph 284(ix)(a) of the Immigration Rules that an applicant provide an English Language test certificate in specified terms is satisfied where the applicant has already provided a certificate of this kind to the Secretary of State which has been accepted as valid.
(iv) The jurisdiction of the Upper Tribunal in judicial review proceedings to determine any of the issues raised is not extinguished by the Secretary of State’s withdrawal of the decision under challenge: R v Secretary of State for the Home Department, ex parte Salem[1999] AC 450 applied.
·
The big change is to interview policy. Shockingly for a protection application, and contrary to UNHCR guidance, the Home Office has given itself power to refuse without an interview. The guidance says:
An interview will normally be arranged to assist the applicant to fully set out their case for being considered stateless and to submit any other relevant evidence. In other instances, questions about evidence submitted as part of the application may be resolved through additional written communications.
Where the applicant does not complete all relevant sections of the application form, caseworkers may request the missing information by writing to the applicant or their legal representative if they have one.
A personal interview will not be required if there is already sufficient evidence of statelessness, it is clear that the individual is not admissible to another country, and is eligible for leave to remain on this basis. An interview will not be arranged, and the application may be refused, where recent and reliable information including the applicant’s previous evidence or findings of fact made by an immigration judge, have already established that the applicant is not stateless or is clearly admissible to another country for purposes of permanent residence and where no evidence to the contrary has been provided.
If the applicant fails to attend an interview without a reasonable explanation or fails to reply to a written request for information, the application may be refused on the basis that they have failed to provide the required evidence, taking into account the general grounds for refusal in paragraph 322 (9) and(10) of the Immigration Rules.
Interviews will be conducted and recorded in accordance with the standards set out in the published policy on Asylum Interviews.
The other significant change is on voluntary renunciation where the guidance now states
…The question of an individual’s free choice is not relevant when determining eligibility for recognition as stateless under Article 1(1) of the 1954 Convention, even if it appears that the applicant may have been motivated by the prospect of securing leave to remain as a stateless person. The applicant must nevertheless be asked the reason for renunciation and the possibility of re-acquiring that nationality must be examined very carefully in such cases.
Loss of nationality and consequential statelessness will not necessarily prevent re-admission to the country concerned. Where there is evidence to suggest that someone has deliberately renounced nationality in an attempt to benefit from stateless provisions, and there remains an option for them to approach the relevant State State to reacquire their former nationality, the stateless application should be refused.
• According to the UK BA, it is possible to backdate Permanent Residence status date, provide the application is successful and the applicant provides sufficient documentary evidence and a corresponding note with the application, requesting to back date the Permanent Residence Certificate date. This backdating may help an EEA national to apply for Naturalization much quicker
• Immigration: skill shortages: Government Response to the Committee's Fifth Report of Session 2015-16 - Home Affairs: http://www.publications.parliament.uk/pa/cm201516/cmselect/cmhaff/857/85704.htm
• 26th Report - Draft European Union Referendum (Date of Referendum etc.) Regulations 2016 (published 26 February 2016): http://www.publications.parliament.uk/pa/ld201516/ldselect/ldsecleg/105/10502.htm
• Abdul (section 55 – Article 24(3) Charter) [2016] UKUT 00106 (IAC)
(i) There is no hierarchy of weight or importance in the various considerations recited in regulation 21(6) of the EEA Regulations. The weight to be attributed to each factor will vary according to the fact sensitive context of the individual case.
(ii) Where it is contended that the decision maker and/or the First-tier Tribunal (FtT) has acted in contravention of section 55 of the Borders, Citizenship and Immigration Act 2009, the Upper Tribunal will scrutinise the degree of engagement with all material evidence and, in particular, will search for clear findings in the decision of the FtT of what the best interests of any affected child are.
(iii) Article 24(3) of the EU Charter of Fundamental Rights creates a free standing right (although not absolute).
(iv) Where this right is engaged, a failure by the decision maker and/or the FtT to acknowledge it and to decide accordingly may constitute a material error of law.
• R (on the application of Kasicky) v Secretary of State for the Home Department (Reg 29AA: interpretation) IJR [2016] UKUT 00107 (IAC)
1. In reg 29AA(3) of the Immigration (European Economic Area) Regulations 2006, the word “appearance” refers to P’s formal presence at his appeal.
2. In ascertaining whether the exception in reg 29AA applies, the possibility of managing risk by detention or conditions is a factor to be taken into account.
Indefinite Leave to Remain - calculating absence - changes from 6 April 2016
Applications for settlement made before 6 April 2016:
You can include time between your entry clearance being granted and your entering the United Kingdom as part of your continuous period but only if the delay is less than 90 days.
Absences between the date entry clearance is granted and the date you enter the United Kingdom are not treated as an absence from the United Kingdom and do not form part of the 180 days allowed within the relevant 12 month period.
If the delay is more than 90 days, the earliest date you can include in your continuous period will be the date you enter the United Kingdom.
Applications for settlement made on or after 6 April 2016:
You can include time between your entry clearance being granted and you entering the United Kingdom as part of your continuous period.
Absences between the date entry clearance is granted and the date you enter the United Kingdom are treated as an absence from the United Kingdom and will form part of the 180 days allowed within the relevant 12 month period.
For example, if you entered the United Kingdom 100 days after you obtained entry clearance and have a further 81 days absence during the remainder of that 12 month period, you will have exceed the number of absences permitted from the United Kingdom.
Example: see Tier 1 (Entrepreneur) Policy Guidance version 11/2015 - page 54
- Guidance for Syrian nationals in the UK on how to extend their visa, UK Visas and Immigration, 29 February 2016: https://www.gov.uk/government/publications/...tend-their-visa
- It may be possible to succeed in getting a retained right of residence card for a non-EEA national was a durable partner (unmarried) of an EEA national, but whose relationship broke down due to domestic violence. There is no actual provisions in the Directive or the Regulations for this, but it has been reported that a recent court challenge was successful, with the lawyers managing to argue that it was discrimination based on the comparable situation with unmarried partners under the immigration rules
- Policing and Crime Bill 2015-16: http://services.parliament.uk/bills/2015-1...ngandcrime.html
· Government Response to the Home Affairs Committee 5th Special Report - Immigration: skill shortages : http://www.publications.parliament.uk/pa/c...f/857/85702.htm
- The authorities are able to conduct hacking ("equipment interference"): http://services.parliament.uk/bills/2015-1...torypowers.html
- Draft Immigration (Health Charge) (Amendment) Order 2016: http://www.parliament.uk/business/publicat...amp;itemId=1360
Pursuing compensation from the Home Office: https://www.freemovement.org.uk/pursuing-compensation-from-the-home-office/
The calculator was originally developed to assist those applying through the points based system (Tiers 1, 2, 4 and 5). However, the Immigration Rules and the way in which applications are made have evolved significantly over recent years. This means that the calculator is no longer cost-effective to manage and maintain.
The calculator helps applicants assess whether they may be eligible to work or study in the UK under the points-based system. It also indicates whether an overseas qualification meets the academic and English language requirements, within the Immigration Rules.
From the above date, applicants requiring guidance on whether they are eligible should assess their circumstances against the criteria on the UKVI website at www.gov.uk/browse/visas-immigration.
Those submitting an application on or after 6 April 2016, who wish to use an overseas qualification to support their immigration application, will need to obtain a statement from UK National Recognition Information Centre (UK NARIC). Applicants will need to contact and pay UK NARIC directly for this. For further details visit www.naric.org.uk/visasandnationality