New long residence case
March 12, 2010 by Webmaster · Leave a Comment
Free Movement – In the case of MD (Jamaica) & Anor v Secretary of State for the Home Department [2010] EWCA Civ 213 the Court of Appeal has dismissed two appeals against refusals under the long residence immigration rules.
In both cases the immigrants had short gaps in their lawful residence and had been refused under the ten years rule. One of them had a gap of just 38 days on one occasion. The Court followed a strict interpretation of the rules and also dismissed the appeals under Article 8, upholding the decisions of the tribunal below.
This is not the first time long residence has featured on this blog and in recent case law. UKBA have been changing their approach to the rules quite significantly over the last few years, scrapping a fairly generous policy then re-introducing a less generous version of it more recently. However, the Court of Appeal is quite clear: the rules mean what they say and to succeed under the rules the residence must be continuous and lawful.
New fresh claims case
March 9, 2010 by Webmaster · Leave a Comment
Free Movement – The Court of Appeal has re-visited the proper approach to deciding whether fresh asylum claims meet the rule 353 test. The case is R (on the application of YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 and it effectively supersedes WM (DRC) and interprets the Supreme Court decision in BA (Nigeria). In fact none of it comes as a surprise, though, and it adds little if anything new.
Firstly, giving the leading judgment, Lord Justice Carnwath holds that there is no practical difference between the rule 353 test for a fresh claim and the clearly unfounded test at section 94 of the 2002 Act. Their Lordships in the Supreme Court expended a lot of intellectual energy saying that the tests were different, but there we go. It’s all counting angels.
Older dependent relatives
July 31, 2009 by Webmaster · Leave a Comment
Just a quick post on this to highlight an extremely useful case that’s been handed down yesterday. I’ve been horribly busy so the blog has been suffering a bit, I’m afraid.
The case is ZB (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 834. It provides a really useful summary of the domestic and Strasbourg case law relevant to relationships between an older parent and his or her adult children and wider family.
In the judgment, the Court of Appeal emphasises the importance of Article 8 relationships, holds that Article 8 must be examined holistically, not compartmentalised into individual one-on-one relationships in a divide-and-conquer type approach, observes that earlier cases suggesting relationships between adults require something above and beyond the usual ties are rather elderly cases and holds that the threshold for engagement of Article 8 in such cases is not a particularly high one, and also reminds us that the test for whether a whole family can relocate to the appellant’s home country is just whether it is reasonable to expect this.
The tribunal had originally held that there was no Article 8 right engaged by the facts of the case at all, a somewhat surprising conclusion given the facts.
Source:Free Movement
Law relating to UK immigration appeals changed
March 2, 2009 by Webmaster · Leave a Comment
By Taffy Nyawanza
THE Court of Appeal has handed down yet another useful immigration decision. This is the case known as JH (Zimbabwe) v SSHD [2009] EWCA Civ 78. It clarifies and updates the law with respect to an important administrative aspect relating to immigration applications.
JH was a Zimbabwe national who entered the United Kingdom as a visitor in October 2004. Before the expiry of her visa in March 2005, she applied for leave to remain as the spouse of a person with Indefinite Leave to Remain (ILR) in the UK.
She however used the wrong form, opting for the Indefinite Leave to Remain form rather than the Further Leave to Remain one. She did not yet qualify for Indefinite Leave to Remain.
The Court of Appeal noted that JH was “the innocent victim of wrong advice she received from an organisation which, from its notepaper, did not appear to number lawyers amongst its members or sponsors”.
The Home Office responded by sending her the correct form. She completed it and returned it to the Home Office. By that time, however, her original visa had expired.
In time, the Home Office refused her application for leave to remain. JH lodged an appeal which she initially won on Article 8 (the right to a family life). There were convoluted appeal proceedings which culminated in the proceedings before the Court of Appeal.
The main issue was the correct interpretation of the statutory provision on extensions of visas.
The relevant statute says that if a person applies to the Home Office for a visa variation, his visa is automatically extended as long as he has submitted his application to the Home Office in time, in other words, while his leave is still valid.
Up until the Home Office make a decision on the application, therefore, an application for extension of a visa which is lodged in time has the effect of extending the previous visa and its conditions.
In practical terms, this means that when you lodge an application to extend your visa in time, you can, for example, continue to work if you were previously allowed to do so.
Sadly, a lot of employers do not know this straight-forward legal position and many people are often wrongly advised to stop working until their visa applications have been approved.
The Court of Appeal proceeded, therefore, to consider the important preliminary point of whether JH had lodged her application properly and in time. The question arose because JH had used a form for Indefinite Leave to Remain as the spouse of a person with ILR in the UK, which she did not qualify for.
The court said that even though the Home Office had returned her initial form as being invalid, JH’s application had been valid because it had been sent in time. This is because the Home Office had not written back to JH requesting for any specified documents or certain conditions to be met. They had simply sent back to her a different form. It did not matter therefore in this case that JH had used a wrong form.
When JH sent in the second application, her visa had by now expired. But the Court said that as long as the original application remained undecided, she was allowed to submit even a different application.
So for example, a student who applies for an extension of his visa may change that to a spouse application, so long as the first application has not been decided by the Home Office.
The court said that it made good sense to adopt such an approach as it allowed decisions to take account of relevant changes of circumstances since the first application was made. So for example a student who has married a British citizen after making an application to extend his student visa should be allowed to submit a more suitable application.
The court noted that this generous interpretation of the law might be abused by unscrupulous applicants who might make repeated applications in order to prolong indefinitely the application process. However, the court said that there were sufficient safeguards in the system, including the payment of substantial fees which should deter such people.
To conclude, therefore, the Court of Appeal’s decision in JH means that it is now possible to change an application for a visa extension which has already been lodged. This decision should benefit those people who receive wrong advice with respect to immigration forms. I make the point that immigration forms change so frequently that even some well-intentioned immigration advisors will get it wrong.
The crucial point to remember though is that this is possible only as long as a decision has not yet been reached by the Home Office on the initial application. – The ZimDiaspora
Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on [email protected], ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk
Judge to decide if return facilities are adequate
January 12, 2009 by Webmaster · Leave a Comment
Court of Appeal
Published January 7, 2009
CL (Vietnam) v Secretary of State for the Home Department
Before Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith
Judgment December 10, 2008
Where an unaccompanied child seeking asylum appealed against the refusal of his claim and removal directions, it was necessary for the immigration judge, when considering that child’s human rights, to determine whether the reception facilities for the child on return were adequate. It was not solely an issue for the Secretary of State for the Home Department to determine.
The Court of Appeal so held, allowing the appeal of CL, a citizen of Vietnam, against the decision of Senior Immigration Judge Gleeson who allowed the Home Secretary’s appeal, on December 3, 2007, against the decision of Immigration Judge Dineen on July 14, 2006, to allow CL’s appeal against the Home Secretary’s refusal to grant him asylum.
Ms Jackie Bond for CL; Mr Jeremy Hyam for the Home Secretary.
LORD JUSTICE KEENE said that CL was a Vietnamese citizen who arrived in the United Kingdom in June 2002 and claimed asylum shortly after. He was aged 13, and accompanied only by his brother, aged 14. He was an unaccompanied child seeking asylum in respect of whom the Home Secretary had specific policies.
The secretary of state refused CL asylum on July 22, 2002, on the ground that there were adequate care provisions for children returned to Vietnam, and made directions for his removal. CL appealed on July 31, 2002, but his appeal was not heard until July 2006.
The secretary of state relied on the decision of the Immigration Appeal Tribunal in BV (Vietnam) ([2004] UKIAT 00148) for the proposition that the secretary of state should be left to assess the question of adequacy of reception arrangements in a claimant’s home country.
The immigration judge rejected that argument. After considering the question himself he was not satisfied that there were adequate reception facilities for CL, and therefore not satisfied that the secretary of state could demonstrate that he had complied with his own policy of not returning children in the absence of such facilities.
The immigration judge dismissed the asylum appeal but allowed the appeal under article 8 of the European Convention on Human Rights, protecting the right to a private and family life.
The secretary of state sought reconsideration by the senior immigration judge on the basis of a material error of law. She held that the immigration judge had failed to explain why BV (Vietnam) was not determinative of the appeal which constituted a material error of law. After reconsidering the appeal, she dismissed it.
An important issue arose in the Court of Appeal.
The question was whether the adequacy of reception facilities for an unaccompanied child on return was a matter for the secretary of state alone after the completion of the statutory appeal process and did not form part of the decision on the child’s article 8 rights.
His Lordship concluded that the immigration judge was required to determine the article 8 appeal on the basis of the evidence put before him.
The extent of suitable reception and care facilities in Vietnam was relevant to that determination. He was not entitled to put that aspect of the article 8 claim on one side and leave it for future consideration by the secretary of state.
The senior immigration judge conflated two matters which in reality were distinct: The first was the secretary of state’s policy towards unaccompanied children which required her to keep reception facilities in the receiving state under review pending removal, even after the conclusion of the statutory appeal process.
The second was the tribunal’s own duty to consider the article 8 claim and to take all the relevant evidence on that issue into account as at the hearing date.
The immigration judge properly recognised the need to deal fully with the article 8 position, despite the secretary of state’s undertaking not to return a child unless satisfied that reception facilities for him were adequate.
The senior immigration judge had wrongly concluded that there had been an error of law in the immigration judge’s decision, which should stand.
Lady Justice Smith agreed; Lord Justice Sedley delivered a concurring judgment.
Solicitors: Ms Tori Sicher, Southwark; Treasury Solicitor.
Source : The Times (January 07, 2009)
Immigration Advisory Service response
Publication date: 8 January 2009
Court of Appeal win for IAS safeguards unaccompanied asylum seeking children
Reported in The Times yesterday the case of CL (Vietnam) v Secretary of State for the Home Department sets out clearly that where an unaccompanied child seeking asylum appealed against the refusal of his claim and removal directions, it was necessary for the Immigration Judge, when considering that child’s human rights, to determine whether the reception facilities for the child on return were adequate. It was not solely an issue for the Secretary of State for the Home Department to determine.
“We are delighted with this judgment” said IAS Chief Executive Keith Best. “On too many occasions the Home Office has acted in an unfettered way and this was another example. Based on a 2004 judgment the Home Office had claimed that the Secretary of State was the sole determinant to assess the question of adequacy of reception arrangements in a claimant’s home country but, as the Court of Appeal found, it is the responsibility of the Immigration Judge to consider all the relevant evidence in relation to a claim under Article 8 of ECHR (the right to private and family life) and that included the adequacy of reception facilities. The Immigration Judge was not satisfied that there were adequate reception facilities for CL. On reconsideration the Senior Immigration Judge had overturned that. Thanks to the hard work of one of our solicitors, Ms. Tori Sicher, and the presentation of the case by counsel, Ms. Jackie Bond of 4 King’s Bench Walk, the original decision of the Immigration Judge was vindicated.
“This will mean that such matters must be judged independently by the judiciary rather than by the Home Office which has its own vested interest in returning asylum seekers and acting defiantly towards the rule of law. It is another safeguard that is necessary to ensure that the executive acts within the law.” – IAS
Presumption to detain declared unlawful
December 20, 2008 by Webmaster · Leave a Comment
News just in: the Home Office’s secret policy of a presumption of detention in almost all deportation cases was on yesterday declared unlawful. The current version of the Enforcement Instructions and Guidance, which incorporates the policy, was also declared unlawful.
Mr Justice Davis holds that the policy was not quite a blanket policy to detain all those facing deportation, but goes on to find that it was not lawful anyway. Firstly, it offends against the principles surrounding the power to detain. The statute that grants the Secretary of State the power to detain creates a presumption of liberty. Secondly, the policy was not sufficiently published or accessible. Indeed, it ran contrary to the policy that was published, at least until September 2008.
The applications for compensation for unlawful detention are then refused on the basis that even without the presumption in favour of detention these claimants would have been detained anyway: there was no causation and therefore no entitlement to damages. However, he does hold that, given the background to the cases, it is for the Secretary of State to show that detention was lawful, whereas normally it would be for the claimant to show that detention was unlawful; he shifts the burden of proof, basically.
Human rights don’t get a mention, interestingly.
The judge identifies some possible reasons to explain the failings at the Home Office: not wanting to be bearers of bad tidings to Ministers, an instinct for ducking apparently intractable problems or institutional inertia. He wisely refuses to take his pick, though. None of them exactly reflect well on the responsible civil servants or leadership at the Home Office.
Both sides wanted to appeal but permission was refused. Nevertheless, given the significance of the issues at stake it is likely to reach the Court of Appeal and quite possibly the Lords. - Free Movement
