The New Deportation Rules

Source: Free Movement

From 9 July 2012 the UKBA’s new rules on deportation took effect and should be retrospective, paragraph A362 stating ‘Where Article 8 is raised in the context of deportation…the claim under Article 8 will only succeed where the requirements of these rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order…was served.’  If then, regardless of when the notice of intention to deport or the deportation order was served, the requirements of these rules have now to be met one wonders why Home Office Presenting Officers and the Secretary of State’s counsel are currently being instructed not to raise the new rules in appeals against decisions taken before 9 July 2012.   Whatever their instructions, it’s essential to be prepared though as accordingly to our sources guidance given to Tribunals directs them to apply the new rules to appeals.

As a starting point for looking at these rules, section 7 (‘Policy Background’) the Explanatory Memorandum to the Statement of Changes is worth reading, the deportation portion providing:

Clear criteria on criminality

7.9 The new Immigration Rules set clear criteria for how an applicant’s criminality will impact on the scope for them to be granted leave to enter the UK on the basis of their family life or leave to remain in the UK on the basis of their family or private life. ..

At first glance then it might seem that, if it were possible, things have just got even worse for foreign national prisoners seeking to assert their Article 8 rights.   The criteria within the rules are certainly clear enough but whether the Secretary of State is correct in stating that Article 8 claims can only ever succeed if the rules are met is highly questionable.   In fact, I don’t think it’s right at all.

Here are the new rules:

396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation.   It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.

397. A deportation order will not be made if the person’s removal pursuant to the order would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.

That’s clear enough.  They continue:

398. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and

(a)       the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b)       the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c)       the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors..’

Pausing there, the ‘..persistent offender who shows a particular disregard for the law’ in paragraph 398(c) is arguably the old conducive test anyway and I don’t see why a ‘serious harm’ test even appears since any ‘serious harm’ to the public would likely attract a sentence of at least 12 months in any event.    On the other hand, one can perhaps guess that it at least gives the Secretary of State the power to interpret ‘harm’, ‘persistent offender’ and ‘particular disregard for the law’ as widely as is necessary at any particular time.

Paragraph 399 provides that it applies where paragraph 398(b) (sentence between 12 months and under 4 years) or paragraph 398(c) (persistent offender/offending caused serious harm) apply.   Paragraph 399(a) refers to partners and children whereas paragraph 399(b) refers to just partners:

399 (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK; or

(b)       the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and

(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK..

At paragraph 399A, the SSHD turns to the situation where an offender has no children or partner:

This paragraph applies where paragraph 398(b) or (c) applies if –

(a)       the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or

(b)       the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.’

The Explanatory Memorandum summarises the supposed effect of these rules more emphatically:

Deportation will not be proportionate where:

- They have a genuine and subsisting relationship with a partner in the UK (who is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection), and they have lived here lawfully for at least the last 15 years (excluding any period of imprisonment) and there are insurmountable obstacles to family life with that partner continuing overseas; or

- They have a genuine and subsisting parental relationship with a British citizen child, or a foreign national child who has lived in the UK continuously for at least the last seven years, and it would be unreasonable to expect the child to leave the UK, and there is no other family member who is able to care for the child in the UK; or

- They have resided in the UK continuously for at least the last 20 years, or the applicant is aged under 25 years and has spent at least half of his life residing continuously in the UK (in either case, excluding any period of imprisonment), and they have no ties (including social, cultural or family) with their country of origin.

Taking all of the above into account, is the Secretary of State therefore saying that Article 8 would not be breached in situations other than those listed and thus the consideration of any person’s claim would fall into the legally meaningless ‘exceptional’, for example, where a foreign national prisoner’s sentence is or exceeds 4 years’ imprisonment?    It does seems so, but she must be is wrong, mustn’t she?

Looking at paragraph 399(a), for example, can this be said to be fully compliant with section 55 of the Borders, Citizenship and Immigration Act 2009 and/or the Supreme Court’s ruling in ZH(Tanzania)?   I would say not where, for example, the child has lived here for all his life but that life is, say, but 4, 5 or 6½ years long.   Also, by whose standards are we to judge whether another family member is ‘..able to care for the child’.  Further, even if there is a family member able to care for the child, is the exclusion of the foreign national parent in the child’s best interests?  Can a few lines of rules reflect such a legally vexed and emotionally charged issue?  (As an aside, in a recent determination one Tribunal found that the exclusion would be in the child’s best interests as the father would not be a good role model for the child anyway.   Look out for that one in the coming weeks and months).   Further, paragraph 399(b)(ii) reintroduces the ‘insurmountable obstacles’ test.  Whether that means ‘Mahmood insurmountable’ or ‘VW(Uganda) insurmountable’ is unclear.

The SSHD’s claimed intention was to have its officials and Tribunals apply her definition of proportionality as codified in the rules.   But these rules do not define proportionality in the way that it is understood in domestic or European jurisprudence.  My colleague Claire Physsas in her excellent recent post clearly sets out the conflicts between the jurisprudence and the SSHD’s idea of Article 8 proportionality and it is therefore unnecessary for this to be repeated here.

Certainly, Article 8 jurisprudence will have to be referred to in interpreting some of the rules (reasonableness of expecting a child to leave the United Kingdom, insurmountable obstacles, etc.) and, as stressed by Claire, where it demonstrated that the rules do not accurately or lawfully reflect Article 8 jurisprudence on proportionality (or even family or private life) then the courts will be unable to ignore their constitutional duty under the Human Rights Act 1998.

To add to the unsatisfactory nature of the construction of the new rules, at paragraph 399B it states (my emphasis): ‘Where paragraph 399 or 399A applies limited leave may be granted for a period not exceeding 30 months.  Such leave shall be given subject to such conditions as the Secretary of State deems appropriate.’ Therefore even if the particular foreign national succeeds under deportation rules on Article 8, the SSHD’s power to grant only 30 months’ leave is discretionary only. It does seem bizarre that when, in the SSHD’s own words (paragraph 397) a deportation order will not be made where removal pursuant to that order would breach Article 8 that a person’s stay in the United Kingdom would still potentially be subject to arbitrary decision making.

It is either ‘necessary’ to deport a person or it is not and once the SSHD or a Tribunal has decided that it is not, it is only right that the enjoyment of these Article 8 rights be properly respected by the certainty that 30 months’ leave will automatically be granted and that the leave is free from any ‘conditions’ deemed appropriate by the SSHD and what the current SSHD considers appropriate is probably highly inappropriate.

Going for Glory: Part 1

Source: Free Movement

The latest Country Guidance case on Zimbabwe finds, in essence, that despite vociferous and violent pronouncements about homosexuality at the highest level in that country, Zimbabwe is a safe haven for lesbians and gays. The case is LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) and it was reported on 26 January 2012.

In some ways the case appears at first blush to represent simple common sense: each case must be argued on its own facts. However, the effect of a Country Guidance case is more pernicious than may first appear. It introduces a starting presumption as to the outcome of the case which must be rebutted by the party whose case is negatively affected by the case in question. Practice Direction 12 for the tribunal states that Country Guidance cases are authoritative and that it will likely be an error of law not to follow a Country Guidance case.

The case highlights long held concerns about the entire principle of having Country Guidance cases. Compare the following two sentences from paragraphs 17 and 24:

“Before us, the appellant did not rely only on general risk to homosexuals, or to female homosexuals.”

and

“[The appellant's lawyer] invited us to allow the appeal primarily because all homosexuals, male and female, are at risk of persecution throughout Zimbabwe.”

The Appellant’s primary case was said to be about the individualised risk to her alone, based on the unique facts of her own case. That might be described as the traditional approach to arguing a legal case – many might be surprised to learn there is any other approach, in fact. However, the appellant’s representative argued and presented considerable evidence that an entire class of persons, lesbians and gays in Zimbabwe, were refugees. Only one of that class of persons was represented before the tribunal but the lawyer took it on himself to argue the case for everyone, no doubt encouraged by directions from the tribunal to do so.

I can myself fairly easily think of arguments concerning the evidence put forward by the Home Office in this case but I have no idea if these arguments were put to the tribunal. Why was the evidence of Women of Zimbabwe Arise (WOZA) considered to be relevant and given any weight, for example? In what way were they qualified to give evidence about the treatment of lesbians or others and why would they not suffer from the same deep rooted homophobia as the rest of Zimbabwean society?

The determination is open to legal criticism (where is the evidence to support the findings, apart from anything else?) and an appeal might normally be expected. But here too arises another problem with Country Guidance cases: the particular appellant actually succeeded and will be recognised as a refugee. She therefore cannot appeal, and the negative generalised conclusions that had nothing to do with her case will now stand for several years creating a presumption in other cases.

This type of Country Guidance case is anathema to the common law system of precedent and offends against the general prohibition on judgments in rem. The tribunal should not be reporting such cases.

It is unfair to be excessively critical of the lawyer or lawyers in this case because plenty of others do the same. Being involved in a Country Guidance case raises one’s profile and it is exciting, opening up all sorts of legal interest and enabling generous Legal Services Commission funding for expert evidence and other preparatory work. However, these Country Guidance cases where the arguments and evidence is extraneous to the clients best case are very different to traditional  test cases where one is forced to argue a novel point of law because the client’s case depends on it or with the limited number of Country Guidance cases where, like those on Somalia, the client’s best case is actually the generalised risk.

I was once memorably (to me!) and I thought rather unfairly described as ‘wholly disingenuous’ in a reported determination when I resisted the tribunal’s attempts to force me to make generalised arguments beyond the scope of the particular facts of my client’s case. It continues to surprise and depress me that others don’t do the same.

Asylum GPs investigated

One in ten primary care organisations are flouting official guidance by investigating GPs thought to be treating undocumented migrants, according to a recent survey.

Read more

Source: Pulse

New Family Returns process

Source: Free Movement

The Home Office has introduced a new way of dealing with the return of families from the UK. It is called the ‘family return process’. If it is faithfully implemented by staff on the ground (a big ‘if’), it represents a massive improvement on the previous approach.

The main policy document is Chapter 45 of the Enforcement Guidance and Instructions. It begins by setting out key principles:

• The new process must take full account of our duty to have regard to the need to safeguard and promote the welfare of children in the UK in accordance with our statutory and international obligations.
• The new process must treat families with children humanely and with compassion.
• Independent expertise should be brought to bear at the most difficult stages of the process.
• Families with no legal right to be in the country need to leave.
• Parents should have the opportunity to make choices about the manner and timing of their departure.
• The new approach must be affordable.

The emphasis on the duty to safeguard and promote the welfare of children is very welcome, as is the new escalation process, consisting of three stages:

1. Assisted Return – We will ensure that families have a dedicated Family Return Conference to discuss future options and the specific option of assisted return.  We will examine how best to bring strong family engagement skills to bear  at these conferences and when engaging families throughout the process.
2. Required Return – We will give families who do not choose to take up the offer of assisted return at least two weeks’ notice of the need to leave the country and the opportunity to leave under their own steam via a self check in return without any enforcement action.  This extended notification period – up from 72 hours – will ensure that the family can prepare properly for their return and give them time to raise any further issues or seek further legal redress.
3. Ensured Return – Only once the new assisted and required stages have been exhausted, will we consider enforcement action: our aim is for families to depart before reaching this stage of the process.  An independent Family Returns Panel will help to ensure that individual return plans take full account of the welfare of the children involved.

This is a very welcome change from the previous ‘do not pass go’ approach to dawn raids and detention as a first resort, which has been very heavily criticised by campaigners and the courts.

There is some interesting material exhorting UKBA staff to consider the wishes and feelings of affected children, which is very much in line with what Baroness Hale says at the end of her judgment in ZH (Tanzania):

Case Owners must take account of the views of any children likely to be affected by a decision of the UK Border Agency. Provided they are able and willing to do so properly, the role of representing those views to UKBA should be performed by the child’s parent(s), or any other accompanying adult who has parental responsibility for the child.

However, the UK Border Agency should not assume that the best interests of a child, on the one hand, and those of its parents (or any adult with parental responsibility for the child), on the other, will be the same. Where those interests are not aligned, appropriate steps must be taken to elicit and assess the child’s views, as well as those of the parent(s) or any other adult with parental responsibility for the child.

There is still basically nothing on appeals and how or whether children should be questioned by a Presenting Officer. This is a real lacuna, in my view. The view of UKBA seems to be that the Immigration Judge can be expected to police hearings, but experience shows that this is an inadequate safeguard.

A new Independent Family Returns Panel has also been created to advise UKBA on family cases:

The purpose of the Panel is to provide independent advice to the UK Border Agency on the method of removal from the UK of individual families when an ensured return is necessary. The advice provided by the Panel will help to ensure that individual return plans take full account of the welfare of the children involved and that the UK Border Agency fulfils its responsibilities under section 55 of the Borders, Citizenship and Immigration Act 2009.

The Panel will publish an annual report on the advice it has given, including information on any cases where the method of return differed from that advised by the Panel.

The Panel will also consider the overall handling of families who are denied entry to the UK at the border to assess whether detention in such cases is being kept to a minimum.

The initial membership looks to be high powered and well qualified, although I seem to remember Dr John Keen from an odd memo he had written for UKBA several years ago about psychiatric evidence which Presenting Officers started to misuse for a time.

A host of related policy documents have also been posted to the UKBA website, including:

• A new Asylum Policy Instruction on Processing Family Cases
• A new webpage about the Independent Family Returns Panel
• A pdf document entitled Independent Family Returns Panel: how it will work
• A document on transitional arrangements for existing cases

The proof of a pudding is in the eating. Senior figures at UKBA and the Minister himself seem very serious about this new process and the policies described above represent a serious attempt to enforce cultural change on UKBA. It would be welcome if we could see a similar all-out effort to improve decision making in family cases before the removal stage is reached. At the moment there are some woeful decisions still cropping up where no consideration at all is given to the effect of removal on one of their parents on affected children.

Revised detention guidance

Source: First published 01 January 2011 – United Kingdom Immigration Law Blog

The UKBA has updated Chapter 31 (Detention and detention policy in port cases) of its Immigration Directorates’ Instructions (IDIs).

The Agency has also revised Chapter 55 (Detention and temporary release) of its Enforcement Manual. Everyone can only hope that the UKBA can adhere to its guidance and instructions this year.

Last year the UKBA really struggled to keep up with itself and its massively overheated and inefficient bureaucracy could not follow the procedures that they ought to have. They need people who can read and write a bit better.

The agency has also revised its guidance on referring cases between its units. The new document can be found here. Don’t let all the acronyms intimidate you: CID (Central Information Database); LIT (Local Immigration Team); Local Enforcement Units are also abbreviated so that NEYH means North East, Yorkshire and Humberside region and so forth.

Refugee housing website relaunch

A newly revised website offering guidance and advice on housing rights for refugees and new migrants has been relaunched, providing tools for relevant providers, agencies and individuals.

The housing rights website www.housing-rights.info has proved immensely popular since first launched in 2008, with on average 3,000 ‘hits’ each month.  It has now been completely rewritten and re-launched to provide an even better guide to housing and housing benefits rights for refugees, migrants and other new arrivals to England.

Read more

NHS White Paper published

The NHS White Paper “Equity and Excellence : Liberating the NHS” was published on 12th July 2010. It can be accessed online at:

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_117353

It sets out the Government’s long term vision for the future of the NHS. The vision builds on the core values and principles of the NHS, a comprehensive service, available to all, free at the point of use, based on need, not the ability to pay.

Under the new plans, patients will be able to choose which GP practice they register with, regardless of where they live.  Other changes include groups of GPs being given freedom and responsibility for commissioning care for their local communities.  Services will be more joined up, supported by a new role for Local Authorities to support integration across health and social care.  Strategic Health Authorities and Primary Care Trusts will be phased out.

Arrangements for people whose Limited Leave to Remain expires in August and who wish to apply for Indefinite Leave to Remain

Please find attached below a letter from UKBA regarding Indefinite Leave to Remain arrangements for refugees and those granted Humanitarian Protection whose 5 years Limited Leave to Remain expires from August 2010.  People falling into this category are eligible to apply for Indefinite Leave to Remain on the grounds that they have a continuing need of protection.    A briefing pack is also attached which contains the following items:

Copy of UKBA website pages

Flyer

Customer Journey Presentation

SET (Protection route) Application form

First contact letter

Frequently asked questions

UKBA publishes guide on employing refugees and asylum seekers

Tier 5 (temporary worker) – government authorised exchange

In October 2009, two new additional guidance documents were published on the Tier 5 (temporary workers) government authorised exchange scheme. The guidance for overarching bodies is to assist potential overarching bodies in establishing a government authorised exchange scheme under Tier 5. The other is guidance for goverment departments about the government authorised exchange schemes.

More information on the New Guidance can be found on the UKBA website

Rebate of duty on immigrants’ effects

The purpose of this article is to provide information and guidance on the importation of goods under rebate of duty on immigrants’ effects.

Who Gets Immigrants’ Rebate?

Any person who enters Zimbabwe:

(a) To take up employment or permanent residence
(b) For the purpose of attending any educational institution
(c) As a returning resident after residing outside Zimbabwe for a period of not less than two years
(d) As a diplomat.

Goods Admissible Under Immigrants’ Rebate

(a) Personal and household goods.
(b) One motor vehicle per immigrant who is over the age of 16.

Goods Not Admissible Under Immigrants’ Rebate

(a) Goods of a commercial nature
(b) Trucks or vans whose gross mass exceeds five tonnes
(c) Vehicles designed for transport of 15 or more people including the driver
(d) Motor vehicles imported by an immigrant who is at the time of arrival under the age of 16 years
(e) More than one motor vehicle per immigrant

Conditions:

(a) Goods must be in physical existence and fully paid for by the immigrant before the time of his/her arrival
(b) Goods have to be for the immigrants’ personal use in Zimbabwe
(c) Goods to be imported at the time of arrival or such time as the Commissioner-General may in his discretion approve
(d) Immigrants rebate granted once in four years
(e) Goods cleared under this rebate should not be sold, offered or displayed for sale, leased or hired to any other person within two years from the date of clearance without the Zimbabwe Revenue Authority’s permission.
(f) Goods must be properly declared.

Requirements:

(a) Passport
(b) Employment, residence or aliens permit (for non-residents)
(c) In case of a person who has been on:

(i) A course or study, proof that he has completed such course or study
(ii) A contract of employment, proof that he has terminated such contract of employment
(iii) An extended absence from Zimbabwe, proof of such absence from Zimbabwe

(d) Evidence relating to the acquisition, ownership or purchase of such effects and other goods as may be required by the Commissioner-General (e.g. invoices, registration books, police clearance and telegraphic transfers).

For further details, please contact your nearest Zimra office or LINK FREIGHT SERVICES OR SENDING GOODS TO ZIMBABWE GROUP.

Article submitted by: Zimbabwe Revenue Authority (Zimra) Corporate Communications Division. Their contact details are as given below:

Zimbabwe Revenue Authority
6th Floor Intermarket Centre
Corner First Street/Kwame Nkrumah Avenue
Harare
Tel No.: (04) 790811-4
Fax No.: (04) 773161

E-Mail Address: pr@zimra.co.zw