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Source: Guardian

The concession that allowed Tier 1 and 2 applicants to make an in-country immigration application before sitting the language test is being withdrawn. This was introduced so that applicants already in the UK were not caught out by the change to the rules, but is being withdrawn because the requirement is now more common knowledge and tests are easier to arrange now that supply from test providers has caught up with demand.

Applicants for extensions under Tiers 1 and 2 should therefore now make sure they arrange their tests well in advance of the need to extend their visas. Some will no doubt end up being caught out by this change as they will not be keeping an eye on every change to the Immigration Rules and policy guidance – of which there are very, very many, with some major ones to come later this week apparently. An out of time application can always be made under the Points Based System, although it does mean sacrificing the now largely pointless right of appeal and a short period of overstay, which can be problematic later.

A number of technical changes are also being made to reflect changes to the way that various approved test providers label and conduct their tests.

Rules…

The Government has finally gotten around to amending the Immigration Rules to make them a bit less human rightsy looking. This follows a number of pledges from David Cameron, Theresa May and Damian Green to do so. Paragraph 395C of the rules is to be deleted, as predicted here on Free Movement some time ago. It is, though, a futile exercise in window dressing. The rule has benefitted not a single person as far as I am aware and the UK’s human rights obligations are unaffected by the change.

The amendment is being brought into effect by Statement of Changes HC 1733 and will come into effect on 13 February 2012.

Paragraph 395C at the moment reads as follows:

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Source: Guardian

What is the psychological effect upon employers of the increasing stringency of their obligations under the Points Based System?

The civil penalties under section 15 of the Immigration and Nationality Act 2006, which, in February of 2008, created the possibility of a £10,000 penalty to be paid by an employer for each person he or she is found to employ who does not have permission to be in the UK, or whose permission does not entitle them to work. Employers are liable for this penalty whether or not they knew that their employee didn’t have the necessary leave to enter or remain in the UK or permission to work.

If they did have such knowledge employers may be prosecuted under section 21 of the same Act – and could be sent to prison for up to 6 months.

But the dangers facing employers don’t end there. Unless they keep up with their reporting obligations with regard to employees from outside the European Economic Area (the “EEA”) as Tier 2 Sponsors – the UKBA could remove their Tier 2 Sponsor licence – which could be nothing short of catastrophic for those employers dependent upon skilled labour from outside the EEA.

So it is not mere hyperbole to say that the joint effect of the regimes imposed on sponsors is a kind of enhanced vigilance bordering on paranoia.

The recent Employment Appeal Tribunal judgment in H Okuoimose v City Facilities Management (UK) Ltd UKEAT/0192/11/DA demonstrates how employers’ concerns as to the lawfulness of a person’s employment can lead to injustice.

The Claimant, a Nigerian national with a Spanish husband, was working for the Respondent at an ASDA store when, on 8 July 2010, the Respondent suspended her without pay and demanded evidence of her permission to work in the UK. The Respondent did this because the Claimant’s passport had a UKBA endorsement indicating that she had been “given” the right to reside in the UK as the spouse of an EEA national exercising Treaty rights in the UK until 8 July 2010. The Claimant told the Respondent that she’d applied to the UKBA for renewal of her endorsement. The Respondent then contacted the UKBA themselves.

The UKBA said that they had checked their records and could not confirm the Claimant’s entitlement to work and, furthermore, unless the Claimant did provide the Respondent with evidence of her entitlement to work:

“[she would] not have a statutory excuse against liability for payment of a civil penalty for employing an illegal migrant worker”.

The Respondent sacked the Claimant accordingly. Not long after the UKBA wrote to the Respondent, it provided a further letter to the Claimant, in which it said that until her application had been decided she would:

“be treated for immigration purposes as a family member of a legally resident EEA national and, as such, [she was] free to live and work in the UK”.

The Respondent therefore reinstated her to her job.

The Claimant’s case in the Employment Tribunal, and on which she succeeded after her first instance appeal was dismissed, was that she had been wrongly suspended without pay and that she had always been entitled to work in the UK as the family member of a EEA national. It did not matter, as His Honour Judge McMullen QC accepted, that she did not have the necessary residence documents. Those documents did not give her the right to work – they were simply evidence of the existence of that right, which came into being because the Claimant was married to an EEA national. This was clear from Article 25 of the Citizens’ Directive:

“Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.”

The Claimant was accordingly awarded her pay for the period in which her employment had been suspended.

At first instance the judge had found that the Respondent had been entitled to act as it had done because of its concerns about being penalised under section 15 of the Immigration and Nationality Act 2006. That judgment was however overturned because it was clear that that section of that Act had no application to the Claimant.

What is interesting about all this is the role of the employer as the delegated enforcer of immigration control. A sense of paranoia will inevitably lead people entrusted with such a role into a trigger happy response to a concern about their employees’ entitlement to work. This is a happy example of someone who was able to obtain redress against the effect of such a disposition on her.

Heaven knows how many examples there are to the contrary, but perhaps it is naive to imagine that they are anything other than what was and is intended.

Kathryn Bradbury

Gherson Immigration Lawyers

www.gherson.com

In 2008, Sanaa* (not her real name) left Iraq to join her British husband and start a new life in southeast England. But from the moment she set foot in her new home, she was beaten and verbally abused by her husband, also of Iraqi origin.

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Source: s o l i c i t o r s   j o u r n a l

(IRR) – The Supreme Court has condemned the raising of the minimum age of entry for spouses and partners to 21 as a ’sledgehammer’.

The Home Office protested that the sole purpose of the November 2008 changes – which raised the minimum age of entry to join spouses and partners settled in the UK from 18 to 21 – was to help prevent forced marriages. The fact that thousands of spouses and partners in consensual marriages were forced to stay apart or stay abroad by the changes was a price worth paying for the protection of the vulnerable young women concerned. But although the law lords took the Home Office at its word, the way the changes were brought in, set out meticulously by Lord Wilson in the lead judgment in the Supreme Court, raises questions about the motivation of the Labour government, and recent remarks by prime minister Cameron raise further questions about the coalition’s support for the rule.

The Labour government’s interest in the issue of forced marriage began in 1999, when the Home Office established a Forced Marriage Working Group, which produced a report, A choice by right,[1] the following year. Jointly with the Foreign Office, it set up a Forced Marriage Unit in 2005 to offer help to those trapped in forced marriages. This unit deals with roughly 150 to 200 foreign victims of forced marriage a year, of whom between a quarter and a third are between 18 and 20. In 2007, parliament passed the Forced Marriage (Civil Protection) Act, which provides a mechanism of protection.

These interventions on the issue of forced marriage were viewed with deep suspicion by political commentators and in south Asian communities.[2] The measures were seen as having more to do with an almost colonial-style policing of Asian communities than with any genuine concern for victims. Why, it was asked, was the government cutting provision for refuges, cutting legal aid provision which enabled women to use the law to protect themselves against domestic violence? Why were Home Office representatives fighting so hard in the immigration courts to deny and deport women complaining of honour violence, sexual violence, domestic violence abroad? Why, in 2003, did the government increase the probationary period for those joining husbands or partners here from one to two years, forcing many women to stay in unhappy, violent marriages? Why didn’t it make it easier for migrant women to leave violent partners by waiving the ‘no recourse to public funds’ rule for them? Ignoring all these issues to take up in such a high-profile way the far less common problem of forced marriage, which south Asian women’s groups were already working to combat in their own communities, was widely perceived as feeding into and perpetuating anti-Asian and particularly anti-Muslim racism at a time when the government was pushing the ‘community cohesion’ agenda and promotion of ‘British values’.

It was in this context that in 2006, the Home Office commissioned research on the desirability of raising the minimum age for entry of foreign spouses, having already raised the minimum age from 16 to 18. The research came down strongly against such a measure, saying it would not have the desired effect, would be detrimental and discriminatory – so the Home Office refused to publish it, saying it was methodologically flawed. Instead, it put the issue out for consultation – but there was no consensus in favour of raising the age; respondents were almost evenly split. In June 2008, the Home Affairs Select Committee investigated forced marriage as part of an inquiry into domestic violence and honour violence – and warned the government not to change the rules on entry of foreign spouses and partners until it had conclusive evidence of the impact of such a change, for parties to both forced and consensual marriages. Ignoring the Select Committee, the Home Office changed the rules anyway, and thousands of young couples found they could not live together in the UK. They included a young British-Chilean couple who fell in love but had to go to Ireland to be together, and a Pakistani couple who had had an arranged marriage. Both couples wanted to be together in Britain, and with the help of the Joint Council for the Welfare of Immigrants (JCWI) (http://www.jcwi.org.uk/), brought the test case arguing that the blanket rule against entry for under-21s denied their right to live together.

The Supreme Court, by a four to one majority, vindicated that right in its judgment of 12 October,[3] saying that the rule was brought in hastily, without the evidence the Select Committee said was necessary, and that the Home Office had not thought about the ‘colossal interference’ with the family life of the thousands of couples affected by the change each year.

The current government could have conceded the case, but instead chose to fight it. Although Home Office lawyers argued strenuously that the only purpose of the rule was to prevent forced marriage, and it had nothing to do with immigration control, prime minister David Cameron is on record as saying that it would ‘bring down numbers’[4] – an increasingly desperate obsession of his since he was forced to modify drastically his attempts to cut skilled worker visas in response to cries of pain by industrial leaders. Women’s organisations pointed out that the rule was unnecessary, since the protections of the Forced Marriage Act were working well, and Southall Black Sisters (http://www.southallblacksisters.org.uk/), a south Asian women’s group which intervened in the Supreme Court to support those affected by the rule, expressed the view that forced marriage is being used ‘in a cynical way to create a moral panic to justify the government’s immigration agenda’.

—-
FOOTNOTE

[1] Forced Marriage Working Group, A choice by right: The report of the working group on forced marriage, 21 May 2000. Download here (http://www.communities.gov.uk/publications/communities/choiceby2). [2] Amrit Wilson, ‘The forced marriage debate and the British state’, Race & Class 49:1, 2007 (http://rac.sagepub.com/content/49/1.toc). [3] Quila and Bibi v Secretary of State for the Home Department [2011] UKSC 45, view the judgment here (http://www.bailii.org/uk/cases/UKSC/2011/45.html). [4] Rahila Gupta, ‘Mere posturing from the Tories on forced marriage’ (http://www.guardian.co.uk/commentisfree/libertycentral/2011/oct/13/forced-marriage-law-supreme-court), Guardian, 13 October 2011.

Between May and the end of August 2011, 697 children were held at all Greater London and South East ports. Almost one third were unaccompanied children. This could mean as many as 2,000 children could be detained each year.

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Source: Ekklesia

The cat gets it

Theresa May and David Cameron have promised to crack down on the perversion of human rights. May specifically stated that she wanted to amend the Immigration Rules to do so. Some of this is no doubt pure politics of the dogwhistle variety: it will not necessarily be followed by new policies or actual changes, but ministers want to be heard saying the ‘right’ thing.

It is difficult to take May seriously after Catgate. She cannot really be expected to check everything that is placed in front of her by her speech writers, but the pledge on changing the rules was unusually specific. I’ve been wondering what might follow, and my guess is that paragraph 395C will be scrapped. A Presenting Officer suggested to me that it might go the other day when we chatting before court, and this would perhaps arguably fulfil May’s promise.

The rule, very recently slightly amended, currently reads as follows:

395C. Before a decision to remove under section 10 of the Immigration and Asylum Act 1999 or section 47 of the Immigration, Asylum and Nationality Act 2006 is given, regard will be had to all the relevant factors known to the Secretary of State including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person’s behalf.

In the case of family members, the factors listed in paragraphs 365-368 must also be taken into account.

The flaw is that, as you can see, the paragraph makes no mention whatsoever of human rights. Arguments under this rule have a completely different legal basis additional to and more generous than human rights arguments. I don’t think this sort of legal nicety will bother May and her speech writers, however. The arguments made under paragraph 395C are basically the same as made under Article 8 of the European Convention on Human Rights.

Paragraph 395C was a surprisingly generous addition to the rules when it was introduced in 2006 following the deportation debacle, and it also, by a legal quirk, gives huge discretion to immigration judges to make up their own mind about how to dispose of a case. That is the very last thing that the last two governments seem to want – allowing judges to judge cases on their merit under national and international law.