Wednesday, 12 October 2011

Groundbreaking judgment in Supreme Court Case regarding age limits and spousal visas

R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) R(on the application of Bibi and another)(FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45 (12 October 2011)
This appeal was brought forward by the Secretary of State to the Supreme Court against the order of the Court of Appeal dated 21 December 2010 (Sedley, Pitchford and Gross LJJ) [2010] EWCA Civ1482, [2011] 3 All ER 81) whereby it was concluded that refusal of entry clearance to the applicants (due to being under the age of 21) was unlawful and a breach of their rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 (“the ECHR”).

This judgment, which has been awaited by applicants, sponsors and representatives, will have a critical affect on many cases which were refused and those to be made in the future under the amended Rule 277 of the Immigration Rules (spouses/partners in circumstances where either the applicant or the sponsor would be aged under 21).

The Supreme Court ordered for the appeal to be dismissed and upheld the first decision made in the Court of Appeal. They found that by refusing to grant marriage visas to the respondents in this case, the Secretary of State had infringed their rights under article 8 of the ECHR citing that the age restriction of 21 does not serve its purpose (which is to prevent forced marriages it has been stated) as even though an applicant is unable to obtain entry clearance to  the UK for being under the age of 21, the sponsor could essentially be forced to move abroad to the applicant’s home country to continue with the family life overseas. It was quoted that:

Para. 76 “Thirdly, we also know that if the rule is not effective in preventing a forced marriage it may do a great deal more harm than good. A young woman may be sent abroad and forced to marry against her will and kept there until she can sponsor her husband to come here. During this time she may be raped many times, bear children she does not want to have and be deprived of the education and life which she would otherwise have had here. Even if she is allowed to come home, she will not be able to escape from the marriage. She will be obliged to stay married so that she can sponsor her husband to come here. The rule will have made her life more difficult.”

As the above appeal has now been dismissed, the Secretary of State’s response to the judgment is awaited. This could mean changes to the Immigration Rules or operation in order to comply with the judgment.
Applicants who had applied previously and were refused, solely on the age limit condition, may write and request that their decision is reconsidered. Those contemplating submitting an application in the near future are advised to seek legal advice where necessary.
For further information, please do not hesitate to contact us on 0207 569 3035 or email us at info@ergensharif.co.uk  

Wednesday, 20 July 2011

Other Family Members/Extended Family Members applications for residence cards


TA & Ors (2006 Regs - reg 8) Nigeria [2011] UKUT 00253 (IAC) (28 June 2011)
This Upper Tribunal case was heard on 7th June 2011 at Field House. The case involved three appellants, all citizens of Nigeria. The first appellant entered the UK on a visitor’s visa and overstayed whilst the other two appellants had entered illegally. The appellants had a maternal cousin who is an EEA national (Dutch citizen) and who is their sponsor. She arrived in the UK in April 2008 and she has been exercising her Treaty rights here since.
Undisputed facts of the case
·       Between 2004 and the dates when the appellants decided to travel to the UK, they were living with the EEA national in Nigeria in accommodation which she provided and they were dependant on her financially
·       The EEA national sponsor continued to financially support them between the date of their arrival in the UK and her arrival in the UK
·       Since April 2008, the appellants lived with the sponsor in accommodation she rented in London and she continues to support the appellants financially
The appellants each made an application for an EEA residence card as extended family members which was refused by the respondent (Secretary of State) in her decision dated 9th August 2010. The appellants appealed against the decision and came before the First Tier Tribunal. The Immigration Judge at the First Tier Tribunal dismissed their appeals on the basis that they did not meet the requirements set out in regulations 8 of the Immigration (European Economic Area) Regulations 2006 (herein after referred to as the EEA Regs). Reg 8 provides that extended family members must be either ‘accompanying or joining’ the EEA national in the UK.  The Immigration Judge placed reliance on the Court of Appeal authority of KG (Sri Lanka) [2008] EWCA Civ 13 which looked at other family members (OFM’s). In that case the Court concluded as follows:
“That is why, to qualify, the relatives must either come with the Union Citizen when he is exercising his rights or join him once he has exercised those rights. That purpose and justification is not borne our when an OFM who has already for many years been in breach of the immigration laws of a member state seeks to use the arrival there of his Union citizen relative as a means of legitimising his own previous breach”.
Tribunals Assessment
The Tribunal confirmed that OFM’s/extended family members must establish dependency on the EEA national or membership of the EEA nationals household both in the country from which they arrived and in the host Member State. They also confirmed that the OFM/extended family member does not need to have been resident in another Member State prior to arrival in the host Member State therefore disapplying this requirement in regulation 12(1)(b) and bringing about the Immigration (European Economic Areas) (Amendment) Regulations 2011 (SI 2011 No.1247). Regulation 12 was amended to state that ‘the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there’.
‘Joining’ the EEA National
The Tribunal held that the requirement were silent about when the ‘joining’ was to take place. They decided that ‘joining’ an EEA sponsor must be read as including both OFM’s and extended family members who arrived before and those who arrived after the EEA sponsor.
Upper Tribunal Conclusion
The Upper Tribunal found that there was an error of law in the First Tier tribunal’s decision and set aside that decision. They concluded as follows:
“1. For the purposes of establishing whether a person qualifies as an Other Family Member (OFM/extended family member under regulation 8 of the Immigration (European Economic Area) Regulations 2006, the requirement that they accompany of join the Union citizen/EEA national exercising Treaty rights must be read as encompassing both those who have arrived before and those who have arrived after the Union citizen/EEA national sponsor.
2. The 2006 Regulations do not impose a requirement that an OFM/extended family member must be present in the United Kingdom lawfully.
3. But in the context of the exercise of regulation 17(4) discretion as to whether to issue a residence card, matters relating to how and when an OFM/extended family member arrives in a host Member State are not irrelevant.”
The Tribunal allowed the appeals in so far as the applications remain outstanding for the respondent to make a decision on them in light of regulation 17 (4). This allows the SSHD to issues a residence card to extended family members where the EEA sponsor is qualified or has a permanent right to reside and where “in all the circumstances it appears to the Secretary of State appropriate to use the residence card”.
It is therefore up to the SSHD to decide whether to exercise this discretion in the appellants’ favour.
7th July 2011

Revocation of EEA residence card must be communicated

Nkrumah (OFM- annulment of residence permit) Ghana [2011] UKUT 163 (IAC) (12 July 2011)
This appeal was heard by the Upper tribunal on 25th February 2011. The facts of the case are as follows:
The appellant is a Ghanaian national. His sister is a national of the Netherlands and arrived in the UK in July 2003 where she is in employment and where she has been living with the appellant.  The appellant was studying in the UK and was being supported by his sister, the EEA national both in the UK and whilst he was living in Ghana.
In 2008, the appellant applied for an EEA residence card on the basis of being an extended family member of an EEA national within the meaning of regulation 8(2) of the Immigration (EEA) Regulations 2006 (herein after referred to as the EEA regulations.
In October 2009, the Home office granted a residence card valid for 5 years was issued (until October 2014). The residence was endorsed in the appellant’s passport and was retained by the home office until December 2009 when it was returned to the appellant with a letter stating that the application had been refused and that the appellant had a right of appeal.
The appellant subsequently appealed against this decision to refuse his application despite the fact that he had a residence permit in his passport which had not been cancelled or revoked. At appeal, the Immigration Judge was not satisfied that the appellant was entitled to a residence card and his appeal was dismissed. The appellant applied for permission to appeal to the Upper tribunal which was granted.
Issue before the Upper Tribunal
The Upper Tribunal focussed on one main point “is the residence card stamped in the passport a valid card unless or until it is revoked?”
The respondent (home office presenting officer) argued that the grant of a residence permit was a mistake and that the mistake was obvious with respect to the accompanying refusal letter. The Upper Tribunal disagreed. The Tribunal provided that “The fact that it may have been granted by mistake does not make it a nullity. There is no suggestion that it was obtained by misrepresentation.” The Tribunal referred to the fact that the residence permit was stamped in the appellant’s passport two months before the date of the refusal letter. The home office had made an administrative error however, they were expected to communicate that error and properly revoke or cancel the residence permit.  Reference was made to the case of Samsam v Secretary of State [2011] UKUT 00165 IAC which considered the circumstances in which residence permits could be revoked.
Error of law
The Upper Tribunal held that the First Tier Tribunal decision contained an error of law as the immigration judge failed to recognise that the residence card had been validly issued and that this was communicated to the appellant.
The Tribunal set aside the decision and remade it. They held that the refusal of the application was not in accordance with the law. The residence permit should have been revoked in accordance with regulation 20 or cancelled and this should have been effectively communicated to the appellant.
It was still open for the home office to cancel the appellant’s residence card if they wished to do so. Reference was made to recent ‘other family members’ case law such as MR and ors (EEA Extended family members) Bangladesh [2010] UKUT 449 (IAC) where it was established that pre-entry dependency is necessary before a person can qualify for the favourable exercise of discretion under regulation 8.  The Tribunal confirmed that dependency meant financial support required to meet essential living requirements. The appellant could qualify for a residence permit if he could show continued dependency or a continued membership of his sister’s household.
The appeal was allowed.
July 2011

Definition of Jobseeker in European Community Law considered


Begum (EEA - worker - jobseeker) Pakistan [2011] UKUT 275 (IAC) (13 July 2011)
This Upper Tribunal case was heard on 22nd March 2011.
Facts of the case:  The appellant made an application for an EEA residence card as the family member of an EEA national which was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD) in November 2009. The application was refused on the basis that the appellant had failed to provide sufficient evidence to demonstrate that her husband, an Italian national, was exercising his Treaty rights in the UK as a worker. The UK Border Agency had not been able to verify the existence of the employer whose details the appellant had provided. The appellant appealed against the decision and she came before the First Tier Tribunal. Her appeal was dismissed in a determination promulgated 18th February 2010 on the basis that
There has been no evidence of [business] premises, equipment or relevant insurances being carried. There has been no suggestion that there was a business plan of any sort. In its totality the setting up of the business and employment of the Appellant’s husband in the circumstances described tended to give the impression that it was a business of convenience”.
The appellant applied for permission to appeal to the Upper Tribunal on the basis that
1.      The Immigration Judge had failed to consider the relevant provisions identifying a worker under Community law
2.      The Immigration Judge had failed to make findings of fact and did not have regard to the fact that the appellant’s husband was looking for a second job
Permission to appeal was subsequently granted and the matter came before the Upper Tribunal.
Upper Tribunal conclusion
Reference was made to multiple authorities and precedent cases that dealt with this matter most notably, the case of Lawrie-Blum v Land Baden-Wurttemberg (case no. 66/85). In this case, the Court considered the features required for a Union Citizen to be considered a worker. It was held that the concept should be applied broadly.  It provided that “The essential feature of an employment relationship is that for a period of time a person performs services for and under the direction of another person in return for which he receives remuneration”.
In the appellant’s case, the Tribunal was satisfied that the first Immigration Judge had correctly assessed that the appellant’s husband was not a worker within the meaning of Community law. She had considered all the material before her and concluded that the job was not genuine. There was no error of law on this point.  The question was whether she had erred in law by not considering whether the EEA national was a jobseeker. The appellant relied on a transcript which had been prepared by her legal representatives and which clearly had not been considered by the Immigration Judge. There was no other evidence to demonstrate that the appellant’s husband was looking for work nor was it covered in their statements or the skeleton argument. The appellant was professionally represented yet this was not presented to the Immigration Judge. The Tribunal concluded that there was no error of law on this point either.
Reference was made to the provisions in the Citizens Directive in particular 14(4)(b) which was given effect in the UK through reg. 6(4) of the Immigration (European Economic Area) Regulations 2006 which provides:
6(4) For the purposes of paragraph (1)(a), “jobseeker” means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.
The Tribunal dismissed the appellants appeal. They held as follows:

Indefinite Leave To Remain In the UK

Indefinite leave to remain or enter on a spouse/civil partner visa
 
Applicants who have completed a two years probationary period in the UK may be eligible to apply for indefinite leave to remainalso known as settlement or permanent residence. However, in certain circumstances, applicants may be able to apply for indefinite leave to enter the UK i.e. from the British entry clearance post abroad.
 
Settlement Protection Rout ( Indefinite Leave to Remain)
 
Humanitarian protection holders and refugees with five years Limited Leave to Remain must apply for Indefinite Leave to Remain along with their dependents (if applicable) if their Leave is about to expire.  Protection Rout
 
 
Permanent Residence   

European national applicants can apply for permanent residence after they have completed five continuous years of residence in the UK in accordance with EEA Regulations 2006.  
 
 
Settlement for family members of points based system migrants
Applicants who are applying to settle in the UK at the same time as their PBS migrant partner can be eligible to apply for settlement provided they meet the requisite criteria as laid out under the Immigration Rules. 

Indefinite leave to remain for a domestic worker in a private household
The domestic worker category allows applicants who are employed as a domestic workers to  visit or move with their employer when they visit or move to the United Kingdom.
 
For further information on how we can help, please contact us on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk

Sunday, 13 March 2011

High Court considers State liability and permission to work whilst awaiting a decision on a fresh claim

Negassi, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 386 (Admin) (04 March 2011)
 
This case was considered in the High Court and judgement was delievered on 4th March.  The action was brought by the claimant, a 35 year old Eritrean national. He had initially arrived in the UK in September 2005 using a false passport. He claimed asylum and was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD). His appeal was heard and dismissed. He travelled to Ireland where he also claimed asylum.

The Irish authorities returned him to the UK in accordance with the provisions of the Dublin Convention. He then submitted representations advanced as a fresh claim. His representatives lodged judicial review action against the SSHD’s delay in dealing with his application and refusal not to grant employment rights to the claimant whilst he was waiting for a decision. A request for permission to work was said to have been requested in 2008.

The Court considered the Council Directive 2003/9/EC which lays down the minimum standards for the reception of asylum seekers (known as the reception Directive). Article 11 deals with employment rights and provides that member states shall provide for provisions for access to the labour market if no decision is made in respect of the applicants initial application for asylum (and subject to the delay not being attributable to the applicant).

The defendant SSHD argued that the Directive applied only in so far as the claimants initial asylum application and that he could not benefit from the Directive in subsequent applications as he had exhausted his appeal rights.
The claimant’s arguments were essentially twofold:
  1. That the blanket prohibition on employment was unlawful and breached his article 8 rights
  2. And that the breach was not justified
The claimant argued that he was entitled pecuniary and non pecuniary damages as a result. The arguments raised were based on ECHR authorities namely Niemietz v Germany (1993) 16 EHRR 97 and Sidabras v Lithuania (2006) 42 EHRR 6).

The court did not find for the claimant in this case although it was recognized that the case was a difficult one.  The judge did not accept that there had been a breach of the claimant’s article 8 rights to a private and family life and no interference. Damages could only be awarded where a breach of article 8 is determined. The judge commented that even if he had found that there was an article 8 breach, that that breach would have been proportionate in accordance with the law.

In this case it is worth noting that the judge considered the case to be difficult and recognized that in some cases, prohibition could give rise to a claim. Ultimately, in this case however, damages were denied to the claimant.

It is believed that the case may go to the Court of Appeal and therefore a different outcome may be possible. All new updates will be posted.

March 2011

http://www.ergensharif.co.uk/FreshClaimsRecentCases.aspx

Worker Registration Scheme to be abolished as of 1st May 2011

Worker Registration Scheme to close
Immigration Minister Damian Green declared, on 10th March 2011, that the Worker Registration Scheme will be closed as of 30th April 2011.
This scheme was introduced in 2004 after the entry of the eight additional countries, known as A8, to the EU.
These countries were:
  • Czech Republic
  • Estonia
  • Hungary
  • Latvia
  • Lithuania
  • Poland
  • Slovakia
  • Slovenia
Currently, any national of one of the above countries is required to register under the scheme before commencing employment in the United Kingdom. The scheme was set up for monitoring purposes and UK Border Agency figures show that between May 2004 and end of 2010 an estimate of 1.1 million of A8 nationals registered under the scheme.
Due to the fact that the Treaty of Accession prohibits the UK from applying transitional restrictions on A8 national’s access to the labour market for more than 7 years, as of 1st May 2011, A8 nationals will be able to access the labour market like other EU nationals. Furthermore, A8 job-seekers will be able to enjoy similar entitlement to that of out-of-work benefits as other EU Nationals.
Further information regarding this can be found on the Immigration Minister's written ministerial statement which can be found at http://www.ergensharif.co.uk/EEAForms.aspx 
Should you require any assistance or help regarding your rights and entitlements in the UK, please do not hesitate to contact us either by email at info@ergensharif.co.uk or by calling us on 0207 569 3035.