Ergen & Sharif

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

2011-10-12T06:56:00.000-07:00

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

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

Other Family Members/Extended Family Members applications for residence cards

2011-07-20T15:46:00.000-07:00

TA & Ors (2006 Regs - reg 8) Nigeria [2011] UKUT 00253 (IAC) (28 June 2011)

This Upper Tribunal case was heard on 7^th 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 9^th 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.

7^th July 2011

Revocation of EEA residence card must be communicated

2011-07-20T15:44:00.001-07:00

Nkrumah (OFM- annulment of residence permit) Ghana [2011] UKUT 163 (IAC) (12 July 2011)

This appeal was heard by the Upper tribunal on 25^th 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

2011-07-20T15:43:00.001-07:00

Begum (EEA - worker - jobseeker) Pakistan [2011] UKUT 275 (IAC) (13 July 2011)

This Upper Tribunal case was heard on 22^nd 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 18^th 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

2011-07-20T15:41:00.000-07:00

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

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

2011-03-13T19:08:00.000-07:00

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:

That the blanket prohibition on employment was unlawful and breached his article 8 rights
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

2011-03-13T19:03:00.000-07:00

Worker Registration Scheme to close

Immigration Minister Damian Green declared, on 10^th March 2011, that the Worker Registration Scheme will be closed as of 30^th 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 1^st 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.

Generalised or indiscriminate violence not high enough to warrant the grant of humanitarian protection

2011-03-06T17:42:00.001-08:00

AM (Evidence – route of return) Somalia [2011] UKUT 54 (IAC) The appellant, a Somali citizen, appeals against the determination of the First-Tier Tribunal dismissing his appeal against the respondent’s decision of 13 January 2010 to make a deportation order against him following his conviction of possessing a false identity document with intent for which he was sentenced to twelve months’ imprisonment.

The appellant was born in 1983 and had arrived in the UK on 26th June 2009, whilst attempting to gain entry with false documents. He was prosecuted and following his conviction and imprisonment the respondent made a deportation order against him under the provisions of s. 32(5) of the UK Borders Act 2007. He claimed he would be harmed if returned to Somalia which he had left at the age of 10 to Yemen.

In 2007 he left Yemen for Saudi Arabia where he worked as a security guard but in early 2009 he was arrested by the authorities there and returned to Somalia. He claimed that at the end of March 2009 after he had been praying in a mosque he was approached to join the “Al Shabab” (AS) clan, and if he didn’t he would be killed. Following this conversation he confided in his uncle on what to do he had heard that the clan were after him and he made arrangements with an agent to travel to the UK via Dubai.

At the hearing before the First-tier Tribunal the appellant said that he had not had contact with anyone in Somalia and had contacted his mother in Yemen who informed him that she did not know the whereabouts of his wife and children. The appellant accepted that when he was deported from Saudi Arabia and returned to the airport at Mogadishu, he travelled to Afgoye. He then stayed with his uncle who had raised $2,500 for him. The Tribunal took into account the country background material in the COI Report for Somalia November 2009 and the Human Rights Watch Report, 19th April 2010. There was expert evidence in a report from Dr Luling dated 16th April 2010 in support of the appellant’s claim that he was from a minority clan.

The Tribunal accepted that the appellant was from Southern Somalia however, they were not satisfied that the appellant had established that he was from the minority Benediri clan. They were also not satisfied that he had ever encountered the AS, been questioned by them or subjected to an attempt to recruit him. The Tribunal went on to say that even if they were wrong in their conclusions and if the appellant was from a minority clan, the evidence indicated that he was one of those individuals who would be able to access protection on his return from a majority clan. He and his wife both had close relatives living in Afgoye who were apparently able to live there without having encountered security problems and he would be able to secure the protection of members of a majority clan. The tribunal went on to consider the issue of humanitarian protection.

In the light of the conclusions the Tribunal reached on the appellant’s asylum claim, it also found the appellant failed to show that his removal would lead to a breach of either Articles 2 or 3 of the ECHR. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal on the limited grounds that it was arguable that the First-tier Tribunal had failed to deal adequately with the issue of whether any risk of harm arose from the route of return to the appellant’s home area of Afgoye.

This is a case where the route of return, Mogadishu Airport, has been identified and we therefore need to consider whether the use of that route gives rise to a real risk of serious harm entitling the appellant to humanitarian or Article 2 protection in accordance with para 84 of HH (Somalia) v Secretary of State [2010] EWCA Civ 426.
“84. In conclusion, our provisional view is that the Directives read together require that the issues of safety during return should be considered as part of the decision on entitlement....In any case Home Secretary did not deal with safety during return but where the appellant raises a cogent argument that there might not be a safe route of return, the appeal tribunal would have to deal with that issue possibly after calling for information from the Home Secretary as to his intentions. In any event, as it seems to us at present, the decision on entitlement must be taken within a reasonable time and cannot be left until the Home Secretary is in a position to set safe removal directions.”

The Upper Tribunal concluded that whilst the situation in Somalia is volatile, the appellant was able to make the journey from Mogadishu to Afgoye on two occasions without harm. The Tribunal was not satisfied that the level of indiscriminate violence was such that the appellant could be granted humanitarian protection. They concluded that the original Tribunal had erred in Law. They remade the decision dismissing the appeal on asylum, humanitarian and human rights grounds.
March 2011

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

Extended family members of EEA nationals

2011-03-06T17:41:00.001-08:00

MR and ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) This case concerned the extended family members of the non EEA national spouse namely, the brother, half-brother and nephew.

The non EEA national’s mother, Mrs. Begum, a Bangladeshi national and widow, was granted leave to enter the UK. The EEA national is Irish and was working in Northern Ireland. They applied for residence permits to enter the UK and whilst they were initially refused, they won on appeal and Mrs. Begum was admitted to the UK as an elderly dependant. She was a dependant family member in ascending line.

The other applicants (brother, half brother and nephew) do not fall within the definition of Regulation 7 under the Immigration (European Economic Area) regulations 2006 but fall to be treated under reg 8 as extended family members. They argued a discretionary consideration by the Secretary of State for the Home Department (herein after referred to as the SSHD) where deemed appropriate. They were granted entry clearance to join Mr Rahman (the non EEA national) and Mrs. Rahman (the EEA National). They applied for residence cards upon arrival. They were subsequently refused on the basis that they did not qualify as extended family members. Upon appeal, the immigration judge concluded that they were in fact dependants and that the issue was the consideration of the SSHD’s exercise of discretion under reg 17 (4). The SSHD sought and was granted reconsideration on the point of dependency. The case came before the Upper Tribunal.

Upon consideration of European Community Law and domestic legislation, the Tribunal concluded that it would refer questions to the European Court of Justice (ECJ) for clarification. Those questions are:
1.           Does Article 3(2) of Directive 2004/38/EC require a Member State to make legislative provision to facilitate entry to and or residence in a Member State to the class of other family members who are not nationals of the European Union who can meet the requirements of Article 10(2)?
2.           Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions?
3.           Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state?
4.           Must any dependency referred to in Article 3(2) of Directive 2004/38/EC on which the other family member relies to secure entry to the host state be dependency that existed shortly before the Union citizen moved to the host state?
5.           Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of Directive 2004/38/EC by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non national to be admitted to or continue to reside in its territory?
6.           Must the dependency on which the other family member relies in order to be admitted to the Member State continue for a period or indefinitely in the host state for a residence card to be issued or renewed pursuant to Article 10 of Directive 2004/38/EC and if so how should such dependency be demonstrated?

The Upper Tribunal stated that a clearer understanding of Community law would be required in order to determine the appeals. Therefore, once the questions have been answered by the ECJ, a determination will be made on the case.

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

Case Law update : Failure to issue a removal decision for overstayers is not contrary to legislation

2011-03-02T04:37:00.000-08:00

Daley- Murdock, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 161 (23 February 2011)

This Court of Appeal case was heard on 23rd February 2011. The appellant is a Jamaican national who arrived in the UK with her daughter on 15th September 2001. Her husband entered the UK the following day. They were all granted leave to enter until 14th October 2001. This was later extended until 30th July 2002. The appellant and her family subsequently became overstayers in the UK. The appellant later gave birth to her son in the UK in 2004. No steps were taken to regularise their stay until October 2008 when they applied for leave to remain. Their application was refused by the respondents (home office) in July 2009 on the basis that they did not meet the requirements under DP 5/96 and that removal would not infringe their article 8 rights under the ECHR.

The appellant applied for judicial review and thereafter the respondents amended their decision letter in respect of their approach of the application under DP 5/96.

Immigration Judge Wyn Williams stated that both of the decisions issued by the home office were immigration decisions for the purposes of section 82(2) of the 2002 Act. The judge also held that it was unreasonable of the respondents not to issue an appealable removal decision at the same time of the decision. The judge stated that the respondent was not entitled to state that the appellants could not benefit from the DP 5/96 policy.
The judge accepted that the respondent’s decision with respect to their treatment of article 8 was irrational and ordered the respondent’s to reconsider the article 8 claim. The judge dismissed other elements of the appellants judicial review claim.

The failure to issue a removal decision
The appellants argued that the failure of the home office to issue a removal decision which would effectively, grant a right of appeal was contrary to policy and legislation (the 2002 Act). However, the Court’s conclusion in this respect was that Parliament never intended for overstayers to benefit from a right of appeal under section 82(2) which contains the list of appealable decisions. The court held that the legislation intended for those who were in the UK lawfully, to benefit from an appealable decision. Where a no right of appeal decision is made, it cannot be argued that a decision should then be made to confer such a right.

The appellants in this case argued that there was a duty to have regard to the appellant’s children under section 55 of the Borders, Citizenship and Immigration Act 2009. The respondent agreed that, where children are involved, there is a need to make a timely decision and that it would be unfair or irrational for the home office not to make a removal decision at the same time as the refusal of leave reiterating however, that each case depended on its individual merits.

Policy DP 5/96
This policy was withdrawn on 8th December 2008 however; the respondents applied the policy to this case as the application was made in October 2008 whilst the policy was still in force. The appellants argued that the policy applied for children who had lived in the UK unlawfully for at least 7 years. The appellants (parents) had been working during this time and the respondents used this deception (obtaining national insurance numbers and working illegally) as exceptional reasons for refusing the appellants application under the policy. The appellants argued that the respondent’s decision was not reasonable. The respondents on the other hand, argued that, the appellants had not only falsely obtained national insurance numbers, they had found work and continued to work for over 6 years all of which was work obtained from deception.

The court agreed with the respondents in this respect and stated that they could use this deception to justify their decision to exceptionally refuse the application under the policy.

ZH (Tanzania)
The appellants put forward the above recent Supreme Court case and requested permission for this to be considered. The Court commented that this could be explored by the home office if and when a decision for removal is made. The home office would need to consider the best interests of the appellant’s children in light of the above case.
The Court proceeded to dismiss the appeal.
February 2011

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

Britain losing out due to complicated visa rules for Chinese nationals

2011-03-02T04:35:00.001-08:00

It was recently reported in The Telegraph newspaper that those visiting the UK from China face higher fees and longer waiting procedures to obtain a visa compared to other European Countries. As a result, Chinese nationals are opting to travel to alternative cities in Europe which a means a loss for UK retailers.

Chinese tourists have surpassed Japanese tourists in their spending and according to a financial services company; they are worth over £350 million to UK retailers.

Chinese nationals have complained that the forms to obtain visas for the UK are too long in comparison to their European counterparts and that, shorter visas to the UK are substantially more expensive than longer visas to other Countries (notably the Schengen visa). Chinese tour operators are said to be referring nationals.

Leading retailers such as Selfridges and Harrods are campaigning for the rules to be relaxed for the 2012 Olympics.

Despite this, the UK Border Agency has declared that there has been a 42 % increase in the demand of visas from China.

http://www.ergensharif.co.uk/latestNewsM11

False documents used in Tier 1 general application:

2011-03-02T04:34:00.001-08:00

The case of Kulasekara v Secretary of State for the Home Department [2011] EWCA Civ 132 (18 February 2011)

This case involved an appeal from Sri Lankan citizen Sidath Don Kulasekara, whose earlier appeal was dismissed by Senior Immigration Judge Jarvis under the Immigration Rules and Art. 8 of the European Convention of Human Rights in March 2010. At issue were false representations regarding diplomas and completion of the course.

Background of the case

The appellant applied for leave to remain in the UK as a Tier 1 (General) Migrant in June 2009. This was refused on the ground that he had submitted a false postgraduate qualification from the Cambridge College of Learning (CCOL) in a previous application.

An appeal and order for reconsideration against this decision was allowed by Immigration Judge Callender-Smith. The respondents sought and subsequently obtained reconsideration. The appeal was then heard by Senior Immigration Judge Jarvis, who considered paragraph 322(1A) of the Immigration Rules (HC 395), which states that leave to remain ‘is to be refused’ –

‘(1A) where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application.’

She additionally used the decision in AA (Nigeria) [2010] EWCA Civ 773 which held that ‘false’ in this Rule means ‘deliberately false’ and therefore the representation of information must be made deliberately and be known to be false.

Judge Jarvis focused also on NA and others (Cambridge College of Learning) [2009] UKAIT 00031, wherein the Tribunal concluded that CCOL had issued false certificates, and that somebody claiming to have undertaken a Business Management course at CCOL must have known it to be false. The Tribunal used witness statements from Saamia Ullah, head of department for business and management at CCOL, to reach their conclusion.

The Senior Immigration Judge noted the lack of evidence that Kulaserkara had paid the course fee. Kulaserkara claimed that he had paid in cash, but there was no evidence of that transaction. The Judge commented on the unlikelihood that the fee would be paid in cash with no receipts given.

It was also noted that some evidence produced for the appellant was to his detriment. For instance, he provided two diplomas in hotel management that overlapped with the time when he claimed he was studying at CCOL.

The Senior Immigration Judge held that Kulaserkara’s claim was improbable and she rejected the certificate and transcript produced.

The case for the appellant

The appellant claimed in this instance that the certificates and transcripts supplied in the application were genuine and were issued after successful completion of the course at CCOL.

He further claimed that he had enrolled for the Executive Management course, but claimed that CCOL later informed him that the name of the course had changed to Business Management.

It was submitted that there was insufficient evidence before the Senior Immigration Judge to justify the finding of fraud. The finding was therefore not justified.

The case for the respondent

The respondent claimed that Kulasekara had not completed the course or even taken the examinations. Therefore, the diploma and Transcript were false.

They submitted that, as was the case in the decision of the prior instance, had Kulasekara not completed his course, then he must have known the documents were false and he should therefore be refused the right to remain.

The appellant also provided no documentary evidence in support of his case for the Senior Immigration Judge apart from the diploma, the ‘Transcript of Academic Record’, and some photocopies of hand-written course notes (which were produced late).

Conclusion

Stanley Burnton LJ held that the appellant’s submissions had no substance. There was in fact adequate evidence, based on oral testimony, witness statements and documents, before the Senior Immigration Judge to justify her decision.

Especially notable is that the defendant had much less documentation than someone in his position would be expected to have.

He also held that it was not necessary to bring in the witness who testified in NA as it was intended to be a precedent determination. Kulasekara would have therefore deprecated a request to re-examine the witness had one been put forward, unless there were different matters to be put to her that were not in the previous case.

The judge upheld the view of the Senior Immigration Judge that had Kulasekara not completed his course, the misrepresentation must have been deliberate.

The unlikelihood of the documents being genuine was sufficient enough to justify the decision of the Senior Immigration Judge.

Outcome

The appeal was dismissed on those grounds.

February 2011

http://www.ergensharif.co.uk/Tier1Cases.aspx

New Human Rights (article 8) case : The extent of the emotional dependency for the purposes of Article 8

2011-02-17T17:01:00.001-08:00

Mamaniat, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 157 (Admin) (24 January 2011)

This case concerns a judicial review application before the Administrative Court from the claimant, a Malawi national against the Secretary of State’s decision finding his claim that removal would breach his article 8 rights as clearly unfounded. The effect of certifying his claim meant that the claimant had no in country right of appeal. Therefore, he pursued a judicial review action.

The Court referred to the cases of ZT (Kosovo) and R (Princely) where the legal approaches to be taken was defined.
Where a case is certified as clearly unfounded, this is because it is deemed to lack in substance and does not have any realistic prospect of success. As the threshold is quite high, a decision maker must give it anxious scrutiny.

The claimant’s immigration history
In this case, the claimant resided with his family in Malawi. His mother passed away when he was only five years of age and his father passed away thereafter when he was aged 14, of a terminal illness. The claimant was cared for by his paternal grandmother. She is a British Citizen and came to reside in the UK in 2006. The claimant arrived in the UK in 2005, before his grandmother.

The claimant was invited to the UK by his aunt, a British citizen, to live with her. He was a minor when he arrived (at the age of 17) and his passport was endorsed with 6 months leave to remain (as a visitor). The claimant is now 22 years of age.

The claimant subsequently overstayed on his visa, remaining in the UK unlawfully. He lived with family members for a few years before moving in with a friend. He did not work or claim benefits and was supported by family members. The claimant, at the time of this hearing, had returned to his aunt’s home and was living with her. He did not have any formal education and was slow of leaning. The claimant was said to be suffering from depression and has suicidal thoughts when thinking of the memory of his father.

Courts conclusion
The case law stipulates that for the purposes of article 8, there must be ties beyond normal ties and financial and emotional dependency amongst other factors could be determinative of this. The Home Office representative argued that the fact that the claimant’s only living relatives were based in the UK was not sufficient under article 8 to grant him leave to remain here on that basis. They also argued that it was not sufficient that his sole carer when he was a child was also present in the UK and that he needed to show more than that to establish his case under article 8.
The court applied the article 8 tests in the case of R (Huang) when considering the claimants article 8 rights.

The court accepted that the claimant had an existing family life in the UK. The issue was whether his removal would amount to a disproportionate interference with his article 8 rights under the ECHR. The Immigration Judge commented that the evidence in respect of his depression was lacking (as there was no medical evidence to confirm his condition). However, there was no reason for his family members to lie about his condition. The court has some evidence of dependency before it which needed to be considered by a Tribunal.

Ultimately, the Judge was unable to reasonably conclude whether the claimant would have a reasonable chance of persuading a Tribunal as to whether there would be a disproportionate interference with his article 8 rights is removed from the UK. The case was said to be borderline.

However, the Judge quashed the order in order to allow the claimant the opportunity to bring his case before a Tribunal where his article 8 rights would be further explored.

http://www.ergensharif.co.uk/Article8new.aspx

Notice: Temporary disruption to online tools for points based system

2011-02-17T17:00:00.003-08:00

The UK Border Agency has announced that the points based online tools system will be temporarily disrupted between 18th February (Friday) and 19th February (Saturday) 2011. http://www.ergensharif.co.uk/Tier2update.aspx

New reforms for working visas to be in place

2011-02-17T17:00:00.001-08:00

The UK Government yesterday announced more changes that will take effect as of 6th April 2011 for workers outside the EU and for employers who wish to sponsor them.

Last year, the UK Border Agency announced that 20,700 visas would be made available under the Tier 2 visa route and that 1,000 visas would be made available under the new exceptional talent route. The Immigration Minister, Damian Green stated that the UK needs to attract the ‘best’ but not at the expense of workers in the UK. The non EU migrants will have to hold graduate level jobs, speak an intermediate level of English and meet certain salary requirements under the rules in order to qualify. The Government has already closed the Tier 1 route overseas and will be further limiting Tier 1 for in country applicants.

The New System
The new system divides up the allocation of sponsorship certificates into 12 months. So the annual limit of 20,700 will be divided up into 12 months. As the first month the scheme is introduced (April) is likely to attract more applications, the Government has allocated 4,200 certificates of sponsorships. Thereafter, the Government has allocated 1,500 places per month. Where places are not used, this will be rolled over to the next month. Where there are more demands for allocations then available, the Government will rank those jobs according to whether they are listed on the shortage occupation list, if they are scientific researchers or those with a higher salary.

Basically, employers will be expected to apply to the UK Border Agency for a sponsorship certificate for a specific post. At present, the current system provides businesses with an annual allocation. Once a certificate of sponsorship is given to an employer, it must be assigned to the employee within three months.

The Immigration Minister also warned that the route to settlement will become more difficult and more changes are expected in this respect in the near future. The aim is to reduce net migration to the levels of those in the 1990s’s.

Intra Company Transfer Changes

Further changes will be made under the Tier 2, intra company transfers route. There will be a graduate occupation list which the job must be in. Also, only those earnings £40,000 or above will be able to extend their leave beyond one year. If they earn over £40,000, they will be granted leave to remain for a further 3 years and therefore, a possible extension of leave to remain for two years. Those who earn between £24,000 and £40,000 will not be able to extend their leave beyond 12 months.

The new changes have not yet come into force and must be scrutinised by Parliament first before they can become ‘rule’. Once (and if) Parliament approve them, they will come into force. The UK border agency has sought to clarify the changes in advance so that migrants and employers can make the necessary arrangements.
At Ergen & Sharif, we will continue to update our site with any new changes.

17th February 2011
http://www.ergensharif.co.uk/Tier2update.aspx

New case law: Unlawful detention _ 14 months was not unreasonably long detention pending deportation in sexual offences cases

2011-02-17T16:59:00.001-08:00

AE (Libya), R (on the application of) v Secretary of State for the Home Department (Rev 1) [2011] EWHC 154 (Admin) (2 February 2011): This was an unsuccessful claim for judicial review of alleged unlawful detention.

Despite having served his sentence for breaches of the Sexual Offences Prevention Order on 9 October 2009, the claimant remains in prison, awaiting deportation, because the SSHD has yet to procure travel documents for his removal to Libya.

There were two issues. First, was it unlawful that the claimant had been detained past the end of his sentence, awaiting deportation? Secondly, was his custody in prison, rather than in an Immigration Removal Centre (IRC), unlawful?

On the first issue, the test for release was the Hardial Singh Principles (R (Hardial Singh) v Govenor of Durham Prison [1984] 1 WLR 704, affirmed in R (MH) v SSHD [2010] EWCA Civ 1112)). The Principles state that (1) the SSHD must only detain if s/he intends to deport, (2) detention must be reasonable in all the circumstances, (3) if it becomes apparent the SSHD will not to be able to deport the claimant in reasonable time, detention should end, and (4) the SSHD should act with speed and diligence to effect deportation.

The test for detention included the following factors.

The risk of the detainee absconding if released was an important consideration (R (A) v SSHD [2007] EWCA Civ 804), but cannot automatically outweigh considerations in favour of release (I (Afghanistan) v SSHD [2002] EWCA Civ 888)).

The risk of re-offending and the type of offence likely to be committed were relevant factors. However, reasons for past refusals of bail should not be determinative. Bail is fundamentally a different enquiry to judicial review of unlawful detention (R (Ibrahim & another) v SSHD [2010] EWHC 764 (Admin)).

While failure on the part of a claimant to cooperate with deportation cannot justify indefinite detention (R (WL (Congo) & others) v SSHD [2010] EWCA Civ 111), ‘obviously unmeritorious’ appeals against removal are open for consideration.

The impact of indefinite detention on detainees, and conditions of detention, were also relevant considerations. As per the EctHR case Massoud v Malta [2010], the right to liberty (Article 5 ECHR) made imprisonment unlawful where the SSHD was failing to pursue deportation with ‘due diligence’.

Thus, applying the considerations to the claimant, there was a risk of him absconding. His release would expose young girls to the threat of sexual offences. Whilst his asylum claims had not been ‘unmeritorious’, he had in effect prolonged his detention by resisting deportation. 14 months was not unreasonably long detention.

On the second issue, the decision not to transfer the claimant to an IRC was found to be in accordance with the UKBA’s Enforcements Instructions Guidance, Section 55. It was true that some sections of the guidance had remained unpublished. However, the requirement for relevant law to be ‘accessible and precise’ was satisfied by the Immigration Act 1971 and the Hardial Singh guidelines (WL (Congo)).

The claimant would not have been transferred under the policy, even under the unpublished parts. There was no blanket ban on transferring child sex offenders to IRCs; a decision had been made in the individual claimant’s case, as internet access in the IRC would allow for potential internet grooming of children. It was lawful to take such circumstances into account (WL (Congo)).

Zoë Sutherland
http://www.ergensharif.co.uk/detention.aspx

The Reformation of policy regarding the family members of Ghurkhas

2011-02-15T16:17:00.001-08:00

The Upper Tribunal recently considered the reformulation of policy in relation to the family members of Gurkhas in the case of CT (Gurkhas: policy) Nepal [2011] UKUT 53 (IAC). The appellant was a Nepalese national who appealed against the First tier Tribunal’s decision to dismiss her appeal. She appealed to the Upper Tribunal for permission to appeal. This was granted and the case came before the present court.

The appellant arrived in the UK on a visitor’s visa and made an application in October 2007 on the basis that she was a dependant on her father, formally a Ghurkha soldier in the British Army and now present and settled in the UK. The appellant’s mother also resides in the UK with her father whilst her siblings live overseas (Nepal and Hong Kong).
The appellant maintained that she was always dependant on her father. The appellant initially came to the UK to take part in the ‘Ghurkha Justice week’.

The appellant’s application was refused by the Secretary of State for the Home Department (SSHD) for the reasons that she had lived in Nepal with her siblings who resided there and that she did not live outside the UK alone in the most exceptional circumstances and was not mainly financially dependent on relatives settled in the UK. The SSHD’s refusal letter stated that the appellant did not therefore; meet the requirements of the immigration rule 319 with reference to paragraph 317 (HC 395).

The SSHD decided not to exercise discretion in this matter and decided that the application did not allow for a variation of leave to remain under the Immigration Rules. The SSHD also went on to refuse the application on the basis of the European Convention on human rights arguments. The appellant appealed against this decision.

At the First Tier Tribunal, the Immigration Judge (IJ) was asked to consider paragraph 317 (as amended), the Ghurkha Policy and article 8 ECHR. The appellant’s family circumstances had changed by the time of the hearing. The appellant’s mother and siblings had all arrived in the UK with her mother settling here. The IJ dismissed the appeal on the basis of the immigration rules and article 8 having regard to the appellant’s family situation as at the time of her hearing.

The IJ commented that it was not up to him to consider the Policy and provide a reasoning on that issue as the hearing had been adjourned for the respondents to consider it. The respondent had concluded that the appellant did not fall within the ambit of the Ghurkha policy. The appellant argued that the IJ erred in law and permission to appeal was sought. The appellant argued that the respondent had not applied her policy correctly and that as a result, the decision was not in accordance with the law. The appellant also argued that she had a legitimate expectation that she would not be removed from the UK in light of a Parliamentary Statement made in 2009 by the Immigration Minister.

Conclusions of Upper Tribunal
The undertaking given by the Immigration Minister was superseded by the subsequent new guidance. This guidance refers to applications made for settlement outside the UK and not inside like the appellants application. Chapter 15 of the Immigration Directorate Instructions make provisions for the family members of Ghurkhas and states that their applications should be considered in line with the relevant Immigration Rules (so if it’s regarding an application by the spouse then consideration in line with rule 281). Applications by dependants over the age of 18 should be approved where they were previously granted leave to enter or remain as part of the family unit. The SSHD can consider exceptional cases and these are listed in paragraph 13 (five main points). Discretion may be exercised if the applicant fits in to any of these points.

The Upper Tribunal held that the SSHD failed to properly apply the policy guidance and that the IJ should have taken that into account. The appellant’s appeal was allowed on the basis that the SSHD’s decision was not in accordance with the law. The appellant now waits for a lawful decision to be made on her application of October 2007.

15th February 2011
http://www.ergensharif.co.uk/Ghurkhas.aspx

Supreme Court landmark case of ZH (Tanzania) V SSHD [2011] UKSC 4 _ the best interests of the British-born children

2011-02-15T15:59:00.001-08:00

In the case of ZH (Tanzania) the Supreme Court made a landmark ruling putting the best interests of children first. The case involved the deportation or removal of a Tanzanian female who had made three unsuccessful applications for asylum. She formed a relationship with a British male and they had two children from their relationship. They later separated however, the father continued to see his children. The children aged 9 and 12, resided in the UK all their lives.

Lady Hale provided the leading judgment stating that the ‘primary consideration’ had to be the best interests of the British-born children. The children were British through their British father. Lady Hale provided that “As citizens, these children have rights which they will not be able to exercise if they move to another Country”. Lady hale stated that “the intrinsic importance of citizenship cannot be played down” supporting the notion that British Citizens cannot be removed from the UK.

Children’s rights organisations welcomed the decision safeguarding the rights of children in the immigration system.
It should be noted that, the case was assessed in accordance with article 8 of the European Convention on Human Rights and that cases must be assessed on their own merits. Other factors can outweigh the interests of the child however; decision makers must ensure that they give proper consideration to the needs of children. In particular, children should not be held responsible for the actions of their parents.

The case has significant implications in practice as it reinforces the rights of children and the advantages of British citizenship. Decision makers must make a proper proportionality assessment under article 8 of the ECHR.

February 2011

Facebook was used as evidence in the new Iranian country guidance case : Demonstrators in Britain – risk on return

2011-02-14T17:18:00.001-08:00

BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC): This case was both an appeal against an asylum refusal, and an intended country guidance case for Iranian refugees ‘sur place’.

A refugee sur place is someone who was not a refugee when they left their country of origin. They become a refugee because of later events, such as political action undertaken in the country of refuge, and in response to events in the country of origin.

The appellant was an Iranian refugee sur place, having come to the UK on a student visa in July 2008. Between June and early July 2009 the appellant took place in five demonstrations outside the Iranian Embassy in London. He was protesting the alleged malpractices in the election of Mahmud Ahmedinejad as President of Iran.

The appellant was refused asylum by the Home Secretary on 26 November 2009. There had been an appeal before an Immigration Judge (IJ), which was dismissed. The IJ had discounted the appellant’s evidence that his family had been detained for political activity. The IJ found that his participation in the London demonstrations had been opportunistic – an attempt to establish asylum sur place.

It was determined that, in light of SS (Iran) [2008] EWCA Civ 310, the IJ had made legal mistakes. In SS, Lord Neuberger said that it would not be enough for an applicant ‘simply to establish’ involvement in activities ‘limited in duration and importance, without producing any evidence that the authorities would be concerned about them’. As such, the IJ should have heard expert evidence that the Iranian authorities were capable of identifying the appellant. Even if the appellant had acted opportunistically, this would not automatically disqualify his asylum claim (YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360).

The key issues to address regarding the appellant’s claim for asylum ‘sur place’ were: (1) the nature of the sur place activity, (2) risk that he would be identified, (3) factors which might trigger inquiry about him on return to Iran, (4) the consequences of identification, (5) the identification of risk on return.

The nature of the appellant’s sur place activity, although he had taken place in five demonstrations only, was such that he was portrayed as having taken a prominent role. Footage of his participation remained on YouTube and Facebook. His photograph appeared in an issue of the magazine Bamdad e Iran which was offensive to the Iranian regime. Both the YouTube clip and magazine are associated with the secular nationalist group, the United Front of Iranian Nationals, based in the Iranian community in London. Thus, the risk of identification was reasonably likely.

Given that the appellant would be a forced to returnee to Iran, without a valid visa, he would attract attention. Even if opponents to the regime are not picked up at the airport in Tehran, the Iranian authorities are capable of detaining them later. If an inquiry was triggered, the authorities might well identify the appellant from footage filmed by the Iranian embassy in London of the 2009 demonstrations in the UK. They were equally capable of filtering footage online.

The consequences of identification would likely be inhuman or degrading treatment, according to expert evidence by academics and human rights NGOs. If questioned on return to Iran, the appellant could not be expected to lie about demonstrating (IK (Turkey) CG [2004] UK IAT 00312; RT (Zimbabwe) [2010] EWCA Civ 1285).

Considering the five criteria, the appeal succeeded on the grounds of asylum and human rights (Article 3 of the European Convention on Human Rights, prohibiting inhuman and degrading treatment).

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

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

2011-02-14T05:44:00.000-08:00

As of 1st May 2011 the Worker Registration Scheme will cease to exist. This is a scheme which requires nationals of A8 countries to be registered for 12 months before having access to public benefits. Nationals of A8 countries are citizens of the eight countries that accede to the EU on 1st May 2004 and consist of the following:

The Czech Republic,
Estonia,
Hungary,
Latvia,
Lithuania,
Poland,
Slovakia,
Slovenia

As a result of the new law, any A8 national, whether or not they have registered with the WRS, will have access to income-based jobseeker’s allowance, housing benefit and council tax benefit by signing on as a jobseeker at the Jobcentre Plus and meeting the required criteria like those imposed on British jobseekers. As the law currently stands, A8 workers are unable to access benefits if they have not registered with the WRS or have not completed enough time in registered work in order to be able to access benefits however, in the light of the new law this is set to change. Fundamentally, the rights of A8 nationals will be akin those of other EEA nationals. Theoretically, this change could be enforced prior to 1st May 2011 however the Government will not be able to keep the current system in place after that date.

The current situation of EU migrants in the UK, in order to access benefits, includes a ‘right to reside’ test. This applies to Housing Benefit, Council Tax Benefit, Income Support, income-based Jobseeker’s Allowance, income-related Employment and Support Allowance, Child Benefit, Child Tax Credit, Working Tax Credit and State Pension Credit as well as housing and homelessness assistance.

However, other benefits do not have this test and thus any migrant that meets the requirements imposed on British citizens should be able to freely access the following types of benefits:

Disability Living Allowance,
Maternity Allowance,
Contribution-based Jobseeker’s
Allowance and contribution-based Employment and Support Allowance

With regards to National insurance contributions, of EU migrants, in the UK and social security contributions in other EU Member States, Jobcentre Plus is required to count the contributions made elsewhere in the UK as if they were NI contributions for the purpose of deciding whether the person has made sufficient contributions in order to get contribution based benefit. The law of the UK states that citizens of EU countries (hereon referred to as EEA nationals) have an entitlement to access benefits where they are:

-Jobseekers:

- EEA nationals seeking work in the UK and who meet the requirements imposed on British jobseekers are entitled to access income-based Jobseeker’s Allowance as well as Housing Benefit and Council Tax Benefit. Furthermore, they are entitled to other benefits a British citizen in a similar position would receive (this does not include housing or homelessness assistance). EEA members are able to obtain these benefits on the basis of being a jobseeker for at least six months or longer where they are able to demonstrate that they are in continuous search of a job and have a genuine prospect of engaging in employment.

- Workers/self-employed:

- EEA national workers have entitlements to all in-work benefits (such as Housing Benefit) similar to those British citizens are entitled to. Further, they are able to claim housing and homelessness assistance.

-Ceased work/self-employment

- -EEA national workers who are temporarily unable to work due to illness or accident are able to access out-of-work benefits including income-related Employment and Support Allowance, as well as housing and homelessness assistance. The same is applicable where an EEA national worked for at least one year and is registered as a jobseeker with Jobcentre Plus, such a person is not required to rely on ‘jobseeker’ status (as stated above) as they remain to be considered as a ‘worker’ with the difference being that they continue to have access to benefits as well as housing and homelessness assistance.
- An EEA worker who has completed a fixed-term contract of less than one year is also able to maintain his ‘worker’ status in the event that they sign on at a Jobcentre Plus however; the ‘worker’ status may be reviewed after 6 months (In such a situation, the person concerned can always return to being a jobseeker as above).
- EEA migrants that cease work and enter vocational training related to their previous employment can retain their ‘worker’ status.
- Those who were made unemployed involuntarily and are in vocational training then they are not required to demonstrate a link between the vocational training and the last employment.

-Permanent residents

- EEA nationals are able to acquire permanent residence in the UK once they have resided ‘legally’ in the UK for a continuous period of five years. This is an automatic right and EEA nationals may wish to complete the EEA4 form and obtain permanent residence from the UK Border Agency however this is not required for accessing benefits. Such persons are entitled to all types of benefits similar to that of a British citizen.
- Where an EEA national has resided in the UK for two years and worked for one year and subsequently became permanently incapacitated, then that person can acquire permanent residence prior to accumulating the necessary five years.
- Please note that those whose permanent incapacity is a result of occupational injury, have no conditions as to the length of residence required. This also applies to some pensioners.

-Family members

- Family members of the above are considered being spouses, civil partners, children (and stepchildren) under 21, older dependent children and stepchildren and dependant relatives in the ascending line of the EEA national and or their spouse. These individuals need not be EEA nationals nor have current residence documentations.
- Extended family members (durable partners, cousins, aunts, nephews) who have been provided with residence documentation by the UK Border Agency are also able to access benefits. EEA nationals can usually access Child Benefit and Child Tax Credit regardless of their work status where they can demonstrate they are otherwise self-sufficient

Current rights of A8 nationals (until 1st May 2011)

Jobseekers: A8 nationals are prohibited to access benefits as jobseekers until they have completed, in compliance with the WRS, for 12 continuous months. They must register their work with the UK Border Agency, pay the relevant fee and inform the UK BA in the event of a change of employer within those 12 months.

Workers/self-employed:

- A8 nationals cannot access benefits as workers unless they are currently registered under the WRS (and inform the UK BA of a change of employment) or have successfully completed 12 months’ work in compliance with the scheme.

Ceased work/self-employment

- Those who have not completed the required 12 months’ work are unable to gain out-of-work benefits. In other words, an A8 national who has register their work and complied with the scheme is unable to obtain benefits now where they have not completed their 12 months’ work even in the event of temporary unemployment due to illness or accident.
-
Permanent residents

- A8 nationals who have permanent residence can receive benefits. However,at present, the authorities refuse to recognise an A8 worker who has worked at any time as permanently resident without compliance with the WRS.

Legality: There have been discussions as to the lawfulness of the restrictions placed on A8 nationals’ access to benefits. The European Commission (its responsibility being to oversee the implementation of EU law) believe that some aspects of the restrictions are unlawful. The Commission has recently sent the UK Government a ‘reasoned opinion’ and although this is a confidential document, it seems that the Commission is challenging the UK in terms of the fact that A8 workers who have not completed 12 months of registered employment are excluded from the out-of-benefits where they become temporarily unable to work due to illness or accident. Infringement proceedings can be brought against the UK before the Court of Justice of the European Union where the Commission is not satisfied with the response from UK. Moreover, a legal challenge is currently under process against the application of the right-to-reside test to income-based JSA, income based ESA, income support and State Pension Credit concerning all EEA nationals with the argument being that EEA national who meet the ‘actual habitual residence’ test must be able to access these benefits regardless of whether or not they have the ‘right to reside’. The reason for this is that those four benefits are classified as social security benefits in EU law and there is a prohibition on discrimination between British citizens and nationals of the EU with regards to such social security benefits.

These arguments were raised in the case of Patmalniece v Secretary for Work and Pensions at the Supreme Court in the UK, this case was heard in November and December 2010 and its judgement is expected soon. In addition to this, the Commission has sent a letter of formal notice to the UK as it believes that the restrictions on accessing the four benefits are unlawful. This step is taken prior issuing a ‘reasoned opinion’ which if the Commission find the response as unsatisfactory; they can send a reasoned opinion and take infringement proceedings against the UK.

1st May 2011

Essentially this date will be a day to remember for A8 nationals as the UK will not be permitted to treat A8 nationals different from non accession nationals (i.e. EU nationals. They will be able to access benefits on the same basis as other EEA nationals on the categories shown above.

It must be noted however that a minority of A8 nationals who are unable to work or sign on as jobseekers with the Jobcentre Plus (by failing to meet the requirements to demonstrate that they are seeking work) and who are unable to demonstrate that they have retained their worker status will face problems. Individuals may end up in such a situation where they are currently unable to seek work due to health reasons and have never completed 12 months’ work under the WRS in the past. They may be able to argue that they can obtain benefits where they can establish permanent residency (where they have been in the UK for five years) however, proof of residence is required. Such proof includes demonstrating that they were in the UK as a worker, self-employed person, self-sufficient and or student at all times, where a person has limited proof they are likely to face problems and those who worked but failed to register under the WRS are unlikely to be recognised as permanent residents. Persons who have worked for any amount of time after 1st May 2011 will be able to maintain their worker status and access benefits and housing.

A2 nationals

These consist of Bulgarian and Romanian nationals, known as A2 Nationals and who face a set of restrictions which will remain in place beyond 1st May 2011. Persons under this category must obtain a worker authorisation (a work permit) if they wish to work unless they enjoy and exception. One of the easiest ways for A2 nationals to get access to benefits is to be self-employed as in such a situation there is no restrictions on self-employment for A2 nationals. A2 nationals are permitted to work in particular where they have permission to work in the UK in the past or where they are family members of British citizens or other EU nationals. A2 family members of A2 nationals who are self-employed, self-sufficient or students can enjoy the right to work and obtain residence documentation from the UK Border Agency as proof. These restrictions are set to remain in place until 1st January 2012 and may even continue for a longer period if there is a ‘serious disturbance to the labour market’.

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

Challenging the lawfulness of the Secretary of State to withdraw a decision _ Investor visa

2011-02-14T05:28:00.000-08:00

Chichvarkin & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 91 (10 February 2011)

The case concerned a Russian asylum seeker who arrived in the UK with his family on a visitor’s visa. Shortly after, he was charged in his absence, with criminal offences of kidnapping and extortion. A request was subsequently made from Russia to the UK for his extradition. The appellant’s wife applied to vary her leave to remain under the Tier 1 Investor category under paragraph 245S of the Immigration Rules. She asked that the UK Border Agency consider her application in country on the basis that she would not be able to make the application if she returned to Russia in light of her husband’s situation. The wife’s application was accompanied by a statement from the appellant’s solicitors confirming that he had not made an asylum or human rights claim but that he reserved the right to do so.

The appellant’s wife’s application to vary her leave under the Tier 1 Investor category was refused by the Secretary of State who decided not to exercise discretion. A variation of leave was not permitted in the circumstances and the application was refused by way of a letter dated 21st August 2009. Similarly, the appellant’s and children’s’ dependant applications were refused. The UK Border Agency stated that they would consider an asylum application is one was properly made at the ASU (asylum screening unit) at the home office. The decision notices gave rights of appeal including on asylum and human rights basis. They included one stop notices (statement of additional grounds) pursuant to section 120 of the Nationality, Immigration and Asylum Act 2002. The appeal grounds invite the appellants to inform the SSHD of any reasons why they should be allowed to remain in the UK.

The appellant and his family appealed on the basis that, if returned to Russia, the UK will be in breach of section 6 of the Human Rights Act 1998 and in breach of the Refugee Convention.

The appellant’s solicitors gave notice thereafter to the UK Border Agency that the appellant would be claiming asylum at the ASU. They explained that extradition proceedings had begun and that the purpose was not to claim asylum but to put the SSHD’s decision on notice. However, it was later decided that the appellant pursue his asylum case at appeal with the same proceedings. At a Directions hearing, the Special Casework Directorate at the UK Border Agency agreed to consider the appellant’s asylum claim despite the fact that he did not formally claim asylum. After about three months, the appellant formally attended the ASU to claim asylum having not received a decision from the UKBA.
The Secretary of State withdraw her decision to refuse a variation of leave whilst the appeal process (and one stop notice) was in place. The appellants argued that the Secretary of State acted inconsistently with the statutory scheme governing one stop appeals. The appellants wished for the asylum and human rights arguments to be considered by the Tribunal whilst the Secretary of State’s decision to withdraw their decision to refuse to vary leave mean that they would be the primary decision maker in the asylum and human rights case.

The case came before the Court of Appeal. The appellants arguments were rejected and the appeal was accordingly dismissed (several other grounds were also the subject of consideration). The Court decided that the Secretary of State had exercised their power to withdraw properly and that there was no inconsistency with the statutory scheme as alleged.

http://www.ergensharif.co.uk/Tier1Cases.aspx

13th February 2011

Students applying for extension of leave where the UKBA revoke the institutions licence:

2011-02-14T05:08:00.000-08:00

This issue was explored in the recent case of JA (revocation of registration – Secretary of State’s policy) India [2011] UKUT 52 (IAC).

This case came before the Upper tribunal and concerned an Indian national who arrived in the UK with entry clearance as a student. He subsequently applied for extensions of his leave to remain in the student category. He was studying at the London Institute of Technical Education. His leave was due to expire on 31st August 2009. He thereafter applied to extend his leave to remain under the Tier 4 category in order to continue his studies at the same institution (on 26th August 2009).

In October 2009, the appellant switched to studying with the London School of Business and Computing as the London Institute of Technical Education was not successful in its registration under the points based system. The appellant had notified the home office of this change by way of a letter in December 2009. However, in February 2010, the new school was also suspended as an approved education provider with the Licence later revoked. The Home office made the decision to refuse the appellant’s Tier 4 application on 12th March 2010.

The appellant argued that he had a legitimate expectation arising from the UK Border Agency’s points based system policy guidance which provides that if an educational provider’s licence is withdrawn, the applicant will have 60 days permission to remain in the UK (unless the applicant had anything to do with the licence being revoked).

There was no suggestion in this case that the appellant was involved in any way in the institution’s licence being withdrawn. At the appellant’s initial hearing, the Immigration Judge accepted the argument that the Secretary of State acted unlawfully by not following her own policy guidance. The Respondents applied for permission to appeal arguing that the appellant’s leave expired on 31st August 2009 and that his leave to remain did not have 6 more months to run as required by the policy. Therefore, they argued that the policy could not apply to him.Permission to appeal to the Upper Tribunal was granted.

The Upper Tribunal considered the interpretation of the policy guidance. The policy states that where there is more than 6 months left on the student’s visa or leave to remain in the UK, then their leave can be extended for 60 days. Where less than 6 months remains, leave will not be further limited. The appellant did not have any leave to remain save for that granted under s.3c of the Immigration Act 1971 (granting continuing leave until a decision is made in the matter). He therefore did not have leave to remain for more than 6 months to be limited to sixty days. Nor did he have other leave to remain (less than 6 months).

The appellant’s representatives argued that a grace period of 60 days should be extended to all students regardless of what leave they had left to remain and that the leave should start from the date that they discover the licence is withdrawn. The Tribunal held that this argument could not be sustained in law and it was rejected. The Tribunal held that the policy guidance could not be held to cover those remaining on s.3c leave. Even if the Tribunal accepted that a 60 day grace period should apply (which it did not), those 60 days had already expired.

In conclusion, the Tribunal held that the Immigration Judged had erred in his initial decision by stating that the appellant had a legitimate expectation and that he should be granted a further 60 days grace period.
The Upper Tribunal subsequently dismissed the appellant’s appeal.
13th February 2011.

http://www.ergensharif.co.uk/Tier1PostStudyWorkAward.aspx

Case law update : Third party financial support _ Visa application _ Working holiday maker visa

2011-02-09T17:33:00.000-08:00

KJ (Working holiday maker – third party support) India [2011] UKUT 34 (IAC) (26 January 2011): This case was about whether an Indian national who applied for entry clearance to the UK, as a working holiday maker, could rely on ‘third party’ financial support whilst here.

The key issues were what constituted ‘third party’ support in the context of the Immigration Rules (especially paragraph 85 of Rule 385). Having decided whether the applicant’s father counted as third party support (or whether family members were exempt), the court ruled on whether the ban on holiday makers relying on public funds, extended to include financial support from a holiday maker’s family members.

The Home Office had refused the applicant entry to the UK for a working holiday on 17 March 2009. The Home Office applied Paragraph 95 of the Statement of Changes in the Immigration Rules HC 395 (as amended). This states that any prospective working holiday maker must show that s/he is able to, and intending to, maintain and accommodate him/herself without recourse to public funds. The other conditions are that the prospective holiday maker must only intend to take employment that is incidental to the holiday. S/he must intend to leave the UK after the holiday ends.
The HO said that it was not credible that the applicant could rely on his father for financial support, as he has stated in his application for entry to the UK. Based on the money the applicant’s family had, the applicant would need to spend his father’s retirement fund in order to remain financially independent of the state whilst in the UK.

On appeal, the applicant argued that his father was not a ‘third party’ and that the support of a family member did not mean ‘third party’ support, but rather family members supported each other, especially in the Indian tradition.
Permission to appeal was granted because it was arguable (following Mahad v Entry Clearance Officer [2009] UKSC 16) that Paragraph 95 of the Immigration Rules might not extend to ‘third party’ support. In other words, working holiday makers were entitled to rely on family members to fund or partially fund their stay in the UK.

The Home Office conceded that, provided the applicant was able, and intended to, maintain and accommodate him/herself, without using public money, whilst in the UK, Mahad meant that financial support from family members was not ruled out by the Immigration Rules.

In principle, then, the law did not rule-out working holiday makers using family funds to holiday in the UK. However, on the facts of the instant case, the applicant’s claim that his father’s retirement fund was truly available to him for travel to the UK, seemed implausible. The decision to reject the applicant’s application for a working holiday stood therefore, and he was denied entry to the UK.

Zoë Sutherland

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

Case law update: Foreign marriage _ recognition _ EEA national

2011-02-09T17:19:00.000-08:00

JO and others (foreign marriage – recognition) Nigeria [2010] UKUT 478 (IAC) (26 January 2011):

This case involved a sponsor for residence (a father) and the appellants (his children) aged 20 and 6, and twins aged 11. The issue was whether the appellants could rely on their father’s EEA immigration status, in order to obtain UK residence cards, where that EEA immigration status might have been obtained by fraudulent means.

The father has both Nigerian and Italian citizenship. He obtained Italian citizenship by marrying an Italian in 1993. He and his wife divorced in 2001, but he retained Italian citizenship.

The Immigration Judge at first instance came to believe that the marriage was not genuine. If this was the case, the appellants’ father would, in effect, be seeking to rely on fraudulent arrangements in order to enjoy the benefits of EEA legal provisions (right of residence in another Member State).

The First Tier Tribunal further determined it could not be sure that the appellants were in fact the children of the sponsor (the Italian citizen). Requests for birth certificates had been complied with late. The DNA profiling which had been carried out was not accompanied by proof that the right people had taken the right tests.

The questions on appeal were whether the First Tier Tribunal had been entitled to enquire in to the genuineness of the marriage which gave the father Italian citizenship. On the second issue, it was necessary to determine whether the First Tier Tribunal’s conclusion about the relationship between sponsor and appellants was valid in law.

On the first question, the appeal court held that it would be inappropriate for the UK public authorities (as one Member State of the EU) to call into question a marriage treated as genuine by another Member State (in this case, Italy). It was not for the UK to investigate Italian grants of citizenship. Such issues as fraudulent marriage arrangements, as suspected by the First Tier Tribunal, would be a matter for Italy, and not the UK. Thus, on the first question, the Immigration Judge erred in law in suggesting that the sponsor was (a) not an Italian citizen and therefore (b) could not rely on such rights as EU law accords him as a citizen of another Member State.

On the second question, it was so unlikely that the sponsor has arranged for four individuals other than his children to attend DNA profiling, that this line of reasoning was dismissed. The evidence available was deemed sufficient to show that the claimed relationship between sponsor and appellants was indeed that of father and children.

The First Tier Tribunal was not entitled to make legal determinations which questioned Italian immigration status by marriage (that was a matter for the Italian authorities). The Tribunal was equally not entitled to make rulings based on any doubts about the relationship between father and children. These exercises should not have been embarked upon by the court.

For these reasons the appellants were deemed to be daughters of an EEA national exercising Treaty rights of residence (under Regulation 7(1) of the Immigration (European Economic Area) Regulations 2006. They were entitled to UK residence.

Zoë Sutherland

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

Indefinite leave to remain – calculating continuous period in UK - new guidance

2011-02-07T05:04:00.000-08:00

Please see the below explanatory notes regarding the new calculation of continuous period in the UK in cases of indefinite leave to remain. It is an attempt to clarify the new guidance for UK Border Agency staff. Please refer to the main guidance itself, which can be found if you click here, for further in-depth coverage of a point.
The following will be explaining how to calculate the qualifying period in the UK for indefinite leave to remain (known as settlement) in the working categories. Please note that some of these routes are now closed for entry or extension of leave. In order to be able to obtain indefinite leave to remain, the Immigration Rules require applicants to have spent a continuous period in the UK where they are:

    -       A work permit holder (Paragraph 134)
    -       A representative of an overseas newspaper, news agency or broadcasting organisation
              (paragraph 242)
    -       A sole representative (ILR now in the representative of an overseas business category-
             Paragraph 150)
    -       A private servant in diplomatic households (Paragraph 158)
    -      An employee of overseas governments (except those exempt from control) or the UN or other international organisation of which the UK           is a member (Paragraph 167)
-        A minister of religion, missionary or member of a religious order (paragraph 176)
-       An airport-based operational staff of overseas-owned airlines (paragraph 184)
-       On the basis of UK ancestry (paragraph 192)
-       A business person (paragraph 209)
-       An innovator or entrepreneur (paragraph 210G)
-       An investor (paragraph 230)
-       A writer, composer or artist (paragraph 238)
-       A retired person of independent means (paragraph 269)
-       A highly-skilled migrant programme (paragraph 245E-F)
-       in the following sub-categories of the points-based system (relevant paragraphs of part 6A):
-       all of Tier 1 except post-study workers
-       all of Tier 2 except Intra-company transfers (ICT) granted under the Rules in place from 6 April 2010
-       Tier 5 (International agreement)- private servants in diplomatic households only

The guidance allows UK Border Agency staff, for calculation purposes, to ignore short absences abroad where it is clear that the applicant has continued to be based in the UK. It is stated that examples of such an absence may be:

-       Holiday consistent with annual paid leave entitlements
-       Business trips consistent with maintaining employment or self-employed in the UK

Tier 2 migrants

Under the guidance, for such applicants, the period between grant of entry clearance and date the migrant entered the UK can be counted towards the five year period as long as it is no longer than three months.

Discretion (in cases where continuous residence has been broken)

Periods may be added, in exceptional circumstances, in order to form unbroken continuous residence in cases where:

-       There have been no absences abroad (except those mentioned above) and authorised employment or business has not been broken by:
-       A single interruption of more than three months or;
-       Interruptions that are more than six months in total

-       There have been significant absences abroad however they were a result of:
-       Compelling reasons ones of a compassionate nature or;
-       Related to the applicant’s employment or business in the UK
-       A single absence abroad cannot be more than three months at a time and must not total more than six months

Decisions: Only staff members that are at the appropriate grade have the decision to apply discretion. The guidance states that an HEO or above must decide whether to allow discretion where breaks in residence come under the above mentioned exceptional circumstances and an SEO or grade 7 member of staff must decide whether to allow discretion if breaks in residence and/or employment or self-employment are longer than the above or of a different type

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

UK and Australia to shae Visa Applicaion Centre

2011-02-07T05:03:00.001-08:00

A recent media release from the British High Commission has announced new plans concerning visa application centres. This is where the UK Border Agency and Australia’s Department of Immigration and Citizenship will, as of 8th February 2011, start to share the current UK visa application centre located in Colombo.

It is said that applicant’s can visit the Visa Application Centre (VAC) at the Access Towers (Level 5), Union Place, Colombo 2 to obtain UK or Australian visas. As Australia commences collecting biometric data from its visa customers, both countries (UK and Australia) have agreed to share a number of visa application centres and biometric collection facilities worldwide, as the VAC sharing system is already in place in other locations.

It is worth noting that the proposed plan does not change or affect the way in which UK visa applicants submit visa application and biometrics at the VAC and nor does it change the process whereby the UK Border Agency decide visa application. Biometric and personal data will not be shared and any information of UK applicants and that of Australian applicants will be stored and processed independently.
http://www.ergensharif.co.uk/NewsFeb.aspx

Case Law update : Paragraph 322 _ False representations must have been made knowingly

2011-02-01T01:39:00.001-08:00

TR (CCOL cases) Pakistan [2011] UKUT 33 (IAC) (26 January 2011)

This was an Upper Tribunal case heard on 5th November 2010 at Field House. The appellant (the SSHD) had refused the claimant’s application for variation of leave to remain. The claimant had successfully completed a postgraduate diploma in Business Management at Cambridge College of Learning (CCOL) between September 2007 and August 2008. This was not the first appeal to deal with CCOL. Reference was made to the case of NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 in which it was stated that CCOL never ran a postgraduate diploma in Business Management or IT COURSE and therefore, relying on such a course to apply for leave to remain under Tier 1 post study work would amount to false representations and fall foul of paragraph 322 (1A) of the Statement of Changes in Immigration Rules HC 395. Notwithstanding this case, there were numerous further appeals made on the same basis including the present case.

In the claimant’s case, the Immigration Judge had allowed his appeal against which the SSHD appealed on the basis that the Judge did not take account of the case of NA and Others. The claimant’s appeal was heard on 6th August 2009 whilst the decision of NA and Others was reported on 11th August 2009 (five days after the hearing but one day before the determination was signed).

The claimant’s representative argued that the Immigration Judge had not erred in law in that the decision of NA was not a High court decision or starred Tribunal decision neither was it a Country guidance decision. The Immigration judge should take into consideration the evidence as it is presented on the day of the hearing. Further, the representative argued that it was not incumbent on the Immigration Judge to treat the findings of fact in NA as binding and that the Judge considered the case on its own merits.

The Tribunal in this case concluded that there had been an error of law regardless of whether the Judge considered the case of NA. The SSHD had provided significant evidence (including evidence of the Higher Executive Officer at UKBA and the evidence of teachers at CCOL) which had not been properly considered. The Tribunal states that the Judge’s treatment of the evidence was ‘decidedly uncareful’.

The Tribunal discussed the case of AA (Nigeria) [2009] EWCA Civ 733 which approved the view in the case of NA in that it accepted for deception to arise; false representations must have been made knowingly. It also disagreed that paragraph 322 could cover ‘innocent’ representations. The Tribunal also made reference to the case of Pankina [2010] EWCA Civ 719 in that it was wrong to consider the UKBA guidance manual as mandatory or binding. The mandatory requirements are set out in the relevant Immigration Rules.
 
Conclusions 
The Tribunal concluded as follows:

Just because a decision is not binding does not mean that an Immigration Judge is free not to take account of its findings
Where the SSHD allege that a claimant falls foul of paragraph 322(1A) of the Statement of Changes in the Immigration Rules HC 395, then the case of AA (Nigeria) should be considered

Given the extent of overwhelming evidence found in the case of NA to show that no such course (as above) was ever ran at CCOL, an application made on this basis should be closely scrutinized.

January 2011

http://www.ergensharif.co.uk/Para320Cases.aspx

Case law Update: Asylum claim - political activist – internal relocation

2011-02-01T01:38:00.001-08:00

SA (political activist – internal relocation) Iran [2011] UKUT 30 (IAC)

This is an Upper Tribunal case heard on 11th November 2010 at Field House. The appellant is Pakistani national who claimed asylum on the basis that his life would be at risk if returned to Pakistan. The appellant feared persecution from an opposition party known as the Pakistan People’s Party (PPP). The appellant claimed that following the fall of President Musharaf in 2008, political tensions heightened particularly in his local area and that he and his brother were targeted. The appellant claimed that he and his family members received threats even when he moved to Islamabad. His asylum claim was refused by the Secretary of State for the Home Department and the appellant appealed against the decision. His asylum appeal was refused by the First Tier Tribunal and permission to appeal was subsequently granted. The case came before the current Tribunal.

At his initial hearing, the Immigration Judge whilst accepting that the appellant was a credible witness, went on to perversely conclude that the appellant would have sufficiency of protection from the police authorities and was therefore, not at risk on return. Alternatively, the Immigration Judge deemed that there would be a viable option of internal relocation. The appellant argued that the Immigration Judge erred in his decision in that he failed to take into consideration the police authorities’ treatment of him in the past and their failure to act on attacks on the appellant.
The Upper Tribunal went on to consider the legal framework namely; Regulation 4 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (implementing article 7 of the Qualification Directive 2004/83/EC). This deals with actors of persecution and reflects the decision in the leading case of Horvath v Secretary of State for the Home Department (2001) 1 AC 489 which provided that what was important was the availability of a system and the willingness of the authorities to implement that system.

The Tribunal found that the Immigration Judge had made an error of law in the treatment of sufficiency of protection and in his treatment of the appellant’s political profile. The Judge failed to properly consider the threats on the appellant and his family whilst he was living in Islamabad where he moved to in order to avoid persecution.

The Tribunal concluded that to require the appellant to live away from his home area in order to avoid persecution was not a proper reading of the internal relocation principal. Reference was made to Nolan J in R v Immigration Appeal Tribunal ex p. Jonah [1985] Imm AR 7. The Tribunal concluded that it could not, since October 2006, be in accordance with paragraph 3390 of the Immigration Rules (Article 8 of the Qualification Directive). The Tribunal made reference to the decision of the Supreme Court in the case of HJ (Iran) [2010] UKSC 31 which recognised that persons should not have to act contrary to their normal behaviour in order to avoid persecution. The only was the appellant could return to and live in Pakistan would be in hiding or in political exile.

Accordingly, The Tribunal set aside the decision of the first judge and allowed the appellant’s appeal.
January 2011

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

Case Law update

2011-01-26T05:58:00.001-08:00

Joint Council for the Welfare of Immigrants, R (on the application of) v Secretary of State for the Home Department [2010]

In this case, two claims for judicial review were brought. Firstly, by the Joint Council for the Welfare of Immigrants (JCWI) to challenge the interim limits on the number of applicants for entry clearance that can be issued with a Tier 1 visa General visa under the points based system. Secondly, the English Community Care Association (ECCA) brought a challenge to the number of certificates of sponsorship that could be issued under the Tier 2 general category.

The court looked at the background to the points based system. They confirmed that the PBS was introduced in 2008 consolidating roughly 80 different immigration routes into a five tier system. Tier 1 is for highly skilled workers from outside the EEA and it is divided into four sub categories – general, post study work, entrepreneur and investor. In respect of Tier 1 general, prior to 19th July 2010, an applicant was required to score 95 points to be eligible. After the interim measures were imposed, applicants were required to score 100 points.

Tier 2 is for skilled workers whereby UK employers can sponsor applicants for posts which cannot be filled by EEA or settled workers. Whilst there is a number of Tier 2 sub categories (such as intra company transfer) this case only deals with Tier 2 general. Unlike Tier 1 applicants, Tier 2 general applicants need a certificate of sponsorship (herein after referred to as COS). The employer is required to obtain a licence from the UK border agency. If granted, the Secretary of State will allocate a certain number of COS’s to them. Applicants must score 70 points, 50 of which are for attributes. COS’s may be issued where
a)     The job is one listed on the shortage occupation list
b)     There is no other suitable EEA or settled candidate
c)      The applicant had already worked 6 months with a sponsor under another immigration category (post study work)

The ECCA were concerned with the impact on the interim limits on Tier 2. Prior to 19th June 2010 there was no limit as to the number of Tier 1 applicants or overall number of COS’s issued under the Tier 2 category. The Government adopted their manifesto commitments to reduce the number of migrants in the UK by limiting the amount of applications that could be made under these categories.

The claimants brought their claims on the basis of the judgement in the case of Pankina along with other grounds including irrationality.

Conclusions
The court in this case concluded that the case would be allowed on certain grounds whilst dismissed on others. The decision of Pankina was reiterated and the court confirmed that they are bound by Pankina. The Secretary of State is required to lay any changes before Parliament so that they can be scrutinized as required by the Immigration Act 1971 for a 40 day period and to give them a chance to express their disapproval of the changes if any. Therefore, if material is to be incorporated into the immigration rules, these must be laid before Parliament in accordance with the rules and procedure. The imposition of interim limits on Tier 1 and Tier 2 were therefore deemed unlawful.
January 2011
http://www.ergensharif.co.uk/Pankinajudgment.aspx

High Court case law update : detention of families with children should only be in exceptional circumstances

2011-01-19T03:05:00.000-08:00

Suppiah & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) (11 January 2011)

This case concerned two claimants, a Malaysian national and her dependent children and a Nigerian national and her dependent child. Both the claimants’ were failed asylum seekers and were detained by UK Border Agency officers in dawn raids on their homes. They were taken to Yarl’s Wood detention centre for women and children. The children involved in the case were aged between 1 and 11. One of the children became sick whilst in detention.

The Malaysian claimant had submitted further submissions and lodged judicial review proceedings which prevented her removal and she and her children were granted temporary admission. The Nigerian claimant’s removal was prevented when she obtained an injunction restraining removal.

Despite the cancellation of removal directions, the claimants’ were not immediately released from detention. As a result, the claimants issued these proceedings stating that the detention had been unlawful from its inception or when removal directions had been cancelled. The grounds alleged that article 3, 5 and 8 of the ECHR (European Convention for the protection of Human Rights and Fundamental Freedoms) had been breached. The claimants argued that the Government’s policy of detaining minors was unlawful. It was argued that the policy is unlawful and that it cannot be operated lawfully in practice.

The court considered the defendants policy of detaining family with young children having regard to the Enforcement Instructions and section 55 of the Borders, Citizenship and Immigration Act 2009 as well as the decision in the case of RS v SSHD [2007]. The policy makes it clear that the intention is to promote the welfare of children and that detention should be the last resort. Alternatives to detention should be considered in all cases. Where detention is required, this should be for the shortest period possible.

The conclusion

The immigration judge in this case determined that the UKBA policy itself was not in fact unlawful. Illegal entrants are still subject to the policy even where they have children however, the immigration judge did state that the immigration staff dealing with the claimants had clearly not adhered to the policy guidelines. The judge commented that:
“It is clear from time to time the employees of UKBA fail to apply the defendant’s policy when making decisions relating to the detention of families with children.”

The judge continued to state that once the true significance of the policy was understood by UKBA employees and correctly applied, it can operate lawfully in practice. The judge was critical of the UKBA approach and pointed out that detention of families with children should only be in ‘exceptional circumstances’.
In the claimants’ case, the judge held that they had been unlawfully detained from the time they had been taken into custody until the time that they were released and that article 5 and 8 of the ECHR had been infringed. He held that article 3 rights had not been breached. He concluded that employees of UKBA failed to apply the policy with the rigour it deserved.
http://www.ergensharif.co.uk/detention.aspx

Case law update: Spousal visa _ marriage ends before the two year probationary period _ Article 8 _ family life in UK

2011-01-17T07:15:00.000-08:00

MH (pending family proceedings- discretionary leave) Morocco [2010] UKUT 439 (IAC) (28 September 2010)

This was an Upper Tribunal case concerning a Moroccan national who was in the UK on a spousal visa under paragraph 281 of the Immigration Rules. His leave was curtailed by the home office on the basis that they were no longer satisfied that his marriage was subsisting, the marriage having broken down. The appellant appealed against the decision. Although he accepted that his marriage had broken down, the appellant sought to remain in the UK on the basis of article 8 and in order to pursue family proceedings for a contact order for the couple’s daughter.

The appellant had applied for an adjournment to wait for the outcome of the family proceedings which was refused and his appeal was subsequently dismissed by the Immigration Judge presiding over the case. The Judge held that the appellant had no contact with his child and that he did not enjoy a family life in the UK. The Judge held he could continue his correspondence from Morocco by way of telephone. The appellant sought permission to appeal which was granted.

The Upper Tribunal held as follows

Consideration was to be given to the decision in the case of MS (Ivory Coast) v SSHD [2007] EWCA Civ 133 where it was held that a decision to remove an applicant in the process of seeking a contact order may be in breach of article 8 especially where removal would prejudice the outcome of the proceedings which may also breach article 6 ECHR
The Tribunal’s decision to refuse an adjournment pending the outcome of the contact order may have a similar effect
The UK Border Agency should grant an extension of leave on a discretionary basis where court proceedings are in place in line with their own practice and in accordance with the Human Rights Act 1998. The use of curtailment should be discretionary and reference was made to Home Office guidance issued in October 2010
Such cases that appear before Tribunals should be allowed on an article 8 basis and the respondent should grant a discretionary extension of leave to remain bearing in mind the Immigration Judge’s observations. It is up to the respondent to decide how long leave should be granted for
Where the contact order (or other relief) is successful, then the applicant may make an application for further leave to remain in the UK. If the outcome is unsuccessful, then it is up to the respondent to take the necessary steps.

In this case, the appellant had made attempts to establish contact with the child and no reference to this was made by the Immigration Judge in his determination. It was held that this was fundamental to the consideration of whether or not a private or family life existed and therefore, the Upper Tribunal found that there was a material error of law in the first decision. The appeal was dismissed under the Immigration Rules but allowed under article 8 ECHR. The respondents stated that the appellant would be granted an extension of leave to remain for 9 months in order to fully participate in the family proceedings. If the appellant was successful, he could make an application for further leave to remain under paragraph 248A of HC 395.

http://www.ergensharif.co.uk/PBSarticle8.aspx

Case law update on Marriage visa

2011-01-12T05:14:00.000-08:00

PS (paragraph 320(11) discretion: care needed) India [2010] UKUT 440 (IAC) (28 September 2010)

This case concerned paragraph 320 of the immigration rules and its application. The appellant is an Indian national who entered the UK illegally in 2000 and claimed asylum His asylum claim was refused. The appellant later met his future spouse, a British Citizen. The appellant returned to India in September 2008 having left the UK voluntarily. His intention was to return to the UK by applying for the relevant spousal visa. His intention therefore, was to regularize his stay in the UK by the appropriate means. However, the entry clearance officer refused his application for entry under paragraph 281 of the Immigration Rules and paragraph 320 (11) of HC395.

The appellants spouse is living with her cousin in a double room and she is working earning a salary of £840 per month. She receives free food and accommodation.

The appellant appealed against the entry clearance officer’s refusal. The Immigration Judge accepted that paragraph 281 (iv) and (v) had been satisfied. However, he upheld the decision of the entry clearance officer exercise of discretion under paragraph 320 (11). The appellant appealed further however, the senior immigration judge refused to grant reconsideration. An error of law was found by the High Court and reconsideration was ordered. The appeal came before the Upper Tribunal.

The Upper Tribunal considered rule 320 (11) which provides that entry should be refused:

“where the applicant previously contrived in a significant way to frustrate the intention of the rules.”

Examples are given of those who have used deception, been an illegal entrant or breached a condition attached to their leave in an application for entry clearance or leave to remain. The guidance provides that refusal may be given on a discretionary basis where the applicant has been in breach of immigration conditions or where there are aggravating circumstances. It then goes on to state what those circumstances are such as absconding, sham marriages, not complying with reporting restrictions etc..

The guidance continues to state that all cases must be considered on their own merits taking into account family life and the breach in question. The entry clearance officer must consider whether refusal under 320 (11) is appropriate.

Reference was also made to paragraph 320 (7B) which required an automatic ban of 12 months if the person left the UK voluntarily. Paragraph 320 (7C) was later introduced (in June 2008) disapplying paragraph 320 (7B) where the application involved a spouse, unmarried or same sex partner under paragraph 281 or 295(a) of the Immigration Rules.

In the appellant’s case the entry clearance officer had simply refused his application on the basis that he had entered the UK clandestinely and applied for leave to remain indefinitely which was refused. He had therefore, significantly sought to frustrate the immigration rules. The first Tribunal accepted this argument when dismissing the appellant’s appeal.

The Upper Tribunal held that the entry clearance officer made no reference to the guidance and no proper explanation as to how the appellant’s breach of immigration law was sufficiently aggravating so as to justify refusal. The Upper Tribunal held that the entry clearance officer should have recognized that the appellant left the UK voluntarily over 12 months prior to making his application. The marriage was accepted to be genuine and the entry clearance officer had not carried out an adequate balancing exercise under the guidelines.

The Upper Tribunal found that there had been a material error of law and the decision was set aside and a new decision made allowing the appeal.

11^th January 2011

Revised guidance on family members

2011-01-10T03:13:00.004-08:00

On 5th January 2011, the UK Border Agency published a revised chapter on family members in their immigration directorate instructions. The revised sections relate to spouses, unmarried and same sex partners and civil partners and fiancé’s and proposed civil partners. The immigration directorate instructions are internal guidance for UK Border Agency staff which is published to the public under Freedom of Information commitments.
http://www.ergensharif.co.uk/ImmigrationNewsJ11.aspx

Changes to the operational and enforcement guidance on detention and removals

2011-01-10T03:13:00.002-08:00

The UKBA have made amendments to their enforcement instructions and guidance on removals and detention. In particular, chapter 31 which deals with enforcements visits, chapter 43 which deals with personal safety in enforcement work and chapter 61 which looks at arrest teams and operational procedures.
9th January 2011
http://www.ergensharif.co.uk/ImmigrationNewsJ11.aspx

Returning documents where applications made under European Law

2011-01-10T03:13:00.000-08:00

The UK Border Agency announced its plans to make changes in the way in which documents are returned for applications made under European law such as EEA1, EEA 2, EEA 3, EEA 4 and FMRS. Changes will take effect on or after Monday 17th January 2011. Documents will be returned by Royal Mail second class post unless the applicant wishes for it to be returned by recorded delivery in which case, they must provide a pre paid envelope. If a pre paid envelope is not provided, then the documents will be returned by 2nd class mail.

http://www.ergensharif.co.uk/ImmigrationNewsJ11.aspx

Long Residence in UK _ Recent Decisions

2010-12-30T18:35:00.000-08:00

MU (‘statement of additional grounds’ - long residence - discretion) Bangladesh [2010] UKUT 442 (IAC)

This case was heard on 9h November 2010 at Field house . The appellant is a Bangladeshi national who arrived in the UK on 1^st August 2000 with a student visa. He applied for successive extensions of leave to remain in the UK which were all granted. His final grant of leave was until 31^st October 2008. He then applied for a variation of leave to remain under the Tier 1 post study work route. His application was refused on the basis that he had provided a false document (a postgraduate certificate in Business Management). He therefore fell foul of paragraph 322(1A) of the immigration rules which provides for refusal where false representations, documents or information have been used in relation to an application for a variation of leave to remain. The appellant attended the hearing before the First Tier Tribunal on 15^th January 2010 stating that he could not take his exams due to bereaving the loss of his father who had passed away at the time. The appellant admitted to purchasing a false certificate at the cost of £1500 and submitting this with his application. He argued that his wife and five year old son were also in the UK, studying and that he would like the opportunity to complete his studies in the UK before returning to Bangladesh. He expected to finish his studies in October 2010 whilst his wife’s leave did not expire until February 2011. The immigration judge dismissed the appeal under the immigration rules and refused to consider Article 8 on the basis that it had not been raised.

The appellant sought permission to appeal to the Upper Tribunal arguing that Article 8 had in fact been raised in the grounds of appeal as well as the appellant’s statement which was said to constitute the statement of additional grounds under section 120 of the Nationality, Immigration and Asylum Act 2002. Reference was made to the authority in AS (Afghanistan) and NV (Sri Lanka)[2010] EWCA Civ 1076 which provided that there is no time limit for serving a statement of additional grounds in response to a section 120 notice.

The Tribunal considered that whilst Article 8 was not properly or fully raised in either the grounds of appeal or the witness statement, there was an obvious article 8 human rights argument which arose at appeal and should be considered as such regardless of whether it had been raised in the grounds of appeal or not.

The case was adjourned in order for the appellant to serve a section 120 statement this time on the basis of ten years lawful residence in the UK. The respondents disputed that the appellant could succeed under the long residence requirements of the immigration rules namely, rule 276A. The respondent relied on the public policy provision contained in paragraph 276B (ii) which provides that indefinite leave to remain can be refused if this would be undesirable on public policy grounds. “Character, conduct and associations’ of the appellant were all relevant in this assessment. The respondent argued that the appellant should not be allowed indefinite leave to remain as a result of his behavior. The appellant representative argued that he was no in fact, applying for indefinite leave to remain in the UK and stated instead that he was applying for an extension of leave to remain for two years under rule 276A2. The Tribunal did not accept this argument and stated that rules 276A1-4 were introduced in April 2007 for those people who would have qualified for indefinite leave to remain under the long residence rules but for the English language and knowledge of life in the UK requirement. Applicants were granted two years leave to remain to allow them to satisfy this requirement and ultimately leading to indefinite leave to remain. The rule is not simply a route to an extension of leave to remain in the UK. The appellant could not therefore assert that he could avoid the public policy proviso on the basis that he only wished to remain for two years limited leave. The Tribunal considered the one stop statement of the appellant which appeared to be inconsistent with a person who did not wish to remain in the UK.

The Tribunal concluded that the appellant blatant deception which caused a refusal under paragraph 322 (1A) of the rules was justified. The Tribunal continued to consider Article 8 of the ECHR. The appellant’s wife had completed her course of study and embarked upon a new one. The Tribunal considered that the hardship would not engage article 8 and that the appellant’s wife knew that her husband’s immigration status was uncertain when she commenced her new course. The Tribunal concluded that it would not be disproportionate to return the appellant to his Country of origin and the appeal was subsequently dismissed.

30^th December 2010.

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

PBS case law update

2010-12-27T14:28:00.000-08:00

HM and others (PBS- legitimate expectation - paragraph 245ZX(I)) Malawi [2010] UKUT 446 (IAC) (08 December 2010)

The appellants are nationals from Malawi. The main appellant is the applicant and the second appellant is her spouse whilst the third appellant is her son. The appellant was granted leave to enter the UK on 6th May 2005 as a working holidaymaker. She was subsequently granted an extension of her leave by switching into the student category. Her visa was valid until 30th June 2009. Her husband had arrived in the UK in 2001 and was granted leave to remain as a student. He had extended his visa on multiple occasions and varied his leave to remain as the dependant spouse of a student in June 2008. His leave was valid until the same time as the main appellant, his spouse. The appellant’s son was born in the UK and granted the same terms of leave until June 2009.

The appellant’s applied for an extension of leave to remain under the Tier 4 student category (husband and son applied in line as dependants). The application was refused in a Secretary of State for the Home Department (herein after referred to as SSHD) decision dated 10th August 2009 on the basis that the appellant’s had not satisfied appendix C of the Immigration Rules HC 395. 10 points is required for maintenance purposes under Appendix C.
The SSHD provided that the appellants needed to show maintenance for both herself and her dependants and also that she could pay the rest of her course fees. The appellant had submitted a letter from a Dr. in Malawi confirming that he would financially support the appellants however, the SSHD provided that in accordance with published policy, third party support was only permitted in specified circumstances, none of which applied in this case. The appellants appealed against the SSHD decision and their appeal was subsequently dismissed by an Immigration Judge in January 2010 both under the Immigration Rules and under Article 8 of the ECHR. The judge had noted evidence in the form of joint funds in the names of the first and second appellants totaling almost £35,000. The appellants argued that they had applied to the National Bank of Malawi for the transfer of the funds however; they had only been permitted to transfer US$1,000. The appellants argued that they obtained funds in sterling from individuals who wished to transfer money to Malawi. The appellants made transfers of the funds to the intended beneficiaries of the individuals. They did this due to lack of foreign exchange services in Malawi.

The appellants sought permission to appeal to the Upper Tribunal which was granted and heard on 23rd July 2010. The Court held that, on proper interpretation of the word ‘available’ in respect of funds at paragraph 11 of Appendix C, the appellants did have the funds available to them. They were unable to transfer the funds due to money exchange regulations in Malawi so could not immediately access them. The appellants’ representatives argued that the SSHD’s guidance states that funds can be shown to be in an overseas bank account as long as the specified information is on the bank statement. Therefore, there is a legitimate expectation that the SSHD will adhere to its own guidance. The guidance does not require those funds to be immediately available for withdrawal.

In conclusion, the court held that
a) Funds are considered to be available to a person at the material time if they in his control in an overseas bank account
b) In accordance with the decision in the case of Pankina v SSHD, policy guidance which has not been laid before Parliament for scrutiny, cannot be relied on by the SSHD. It can give rise to legitimate expectation that the SSHD to that guidance when considering the appellant’s claim

December 2010

http://www.ergensharif.co.uk/Tier1PSWcase.aspx

Case law update _ Student

2010-12-27T14:27:00.001-08:00

DN (student; course 'completed'; 'established presence') Kenya [2010] UKUT 443 (IAC) (15 November 2010)
The case looked at the maintenance requirements under Appendix C of the Immigration Rules and in particular, who qualified for the reduced maintenance under the Tier 4 category. The case confirmed that, in order to qualify for the reduced 2 months maintenance requirement, the applicant must show that they have completed a course of study within the last four months and that that course was for a duration of over 6 months in length. That course may still be continuing. If the course has come to an end within the last four months and the applicant is seeking to embark on a new course, it matters not whether the applicant successfully completed the previous course. Appendix C should not be read to mean ‘successfully completed’. It should read to mean that the course ended within the last four months. The notion ‘established presence’ needn’t mean presence as a successful student.

Case summary
The appellant applied for an extension of leave to remain in December 2009 under the Tier 4 student category. He had paid his course fees but also needed to satisfy the maintenance requirements. As he was studying outside of London, he needed to show an amount of £600. The issue was whether he had an established presence and should therefore show either 2 months worth or nine months worth. According to paragraph 11 at the time, he could apply for 2 months worth of maintenance as the course had finished within 4 months however, it could also be 9 months worth as he was extending his leave to remain following the completion of a course with less than 6 months duration. The UK border agency sought to contact the appellant as his education provider stated that he had not attended classes. Therefore, they sought evidence that he had in fact completed his course of study. In the absence of such evidence, the appellant would need to show maintenance for nine months worth of study. The appellant did not have the requisite funds for nine months worth in his account and therefore, his application to extend his leave was refused on the basis of maintenance.

The appellant appealed and requested a hearing on papers. The appeal was dismissed and the appellant subsequently sought permission to appeal to the Upper Tribunal. The appellant in his grounds argued that the previous judge had not taken into account an additional bank statement which he had provided indicating that he had the necessary funds available in his account. In accordance with Pankina, it was stated that funds acquired after the application was made would not avail to the appellant. It was funds that he had at the time of making the application that counted. This was overlooked by the senior immigration judge when granting the appellant permission to appeal. The senior immigration judge was instead concerned with the fact that the First Tier Tribunal consulted the policy guidance. However, the stipulation as to funds required for 2 month or 9 months periods is not only in the policy guidance but also in the Immigration Rules. This was not therefore, a Pankina like scenario (case of Pankina v SSHD).

The Tribunal held that whilst the appellant did not need to show that he had successfully completed his previous course, he would still need to meet the nine month maintenance requirements as his course had lasted for less than 6 months and there was a gap of longer than 4 months between his previous course and the commencement of his intended course.

The Tribunal held that there had been no error of law and the appeal was dismissed.
December 2010

http://www.ergensharif.co.uk/Tier1PostStudyWorkAward.aspx

UK student visa and conditions of stay

2010-12-24T15:59:00.000-08:00

SAB and others (students-serious breach of conditions - Article 8) Ghana [2010] UKUT 441 (IAC) (07 December 2010)

This case concerned appellants originating from Ghana in the UK on student visas. The appellants applied to extend their leave by applying for a Tier 1 general visa. However, their extension applications were refused on the basis that they had remained in the UK in breach of their immigration conditions namely, having worked in excess of the hours permitted under their student visas.

One of the appellants was a research student making good progress on his doctorate. However, his leave was curtailed before his examinations on the basis of having worked over the hours permitted under the terms of his visa. An appeal against the decision was lodged and dismissed both under the Immigration Rules and under Article 8. Whilst the appellant did have article 8 arguments in favour of his appeal, the immigration judge considered the decision to be proportionate stating that, the appellant could not expect to benefit entirely from article 8 whilst remaining in the UK in breach of his conditions of leave i.e. by working excessive hours for a prolonged period of time. The judge concluded that it was a proportionate response to someone who had totally disregarded his obligations under the Immigration rules. The appellant applied for permission to appeal and this was granted.

The Tribunal noted that working restrictions on student are difficult to police and therefore, those who breach their conditions whilst other students who may wish to work longer hours but don’t, should not be entitled to rely on human rights grounds for further leave to remain. This was deemed to be unfair to students who adhered to their conditions of stay.

The immigration judge considered the recent cases of Pankina v SSHD [2010] EWCA Civ 719 and CDS (PBS: “available”: article 8) Brazil [2010] UKUT 00305 (IAC. The judge commented that, these cases are examples of how, those who have committed minor offences or breaches under the immigration rules may successfully rely on human rights to continue to exercise their leave/extend their leave of remain However, these cases do not provide for serious breaches of the immigration rules to be overlooked.

In this case, the immigration judge decided that there was no error of law in the initial decision to dismiss the appellant’s appeal. The appellant had entered into a contract with an employer for 20 hour per week. However, in reality, the appellant worked in excess of 20 hours per week. The judge stated that the case of CDS did not give the courts free standing liberty to disregard the immigration rules and that it was unlikely that a person coming to the UK for temporary purposes could show an article 8 right. Instead, the CDS and Pankina case highlight that, a person who has come to the UK to pursue a course of study which he or she has not yet completed, may have built up an article 8 private life that deserves consideration. Public interest may be considered ‘reduced’ where sufficient financial resources are available. The appellants in those cases had succeeded as their breaches were technical (i.e. lack of funds for a short period due to unforeseen circumstances).

This case could be differentiated as it did not involve minor technical infringements of the immigration rules. The immigration judge concluded that the effective maintenance of immigration control is a strong public interest which must be considered in the balancing exercise by the Tribunal.

The appeal was dismissed.

24^th December 2010

http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.ergensharif.co.uk%2FTier1PostStudyWorkAward.aspx&h=8f3d3

New interim limits set for Tier 2 General

2010-12-24T14:50:00.001-08:00

Following a court judgment on 17th December 210, the Government has set a limit until 5th April 2011 for the amount of sponsorship certificates that can be issued to licensed sponsors under the Tier 2 General scheme. The maximum certificates that can be issued is 10, 832.

http://www.ergensharif.co.uk/Tier2update.aspx

22nd December 2010

International update: China

2010-12-24T14:49:00.000-08:00

The UK has opened a new visa application centre in Beijing, China in order to provide a better service for the ever increasing demands from Chinese nationals travelling to the UK. More Chinese nationals are opting to travel overseas and figures appear to be doubling since last year.

However, thousands of Chinese students currently studying in the UK are concerned about the increasing restrictions on Tier applications and in particular, on Tier 1 general and Post study work visas. As the UK Government continues to tighten visa requirements, the number of migrants will no doubt fall.
English language requirements for many migrants have been raised from level B1 to level B2. The Government intends to attract students who intend to follow their course of study and then leave the UK, not those who come to the UK with an intention of settling here permanently. The new restrictions mean that those taking language courses or those migrants studying below bachelor level may have to leave the UK at the end of their leave.

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

Overseas Tier 1 General to close

2010-12-24T14:48:00.001-08:00

The UK border agency has announced that as of 23rd December 2010, it will no longer accept Tier 1 General applications from overseas. This is in order to make sure that the limits set by the Government are not exceeded. Tier 1 general applications in the UK will continue to remain open until 5th April 2011. Transitional arrangements will be announced for those remaining in the UK beyond 6th April however, these are yet to be announced.

http://www.ergensharif.co.uk/Tier1Update.aspx

22nd December 2010

Important update: case law regarding the age limit on spouses applying for leave to enter the UK

2010-12-21T12:59:00.000-08:00

In the case of Quila & Anor v Secretary of State for the Home Department [2010] EWCA Civ 1482 (21 December 2010), the Courts considered at length, the ban contained in paragraph 277 of the immigration rules on the entry of foreign spouses aged between 18 and 21 and, whether this ban was a lawful way in which to deal with the issue of forced marriages.

Paragraph 277 of the immigration rules were amended with effect from 27^th November 2008 increasing the age limit for marriage from 18 years to 21 years. This applied both to the sponsor in the UK and the foreign applicant.

From 6^th April 2010, the rules were amended to state ‘aged under 21’ (or aged under 18 if a serving member of the HM forces). The amendment suggested that the policy was capable of a waiver. The SSHD (Secretary of State for the Home De0prtment) clarified that ‘clear exceptional compassionate circumstances not previous considered could warrant the exercise of discretion outside the rules.

The rationale behind the increased age limit was to circumvent forced marriages which often involved rape of domestic violence. Figures showed that a substantial amount of forced marriages occurred between the ages of 18 to 21 years of age. The SSHD therefore argued that the evidence suggested that if the age limit was increased, forced marriages could be prevented. The statistics were provided by the Forced Marriage Unit (FMU).

Counsel for the appellants argued that the FMU found no more than 4% of those who applied for entry clearance visas were deemed to be forced marriages. As a result, using the same statistics, roughly 96% who now apply would be disadvantaged by the ban (the figures in question were those of 2007, one year prior to the ban being introduced).

The Judges in this case commented that a substantial number of bona fide couples would be kept apart as a result of this ban. Whilst the SSHD accepted this, it was argued that the measure was proportionate to the aim. The appellants’ counsels’ counter argued that the measures would not prevent forced marriages and indeed, if they did, this would only be for a temporary period. Instead, forced marriages will only be deferred until the age of 21.

Immigration Rule 277

The court considered the validity of the rule. The appellants’ argued that the rule was

a) Irrational

b) Disproportionate

c) Discriminatory

Ground 1 Irrationality

The conclusion on this basis was that, the rule had little to do with preventing forced marriages simply by reference to age. It could arguably prevent the incidence of forced marriage by excluding an age group of people identified to be subject to forced marriages.

Ground 2 Proportionality

Proportionality at common law and under the Convention were considered and ultimately, the court agreed that rule 277 is in direct conflict with both common law and the Convention. The right to a family life is a fundamental right. The SSHD argued that rule 277 does not prevent the couple from marrying or from living overseas until they attain the relevant age, it merely prevents them from living in the UK. However, the point of marriage is the right to live together thereafter and any reason justifying the separation of a couple needs to be much stronger than the reasons presented by the SSHD.

Consequently, the SSHD’s measure to prevent forced marriages was arbitrary and excessive. At paragraph 62, the court provided as follows

“The critical question was why the protection of the vulnerable justified a blanket rule which invaded the fundamental rights of a far greater number of innocent people. This was apparently not addressed”.

Ground 3 Discrimination

It was argued that the rule was contrary to the prohibition of discrimination of Article 14. This referred to the amended exception for those members of the HM forces (for which the age limit is 18). The question of discrimination was already considered in the proportionality arguments and the courts did not rule further on this issue.

Conclusion

In conclusion, it was held that the ban imposed by rule 277 was unlawful. The court commented that whether it should be limited or dropped altogether was a matter for the SSHD.

In the cases of the present appellants, it was no doubt that a family life in accordance with article 8 had been established and the SSHD, by application of rule 277, had interfered with this right.

The appeals were subsequently allowed.

21 December 2010

Withdrawal of R(S) policy

2010-12-20T11:32:00.001-08:00

This is appears to be in response to the recent decision in R (on the application of K) v Secretary of State for the Home Office [2010] EWHC 3102 (Admin): In a previous case - R (on the application of S) v Secretary of State for the Home Department [2007] EWCA Civ 546 - the court held that the Secretary of State for the Home Office (SSHO’s) decision to put certain asylum applications ‘on hold’ was unlawful. The government policy formulated in response to that judgment was intended to deal with those affected by the delay in dealing with their applications. It was held that this policy could apply to someone who was outside the UK.

K applied for consideration under the R(S) policy. The SSHO refused his application, stating that the policy was not intended for those who were not present in the UK. K had applied for asylum in the UK in 1999. There was a delay in dealing with his application due to the SSHO's decision in 2002 to put pre-2001 asylum applications ‘on hold’, in order to meet new government target dates by which to process later applications. K was removed to Afghanistan. Judicial review of the decision to refuse K’s asylum application in the present case succeeded for two reasons. The R(S) policy was a current policy, and the SSHO was wrong to maintain that K was not eligible for the R (S) policy because he was outside the UK.

K’s claim to refugee status was that he and his family had been members of the Khalq Democratic Party/PDPA in Afghanistan. The Taliban employed him as a doctor but in 1999 K’s brother was hanged by them. Subsequently K refused to assist the Taliban and fled Afghanistan. Between 1999 and 2004, the UK policies applicable to failed asylum seekers from Afghanistan changed. Whereas in 1999 the norm was to grant a credible applicant indefinite leave to remain, by 2002 unsuccessful applicants were not granted any kind of leave to remain.

The R(S) policy did not explicitly exclude those outside the UK. As such the decision-maker was found to have failed to take account of a relevant consideration in ruling out the applicability of the policy. Whilst earlier drafts of the policy had made presence in the UK a condition of the policy, the final published version did not make that clear. A reasonable person reading the final policy document would understand that it applied to applicants outside the UK.

Given K had delayed applying, it made it more difficult to establish unfairness (R (on the application of ZK (Afghanistan)) v SSHO [2007] EWCA Civ 615 and R (on the application of S) v SSHO [2009] EWCA Civ. However, this did not defeat the appeal. The policy on which he relied was current and his application was made within two months of its publication.

The SSHO’s decision was set aside and remitted for reconsideration so K might be granted leave to enter the UK, or entry clearance, such that his case could be considered under the R(S) policy.

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

Case law update : Family life under Article 8 and criminal convictions

2010-12-20T11:31:00.000-08:00

The Secretary of State for the Home Department v Respondent [2010] UKUT B1 (10 December 2010)

The Iraqi respondent (R’s) right to family life precluded his removal from the UK, even in the face of his criminal convictions.

The Immigration Judge (IJ) had been entitled to find that the respondent had established a family life. Appropriate weight had been given to R’s criminal convictions. However, the IJ should have addressed the submission that R should be returned to Iraq in order to make an entry clearance application, to regularise his immigration position in the UK. Given that a refusal of entry clearance would breach R’s right to family life (Article 8 of the European Convention of Human Rights), there was nothing to be achieved by removing him from the UK.

The facts were that R, driving whilst disqualified, had failed to report an accident in which a child was trapped under his car and died. There was no criminal responsibility (no dangerous or careless driving), but R should not have been driving in the first place. In this case, which naturally aroused strong emotions, the father of the child who had died asked that his human right not to be separated from his child be balanced against that of the respondent’s. However, the interests to be balanced were not those of the child’s father and R. This was an assessment of the public interest arguments justifying removal, balanced against the consequences of removal for R, his partner and their children.

The respondent had begun a relationship with a British national in 2003. They lived together and had two children, and the respondent acted as father figure to his partner’s two children from a previous marriage. It was found the respondent had established a family life in the UK. Because of the delay in dealing with the respondent’s immigration matters, he had had time to develop familial ties in the UK (EB (Kosovo) [2008] UKHL 41) . The interests of the four children involved were of particular significance. The IJ had therefore allowed the appeal.

The SSHO appealed the decision. However, there had been no misdirection in law in balancing the evidence of criminality and family life, especially in light of LD (Zimbabwe) [2010] UKUT 278 , which made clear that the interests of the child would always be a relevant consideration in an Article 8 case.

It might be noted that on the approach of MA (Nigeria) v SSHD [2009] EWCA, in assessing whether removal of an illegal immigrant would breach his rights to family life, regard would be had to the length of time required to elapse by paragraph 320 (7B) of the Immigration Rules before R would be allowed to return. (Paragraph 320 (7B) was a mandatory refusal.) Because of the respondent’s right to family life, however, regardless of the Immigration Rules, refusing him entry clearance ould be unlaful.

There was thus no useful purpose to be served in requiring R to return to Iraq in order to apply for an entry clearance to which he has become entitled under Article 8.

http://www.ergensharif.co.uk/PBSarticle8.aspx

Fresh Asylum Application _ Recent Decisions

2010-12-19T15:37:00.000-08:00

Wray, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 3301 (Admin) (16 December 2010)

This case concerned the a judicial review against the defendant Secretary of State for the Home Department’s (herein after referred to as the SSHD) refusal to accept to treat the claimants application as a fresh claim in accordance with paragraph 353 of the Immigration Rules HC395. The claimant argued that any intended removal would breach his Article 8 human rights.

Brief summary of claimant’s immigration history:

The claimant is a Jamaican national who arrived in the UK on 24^th April 2002. He used a false passport to enter the UK. The claimant claimed that he was being targeted and persecuted by the Jamaican police. The claimant contacted a solicitor and made an appointment to claim asylum. However, before he could do so, the Jamaican police officer from whom he fled, arrived in the UK and contacted UK police who then arrested the claimant. The claimant claimed asylum at the police station. He was not charged with any offence but was made subject to immigration detention. On 25^th June 2002, his asylum and human rights claim was rejected and he appealed against the decision. His appeal was subsequently dismissed and the immigration judge commented that, whilst he accepted the claimant had been harassed by the police however, he would not face persecution in the sense of article 2 or 3 of the human rights Convention. The judge found that article 5 of the Convention could not be engaged either.

The claimant’s application for leave to appeal to the Tribunal was refused and he subsequently lodged a judicial review in February 2003. Permission was refused on an oral application. Permission to appeal to the Court of Appeal was subsequently lodged and refused. In August 2003, the claimant was detained and removal directions were set. A second judicial review was lodged against removal directions and provided fresh evidence in support of his case. Permission was refused and the claimant subsequently lodged a fresh claim. The clamant had also been in a relationship and his first child was born. His child was a British Citizen. The claimant was detained again before a decision had been made in respect of his fresh claim. Another judicial review was lodged and it was held that his fresh claim had not been dealt with. In the interim, the claimant had a second child from his new partner Ms Shakira Gray. The relationship was still subsisting however; Ms Gray did not have any leave to remain in the UK. The claimant than made an Article 8 based claim in 2007. He based his claim on his relationship with his children (he had another child thereafter with Ms Gray).

Ultimately, the claimant’s fresh claim was refused and not accepted as a fresh claim. Further representations were submitted however, the defendants maintained their decision.

The verdict:

The court considered the relevant legal framework in this case, namely paragraph 353 of the immigration rules. They also considered all the relevant case law including WM (DRC), Razgar, Huang, Beoku Betts and Chikwamba. The claimant’s argued that he qualified for leave to remain (save for lack of entry clearance) under immigration rules 246 and 247 –exercising rights of access to a child resident in the United Kingdom. However, the court dismissed the application finding in favour of the defendant stating that the SSHD had applied anxious scrutiny to the case and had properly considered all the material including new evidence supplied by the claimant. The claimant had merely submitted evidence which he had already relied upon but which he had expanded. The SSHD had considered his relationships and had come to an unfavorable conclusion. The strength of the claimant’s relationship and article 8 family life had been given anxious scrutiny and in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009 (which deals with safeguarding and promoting the welfare of children). Section 55 places a duty on the UK Border Agency to carry out functions having regard to the welfare of children which the defendant claimed they had done and which the court accepted.

The case was dismissed.

http://www.ergensharif.co.uk/FreshClaimCase1.aspx

19^th December 2010

High Court Ruling declares immigration cap on tier 1 and tier 2 as invalid

2010-12-18T18:04:00.000-08:00

On 17th December 2010, the Home Office lost a judicial review on the interim limits imposed on the Tier 1 and Tier 2 categories of the points based system. The judges in the case stated that the Home Secretary, Teresa May had effectively, tried to “side step Parliamentary scrutiny” by imposing the interim limits.

The Government imposed the interim limits in June-July of this year on Tier 1 applications from overseas and the amount of sponsorship certificates allocated under Tier 2. The action was brought against the Home Office by the Joint Council for the Welfare of Immigrants (JCWI) and the English Community Care Association.

Immigration Minister Damian Green stated that he was disappointed with the decision and that they would appeal if there were any grounds. He continued to state that the judgment would not impact on the permanent limit to be imposed as of April 2011. He stated that the ruling was about “process not policy”. The policy does not therefore remain unlawful. Green further stated that the ruling was based on “technicality” and that they would work to resolve this and to implement an interim limit accordingly.

Child detention

2010-12-18T18:02:00.001-08:00

Further to the coalition's commitment to ending child detention, it has been a pleasure to welcome Nick Clegg's speech on Thursday 16 December 2010 whereby he made an announcement that children will no longer be detained and the closure of Yarl's Wood Detention centre was to commence as of that day. Lorin Sulaiman, from Ergen & Sharif Immigration Specialists, attended this event and was able to deliver the message to the media and explain as to why child detention must end. This was a momentous event especially as no children will be locked up this Christmas!

http://www.facebook.com/pages/Ergen-Sharif-Immigration-Specialists/302543360318?v=wall

Tier 1 and Tier 5 update- biometrics system

2010-12-16T13:58:00.000-08:00

The UK border agency announced that as of 14^th December 2010, those migrants applying under Tier 1 or Tier 5 (temporary workers) of the points based system will be required to give biometric information (consisting of photographs and fingerprints) when submitting their applications. The purpose of providing biometrics is to establish the genuine identity of the applicant and many categories of visas require biometric information to be provided. Successful applicants will be issued with biometric residence permits which will confirm their right of stay and conditions in the UK.

Applicants who make their application by post will receive letters requiring them to arrange biometric appointments. Only after biometric information is provided will applicants receive their permits (provided all other requirements are met).Applicants making their applications via the premium services or same day services at the public enquiry office will provide their biometric information on the same day.

http://www.ergensharif.co.uk/Tier1Update.aspx

14^th December 2010

Case law update: Permanent residence

2010-12-16T13:55:00.000-08:00

Carvalho v Secretary of State for the Home Department [2010] EWCA Civ 1406 (14 December 2010)

This case concerns Regulation 15 (1) (a) of the European Economic Area Regulations 2006 (herein after referred to as the Regulations). The court considered whether time spent in prison could count towards the time required for permanent settlement. The case concerned the power to deport persons who as a result of their nationality, came within the Regulations and the Directive 2004/38/EC.

The court dealt with the relevant Regulations in turn.

Firstly Regulation 15: This provides that an EEA national may acquire permanent residence once they have accumulated 5 years residence in the United Kingdom having lived here in accordance with the Regulations. Permanent residence can then be lost of the person spends over a consecutive two years away from the UK.

Regulation 15 is subject to Regulation 19(3)(b) which provides that a person who has acquired permanent settlement can be removed from the UK on the grounds of public policy, public security or public health.

The court in turn looked at Regulation 21 which provides a framework for decisions taken on public policy, public security or public health grounds. Regulation 21(4) states that “a relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who has resided in the UK for a period of at least 10 years prior to the relevant decision” .

Decisions made on the grounds of public policy and public security must be proportional and be based exclusively on the conduct of the person. That conduct must represent a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Previous criminal convictions are not to justify the decision and regard must be had to the person’s personal circumstances such as age, health and family.

The time spent serving a prison sentence may be counted towards the five years qualifying period. Reference was made to the Citizen’s Directive which uses the term ‘resided legally’ when calculating the time spent towards the five years whereas this is omitted from the wording for ten years residence. Thus the term ‘legally’ in this context meant the exercise of rights and freedoms as conferred by the Treaty.

The appellant in this case was a Portuguese national who had been residing in the UK since 2002. He had been convicted of many criminal offences (non custodial sentences) until his last offence when he was convicted for 22 months imprisonment for sexual assault. He was placed on a sex offenders list for ten years. Shortly prior to the end of his prison term. The Secretary of State notified him of their intention to deport him and relied on the fact that he had not acquired permanent settlement in the UK.

The appellants appeal was dismissed and went to reconsideration where it was again unsuccessful.

It was ultimately decided that this appellant’s appeal should be dismissed. Reference was made to article 28 of the Citizen’s Directive (which deals with the calculation of the duration of residence) and the European Commission’s opinion communicated to the Parliament and Council on 2^nd July 2009 stating that; time spent behind bars does not necessarily count towards the qualifying period. In this case, the appellant had not been exercising his treaty rights in the host member state and could not therefore, benefit from the enhanced protection. http://www.ergensharif.co.uk/RetainedRightOfResidenceCases.aspx

December 2010

Tier 1 (general) applications from overseas: December limit reached

2010-12-15T04:52:00.000-08:00

The limits imposed by the UK government on 19th July 2010 on Tier based applications are administered by the UK Border Agency on a monthly basis. Tier 1 applications received from overseas applicants for the month of December have reached this monthly limit meaning, any new applications will only be considered for the following month. The limit allocation reopens in January when Tier 1 applications will be considered. The limit does not affect applications from dependants, those switching into Tier 1 from inside the UK or those extending their Tier 1 visas.

7th December 2010

http://www.ergensharif.co.uk/Tier1Update.aspx

The extended student visitor visa for migrants wishing to study English language

2010-12-15T04:50:00.000-08:00

Students who wish to exclusively study an English language course in the UK will be able to apply for extended student visitor visas for up to a period of 11 months to enable them to do so. This will be introduced as of 13th January 2010 and will only be available to migrants applying from outside of the UK. The requirements under this category are the same as the current student visitor visa requirements. Work is prohibited and students are not allowed to bring their dependants, take placements or switch into other courses or extend their stay beyond their permitted leave.

Students who wish to study other courses in the UK for a period over 6 months, will need to apply under Tier 4 of the points based system. Non visa nationals however, who do not usually require a visa to study for longer than 6 months, will need to apply for an extended visa in order to study a longer English language course.

13th December 2010

http://www.ergensharif.co.uk/Tier4.aspx

New English language test providers invited to apply to be on UBA list of providers

2010-12-15T04:46:00.001-08:00

From today until 31st January 2011, the UK border agency is conducting an exercise to produce a new list of English language test providers. Test providers are invited to participate to see whether their language tests will be suitable for migrants applying under the Tier 1, 2 or 4 of the points based system or for those applying for settlement or naturalization.

The UK border agency intends to establish a new list of providers by April 2011. Until then, transitional arrangements will be put in place for those who need to or have already taken a test.

9th December 2010

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

Case Law update _ Refugee and safe third country

2010-12-10T15:35:00.001-08:00

RR (refugee-safe third country) Syria [2010] UKUT 422 (IAC) (13 November 2010)

The claimant was a national of Syria, married to a national of Algeria. In 2008 the Secretary of State for the Home Office (SSHO) rejected her asylum claim, with the intention to remove her to either Syria or Algeria. Her appeal was allowed on the grounds of asylum, humanitarian protection and Article 3 ECHR (torture and degrading treatment).

The SSHO obtained an order for reconsideration of the decision to remove the claimant to Algeria based on the Algerian nationality of her husband and children, and the fact she had lived previously in Algeria for nine months.

Regarding legal status, the claimant was a refugee from Syria, facing persecution for political opinion. Refugee status was determined in terms of the country of nationality, not any other country. Had the claimant had dual or multiple nationalities, she would only have been deemed a refugee had she been unable to avail herself of the protection of all the countries of which she was a national (R v A Special Adjudicator, ex p Abudine [1995] Imm AR 60; UNHCR Handbook at 106).

Once it was established that the claimant was a refugee, the appeal against removal to Algeria was allowable only if the removal would be in violation of Article 33 of the Refugee Convention (R v Secretary of State for the Home Department ex parte Adan and Aitsegeur [2000] UKHL 67; R (Yogathas) [2002] UKHL 36; TI v United Kingdom [2000] INLR 211). Article 33 prohibited the return of a refugee to countries where his/her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Article 33 applied to any refugee, whatever the legal status of his/her presence under national law.

In contrast, in the UK, Article 32 of the Refugee Convention applied only to refugees who had been granted leave to enter and to stay under paragraph 334 of the Immigration Rules. Article 32 stipulated that refugees should not be expelled, except on grounds of national security or public order. However, refugee status would not of itself entitle the claimant to a grant of asylum (Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643).
It was no part of the definition of ‘refugee’ that the subject be formally recognised as such by the grant of asylum (ZN (Afghanistan) and Ors v Entry Clearance Officer (Karachi) [2010] UKSC 21). Thus, the claimant was not entitled to the protection of Article 32 because she had not been granted the right of lawful presence in the UK.

In the event the appeal was allowed by virtue of Article 33, which prohibited both direct and indirect return or expulsion to countries where life or freedom would be threatened (R v Secretary of State for the Home Department ex parte Adan and Aitsegeur [2000] UKHL 67). Co-operation between Syria and Algeria, as described by the Honorary Legal Adviser to the Algerian Embassy, was such that Algeria would ‘hand over opponents of the Syrian regime’. The claimant’s family history, personal circumstances and previous dealings with the Syrian authorities made it reasonably likely she would fall under such agreements. Her removal to Algeria would therefore be in direct contravention of Article 33, and contrary to the UK’s obligations under the Refugee Convention. Removal to Algeria would also violate the claimant’s Article 3 ECHR rights.

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

New policy guidance following Pankina judgments

2010-12-10T15:34:00.001-08:00

The below comments are explanatory notes of the Maintenance policy document published on 22 November 2010 and which replaced the previous one issued on the UK Border Agency website on 23 July 2010. They are an attempt to clarify the policy document however, please refer to the policy guidance itself, which can be found if you click here, for further in depth coverage of a point.

Eligibility

The policy guidance covers all applicants and their dependants who:

Either
a. Applied for leave to remain under Tiers 1, 2, 4 and 5 of the Points-based and
 i. The application was made up to and on 22 July 2010
 ii. The application was refused solely on maintenance (funds) grounds
Or
b. Applied for entry clearance under Tiers 1,2, 4 and 5 of the Points-based system and
 i. The application was made up to and on 22 July 2010
 ii. The application was refused solely on maintenance (funds) grounds

The policy guidance does not apply to applications either for leave to remain or entry clearance on or after 23 July 2010. Such applications are considered under the current rules that were laid before parliament on 22 July and become law on 23 July 2010.

The judgment in the case of Pankina[1] on 23 June was related to the period where an applicant had to hold a required amount of funds. The judgment stated that the maintenance assessment must be undertaken in line with the Immigration Rules.

Notably the Immigration Rules at the time (prior to 23 July 2010) only specified the need for applicants to have appropriate funds (according to the Tier or sub tier the application was applied under) at the date of the application.

The five categories that you may find yourself in

 i. Current applications
 ii. If your application was refused without a right of appeal or your appeal was dismissed
 iii. If your application is currently going through the appeals process
 iv. If you received an in country refusal and left the UK
 v. If you submitted a Judicial Review application

The UK Border Agency has accepted that applications submitted and not yet decided as at 23 July 2010 and those refused on the maintenance requirement between the period 23 June and 22 July 2010 will require reconsideration following the judgment of Pankina.

However the UK Border Agency does not feel it is under any legal obligations to reconsider refused applications prior to 23 June 2010.
Nevertheless applications made and refused on maintenance grounds only will be treated as exceptionally and the UK Border Agency is willing to reconsider such applications in line with the new judgment if you, the applicant, request the UK Border Agency to do so.

In-Country

This section is relevant to applicants with current pending applications for leave to remain which were submitted prior to 23 July 2010. To qualify under this you must show that your application has all the attributes needed in line with the published guidance except the maintenance attribute. The UK Border Agency recognises that it is not possible for applicants to provide evidence of meeting the maintenance requirement on the day of the application, the attribute will be considered on the basis that the applicant can demonstrate that they hold the required level of funds (for their entire family) at the closing balance on one day during the one month period prior to the date of the application. If you are granted leave under this, your leave will confer rights and impose conditions as specified by the Immigration Rules.

If however you do not meet this requirement, your application will be refused. The UK Border Agency will refer you to the fact that your application was however considered under the Pankina judgement. Please note that if you fall under this category you do not need to take any action as your application will be considered automatically.

Refused applications

If you are an applicant who submitted an application for leave to remain prior to 23 July 2010 which has been refused and you are still in the UK seeking a remedy you must write to this below address:

PBS (AP & Others) Employment Routes Workflow Team
UK Border Agency
PO Box 3468
Sheffield S3 8WA

Additionally you must provide:

a) Your Home Office reference number
b) Your current residential address
c) Your current valid passport/travel documents
d) Biometrics card (if you have one)
e) An email address if possible

The UK Border Agency guidelines state that if you request that your previous refused application is reconsidered under the new policy it will be regarded as a switching application from your current/previously expired grant of leave to that of the leave applied for.

Where you request reconsideration you are required to demonstrate that you hold the appropriate level of funds (for you and your family) at the closing balance on any one day during the one month period prior to the date of the application that is being reconsidered. However, please be aware that you will not be able to produce new additional evidence to prove/support your claim for points. Your request for reconsideration will be solely reviewed using the documents/evidence provided with the original application. And if this review results in a grant of leave your leave will confer rights and impose conditions as specified by the Immigration Rules at the time the application was originally submitted.

Outstanding Appeals

If you are an applicant who has an outstanding appeal against the refusal of your application for leave to remain in the UK that was submitted before 23 July 2010 and you satisfy the below requirements, then the UKBA will withdraw their decision that gave a right of appeal.

This is applicable if you meet the eligibility criteria set above (and at paragraphs 1a (i - ii) of the UKBA Policy guidance) and you held the required level of maintenance for yourself and your family at the closing balance on any one day during the one month before the date of your application. Furthermore, when a decision is reviewed the UK Border Agency will only be using evidence you provided with your original application. Once this is satisfied, your case will be reconsidered and it will be decided whether you met the maintenance requirement at the time of your original application. If this review results in a grant of leave your leave will confer rights and impose conditions as specified by the Immigration Rules at the time the application was originally submitted.

Outstanding judicial review

If you are an applicant who has an outstanding judicial review against the refusal of your application for leave to remain in the UK that was submitted before 23 July 2010 and you satisfy the below requirements, then the UKBA will withdraw their decision that gave rise to the judicial review.

This is applicable if you can demonstrate that you are currently in the UK and you meet the eligibility criteria set above (and at paragraphs 1a (i - ii) of the UK BA Policy guidance) and you held the required level of maintenance for yourself and your family at the closing balance on any one day during the one month before the date of your application. Furthermore, when a decision is review the UK Border Agency will only be using evidence you provided with your original application. Once this is satisfied, your case will be reconsidered and it will be decided whether you met the maintenance requirement at the time of your original application. If this review results in a grant of leave your leave will confer rights and impose conditions as specified by the Immigration Rules at the time the application was originally submitted.

Applicants that left the UK

This applies to you if you are an applicant who left the UK after the refusal of your application for leave to remain which was submitted before 23 July 2010.

If you wish to seek a remedy to the refusal of your application, you must write to the following address:

PBS (AP & Others) Employment Routes Workflow Team
UK Border Agency
PO Box 3468
Sheffield S3 8WA.

You are required to provide:

a) Your Home Office Reference number
b) Your residential address
c) Details of your nearest British High Commission/Embassy
d) A certified copy of your current valid passport/travel document and biometrics card (if you have one)
e) Your email address (if possible)

You will be required to demonstrate that you held the required level of maintenance for yourself and your family at the closing balance on any one day during the one month before the date of your application. Furthermore, when a decision is review the UK Border Agency will only be using evidence you provided with your original application and thus you cannot provide additional documents in support of your claim for points. Please ensure that you do not include your passport with the reconsideration request (it will be forwarded to your country’s diplomatic post if you do include it)

If the UK Border Agency finds that you meet the requirements of the policy document they will contact you directly and advise you of the next steps i.e. how to forward your passport to them.

Lastly, if this review results in a grant of leave your leave will confer rights and impose conditions as specified by the Immigration Rules at the time the application was originally submitted.

Overseas

Current entry clearance applications

This applies to current entry clearance applications submitted during 23 June to 22 July 2010 (inclusive). If this is applicable to you, you must show that your applications satisfied all the attributes considered with the published guidance except the maintenance requirement. The UK Border Agency recognise that you will be unable to provide evidence of meeting the maintenance requirement on the day of the application and thus applicants will instead be required to demonstrate that they hold the appropriate amount of funds at the closing balance on any one day during the one month before the date of your application. Under such a category where grant is obtained it will confer rights and impose the conditions as specified by the Immigration Rules. You do not need to contact the post that considered your application as it will be assessed based on the information explained above.

Refused entry clearance applications and where Administrative review was refused

This applies to application for entry clearance submitted between 23 June to 22 July 2010 (inclusive) which was refused and the administrative review was dismissed. If this applies to you and you wish to seek a remedy to the refusal of your application, you must contact the entry clearance post that assessed and issued you the original decision. You must quote their reference number and your current address. You will be however required to demonstrate that you held the appropriate amount of funds at the closing balance on any one day during the one month before the date of your application. The review of refusals will only be limited to the maintenance requirement attribute. And thus you will be unable to provide additional evidence to support your claim for points. The review will only consider the evidence provided with the initial original application. Under such a category where grant is obtained it will confer rights and impose the conditions as specified by the Immigration Rules. If your application does not meet the above requirements, the UK Border Agency state that it will fall for refusal and in such a situation if the refusal is upheld after the additional review, a letter will be sent to you with confirmation of the decision.

General grounds for refusal- All applicants

If you as the applicant fall for refusal under the General grounds for refusal in paragraphs 320-322 of the Immigration Rules, your application will be refused even if it would otherwise qualify under the terms of the new policy. The UK Border Agency has given breaking UK immigration laws and acquiring a criminal conviction since the refusal of their application as examples. Consequently the UK Border Agency will be undertaking updated checks with appropriate government agencies on all reconsiderations.

Final notes:

Dependants- Please note that the immigration status of any dependants in the categories covered in the policy will be considered in line with that of the principal applicant.

Restrictions- The policy guidance states that any restrictions that were imposed on the applicant’s ability to undertake employment will be follow the restrictions that were in place at the time of application, rather than the date of decision.

Right of Appeal- If a subsequent decision is made to uphold the refusal of an application; applicants will not have a right of appeal against such decisions. The reason being that it does not constitute an immigration decision as specified by the Nationality Immigration and Asylum Act 2002.

Deadline- Finally please note that there is a closing date to the policy guidance. Applicants have until 22 June 2011 to take advantage of the proposed remedies.
http://www.ergensharif.co.uk/NewPolicyPankina.aspx

Refugee and safe third country

2010-12-10T15:22:00.001-08:00

RR (refugee-safe third country) Syria [2010] UKUT 422 (IAC) (13 November 2010)

The claimant was a national of Syria, married to a national of Algeria. In 2008 the Secretary of State for the Home Office (SSHO) rejected her asylum claim, with the intention to remove her to either Syria or Algeria. Her appeal was allowed on the grounds of asylum, humanitarian protection and Article 3 ECHR (torture and degrading treatment). The SSHO obtained an order for reconsideration of the decision to remove the claimant to Algeria based on the Algerian nationality of her husband and children, and the fact she had lived previously in Algeria for nine months. Read more http://www.ergensharif.co.uk/AsylumArtilces.aspx

Tier 1 General category to be reduced as of April 2011

2010-12-10T15:21:00.001-08:00

The Home Secretary Teresa May announced the Government plan today to substantially reduce the number of migrants allowed on a Tier 1 General visa. As of next year April, migrants will be able to enter in the investor and entrepreneur categories of Tier 1 (known as the highly skilled worker category). A small number of places have also been reserved for those of exceptional talent (such as scientists, artists etc). The number of migrants allowed under Tier 1 will be reduced to 1,000 (from 13,000).

The new limits on migrants from outside the EU have been the centre of discussions in week’s long Government consultations with businesses and Migration Advisor Committee. The aim is to reduce net migration to the levels in the 1990’s. Interim measures are in place to avoid a ‘surge’ of applications before the new rules set in as of April 2011.

23^rd November 2010

http://www.ergensharif.co.uk/Tier1Update.aspx

Case law update _ Work permit holder _ Indefinite leave to remain

2010-12-01T15:16:00.003-08:00

BD (work permit - “continuous period”) Nigeria [2010] UKUT 418 (IAC)

This case concerned a work permit holder who, after five years on his work permit, applied for settlement and was refused by the UK border agency. The basis of the refusal was that the appellant had not spent a continuous period of 5 lawful years in the UK. Usually, a person who has completed 5 years on a work permit in the UK and who continues to work, will be granted indefinite leave to remain (provided the immigration rules are met).

The appellant was a Nigerian national who had arrived in the UK at the age of 16, some thirteen years ago. He pursued studies in the UK from Foundation through to postgraduate levels. He then obtained employment with a large British company named Global Graduate Development Programme. His employers obtained a work permit for the appellant for 60 months (five years). The appellant worked continuously for his employers however, much of his employment was spent overseas in work permit approved employment. In fact, during his work permit period, he spent more than half the time outside the UK stating that this was a part of his duties. He continues to pay tax and national insurance and his earnings were paid into his bank account in the UK. He purchased a home in Wolverhampton and enrolled on his employer’s pension plan.

His application for settlement was refused on the basis of paragraph 134 (i) HC 395 which provides that there must be a continuous period of 5 years lawful residence in the UK in order to qualify. He was also considered on the basis of 10 years lawful residence in the UK in accordance with paragraph 276(b)(i)(a) of HC 395 however, he was excluded from this as well for having spent over 18 months outside the UK. The UK border agency also considered the appellant’s article 8 ECHR. They found that he has not established a private life in the UK as he travelled outside of it so often.

The Immigration Judge dismissed the appellants appeal under paragraph 134 of the Rules stating that although she accepted the appellant had spent time outside the UK in accordance with his employment, he had simply not spent five continuous lawful years in the UK. She dismissed his appeal on human rights grounds and 10 years lawful residence as well. The appellant subsequently applied for permission to appeal and the case came before the Upper Tribunal. The appellants representative argued that the words of paragraph 134 should not be taken literally otherwise even one day spent outside the UK could amount to breaking lawful continuous residence. The respondent on the other hand, was unable to provide any evidence in the Immigration Directorates’ Instructions of how discretion should be exercised to waive breaks in continuity.

The Tribunal held that this could be due to the fact that the work permit scheme had been replaced by Tier 2 of the points based system on 27th November 2008. Any previous IDI’s containing this information may have been deleted. The Tribunal agreed with the appellant’s representative stating that, taking a literal construction of paragraph 134 would make no sense. Discretion should clearly be exercised in some matters and it was the Tribunal’s view that, in this case, the appellant had very strong connections to the UK and clearly intended to make this his home. Whilst the Tribunal concluded that the first immigration judge was correct in dismissing the appeal under paragraph 276, they found that she had erred in law for taking a restrictive approach to paragraph 134. The Tribunal commented that whilst the appellant clearly had a strong article 8 claim, there was no need to consider it having found an error of law in respect of his claim under paragraph 134. In conclusion, the Upper Tribunal held that the appellant did meet the requirements under paragraph 134 and should be entitled to indefinite leave to remain on that basis.
http://www.ergensharif.co.uk/Tier1PSWcase.aspx

Recruitment of International migrants is restricted for UK law firms in light of Immigration changes

2010-12-01T15:15:00.001-08:00

The UK Border Agency announced recently that caps would be introduced for skilled migrant workers. The particularly shocking announcement that Tier 1 would effectively be removed (or considerably reduced) will have a knock on effect on law firms in the UK who sought to recruit international migrant workers. As a result of the new rules, law firms may resort to bringing migrant workers under Tier 2 of the Points Based Scheme. However, this may prove difficult in light of the new annual caps introduced on this category as well.

Despite all of this change and the imposition of new restrictions, the UKBA have not restricted intra-company transfers meaning that migrants earning over £40,000, are still allowed to transfer to the UK and should be granted 5 years leave to remain in this category

Family Permit_ membership of household

2010-12-01T13:58:00.000-08:00

RK (OFM - membership of household - dependency) India [2010] UKUT 421 (IAC)

This case concerned the appellant RK, who in 2008, applied for an EEA family permit to join her husband in the UK. Both the appellant and her husband are Indian nationals. The appellants mother and father in law’s were EEA nationals (Portuguese) who had arrived in the UK in 2003 and were exercising their EEA treaty rights here. In 2001, the appellant’s husband (the son) joined his parents in the UK aged 21 years. He joined as a dependent family member in accordance with the definition of ‘family member’ outlined in Article 2.2 of the Citizens Directive 2004/38/EC (herein after referred to as the Directive).

The appellant and the son subsequently married in 2007 in India. At the time of the marriage the appellant’s husband was residing with his parents in their home. He could not apply for the appellant to join him in the UK as he did not have indefinite leave to remain. Therefore, he could not have sponsored the appellant under the normal Immigration Rules. The appellant thereafter made an application for an EEA family permit stating that she was dependant on her in laws and her husband and that they were supporting her financially whilst she remained in India. She resided in the EEA family’s house whilst in India.

Her entry clearance application was consequently refused by the entry clearance officer who was not satisfied that she qualified as a family member in accordance with the Immigration (European Economic Area) Regulations 2006 (herein after referred to as the Regulations).

The Upper Tribunal considered the legislation before it namely Regulation 8.2 which requires that the relative of an EEA national:

Is residing in an EEA state
The EEA national resides in the same state
Is dependent upon the EEA national
Is a member of his household

The Tribunal stated clearly that, if the words of the Regulation were to be taken literally, then the appellant could clearly not benefit from the Regulation and her application would fail. However, the Tribunal went on to consider whether she was an ‘other family member’. They considered Article 3(2) which provides that member States will facilitate the entry of a person who is a dependant or member of the household of the European union citizen who has the primary right of residence. The Tribunal referred to the well known decision of SM (Metock: extended family members) Sri Lanka [2008] UKAIT 75. This case considered Article 3(2) and concluded that the specific part which states ‘country from which they had come’ meant the country in which the EEA national had been residing prior to exercising Treaty rights. Reference was made to the case of KG (Sri Lanka) and AK (Sri Lanka) 2008 which dealt with the construction of Article 3(2). The European Court of Justice also handed down its judgement in the case of Metock and other (2008).

Ultimately, the Upper Tribunal made the following decision having regard to all the relevant case law on the issue.
The Tribunal concluded that:
1)      The appellant could be a dependent on her in laws and her husband
2)      If the appellant’s husband were to be granted permanent settlement, the appellant could qualify under the relevant Immigration Rules
3)      A person can qualify as an other family member by reason of dependency on the EEA national or non national spouse of such a person without having lived in the EEA state
4)      The Tribunal raised doubts as to whether a dependant other family member needed to have lived in the same country as the Union national (but left this to be explored by the Court of Appeal)
Finally, the Tribunal suggested that the Secretary of State rather than the entry clearance officer deal with the appellant’s application and that, in light of the substantial delay, that the matter be dealt with expedition.
http://www.ergensharif.co.uk/RetainedRightOfResidenceCases.aspx

Case Law Update _ DP5/96 Policy

2010-11-29T15:24:00.001-08:00

Abbassi & Ors, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2894 (Admin) (12 November 2010)

Policy DP5/96 created a presumption against the removal of immigrants where their children had been continuously resident in the UK for 7 years. The policy had been withdrawn by the time Mr Rahman, Ms Adams and Mrs Abbassi and their families applied for indefinite leave to remain (ILR). They had, however, been in the UK for 7 years prior to the policy’s withdrawal. It was irrational for the secretary of state (SSHD) to withdraw Policy DP5/96 in a manner that would prevent the families benefitting from the policy, when they had already accumulated 7 years’ residence, prior to the policy being withdrawn.

In enforcement cases where DP5/96 was under consideration it would remain applicable. The general presumption that ILR would be granted for families with children of long residence, was unaffected (NF (Ghana) v Secretary of State[2008] EWHC 906 Admin)).

Further, on the approach of R (A) v SSHD [2008] EWHC Admin 2844 the policy extended beyond cases in which enforcement action was being considered. It would be irrational to distinguish between persons who had the necessary period of residence but who were not the subject of enforcement proceedings, and those with the necessary residence qualification, who were. Had the Rahman family, who completed their 7 years in the UK 3 months prior to the withdrawal of the policy, had their claim considered before the withdrawal of DP5/96 they would have qualified for ILR. They had an ‘accrued’ right, not merely the right not to be removed. Read the full article at http://www.ergensharif.co.uk/DP596Policy.aspx

European Court of Human Rights (ECHR)- rule 39 interim measures

2010-11-28T04:23:00.000-08:00

Under Rule 39 of the Rules of Court, the Court may impose interim measures on any State party to the Convention (The European Convention on Human Rights). Any contracting State or individual claiming to be in violation of the Convention may apply to the Court for redress. For instance, failed asylum seekers who have exhausted all their appeal rights may be able to apply to the Court particularly those facing removal/deportation. Anyone can apply to the Court and need not be legally qualified.

Interim measures are essentially urgent measures which need to be taken to prevent irreparable damage. The applicant must be at imminent risk in accordance with the decisions in the cases of Mamatkulov and Askarov v Turkey and Paladi v. Moldova.

Interim measures are only applied in limited cases for instances where there is a threat to the applicants life in breach of Article 2 or where the applicant is at risk of being tortured in breach of Article 3. In some cases, applications based on a violation of Article 8 can also be made. Requests under Rule 39 that fall outside the Court’s scope will not be admitted and will be immediately rejected.

Requests under Rule 39 should be made in good time and usually immediately after exhausting domestic rights. Requests should be made by email, facsimile or courier. All requests should be accompanied by the relevant supporting documentation.

Once the application has been declared admissible, it will be considered either by the Committee or Chamber. Where the application concerns a deportation or extradition matter, the Court can ask the State to suspend removal until consideration of the application. The initial stage is generally written although the Chamber may decide to hold a public hearing.

Since 22 October 2010, the Court has applied Rule 39 against member States including the UK, the Netherlands and Sweden. The Court agreed that the security situation in Central Iraq had deteriorated to such an extent that Rule 39 should apply to all applicants being faced with removal to Iraq. This decision was subject to a review after one month. The Court has now reviewed the current situation with the aid of member Governments and the UNCHR. The Court has now announced that they will consider Rule39 applications based on the individual merits of each application. Cases where Rule 39 had already been applied will be reassessed.

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

November 2010

EEA National rights-dependency

2010-11-26T01:57:00.000-08:00

The case of VN (EEA rights-dependency) Macedonia [2010] UKUT 380 (IAC) concerned the right of residence of family members and the dependency needed to be established in accordance with Directive 2004/38/EC.

Case summary:

The appellant was a citizen of Macedonia applying for a residence card as confirmation of his rights as an extended family member of an EEA national. The EEA National was his brother in law, an Italian national exercising his Treaty rights in the UK. The respondents (home office) refused his application on the basis that he had not shown that he was a dependant on his brother in law either since or before his arrival in the UK. The appellant appealed against the decision and the Immigration Judge, whilst ultimately dismissing the appeal, accepted the appellant was dependant on the EEA national since his arrival in the UK, the appellant having arrived in 2007 on a visitor’s visa.

In relation to the appellant’s situation prior to his arrival in the UK, the immigration judge did not accept that he had been dependant on his brother in law. The EEA brother in law had never lived with the appellant in Macedonia nor had he provided any direct financial support to him. The determination notified 17th February 2010 dismissed the appellant’s appeal. The appellant subsequently appealed and was granted permission to appeal against the decision. The Immigration Judge considered the three main authorities on extended family members namely; KG (Sri Lanka) and AK (Sri Lanka) v SSHD [2008] EWCA Civ 13, Bigia and Ors and SM (India) v Entry Clearance Officer (Mumbai) [2009 EWCA Civ 1426. He also considered the leading judgement of Metock when reaching a decision.

The Immigration Judge confirmed that the appellant did not have to live with his brother in law prior to arriving in the UK quoting Maurice Kay LJ in the case of Bigia and Ors where it was stated that: “the provisions in Regulations 8 and 12 of the 2006 Regulations, to the extent that they require an OFM to establish prior lawful residence in another Member State, do not accord with the Directive…”.

Therefore, the first Immigration Judge erroneously attached too much weight to the fact that the appellant had not resided with his EEA brother in law when considering whether he was dependant on him. However, the first Immigration Judge’s findings on whether the appellant was financially dependent on the EEA brother in law prior to arrival in the UK were correct as the appellant could not show that he had been dependant on him for monetary support. The question to be considered in the case therefore, was whether the first judge had materially erred in his decision. The Immigration Judge held that clear that “both the Directive and the 2006 Regulations require, in the case of OFMs, that dependency must be shown both in the country of origin and in the host Member State”.

Reference was made to reg 8(2)(c) which requires an applicant to show that the extended family member who has joined the EEA national in the United Kingdom “continues to be dependent upon him or to be a member of his household”. Therefore, it was held that the use of the word “continues” denotes that the dependency must have existed in the recent past and must still exist once in the UK.

Reference was also made to the case of Pedro [2009] EWCA Civ 1358 however, it was distinguished in that, it did not apply to other family members as defined by Article 3.2(a) of the Directive. The case held that in order to establish a right of residence, the OFM is required to show both dependence in the country from which they came from and continuing dependence in the UK.

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

Pankina judgement- Yet another amended policy guidance

2010-11-25T17:48:00.000-08:00

This announcement is of particular interest to all applicants under the points-based system who received a refusal of their application as a result of not meeting the maintenance requirements. In accordance with the judgement in the case of Pankina, the UK Border Agency introduced an amended policy guidance for such applicants. Essentially, this means that if you made an application within a certain time frame, you will be able to ask the UK Border Agency to review the decision to refuse your application.

The amended guidance can be found if you click here and should be read carefully. This will replace the guidance published on the UK Border Agency on 23 July 2010.

Notably, for applicants who had previously asked the Home Office to review their decision and were refused as a result of not having valid leave to remain in the UK at the time of requesting the review, the UK Border Agency will automatically review their decision. If however an applicant in this situation does not receive an updated decision by 31 January 2011 they must contact the address shown in the amended policy guidance. http://www.ergensharif.co.uk/NewPolicyPankina.aspx

Tier 1 General category to be reduced as of April 2011

2010-11-25T16:53:00.001-08:00

http://www.ergensharif.co.uk/Tier1Update.aspx

Case-Law update

2010-11-20T17:16:00.001-08:00

Fu, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2922 (Admin) (01 November 2010):
Case summary: The claimant sought to challenge the Secretary of State’s (SSHD) refusal to treat his application for an extension of leave to remain under the Tier 4 general student category as valid in accordance with paragraph 34 of the Immigration Rules.

The claimant initially arrived in the UK on 6th June 2000 with valid entry clearance. He studied in the UK extending his leave to remain annually. His last leave was valid until 31st March 2009. Two days prior to the expiry of his leave, the claimant submitted an extension application which was subsequently acknowledged by the SSHD on 9th June 2010. His application was then returned as invalid on the 18th of that month for the reason that the application had not been accompanied by the requisite photographs.

In light of the decision in the case of Pankina v SSHD [2010] EWCA Civ 719 it is understood that at the date upon which the immigration rules were laid before Parliament, there was no specified guidance as to the format in which photographs were to be produced. The only mandatory requirement was set on the face of the application form. This stated that, for the application to be valid, the applicant needed to provide two recent identical sized passport photographs with the applicant’s full name written on the back of each one.

Paragraph 34A and C of the Rules deals with the consequences of not complying with the mandatory requirements and states that where an application is not accompanied by the necessary photographs, the application will be invalid and will not be considered. However, it is common ground that the SSHD do occasionally apply their discretion to consider applications even where mandatory requirements are not necessarily complied with. In this case, the claimant argued that the SSHD should have exercised his discretion. The claimant’s legal representatives asserted that the photographs provided by the claimant were of the wrong size leading to the SSHD as treating the application as invalid. The Judge questioned this pointing out that the claimant, who had made several applications prior to this one, would have surely known the correct size for photographs. Ultimately, the Judge concluded that the claimant did not submit any photographs with his application at all. The Judge considered the case of Walker v SSHD [2010] EWHC 2473 Admin in which similarly, the claimant had not provided photographs with her leave to remain application. Beatson J in that case stated that:
“In this case the application form makes it clear that the photographs are mandatory. The covering letter states that they are provided. The resubmitted application gives no reason for an exercise of discretion. Insofar as Mr de Mello’s submissions rely on discretion, this is not a case like Forrester’s where the grounds for exercising discretion were before the defendant but the defendant did not exercise it”.

Similarly, in this case, the Judge held that no Convention Article had been engaged as they did in the case of Forrester v SSHD [2008] EWHC 2307 Admin. The SSHD had made a decision in accordance with their duties. Therefore, the Judge found that the decision made had been lawful and unchallengeable on judicial review grounds.

The Claimant had made a second application and provided with that, passport sized photographs. This application had also been refused by the SSHD on the basis that it did not meet the maintenance requirements under paragraph 245Z, Appendix C. The bank statements provided were dated more than one month prior to the submission of the application. The claimant’s application therefore failed on this point as well.
http://www.ergensharif.co.uk/Fu.aspx