Even aside from the issue of an unpublished law purporting to have any effect, the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711) is a dog’s breakfast. At first blush it appears to bring into effect the new unified removal power at section 1 of the Immigration Act 2014 and the new refugee and human rights only appeal regime. These would be very major changes to immigration law and practice. There are saving provisions, though, and then there is a further layer of “un-saving” provisions and yet a further layer of “re-saving” provisions. Topped by a final “other than” provision. I kid you not.
“But the plans were on display…”
“On display? I eventually had to go down to the cellar to find them.”
“That’s the display department.”
“With a flashlight.”
“Ah, well, the lights had probably gone.”
“So had the stairs.”
“But look, you found the notice, didn’t you?”
“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.”
One of the most complex commencement orders I’ve seen since… well, the last Immigration Act 2014 commencement order has allegedly come into force today, Monday 20 October 2014. At the time of writing it is not publicly available on the internet and it appears not to have been been published by The Stationary Office. Perhaps, like the bypass plans Arthur Dent belatedly learns of in The Hitchhiker’s Guide to the Galaxy when the bulldozers arrive unexpectedly at his house, they have been published by being printed on goat hide in a dark, stairless cellar in the bottom of a locked filing cabinet in a disused lavatory with a sign warning “Beware of the Leopard”.
I have seen a draft version (ILPA members can do likewise here) but who knows what the final version looks like. Once it is in the public domain I’ll do a proper write up.
In the meantime. constitutional lawyers and anyone affected by the purported new powers may want to take a look at ZL & Anor v Secretary of State for the Home Department and Lord Chancellor’s Department  EWCA Civ 25 on the issue of unpublished statutes. I’m grateful to my colleague Louise Hooper for bringing it to my attention.
With just over one month to go to the end of the solicitor CPD year and 24 CPD hours available to choose from, here are five reasons to sign up as a Free Movement Member and gain access to Free Movement’s full content and forums.
1. Support the blog
A great deal of work goes into Free Movement. If you find it useful, please consider signing up as a Member to support that work. Continue Reading…
For the first time, it will now be possible for the immigration tribunal to make awards of costs in statutory appeals. The power is conferred by the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604), specifically by rule 9. The new rules come into effect on 20 October 2014 and apply immediately to any outstanding or future immigration appeal.
One important consequence to note of the change to the procedure rules to the First-tier Tribunal Immigration and Asylum Chamber is that the Upper Tribunal also inherits the same power to award costs, presumably also as of 20 October 2014 given the commencement of the FTT rules. See rule 10(1)(b) of the Tribunal Procedure (upper Tribunal) Rules 2008 as amended.
I have already signposted the key raw materials but the detail of my analysis and research is available to logged in Free Movement Members only. The current text is unfinished but I hope still useful – I will improve it and then expand the material into a training course to help with CPD requirements in the next few days (and to cover costs cases in immigration judicial review) but wanted to get the material out there as soon as possible given that costs can be awarded from next Monday.
Sweeping changes to appeal rights, a new non independent “administrative review” procedure and further changes to deportation appeal rights are taking effect on 20 October 2014, at least in some cases. This post will be updated as and when more concrete information becomes available because all we have at the time of writing is an announcement on gov.uk that seems to be very specific about the changes being mainly to student cases. We have no statutory instrument with commencement provisions and no statement of changes to the Immigration Rules. Even though the changes take effect in 2 working days.
Statement of Changes HC 693 now published. Includes whole raft of changes. Introduces new admin review process, major changes to visitors, Tier 1 (including increasing minimum investment level to £2 million), Tier 2, Tier 4 and to the armed forces provisions. Finally allows invalid applications to be corrected, interestingly, and tweaks human rights rules to align better with Part 5A of the 2002 Act.
Welcome to the September 2014 edition of the Free Movement immigration update podcast. As normal, the material for the podcast is drawn from blog posts on Free Movement.
I start this month by going through some case law and country updates, move on to some legislative updates, discuss a couple of aspects of Surinder Singh, the EU case on British citizens making use of EU free movement rules, and then finish with a few different items on Home Office conduct and the Upper Tribunal.
If you would like to claim CPD points for reading the material and listening to this podcast, sign up here. Free Movement Members can now download the Free Movement ebooks for just £1 each in the Members Area (not including the HJT manual) and claim a 10% discount on HJT Training courses. The September update CPD course will be available in a few days’ time but there are already 24 CPD hours of courses available in the growing course library, including a course on the Immigration Act 2014 and new courses on Dublin 3 and unlawful detention.
In the case of Jeunesse v. The Netherlands (Application no. 12738/10) the European Court of Human Rights has considered a refusal to allow a woman to settle in the Netherlands with her husband and three children. The case is particularly interesting because it is a Grand Chamber decision and because the court recognises that much of its case law on Article 8 and immigration issues involves the rather different scenario of expulsion of an already settled person as opposed to their admission. The court ultimately finds that there was a breach of Article 8 of the European Convention on Human Rights.
Those affected by the harsh requirements of Appendix FM and the spouse minimum income rule will be particularly interested in the case.
I was asked by a Polish media outlet for comment in this Boris Johnson piece on renegotiation of EU free movement rules and the idea of quotas. Here’s what I said:
A quota for free movement of workers around Europe is impossible under the fundamental treaties of the European Union and would not be “free” movement at all. Renegotiation of one of the four fundamental freedoms that were the founding principles of the Union — people, goods, services and capital — is highly unlikely, and all the more so given that the UK’s governing party, the Conservatives, opted out of alliance with other centre right parties in Europe. Boris Johnson is right to say that the British electorate were misled to think that migration could be drastically reduced but he is guilty of a similar deception in suggesting that free movement of workers is negotiable.
As with the Conservatives’ “human rights plan” it is perhaps more accurate to this as a deliberate strategy for divorce.
In the case of YM (Uganda) v Secretary of State for the Home Department  EWCA Civ 1292 the Court of Appeal has examined the effect of the new Immigration Act 2014 human rights statutory considerations and the accompanying changes to the Immigration Rules. The court concludes that the new regime is irrelevant when considering whether an error of law was made but will be relevant where an appeal is being remade if an error of law is found.
The case concerned a thirty year old man born in Uganda who had entered the UK aged six. He had committed some violent offences between the ages of 15 and 19 and then later was convicted of attending a terrorist training camp. He was married to a British citizen and had three children. Continue Reading…
This just in from the marvellous BritCits:
Furthermore, you have provided a detailed covering letter explaining why you qualify for an EEA Family Permit under Regulation 9. You have quoted case law and the rules concerning how long someone can work in a member state and qualify under Regulation 9. It is clear from this letter that you and your British spouse have gone to extensive lengths to understand fully Regulation 9 of the EEA Regulations which suggests that your reason for living in the France is merely to qualify under the Surinder Singh provision and to circumvent the Settlement procedure.