Long residence again

By On 2 February 2009 · 10 Comments · In Cases, Tribunal overturned again

I posted on this relatively recently but another important judgment has just come out: ZH (Bangladesh) v SSHD [2009] EWCA Civ 8. The case is yet another good one from Lord Justice Sedley.

Lord Justice Sedley

Lord Justice Sedley

The Court of Appeal find that the whole purpose of the 14 year rule (by which illegal immigrants can eventually seek to regularise their status after 14 continuous years of residence in the UK) would be undermined if too strict an approach was followed in relation to the public policy exemptions. Basically, the Home Office retain a discretion to refuse an application if the applicant is unsavoury in some way.

In an earlier Tribunal case called MO (Ghana) [2007] UKAIT 00014 Dr Hugo Storey held, essentially, that use of a false identity to work illegally was enough to exclude someone from the benefits of the 14 year rule. He recorded that the barrister in that case had accepted that it was a ‘particularly serious crime’. In the latest case, ZH (Bangladesh), the Court of Appeal are at pains to point out that the barrister concerned had actually written to the court to say she in fact made no such concession in MO. I’ve been on the receiving end of what I considered disingenuous comment by Dr Storey in a published determination and will say no more about this.

However, I am really sick of immigration judges (and the Home Office, although I expect it of them, given the ‘win at all costs’ approach with which we are familiar in deportation cases) saying that almost any criminal offence is a ‘particularly serious’ one. Terrorism, serious sex offences, murder, drugs and arson are particularly serious. Everything else is not. It undermines the importance and gravity of genuinely serious offences and makes a mockery of both the concept of a scale of seriousness and the English language to keep saying that a string of road offences or even dishonesty offences such as theft or fraud are ‘particularly’ serious. They aren’t.

The Court of Appeal were somewhat critical of MO (Ghana) in another case, called Aissaoui v SSHD [2008] EWCA Civ 37, and say that it should be treated with caution. Sedley LJ was on the bench, so to speak, but judgment was given by Lord Justice Hooper.

In ZH (Bangladesh) the Court of Appeal is even more explicit and endorses more emphatically the argument that the 14 rule would be pointless if illegal workers were excluded from its benefits. Almost inevitably, any applicant under the rule must have worked illegally in the UK during the 14 years of their stay, after all.

So, yet another example of an unnecessarily negative and conservative tribunal decision being overturned. That hopefully lays that particular issue to rest. However, it is perhaps worth warning that the use of false papers, particularly false EEA identity documents, is considered pretty serious by the Home Office, prosecutions are common when this comes to light and this might well lead to problems in attempting a 14 year rule application.

 
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10 Responses to Long residence again

  1. A says:
    2 February 2009 at 1:36 pm

    I’m inclined to agree that working with false papers is fairly serious.Many folk shrug and point out that there’s been no tax avoidance issues,so it’s not really a big deal.However,when they’re working in a job requiring police checks,the check is being done on another person rather than the individual doing the job presumably.
    With the introduction of fines and criminal convictions for employing illegals,it would be hard to get through the next 14years without identity fraud though surely.Wonder if the cases will rise accordingly?

  2. A says:
    2 February 2009 at 4:18 pm

    Having said the above,it’s certainly not of the same gravity as sex/drug offences.And one would expect there to be a family involved too after 14yrs.Assuming they managed to get lucky in their eighties tron outfit!

  3. LondonHopo says:
    2 February 2009 at 4:46 pm

    FM,

    Shock horror Immigration Lawyers on the other side love Sedley !!

    The idea that working illegally constitutes a particularly serious crime and in turn engages the public proviso is ridiculous, and if a few of my colleagues have been arguing that, it would be embarrassing. Some of the best evidence appellants can use in 14 year cases are evidence of earnings over the material period and / or evidence from former employers.

    However the use of false docs is very serious, particularly at times of heightened security. It is well known that those caught using false docs or a doc they are not entitled to will invariably get recommended for deportation by the crown court (if the CPS sort out the paperwork in time).

    As for your “Win at all costs” mantra – this exists on both sides, If you are suggesting that people are being un-professional, why not use the complaints procedure rather than just rant about it over the internet ? (This is a particularly un-selfish suggestion on my part, as my colleagues and I do rather enjoy reading your rants).

    If the roll out of the points based compliance system is effective (emphasis on the if at this stage), more and more people will be caught working illegally early and served with papers having the effect of ‘stopping the clock’ for the purpose of the 14 year rule.

    Happy Snow Day !

    LondonHopo

    • freemovement says:
      24 March 2009 at 3:56 pm

      [sigh]

      I think we are re-treading some old ground here.

      Of course claimant’s representatives seek to win at all costs. We are duty bound to by our professional codes. Home Office reps are not similarly bound, and this should be made very clear to them during training and through a code of conduct. Their role is akin to that of a prosecutor, who is obliged, for example, not to put points to a witness for which there is no evidence and not to, for want of a better way of putting it, lay it on too thick.

      As to favourite Court of Appeal judges, who is the Home Office favourite? Or is it difficult to decide? I have to say that Lord Bingham goes down as one of legal history’s greats and he was very much a favourite. His judgments (and Sedley’s) have a dose of something special. Brilliantly reasoned, well written, both human and humane and sometime out of tune with the chorus of political orthodoxy. There is much to admire.

      I am glad that the blog provides entertainment for others than myself, but this has always been a somewhat personal project. I mainly use it to force myself to keep up to date.

  4. Mr T says:
    2 February 2009 at 6:24 pm

    “Win at all costs” mantra.

    Generalising, I kind of agree that is does exist on both sides.

    On the HO side, fighting cases costs them money,
    which is nearly limitless given it comes from visa fees.

    On the applicant side I guess it depends which category. Take A’s case for example; it takes serious amounts of money, which is not necessarily readily available; and had he lost he would have to choose leaving the fiance or leaving the UK. So the applicant can have so much more than the HO to lose.

    Given the strong fight the HO gives some family applications, it gives us the impression of hard heartidness, and anti-marriage or anti-family sentiments that are so prevelant in Government generally. This current Government in particular has pushed these boundaries so much more than say Thatcher’s did in the 1980′s. It must quite difficult to work for certain Government departments, and I know I personally couldn’t.

    Still, a warm mug of Horlicks this time of the year does more than help them sleep.

  5. LondonHopo says:
    2 February 2009 at 9:10 pm

    Indeed we do FM, over morning coffee on prep days, loudly read out across the office ‘oh look what *** ***** has said today !’

    I suppose I shouldn’t begrudge your right to rant on your own website, and the various other activities of the other side “Quis custodiet ipsos custodes” and all that.

    LondonHopo

  6. A says:
    10 February 2009 at 5:25 pm

    I see that south africa has lost it’s visa waiver arrangement with the uk,as london hopo predicted.
    Wonder if S.A will return the favour.Visas fo the world cup lads? Jacqui will be popular!

  7. DP (not 3/96 or 5/96 - long may their policies create red tape) says:
    10 February 2009 at 9:14 pm

    Be interesting to see how the posts deal with the mass influx of people looking for visa… :)

    P.S. (Haha!)

    http://www.order-order.com/2009/02/revised-complaint-over-jacqui-smith-to.html

  8. 10 YEAR RULE says:
    25 September 2009 at 4:12 pm

    Dear All / Freemovement,

    I entered UK on a working Holiday visa for 2year. But before my WHV expired, I left UK and applied for a student vvisa from my home country. Then came back to the UK as a student. I have been renewing my visas on time. I wonder if I can combine the 2year WHV and the 8.5years student to apply for ILR under the 10year rule?

    Please post helpful reply.

    • freemovement says:
      25 September 2009 at 5:27 pm

      Helpful reply: you need to get a lawyer. Please see various bits of website that say no legal advice here and section on how to find a lawyer.