I will follow, as they say. By @jorgencarling.
I’m away until 20 June. This sign, down at the local harbour, says it all.
I’m not a big fan of this meme but I know a lot of people do find them funny…
Personally, I’m also a lot more defeatist than the maker of this parody. To my mind, the more liberals and lawyers make a fuss the more this enhances Grayling’s career prospects. Whether or not every aspect of the changes becomes reality, even trying strengthens his strongman position within his party. Ironically, perhaps the best hope for a reprieve for the justice system is that he gets promoted as soon as possible.
Sir John Thomas has given a further warning to solicitors and barristers acting in urgent injunction applications. The case is R (on the application of Rehman) v Secretary of State for the Home Department  EWHC 1351 (Admin). No names are named this time, at least not so far:
In the present case the explanation given for everything being done at the last moment is one where those concerned, following counsel’s clear and cogent advice, did try to satisfy the obligations of disclosure. It is deeply regrettable that because of the way in which that firm was organised and the commitments of counsel that the application was made late. We take this to be one of those rare occasions where something has gone wrong and we propose to take no further action. The other two matters we will deal with as soon as convenient.
The warning in this case is that where an application is made during court office hours, it will always be dealt with by the daytime duty judge. A further application to the out of hours judge should not be made. In this case the application was made at 4.30pm on the date of departure of a charter flight. The Claimant, solicitors and counsel must simply wait to hear:
We have been told by counsel that he did not know that this court always deals with applications submitted within court hours through the judge who is dealing with them in court hours. We wish to correct that misapprehension, because if it is not within the knowledge of counsel as experienced as he, it must be corrected. If the solicitors have not heard, they must wait. The court cannot be expected, if an application is filed as late as it was in this case, to respond immediately, but the solicitors must wait for that response before applying to the out-of-hours judge.
I confess this was news to me as well.
Given the flood of applications that accompanies many charter flights, it seems quite possible that a daytime duty judge will simply not be able to deal with every application before take off. This apparently absolute bar on approaching the out of hours judge could conceivably lead to cases simply not being dealt with in time.
A few weeks ago David Cameron suggested that private landlords should be required to check the immigration status of tenants. Now, lo and behold, the measure is to be included in a new Immigration Bill announced in the Queen’s Speech. This such a Bad Idea it is difficult to know where to start to explain why. Perhaps the clearest way to put it is to say that it is Good News for we immigration lawyers, and therefore Very Bad News for everyone else.
Employers who employ immigrants who do not possess permission to work are already given criminal or civil penalties if they fail to check their employee’s immigration status and keep copies of the relevant documents. The UK Border Agency (or whatever it is called this week) issues lists of defaulting employers, presumably in order to name and shame them. Fines remain uncollected, though, as the Chief Inspector of the UK Border Agency revealed in a report last year. It is almost as if the fines aren’t the point…
The effects of this pernicious policy are difficult to ascertain and I am unaware of good quality research on the issue. Certainly none seems to have been commissioned by the Government. Evidence-based policy-making remains a New Labour pipe dream. There are reports of jobseekers from ethnic minorities finding that they have to change their name to get an interview and the policy must surely have made employers nervous of employing anyone who looks or sounds like they might be an immigrant. One black British man bravely made a stand against this snooping and was sacked for his troubles.
Like other immigration lawyers I have drafted several legal opinions on whether a particular person does or does not have permission to work. The UK Border Agency often misunderstand the effect of their own laws and the problem of ‘magically’* extending leave to enter or remain under section 3C of the Immigration Act 1971 is renowned. Immigration status really is not easy to ascertain, even for immigration lawyers, and there is even an odd mechanism whereby the UK Border Agency can retrospectively declare that you were here illegally even though you thought you were – and certainly looked like you were – legally present.
And now, with David Cameron seemingly playing the role of Gary Cooper in High Noon, private landlords will also be deputised as agents of border control. Will there also be civil penalties of up to £10,000? Most of the employers targeted by the UK Border Agency seem to have been very small ethnic minority businesses anyway, not the giants who can afford such fines. Will there be an equivalent provision allowing criminal charges to be brought against a landlord who knowingly rents to a person without lawful immigration status? Will defaulting landlords be subject to similar ‘naming and shaming’? Will landlords be subjected to UK Border Agency inspections and raids to ensure they are complying with their state imposed immigration status snooping, as already are small businesses? There is no detail yet to the proposed Bill so these questions cannot yet be answered.
There has been speculation about whether the change would require a register of private landlords. My own view is that it would not. There is no equivalent register of employers, for example, and the Baroness Scotland case showed that any level of employer-employee relationship can attract a fine. To be sure, if this were a rational and well thought out policy then a register would be a prerequisite. The policy is instead about intimidation, about pressuring migrants and ethnic minorities (“but you look foreign!”) by indirect means and providing justification for nasty UK Border Agency raids.
Essentially, this is an example of the Government attempting to introduce continental style internal immigration controls but without continental style universal identity cards. Instead, even the UK Border Agency has no idea about a person’s immigration status, as the pre-Christmas Capita fiasco revealed, when British citizens and other long term lawful residents suddenly received text messages telling them to leave the UK immediately, based of course on appalling UK Border Agency record keeping.
I’m sorry to say that for we immigration lawyers, the proposed change will be good for business. These days, everyone needs an immigration lawyer: not just immigrants with complex cases but almost any immigrant or their sponsor plus employers and universities. Soon landlords will be added to the list. It is as if the UK Border Agency secretly loves us. So, I end with an offer. If you are one of the 25% of Tory MPs (hat tip to Sue Lukes) who is a private landlord, you know where to find me if you need an immigration advice. Assuming you won’t just be turfing out any tenant who *might* be foreign.
*i.e. invisible except to immigration lawyers, and even then we might be wrong if an application is later declared invalid.
There are some detailed blog posts to come on some of the more important things that happened in the last fortnight, but for those who missed their beloved Free Movement updates here is a brief round up of developments I’ve spotted looking through my emails on my return from holiday. In no particular order…
The Home Office’s self inflicted wounds caused by bad legislative drafting and rushed legislation continued with a rare example of the Court of Appeal upholding a major legal ruling by the Upper Tribunal, that of Ahmadi on section 47. As previously discussed this potentially causes huge problems down the line for the Home Office as setting later lawful removal directions will often trigger a further right of appeal. The more normal pattern was resumed with a grant of permission to appeal to the Court of Appeal to the Claimants in the never ending Zimbabwe Country Guidance litigation.
The universal policy of granting separated children three years Discretionary Leave without regard to their welfare was held by the High Court to be unlawful.
A new Immigration Act was announced in the Queens Speech. Details are sketchy but look ominous. The Government briefing says the main elements of the Bill will be:
Access to services
- The Bill would enable tough action against businesses that use illegal labour, including more substantial fines.
- The Bill would regulate migrant access to the NHS, ensuring that temporary migrants make a contribution
- The Bill would require private landlords to check the immigration status of their tenants
- The Bill would prevent illegal immigrants from obtaining UK driving licences
Enforcement and appeals
- The Bill would ensure that only those cases that raise the most important immigration issues would have a right of appeal.
- The Bill would close a number of gaps in enforcement officer’s powers.
- The Bill would contain provisions to give the full force of legislation to the policy we have already adopted in the Immigration Rules.
- The courts would therefore be required to properly reflect the balance given to the public interest when ruling on immigration cases.
There’s a good Adam Wagner article in the New Statesman on the rebalancing of Article 8.
Corum Children’s Legal Centre issued a new report called Happy Birthday? Disputing the age of children in the immigration system. The report includes some simple, practical and implementable changes to the existing age assessment process, which is currently harming rather than protecting too many young people.
Judgment in Alarape and Tijani C-529/11 was finally given by the Court of Justice of the European Union on the issue of whether third country nationals who are family members of a Union citizen resident under Article 12 of Regulation No 1612/68, as amended by Directive 2004/38, build up an entitlement to permanent residence. Deciphering CJEU judgments is always a little trying but it doesn’t look like a helpful judgment at first glance.
The latest judgment in the Zambrano saga was also handed down by the Court of Justice, the case of Ymeraga C-87/12. It is a significant case in a legal sense but offers little by way of practical guidance on the meaning of “the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen”.
The Identity and Passport Service is to be renamed Her Majesty’s Passport Office, a title that emphasises the Government’s recent eagerness to assert prerogative powers over the issuing of passports. Perhaps because they seem to already have lost such prerogative powers over immigration control in the Supreme Court judgment in Alvi?
In the case of Khatoon v The Entry Clearance Officer Islamabad  EWHC 972 (Admin) paragraph 27 of the Immigration Rules was held by the High Court not to require the Secretary of State (or an Entry Clearance Officer) to treat a person as if they were a child when in fact they were not for human rights and child best interests purposes.
There were a couple of interesting immigration articles on Open Democracy, one by Dr Frank Arnold on the utterly unfounded allegation of self scarring in Tamil torture cases and another on observations of bail hearings.
Back from holidays but lots of catching up to do. Lots of immigration Stuff seems to have happened in the last two weeks!