Sanaz Saifolahi

Sanaz Saifolahi

Archives For Sanaz Saifolahi

Cats - somebody's favourite...

Cats – somebody’s favourite…

In the reported case of Green (Article 8 – new rules) [2013] UKUT 254 (IAC), the Upper Tribunal again reaffirmed that despite the Immigration Rules pertaining to incorporate Article 8, tribunals should continue to consider the substantive Article 8 claim even if the Immigration Rules cannot be met.

The official head note of Green states:

​(1) In Nagre v SSHD [2013] EWHC 720 (Admin) the Administrative Court approved the guidance of the Upper Tribunal in Izuazu [2013] UKUT 45 (IAC) in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC). Sales J added the proviso that it would not always be necessary to move on to the second stage and consider Article 8 proportionality apart from the provisions of the Immigration Rules. Where the rules and the learning on Article 8 were in harmony the answer given by the rules might render further inquiry unnecessary, unless there were exceptional circumstances. In that case the difference between the rules and the Strasbourg principles was marginal.

​(2) It follows from that case, and the decisions of the UT in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) that judges hearing appeals against decisions made after 9 July 2012 should consider how the Immigration Rules would apply, and make any relevant findings in that context before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the Rules or that the decision is an unlawful one and disproportionate to the legitimate aim. Pending any further guidance from the Court of Appeal, judges of both chambers should apply the principles set out in Izuazu.

​(3) Paragraph 398 of the Immigration Rules makes no reference to persons who commit crimes as juveniles. By contrast the decision of the Grand Chamber in Maslov v Austria [2008] ECHR 546 is clear that “when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult”.

​(4) As the Upper Tribunal has explained in Izuazu and Ogundimu, where the Immigration Rules do not reflect the established principles under human rights law it is the law as laid down in primary legislation that must be followed.

​(5) Adding to what the Tribunal said in Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 46 (IAC), where the course of conduct relied on in the deportation decision includes conduct that has not resulted in a criminal charge or conviction, the Tribunal will need to take that conduct into account despite the absence of sentencing remarks (see Bah (EO (Turkey) – liability to deport) [2012] UKUT 196 (IAC)).

The Panel in the First Tier Tribunal had allowed the Appellant’s appeal on “real” Article 8 grounds and had found that his deportation would be disproportionate. The SSHD was successful in obtaining permission to appeal.

The Upper Tribunal found that the Panel erred in not making some express findings in relation to paragraph 398 of the Immigration Rules but found that this error was not material. The Upper Tribunal upheld the decision of the Panel concluding that there was no material error of law in the determination.

The Upper Tribunal endorsed the approach of the Court in Izuazu [2013] UKUT 45 (IAC). Essentially, that there needs to be a two stage process to the determination of an appeal: an assessment of the Immigration Rules themselves and also an assessment of wider Article 8 rights. Although in Nagre, there is reference to an assessment of Article 8 only when “exceptional circumstances” exist, the Upper Tribunal found that “the facts and issues in Nagre were far removed from the issues that arise in this appeal and further detailed consideration of that decision is not necessary or appropriate.”

In addition, the Upper Tribunal made a number of important observations, which will be relevant to consider in the context of deportation appeals:

– Immigration Rule 398 makes no reference or allowance for individuals who commit crimes as juveniles. The importance of the case of Maslov was reiterated;

– to add to the case of Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 46 (IAC), where the facts of a case include conduct not resulting in criminal charges or a conviction, the Panel need to take this into account, despite the absence of sentencing remarks.

magnifying glassIn the case of MJ (Singh v Belgium : Tanveer Ahmed (unaffected) Afghanistan [2013] UKUT 253 (IAC) the Upper Tribunal found:

The conclusions of the European Court of Human Rights in Singh v Belgium (Application No. 33210/2011) neither justify nor require any departure from the guidance set out in Tanveer Ahmed [2002] Imm AR 318 (starred). The Tribunal in Tanveer Ahmed envisaged the existence of particular cases where it may be appropriate for enquiries to be made.  On its facts Singh can properly be regarded as such a particular case.  The documentation in that case was clearly of a nature where verification would be easy, and the documentation came from an unimpeachable source.

The First Tier Tribunal in MJ had rejected the Appellant’s account and had dismissed the appeal on asylum and human rights grounds.

One of the grounds argued before the Upper Tribunal was that the First Tier Tribunal had erred in law in the consideration of the supporting documents adduced by the Appellant.

It was argued on behalf of the Appellant, citing the case of Singh v Belgium, that if a document was verifiable and the SSHD had not verified it, then this would be a breach of Article 13 in conjunction with Article 3 of the European Convention on Human Rights.

In finding that the First Tier Tribunal had made no error of law, the Upper Tribunal found that the case of Singh was not inconsistent with Tanveer Ahmed, as the Tanveer Ahmed case also envisaged some circumstances when enquiries should be made by SSHD.   The Upper Tribunal observed that the documents in issue in the case of Singh, namely emails between the Applicant’s representatives and UNHCR and also attachments confirming that the Applicants were Recognised Refugees, could be easily verifiable.  The Upper Tribunal found:

Tanveer Ahmed does not entirely preclude the existence of an obligation on the Home Office to make enquiries.  It envisages, as can be seen, the existence of particular cases where it may be appropriate for enquiries to be made.  Clearly on its facts Singh can properly be regarded as such a particular case.  The documentation in that case was clearly of a nature where verification would be easy, and the documentation came from an unimpeachable source.  We do not think that Ms Laughton has entirely correctly characterised what was said in Singh in suggesting that in any case where evidence was verifiable there was an obligation on the decision maker to seek to verify.  What is said at paragraph 104 is rather in terms of a case where documents are at the heart of the request for protection where it would have been easy to check their authenticity as in that case with the UNHCR.  That is a very long way indeed from the difficulties that would have been involved in this case in attempted verification by the Home Office of documents emanating from Hizb-i-Islami.  We do not think that what is said in Singh v Belgium in any sense justifies or requires any departure from the guidance in Tanveer Ahmed, which is binding on us and which we consider to remain entirely sound.

In conclusion, practitioners will need to make an assessment of the documents in issue in a case and decide whether they are capable of being classified as “easy to verify”.

john_vine1

john_vine1The latest report by John Vine, the Independent Chief Inspector of Borders and Immigration, was published this week. It concerns applications to enter, remain and settle in the UK on the basis of marriage and civil partnerships and the summary of recommendations is that the UK Border Agency:

      1. Assesses all relevant aspects of the Immigration Rules in marriage cases and ensures that this is done in a consistent manner.
      2. Ensures that Human Rights are considered consistently in all relevant cases, including overseas applications.
      3. Ensures that reasons for its decisions under both the Immigration Rules and Human Rights are properly evidenced, recorded and communicated to applicants.
      4. Ensures that the best interests of the child are considered in all relevant cases and that these are expressly referred to in both notes and decisions to refuse applications.
      5. Urgently addresses the backlog of 14,000 cases where an application for reconsideration has been made, and makes an initial decision in the 2,100 temporary migration cases.
      6. Adopts a systematic approach to reviewing and analysing appeal outcomes in marriage cases in order to improve the quality of decisions.
      7. Introduces processes to minimise the need for repeat PNC checks.
      8. Develops a strategy on the use of interviews and home visits in marriage cases.

The following findings and observations can therefore be gleamed from the report:

  • Article 8 of the ECHR is not being considered in every case;
  • Some ECO’s did not think that they had to consider Article 8;
  • Even when ECO’s do consider Article 8, this is often not case specific;
  • The best interests of the child are not being considered in every case where there is a UK based child;
  • In many cases, UKBA are not retaining documents or notes to enable a review of the decision.  Caseworkers are instructed that they should retain only documents of particular relevance to the decision.

It doesn’t surprise me to hear about the ECO comments relating to the assessment of Article 8.  In fact, I struggle to recall even one case when an ECO has considered Article 8 in relation to the specific facts of the application.

Shoot footIn relation to UK based applications, I was recently representing in an asylum appeal and we were relying on Article 8. The judge asked the Home Office Presenting Officer to make submissions on proportionality. The HOPO said that her instructions were to argue that, despite the case of MF (Article 8  – new rules) Nigeria [2012] UKUT 00393 (IAC), the new immigration rules incorporated Article 8 fully and correctly and that in any event MF was under appeal. Therefore, it was argued, the ‘real’ Article 8 should not be considered by the judge at all, and the HOPO would say no more. This seems to be a standard submission Presenting Officers have been instructed to make.

points-mean-prizes

points-mean-prizesThe very recent reported case of Khatel and others (s85A; effect of continuing application) Nepal [2013] UKUT 44 (IAC) consolidates the on going issues in relation to Points Based System Tier 1 Post Study Work applications: the date of the award and whether or not the Tribunal can consider evidence submitted after the application was submitted but before a decision was made by the UK Border Agency by virtue of section 85A of the Nationality, Immigration and Asylum Act 2002 (as amended).

Following the case of AQ (Pakistan) v SSHD [2011] EWCA Civ 833, where the SSHD accepted that the relevant date for the assessment of evidence adduced in an application is the date of decision and not the date of application, many of us have been arguing that:

  1. The date of the award is the date when the applicant is notified in writing that the qualification has been awarded and not the date of the qualification itself;
  2. If an applicant provides evidence of (i) to the SSHD, either at the time of the application or prior to the date of decision, then this evidence should indeed be considered by the SSHD and  can be considered by the Tribunal on appeal;
  3. Further or alternatively, the evidential flexibility policy may apply, shifting the burden onto the SSHD to contact an applicant depending on what evidence was adduced/missing with /from the application.

Those who have been involved in cases of this kind will be familiar with the sheer frustration of the “interplay” between AQ and also the Upper Tribunal case of Ali (section 120-PBS) Pakistan [2012] UKUT 368 (IAC).

The official headnote of Khatel and others states:

(1)  An application for further leave to remain is to be treated as a continuing application, starting with the date when it was first submitted and ending on the date when it is decided: AQ (Pakistan) v SSHD [2011] EWCA Civ 833.

(2)  It follows that an appellant is not precluded by section 85(5) of the Nationality, Immigration and Asylum Act 2002 (as amended) from relying in an appeal upon evidence that was notified to the Secretary of State before the date of her decision.

(3)  Where, in an application for leave as a Post-Study Work Migrant, the obtaining of the academic award needed to gain the requisite points is notified to the Secretary of State after the date when the application was first submitted but before a decision is made on the application, the requirement of Table 10, that the qualification is obtained within 12 months of making the application, is satisfied because the application is a continuing one until a decision upon it has been made.”

Khatel and others also confirms that the date of the award is the date when an applicant is notified in writing that the qualification has been awarded (see paragraph 40). Furthermore, at paragraph 56 it is stated that:

In our judgment, there is no public policy in favour of a more restrictive approach.  After all the Secretary of State did evaluate the material subsequently provided in the application and did award points to each of these claimants on the basis that they “had been awarded” the qualification. It would be inconsistent to then dispute that the qualification that had been awarded had not been awarded within the period of 12 months of the application.

This case is good news. However, I can think of at least one case that I have been involved in where the FTT and UT have refused permission to appeal on this issue alone.  This may mean good grounds for a late, out of time application for judicial review or at the very least further representations.

Following on from the case of Ahmadi ( s. 47 decision: validity; Sapkota) [2012] UKUT 00147 (IAC)  the Upper Tribunal has (for now) resolved the perplexing issue of what to do when the Secretary of State combines a refusal to vary leave with a Section 47 removal.  This issue is thrashed out in the case of Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC).

The official head note in Adamally and Jaferi states:

When a removal decision purportedly under s 47 of the Immigration, Asylum and Nationality Act 2006 is made concurrently with a decision refusing further leave:

(i)             the s 47 decision is unlawful, but

(ii)           the decision refusing leave is a separate decision, that

(iii)          requires determination;

(iv)          s 85(1) of the Nationality, Immigration and Asylum Act 2002 brings the two decisions into one appeal, but

(v)           s 86 of that Act allows and requires the determination to reflect differences in outcome.

In short, the case reiterates the approach taken in the case of Ahmadi, but finds that because the notice of decision combined both a refusal to vary leave to remain and a Section 47 removal, it is not enough for a Judge to simply allow the appeal and ‘remit’ the case back to the Secretary of State to make a fresh/proper decision.

The Upper Tribunal says:

18   “For the foregoing reasons this Tribunal will follow Ahmadi, and will take the view that a s 47 decision is unlawful if combined with a decision to refuse further leave.  Thus, it appears that, in a case where the refusal to extend leave and the decision purportedly under s 47 are served together, the latter is unlawful but the former is not rendered unlawful by having to stand alone if the latter drops.  Both decisions are appealable, and the question is what is to happen if they are appealed.   “

And:

11.”We accordingly must proceed on the basis that a decision refusing further leave may stand on its own: it is not rendered unlawful by being unaccompanied by a removal decision.  Nor, of course, can there be any suggestion that if there is a removal decision, the decisions that have been made are somehow combined into one decision.  They remain separate decisions, made under separate statutory powers to make decisions, and carrying separate rights of appeal under s 82(2). “

What does this mean in practice? If there is a notice of decision which combines both the refusal to vary leave to remain and the Section 47 removal, the Section 47 removal decision is unlawful but the substantive matters (refusal to vary leave) can and should be determined because both decisions are appealable.

Postscript by Colin:

What happens next? I acted in a case this week in one of those pesky urgent removal injunction applications (obtained on the papers, thankfully) and noticed that the First-tier Tribunal Judge had earlier found the s.47 removal decision to be invalid, more or less pre-emptively in line with this new case of Adamally and Jaferi. What, then, was the legal basis on which the Home Office was detaining and seeking to remove my client in this urgent case? No new removal decision complying with the Notices Regulations had been served, and if one had been then it would normally generate an in-country right of appeal, albeit on probably the same facts as had already been rejected by an earlier judge. As a test we attempted to lodge an appeal with the tribunal but the tribunal’s view was that the bare removal directions did not constitute a valid removal decision as such. Unless the UK Border Agency gets its act together, which is inherently improbable, then subsequent attempts to remove clients whose s.47 removal decisions have been struck out will be unlawful.

The reported Upper Tribunal case of Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC) underscores some important points of practice and procedure in the First Tier Tribunal (FTT).

The case concerned an appeal before the FTT where it appears to have been agreed between the Appellant and Respondent representatives that credibility was not in issue. The issues to be determined in the appeal were sufficiency of protection and internal flight.

The issues were ‘narrowed’ at an oral CMRH. The Upper Tribunal refers to the Judge’s note. The Judge’s note was a bit vague. Neither representative was provided with written confirmation of this agreement of the facts at the CMRH or following the CMRH. The Upper Tribunal refers to the terms of the Senior President’s Practice Directions at paragraph 7, to assist with PD 7.8:

In addition to the directions referred to above, at the end of the CMR hearing the Tribunal will also give to the parties written confirmation of:-

(a)  any issues that have been agreed at the CMR hearing as being relevant to the determination of the appeal; and

(b)  any concessions made at the CMR hearing by a party.

At the full appeal, the appellant was called and was cross examined.  The FTT then dismissed the appeal, finding the appellant to be incredible.

The Upper Tribunal gives helpful guidance in the case.  The official head note says:

(1) Parties should assist the First-tier Tribunal at Case Management Review hearings (CMRs) to produce written confirmation of issues agreed and concessions made.

(2) If credibility is not in issue, it will often be unnecessary to submit a further statement by an appellant, or call her to give evidence. If this approach is taken, the judge should be told why.

(3) Any further statement should not be a rehash of what has already been said.  It should be directed to the remaining live issues.

(4) Any skeleton argument should contain not just general law.  It should be directed to the live issues.

(5) A judge who accepts and records an agreement is best placed to understand its scope, and should consider reserving the case to herself.

(6) Representatives are jointly responsible for drawing attention of the hearing judge to the agreement reached, and the nature of the decision still required.

(7) Judges look behind factual concessions only in exceptional circumstances.  If the scope of a concession is unclear, or if evidence develops in such a way that its extent and correctness need to be revisited, the judge must draw that to attention of representatives.  Adjournment may become necessary.

Unsurprisingly, the Upper Tribunal set the decision of the FTT aside but we can learn some lessons from this decision:

(a) Write everything down: especially concessions and agreed facts. Better yet, politely ask the FTT makes a careful note of any concessions/agreed facts if there is an oral CMRH and to be provided with a copy of this;

(b) If appropriate, ask the judge to reserve the case to him or herself;

(c) Draft a relevant skeleton argument on point;

(d) Raise any concession/agreed fact at the start of full hearing.  Ask the judge to note it. Adduce any written confirmation;

(e) If credibility is conceded and you don’t need further evidence don’t call the client and do tell the judge why;

(f) If the judge raises concerns about a concession/agreed fact, remind the judge of the Kalidas case!  Adjournment may be required;

(g) Remind Judge of concession/agreed facts again at start and end of submissions.

Imprisoned lawyer Nasrin Sotoudeh and banned film maker Jafar Panahi have been awarded the Sakharav Prize.

The Sakharav Prize, named after the Soviet scientist and dissident, is an annual prize, awarded by the European Parliament to individuals or organisations fighting for human rights and fundamental freedoms.

Nasrin Sotoudeh is currently serving a six year prison sentence in the notorious Evin prison for “acting against national security” and “propaganda against the regime”. Sotoudeh has represented imprisoned opposition activists. Banned film maker Jafar Panahi, well known for his documentary “This is not a film” has been under house arrest since 2010. Panahi’s film was smuggled out of Iran hidden in a cake.

The most recent report from the UN Rapporteur on Iran, Dr Ahmed Shaheed, makes for depressing reading. The report can be found here.

Iran has commented on the report: the response can be found here.

There are many of us working within the asylum, immigration and human rights field. It is worthwhile remembering how privileged we are to be able to carry out our work. Freely.

Bendy rule

Further to Sarah Pinder’s earlier post on this subject, I have been provided with a copy of the infamous “PBS PROCESS INSTRUCTION EVIDENTIAL FLEXIBILITY” document in response to a Freedom of Information Request. I am very grateful to Jane Heybroek [ed. valued occasional blog commenter!] for sharing it.

A copy of the document itself appears here and the FOI request here.

Many of us have argued about the existence of this policy in the context of Points Based System appeals for some time now.  We have been able to point to various sources to confirm that there is such a policy, but not to any document outlining the details of it and also the procedures to be adopted by case workers.

The precise procedure to be followed by case workers is outlined in a step by step approach within the document.  It is very clear and very detailed.   In short, evidential flexibility should be applied where:

  1. there is missing evidence;
  2. the application would not fall to be refused even if the missing evidence were to be provided;
  3. it is established that the evidence exists or there is sufficient reason to believe that the evidence exists;
  4. case workers MUST contact the applicant/rep/sponsor by telephone for the evidence – no more than two attempts to contact by telephone.  If there is a rep, they must be contacted.  Email contact should follow the telephone call.  If  telephone contact cannot be made, a letter should be sent;
  5. a time frame of 7 days is given for a response to the request: case to left open for 9 days;
  6. the evidential flexibility spreadsheet must be completed fully by case workers;
  7. after  9 working days the case should be  reassessed;
  8. if the case is refused, all attempts to contact the applicant should be referred to in the immigration history and any written contact/responses should be included in the appeal bundle;
  9. if evidence is received after the deadline but before the case being despatched then the evidence will need to be considered and the case reassessed.

In addition, attached to the document is:

Annex A : a non exhaustive list of types of evidence;

Annex B: a telephone script of what to say when the telephone call is made by case worker to applicant;

Annex C: questions and answers about the policy.  However, who exactly is asking some of these questions is not clear as the policy is not widely available to applicants;

Annex D contains a letter template for the request.

The FOI request letter also confirms that the policy is used in only 3%-5% of cases…

So there is it.  For some it may be too late.  For others, it may be appropriate to consider further action (eg, further representations, judicial review, out of time appeals).  At least there can now be no doubt about the fact that this is a policy, which was introduced on 10 August 2009.

Rules…

Following the Supreme Court decisions in the cases of Munir and Alvi, as reported on this blog yesterday, the UK Border Agency has acted suspiciouslyextremely quickly: see the Statement of Changes CM 8423 dated 19 July 2012, to come into force on 20 July 2012. All 296 pages of it.

See also Hansard HC 18 July 2012 Col WS49, for the Statement of Lord Henley, the Minister of State (Home Office):

We recognise the complexity of the system and we will therefore undertake a more substantial review of the rules and consider how they can be simplified. The Migration Advisory Committee is currently reviewing the Codes of Practice which this judgment requires are included in the rules and we expect a shorter, updated version to be available for inclusion in due course.

The immediate changes to the rules will mean that for applicants under the visitor, PBS and family route the position has not changed. They are required to meet the requirements of the rules and provide the specified evidence that they meet those requirements. The evidence will now be specified in the rules rather than in guidance.

This effectively mirrors the ‘Pankina times’: the ‘Codes of Practice’ applicable will now be placed within the rules themselves for the avoidance of doubt.  All doubt.  For now.

Visit visa refusals book cover

Click to buy the full ebook

In the reported case of Sawmynaden (Family visitors – considerations) [2012] UKUT 00161 (IAC) the Upper Tribunal outline a number of factors relevant to the assessment of “genuine visitor”.

In Sawmynaden, the appellant had travelled to the UK on a number of occasions since 2001 in order to visit her daughter.  The appellant had stayed for a period of 172 days on her last visit to the UK in 2010. This had been within the period she was legally permitted to stay, but nevertheless the ECO refused the application, partly on the grounds that the appellant had spent too much time visiting the UK.

First-tier Tribunal Judge TRP Hollingworth, in dismissing the appellant’s appeal, found that she was not an “ordinary visitor” (a what?).

In addition, the Immigration Judge found the motivation(s) of the appellant “…overall were probably to use such visits in the future as a preliminary to settlement here at some stage.”

Thankfully, in response to this remarkable premonition, the Upper Tribunal state:

14. Once again, this is not the issue that the Immigration Judge was required to determine. Whatever the future applications may be or, indeed, whether they will or will not succeed (all of which is speculative) it appears that he accepted that the appellant was a visitor albeit for a purpose that he found fell outside those permitted under the Rules.  We are satisfied that this reasoning is wrong in law.  The sole issue before the Judge was whether the appellant intended to visit which necessitated her also establishing that she would leave at the end of the period permitted for a single visit.

The Upper Tribunal allowed the appeal, finding that:

16. We are satisfied that there was no reason for the Judge to dismiss the appellant’s claims, short of making an adverse credibility finding. However, there was, and is, no material upon which such a finding could properly have been made. The death of her husband was a reasonable explanation for her wishing to spend more time with her children. It follows that the appeal must succeed.

Along with reversing the unsustainable decision of the First Tier Tribunal, the Upper Tribunal outlines the following factors relevant to an assessment of a genuine visitor at paragraph 17 of the case:

(i) There is no restriction on the number of visits a person may make to the UK, nor any requirement that a specified time must elapse between successive visits.

(ii) The periods of time spent in the United Kingdom and the country of residence will always be important.

(iii) Both the expressed purpose of the visit and what the appellant has done in the past and intends to do in the future is material, together with the length of time that has elapsed since previous visits.  In cases of this type, the appellant will be visiting a relative, often a parent visiting a son or daughter, often a son or daughter visiting a parent.  In the case of a parent visiting a son or daughter, the parent will often fully participate in helping in the house, providing child care.  In the case of a son or daughter visiting a parent, the adult child will often assist in care arrangements. None of these activities, for that reason alone, will take the individual outside the definition of a genuine visitor.

(iv) The links that the appellant retains with her country of residence will be a material consideration.  Inevitably, there is likely to be access to accommodation if only for the purpose of returning home in order to make the application that is intended to result in a return to the United Kingdom.  The presence of other family members will be a material consideration.

(v) The Tribunal is required to ascertain what is the reality of the arrangement entered into between the appellant and the host in the United Kingdom.  Is the reality that the appellant is resident in the United Kingdom and intends to be for the foreseeable future?

(vi) The issue may be approached by considering whether the reality is that the appellant is now no more than a visitor to her country of residence as the purpose of the return home is confined to using his or her presence there solely as the means of gaining re-admission to the United Kingdom.

(vii) This does not preclude the appellant from remaining in the country of residence for the least amount of time sufficient to maintain her status as a genuine visitor.

(viii) Family emergencies, whilst likely to result in a longer visit than the established pattern should not be regarded as taking up residence without adequate supporting evidence to that effect.  Thus, the pregnancy of a daughter or daughter-in-law or the aftermath of the birth might explain     a more-protracted stay (within the 6-month duration of a single permitted visit); so, too, a serious medical condition.

(ix) There may be comparisons with the person who owns homes in two different countries.  Is he resident in both or a visitor to one of them?

This guidance will hopefully be of use to all concerned between now and 2014, when family visit appeals are expected to get the chop.

[ed. Disappointing the tribunal didn’t here refer to the admittedly aged Immigration Appeal Tribunal case of Powell (3129) which I think from my now long-ago initial IAS training settled the issue of repeat long visits back in the mid 1970s, and did so without proposing the use of a can opener to examine the contents of people’s brains.]