Sarah Pinder

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Sarah is a specialist immigration barrister at Mansfield Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.

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Divided Families day of action

Divided Families day of actionFollowing the All Party Parliamentary Group on Migration’s report published on 10 June 2013 – covered on Free Movement earlier last month – the ‘new’ family migration rules have been debated twice in Parliament.  First, within a Westminster Hall debate on 19 June 2013 (Hansard & video footage) and more recently, in the House of Lords on 4 July 2013 (Hansard & video footage).  The latter was rather ominous, as we now know, that was the day before Mr Justice Blake’s judgment in MM & Ors v SSHD [2013] EWHC 1900 (Admin) handed down on Friday in relation to the income threshold of £18,600 and covered on Free Movement here.

In the first debate, numerous references were made to the fact that the minimum wage amounts to a gross annual income of £12,850 or thereabouts – well below the current threshold in the Rules of £18,600.  In addition, that the average wage in both the private and the public sectors is around £13,000 to £14,000.  The innumerable difficulties experienced under the new rules were described as “perverse outcomes” and comparing the new rules with the old, Sarah Teather, Liberal democrat MP for Brent Central, gets is spot on:

The first thing that is very apparent about the new rules is that they represent a distinct philosophical shift in approach from the old rules. The system used to be tilted in favour of family life, subject to certain basic conditions being met, such as the ability to support a spouse coming into the UK and the ability to meet a basic income threshold, which was pretty much tantamount to a basic income threshold that we would expect around income support levels. Now, the system is tilted entirely in the opposite direction, and against family life, unless someone can meet certain requirements to demonstrate that their spouse who is coming into the UK is desirable in some way and meets some extra criteria. So rather than having a system that was very much about keeping families together, the system now is about serving an overall objective on immigration policy, with family life being significantly relegated in importance. Of course, it is not only family life that is being relegated in importance, but relationships, children’s best interests, basic human compassion and a certain level of common sense.

(…)

Why are the rules being so rigidly and inflexibly enforced? It is because income probably has nothing to do with it. It is not really about trying to prevent a burden on the taxpayer; it is actually about the Government trying to demonstrate that we are reducing the number of foreigners coming into the UK. That is driving it. If anything else were driving it, it would be implemented in a far more common-sense way, there would be much more flexibility around it, and it would not have been set at a level to keep out as many people as possible.

If anything else were driving it, the Rules would simply have not been changed…

In respect of the new elderly dependent relative rules, these are described as a ban masquerading as a rule” and the powerful evidence from the British Medical Association was repeated in relation to the impact of these on consultants and senior doctors, many of whom are second-generation South Asian, and upon whom the NHS is heavily dependent.

The momentum was carried over to the House of Lords debate which took place last week.  Many many passionate contributions were made.  Including this particular outlook from Lord Taylor of Warwick :

“No blacks, no Irish, no dogs”; that was the sign in many windows in Britain in the late 1940s when my father was looking for accommodation. Growing up in Jamaica, he had thought of Britain as the mother land. After fighting for the British Army in the Second World War, he was shocked to be asked, when he came to Britain, when he would be going back home to the Caribbean. But after scoring a century for Warwickshire County Cricket Club he changed overnight from being described in the local Sports Argus as a “Jamaican immigrant” to “local Brummie hero”.

Let us fast forward to August of last year. Instead of racist signs in windows, millions of British TV viewers and thousands in the Olympic stadium cheered a Somali immigrant running to double Olympic gold. What was also significant was that the man from Mogadishu, Mo Farah, was wearing a British vest. Today, many of Britain’s high flyers in public life, business, entertainment and sport are from immigrant backgrounds. This is why the all-party parliamentary group report is so important. It is not an inquiry just about a minority group; it is about the Britain of the future.

To both debates, the Home Office’s representatives (Mark Harper, Immigration minister in Westminster Hall debate and Lord Taylor of Holbeach, Parliamentary Under-Secretary of State, Home Office) very much followed the same mantra:  the new rules are there to safeguard against abuse and to save the tax-payers from sponsoring other people’s family member coming to the UK.

As if from a parallel universe, we are told by Lord Taylor of Holbeach that:

The new family rules are intended to bring a sense of fairness back to our immigration system. The public are rightly concerned that those accessing public services and welfare benefits have contributed to their cost. The changes we have made are having the right impact and they are helping, I hope, to restore public confidence in the immigration system.

The rules themselves were not struck down as unlawful by Mr Justice Blake in MM & Others and instead a variety of less intrusive responses were identified as being available [Paragraph 147 of judgment].  These include:

  • Reducing the minimum income required of the sponsor alone to £13,500; or thereabouts;
  • Permitting any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure;
  • Permitting account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties;
  • Reducing to twelve months the period for which the pre estimate of financial viability is assessed.

It remains the case therefore of maintaining pressure upon the government so that the SSHD heeds the numerous observations made by Mr Justice Blake and makes the necessary adjustments to the Immigration Rules as a matter of urgency.

Tomorrow is the Divided Families Day of Action, which will take place in London.  It’s already been a year since the new rules were introduced and on the first anniversary, Migrants Rights Network, BritCits, JCWI, the Family Immigration Alliance and others have organised two main events:

  • Afternoon demonstration outside the Home Office with speakers and street performers – 4pm – Home Office, 2 Marsham Street, London SW1P 4DF
  • Evening meeting in Parliament chaired by Baroness Ruth Lister bringing together campaigners, supporters and parliamentarians to hear about the impacts of the new rules.  The meeting will welcome valuable supporters including Maggie Atkinson, the Children’s Commissioner for England, and will be a chance for families to share their stories and build the campaign for a change in the rules – 6pm – Parliament, Committee room 10, London SW1A 0AA

Hope to see you there.

When You Don’t Exist

Sarah Pinder — 

“There are now more than 45 million refugees and internally displaced people – the highest level in nearly 20 years.  Figures give only a glimpse of this enormous human tragedy. Every day, conflict tears apart the lives of thousands of families. They may be forced to leave loved ones behind or become separated in the chaos of war.”

UN Secretary-General Ban Ki-moon

It was World Refugee Day yesterday and it is currently Refugee Week in the UK.  The film above is from Amnesty International’s campaign “When You Don’t Exist” for the human rights of migrants, refugees and asylum-seekers in Europe and at its borders:

People move to Europe for different reasons. Some flee persecution or war. Others leave because of chronic poverty. They hope to find a safer, better future in Europe. But too often they find a different reality.

Europe is failing migrants, refugees and asylum-seekers. Negative attitudes to asylum-seekers and migrants are widespread. European countries are stepping up measures to control migration. This can cause serious human rights violations. People on the move have their rights violated, often out of the public eye. They are effectively made invisible.

OUR VISION

We want the human rights of migrants, refugees and asylum-seekers to be respected and effectively protected in Europe and along its borders.

OUR MISSION

We want to shine a light on the human rights violations suffered by migrants, refugees and asylum-seekers and help them to claim their rights. We want to hold to account those responsible for violating their rights.

We shall campaign to ensure that:

  • People are treated with dignity at the borders. Their rights must be respected during border control and return operations, including the right to claim asylum.
  • The right to liberty of migrants and asylum-seekers is respected. Immigration detention must only be as a measure of last resort and children must no longer be detained in Europe for the purpose of migration control.
  • People on the move no longer suffer abuse because of their migration status. Those who are abused or exploited must have effective access to justice.

The film was directed by Jon Drever of Grain Media.

United by Love - Divided by Theresa May, JCWI Campaign
United by Love - Divided by Theresa May, JCWI Campaign

United by Love – Divided by Theresa May, JCWI Campaign

Last week, Free Movement posted the fruits of a FoI request disclosing the statistics in relation to partner applications from pre- and post-July 2012.  These figures were then analysed and fair conclusions were drawn in relation to gender discrimination on the basis that female sponsors generally earn less than male ones and therefore would find it more difficult to meet the new income threshold for maintenance.

Last week, also saw the publication of the All-Party Parliamentary Group on Migration’s inquiry entitled “Report of the Inquiry into New Family Migration Rules” June 2013. This is a welcome report, which looked in particular at the new minimum income threshold of £18,600 (with the corresponding rises when children are included in the application) and the new rules concerning adult dependent relatives applying to come to the UK.

The Committee details that it received an impressive level of submissions and evidence from a wide range of participants:  MPs, NGOs, charities, legal organisations, lawyers, business, individuals affected etc…

Following their inquiry, the Committee reached the following 5 findings, again all very welcome:

  • British citizens and permanent residents in the UK, including persons in full-time employment, have been separated from their non-EEA partner and in some cases their children as a result of the new income threshold
  • British citizens and permanent residents have been prevented from returning to the UK with their non-EEA partner and any children as a result of the new income threshold
  • Children, including British children, have been indefinitely separated from a non EEA parent as a result of the new income threshold
  • The current permitted sources in order to meet the income requirement may not fully reflect the resources available to some families (e.g. applicant’s actual or potential income; cash savings only; self-employment income in the current year not being counted; third party support not being allowed etc…)
  • The adult dependent relative visa category appears in effect to have been closed.

The following is also of note:

  • Having heard from a number of UK sponsors in fulltime employment at or above the National Minimum Wage (currently £6.19 per hour, or £12,855 per annum), who reported that they were unable to meet the income requirement, the Committee considered wider evidence which suggests that 47% of the UK working population in 2012 would fail to meet the income level in order to sponsor a non-EEA partner.
  • Other submissions suggested that, because of variations in earnings between regions within the UK, the income requirement has had a particular impact on UK sponsors based outside London and the South East.
  • For the lovers of statistics, there are plenty more to delve into at pp.19-20, p.39 including on the ensuing delay in processing times since the new rules at p.41 of the report
  • Lower-earning sections of the UK working population including women (see blog post last week), young adults, elderly people, and some ethnic minority groups also reported difficulties.

Looking more closely at the issue affecting children, the Committee drew on previous findings by the UK Border Agency Chief Inspector, John Vine, who reported in January 2013 that he had found no evidence that the best interests of children had been referred to specifically in a sample of entry clearance spouse/partner refusals which involved children in the UK.

Specifically with regards to the new rules in relation to adult dependent relatives, the Committee records the frequently heard evidence of a ‘catch 22’ situation, within which UK sponsors, who are fortunate to have the means to support an elderly relative in the UK, are then considered able to do so overseas and therefore would fail to meet the rules.  The Committee also heard that elderly relatives are required to be all but “vegetating” before they can be sponsored to come to the UK.

Of particular note, the British Medical Association, which gave evidence before the Committee, suggested that the NHS has already lost some skilled doctors (both foreign and British it would seem) since July 2012 because they have had to return overseas in order to care for their elderly relative.  The BMA specifically warned of a deterrent effect in the long-term on such international talent as a result.

The Committee’s recommendations are as follows:

Minimum income requirement

1. Government should commission an independent review of the minimum income requirement, drawing on evidence of its impacts since July 2012. The review should aim to establish whether the current level of the income requirement and permitted sources in order to meet it represent an appropriate balance between the different interests in this area.

On the basis of evidence received in this inquiry, we would propose the following specific matters for consideration within the review:

2. The level of the income requirement should be reviewed with a view to minimising any particular impacts on UK sponsors as a result of their region, gender, age or ethnicity.

3. The family migration rules should ensure that children are supported to live with their parents in the UK where their best interests require this.  Decision-makers should ensure that duties to consider the best interests of children are fully discharged when deciding non-EEA partner applications.  Consideration should be given to enabling decision-makers to grant entry clearance where the best interests of children require it.

4. The list of permitted sources of funds should be reviewed to ensure that they fully reflect the resources available to families. In particular:

  • Prospective non-EEA partner earnings should be considered for inclusion in the rules, for example in circumstances where the non-EEA partner has a firm offer of employment or self-employment in the UK, or where there is reasonable expectation that the nonEEA partner will gain employment or self-employment after entering the UK;
  • The rules relating to income from cash savings and from self-employment should be reviewed;
  • Third party support, particularly that provided by a close family member such as a parent, should be considered for inclusion in the rules.

5. The current evidential requirements in Appendix FM-SE should be reviewed, in order to ensure that they are clear and easy for applicants to understand.

6. The Home Office should ensure that full and regular data relating to applications made under the non-EEA partner and adult dependent relatives route is made available, in order to support scrutiny of the impacts of policy changes in this area. This should include adequate disaggregation of family migration data within the International Passenger Survey and Home Office statistics to fully reflect different migrant inflows. The Home Office should make public, where possible, the reasons for refusal of applications by non-EEA partners and adult dependents. The current lack of reliable data on family migrants after their arrival here makes it difficult to study the short and long-term outcomes of family migration to the UK and this should be addressed.

Adult dependents

7. Government should review the rules affecting adult dependents. Consideration should be given to amending the rules to ensure that:

  • Where the UK sponsor can demonstrate their ability to provide full financial support to an adult dependent relative in the UK, or where the relative themselves has the means to financially support themselves, they are able to do so;
  • An adult dependent relative can be eligible for sponsorship where they are in need of support from the UK sponsor, but before they become fully physically dependent.

So all useful information to bolster any pending Article 8 and JR challenges but in the meantime, it remains a frustrating and drawn-out struggle for too many.  All the more frustrating when many of the recommendations above simply amount to reverting to the previous requirements and practices under Part 8 of the Immigration Rules.  This is obviously no criticism of the Committee’s report but rather of the Government’s meddling with the Rules in the first place, which under Part 8 arguably provided a logical and working system for many many years prior to July 2012.

Both the Children’s Commissioner and ILPA have supported the Committee’s findings and recommendations and both have issued their own respective briefings in preparation for a debate in Parliament “Effects of the new family migration rules”, which took place yesterday (Children’s Commissioner’s briefing & ILPA’s).

ILPA reiterates amongst other submissions that the new income threshold gives rise to discrimination on the basis of gender due to average earnings of women in the UK being lower than those of men, more women than men working part-time and maternity leave and pay affecting women’s earnings.  As we have seen, this is then exacerbated in entry clearance cases where only the earnings of the sponsor are taken into account.

In addition, there is also discrimination on the grounds of race since average earnings are lower for persons of certain ethnicities and ILPA cites the following two sources:  European Commission, Gender Pay Gap statistics, United Kingdom and Migration Advisory Committee, 2011, Review of the minimum income requirement for sponsorship under the family migration route.

ILPA repeated its call for the Government to change the rules to:

• Allow those who can demonstrate their ability to provide full financial support to an adult dependent relative in the UK, or where the relative themselves has the means to financially support themselves, to bring their elderly relatives to the UK;

• Make clear that an adult dependent relative need not be physically helpless to meet the requirements of the rules;

• Take into account the prospective earnings of both partners including in circumstances where the non-EEA partner has a firm offer of employment or self-employment in the UK;

• Treat income from self-employment in the same way as income from employment;

• Permit third party support;

• Not require shares etc. to be converted into cash before taking them into account;

• Strip out prescriptive evidential requirements that create a rigid system and focus on what needs to be proven, rather than restricting the means by which proof can be offered. Statement of Changes HC 1039, which gave a small amount of discretion as to evidence and allowed further evidence to be requested, showed that nothing prevents a pragmatic purposive approach to evidence.

More to follow on the debate in Parliament yesterday…

Operation Nexus

Sarah Pinder — 

Operation NexusThe Met Police website tells us that:

Operation Nexus, designed and delivered by the MPS and UKBA, aims to maximise intelligence, information and world wide links to improve how we deal with and respond to foreign nationals breaking the law.

AC Rowley, in charge of Specialist Crime and Operations at the Met also states that:

Nexus is dealing with those people who we catch offending, but also takes a long term preventative approach by stopping people from returning or being able to arrive in the first place.

Last week Friday, Operation Nexus featured on the front page of The Times newspaper (for those with the subscription) as the focus of the Operation seemed to be gathering momentum in assisting with the deportation of not only those who have committed crimes but also worryingly, those who may only have been suspected of having done so.  This follows in particular the case of Mr Farquharson, who was apparently deported last month.  Readers of the blog may recall that his case was recently the subject of a reported determination from the Upper Tribunal: Farquharson (removal – proof of conduct) Jamaica [2013] UKUT 146 (IAC).

The issues considered by Mr Justice Blake and Sir Jeffrey James were that the appellant,  Mr Farquharson, had been disadvantaged at the FTT hearing, being a litigant in person and having been served with a lot of police material by the Home Office Presenting Officer on the day of the hearing without being given sufficient opportunity to address this in response.  Furthermore, the Upper Tribunal considered the issue of conduct and when and how this can be established in the context of a deportation appeal.

When considering the various factors under Para 395C of the Immigration Rules in relation to the appellant’s case, the Upper Tribunal stated on Mr Farquharson’s ‘Personal history, including character, conduct and employment record':

We have extensively reviewed his personal conduct above. We are satisfied to the appropriate civil balance that he has used violence and inflicted injury on women when his wishes are frustrated. We are further satisfied that he is forceful in making his sexual demands and his conduct leaves many partners very frightened and anxious to get away from him. We note the persistence of his conduct despite a number of arrests, charges and criminal trials. We note the opinions expressed by his neighbours in the 2011 incident. This occurred at a time when his application for discretionary leave was outstanding. Taken together, we are entirely satisfied that his past treatment of women  strongly supports an assessment that he presents a real risk of future harm to women, in particular women are who are vulnerable  by reason of addiction, mental capacity or  personal circumstances.

The matter was then listed for a ‘re-hearing’ and presumably, Mr Farquharson’s appeal was dismissed resulting in his deportation.

Renaissance Chambers is proud to see that Colin Yeo was called upon by The Times’ Crime Editor, Sean O’Neill, and quoted in Friday’s article drawing the readers’ attention to Operation Nexus’ practice, in the context of those merely suspected of committing a crime.  Colin stated as follows:

There is a lower standard of proof in the immigration tribunal and it is easier for the authorities to dispose of a person via that system than using the criminal justice system.  The concern is that this offloads the problem to another country.  There is also a worry that the immigration tribunal does not provide the same safeguards for a defendant that are built into the criminal justice system.  People can be deported on quite limited evidence.

The Times article highlights that Mr Farquharson was tried for one incident in February 2007 but the jury failed to reach a verdict.  In May 2007, he was tried for another alleged rape but again the jury could not reach a verdict and a re-trial in October of the same year resulted in another hung jury.  This is in contrast with the findings set out above by the Upper Tribunal, which of course would have been on the lower civil standard of proof.

In addition, the social and cultural ramifications of these practices are incredibly worrying and are highlighted by Rita Chadha, Chief Executive of the Refugee and Migrant Forum of East London, cited in the Guardian article on Operation Nexus published on 6 June 2013:

When Nexus first began we were reassured it was only about people who had criminal convictions in this country or in their home countries and who were very high risk.

What we are seeing now is that they are targeting all crimes and low level criminality. This is going to stop victims coming forward in the black and ethnic minority communities because they fear they will be targeted by Nexus. If you have a woman suffering domestic violence in a household of overstayers she is not going to come forward.

This is totally going to mess up local policing and any trust communities have in the police.

For further background information and analysis on Operation Nexus, see here and here.

Stairs

StairsLast month saw the advent of a very useful decision from the High Court concerning the lack of provision in the Immigration Rules to allow migrants in the Points-Based System to switch whilst in-country into a PBS dependent category: Zhang, R (on the application of) v SSHD [2013] EWHC 891 (Admin).  The category analysed within this judgment is that relating to a Tier 2 migrant seeking to switch to become a Tier 1 (PSW) dependant – Paragraph 319C (h)(i).  Mr Justice Holman’s judgment has wider application and so it is certainly not a case to let slip under the radar.

Rather remarkably, the claimant in this case brought the Judicial Review claim once she had returned from China where she had sought the required entry clearance.  She had followed legal advice that she could either leave the UK to seek entry clearance and comply with the Rules or overstay and rely on an Article 8 type claim.  The claimant had been working in the UK as a Tier 2 Migrant but unfortunately was made redundant.  She had found other employment but her employer was not able to issue her with a sponsorship certificate and so she could not seek to change the conditions of her Tier 2 leave.  Meanwhile, the claimant’s husband was also here in the UK and was in the process of applying for leave to remain as a Tier 1 Post-Study Worker and so switching to become his dependent became an option.  Apart from the fact that the Rules say ‘no’.

Not wishing to overstay and compromise her flawless immigration history, the claimant opted to return to China and after much delay, she obtained the entry clearance as her husband’s dependant and returned to the UK.   Regrettably, because of the delays, her job offer was withdrawn but she followed this through by way of a Judicial Review challenge to the legality of the Immigration Rules requiring her to return for entry clearance.

This judgement usefully reviews the relevant principles established by the House of Lords’ Chikwamba judgment arising out of the policy of the SSHD to require those who did not meet the requirements of the Immigration Rules to return abroad and seek the appropriate entry clearance.  Mr Justice Holman finds that:

37.  (…) (T)he wording of requirement (h)(i) would appear difficult to reconcile with the approach of the House of Lords in Chikwamba to the issue of “out of country” applications.  The wording of requirement (h)(i) admits of no exceptions to the imperative that those wishing to change their visa from “General” to “Partner” status must, without exception, leave the UK so to do.

However, Mr Justice Holman did fall short of declaring the actual provisions of the Immigration Rules incompatible with Article 8.  At Paragraph 77, he concludes:

77.  I, therefore, come to the clear view that save in particular cases (such as those involving a poor immigration record – as in Ekinci v Secretary of State for the Home Department [2003] EWCA Civ 765 or where the engagement of Article 8 is very tenuous – as in R(Mdlovu) v Secretary of State for the Home Department [2008] EWHC 2089) it will be rare indeed that the immigration priorities of the state are such as to give rise to a proportionate answer to Article 8 rights to family life where requirement (h)(i) is engaged.

78.  It must follow from this that the application of the blanket requirement to leave the country imposed by paragraph 319C(h)(i) of the immigration rules is unsustainable. It is simply not consistent with the ratio of the decision in Chikwamba that this paragraph, as presently worded, should continue to form part of the rules. I am not prepared, however, to make a formal declaration on the matter. It is not the function of the court to redraft the rules but I would predict that the Secretary of State would in future face difficulties in enforcing requirement (h)(i) as presently worded in all but a small number of cases in which Article 8 is engaged.

While the rules are not struck down as such, the effect of the judgment is similar to FH (Iran) on post flight refugee spouses and Quila on the spouse visa age: most affected cases should succeed on human rights grounds. Both those cases led to amendment of the rules, although it is somewhat doubtful that will occur in this case.

In terms of wider application, there are countless other categories where switching from one type of visa to another is not permitted by the rules from within the UK and a trip abroad is needed. It has been consistent Government policy since David Blunkett’s tenure as Home Secretary to require a change of visa from abroad rather than within the UK and the requirement has gradually spread widely throughout the rules. Where there is a family life engaged (this will not always be the case of course) this judgment is strong authority that departure from the UK is disproportionate. This option will not always be appropriate for the individual applicant, though. Firstly, although it seems that the Home Office is not seeking to appeal the judgment, past form suggests that it is highly unlikely that the effect of the judgment will be accepted in good grace. It is highly likely that Home Office officials will continue to refuse in-country switching applications, necessitating lengthy and expensive appeals or judicial reviews. Secondly, if an application, appeal or judicial review does succeed on human rights grounds in line with this judgment the Home Office policy is to grant three years of Discretionary Leave, which for various reasons might not be suitable for the particular applicant. A trip abroad for a straightforward change of visa might therefore continue to be appropriate in some cases.

Finally, note that in Nagre a very senior Home Office official bizarrely complained to the court that appeals being allowed on human rights grounds led to more generous grants of leave than would otherwise be the case because of the Home Office policy on what leave to grant. As if this was the fault of the judges rather than the Home Office!

[Some additional reporting from FM]
Panel photo

Panel photoAs most of you know, Renaissance Chambers has developed expertise in conducting Tamil asylum claims.  The issues involved in these cases have been previously covered on Free Movement here and these include in particular Chambers’ and the NGOs’ efforts to combat recent charter flights set by the UK Border Agency to remove en masse failed Tamil asylum seekers to Colombo, Sri Lanka.

Last week, Chambers had the pleasure of co-hosting with Tamils Against Genocide (TAG) and the LSE a screening of the forthcoming documentary ‘No Fire Zone – The Killing Fields of Sri Lanka’.  This follows 2 previous and shorter documentaries broadcast by Channel 4 in 2011 and 2012 and all three films have been directed by Callum McCrae.  The screening was preceded by a panel discussion consisting of TAG Director Janani Jananayagam, one of our colleagues Shivani Jegarajah and the film’s Director Callum McCrae, chaired by Dr Devika Hovell, Lecturer in Public International Law at the LSE.

The film which lasts approximately 90 min documents the final harrowing months of the conflict, which spanned 26 years in Sri Lanka.  It is a meticulous and chilling exposé of war crimes and crimes against humanity through personal stories of displaced persons and victims as well as video footage.

Callum McCrae reiterated in the panel discussion, as is also done in the film, that all of the footage has been painstakingly verified by independent forensic experts.  This body of evidence is in complete contrast with the Sri Lankan government’s bare denials and statements that it is all lies.  The No Fire Zone team offers not just a definitive film of record, but also a film to jolt the international community and audience to call for action.  Without truth, there can be no justice in Sri Lanka and without justice there can be no peace.

Janani Jananayagam of TAG very helpfully set out TAG’s approach as an advocacy and lobbying organisation to get these crimes recognised and the perpetrators prosecuted.  In the Q & A session that followed, a discussion developed concerning the rationale behind pursuing an International Criminal Court (ICC) prosecution in light of Sri Lanka not being a signatory.  In the knowledge that countries like Russia and China would almost certainly veto any move in the Security Council of the United Nations to make a referral to the ICC (the only other way to ‘engage’ the ICC if a country is not a signatory), Janani was asked whether it is worth TAG pursuing this.  Janani was firm in her and TAG’s belief that any such international exposure can go a long way towards TAG’s objectives.  There is certainly something to be said about letting Russia and China take the blame for vetoing rather than sacrificing the victims’ rights to seek truth and justice at the highest level.

Shivani Jegarajah shared with the audience her experience of being one of the leading counsels in the pending Upper Tribunal Country Guidance case on the risk on return for Tamils and in particular the impressive expert evidence that was called.  Shivani has acquired her expertise in the area over a period of 20 years or so and it is expected that the Upper Tribunal will promulgate its determination in the next 2 weeks.

Over the next year or so, the No Fire Zone Team will be organising a world-wide tour of screenings, for which funding is required.  The film was shown in the Palais des Nations in Geneva on 28.02.2013 and with Sri Lanka due to host the Commonwealth’s biennial heads of government meeting later this year in November, the pressure is on.  If you would like to support this cause by making a donation, please do so here and if you would like to spread the word, click here for suggestions on how to do so.No Fire Zone

The photographer, Martin Parr's, take on quintessential English

The photographer, Martin Parr’s, take on quintessential English

As we saw yesterday, the topic of English language is de rigueur at the moment. Last week, the UKBA also announced in its April 2013 Statement of Intent that the government is planning changes to the Immigration Rules in relation to the English language requirement when applying for settlement and naturalisation. The planned changes will not take place until 28 October 2013 so, although it seems rare these days, there is some time to take all of this in.

The forthcoming changes will be that persons will now be required to pass both the Life in the UK Test and to pass or already hold a qualification at B1 CEFR (intermediate or its equivalent) or a higher level in the English language in speaking and listening. We’re told that that:

Understanding and being able to use English at a level which facilities interaction with the wider community is key to successful integration. It is also important that those wishing to live permanently in the UK have a basic understanding of the responsibilities which come with settlement, the principles of British democracy and the history and culture from which they flow.

The statement of intent is clear that these proposals do not affect the current English language requirements for those applying for entry clearance or further leave to remain.

For those applying for settlement, the following categories will continue to be exempt and the UKBA will continue to have discretion to recognise that there are some circumstances where exceptions should also be made:

  • Under 18s, over 65s and those who have a physical or mental condition, which severely restricts their ability to learn English and/or communicate and/or take the Life in the UK test
  • Adult dependent relatives and the former route for retired persons of independent means applying for settlement (as the majority of applicants will be over 65 or have a disability)
  • Those applying for settlement as spouses/partners who have been victims of domestic violence or whose spouse/partner has died
  • Refugees and those with Humanitarian Protection
  • Those who hold Discretionary Leave to Remain (although this is being kept under review)

The following categories of applicants will also be able to apply for further leave to remain as opposed to settlement if they are unable to meet these planned changes:

  • Partners, children or parents applying under Appendix FM or subject to transitional arrangements under Part 8
  • Those here on the basis of long residence under paragraph 276A
  • Those here on the basis of ‘private life’ under paragraph 276ADE
  • Those here as dependants of HM forces personnel
  • Dependants of those who originally entered the UK as PBS migrants or work permit holders

In addition, in relation to family members under Appendix FM, dependants of HM forces personnel and dependants of PBS migrants or work permit holders, a provision will also be introduced for those individuals who have been in the UK for 15 years with limited leave to apply for settlement on the basis of a qualification in speaking and listening at A2 CEFR and without passing the Life in the UK Test. They will however need to produce evidence from a suitably qualified person, for example a teacher of ESOL, that it is not reasonable to expect them to reach the B1 level. The UKBA will also consider whether this should be introduced for those here under long residence. I am really not sure how much of a concession this is as 15 years seems pretty long…

The requirement will be the same for naturalisation as that for settlement and the same English language qualifications that were relied upon when applying for settlement will be accepted. Similarly qualifications previously obtained to qualify for entry clearance (e.g. if applying under Tier 2 (General) where B1 or above is required) will also be accepted when applying for settlement and then if applicable for naturalisation. When applying for naturalisation, those over 65 years old and those with a physical or mental condition will continue to be exempt.

However, if a person qualified for settlement without needing to pass a B1 qualification this will need to be done if that person wishes to apply for naturalisation later on post-October 2013.

Now, the range of English language qualifications that will be accepted by the UKBA will need to be:

  • Those that cover speaking and listening at B1 or above from the Home Office’s Secure English Language Test (SELT) list, which can be found in Appendix O in the Immigration Rules
  • ESOL qualifications at entry level 3 or level 1 or level 2, including speaking and listening, that have been regulated by the Office of Qualifications and Examinations Regulation (Ofqual). The qualification must be listed as an ESOL qualification on the Ofqual Register of Regulated Qualifications and must have been taken in England, Wales or Northern Ireland
  • A National Qualification in ESOL at Scottish Qualifications Framework levels 4, 5 or 6, awarded by the Scottish Qualifications Authority and taken in Scotland.

But importantly applicants will not be required to study at a particular institution nor to follow any particular curriculum. This is in contrast from the current requirement in relation to ESOL courses which need to be studied at an accredited institution on a course of study based on citizenship teaching materials. Sitting the KoLL test will still need to be done in a ‘secure test centre’. I have visions of bouncers on the door but hopefully we haven’t got to that just yet…

Finally, nationals of majority English speaking countries (see Annex A of Statement of Intent) and those who have obtained a degree taught in English will continue to be considered as automatically meeting the English language component.

Otherwise a quick reminder that in addition to any possible Article 8 challenges, there may still be arguments to pursue concerning the equivalence of various English language qualifications against the CEFR (Common European Framework of Reference). The UKBA has its own views but as we all know, the teaching and assessment of languages is not an exact science and this previous post may still provide some further background information.

Fluent English
Fluent English

Fluent English

It has been over a year since the High Court heard a challenge to the introduction of pre-entry English language tests for spouses and partners (and fiancés and proposed civil partners). It was argued in Chapti & Ors, R (on the application of) v SSHD & Ors [2011] EWHC 3370 (Admin) that the changes to the Immigration Rules were unlawful by reference to Article 8, 12 (right to marry) and 14 (prohibition of discrimination) of the ECHR.

In the High Court, Beatson J held that the amendment to the Rules did interfere with the right to respect for family life but that the interference was justified. The claimants appealed to the Court of Appeal challenging this finding of justification and the SSHD also argued on appeal disputing that there was actually an interference.

The Court of Appeal has now given judgment on 12 April 2013: Bibi v SSHD [2013] EWCA Civ 322 with the change of name seemingly arising out of the first claimants Mr and Mrs Chapti not pursuing an appeal.

The two remaining sets of appellants, Mr and Mrs Ali and Mr and Mrs Bibi, are married and in both cases, the wife is a British citizen. The husbands are foreign nationals and do not speak English. Mr Ali is Yemeni, has no formal education and is illiterate. It was also put forward that there is no approved test centre in Yemen which would provide tuition in English to the required level and further that the tests can only be taken online and Mr Ali has no computer skills. Mr Bibi is Pakistani and is educated but there is no approved test centre in the area in which he lives. The nearest ones are 115 and 141 km away and the couple have a young child. He too would need to learn computer skills before sitting the test.

In both the High Court and the Court of Appeal, there has been no judicial determination of these facts since no entry clearance application had been made. The cases proceeded as matters of principle and the assumed facts provided a framework in which to test the lawfulness or otherwise of the amendment. Liberty and JCWI also intervened as interested parties.

Unfortunately the Court of Appeal has endorsed Beatson J’s judgment and finds that the amendment to the Rules is proportionate. Delivering the leading judgment, Maurice Kay LJ stated the following:

32. I am led to the conclusion that the Secretary of State identified a social problem (see Beatson J at paragraph 94); she considered an ameliorating solution; she assessed the implications of introducing it; she provided for exempt and exceptional cases; and, in the event, the effect on applications and grants was not numerically significant. Moreover, it may well be that a significant number of those who are unable to satisfy the pre-entry test certificate requirement will benefit from the exceptions, particularly the one based on “exceptional compassionate circumstances”. Applying the wide margin of appreciation which I consider to be appropriate, I consider that Beatson J was right to conclude that the move to a pre-entry requirement, pitched at a rudimentary level, was proportionate. There is a world of difference between this requirement and the prohibition in Quila which acted as an insuperable barrier to entry to those in the proscribed age group, even when the intended marriage was demonstrably unforced. It is, of course, possible that in an individual case, with favourable facts found, a particular applicant may be able successfully to invoke Article 8 or some other protection (for example, section 55 of the Borders, Citizenship and Immigration Act 2009). The Secretary of State accepts this. But the head-on challenge to the amended Rule itself fails.

Concurring, Toulson LJ highlighted the following which seemed to be key in the Court’s endorsement of the SSHD’s rationale behind the amendment to the Rules:

50. (…) (It made it) reasonable in my view for the Home Secretary to have considered that there was a real problem of a significant number spouses lacking a basic level of English 2 years after entry to the UK. There may be other ways of interpreting the statistics, as there often is, but that is not an unreasonable evaluation.

(…)

52. (…) The point is that government would be unduly trammelled if judges required an unrealistic level of proof of the benefits intended to be obtained by new processes. A broader approach is justified, under the rubric of a broad margin of appreciation.

Of some comfort, Sir David Keene dissented. Whilst he agreed that it is desirable that those entering the UK should have some basic level of understanding of English or should achieve this as soon as possible after arrival, he did not accept that (1) the amendment was no more than was necessary to accomplish the legitimate aim and (2) that it struck a fair balance between the rights of the individual and the interests of the community. Sir David Keene did not accept that an interference with Article 8 rights “can only be justified by the production of ‘irrefutable empirical evidence’” but that some empirical evidence to justify the interference” was not unnecessary or impossible [Paragraph 56]. He called for evidence to have been produced to demonstrate the extent of the existing perceived problem and briefly analysed the statistics with regards to the post-entry language test, taken typically following the first two years of entry in the UK.

Sir David Keene’s view was that the post-entry test appeared to be working and a summary of the notable figures can be found at Paragraph 57. His assessment of the evidence was also that the pre-entry test pitched at such a level seemed to be of very little value as a means of communicating in English [Paragraph 58]. Sir David Keene concluded that:

59. (…) the pre-entry test contained in the amendment has not been demonstrated by any substantial empirical evidence to be no more than is necessary to achieve the legitimate aim. The post-entry test appears to have been increasingly successful in dealing with the limited problem, and that test presented far less of an interference with family life than that in the amended Rule. It is in addition difficult to see, on the evidence, what additional benefits to the public interest the new test brings, and in that situation it does not seem to me to justify the interference with Article 8 rights. As such it does not strike a fair balance between the public interest and the rights of the individual.