Archives For Human rights

By coffee bee, on Flickr

Irreversible harm

Mark Symes —  — 5 Comments
This entry is part 1 of 4 in the series Immigration Act seminar

From 28 July 2014, the commencement of provisions of the Immigration Act 2014 gives the Secretary of State new powers of certification that will oust “in-country” rights of appeal for foreign criminals. She may do so in any case where she thinks removal would be consistent with the Human Rights Act 1998 and in particular where there is no real risk of serious irreversible harm faced by the deportee (section 94B of the amended Nationality Immigration and Asylum Act 2002).

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Angry cat
This entry is part 4 of 4 in the series Immigration Act seminar

The Immigration Act 2014 requires judges to take into account certain public interest considerations when deciding immigration cases. Little weight is to be attached to x, the politicians tell the judges through the medium of the legislation, and in y situation there is no public interest in removal. More specifically, judges are instructed that there is less public interest in removing wealthy English speakers than poor Urdu speakers.

Human rights pervade modern law and have a profound impact in crime, family, mental health, environmental and many other areas of law. It is only in immigration law that politicians have sought directly to influence the thinking of judges, though. There is no primary legislation telling judges to sentence more leniently where a convicted criminal speaks English or has lots of money, for example, or telling judges that fathers with certain characteristics have stronger rights to see their children than other sorts of fathers.

Late last month the primary legislation concerned came into full effect. How does it work, and will it achieve its purported objectives? This is a detailed blog post examining the provisions and it is accompanied by an audio extract from a seminar last night at Garden Court Chambers at which I spoke on this subject (if you listen to podcasts on your mobile phone, you can subscribe for free via iTunes here, Stitcher here or point your podcast player to podcast feed for Free Movement). Other extracts from the seminar by Bijan Hoshi, Sadat Sayeed and Mark Symes will follow in upcoming blog posts.

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rules

This post is based on an earlier page I made available to Free Movement Members a couple of weeks ago, before Statement of Changes HC 532 took effect. The commencement date of 28 July 2014 has been and gone and we have also seen commencement of the overseas deportation appeals sections of the Immigration Act 2014 (see blog posts here and here), along with the controversial statutory human rights considerations. I will return to the statutory human rights considerations in another post and will also be updating the online course on the Act. They are already covered in some depth in my ebook on the Act.

Forgive me for the post that follows is quite technical, but that is because the changes are technical in nature. If you spot any errors or think of anything additional, do let me know in the comments.

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By coffee bee, on Flickr

Today the new out of country deportation appeal provisions of the Immigration Act 2014 came into force, at least in part. The new regime enables the Secretary of State to require any appeal against deportation to be brought from abroad only, both in UK law and EU law cases. This post looks at the statutory power, the Home Office guidance and some of the possibilities for bringing judicial review applications against the exercise of such powers. Continue Reading…

Pound Coins by William Warby
[Scroll to bottom for updates]

The judgment is now out in the long awaited case of MM v Secretary of State for the Home Department [2014] EWCA Civ 985, the test case challenging the minimum income threshold for spouses wishing to enter the United Kingdom. The Court of Appeal has allowed the Secretary of State’s appeal. This is terrible, heartbreaking news for those families forced apart by the rule. An appeal to the Supreme Court will be attempted, but it will be many months until any outcome is known.

For previous coverage here on Free Movement, including the previous judgment, see here.

What follows is just an initial reaction on reading the judgment. I will update if anything further occurs to me.

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Update on Haleemudeen vs Edgehill

Free Movement write up and prediction here.

And an update from Paul Richardson, Counsel for Mr Haleemudeen: Continue Reading…

Molly Malone

Judgment has finally been handed down in the latest test case on Dublin removals to Italy, Tabrizagh and others v SSHD [2014] EWHC 1914 (Admin) and although it is on any view bad news, there is much in it to consider. In a carefully reasoned and frankly impressive decision the newly made up Laing J dismissed the claimants’ challenge on the facts. This is the first Dublin case to consider the principles in the Supreme Court’s ground-breaking EM (Eritrea) v SSHD [2014] UKSC 12. Continue Reading…

limbodanceparty

There can be few immigration practitioners who do not presently encounter decisions in relation to applications made on the basis of peoples’ private and family life which do not carry the right of appeal. In recent years the prevailing tendency has become to segregate decisions, where the applicant is an overstayer or illegal entrant, such that refusals to vary leave to remain are made without further steps to enforce removal, leaving migrants without an appealable immigration decision which would gain them access to a merits appeal in the First-tier Tribunal (because overstayers do not enjoy the right of appeal given section 82(2)(d) of the Nationality Immigration and Asylum Act 2002, and absent any duty to make speedy removal directions when refusing applications, see Daley-Murdock [2011] EWCA Civ 161). Numerous considerations arise in these cases as to the remedies available and their scope. Continue Reading…

Picture of pills

A child referred to in court only as “Maya” is six years old. She has Spina Bifida and is very severely disabled. She also has severe learning difficulties and extremely complex needs. For the last five years she has received highly specialised medical treatment and has attended a special school in Enfield which provides her with a very high level of support. The situation of Maya and her family is a hard one.

It is a situation made all the harder by the twin facts that Maya is Algerian and that the Home Office want to send Maya back there. Continue Reading…

Court of Appeal grants permission on Article 3 and 8 health cases

Important grant of permission from the Court of Appeal in six linked cases addressing issues arising from D and N cases at Strasbourg and subsequent treatment by the UK courts. For some legal background see this earlier blog post. In granting permission Maurice Kay LJ says:

I have indicated that I propose to grant permission to appeal in this case. I do so for a number of reasons. The first is that I accept the submissions on behalf of the applicants that there are arguable issues as to the precise scope of D and N, given the factual circumstances in which those decisions were made. They concern effectively illegal entrants who can properly be described as “health tourists”. None of these six applicants falls into that category, although BA has never enjoyed lawful status in this country.

The second point is that not only are there features in the cases such as lawful residence prior to diagnosis and treatment, or long and mainly lawful residence, there is room for clarification of the criterion of exceptionality which derives from D and N. For example, virtually certain death within two weeks on return following a period of lawful and sometimes lengthy residence in this country may be susceptible to accommodation within exceptionality. It may be that Lady Hale’s judgment in N permits such an approach. In any event it seems to me that there is room for a decision providing clarification.

My colleague Rebecca Chapman is acting for one of the appellants and Duran Seddon for another.