Archives For Immigration rules
Until 2008 children who resided in the UK for seven years would permitted to remain under a Home Office policy called DP5/96, as would their parents. There were certain public interest ‘escape’ clauses for the Home Office – if the parents had deliberately gone to ground, committed offences or similar – but most applications under this policy would succeed. Seven years was recognised as an important if arbitrary period of residence for children by the previous President of the Upper Tribunal in EM (Zimbabwe) CG  UKUT 98 (IAC) and continued to be recognised in other cases including Azimi-Moayed and others (decisions affecting children; onward appeals)  UKUT 197 (IAC). When the Immigration Rules were changed in July 2012 (Statement of Changes HC 194), seven years of residence by a child was formally incorporated into the rules as a sufficient period to justify continued residence by the child and parents. The explanatory notes accompanying that particular change (paragraph 7.6) stated that:
The key test for a non-British citizen child remaining on a permanent basis is the length of residence in the UK of the child – which the rules set at at least the last seven years, subject to countervailing factors.
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.
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.
Omenma (Conditional discharge – not a conviction of an offence)  UKUT 314 (IAC) is an interesting case for two reasons. Firstly, the Home Office accepted that the decision was wrong and withdrew it. Nevertheless, because the case had reached the Upper Tribunal, the withdrawal of decision did not automatically deprive the Upper Tribunal of jurisdiction, and it went on to determine the appeal anyway.
The actual reason for it being reported is that the appellant had answered “no” to the standard visa application form question about previous convictions. In fact she had pleaded guilty to shoplifting some years previously and been given a conditional discharge. Was she dishonest in her answer? The Home Office and the First-tier judge answered “yes” and her application and appeal had therefore failed so far. Continue Reading…
The judgment is now out in the long awaited case of MM v Secretary of State for the Home Department  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.
Statement of Changes HC 532 analysis
I have put together a detailed run through of all the major changes wrought by Statement of Changes HC 532. You can read my analysis here if you are a Free Movement Member. There are some significant changes to Appendix FM, the private life, deportation and human rights rules and to the Entrepreneur requirements.
You can read about the benefits of and sign up for membership here.
Yesterday was the two year anniversary of the harsh new immigration rules introduced on 9 July 2012. Tomorrow comes the Court of Appeal decision in the challenge to the spouse minimum income threshold.
The effects of these rules are really beginning to bite: much misery has been caused by family separation. Spouses are kept apart or exiled to another country, children are deprived of a parent and grandparents are left lonely, isolated and suffering while their children can only watch helplessly from afar.
All from the government that David Cameron said he wanted to be the most family friendly in history.
There were several events yesterday, including a demonstration outside the Home Office and the release by JCWI and BritCits of a new report on the adult dependent relative rules (covered here on FM). The full report can be read here and includes thanks to readers of this blog who contributed to it. Continue Reading…