Archives For Immigration rules

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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Pinnochio by Grand Parc - Bordeaux, France

Omenma (Conditional discharge – not a conviction of an offence) [2014] 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…

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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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.

Divided family demonstration

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…

3,641 families put on hold

The Home Office has updated its statistics on the number of families with pending applications separated by the £18,600 minimum income threshold for spouses. At the end of December 2013 it was 3,014. At the end of March it stood at 3,641. That is a LOT of separated families and an almost unimaginable amount of anguish. All caused by the Government David Cameron said in Opposition he wanted “to be the most family friendly Government we’ve ever had in this country and that is about everything we do to support families and it’s about supporting every sort of family.”

Judgment in the MM case will be soon. But there will almost certainly be an appeal to the Supreme Court by whichever side loses, so the misery will continue.

man bending a ruler

Having been overruled by the Court of Appeal in the case of Rodriguez [2014] EWCA Civ 2 (FM post here), Mr Justice McCloskey, President of the Immigration and Asylum Chamber of the Upper Tribunal, has returned to the vexed issue of ‘evidential flexibility’ in a trio of cases:

Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC)

Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC)

Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – “provided to”) [2014] UKUT 296 (IAC)

This is an issue that the Supreme Court will be examining in the coming months, permission having been granted on 19 May 2014 in Rodriguez (now called Mandalia). These latest Upper Tribunal cases are not, therefore, the last word we will see on the subject.

The headnotes read as follows: Continue Reading…

Cases arriving on luggage carousel

In the fine case of Fetle (Partners: two year requirement) [2014] UKUT 00267 (IAC) the Upper Tribunal holds that the requirement in paragraph 352AA for partners of refugees seeking entry clearance for living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more is not the same as the two year cohabitation requirement in the main spouse and partner rules in Appendix FM. The official headnote reads: Continue Reading…