In a careful judgment, the President and UT Judge Freeman recorded, in what I sense to be a rather admiring tone, that the Appellant had completed – largely accurately – the 39-page application form and had submitted all of the documentary evidence that he was required to.  Reminding us all, no doubt, of how simple, transparent and objective the PBS aims to be – yeah right

However, unbeknownst to the Appellant, the UKBA caseworker considering the application contacted his previous college in order to verify the Appellant’s claim to having studied there.  You can probably guess what happens next….  The college confirms in an e-mail that the Appellant had indeed studied there but (incorrectly) had not finished his course.  The Appellant was duly refused and the first notification of any difficulties with his application or that his previous course of study was being disputed by the SSHD was through the refusal letter being served upon him.

As mentioned above, the Tribunal held a detailed analysis of the application form and what the Appellant had been asked to confirm therein.  As well as what documents the form sets out that should be submitted in support.  Nowhere was it stipulated that the Appellant had to send in documentary evidence of his ‘established presence’ in the UK and more specifically of him completing his last course of study.  It was only through the caseworker’s own enquiries that it all started to fall apart and throughout the application process, the Appellant was not contacted by the UKBA in order to clarify the position.  It was also noted by the Tribunal, again rather admiringly, that as soon as he was made aware of this through the refusal letter, the Appellant lodged all of the necessary documentary evidence with his notice of appeal confirming that he had actually completed his previous course.

Again, you can probably guess what happens next.  The Home Office argued that s.85A applied and that the Appellant could not rely, within the appeal under the Immigration Rules, on the supplementary documents lodged with the grounds of appeal as these had not been submitted by the Appellant with the application.  Nor did the documents go towards proving that a previously submitted document was genuine or valid – the only exception under s.85A(4).

From Paragraph 12 onwards of the determination, the Upper Tribunal analyses s.85A and agrees that on a strict reading of it, the Appellant was not entitled to rely on the supplementary documents because these had not been submitted with the application.  Thankfully, the panel also stressed that he could not have possibly submitted these as a) he was not required to and b) these were adduced to respond to a point raised by the SSHD in the refusal of which he was neither warned nor informed until he was served.

Well thankfully again, the Upper Tribunal found that that was unfair.  However, we are quickly reminded that the Upper Tribunal is a creature of statute and so it is reiterated at Paragraph 15 that “the problem arises not with the terms of the section (…) but with the conduct of the respondent in examining the application and refusing it in the way she did” [Para 15].

So for now, fairness continues to be the buzz word for 2012 and the focus will need to continue to be on whether an immigration decision is not in accordance with the law if the SSHD has failed to discharge her common law duty to act fairly in deciding immigration claims properly made to her.

This case is certainly a useful reminder for representatives to study the PBS application forms meticulously in order to note what information and/or documents an applicant is required to produce in support of an application so as to be able to defeat any s.85A hurdles at appeals and of course in reiterating the fairness points.

As with Team UK Border Force: World Police on Sky, I can’t bring myself to watch it for fear of my damaging my television. If anyone else did manage to put themselves through it, do let me know in the comments below whether there was any coverage of genuine weddings that were disrupted and ruined. I dealt with such a case just recently. The registrar at Islington Registry Office had tipped off UKBA, who failed to realise that a Certificate of Approval had already been granted and that it was an obviously genuine relationship. They duly swept in and stopped the marriage and even detained one of the parties. Can you imagine it, on what is supposed to be one of the happiest days of your life?

In an odd coincidence a Freedom of Information request just came back with the information on numbers of convictions in sham marriage cases. There has been a sharp increase between 2010 and 2011, with 87 in 2010 and 229 in 2011.

A breakdown of the convictions was also provided, and it makes interesting reading. Of the 229 offences in 2011, for example, 7 were for bigamy, 83 were for assisting unlawful immigration, 30 were offences under the Perjury Act 1911 for making a false statement with reference to marriage and 12 were for conspiracy. 31 convictions were for possession of a false identity document under the Identity Cards Act 2006, which suggests that the offence came to light as a result of the sham marriage rather than being intrinsically involved in it and may well represent multiple convictions for the same individual. 4 convictions are described as ‘common law’ – anyone any ideas on what that might refer to?

So there you go, sham marriages do lead to convictions and there has been a marked increase in the number convictions in the last year or so. However, the headline number of convictions probably exaggerates the total number of incidents because some of those convictions will be multiple counts against one person.

Points mean prizes!

A plethora of immigration tweaks were announced yesterday, mainly of a technical nature. There is still no sign of the introduction of a minimum income level nor the ending of Tier 2 settlement applications. It is beginning to seem likely that these will be announced at short notice, probably to avoid encouraging applications under the existing rules. Consider yourselves warned.

Changes yesterday included:

• New Tier 1 forms and guidance.
• New facility for in country online applications for Tiers 2 and 5.
• Increase in the amounts required for maintenance for all Tiers and their dependents.
• Replacement of Tier 1 (Post Study Work) with a new scheme. The key requirements will be graduating from a university and an offer of a skilled job at a salary of at least £20,000 (or more in some cases) from a reputable employer accredited by the UK Border Agency.
• Creation of a new Tier 1 (Graduate Entrepreneur) route with 1,000 places available in the first year. It seems that the lucky few will be selected by their universities.
• A new limit of five years maximum stay for degree level study, but with significant exceptions including those studying Masters, PhDs and various professional studies. Indeed, one wonders to whom the limit might actually apply in real life, as opposed to Migrationwatch Land.

These changes will take effect on 6 April 2012. The Statement of Intent with all the details can be found here.

These adjustments follow on from the introduction of new fees for immigration applications from the same date, announced last last week. Most of those increases were fairly minor in nature, in line with inflation.

“I cannot see any room for manoeuvre that would allow the very specific facts of the case to alter what is a strict and plainly expressed legal structure. Either an individual’s presence is “lawful” or “unlawful” in immigration terms. The determination of that status then in turn indicates whether or not the need for “very special reasons” applies to his case. ED cannot claim “lawful” status. Therefore, as a matter of law, Maslov does not apply to his case and the judge was entirely correct in the approach that he took.”

This is a troubling ruling and is all the more troubling when the facts are considered.

D had been brought to the United Kingdom by his father at the age of 6 with his siblings.  At the age of 11 his father had abandoned them and soon after they had been looked after cared for under the Children Act 1989.  Despite being in their care for over 6 years, social services had not sought to regularise D’s stay, apparently ‘advising’ him to do so only around his 18^th birthday.  Between the ages of 13 and 20 D had committed offences including handling stolen goods, possession of offensive weapons and breaches of community orders. The First Tier Tribunal found that there was a risk of re-offending, that there would be some kind of support for him in Ghana and that Maslov did not apply to him given that he had not been in the United Kingdom lawfully. The fact that he had been in the  United Kingdom for many years was merely a matter of ‘significant weight’. Ultimately it found that his removal was proportionate to need to maintain effective immigration control and in order to prevent crime and disorder.  The Upper Tribunal and the Court of Appeal agreed.

If paragraph 75 of Maslov and ‘very serious reasons’ is a strict legal test as opposed to one of approach (and I invite readers to revisit paragraphs 68 to 75 of Maslov and to consider which of these two propositions is correct)  then we are in the uncertain area of weight alone to be attached to facts such as these. And, as was stressed again by the Court in D’s case, weight is a matter for the Tribunal.  If a Tribunal, as here, says that it has attached significant weight to something then we know the Court are rarely if ever going to second guess it.

But now imagine D had no criminal record and was a person facing removal alone as opposed to deportation. It would be all but impossible to see how his removal would be proportionate in the public interest and ‘necessary’ for maintaining immigration control given all of the accepted facts in his case: his age when coming to the United Kingdom and the circumstances of his entry and as vulnerable child being cared for many years by social services.  If in a removal case the public interest stands at an irreducible minimum, one wonders why should the Maslov criteria should not apply if the decision maker goes on to consider the public interest in the ‘prevention of crime and disorder’.

Further, if such a strict demarcation between those who had spent their lives here lawfully and those who had not does exist, it is then very surprising to find no reference to it in cases such as BK (Deportation s 33 “exception” UKBA 2007 public interest) Ghana [2010] UKUT 328 (IAC).  BK had spent all but 6 months of the 8 years he had lived in the United Kingdom unlawfully and was statutorily categorised a ‘foreign criminal’ under the Borders Act 2007, yet the Tribunal assessed the public interest element of his case on the basis that BK was a ‘homegrown’ criminal as it was in ‘..this country that he done most of his growing up and had acquired his criminal habits so that…he was unlike an adult foreigner who comes here and commits serious crimes’.   Therefore, that BK had lived in the United Kingdom unlawfully for the majority of his stay does not appear to have materially impacted on the Tribunal’s decision given the facts of his case. Not so for D, even though the United Kingdom (through its social services) had been solely responsible for D’s upbringing for a significant part of his childhood.

Think also of the controversial case of AA v United Kingdom (8000/08) [2011] ECHR 1345. In that case AA did happen to have lawful stay as a child, through the actions of his mother. The Maslov test was applied by Strasbourg. Why is there a difference between D, who was not fortunate enough to have responsible parents (or social workers) looking after his interests, and AA, who was fortunate in that respect?

We do not know the reasons behind the inactivity of those responsible for D’s care in not regularising his stay during his minority. On the Court’s interpretation of Maslov, he fell the wrong side of the line because of this negligence. Surely there has to be scope for this category of ‘homegrown’ criminals, sitting somewhere in the middle and which, when sufficiently strong facts present themselves, have an entitlement to the Maslov criteria. Foisting our own criminals on other countries hardly seems fair, even aside from the effect on the individuals concerned.

Before the new dawn of the Points Based System, work permits were issued at a specified salary level for a period of five years. In April 2011, though, a new rule was introduced with no publicity that required work permit holders to be paid at salary levels set out in the labyrinthine Tier 2 salary codes if they were to qualify for settlement at the end of five years. These levels are sometimes higher than the salaries at which some work permits had been issued. Some work permit holders therefore reach the end of their five years of leave and find only at that point that their salary is inadequate to qualify for settlement.

The new case, Philipson (ILR – not PBS: evidence) India [2012] UKUT 00039 (IAC), offers three solutions to this problem.

The first is to suggest that the transitional arrangements did not apply to a person who never required or possessed a certificate of sponsorship. No salary level was therefore specified and the problematic new sub paragraph of the rules did not apply at all. See paragraph 14 of the determination.

The second is to suggest that the claimant in this case would have succeeded in her appeal anyway under Immigration Rule 395C (to be scrapped next week, sadly) because of the unfairness of the situation in which she and her family found themselves:

‘The intrinsic lack of justice in this case comes from the attempt at the 59th month of her 60 month stay, to impose wage conditions on her  that were irrelevant to the original grant of the work permit. She was unaware of  the need to comply with these conditions, although we recognise that the application form rule 10 B does alert the keen reader to a footnote 9 on page 37 from which a reference to the UKBA website and the codes of guidance can be obtained. Her employer on whom the responsibility for certification rests was unaware of this wage requirement, which suggests that notice of this recent change of practice had not been disseminated widely to those organisations that employed foreign work permit holders.’

Thirdly, the tribunal indicated that it would probably have allowed the case on human rights grounds under Article 8:

‘Even if her employer had refused a wage increase or refused to back-date it to the period before the decision of the Secretary of State in question, we would have wanted to explore with some care whether there was a legitimate aim for refusing her application. She met the statutory minimum wage conditions. She had performed and was continuing to perform a valuable social service in a field of employment in which there are labour force shortages given the low level of wages. Having admitted her at a certain wage level and led her to believe that settlement was probable at the end of the five year period, it is very harsh to refuse her because of a recent change of policy that operated on employers and not employees. A less intrusive means of promoting the legitimate aim of maintaining reasonable wage levels in the industry would be to require the employer to improve the wage or to permit the appellant to move to an another employer willing to pay the increased wage. It is trite law that a measure may be a disproportionate interference with a human right if the decision maker has not adopted an alternative means of promoting the aim that is less intrusive on the right: see for example SSHD v Daly [2001] UKHL 26; [2001] 2 AC 532 at [27].’

The tribunal also finds that Immigration Judge Vaudin D’Imcourt had been wrong to exclude the evidence of a backdated salary increase, based on a misreading of the controversial new s.85A. This was not a Points Based System case and therefore that section had no application. For this particular appellant this was enough for her case to succeed in a straightforward way under the rules in any event.

The tribunal is notably critical of the approach and reasoning of the first instance judge in this case, overturning every aspect of the determination.

The first of these is Papajorgji (EEA spouse – marriage of convenience) Greece [2012] UKUT 00038 (IAC), in which the tribunal notes that there is no burden on the applicant to prove that a marriage to an EEA is not a marriage of convenience. The tribunal goes on to highlight EU guidance on the issue of abuse of EU free movement rights and marriages of convenience that appeared on this blog as long ago as November 2009 (courtesy of the wonderful Elspeth Guild at the ILPA AGM that year). The guidance is very informative and helpful and the full version available here.

The second case is Goudey (subsisting marriage – evidence) Sudan [2012] UKUT 00041 (IAC). The President observes (as he does in Papajoraji) that all 115 questions in the visa application form were properly completed and goes on to find that the immigration judge erred in law by imposing his own expectations of how a couple might conduct their relationship and by failing to appreciate that the evidence that was presented was properly corroborative of the relationship. Thankfully for Luddites everywhere, the President is particularly critical of the bizarre finding that the absence of texting somehow suggested the relationship was less than genuine. He then goes on:

It may be that the ECO and the judge considered that the requirement to show a “subsisting marriage” imposes some significant burden to produce evidence other than that showing that there was a genuine intention to live together as man and wife in a married relationship.  If so we conclude that that is an error of law. The authority of GA (“Subsisting” marriage) Ghana * [2006] UKAIT 00046; [2006] Imm AR 543 only requires that there is a real relationship as opposed to the merely formal one of a marriage which has not been terminated. Where there is a legally recognised marriage and the parties who are living apart both want to be together and live together as husband and wife, we cannot see that more is required to demonstrate that the marriage is subsisting and thus qualifies under the Immigration Rules.

The third case, Naz (subsisting marriage – standard of proof) Pakistan [2012] UKUT 00040 (IAC), was an appeal by the Entry Clearance Officer to the Upper Tribunal against an appeal that had been allowed. The President reiterates that post-decision evidence is admissible if it goes to show what the situation really was at the date of decision — the Hoque and Singh [1988] Imm AR 216 argument, for the case law historians amongst you — and upholds the judges’s assessment of the sponsor being a confused but honest witness.

All three are welcome cases, restoring some common sense and propriety to the judicial evaluation of other people’s relationships. Perhaps most importantly, the theme that underpins all three cases is that it should not be assumed as a starting point that all immigrants are liars who must somehow prove otherwise. The standard of proof is, after all, simply ‘more probable than not’.

At the time of writing there are still places left, but quite a few had already gone last time I checked. The course is being held near Liverpool Street station and the full details and booking information can be found here. It is a short course of 1.5 CPD.

The concession that allowed Tier 1 and 2 applicants to make an in-country immigration application before sitting the language test is being withdrawn. This was introduced so that applicants already in the UK were not caught out by the change to the rules, but is being withdrawn because the requirement is now more common knowledge and tests are easier to arrange now that supply from test providers has caught up with demand.

Applicants for extensions under Tiers 1 and 2 should therefore now make sure they arrange their tests well in advance of the need to extend their visas. Some will no doubt end up being caught out by this change as they will not be keeping an eye on every change to the Immigration Rules and policy guidance – of which there are very, very many, with some major ones to come later this week apparently. An out of time application can always be made under the Points Based System, although it does mean sacrificing the now largely pointless right of appeal and a short period of overstay, which can be problematic later.

A number of technical changes are also being made to reflect changes to the way that various approved test providers label and conduct their tests.