More seriously, I’ve decided to do a little fundraising for the blog, with any excess being donated to BAILII, who make the blog possible. Two Kindle ebooks have been created which include all the legal material posted on Free Movement in 2010 and 2011 respectively. These can be downloaded here:

They are priced at £5.14 each (don’t ask). If the blog’s limited costs are recouped then any excess funds raised will be donated to BAILII. BAILII recently launched a fundraising drive because a large funder pulled out, and without BAILII this and other legal blogs would be all but impossible.

If you find this blog and BAILII useful then please consider showing your support by buying one or both of the ebooks.

While I’m on the subject, the HJT Training immigration manual is also now available on Kindle.

“Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”

Unfortunately I cannot say with confidence that Dereci provides all of the answers in respect to how Article 20 can be used.  An indication of this is how long it has actually taken me to put pen to paper and write this post since the judgment was published!

The case involved five separate applications.  The first three concerned two adult men and one adult woman, all third country nationals and married to Austrian nationals, who had always lived in Austria so had not exercised their rights of free movement within the EEA.  The fourth and fifth matter concerned two adults, again third country nationals who were seeking either to join or remain with one of their parents, also Austrian nationals who had not lived anywhere else but Austria.

None of the Union citizens in the applications were dependent on their third country national family members and the CJEU was quick to note this at Paragraph 32 of the judgment, where the Court records that “unlike the situation in Ruiz Zambrano, there is no risk here that the Union citizens concerned may be deprived of their means of subsistence”.

All five applicants have had their cases dismissed by the Austrian authorities, who had refused to apply European law to their circumstances on the basis that the free movement provisions did not apply and rejected their Article 8 ECHR claims.  The questions with which the cases were referred to the CJEU are set out at Paragraph 35 of the judgment and can be summarised as follows:

(1)   Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant residence to a third country national, whose spouse/parent is a Union citizen, who is a national of and has always resided in that Member State, even when those Union citizens, are not dependent on the third country national for their subsistence?

(2)   If the answer to question (1) is yes:  Does the obligation on the Members States under Article 20 to grant residence to the third country nationals relate to a right of residence which follows directly from EU law, or is it sufficient that the Member State grants the right of residence on the basis of its domestic law establishing such a right?

(3)  a. If the right stems from EU law:  under what conditions, exceptionally, does the right of residence which follows from EU law not exist, or under what conditions made the third country national be deprived of the right of residence?

b.  If it is sufficient for the right to be granted following domestic law:  under what conditions may the national of a non-member country to be denied the right of residence, notwithstanding an obligation in principle on the Member State to enable that person to acquire residence?

(4)   […]  This last question relates to the application of the Ankara Association Agreement Decisions and Protocols in the case of Mr Dereci, who is a Turkish national.  It is not possible to analyse this element of the judgment within the confines of this post – but see paragraphs 76-101 of the judgment for further details.

Consistently with Zambrano and McCarthy, the CJEU first finds that Directive 2004/38 (free movement and residence rights) does not apply to any of the situations in Dereci as the Austrian nationals had always resided in Austria [Para 52 & 58].  So far so good in terms of clarity…

When it starts to address Article 20, the CJEU reiterates this principle at Paragraph 60 but states at Paragraph 61 that Union citizens, who have never exercised free movement rights, cannot for that reason alone be assimilated to a purely internal situation.  This is because citizenship of the Union is intended to be the fundamental status of nationals of Member States [Para 62 – also referring to Zambrano Para 41].

The CJEU then states the following:

• Union citizens may therefore rely on rights pertaining to that status, including against their Member State of origin [Para 63 & McCarthy Para 48].
• As held in Zambrano, Article 20 precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status [Para 64].
• According to the CJEU, the criterion relating to the denial of the genuine enjoyment of the substance of such rights refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole [Para 66].
• The Court does not define this ‘criterion’ further other than to set out that it “is specific in character in as much as it relates to situations in which, (…) a right of residence may not, exceptionally, be refused to a third country national, (…) as the effectiveness of Union citizenship enjoyed by the Union citizen would otherwise be undermined”.
• The Court adds (rather unhelpfully) that ‘the mere fact that it might appear desirable to a Union citizen, for economic reasons or in order to keep his family together in the territory of the Union, (or for his third country national family member to join him in the territory of the Union), is not sufficient to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted’ [Para 68].
• The above is without prejudice to the right to the protection of family life, (either under Article 8 ECHR or Article 7 of the Charter of Fundamental Rights of the European Union) which may mean that a right of residence cannot be refused in any event [Para 69].

So the Court’s answer to the first question is that Article 20 does not preclude a Member State from refusing to allow a third country national family member of a Union citizen, who has never exercised free movement rights to reside on its territory, as long as such a refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen.  Whether it leads to such a denial is a matter for the referring court to assess [Para 74].

The second and third questions were not answered as they had only been put in the event that the first  was answered with a resounding ‘yes’.

So as long as a Union citizen can move from their Member State of origin to another Member State and thereby exercise free movement and residence rights, family reunion with third country nationals can be enjoyed that way.  The other scenario is of course the so-called Surinder Singh type cases, whereby a Union citizen returns to their Member State of origin after having exercised free movement rights in another Member State.  Their third country national family members would then continue to enjoy the same residence rights when returning back ‘home’.

Otherwise according to Dereci, the only other way a Union citizen can seemingly enjoy family reunion with third country nationals is if they simply cannot move and the only favourable and concrete example of this so far is the Zambrano children!  They were too young to move and exercise rights in their own way and their parents were resident illegally in Belgium.  Although not explicitly covered by the Courts in Zambrano and Dereci, neither were the Zambrano parents able to be self-sufficient in another Member State to enable a Chen-type scenario.

Sadly the CJEU does not venture any further in defining the test (or to use its own word – ‘criterion’) other than to set out that something more than just ‘desirable’ is required, which would lead to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of the Union citizen status.  Cases involving a disability or any other reason that would make a move unreasonable will for the moment need to be construed accordingly.

Lastly, I was particularly looking forward to the answer to the third question as I thought that it may provide further guidance to the public interest/policy type arguments in criminal deportations.  You may recall Samina Iqbal’s post on Omotunde, which analysed the impact of Zambrano on a deportation and best interests of the child case.  The tribunal in Omotunde did not venture too far either in defining what these considerations might be (see Para 32) and since the CJEU in Dereci only looked at the first and fourth questions, we’ll need to wait a little more before guidance is set on when and how public interest/policy provisions can interfere with Article 20 rights – assuming we can succeed in establishing the Article 20 rights first!

Rules...

The Government has finally gotten around to amending the Immigration Rules to make them a bit less human rightsy looking. This follows a number of pledges from David Cameron, Theresa May and Damian Green to do so. Paragraph 395C of the rules is to be deleted, as predicted here on Free Movement some time ago. It is, though, a futile exercise in window dressing. The rule has benefitted not a single person as far as I am aware and the UK’s human rights obligations are unaffected by the change.

The amendment is being brought into effect by Statement of Changes HC 1733 and will come into effect on 13 February 2012.

Paragraph 395C at the moment reads as follows:

This is another of those frustrating appeals which characterise – and, some may even think, disfigure – certain aspects of the work in the immigration field. Here we have one of those whirligig cases where an asylum seeker goes up and down on the merry-go-round leaving one wondering when the music will ever stop. It is a typical case where asylum was refused years ago but endless fresh claims clog the process of removal.

This are the first words of his judgment yesterday in the case of R (on the application of TM) v Secretary of State for the Home Department [2012] EWCA Civ 9. One of the subheadings in the judgment is actually entitled ‘The depressing story in more detail’. Fifteen fresh asylum claims were apparently submitted by the same appellant, an Ahmadi from Pakistan, between 1998 and 2008, and that does not include the attempt to amend the judicial review grounds at a late stage to include the reasoning in the landmark Supreme Court judgment HJ (Iran) in the challenge. This prompted the unnecessarily acerbic suggestion that the carousel was kept turning by Counsel, Manjit Gill QC. An alternative way of seeing Counsel’s late amendment was as an attempt to stop the carousel by making the current proceedings as final as possible rather than reserving a matter for a future fresh claim, which would otherwise have been inevitable.

Ward LJ’s ire has not been reserved exclusively for appellants. In MA (Nigeria) v Secretary of State for the Home Department [2009] EWCA Civ 1229 (click here for post on this case) he asked rhetorically of the Home Office’s catalogue of errors ‘is this the way to run a whelk store?’. The merry-go-round analogy first appears in his judgment in RM (Zimbabwe) v Secretary of State for the Home Department [2011] EWCA Civ 428 (click here for post) and was directed in that case at the astonishing asylum appeal process that has been created by government.

This sort of case, where an asylum claimant has been up and down the court process several times, will no doubt undermine public confidence in the asylum system. An alternative way of looking at it — likely to be something of a minority viewpoint — is that the anxious scrutiny clearly given to such a case is entirely appropriate in the context of a potentially life or death decision for the claimant and that the high level of scrutiny gives confidence that the claim has been properly and exhaustively examined.

The agreement was in place from at least 1995 through to November 2011, when the Children’s Commissioner discovered the existence of the agreement. At this point the practice was halted immediately by the new Chief Executive of UKBA, the inappropriately named Rob Whiteman.

The practice of returning unaccompanied children with no welfare assessment is so obviously in breach of the duty to safeguard and promote the welfare of children imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 that it beggars belief that UKBA officials continued with the practice. The practice was also obviously in breach of all the UKBA guidance to its staff about trafficking, which encourages staff to be proactive and alert in seeking to identify potential victims of trafficking.

Not only that, but the investigation found that the UK Border Agency is still detaining children despite Government commitments to the contrary:

The report finds that children are in fact not currently being held for the ‘shortest appropriate period of time’. Rather they are detained whilst significant interviews that will inevitably bear on their prospects of being granted permission to stay in the UK are conducted. From the cases we have considered in preparation of this report, we find that the local authority is only informed of the child’s arrival several hours after initial detention and well into the interviewing process. The report concludes that interviewing children in depth immediately on arrival is unnecessary and not in their best interests and should be reconsidered.

Even where children said that they were tired or ill UKBA staff would apparently carry on regardless and press on with further interviews without referring the child to social services. The report identifies the following failings:

• Children are generally not fit for interview due to illness, hunger, tiredness, fear or a combination of these factors.
• The length of time between being placed into detention and release into care is too long. This is due to both the numbers of interviews routinely undertaken and the waiting times between the interviews.
• Telephone interpreting is generally used at the interviews and is not, in our view, ‘fit for purpose’.
• Children are in practice unable to instruct a legal representative or in most cases have an independent Responsible Adult present during interviews and yet the interviews can be relied upon by UKBA in the asylum decision.
• Even in the absence of a legal representative or independent adult, children are required to sign the screening interview record, confirm its contents are correct and confirm that they have understood legal warnings and instructions from the immigration officer.

This is all pretty horrifying, and it should inform judges and lawyers when they consider whether weight should be attached to information from screening interviews of unaccompanied children.

The good intentions of Ministers, senior managers and the people who write the UKBA policy documents are all very well, but what matters is what happens on the ground. Culture change is always hard but the UK Border Agency has a long, long way go before it can realistically assert that its staff take children’s welfare seriously.

Haque (adjournment for asylum interview) Bangladesh [2011] UKUT 481 (IAC)

An Immigration Judge is obliged to determine a ground of appeal brought under section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, even if the appellant raises for the first time in his grounds of appeal that he is a refugee. There is no obligation to adjourn any hearing before the First-tier Tribunal in order to allow the appellant to be interviewed by the Secretary of State.

Wusa (para 159A(ii): Connection) Nigeria [2011] UKUT 482 (IAC)

The requirement of a connection between employer and employee in paragraph 159A(ii) of the Immigration Rules, when it applies, is a requirement of a connection going beyond that of employment.

Daby (Forgery; appeal allowed; subsequent applications) Mauritius [2011] UKUT 485 (IAC)

Where an in-country application is refused on the ground that a document is false, and the respondent fails to prove the falsity before a Tribunal, with the result that an appeal against the refusal is allowed:-

(1) the respondent is obliged to comply with the terms of the Tribunal’s decision and make a grant in accordance with the original application;

(2) it may be open to a respondent to raise the question of the falsity of the document in response to any subsequent application.

Mehmud (timing of deportation notice) Bangladesh [2011] UKUT 486 (IAC)

(1) The Secretary of State may serve a deportation decision under s.32 of the UK Borders Act 2007 despite the fact that, unknown to her, the appellant had lodged a notice of application to appeal against conviction out of time.

(2) A notice of deportation can be revoked or the appeal adjourned pending an out of time challenge to the conviction on which automatic deportation depends.

(3) There is a strong public interest in deporting those whose entry has been obtained by fraud and who then participate in a large scale commercial fraud to facilitate illegal entry by use of fraudulent documents.

Aswatte (fiancé(e)s of refugees) Sri Lanka [2011] UKUT 476 (IAC)

1. The Immigration Rules make no provision for the admission of fiancé(e)s of refugees who are in the United Kingdom with limited leave. In FH (Post-flight spouses) Iran [2010] UKUT 275 (IAC), the Upper Tribunal found that the spouse of a refugee with limited leave was in an unjustifiably worse position than the spouses of students, businessmen etc, where the immigration rules make provision for a spouse to enter with limited leave. Unlike such persons, the refugee could not return home to enjoy married life there.

2. By the same token, a refugee cannot return home in order to marry the fiancé(e) and it may be unreasonable to expect the couple to marry in a third country. Where that is the case, and where all the requirements of paragraph 290 of the rules are met, save that relating to settlement, it is unlikely that it will be proportionate to refuse the admission of the fiancé(e).

Kabaghe (removal- no consideration of paragraph 395C) Malawi [2011] UKUT 473 (IAC)

1) A person who has been removed from the United Kingdom pursuant to an immigration decision may not appeal against that decision to the First-tier Tribunal on human rights grounds (except where a human rights/asylum claim has been certified as clearly unfounded.

2) The statutory jurisdiction to consider whether an immigration decision is in accordance with the law includes consideration of whether the decision has been made fairly, because there is a public law duty on the Secretary of State to act fairly.

3) Where an appellant challenges a removal decision on the basis that it is unlawful and unfair, and gives an apparently credible account of the treatment constituting the unfairness, the judge is entitled to expect some form of evidential response from the respondent, identifying what happened and what factors informed the decision making. As the AIT held in EO (Turkey) [2007] UKAIT 00062, the respondent should demonstrate that the relevant considerations in paragraph 395C of HC 395 were taken into account, in reaching the decision that the appellant should be removed.

Mumtaz (s.85A commencement order : adjournment hearing) Pakistan [2011] UKUT 472 (IAC)

The transitional provision in article 3 of the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011, concerning the commencement of s. 85A of the Nationality, Immigration and Asylum Act 2002 (Matters to be considered: new evidence: exceptions), adopts an unusual approach, in making the applicability of that section turn on whether there has been a hearing before the commencement date (23 May 2011). Whatever the problems such an approach may cause, it is plain that, for the purposes of article 3, an oral hearing at which an application for an adjournment was considered by a judge (and granted) was a hearing for the purposes of article 3, with the result that section 85A did not apply, so as to restrict the evidence that the judge could consider at the substantive hearing.

Trouble in Greece

In the case of NS v UK (C-411/10) (see here for FM’s earlier alerter post), the Court of Justice of the European Union (CJEU) held that the transfer of an asylum-seeker from one EU Member State to another under the Dublin II regulation is not permitted where a failing asylum system in the receiving State creates a risk of inhuman or degrading treatment. The case is one of a series of cases brought in relation to the difficulties faced by asylum-seekers in the EU.

The applicant was an Afghan asylum-seeker residing in Britain who first entered the EU through Greece.  He resisted his transfer to Greece under the Dublin II regulation on the basis that the asylum situation there (described by UNHCR as a ‘humanitarian crisis’) would lead to a breach of his fundamental rights.  The Dublin II regulation determines the Member State responsible for examining an asylum claim within the EU.  It provides that, under normal circumstances, an asylum-seeker’s application should be determined by the first Member State in which they arrive and includes a mechanism for removal to that country. The Dublin system is based upon ‘mutual trust’, an assumption that all Member States respect and implement EU law, including the protection of fundamental rights.

The CJEU’s judgment emphasises that mutual trust is essential to the Common European Asylum System but recognises that mutual trust cannot be blind trust where breaches of fundamental rights are concerned. The Court therefore held that a Member State is prohibited from transferring an asylum-seeker to another Member State under the Dublin II regulation:

 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter. [para.94]

In practice, this means that removal will be unlawful in very limited circumstances. Only a real risk of a breach of Article 4 of the Charter will be sufficient to meet the test.  It is clear that even serious breaches of EU Directives which lay down minimum standards for the reception and treatment of asylum-seekers will not amount to grounds for resisting transfer under Dublin II unless they also constitute a breach of Article 4.

The CJEU ruled out the use of a conclusive presumption that an asylum seeker’s fundamental rights will be respected upon return to another Member State.  However, Member States are not prevented from operating a rebuttable presumption.  It appears that the burden of rebutting the presumption lies on the asylum-seeker.  It is less clear just what evidence the asylum-seeker must present in order successfully to rebut it.

The applicant in this case was assisted by the judgment of the European Court of Human Rights (ECtHR) in MSS v Belgium and Greece which held: (1) that the failing asylum system in Greece posed a real risk of refoulement, (2) that living and detention conditions for asylum-seekers in Greece amounted to inhuman and degrading treatment and (3) that because the Belgian authorities knew or ought to have known these facts, they breached Article 3 of the European Convention on Human Rights (equivalent to Article 4 of the Charter) by returning the applicant to Greece.

The CJEU points out the sources of evidence considered by the ECtHR in MSS v Belgium and Greece enable Member States to assess compliance with fundamental rights.  The CJEU specifically refers to Commission reports evaluating the Dublin system that are indirectly addressed to Member States through their participation in the Council of the European Union.  It also refers to correspondence between UNHCR and the responsible Belgian minister.  The sources referred to by the CJEU serve to hilight the disparity in information and resources available to asylum-seekers by comparison with Member States.  This is the problem posed by a rebuttable presumption of compliance with fundamental rights, where the burden of rebutting that presumption is placed on the asylum-seeker.

The decision in NS v UK tightly limits the circumstances in which transfer under the Dublin II regulation can be resisted.  Nonetheless, the impact of this decision will be considerable given the large numbers of asylum-seekers that enter the EU through Greece.  There is also evidence to suggest that the strict test laid down by the court may also be met by the asylum stuation in other EU border countries such as Italy and Cyprus, almost certainly reopening the litigation over removals to those countries.

The court is clear-eyed about the difficulty of establishing harmonised standards for asylum across the EU.  This may be one reason why the bar for challenging removals is set so high, despite the potentially serious impact on asylum-seekers when harmonising measures relating to their reception and treatment are breached.  Ultimately, the credibility of the Dublin system and of the Common European Asylum System itself is contingent upon harmonised substantive and procedural standards for asylum.  In reality, that this is far from being achieved is a significant cause behind the secondary movement of asylum-seekers within the EU; precisely the issue the Dublin II regulation seeks to address.

Youth unemployment in the UK increased by almost 450,000 in the period from 2004 Q1 to 2011 Q3, from 575,000 to 1,016,000. Over the same period, numbers of workers from the A8 countries grew by 600,000. Correlation is not, of course, proof of causation but, given the positive employability characteristics and relative youth of migrants from these countries, it is implausible and counter-intuitive to conclude – as the previous Government and some economists have done – that A8 migration has had virtually no impact on UK youth unemployment in this period.

It really is nothing more than nastiness, akin to rumours and lies about immigrants being dirty, causing crime, causing racism, stealing women and stealing jobs. Oh, hang on a minute…

I’ve been playing withconducting serious research on The Interwebs and have some alternative theories to explain the rise in youth unemployment:

• The name Oliver has become much more popular since 2004 as a baby name. This is surely no coincidence: the increase must be looked into as a cause of youth unemployment and further research is required.
• The RSPB reports that the Woodlark population is recovering and has been moved up from the red to the amber endangered list. A coincidence that youth unemployment has increased at the same time? Don’t be so naive! These innocent seeming birds are a fifth column.
• If you look at the left hand ridge of the Matterhorn in the above image, you can see a startling similarity with the Migration Watch graph on youth unemployment. A coincidence? I think not! This mountain should be pulled in for questioning immediately.
• The number of times I’ve begun sentences with the words ‘if it were up to me…’ since 2004 has been increasing year on year, and having sat down to plot occurrences I am pretty sure that there must be a link to youth unemployment. I blame myself, and will try and stop. That should sort things out.

I wonder if the Daily Mail will be covering my new report?

Alternatively, if you want to see some proper debunking, see Matt Cavanagh in the New Stateman and the new National Institute of Economic and Social Research report out today on employment and immigration, which says there is no link.

The case concerned a 16 year old Jamaican national who had made an application to the ECO in Kingston for leave to enter under paragraph 297 of the Immigration Rules to join her mother in the United Kingdom.   The application was refused on the ‘sole responsibility’ ground.   There was no reference made to section 55 in the refusal decision.

Before the Immigration Judge, T’s counsel, one of this post’s authors, served on the court operational guidance instructions which referred to the duties of ECOs under section 55 and the appeal was allowed, with the agreement of the Home Office Presenting Officer, as not being in accordance with the law and with directions that the decision should remitted back to the ECO.   However, whatever the HOPO at the hearing had thought to be the proper result, the Senior Presenting Officers’ Unit immediately appealed the determination on the basis that the ECO was not bound by any duty to consider section 55 as T was in Jamaica and not in the UK.

The Upper Tribunal found that the Immigration Judge did make an error of law in allowing the appeal on this basis.  The headnote to T states:

(i) Section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to children who are outside the United Kingdom.

(ii) Where there are reasons to believe that a child’s welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the “exclusion undesirable” provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.

(iii) When the interests of the child are under consideration in an entry clearance case, it may be necessary to make investigations, and where appropriate having regard to age, the child herself may need to be interviewed.

(iv) Where the appeal can be fairly determined on the merits by the judge, it is inappropriate to allow it without substantive consideration simply for a decision to be made in accordance with the law.

(v) It is difficult to contemplate a scenario where a s.55 duty is material to an immigration decision and indicates a certain outcome but Article 8 does not.

The statutory guidance referred to by the Upper Tribunal at (ii) above is that of November 2009 entitled Every Child Matters, Change for Children.  At paragraph 2.34 of the guidance it states

The statutory duty in section 55 of the 2009 Act does not apply in relation to children who are outside the United Kingdom.  However, UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that require attention. In some instances international or local agreements are in place that permit or require children to be referred to the authorities of other countries and UK Border Agency staff will abide by these.

This all seems clear enough and in fact it appears that UKBA’s overseas staff had indeed given due regard to the ‘spirit’ of this duty:  See, for example, Chapter 8, Annex M of the UKBA’s IDIs of July 2011 (‘Children’) which refers to paragraph 297 and also the ECO guidance on General Grounds for Refusal, both of which expressly direct ECOs to apply section 55.

The Upper Tribunal also held that

…where there are reasons to believe that a child’s welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the “exclusion undesirable” provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.

First Tier Tribunals will now be very slow to remit cases for further consideration by the UKBA.   The Upper Tribunal perhaps unsurprisingly cited the Court of Appeal’s judgement in AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191 in support of its decision in which it was held that

…compliance with the s. 55 duty is a matter of substance rather than form, and if the decision maker’s mind is directed to the situation of the child under the rules, Article 8 ECHR or s.55, it is difficult to contend that there has no consideration of the statutory duty in substance.

AJ was the subject of one of FM’s recent posts and a concern raised there can be reiterated here: if a section 55 duty does not apply and a First Tier Tribunal is dealing with an ECO case involving children, one wonders how successfully it can place itself in a position to deal with a child’s bests interests when it cannot itself take proactive steps to gather evidence. This problem is all the more acute in entry clearance appeal hearings where there is no effective mechanism whereby the voice of those children can be heard.

Interestingly in this particular case, before the ECO took the decision to refuse T’s application he had telephoned T’s Jamaica-based father to ask for his point of view on the question of ‘sole responsibility’ and he had informed the ECO that he supported T and had had involvement with her upbringing.  The ECO had not thought to contact either T’s guardian in Jamaica or anybody else for their side of the story.   What makes the Upper Tribunal’s decision notable is that despite it determining that ECO’s have no statutory duty under section 55 and arguably fusing the ECO’s duty to comply with the ‘spirit’ of section 55 with their obligations under Article 8, it stated that the ‘best interests principle includes some requirement to sufficiently explore disputed material’ and that T should at least have the benefit of a telephone interview where she can comment on what her father had to say about her circumstances.

T was therefore given her voice albeit midway through the appeal process and following an interview between T and ECO she was granted leave to enter under Article 8.  This sounds like a strict section 55 duty to me.   However, saying that, there will unfortunately be few if any children seeking leave to enter the United Kingdom to join a parent who will have the benefit of directions given to an ECO by the President of the Upper Tribunal expressed in such helpful terms.  For those without the benefit of such directions, it will be up to their representatives as part of the application process itself to remind ECOs that an absence of a statutory duty does not mean that considerations of the child’s best interests can be ignored.

Naval (sic) gazing

Regular visitors to the website will have noticed some changes over the Christmas period. A second column has been introduced on the right with Renaissance Chambers and HJT Training information, with both of which the editor is personally associated. The About the blog page has been slightly rewritten to make clear who the main contributors are and contributor guidelines have also been posted up for those interested in submitting occasional articles. A lawyers’ links page and a resources page have been added and it is hoped that further useful bits of information for lawyers will follow.

The full text of posts is now not visible from the main page, only excerpts. This may not be popular with some readers as it does add an additional click to get the full content, but it was felt that the length of some posts meant that interesting previous posts were not easy to see at a glance for occasional but regular visitors. Having excerpts rather than full text will also make it clearer which articles are of most interest to readers which will hopefully improve content over time. Feed and emails will continue to go out unabridged, though.

The blog is going to be offline for a while at some point in the next few days as the hosting provider is changed. Hopefully this will be a fairly smooth process and only take a few hours, but these things have a habit of going wrong. This should help with the page load times.

Do leave comments if you have feedback, suggestions (preferably constructive ones!) or something isn’t working properly.