New charity created to work on identifying and tracing missing and dead refugees: Last Rights

Many go missing and die across the world during refugee and migrant journeys. The names of most dead and missing are unknown; families untraced, bodies buried in unmarked graves. With those affected we will develop protocols on best practice and procedure, based on international human rights law, for those working with dead and missing migrants to make families and their rights visible and ensure that the rights and dignity of the missing and dead are respected as well as those of the bereaved. The Last Rights project is creating a new framework of respect for the rights of missing and dead refugees and bereaved family members. Catriona Jarvis, former UK judge…

22nd June 2017 By Free Movement

In depth look at the new Home Office settlement policy for refugees after five years

In March 2017 the Home Office has announced a new policy of reviewing whether all refugees require protection at the end of a 5 year initial period of Refugee Status. This policy is effective for all existing and future applications for Indefinite Leave to Remain (‘ILR’) as a Refugee. This policy has now been effective for three months and, with Refugee Week upon us, it is a good opportunity to delve into it in greater detail. The application process Those recognised as refugees will usually be granted a period of 5 years limited leave. When that leave is due to expire they must apply for ILR. The Home Office gives…

22nd June 2017 By Chris Desira

What does the Queen’s Speech say (and not say) about immigration and EU citizens?

The Queen’s Speech was today. This sets out the legislative agenda for the new Government and lists expected new Acts of Parliament the Government hopes to pass in the coming year. There are reports that this Queen’s Speech may be intended to cover a two year period, but with the likelihood of an early election it may end up being very short indeed. Either way, the agenda is dominated by Brexit to the exclusion of almost everything else. This will be the story of our country for the next decade or so: trying to sort out Brexit to the exclusion of all else. A new Immigration Bill is proposed. However,…

21st June 2017 By Colin Yeo

Athens Refugee Legal Support Project: what is happening on the ground and how to donate

Image (c) Sarah Booker The pilot of the Athens Refugee Legal Support Project has now run for 2 months now. We work out of a community centre in Athens with the support of ILPA and Garden Court Chambers. Weekly reports from UK legal volunteers (solicitors, barristers, case workers) tell a similar story. The Greek asylum service is overburdened. Greek lawyers on the frontline are overstretched and the majority of refugees do not receive any advice or representation prior to receiving the initial decision on their asylum claim. If refused they can expect an excruciatingly long appeal process. To make matters worse, many reside in squats, unable to access accommodation from…

21st June 2017 By Free Movement

What will happen to immigration policy and law following the 2017 General Election?

It is the Queen’s Speech today. This sets out the legislative agenda for the coming Parliament in 2017 and 2018. But no party managed to win an overall majority in the General Election. We have what the political pundits and historians call a Hung Parliament in which there is a party which has more MPs than any other, but not enough MPs to outvote all of the other parties if they all voted together. This is going to make it very difficult for the new Government to pass primary legislation, by which I mean new Acts of Parliament. But any Government needs to look like it is doing something and…

21st June 2017 By Colin Yeo

Should refugees claim asylum upon arrival in their first ‘safe’ country?

“Why don’t asylum seekers stop before they get here?” I have been asked this question many times. There are lots of safe countries on the way, so the argument goes. Why wait until they arrive in the UK to make their claim? They’re not going to get killed in France, after all. The insinuation is that the application for refugee status is cover for the real motive, probably economic, and the UK best serves those ends. With Refugee Week upon us, I wanted to explore this question. A numbers game Firstly, a few facts. During 2016, to the south, 123,370 people claimed asylum in Italy, and 85,244 in France. To…

20th June 2017 By Nick Nason

What is the legal meaning of “refugee”?

This week is Refugee Week. The Free Movement blog is about communicating complex legal issues in immigration and asylum law in a clear way so I have amended and republishing this blog post explaining what a refugee actually is in legal terms. I have also collected together some of our previous blog posts about asylum issues. I hope you find it useful and interesting! I am also making my refugee law ebook freely available for this week. The ebook is a detailed examination of refugee law as it is understood and practiced in the UK. Use code “refugeeweek” as you are making a purchase and a 100% discount will be…

19th June 2017 By Colin Yeo

Supreme Court rules “deport first, appeal later” is unfair and unlawful

In R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 the Supreme Court has struck down “deport first, appeal later” certificates for two foreign criminals. The Home Office had made use of new rules in the Immigration Act 2014 which force some appellants to leave the UK before their appeal takes place, meaning that they are not present to give evidence. Of 1,175 cases in which these powers have so far been used, only 72 individuals attempted to pursue an appeal from abroad. None succeeded. The “deport first, appeal later” rules were originally applied only to foreign criminals facing deportation. However, the Immigration Act…

14th June 2017 By Colin Yeo

Fundraising campaign for refugee family reunion charity Together Now

My brother and his girlfriend are fundraising for the fantastic, small, shoestring charity Together Now. Not a penny is wasted. They work on the practical end of refugee family reunion applications, funding travel costs and sometimes DNA tests and other costs. Parents are sometimes forced to make impossible decisions about how to keep their family safe. Some are forced to leave their children behind as they flee persecution and torture. Once they are granted the right to stay in the UK the first thought of many refugees is to reunite their family. We provide support to parents as they bring their family to join them and help to alleviate some of the practical problems faced…

13th June 2017 By Free Movement

What does the Democratic Unionist Party think about immigration?

Picking through varous manifestos and public statements of the Democratic Unionist Party and its leading members reveals a few clues about the stance of the party on immigration issues. This may prove critical in the lifetime of the coming Government — whether that be days, weeks or months — because it is only with the support of the DUP that any new immigration legislation can be passed and the support of the DUP may be crucial if challenges are brought to immigration rules and regulations laid before Parliament. Before going further, though, bear in mind that immigration law is not a devolved issue so it is not something that parties…

13th June 2017 By Colin Yeo

Tier 2: is it Brexit ready?

Tier 2 is a fortress. Everything about the UK work permit system is designed to disincentivise employers importing migrant labour from outside of the EU. Like a teacher who has lost control of her class at school and exacts revenge on her own children at home, who are occasionally fed and kept in the basement, the Tier 2 system controls what it can. For the time being, this does not include the number of workers who may enter to work from Europe. At last count, 2.24 million European Economic Area (EEA) nationals are employed in the UK without let or hindrance, with no need to obtain permission from the Home Office…

12th June 2017 By Nick Nason

Zimbabwean national unlawfully detained after Home Office fails to serve immigration decision

Substantial damages of £10,500 have been awarded to a claimant who was unlawfully detained for a period of 70 days. The Home Office had failed to serve the Claimant with notice of a decision on his application to vary his leave to remain in the UK before detaining him, rendering his detention unlawful. The case is R (on the application of) Godwin Chaparadza v Secretary of State for the Home Department [2017] EWHC 1209 (Admin). Background The Claimant, a Zimbabwean national, entered the UK on 5 September 2004 with leave to remain as a student. His leave to remain was extended on a number of occasions, the last such extension…

7th June 2017 By Rebecca Carr

Fundraising appeal for Refugee Advocacy Programme in Uganda

Team Gaenor needs your support to ensure refugees fleeing persecution, conflict and oppression can access Pan African Development Education And Advocacy Programme services, which supports and empowers them to rebuild their lives in Uganda. More refugees entered Uganda last year than crossed the Mediterranean: it is one of the world’s fastest growing refugee crises. 4,500 are arriving every day from Southern Sudan, joining those from neighbouring Somalia, Congo, Burundi, Eritrea and Ethiopia.  Against this backdrop, and with continuing cuts to funding for refugee services in Uganda, PADEAP Uganda is more important than ever. We continue to offer training, legal advice, psycho social support. We pioneered and run the only ‘refugee…

6th June 2017 By Colin Yeo

UK unlawfully denies transfer to UK of refugees living for 18 years in Cyprus British Sovereign Base

R (Bashir) v Secretary of State for the Home Department [2017] EWCA Civ 397 The British Sovereign Base Areas (“SBAs”) are small British-run areas on the Cyprus islands that survived the former colony’s independence. The Home Office has taken the position for a number of years that the Refugee Convention does not apply there. The Court of Appeal has unanimously held that in doing so, then-Home Secretary Theresa May acted unlawfully in denying refugees from the SBAs access to the UK. Background facts The claimants had been rescued from a fishing boat in the Mediterranean in 1998. They had been taken to one of the British Sovereign Base Areas in…

6th June 2017 By Thomas Beamont

When must the tribunal allow appeals against Home Office decisions containing errors of law?

Where the Secretary of State makes an error of law in a decision which is then appealed to the tribunal, does the tribunal have to allow that appeal on the basis that the decision contains an error of law? Not unless the decision as a whole is unlawful, finds the Court of Appeal in Singh (India) v Secretary of State for the Home Department [2017] EWCA Civ 362 (24 May 2017). Case outline Mr. Singh’s case was weak. He arrived in 2001 as a visitor for 6 months. He overstayed, and later made two Hail Mary applications in 2010 and 2012 to regularise his stay based on, apparently, little more…

5th June 2017 By Nick Nason

Can a person granted subsidiary protection be transferred under Dublin III?

Case C-36/17: Daher Muse Ahmed v Bundesrepublik Deutschland The EU does not want asylum seekers to ‘shop around’ its Member States. To this end, various Regulations exist to prevent someone who has already claimed asylum in one Member State from subsequently doing so in another. But what if an applicant has claimed before, the result of which was being granted not refugee status, but subsidiary protection (‘humanitarian protection’ in the UK)? The CJEU has replied to a reference from the German administrative court to deliver its answer. Background facts The applicant claimed asylum in Germany. The German authorities found that he had previously claimed asylum in Italy. His application in…

1st June 2017 By Thomas Beamont

Alternative options for EU partners: making an application under Appendix FM

Now that the election manifestos have been officially published we have an indication what Labour and Conservative have planned for EU nationals living in Britain. While the Labour manifesto confirmed a pledge to immediately guarantee existing rights for all EU nationals living in Britain the polls continue to point to a Conservative win, with a manifesto that does not guarantee existing rights but seeks to ‘secure entitlements’. This wording suggests those who have yet to establish a “right of residence” will not be covered by the Conservative pledge. In EU law, any EU national has the right of admission to another Member State and can physically remain in that Member…

31st May 2017 By Chris Desira

UK wrong to deny residence rights for non-EEA family members of dual nationals

The question about what rights are enjoyed by an EU citizen who naturalises as a British citizen becoming a dual citizen is critically important in the context of Brexit. We previously gave some context on why the UK denies dual citizens’ rights under EU law and why many lawyers believe that approach is wrong. This issue was put to the Court of Justice in the case of Lounes C-165/16 has now received a formal Opinion by the Advocate-General suggesting that the UK was wrong to deny EU rights to dual citizens and their family members. Advocate General Opinions The Court of Justice interprets EU law to make sure it is…

31st May 2017 By Chris Desira

Court of Appeal dismisses challenge to rules on Adult Dependent Relatives

The Court of Appeal has dismissed the challenge brought by campaign group Britcits to the restrictive Immigration Rules on the admission to the UK of parents, grandparents and other adult dependent relatives. The case is BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368. On 9 July 2012, the Immigration Rules on parents, grandparents and other dependent relatives were fundamentally changed, making it virtually impossible for them to be admitted to the UK to join a carer. The main stumbling blocks are these paragraphs from Appendix FM: E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must…

30th May 2017 By Colin Yeo

Indefinite detention does not breach ECHR says European Court of Human Rights

Arben Draga v United Kingdom (Application no. 33341/13) Unlike most other European countries, there is no time limit on immigration detention in the UK. In addition, the law does not provide for an automatic judicial review of the lawfulness of detention. Instead, detainees must proactively challenge the lawfulness of their detention. In an admissibility decision of 18 May 2017, the European Court of Human Rights found that this system does not violate the European Convention of Human Rights, an in particular article 5 on the right to liberty. Factual background Arben Draga is a Kosovan national residing in the UK. He was granted refugee status and indefinite leave to remain in December 2001….

30th May 2017 By Nath Gbikpi

The hostile environment: what is it and who does it affect?

What is the hostile environment? The “hostile environment” for migrants is a package of measures designed to make life so difficult for individuals without permission to remain that they will not seek to enter the UK to begin with or if already present will leave voluntarily. It is inextricably linked to the net migration target; the hostile environment is intended to reduce inward migration and increase outward emigration. The hostile environment includes measures to limit access to work, housing, health care, bank accounts and to reduce and restrict rights of appeal against Home Office decisions. The majority of these proposals became law via the Immigration Act 2014, and have since been…

29th May 2017 By Colin Yeo

Crowdfunding campaign for JCWI challenge to “right to rent” scheme

Can untrained landlords and agents tell if you have a legal right to be in the UK? Should unpaid landlords and agents have to do the Government’s job of immigration enforcement for them? If you look or sound ‘foreign’ why would a landlord take the risk of prison or a fine to let to you? JCWI has begun pre-action correspondence to ensure that the Right to Rent scheme is not rolled out further without a full evaluation of discrimination under the scheme and whether or not the scheme is working. Your pledge will help us: Fund our work, and possibly pay for experts, to prepare the evidence we and others have gathered for…

26th May 2017 By Colin Yeo

Country guidance issued between hearing and promulgation will still bind tribunal

Is the First-Tier Tribunal (FTT) bound to take into account a Country Guidance (CG) case that is issued by the Upper Tribunal after the date of the FTT hearing, and after the date the FTT judge signs the determination, but before that determination is promulgated? The short answer, in general, and for the very unfortunate appellant in NA (Libya) v Secretary of State for the Home Department [2017] EWCA Civ 143, is yes. Timeline The Libyan appellant in this case had been refused asylum and appealed against the decision to the tribunal. The appeal was heard by the FTT and allowed. The decision was made on the basis of information…

26th May 2017 By Nick Nason

Court of Appeal: “Particularly where children are concerned, there is no such thing as an average case”

By the tone of this judgment, the Court of Appeal in SSHD v RF (Jamaica) [2017] EWCA Civ 124 appears to be suffering from deportation fatigue, considering ‘yet another case’ [1] involving a foreign national criminal appealing against a decision to deport. It is testament to the high stakes involved, both politically for the Secretary of State, and individually for the foreign national subjects, that these cases are so regularly reaching the highest courts in the land. Exceptional vs Compelling Under Immigration Rule 398, a foreign criminal who has been sentenced to longer than 4 years imprisonment must show ‘exceptional circumstances’ if he or she is to outweigh the public interest in deportation….

25th May 2017 By Nick Nason

Is the triggering of Article 50 a good argument for making a reference to The Court Of Justice now? – Monckton Chambers

Also well worth a read: As all readers of this post will know, the United Kingdom gave notice of its decision to withdraw from the EU on 29 March 2017. Under Article 50 TEU, that means that (subject to a different date being provided for in a withdrawal agreement or an extension by unanimity) the UK will cease to be subject to the Treaties on 30 March 2019.Unless any different provision is made in a withdrawal agreement, the Court of Justice of the EU will cease, on that date, to have jurisdiction to rule on questions of EU law referred to it by UK courts under Article 267 TFEU.Since the…

24th May 2017 By Colin Yeo

EU can point to clear precedents in Brexit court showdown | MLex market insight

Worth a read: The Brexit negotiations are heading for an early battle. The remaining EU states on Monday agreed that the rights of EU citizens living in the UK after its withdrawal should fall under the jurisdiction of the EU Court of Justice, or CJEU. The UK wants to guarantee individuals’ rights, but rejects the oversight of the bloc’s top-tier court in Luxembourg. “The simple truth is: we are leaving,” Brexit secretary David Davis has said. “We are going to be outside the reach of the European court.” European Commission negotiators will be able to cite previous rulings that have set precedents and conditions for granting the CJEU jurisdiction over…

24th May 2017 By Colin Yeo

The case of Stoly Jankovic: what are the 10 and 20 year rules on long residence?

The case of Stoly Jankovic recently attracted a lot of press attention and a great deal of sympathy. He had apparently been living and working in the UK since 1991, for a period of 26 years. How can it be right that he be detained for removal after all that time? Well, the rules on acquiring lawful status after long residence are very tightly drawn and it sounds as if he has fallen foul of them. I have been meaning to write a post on the long residence rules for as long as I can remember, and this seems like a good opportunity. How did Mr Jankovic find himself in this predicament?…

24th May 2017 By Colin Yeo

Recruitment ends tomorrow for 65 new salaried judges of the First-tier Tribunal

An exercise to identify candidates to recommend for the post of salaried judge of the First-tier Tribunal opens today. There are 45 immediate vacancies and 20 that are expected to arise in the near future. Unlike previous exercises for the First-tier Tribunal, which identified candidates for a specific chamber, this exercise will identify candidates who can be deployed to any of the First-tier Tribunal Chambers. This is an excellent opportunity for solicitors, barristers and chartered legal executives from all areas of the professions, as candidates do not need to have previous judicial experience to apply. Most initial assignments are expected to be to the Immigration and Asylum Chamber and the…

23rd May 2017 By Colin Yeo

March 2017 immigration update podcast

Welcome to the March 2017 edition of the Free Movement immigration update podcast. This episode I start with the some general news and updates, I then run through a whole load of cases, most of which I think are Court of Appeal authorities, and then end with a look at Statement of Changes HC1078 and then a few of the new style of more detailed blog posts on the Immigration Rules, this time covering several more of the general grounds for refusal. These have now been collected together into a training course for those who are interested. The material is all drawn from the March 2017 blog posts on Free Movement. If you would…

22nd May 2017 By Colin Yeo

UK law found to be more generous than EU law for jobseekers acquiring permanent residence

The case of GE v. SSWP (ESA) [2017] UKUT 145 (ACC) sets out how the Immigration (European Economic Area) Regulations 2006 (since replaced with the 2016 version), are in some areas, more generous than EU law itself by concluding that an initial right of residence or status as a job-seeker could count towards permanent residence for an EEA national. Background The case is a decision of the Upper Tribunal relating to the entitlement of an EEA benefit claimant to Employment Support Allowance (ESA). The facts of the case will not be of significance in the immigration field, except to note that it was important to establish the EEA nationals statuses…

22nd May 2017 By Chris Desira

No human rights issues to be raised in EEA appeals, confirms Court of Appeal

In September 2015, the Upper Tribunal decided the case of Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC). The decision states that if an appeal is brought in the First-Tier Tribunal against an EEA decision then the only relevant issues that can be raised during the appeal are those directly connected to that EEA decision. Human rights issues, the Upper Tribunal ruled, were not justiciable. This case was covered at the time by Free Movement, where several issues were raised in respect of the reasoning of the tribunal, and the policy of attempting to artificially distinguish between European law rights and other rights guaranteed under domestic human rights…

19th May 2017 By Nick Nason

The interregnum: 11 years without free movement from 1962 to 1973

There was a short period of just 11 years between 1962 and 1973 when free movement of people did not apply in the UK. Other than during that time, businesses and public services have had easy access to workers from other countries. Following Brexit, the UK will be embarking on a similar period. If the full force of UK immigration law is brought to bear on all foreign nationals, this will require major adjustments in economy and society. One wonders how long the interregnum might last this time. This blog post is based on notes for a talk I was due to give last week but had to pull out of…

19th May 2017 By Colin Yeo

Book review: Bureaucracy, Law and Dystopia in the United Kingdom’s Asylum System by John Campbell

The first thing to say about this book is that it has a really excellent and entirely appropriate title. The contents do not fail to deliver. Campbell seeks to place immigration and asylum decision making by officials and judges within a wider context, taking into account not just the internalised processes and self perception of individuals operating (or being operated by) the system but also the institutional and cultural influences at work. Campbell is particularly interested in the role, direct and indirect, of the Home Office at all stages in the process, which he finds to be all pervading. Very little academic research or writing has been done on the…

19th May 2017 By Colin Yeo

Coruscating criticism by President of Home Office behaviour in refugee family reunion case

To summarise, figuratively the Secretary of State does not have a leg upon which to stand either factually or legally. These were the words used by Mr Justice McCloskey, president of the Upper Tribunal, in the judicial review case of Mohamed Al-Anizy. Needless saying, he was not very impressed by the Secretary of State´s behaviour, in this case in relation to her application (or, rather, non-application) of its guidance on family reunion for refugees. Background of the case The Applicant, Mr Al-Anizy, is a husband and father of four children, aged between 3 and 10 years old. The family are Kuwaiti Bidoons. The Kuwaiti authorities issued a warrant of arrest…

19th May 2017 By Nath Gbikpi

Immigration law and policy after the election: unfortunately, the Conservative manifesto tells us what is coming

Some people are posting up comparisons of different immigration policies of different parties. I cannot see the point. The result of the next General Election is a foregone conclusion and has been since Jeremy Corbyn was re-elected leader of the Labour Party. Surprisingly, some on the left even now do not understand this, but the opinion polls are very, very clear. Labour has edged up a little in the latest polls but the gap remains oceanic in scale. And opinion polls historically overestimate Labour support, not underestimate it. So, if we want to know what is going to happen in immigration law and policy after the election, all we have…

18th May 2017 By Colin Yeo

Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 162 (IAC) -Comment by Ian Macdonald QC

Ian Macdonald QC has sent in an interesting note on the controversial Capparrelli determination. For background, see original Free Movement write up here: Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children. Section 1 of the British Nationality Act 1981 (the “1981 Act”), the subject matter whereof is “Acquisition by birth or adoption”, provides: “(1) A person born in the United Kingdom after commencement, or in a qualifying territory on or after the appointed day, shall be a British citizen if at the time of the birth his father or mother is— … (b) settled in the United Kingdom or that territory.” Section 1 came…

18th May 2017 By Colin Yeo

Tribunal rules a Big Issue seller has no right of residence in EU law

Seems like a dubious decision to me on the facts, but it cannot be faulted for rehearsing the relevant law quite thoroughly. The lady in question was earning a steady £50 per week working a 40 hour week and the First-tier dismissed the appeal on the basis that the work was not “genuine and effective”: 19. I considered the totality of the appellant’s family financial circumstances. The appellant’s rent was met by Housing Benefit and she claims Tax Credits of about £150 per week. The appellant’s earnings from selling the Big Issue make up the remainder of the family income and I hold on the balance of probabilities that the appellant’s…

18th May 2017 By Colin Yeo

When can a tribunal be forced to pay the costs of judicially reviewing it?

“Not often” is the answer. Only if the tribunal acts in an improper way. Incompetence or unlawfulness is not sufficient. In this case, R (on the application of Gudanaviciene) v Immigration and Asylum First Tier Tribunal [2017] EWCA Civ 352, an EU national was facing deportation. She appealed the decision to deport but no legal aid was available to assist her and she could not afford to pay for legal representation. A good firm of solicitors, Turpin Miller in Oxford, agreed to take on her case but only to the extent that they would, unfunded, help her apply to the Legal Aid Agency for “Exceptional Case Funding”. Her application for…

18th May 2017 By Colin Yeo

Tribunal gives guidance on general principles in deprivation of citizenship appeals

Interesting case on deprivation of citizenship, not least as the Home Office spectacularly messed up by refusing on an unjustifiable grounds when there was a justifiable one staring them in the face. Official headnote: (i) The Secretary of State has two separate powers of deprivation, exercisable on different grounds, as set out in sub-ss (2) and (3) of s 40 of the British Nationality Act 1981. (ii) The power under s 40(2) arises only if the Secretary of State is satisfied that deprivation is conducive to the public good. (iii) The power under sub-s (3) arises only if the Secretary of State is satisfied that registration or naturalisation was obtained…

17th May 2017 By Colin Yeo

Tier 1 (Entrepreneur) visas: is Britain open for business?

Businesses large and small are the backbone of our economies, and enterprise is the engine of our prosperity. That is why Britain is – and will always be – open for business: open to investment in our companies, infrastructure, universities and entrepreneurs.   –  Theresa May, Davos, January 2017 Entrepreneurs are used to taking risks. And in applying for a Tier 1 (Entrepreneur) visa, they will certainly be taking one. While in the 3 years to December 2016 the UK issued entry clearance to 2,821 holders of entrepreneur visas, and granted in-country extensions of leave in 7,283 cases in the same category, the refusal rate for both applications has consistently…

17th May 2017 By Nick Nason
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