Tribunal Judge Peter Lane appointed Justice of the High Court

The Queen has been pleased to approve the appointment of Tribunal Judge Peter Richard Lane to be a Justice of the High Court with effect from 2 October 2017 consequential to the retirement of Sir Michael Burton. The Lord Chief Justice will assign Tribunal Judge Peter Richard Lane to the Queen’s Bench Division. Notes to editorsTribunal Judge Peter Richard Lane, aged 64, will be known as The Honourable Mr Justice Lane. He was admitted as a Solicitor in 1985. He was appointed as a fee-paid Immigration Adjudicator in 1996, as a salaried Immigration Adjudicator in 2001, as a Vice President of the Immigration Appeal Tribunal in 2003 (becoming a Senior Immigration…

21st August 2017 By Colin Yeo

The Theis case: immigration and nationality law for adopted children

The story of Patrick Thies, a US NHS surgeon who had to return to the US to apply for a new visa for his two adopted children while his British wife and biological son remained in the UK, made the news a couple of weeks ago. Immigration and nationality law as it relates to international adoption is undoubtedly complex and a topic with which only a few practitioners are familiar. There are numerically very few international adoption cases, after all. The inevitable cross over with family law does not make it any easier. This blog post provides an overview of the subject. Types of adoption The first thing to note…

21st August 2017 By Nath Gbikpi

Upper Tribunal provides guidance in cases of judicial bias

In Sivapatham (Appearance of Bias: Sri Lanka) [2017] UKUT 293 (IAC) (7 July 2017) frustrated novelist and president of the Upper Tribunal McCloskey J considers the law surrounding judicial bias in the tribunal. As with previous exponents of the art (see Denning LJ, or Moses LJ), judgments of the President are almost always entertaining on some level, written with eloquence and a sense of the dramatic, in ornate prose. This determination is no different, and brings together important guidance on the steps to be taken where judicial bias is alleged, and the relevant legal principles for a court hearing any such allegation. The Sivapatham allegations The particular facts of the…

18th August 2017 By Nick Nason

A genuine couple can enter in a marriage of convenience, says High Court

A couple may enter into a “marriage of convenience”, even if they are in a genuine relationship. This was, in summary, the finding of the High Court in the case of Molina, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWHC 1730 (Admin). Background The Appellant, Mr Molina is a Bolivian national. He entered the UK illegally in April 2007 using a false Bolivian passport. In April 2013, he met an Italian national, Ms Salguero, and they entered in a relationship in October 2013. They moved in together in September 2014 and planned to get married on 19 May 2015. On 26 February…

16th August 2017 By Nath Gbikpi

Study finds asylum judges fail to assist vulnerable appellants

Really interesting study, which should be carefully considered in the Immigration and Asylum Chambers. …There are clearly dangers to an overly rule-bound judicial approach, as conveyed by Conley and O’Barr’s (1988) description of ‘the proceduralist judge’ whose ‘high priority on maintaining procedural regularity’ (498) ‘may become condescending or sarcastic’ (500) and may present the law as ‘remote and inaccessible’ (502). Yet our findings raise concerns over the inequitable use of procedural discretion when it is afforded to judges. Substantive discretion – that is a judge’s freedom to reason and decide without encumbrance – is a different matter and a central requirement of judicial independence. We have demonstrated, however, that where…

15th August 2017 By Colin Yeo

Job ad: Crowley & Company

Crowley & Company is a well-established Cardiff firm specialising in asylum, human rights, immigration and nationality law.  We seek an experienced caseworker to join our small specialist team. We are looking for someone who is competent in conducting all tasks permitted under the Law Society IAAS Level 2 (accreditation to this level essential).  You should have a wide experience in lodging asylum and human rights claims and appeals as well as private immigration.  Additionally you should also have a good knowledge and understanding of the changes to immigration and asylum law and practice. We conduct both private and publicly funded work and have been awarded the Specialist Quality Mark (SQM)….

15th August 2017 By Free Movement

How to correct a mistake in a Country Guidance case

What happens where the Upper Tribunal makes a mistake in a Country Guidance case? And in what circumstances will the Court of Appeal have jurisdiction to hear an appeal against an Upper Tribunal decision that has already been remitted to the First Tier Tribunal? Both of these interesting issues crop up in AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 (11 July 2017). The Case of AA AA was an Iraqi who claimed asylum in the UK in 2009. His appeal has now been in the court system for over 8 years (and counting). The initial application was rejected and several appeals dismissed until…

14th August 2017 By Nick Nason

Virtual hearings to be trialled in immigration tribunal from October 2017

To make sure we reduce inconvenience and cost to our users and provide greater flexibility and access to our services, we must deal with cases in the most efficient and proportionate way. One of the ways in which we are doing this is the expansion of video and telephony links to provide remote access either into a physical court room or into the new design of a ‘virtual court room’. The use of video links already allows victims and vulnerable people to take part in criminal proceedings without having to meet the defendant face-to-face. Telephone conference technology is also already used (to a limited degree) to progress and manage cases…

11th August 2017 By Colin Yeo

Article 3 and the extradition of a British national to Taiwan

The Supreme Court in the case of the Lord Advocate (representing the Taiwanese Judicial Authorities) (Appellant) v Dean (Respondent) (Scotland) [2017] UKSC 44 considered the first occasion on which Taiwan has sought to extradite a British national. On appeal from the Appeal Court of the High Court of Justiciary (‘the Appeal Court’) the Supreme Court considered the correct test for Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) within extradition cases and, in doing so, it reviewed the prison conditions that may reach the Article 3 threshold. This case may extend beyond extradition cases and could be useful guidance for other cases including…

11th August 2017 By Chris Desira

UPDATED: Home Office makes changes to Appendix FM Minimum Income Rule following MM case

On 20 July 2017 the Home Office published changes to the Immigration Rules intended to give effect to findings made by the Supreme Court in MM (Lebanon) & Others v the Secretary for the Home Department [2017] UKSC 10 on the Minimum Income Requirement. The new rules come into effect on 10 August 2017, coinciding with the publication of new Home Office guidance explaining how the changes should be applied. Headline changes The main changes to the Minimum Income Requirement policy are as follows: Other sources of income will be considered to meet the Minimum Income Rule in certain circumstances Where other sources of income are relied upon the applicant,…

10th August 2017 By Chris Desira

Syrians can now upgrade to full refugee status: new form issued

Particularly relevant to Syrians who were not granted formal refugee status and instead got the lesser status of Humanitarian Protection: This form is for people resettled under the Vulnerable Persons Resettlement Scheme or the Vulnerable Children’s Resettlement Scheme who wish to request their status in the UK is changed from Humanitarian Protection to refugee status. Source: Request to change humanitarian protection status to refugee status – GOV.UK

10th August 2017 By Colin Yeo

UK’s Home Office issues $118m digitisation tender for immigration

Britain’s Home Office has issued a £91m ($118m) tender for immigration services using biometrics and the digitisation of supporting evidence. The tender covers how up to 780,000 people either extend their stay in the UK, settle or pursue British nationality. I’m sure this will be a resounding success, brought in on budget, on time and will be completely prepared for Brexit. Source: UK’s Home Office issues $118m digitisation tender for immigration | Planet Biometrics News

10th August 2017 By Colin Yeo

Operation Nexus police/immigration joint working unsuccessfully challenged in High Court

In The Centre for Advice On Individual Rights In Europe v The Secretary of State for the Home Department & Anor [2017] EWHC 1878 (Admin) (21 July 2017) the excellent AIRE centre brought a challenge to the way Operation Nexus operates in respect of European and EEA nationals. Operation Nexus has been covered previously by Free Movement, most recently reporting on the belated released of guidance, with calls for both evidence and funding for this recent challenge publicised via the blog. What is Nexus? As detailed in previous writing on the subject, and as set out in this judgment [6] Operation Nexus has three strands or elements; only the first…

10th August 2017 By Nick Nason

Full day EU immigration law conference: Glasgow, 8 September 2017

Following a great deal of interest on the Free Movement Forum about a members meet up, Bilaal Shabbir of MBS Solicitors in Scotland has taken the initiative to arrange this in the form of an event in Scotland. An EU themed immigration law conference has now been arranged and will be hosted in Glasgow in an attempt to unite Scottish and English practitioners in this field. RECENT DEVELOPMENTS AND NEW PERSPECTIVES FROM THE UK’S LEADING PRACTITIONERS AND ACADEMICS WHEN: Friday, 8th September 2017. Registration will open from 9am and the event will close around 4pm followed by an opportunity to network. There will be a lunch break between 12:45pm and…

9th August 2017 By Colin Yeo

New official Administrative Court judicial review guide for 2017

Detailed legal guidance on bringing a judicial review case in the Administrative Court.The July 2017 edition reflects legislative and practice changes relevant to the Administrative Court over the last year. Includes guidance on: starting a claim applying for permission for judicial review substantive hearings remedies case management specific practice points ending a claim costs appeals The guide also includes contact details for the court, information on forms and fees, and addresses for serving documents on government departments. Would be nice to see an equivalent for the Upper Tribunal, particularly as there are presumably far more litigants in person and the Upper Tribunal seems anxious about poor standards of legal representation….

9th August 2017 By Colin Yeo

Court of Appeal reiterates effect of orders in the family courts on deportation decisions

The Court of Appeal in GD (Ghana) [2017] EWCA Civ 1126 explained once again what effect residence orders granted by a Family Court have on immigration matters, and criticised both representatives in the First-Tier Tribunal for failing to put the relevant law to the Tribunal. The ‘residence order’ regime has now been replaced with ‘child arrangement orders’ by the Children and Families Act 2014, but this does not change the effect of family proceedings on immigration proceedings. Residence orders are made by a Family Court and determine with whom a child subject to the order will live, and will usually last until the child is 16 years of age. A decision-maker…

8th August 2017 By Paul Erdunast

Court of Appeal considers revocation of deportation order where deportee returns early in breach of the order

In SSHD v SU [2017] EWCA Civ 1069 (20 July 2017) the Court of Appeal considered for the first time the unusual case of an individual who had been deported from the UK, returned in breach of the order, and then applied for its revocation having established a private and family life during the subsequent period of unlawful residence. The case clarifies the applicable rules in revocation cases and provides further evidence, if it were needed, of the complexity of the relevant rules, with two differently constituted tribunals failing to consider two key (albeit very recently instituted) provisions. Facts In February 1998 the Secretary of State (SSHD) made a deportation order…

7th August 2017 By Nick Nason

How expensive are UK immigration applications and is this a problem?

The cost of making an immigration or nationality application has risen extremely steeply in recent years. Annual increases of 20% or 25% per year are now standard, bringing the current cost of an application for Indefinite Leave to Remain in 2017 to £2,297. The actual cost of processing such an application is £252, so the Home Office is generating considerable income from each application. The cost of settlement is only one of the last steps in a long journey of applications, though. The total costs of applying to enter the UK as a spouse, for example, are much higher once all the different applications and fees are taken into account:…

3rd August 2017 By Colin Yeo

How complex are the UK immigration rules and is this a problem?

One of the fundamental principles of the rule of law is that the law “must be accessible and so far as possible intelligible, clear and predictable” (Tom Bingham, The Rule of Law, 2010). The reasons for this should be self evident. Just as it is impossible to play a sport fairly without knowing the rules, so it is impossible to live life fairly without knowing the law, or at least being able to find out what it is. Immigration law is anything but accessible, intelligible, clear and predictable. Accessibility: what does immigration law say? The first issue with immigration law is finding out what it says. Lord Neuberger, outgoing President of…

1st August 2017 By Colin Yeo

May 2017 immigration update podcast

Welcome to the May 2017 edition of the Free Movement immigration update podcast. This month I’m starting with the current waiting times for immigration appeals, moving on to give some quick mentions to some big blog posts we put out in May and then covering a load of cases from Strasbourg, the CJEU, several from the Court of Appeal and then quite a few at tribunal level as well. The material is all drawn from the May 2017 blog posts on Free Movement. If you would like to claim CPD points for reading the material and listening to this podcast, sign up here as a Free Movement Member. There are now over 40 CPD…

31st July 2017 By Colin Yeo

MAC to examine the role EU nationals play in the UK economy and society

Yesterday, 27 July 2017, the Home Secretary commissioned the Migration Advisory Committee to examine the role EU nationals play in the UK economy and society. Amber Rudd has commissioned the Migration Advisory Committee (MAC) to examine the British labour market, the overall role of migration in the wider economy and how the UK’s immigration system should be aligned with a modern industrial strategy. The commission represents an extremely important piece of work, with free movement ending when we exit the EU. Plans for the UK’s future immigration system are being developed which will enable the government to control the flow of migration from Europe. The Home Office will ask the MAC to focus…

28th July 2017 By Nath Gbikpi

New Home Office Policy Guidance for British Nationality

The Home Office today published a new collection of guidance documents used by the UK Visas and Immigration service when deciding applications for British nationality. These seem to have replaced the Nationality Instructions with, it seems, no guidance on what has been carried over, changed or dropped from the Nationality Instructions: Section 1: Requirements and considerations common to all types of British nationality This section contains information on common aspects of nationality policy and processes that apply to the applications for all types of British nationality. Adoption: nationality policy guidance Assessing ordinary residence: nationality policy guidance Domicile: nationality policy guidance British nationals: nationality policy guidance Deprivation and nullity of British citizenship:…

27th July 2017 By Chris Desira

What is the law on the deportation of non EU foreign criminals and their human rights?

Deportation proceedings pit the rights of the individual against those of the state, appointed guardian of the public interest. And as very clearly stated in primary legislation, the deportation of foreign criminals is in the public interest. The relevant law in this area is rent through with politics, shifting relentlessly with headlines, changes to rules or legislation, and the latest decisions of the courts. The shifts over the past 5 years have been unremitting. We consider the recent history of deportation law in the UK, the individuals who will be subject to these rules, and the arguments available to those seeking to challenge decisions to deport them. A brief and…

27th July 2017 By Nick Nason

Supreme Court confirms that burden for proving marriage of convenience rests with Home Office

The Supreme Court has handed down its judgement in the case of Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland) [2017] UKSC 54. In unanimously allowing the appeal, the Supreme Court ruled that the burden of proof of establishing a ‘marriage of convenience’ falls on the Home Office. The court therefore concurred with the previous rulings of the Court of Appeal in the cases of Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14 and Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198 The Appellants are Ms Sadovska, a Lithuanian national, and Mr Malik, a Pakistani national. Ms Sadovska, having lived and…

26th July 2017 By Nath Gbikpi

Home Office cracking down on entry of amateur cricketers

The Home Office appears to be cracking down on the entry of foreign amateur cricketers and sportspeople. Emails released by the Home Office under a Freedom of Information request suggest that unpaid amateur cricketers who might in future wish to earn a living from their sport or even any under 17 player who has played at state, province, territory or national team level, paid or unpaid, should be barred from entry to play as an amateur in the UK “so as to protect opportunities for resident sportspeople who are seeking to make a current or future liivng in that sport” and “prevent the displacement of settled workers.” The same approach…

26th July 2017 By Free Movement

When will a foreign adoption be recognised in common law for immigration purposes?

In W v SSHD [2017] EWHC 1733 (Fam) (07 July 2017) a married couple resident in the UK on a Tier 2 visa attempted to bring their 2-year-old adoptive son, V, to join them from Nigeria. The application they made for him to enter as a Points Based System dependent was rejected after the Secretary of State refused to recognise the currency of the Nigerian adoption document. As the couple were unable to satisfy any of the available statutory routes to demonstrate the adoption in the UK, the only option available was to apply for recognition of the adoption at common law. Such an order would have the same effect…

25th July 2017 By Nick Nason

April 2017 immigration update podcast

Welcome to the April 2017 edition of the Free Movement immigration update podcast. This month we cover the increase in immigration fees, several nationality law issues, run though the most important cases we saw in April and end with some mentions for some new or amended Home Office policy documents, including on permanent residence applications, and for a mega-post on the general grounds for refusal in the immigration rules. The material is all drawn from the April 2017 blog posts on Free Movement. If you would like to claim CPD points for reading the material and listening to this podcast, sign up here as a Free Movement Member. There are now over 40 CPD…

24th July 2017 By Colin Yeo

Half price summer sale on all Free Movement group memberships

We’re running a summer sale until 11 August 2017 on all new group memberships of up to 50 members: half price for the first year. The codes to use are when making your purchase to apply the discount are: Small groups of 10 or less use code SUMMERSALES Medium groups of up to 20 use code SUMMERSALEM Large groups of up to 50 use SUMMERSALEL The codes expire on 11 August 2017 so make sure you sign up before then. This is the cheapest Free Movement has ever been available: for a group of 50 members it works out at just £20 each for a whole year. Members receive: Full…

21st July 2017 By Colin Yeo

When might an appeal continue even though Home Office withdraws the decision?

In the case of ZEI & Ors (Decision withdrawn – FtT Rule 17 – considerations : Palestine) [2017] UKUT 292 (IAC)  the Upper Tribunal, chaired by Mr Ockelton, has considered the application of rule 17 of the procedure rules. This rule provides that where the Home Office withdraws a decision which is under appeal, the appeal will normaly be treated as withdrawn: 17.—(1)    A party may give notice of the withdrawal of their appeal— (a)     by providing to the Tribunal a written notice of withdrawal of the appeal; or (b)     orally at a hearing, and in either case must specify the reasons for that withdrawal. (2)     The Tribunal must…

20th July 2017 By Colin Yeo

Tribunal decides wasted costs orders cannot be made against Home Office representatives

In the case of Awuah and Others (Wasted Costs Orders – HOPOs – Tribunal Powers) [2017] UKFTT 555 (IAC) the tribunal has decided that a wasted costs order — an order that a representative personally pay the costs incurred by the other side because of poor personal conduct — cannot be made against a Home Office Presenting Officer. They can however still be made against representatives for appellants. This is not what one would describe as a level playing field on which the same rules and obligations apply to all players equally. The official headnote reads: (i)            The First-tier Tribunal (“FtT”) is not empowered to make a Wasted Costs…

19th July 2017 By Colin Yeo

Expert witness wins apology and payment from Legal Aid Agency | Law Society Gazette

The Legal Aid Agency has been told to directly apologise and pay £10,000 to an expert witness in immigration cases for causing him distress, inconvenience and financial loss by excessively auditing his bills. In a report seen by the Gazette, the Parliamentary and Health Service Ombudsman says it has decided to ‘partly uphold’ Dr Alan George’s complaint. Middle East expert George had alleged that the agency unfairly denigrated his character, unfairly reduced, capped and refused his fees; and unfairly subjected his work and fees to excessive assessment, review and audit from spring 2011 until autumn 2013. The ombudsman says: ‘We found that LAA did not act transparently when investigating their concerns…

18th July 2017 By Colin Yeo

When wrongly denied a right of appeal, the solution is to appeal

The nature of applications which attract a right of appeal have been greatly restricted by the Immigration Act 2014. In summary, only refused human rights applications, or applications for protection, are appealable. All other applications can be challenged by way of Judicial Review or administrative review only. What is the position of individuals who argue, however, that they were wrongly denied a right of appeal? In the case of Saqib Zia Khan v Secretary of State for the Home Department [2017] EWCA Civ 424, the Court of Appeal found that the appropriate forum to challenge these decisions is the First-Tier Tribunal. Background The procedural history of the case is complex, but…

18th July 2017 By Nath Gbikpi

£48,000 damages awarded to torture survivor for injuries suffered during deportation attempt

Following a seven-day hearing in the High Court, Mr Felix Wamala, a Ugandan national, was awarded £48,000 in damages for the actions of private security guards contracted by the Home Office in seeking to remove him from the UK. This is the case of Wamala v Tascor Services Ltd [2017] EWHC 1461. The judgment is a mammoth one, weighing in at 558 paragraphs plus annexes. Mr Wamala’s claim concerned the use of force, and the threatened use of force, against him by employees of Reliance, now known as Tascor Services Ltd. Tascor is a subsidiary of Capita. As they say on their website: As part of Capita PLC, we have the…

17th July 2017 By Nath Gbikpi

Home Office inspectors release series of reports: highlights for lawyers

For some reason the Home Office has just released a swathe of inspection reports into a wide range of Home Office operations. In practical terms, this makes it impossible for the press to pick out more than one or two stories from the reports and it therefore very effectively reduces scrutiny. Usually I have nothing better to do than sit and read these reports when they are hot off the press (!) but 10 in two days seems excessive even to me I cannot stir myself to read all of them. It is almost as if there is something to hide somewhere in there. Nevertheless, I am going to confine…

14th July 2017 By Colin Yeo

New Refugee Action report slams inadequate, creaking asylum support system

After more than a decade since Limbuela, and three years after Refugee Action, Home Office policy continues to drive asylum seekers into destitution. The Refugee Action report, Slipping Through the Cracks, candidly outlines these failings of the asylum support system. This is hardly the first time these sorts of flaws have been exposed. The whole report features real stories and quotes from the asylum seekers let down by the process, and is well worth a read. The first problem is the decrease in support level over time. Rates used to be set at 70% of mainstream benefits. This meagre level seems princely compared to the current non-emergency (“Section 95”) support…

12th July 2017 By Paul Erdunast

Independent Monitoring Board release critical report on charter flight removals

The Independent Monitoring Board (IMB) has published its annual review of the treatment of returnees during charter flights. It reported four headline concerns: firstly, that force and restraint had been used without due checks and for too long; secondly, that escorts employed by contractors were in charge of selecting which returnees may speak to the Chief Immigration Officer for advice on their legal rights during the flight, and that on one flight the advice itself was delegated to the escorts; thirdly that returnees were taken to Stansted Airport at night on certain flights; and finally that those who wished to use the toilet either on the coach or the aeroplane…

10th July 2017 By Paul Erdunast

What are the terms of the immigration “amnesty” for survivors of the Grenfell Tower disaster?

The Home Office this week published a new policy setting out the terms of a 12 month immigration “amnesty” for survivors of the Grenfell Tower fire. In short, the Government is offering a grant (or extension) of 12 months leave to enter or remain with access public funds included as well as the right to work. Applications must be made before 31 August 2017. There is no formal application form that must be used and no fee is payable, nor is the Immigration Health Surcharge. This policy is additional to the Government’s previous assurance that immigration checks will not be carried out on Grenfell Tower survivors, an assurance reiterated in…

7th July 2017 By Colin Yeo

Can a child stateless by “choice” be registered as a British citizen?

Under the British Nationality Act 1981, a child who is born in the UK and is (and always has been) stateless is entitled to register as a British citizen. See Schedule 2, Paragraph 3: 3 (1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely— (a) that he is and always has been stateless; and (b) that on the date of the application he was under the age of twenty-two; and (c) that he was in the United Kingdom…

6th July 2017 By Nick Nason

New guidance for the public and for professionals on immigration and asylum related legal issues – Bar Standards Board

The Bar Standards Board (BSB) has today published two new guidance documents on immigration and asylum issues. The guidance was developed in collaboration with the Solicitors Regulation Authority (SRA) and the Office of the Immigration Services Commissioner (OISC), and was developed following extensive consultation with consumer organisations and consumers themselves. Its publication follows the immigration roundtable that the BSB held in April. The first guidance document is aimed directly at people seeking legal help. The second is for professionals working with people with immigration and asylum issues, to help them better assist their clients to navigate the legal system. The guidance for the public explains: The different types of people…

5th July 2017 By Colin Yeo
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