New immigration bail and detention powers introduced 15 January 2018

Significant changes to immigration detention powers and a new status called “immigration bail” come into force on 15 January 2018. The Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) Regulations 2017 commence sections 61(1) and (2) and 66 of the Immigration Act 2016 and most of the immigration bail provisions set out in Schedule 10. As the explanatory note explains: Schedule 10 introduces a new framework for immigration bail, replacing a legal framework containing six different legal statuses (including immigration bail and temporary admission) with a single power of immigration bail. The new immigration bail replaces “temporary admission”: any migrant lawfully in the UK without leave will be on immigration bail…

12th December 2017 By Colin Yeo

Rescue or empowerment? High Court considers definition of trafficking

Most domestic workers would prefer to be recognised as workers than labelled as trafficked, and ask to be empowered rather than rescued. But it is often necessary to plead their cases under the rubric of trafficking to secure their protection from exploitation. Cases involving domestic workers are often of considerable interest to those working on trafficking because the facts are frequently not in dispute and the focus is on the legal definitions. So it was in R (Said Abdelmoneim Ahmed Saadawi v Secretary of State for the Home Department [2017] EWHC 3032 (Admin), where the court held that it was not irrational of the Secretary of State to have concluded that…

12th December 2017 By Alison Harvey

Brexit: settled status and citizens’ rights – what has been agreed?

The European Commission and the UK government have reached a deal to finalise the first phase of Brexit talks. One of three core issues of this phase involved EU nationals’ rights in the UK and reciprocal rights for UK nationals living elsewhere in the EU. This post focuses on what the deal means for EU citizens in the UK. At first sight, what has been agreed in principle does appear to be the “generous” offer originally promised. But as you start delving into the detail, obvious caveats and gaps appear. EU citizens must apply for what the Home Office refers to as “settled status“. This includes people who have already applied…

11th December 2017 By Chris Desira

In case you missed it: the week in immigration news

Free Movement’s pick of the past week’s media reporting on immigration and asylum. Theresa May’s government reached agreement with the European Commission on a first stage Brexit deal, which covers citizens’ rights (charmingly painted by the Telegraph as “the price of freedom”). Brexiteers are already offering interpretations of the deal that are odds with those of the government and the EU-27 (BBC News), and the European Parliament has its own reservations (Politico). Even if the package is approved by the European Council this week, there may be trouble ahead. It comes too late for some. The Guardian hears from EU citizens who have left the UK, and why. Labour’s immigration policy is in…

11th December 2017 By Conor James McKinney

Brexit citizens’ rights deal near completion

In the early hours of this morning the British government and European Commission agreed, to much media fanfare, a joint report on Brexit negotiations. The Commission will now recommend to the European Council – the 27 national leaders – that it should sign off on the deal. A conclusion at the Council’s summit next week that the report represents “sufficient progress” on the terms of divorce would allow the Brexit negotiations to proceed to discussions of the future relationship. The rights of EU citizens in the UK, as well as UK citizens abroad, is one of the main aspects of the deal agreed today. An accompanying joint technical note, earlier…

8th December 2017 By Conor James McKinney

Australian supreme court considers British Overseas Citizenship basically worthless

Just catching up on the Australian High Court (their Supreme Court) case on the ban on dual citizenship for holders of public office. If you have not been following it, the Australian constitution bans dual citizens from holding public office. The nationality laws of many countries, including the UK, automatically confer citizenship on people whether they like it or not. Although it is possible to renounce such citizenships, that is an active step which must be taken. Several Australian Members of Parliament and Senators have discovered that they hold citizenships of other countries – Australia is basically a country full of immigrants, after all – and the Australian High Court…

8th December 2017 By Colin Yeo

New statement of changes to the Immigration Rules: HC309

A Statement of Changes in Immigration Rules HC309 was laid yesterday, 7 December 2017. This note does not aim at detailing all the changes, instead just highlighting the most significant ones. Except where otherwise indicated, these changes will come into force on 11 January 2018, although applications made before 11 January 2018 will be decided in accordance with the Immigration Rules in force on 10 January 2018. General grounds for refusal The “exceptional circumstances” aspect of the general grounds for refusal in Part 9, Appendix Armed Forces, Appendix FM and Appendix V is removed. In particular, the following paragraph is deleted Where this paragraph applies, unless refusal would be contrary to…

8th December 2017 By Nath Gbikpi

Guest post: “these amazing lawyers…”

New research helps practitioners identify best practice in representing female asylum seekers writes Debora Singer MBE, Senior Policy Adviser at Asylum Aid. What do women who have been through the asylum appeals process think of their legal representative? I liked the last experience … everyone was so positive … we’re going to fight, we’re going to win, that kind of attitude. You’ve not been prepared at all so you obviously know it’s not going to go well unless a miracle happens. These voices are captured in Asylum Aid’s latest research, the first in the UK to examine women’s experiences of the asylum appeals process. Through her eyes: enabling women’s best evidence…

8th December 2017 By Debora Singer

The Immigration Act 2014 and the law of unintended consequences

Legislation meant to make life tougher for immigrant families accessing services may instead have brought some small relief. R (U and U) v Milton Keynes Council [2017] EWHC 3050 (Admin) was an application to judicially review Milton Keynes’ decision not to accommodate two Nigerian children, aged seven and eight. under section 17 Children Act 1989 because the local authority believed that their mother had funds to rent in the private sector. The application succeeded, not because the council had arrived at its assessment of the mother’s finances unfairly, but because it failed to take account of sections 20 and 21 Immigration Act 2014. Those sections prevent those without immigration status becoming…

7th December 2017 By John Murphy

A familiar nemesis: the Court of Appeal on “insurmountable obstacles”

R (Mudibo) v Secretary of State for the Home Department [2017] EWCA Civ 1949 is yet another decision of the Court of Appeal grappling with the provisions of those familiar nemeses, section 117B and the “insurmountable obstacles” test in EX.1 of Appendix FM. Much of the judgment is unremarkable with the usual mentioning of “precariousness”, “public interest” and “exceptional circumstances”. That said, the facts differ from the usual cases in this area. Ms Mudibo was a Tanzanian national who had been residing in the UK since 2004, having initially entered as a visitor and never left. An application for leave to remain on the basis of family life with her husband was refused…

6th December 2017 By Bilaal Shabbir

No “genuine and subsisting parental relationship” with children in care

Being able to demonstrate “a genuine and subsisting parental relationship” with a qualifying child is an essential requirement to succeed in a human rights appeal involving children. In Secretary of State for the Home Department v VC (Sri Lanka) [2017] EWCA Civ 1967 the Court of Appeal grappled with what this means in the pretty extreme case of the respondent’s children being in care. VC had two children born in 2004 and 2008. He had alcohol problems and played little part in caring for them. VC and his wife separated in 2009, with wife and children moving out of the area. VC’s wife had mental health issues and the children were…

5th December 2017 By Christopher Cole

People accused of TOEIC cheating have in-country right of challenge

The Court of Appeal has held in Ahsan v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009 that people accused of cheating on the TOEIC English language test and threatened with removal from the UK have the right to challenge that decision in this country rather than from abroad. In three of the four grouped appeals decided this morning, the appellants had been served with a removal notice under section 10 of the Immigration and Asylum Act 1999. Lord Justice Underhill said that an out-of-country appeal would not satisfy the Appellants’ rights, either at common law or under article 8 of the Convention, to a fair and…

5th December 2017 By Conor James McKinney

Failure to provide evidence of right to work not a fair reason to dismiss, says Employment Appeal Tribunal

Like (I suspect) many other practitioners, I often find myself speaking to a client’s employer to explain to them why my client has the right to work. The most typical example is where a client has submitted an application by post before the expiry of their leave. The document showing their right to work will usually expire before the application is decided. However, section 3C of the Immigration Act 1971 will automatically extend that person’s leave while their application is being decided. Therefore, although they may not have a valid document showing their right to work, they indeed have that right. My client’s employer will often insist on seeing a document…

4th December 2017 By Nath Gbikpi

Proportionality principle no help in EU mother’s income support claim

LO v SSWP (IS) [2017] UKUT 440 (AAC) involved the overlap between EU law, family law and welfare benefits, focusing particularly on the role of proportionality. All this is academic to LO, who just wanted her income support. Despite compelling personal circumstances, there was no basis on which the tribunal could find a right to reside and make her eligible for that benefit. The decision affirms the existing line of cases in this area, but the idea of proportionality as a liberalising influence may be examined again by the courts. A Spanish-British couple who then split up LO, who is Spanish, moved to the UK with her British partner in late…

4th December 2017 By Anjana Daniel

In case you missed it: the week in immigration news

Free Movement’s pick of the past week’s media reporting on immigration and asylum. You are unlikely to have missed many of this week’s crop of immigration stories. Take Brexit and the Court of Justice. The government has, supposedly, tabled proposals for the Supreme Court to be able to refer high-level citizens’ rights issues for the Court of Justice of the European Union for a binding interpretation. That has drawn the ire of such establishment legal figures as the pro-Brexit campaign can muster, slavishly reported in the Telegraph (£) and Mail. Such machinations, though, pale in notoriety when compared with the idea that rape victims are being questioned about their immigration…

4th December 2017 By Conor James McKinney

Expert reports in human rights cases must be up to scratch

In HK, HH, SK and FK v Secretary of State for the Home Department [2017] EWCA Civ 1871 the Court of Appeal found that asylum seekers could be returned to Bulgaria under the Dublin III Regulation. Removal would not violate the appellants’ Article 3 rights, despite medical reports on their poor mental health and NGO evidence on the poor treatment of asylum seekers by the Bulgarian authorities. Two aspects of the case are valuable for lawyers representing asylum seekers. First, Lord Justice Sales made some promising obiter comments on the (widening) scope of Article 3. Second, the Court of Appeal reiterated the importance of NGOs complying with expert evidence requirements. Challenging removal …

1st December 2017 By Clare Duffy

Immigration judges denounce detention system in Bar Council report

The numbers of people in immigration detention have increased in the last decade. The UK has one of the largest immigration detention systems in Europe. There is no time limit. So opens a Bar Council report on Injustice in Immigration Detention, published today. As a Twitter-length summary of the issue, it is hard to beat. Subtitled “perspectives from legal professionals”, Dr Anna Lindley’s report articulates some of practitioners’ long-standing concerns with detention. These include the competence and behaviour of the Home Office, the treatment of vulnerable detainees and the lack of access to legal remedies. The top line picked up in the Home Office’s own summary of the report is the “numerous injustices”…

30th November 2017 By Conor James McKinney

Six things we learned from today’s migration statistics

1. This was the biggest annual drop in net migration ever recorded The difference between the number of people coming to live in the UK and the number leaving to live abroad was put at 336,000 in the 12 months to June 2016. Fast forward 12 months, and it’s an estimated 230,000. The Office for National Statistics confirmed to us that this fall is without precedent in its data, which goes back to 1964. 2. Immigration from the EU has fallen consistently since the referendum Three-quarters of the change in net migration since last year is down to EU migrants. While the migration estimates are just that – estimates –…

30th November 2017 By Conor James McKinney

Solicitors unfit to practise can become regulated immigration advisers

A solicitor who is suspended from practice can nevertheless advise clients on immigration law. This simple but perhaps surprising fact was highlighted by a recent case before the Solicitors Disciplinary Tribunal in which an East London solicitor unsuccessfully challenged an indefinite suspension given to him in 2009. Since that time, the judgment shows, he has been working as an adviser regulated by the Office of the Immigration Services Commissioner (OISC). The disciplinary tribunal decision in Rana Khalil Rahman v Solicitors Regulation Authority was published on 24 November. It concerned the indefinite suspension of the applicant ordered in November 2009 for “very serious” breaches of the professional rules for solicitors. The…

30th November 2017 By Conor James McKinney

Never assume that the Secretary of State is aware of anything

Further submissions are notoriously difficult to prepare. In PR (Sri Lanka), R (on the application of) v Secretary of State for the Home Department [2017] EWCA Civ 1946 the Court of Appeal has highlighted the need for focussed representations that make specific reference to all evidence and country information being relied upon. PR had his initial asylum appeal dismissed but with some positive credibility findings made by the judge. He made further submissions  relying on the country guidance given in the case of GJ (post-civil war: returnees) Sri Lanka CG (Rev 1) [2013] UKUT 319 (IAC), which post-dated the initial appeal dismissal, and a medical report indicating he was suffering from…

29th November 2017 By Christopher Cole

Home Office guidance on EEA public policy/security decisions updated

Last week the Home Office updated its guidance on EEA decisions on grounds of public policy and security. The amended policy seeks to clarify some of the previous text and highlights further implications of the EEA Regulations 2016. Extended family members The Home Office now requires extended family members who satisfy regulation 8 of the EEA Regulations 2016 to have valid documentation confirming their right of residence. Formal applications and acquisition of residence rights for such family members will be essential. Although this has always been the practice for extended family members, the Home Office now has added a specific mention in the policy guidance. Dependants The Home Office is now…

29th November 2017 By Sairah Javed

Asylum “lottery”: some hearing centres grant twice as many appeals

First-tier Tribunal appeals against asylum decisions are twice as likely to succeed at some hearing centres compared to others, a BBC investigation has found. 47% of appeals succeeded at Taylor House, whereas the success rate was as low as 21% at Yarl’s Wood and 24% in Belfast. The data comes from Freedom of Information requests covering January 2013 to September 2016 and excluding fast-track cases. Last year the nationwide success rate for FTT asylum appeals was 41%, separate Ministry of Justice statistics show. Retired tribunal judge Catriona Jarvis told the BBC researchers that It’s wholly wrong. It shouldn’t be a lottery. Another practitioner said that she found the variation “not surprising…

29th November 2017 By Conor James McKinney

Resolving a “difference in views” between EU members over benefits

Where there is a “difference in views” between two European Union member states about which is required to pay a benefit to a claimant, EU law requires the state in which the claimant resides to make interim payments until the dispute is resolved. Secretary of State for Work and Pensions v Fileccia [2017] EWCA Civ 1907 concerned a “difference in views” between the UK and France, despite which the UK failed to make interim payments to Mr Fileccia for over four years. Falling between the cracks Article 6(2) of Regulation 987/2009 implements Regulation 883/2004. The latter law is concerned with the co-ordination of social security systems across the European Union and…

29th November 2017 By John Vassiliou

British citizen wrongly denied passport and ordered to leave UK

The case of R (Miah) v Secretary of State for the Home Department [2017] EWHC 2925 (Admin) concerns a British citizen who made an application for a passport, was refused, and ordered to leave the country. He had no in-country right of appeal against the decision. This case highlights serious issues with decision-making at the Home Office, data sharing between government departments, and the lack of remedies available to applicants who wish to challenge refusal decisions. Citizen Miah Mr Miah was originally born in Bangladesh in 1965. His father had naturalised as a British citizen in 1960, and his parents married some time before that. Mr Miah therefore had a right…

28th November 2017 By Nick Nason

Court of Appeal re-affirms country guidance cases are not box ticking

In FY (Somalia) v Secretary of State for the Home Department [2017] EWCA Civ 1853, the Court of Appeal refused the deportation of a Somali national on the basis that he would face a real risk of living in circumstances falling below the Article 3 threshold if deported. In doing so, the Court of Appeal re-affirmed that country guidance cases should be construed sensibly. A tribunal’s findings should not be set aside for failing to treat the considerations as a tick box exercise. The judgment itself was short and sharp, with the Court of Appeal showing a distinct dislike for some of the Secretary of State’s arguments, describing them as variously “unhelpful”, “of…

28th November 2017 By Bilaal Shabbir

Home Office loses a quarter of asylum decision-makers in six months

Over a quarter of the officials who take decisions on asylum applications quit the Home Office in a single six-month period, an inspector’s report has revealed. The number of “active” asylum decision-makers fell from 319 in January 2016 to 228 in July 2016, or 29%, according to the Independent Chief Inspector of Borders and Immigration. David Bolt’s report finds that new decision-makers have since been recruited, bringing the numbers back up to 352 as of March. But: These ‘new’ DMs told inspectors that their initial training had not prepared them adequately to do their job, and they had relied on the guidance and support from more experienced colleagues and “on…

28th November 2017 By Conor James McKinney

Meghan Markle and the Immigration Rules on marriage

Hearty congratulations from all of us at Free Movement to the former army officer and UN charity worker who are due to marry next year. But given that Meghan Markle is an American citizen, what hoops will the happy couple need to jump through in order to complete their nuptials? You might think that because Ms Markle is marrying a British citizen – and a very British citizen at that – immigration law has no particular role to play. You would be wrong. As what the Home Office would call a “non-EEA national”, she must apply for a visa to enter the UK and marry Prince Harry. Essentially she has two options…

28th November 2017 By Nicholas Webb

British organs for British residents

The current Prime Minister coined the term “hostile environment” when she was in charge at the Home Office. It is easy to forget that these measures, aimed at making life intolerable for immigrants without status, began during the last Labour government. Tabloid hysteria about hospitals and GP surgeries clogged up by health tourists led to section 175 of the National Health Service Act 2006 and a system of charging foreigners for health services. Section 175 states that regulations can be enacted to charge those who are not “ordinarily resident in Great Britain” for health care services. The Act did not fully explain who would or would not be considered “ordinarily…

27th November 2017 By Joanna Hunt

Dental x-rays in age assessment: art not science

Upper Tribunal Judge Rintoul’s elegant, succinct summary of the law on age assessment, with which he opens the determination in R (AS) v Kent County Council (age assessment; dental evidence) [2017] UKUT 446, reminds us that pinpointing the age of a young person claiming asylum, other than where there is documentary proof, is an art, not a science. It is a question of fact for decision by the court or tribunal itself, as the Supreme Court explained in R (A) v London Borough of Croydon [2009] UKSC 8. When the decision-maker is left in doubt as to whether a person is over 18 or not, the child is given the…

27th November 2017 By Alison Harvey

In case you missed it: the week in immigration news

Free Movement’s pick of the past week’s media reporting on immigration and asylum. Some positive asylum stories in recent days: the value of outsourced asylum accommodation contracts is to double, according to the Guardian. There is an apparently similar attempt to right past wrongs at Brook House immigration removal centre, where operator G4S has ordered an independent review into allegations of abuse by staff (BBC News). The week also saw a mini flurry of good news stories on asylum seeker integration. Women in London are being trained to make sourdough bread (Evening Standard) and work in floristry (the i). Altogether less happily, the Guardian reports on the claim of an Iranian asylum…

27th November 2017 By Conor James McKinney

Scottish judge: discrimination based on immigration status unlawful

There are a number of interesting findings in the Court of Session judgment, published today, in DN against Secretary of State for the Home Department [2017] CSOH 144. DN is a Ugandan child who applied for entry clearance to join her mother in the UK. Her mother holds discretionary leave (DL) to remain. DN’s application and subsequent appeal were refused, and her applications for leave to appeal were also refused. Interpretation of paragraph 301 Lady Carmichael, sitting in the Outer House, found that despite DL in most cases being a path to eventual settlement in the UK the expression “limited leave to enter or remain in the United Kingdom with…

24th November 2017 By John Vassiliou

The Home Office is entitled to ignore a judge’s decision to grant bail

The Court of Appeal has reluctantly agreed that the Home Office has the power to ignore a First-tier Tribunal’s decision to grant bail to an immigration detainee. However, on the particular facts of the case, the decision to refuse consent to bail was deemed unlawful. Despite the impropriety of a departmental civil servant being able to overrule an independent and impartial judge, the Court of Appeal was duty bound to give effect to the clear intention of Parliament. This decision could lead to more regular use of the power to refuse consent by the Home Office, which is deeply concerning. Civil servants overruling judges Lukasz Roszkowski v Secretary of State…

24th November 2017 By Iain Halliday

Aggravated damages for “distressing and traumatic” detention

Last week Suraj Saptoka was awarded £24,515.43 by order of a Deputy High Court judge for false imprisonment in Sapkota v Secretary of State for the Home Department [2017] EWHC 2857 (Admin). Mr Saptoka had been unlawfully detained for 36 days after immigration officials wrongfully decided he was attempting to extend his leave to remain by entering into a bigamous marriage. Mr Saptoka’s detention Mr Saptoka is a Nepali citizen, who had leave to remain until the end of December 2015. After getting engaged to an EU national, he applied to extend his leave. On 9 November 2015 immigration officers interviewed Mr Saptoka and his fiancée. Mr Saptoka was confronted with…

24th November 2017 By Clare Duffy

The rise of modern banishment: deprivation and nullification of British citizenship

To deprive a person of their citizenship on the grounds of their behaviour or opinion is to cast them out of society. It is a power of exile or banishment. In Roman law, the punishment of “proscription” was civic and literal death, unless the person went into exile. It would be used only in cases of crimes against the state itself. Cicero did not make it as far as exile. As he fled he was summarily but lawfully executed, his property confiscated by the state and his head and hands severed and publicly displayed in Rome. Taking away from a person their citizenship is the closest modern equivalent we have to…

24th November 2017 By Colin Yeo

FTT slapped down for ignoring Immigration Rules in deportation case

In Secretary of State for the Home Department v AM (Jamaica) [2017] EWCA Civ 1782 the Court of Appeal found that a First-tier Tribunal decision to allow a Jamaican man’s deportation appeal under Article 8 contained a material error of law and set it aside. In criminal deportation appeals, the court found, the FTT must do more than “simply” engage in a Razgar assessment under Article 8. A finding that deportation would be disproportionate, without considering the substance of paragraphs 398 and 399 of the Immigration Rules, is a material error of law. No room for “unstructured Article 8 analysis” AM is a Jamaican man who was convicted of a number of…

23rd November 2017 By John Vassiliou

Strasbourg dismisses compensation claim for not allowing asylum seeker to work

Daniel Negassi v the United Kingdom (application no. 64337/14) was an appeal to the European Court of Human Rights with a complaint that the Home Office’s failure to grant Mr Negassi permission to work, while waiting for a decision on his asylum claim, was a breach of his right to respect for his private life under Article 8 of the European Convention of Human Rights (ECHR). Though handed down several months ago, it is worth looking at as a rare example of judicial consideration of this kind of claim. Complaint to the European Court of Human Rights Mr Negassi argued that the refusal to grant him permission to work constituted…

23rd November 2017 By James Packer

Domestic violence cases can attract a right of appeal, says High Court

Since April 2015, only very limited types of immigration case can be appealed. In the case of AT, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin), the High Court found that despite what the Immigration Rules say, an application for indefinite leave to remain on the basis of domestic violence can be a human rights claim and therefore attract a right of appeal. You can read more about the appeal regime in this post and in our ebook on the Immigration Act 2014. Domestic violence cases, human rights claims and rights of appeal Briefly speaking, those in the UK with leave as the partners of…

22nd November 2017 By Nath Gbikpi

Tier 1 (Exceptional Talent) visas doubled to 2,000 per year

The Home Secretary recently announced that the number of people who can be accepted under the Tier 1 (Exceptional Talent) immigration route would double, from 1,000 to 2,000 each year. The exceptional talent visa regime does exactly what it says on the tin, providing a route for recognised or emerging leaders in certain fields to enter the UK to live and work. The “exceptional” criteria The fields in which individuals can show their talents exist are limited to science, the humanities, engineering, the arts and digital technology. The Home Office provide an overview of the route on its website, as well as detailed guidance for applicants. In order to apply for the…

22nd November 2017 By Nick Nason

Immigration and the Budget

There is some good news, some bad news and some not-exactly-surprising news in today’s Budget. The good news comes in the form of more liberal rules for scientists, researchers and international students who want to work and settle in the UK: 4.19 International talent – To support its ambitions on innovation and R&D, the government is encouraging the best and the brightest international scientific and research talent to work in the UK. The government will: change immigration rules to enable world-leading scientists and researchers endorsed under the Tier 1 (Exceptional Talent) route to apply for settlement 47 after three years; make it quicker for highly-skilled students to apply to work…

22nd November 2017 By Conor James McKinney

Ministers still struggle with meaning of “indefinite” detention

Asked on 21 November about any link between people being kept in indefinite immigration detention and those same people using drugs, Home Office minister Brandon Lewis replied: We don’t have indefinite detention, so… It was an assertion Lewis went on to repeat half a dozen times in the space of a few minutes, having said the same thing in the House of Commons the day before. On that occasion, opposition MP Dan Carden made the obvious riposte: If someone is locked up and not given a timeframe for when they will be released, that is indefinite detention. Only on Planet Home Office is detention for an indefinite period not considered indefinite…

22nd November 2017 By Colin Yeo
1 2 3 4 5 6 57