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

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

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

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

Supreme Court rejects a right to non-contributory benefits for Zambrano carers

In R (HC) v Secretary of State for Work and Pensions [2017] UKSC 73 the Supreme Court decided that Zambrano carers are not eligible for non-contributory benefits which have a “right to reside” test. The benefits affected by the decision are income support, child benefit, child tax credits, and housing and homelessness assistance. The decision, while no doubt correct in law, leaves behind a broken system. The questions for the court Zambrano carers are non-EEA nationals who moved to the UK to join an EEA-national partner, subsequently separated, but still have care responsibilities for their British citizen children. Zambrano carers have a right to reside in the UK because otherwise their children would be forced…

17th November 2017 By Paul Erdunast

Asylum age assessments: the Court of Appeal is not a tribunal

In Bedford County Council v GE (Eritrea) [2017] EWCA Civ 1521 the Court of Appeal refused to overturn an age assessment simply because the local authority disagreed with judicial findings of fact. The judgment upheld the Administrative Court’s decision that GE was born on 27 September 1994, making her 16 years old when she entered the UK. The facts GE was born in Eritrea in 1994. After parental bereavement she moved (via Sudan) to Libya with her uncle. Following the outbreak of war she escaped Libya by boat. In May 2011 GE entered the UK hidden in a lorry. GE was arrested in Dover and immediately claimed asylum. The UK…

16th November 2017 By Clare Duffy

Home Office responds to committee report, 15 months later

The government has responded to a report by MPs on the work of the Immigration Directorates – a mere 456 days after the report came out. When Home Affairs Select Committee began its enquiry, Brexit had not yet happened. It published its report on 27 July 2016, a matter of days after Theresa May replaced David Cameron in 10 Downing Street. The response came back on 26 October, and is published today. The Home Secretary apologised for the “unacceptable” delay, which she put down to a number of internal and external factors, including the need to amend the Government’s response in light of a legal determination on Home Office country guidance. Many of…

3rd November 2017 By Conor James McKinney

Help Refugees loses Dubs amendment case, will appeal

Help Refugees has lost its challenge to the Home Office’s delay in relocating child refugees under section 67 of the Immigration Act 2016. The decision in R (on the application of Help Refugees Limited) v Secretary of State for the Home Department [2017] EWHC 2727 (Admin) was handed down today. The charity immediately committed to an appeal. Court ruling is disappointing, but it is not the end. We will continue to fight for the rights of refugee children! — Help Refugees (@HelpRefugees) November 2, 2017 The judicial review took aim at the Home Office’s dilatory approach to the ‘Dubs amendment’. That section, inserted into the 2016 Act after dogged campaigning,…

2nd November 2017 By Conor James McKinney

The struggle for subsistence: Agyemang v Haringey

Last week’s Court of Appeal judgment in R (Agyemang) v London Borough of Haringey [2017] EWCA Civ 1630 reveals familiar tactics by local authorities resisting requests for support under the Children Act 1989. The claimant-appellant, a Ghanaian mother of a five-year-old child, brought judicial review proceedings with an application for interim relief against Haringey’s decision not to make subsistence payments under section 17 of that Act. The interim relief sought was subsistence payments of £53.20 per week. After papers were lodged, Haringey offered to pay £32.50 weekly pending an assessment to be produced within 45 days. The claimant accepted but maintained the judicial review challenge to the delay in carrying out this…

2nd November 2017 By John Murphy

Guest post: barriers to migrants accessing public services

Getting to the UK and applying for the right to stay is only the start of the battle, writes trainee housing solicitor John Murphy. Newcomers to the UK, whether they have immigration status or not, face formidable obstacles in accessing services such as housing or social security. This is a look at some common scenarios and how foreign nationals and their advisers deal with them. They are based on real client cases. Scenario one: the single male refugee Soon after getting refugee status, he will receive a letter telling him his National Asylum Support Service support is about to stop. He can try to rent in the private sector but he…

30th October 2017 By John Murphy

Book review: The Child in International Refugee Law by Jason Pobjoy

The Child in International Refugee Law by Jason Pobjoy, a barrister at Blackstone Chambers, is an extremely useful, practical and important contribution to the international protection of child refugees. I cannot do better than Pobjoy’s own summary of the themes that run through this work: The hypothesis advanced in this book is that progressive developments in the interpretation of the Refugee Convention, coupled with a greater understanding of the relationship between international refugee law and international law on the rights of the child, enable the Convention to respond in a sophisticated and principled way to refugee claims brought by children. This will require a creative alignment between refugee law and…

27th October 2017 By Colin Yeo

Immigration and nationality law following surrogacy agreements

A surrogacy arrangement is, broadly speaking, where a woman carries and delivers a child for another couple or person. Under section 2(1) of the Surrogacy Arrangements Act 1985, it is a criminal offence for a person on a commercial basis to initiate or take part in a surrogacy agreement in the UK. Many families in the UK opt for countries where commercial surrogacy is lawful, such as the USA and Ukraine. However, children born out of surrogacy arrangements will not necessarily be born British, even when the commissioning parents are British. This is mainly because of the definition of “father” and “mother” under British nationality law. Questions then arise as to the…

11th October 2017 By Nath Gbikpi

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

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

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

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

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

The Children’s Society: Evidence Needed on The Impacts of LASPO on Separated and Unaccompanied Migrant Children’s Access to Justice

The children’s charity, The Children’s Society, and the University of Bedfordshire, are working together to document the impacts of LASPO (2012) on unaccompanied and separated migrant children. As such, they are looking for legal practitioners – OISC, solicitors, barristers and QC’s – to take part in a survey and or interviews about the impacts of LASPO (2012) on the immigration cases and circumstances of unaccompanied and separated migrant children. They will be using this evidence to feed into the pending review of LASPO but also in a strategic litigation case that the Children’s Society have been pursuing against the Lord Chancellor to bring separated / unaccompanied migrant children back into the scope of legal aid.  The…

12th May 2017 By Colin Yeo

Home Office application to delay Calais Jungle child asylum case refused by tribunal

In an oral decision in the case of R (on the application of AO & AM) v Secretary of State for the Home Department (stay of proceedings – principles) [2017] UKUT 168 (IAC) given on 28 March 2017, the Upper Tribunal refused the Secretary of State’s application to stay the Judicial Review proceedings of AO and AM, two unaccompanied minors previously in the Calais Jungle, and who had been refused their transfer to the UK under the expedited Dublin III process. In the decision Mr Justice McCloskey, President of the Upper Tribunal, offers very useful and interesting guidance on the principles to be followed in applications to stay proceedings pending…

3rd May 2017 By Nath Gbikpi

New case on children seeking entry under the Dublin Regulation

Official headnote: (I) The question of whether the Secretary of State has made a decision on the exercise of the discretionary power in Article 17 of the Dublin Regulation is one of fact which will be determined on the basis of evidence, direct or inferential. (II) Article 17 is an integral part of the Dublin regime. The suggestion that the Article 17 discretion falls to be exercised only where the family reunification criteria in Article 8 are not satisfied is misconceived. (III) Article 17 has a role in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures and systems…

21st April 2017 By Colin Yeo

When is it reasonable to require British citizen children to leave Britain?

Two interesting and important legal points emerge from the Upper Tribunal’s determination in SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC). The first is on the issue of when, if at all, a British child might be required by immigration policy to leave the UK and the second is how far, if at all, the tribunal might take account of policies of the Secretary of State under the new appeals regime established by the Immigration Act 2014. Reasonableness of requiring a British child to leave UK It turns out that the Secretary of State’s policy is that it is never reasonable to require a British citizen child to…

29th March 2017 By Colin Yeo

Children should be treated as children while their age is properly assessed

In this case an asylum seeker asserted he was a child. The local authority treated him as an adult while his age was assessed, contrary to the Age Assessment Guidance by the Association of Directors of Children’s Services. No cogent reason was given for departing from the guidance and the failure to follow it was held to be unlawful. For background see earlier blog post: Important new age assessment guidance published Source: S, R (on the application of) v London Borough of Croydon & Anor [2017] EWHC 265 (Admin) (24 February 2017)

3rd March 2017 By Colin Yeo

Supreme Court upholds Minimum Income Rule of £18,600 to sponsor foreign spouses in MM case

In linked judgments in the case of MM and others v Secretary of State for the Home Department [2017] UKSC 10, known to many as just “the MM case,” the Supreme Court has this morning upheld in principle the Minimum Income Rule which requires an income of at least £18,600 for British citizens and others to sponsor a foreign spouse. However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support. In a further linked judgment, Agyarko v Secretary of State for…

22nd February 2017 By Colin Yeo

New case from President on children’s best interests and the public interest

Important new determination from President McCloskey on the best interests of children in human rights cases where the statutory considerations apply: Kaur (children’s best interests / public interest interface) [2017] UKUT 00014 (IAC). The official headnote: (1) The seventh of the principles in the Zoumbas code does not preclude an outcome whereby the best interests of a child must yield to the public interest. (2) This approach has not been altered by Part 5A of the Nationality, Immigration and Asylum Act 2002. (3) In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct. (4) The best interests…

18th January 2017 By Colin Yeo

Young People and Migration in the UK: An Overview – Migration Observatory

The University of Oxford based Migration Observatory has published a new report on young migrants. It reads a little like the introductory sequence to The Six Million Dollar Man. The key points: Migrants tend to be young when they arrive, typically as young adults coming for work or study, or as children accompanying their parents. Most young people whose first or main language is not English also speak good English. They tend to have lower educational achievement when they start school, but they make faster progress and so the gap is largely eliminated by age 16. Young migrants are more likely to have degree-level qualifications than the UK born. Employment…

24th December 2016 By Colin Yeo

Albino child from Nigeria wins asylum claim

A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk. Source: JA (child – risk of persecution : Nigeria) [2016] UKUT 560 (IAC) (24 November 2016)

22nd December 2016 By Colin Yeo

Tribunal makes order requiring dental age assessment of young asylum seeker

In a new case on dental age assessments, the tribunal has ordered that a young asylum seeker to undergo a dental x-ray and age assessment. If he refuses, his court case will be struck out. The case also gives general guidance on the correct approach to be followed in similar cases. The new case is ZM and SK, R (on the application of) v The London Borough of Croydon (Dental age assessment) [2016] UKUT 559 (IAC). It follows on from the Court of Appeal judgment in London Borough of Croydon v Y [2016] EWCA Civ 398, covered earlier on Free Movement: Court of Appeal says children can be required to be x-rayed to challenge…

20th December 2016 By Colin Yeo

Tribunal orders urgent admission of two Syrian children to UK

The tribunal has returned to the issue of when might children in the EU seeking entry to the UK under the Dublin Regulation be ordered to be admitted on an urgent basis. The order was made to admit the children in this case and the tribunal sets out guidance on the correct approach. The order was actually made on 11 October 2016 but was only reported last week, I think. The official headnote: (i)            By virtue of the decision of the Court of Appeal in ZAT & Ors the duty to admit a person to the United Kingdom under Article 8 ECHR without adherence to the initial procedural requirements of the Dublin Regulation requires…

15th November 2016 By Colin Yeo

Home Office publishes eligibility criteria for children to be admitted to UK under Dubs amendment

The Home Office has made public its internal guidance for officials on the process and criteria for admitting children to the UK who were living in the Calais camp. The obligation to admit the children comes from section 67 of the recently passed Immigration Act 2016, a section otherwise known as the “Dubs amendment” after Lord Alf Dubs, who proposed it. The basic criteria are: To be eligible a child must meet one of the following criteria: they are aged 12 or under they are referred directly by the French authorities, or by an organisation working on behalf of the French authorities, to the Home Office as being at high risk of…

15th November 2016 By Colin Yeo

What is the impact of a successful asylum claim on a child abduction case?

Can the Family Court ignore a decision by the Home Office to grant asylum to a child by ordering the child’s return to the country where it was found he would be at risk of harm contrary to Article 3 of the ECHR ? This was the central issue in Re H (A Child) (International Abduction: Asylum and Welfare) [2016] EWCA Civ 988, where a father applied for the summary return of his son to Pakistan, whom he claimed had been abducted to this jurisdiction by the mother. The mother’s case was that she and her son had suffered domestic violence at the hands of the father. The mother had…

7th November 2016 By Chris McWatters

Against Borders for Children: boycott of new nationality question in school census

From September 2016 parents, guardians and carers in England will be asked to state if their children are foreign nationals. Families can refuse to answer. The UK Government has required childminders, nurseries, schools and colleges to collect country-of-birth and nationality data for children aged between 2 and 19. This policy is unnecessary, divisive and puts vulnerable children at risk. Families and schools can take action to protect children. JOIN THE NATIONAL BOYCOTT. Source: Against Borders for Children

13th September 2016 By Colin Yeo

Dura Lex, Sed Lex: Refugee children must remain in Calais says Court of Appeal

The UK government, and Europe, has spared no expense to ensure that wherever the people trying to get to Europe end up, it isn’t here. But the courts are seemingly doing their best to help. The Court of Appeal’s judgment in Secretary of State for the Home Department v ZAT & Ors (Syria) [2016] EWCA Civ 810 keeps unaccompanied children in the Jungle. There are more than 10 million child refugees in the world today. Millions of them are unaccompanied. Families make what are to most people unimaginable choices about which child will be sent away from their families to seek safety alone. But the UK government has argued successfully…

7th September 2016 By Jared Ficklin

Seven year rule for children must be satisfied at date of application

This family life case highlights the important point that the ‘7-year rule‘ – that young people under 18 must have lived in the UK for at least 7 years – must be satisfied at the date of application. It is not sufficient that the rule, in Immigration Rules paragraph 276ADE (iv) has been satisfied at the date of the Secretary of State’s decision. This was unfortunate for the family in Koori who fell foul of the rule, despite serious confusion running through the Upper Tribunal case: 21. There appears to have been considerable confusion about the way in which this ground was dealt with in the UT. First, for some reason neither the…

3rd August 2016 By Paul Erdunast

The Let Us Learn Campaign

Imagine being told that everything you thought you knew as truth was an absolute lie. Imagine starting a journey with your peer group and then unexpectedly being ripped away from the same path. Imagine feeling as if no one understands your pain, your frustration, your anger. Imagine feeling like as if you’re alone in a room full of so many people, I mean physically present, but mentally a million miles away with your thoughts running at a thousand miles an hour. A change in the law five years ago meant that thousands of ambitious young people were placed in the situation described above. The legal gap The young people Let…

25th July 2016 By Paul Erdunast

Serial criminal to be deported despite impact on his children

If you attempt to murder someone with a gun, and after release from prison for attempted murder (a sentence of over four years), are caught again with a loaded gun and imprisoned, do not be surprised that only the most exceptional circumstances will save you from deportation. This was all in the context of running a drug-dealing ‘business’. The main point in the Home Office appeal in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 concerns the Article 8 argument which was rejected. Lady Justice Rafferty stated that the effect on the children of having only one parent subsequently remaining in the UK was not enough to pass…

15th July 2016 By Paul Erdunast

Government launches National Transfer Scheme for asylum seeking children

On 1 July 2016 the Government launched a new National Transfer Scheme for refugee children. It enables one local authority to request transfer of an asylum seeking child to another local authority. The rationale is said to be: to encourage all local authorities to volunteer to support unaccompanied asylum-seeking children (UASC) so there is a more even distribution of caring responsibilities across the country. The scheme is enabled by the coming into force of parts of the Immigration Act 2016. Initially it is voluntary in nature. A local authority can request transfer of a child in certain circumstances but there is no compulsion on any other local authority to accept…

14th July 2016 By Colin Yeo

Two new policies on asylum seeking children published

The Home Office has published two important new policies on asylum seeking children. The first is a rewritten version of the main Asylum Policy Instruction on Processing children’s asylum claims. The second is an entirely new 40 page policy instruction on Tracing family members of unaccompanied asylum seeking children.

12th July 2016 By Colin Yeo

Court of Appeal says when it is “reasonable” to remove a child resident for 7 years or more

The issue of when a child should be expected to relocate to another country because of UK immigration laws is an emotive one. In 2012 a new Immigration Rule was introduced stating that a foreign child would be permitted to remain if the child had lived in the UK for at least 7 years AND it was not reasonable to expect the child to relocate. This was paragraph 276ADE(vi) of the Immigration Rules. It was implied that the parents would also be permitted to stay to look after the child. This rule was discussed in detail earlier on Free Movement: Can children and parents apply to remain after seven years residence?

7th July 2016 By Colin Yeo

Committee on the Rights of the Child reviews the report of the United Kingdom

In the ensuing dialogue, Committee Experts expressed concern about the possible repeal of the 1998 Human Rights Act as it was feared that the new Bill of Rights would weaken the protection of children’s rights.  Experts were very worried about the increase in child poverty, which was up two per cent during the 2008-2012 period, while budget decisions made between 2010 and 2015 had shown that, despite some progressive policies and the apparent commitment of the Government, families with children had lost more as a result of the economic policies than those without children.  The Welfare Reform and Work Act 2016 repealed much of the 2010 Child Poverty Act and…

26th May 2016 By Colin Yeo

Court of Appeal says children can be required to be x-rayed to challenge age assessment in court

Interesting and controversial case on X-rays and age assessment from the Court of Appeal: London Borough of Croydon v Y [2016] EWCA Civ 398 (26 April 2016). Essentially, the Court holds that the claimant would have to agree to an age assessment by means of a dental X-ray in order to continue with his claim against the local authority. The claimant was arguing that he had been incorrectly age assessed as an adult when in fact he was a child. This is not an order that the child must be X-rayed. It does though require him to agree to it as the price of continuing with his attempt to prove…

18th May 2016 By Colin Yeo