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

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

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

Immigration minister: bank accounts could be wrongly frozen for a year

Immigration minister Brandon Lewis had rather a torrid time before the Home Affairs committee of MPs this morning. Committee chair Yvette Cooper raised concerns about the new requirements for banks to freeze or close the bank accounts of anyone who shows up in a Home Office database of people illegally in the UK. As recently identified on Free Movement, a major problem with this particular eddy of the “hostile environment” is the overwhelming likelihood of Home Office misidentification combined with the lack of a proper appeal process for correcting errors. Lewis could point only to the Home Office’s own internal checks and the general immigration appeals process. Immigration appeals now take a…

21st November 2017 By Conor James McKinney

Judicial review over treatment of EU rough sleepers begins

A judicial review challenge to the Home Office policy of detaining and deporting rough sleepers from EU countries has begun in the High Court. In 2016 the Home Office began accusing people – mainly Eastern Europeans – found sleeping on the streets as “misusing” their EU free movement rights. Lambeth Law Centre says that such people have been subjected to administrative removal action which includes detention pending removal, regardless of whether they are working or not, and regardless of whether or not they have a permanent right of residence. Its judicial review argues that the Immigration (European Economic Area) Regulations 2016 cannot be construed so as to permit this; that the enforcement of…

21st November 2017 By Conor James McKinney

The “hostile environment” seeps into criminal trials: defendants must state nationality or face prison

From this week, defendants in the criminal courts must state their nationality. Anyone who fails to do so can be jailed for up to a year. The Criminal Procedure (Amendment No. 4) Rules 2017 (2017 No. 915 (L. 13)) came into force on 13 November 2017. They stipulate that: (a) at the first hearing in the Crown Court must require a defendant who is present― (i) to provide, in writing or orally, his or her name, date of birth and nationality, or (ii) to confirm that information by those means, where the information was given to the magistrates’ court which sent the defendant for trial; and Similarly, the magistrates’ court (a) at the first hearing in…

17th November 2017 By Colin Yeo

Donations sought to stop NHS giving patient data to Home Office

The Migrants’ Rights Network is crowdfunding for a legal challenge to stop the NHS becoming more involved in immigration enforcement. A data-sharing agreement with NHS Digital will allow the Home Office to access previously confidential information about patients. The charity has applied for permission for a judicial review of this arrangement, saying that This agreement violates patient confidentiality and puts vulnerable migrants at risk because they will be deterred from accessing healthcare. The MRN is seeking £10,000 through the CrowdJustice platform to help cover its costs should the case be lost. At time of writing, 10% of the sum had been raised already. Source: Migrants’ Rights Network, “MRN Legal Challenge against NHS…

9th November 2017 By Conor James McKinney

Prosecutions for telling the truth: part deux, with added Hardial Singh

Last year the High Court in JM (Zimbabwe) v Secretary of State for the Home Department [2016] EWHC 1773 (Admin) made a declaration that “the Defendant may not lawfully require the Claimant, under section 35 of the [Asylum and Immigration (Treatment of Claimants) Act 2004], to tell Zimbabwean officials that he agrees to return voluntarily”, and held that JM had been unlawfully detained. The Secretary of State’s appeal on both issues has now been dismissed by the Court of Appeal. Construction of section 35 The court dealt first with a preliminary issue: whether Jay J had erred in constructing a “criminal statute” without informing himself of the position of the Crown…

7th November 2017 By James Packer

Hostile environment backfiring on the Home Office, Chief Inspector finds

The hostile environment policy is making it more difficult for the Home Office to keep track of foreign national offenders and could even push up crime, the Independent Chief Inspector of Borders and Immigration has said. David Bolt’s inspection of the Home Office’s management of non-detained foreign national offenders reports that in line with the idea of a ‘hostile environment’, many FNOs were not receiving any assistance with somewhere to live. As a result, the Home Office did not have a fixed address for some FNOs at the point they were released. The hostile environment is a package of measures, such as limiting access to housing and healthcare, designed to make…

2nd November 2017 By Conor James McKinney

Tier 2 sponsor licence revocation challenge fails in High Court

Sivayogam is a religious charity, serving Hindu and Tamil communities in London. Finding priests in the UK and Europe had proven difficult so, in 2009, it applied for registration as a Tier 2 sponsor, allowing the organisation to bring in religious workers from abroad. Its experience in R (Sivayogam) v SSHD [2017] EWHC 2575 (Admin) is a good demonstration of the value of legal advice at an early stage of sponsor licensing disputes. Background Where the Home Office grants a Tier 2 sponsor licence it is essentially outsourcing immigration control to the sponsoring organisation. Employers are required to comply with the detailed guidance provided by the Home Office, which imposes “a…

31st October 2017 By Nick Nason

What to do if the Home Office closes your current account

Measures requiring banks to check on the immigration status of existing account holders come into force today. To celebrate, the Home Office has published some brief guidance for those who, as “disqualified persons”, find their current account locked or closed. It has also updated its guidance for the banks themselves. Section 40G of the Immigration Act 2014, as amended by the Immigration Act 2016, sets out a duty on banks and building societies to close an account where instructed to do so by the Secretary of State. The duty is to close the relevant account “as soon as reasonably practicable”. The bank or building society can delay for a reasonable…

30th October 2017 By Conor James McKinney

Call for evidence on ‘Right to Rent’ scheme

David Bolt, the Independent Chief Inspector of Borders and Immigration, is inspecting the Right to Rent measures in the 2014 and 2016 Immigration Acts. These require landlords to check the immigration status of prospective tenants before renting them a home. The Right to Rent scheme forms part of the hostile environment that the government has aimed to create for migrants without valid leave. The specific questions which the Chief Inspector will deal with are as follows: planning for the initial introduction of RtR, including success criteria, and the identification and mitigation of risks and issues evaluation of Phase 1 of the Right to Rent (rolled out in Birmingham, Walsall, Sandwell, Dudley…

24th October 2017 By Paul Erdunast

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

The Home Office has revised its policy on the immigration “amnesty” for survivors of the Grenfell Tower fire. In short, the government was offering a grant (or extension) of 12 months leave to enter or remain, with access to public funds included as well as the right to work. The 12 months limited leave can now be renewed so that there is a pathway to settlement – Indefinite Leave to Remain – after five years. Applications must be made before 30 November 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…

11th October 2017 By Colin Yeo

Garden Court barristers uncover immigration check “racial profiling”

Two immigration law practitioners, Chris Williams and Nicola Braganza, made headlines today for their part in an investigation highlighting “racial profiling” in UK immigration checks. The pair, both Garden Court tenants, worked with the Bureau of Investigative Journalism to analyse Home Office data showing that almost one in five people stopped for an “intelligence-led” check on their immigration status is in fact a British citizen. “The obvious inference”, Williams and Braganza told the Bureau, “is that those who look like immigrants are targeted”. The story also features in today’s Guardian. The figures, obtained by The Bristol Cable under the Freedom of Information Act, show that almost 19% of stops by immigration officials…

9th October 2017 By Conor James McKinney

Hostile environment: banks forced to check 70 million accounts

Banks and building societies are to carry out immigration checks on a reported 70 million bank accounts in accordance with the Immigration Act 2016, amending the Immigration Act 2014. The provision ordering this will come into force on 30 October 2017. Regulations introducing a code of practice have been laid down. For each account belonging to anyone illegally in the country, the bank must, under certain circumstances, notify the Home Office, who will then close it down or freeze it. This measure will make life harder for those in the country illegally. But at what cost? Like the rest of the hostile environment, it forces private entities to carry out complex immigration checks….

26th September 2017 By Paul Erdunast

£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

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

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

INTERPOL “wanted” alerts: using them as evidence and making them go away

This post discusses issues arising for asylum practitioners from INTERPOL “wanted person” notices. The key points are (i) you can find out, possibly quite quickly, if there is such a notice in place, which in the affirmative may help to establish a risk of persecution; and (ii) if there is a notice in place, you can challenge it to ensure your client does not face a risk of arrest when s/he travels. For full legal geekery on this topic, see my recent article, cited with approval by the Legal Affairs and Human Rights Committee of the Parliamentary Assembly of the Council of Europe (see here). INTERPOL alert = evidence of…

10th May 2017 By Alex Tinsley

Home Office belatedly issues guidance on Operation Nexus

Operation Nexus was officially launched in November 2012, a law enforcement initiative aimed at deporting more ‘high harm’ foreign nationals. It has been criticised on many occasions for its opacity, and the lack of any publicly available policies which govern its implementation. See, for example, our previous post: Operation Nexus for dummies: happening now, in our time. Last month, 4 ½ years into its operation, the Home Office finally issued some guidance. What is Operation Nexus? According to the note, there are broadly two strands to Operation Nexus: Nexus Custody – Immigration Officers (IOs) deployed to designated police custody suites to examine all foreign nationals who are arrested. Cases identified as…

24th April 2017 By Nick Nason

New research suggests depriving migrants of driving licenses harms road safety

Interesting, given that the UK is now doing exactly the opposite by taking away driving licences for migrants with no status (and some who do have status but where the Home Office makes a mistake): States that let unauthorized immigrants get driver’s licenses make their roads safer for all, a new study suggests. After implementing one such law in January 2015, California saw a 7- to 10-percent statewide drop in hit-and-run accidents that year, Stanford researchers report Monday in PNAS. That equates to roughly 4,000 fewer hit-and-runs for the year. In that time frame, more than 600,000 unauthorized immigrants got licenses, and the numbers of accidents and traffic fatalities were…

12th April 2017 By Colin Yeo

Student accused of ETS fraud found to have been unlawfully detained

In R (on the application of Iqbal) v Secretary of State for the Home Department [2017] EWHC 79 (Admin) the Secretary of State for the Home Department (SSHD) was found to have unlawfully detained a claimant whom they had alleged had fraudulently obtained an Educational Test Service (ETS) certificate to show that he spoke English to the level required for his immigration application. The Home Office decided to remove him under s.10 Immigration and Asylum Act 1999. However both these decisions were made whilst the claimant was temporarily out of the country. Nonetheless, the SSHD proceeded to detain him 2 weeks later on his return to Heathrow on the basis that they…

15th March 2017 By Chris McWatters

Exit strategies: Removing unauthorised immigrants is difficult and expensive | The Economist

Worth a read, and I’m not just saying that because I’m quoted: Britain is the only European country to allow indefinite detention under immigration laws. Some of those held are migrants who have committed crimes but cannot be removed, because their home countries are too dangerous. But of those detained last year, more than two-fifths ended up being released. This suggests poor decision-making about who is detained in the first place, says Colin Yeo, an immigration lawyer… In recent years Britain’s government has shifted its focus to trying to persuade unauthorised immigrants to leave of their own accord. In 2013 Mrs May, then the home secretary, put up posters and…

6th March 2017 By Colin Yeo

The case of Irene Clennell and the rules on returning residents with ILR

One one level the case of Irene Clennell is shocking. She was previously settled in the UK with Indefinite Leave to Remain (ILR) and has recently been the main carer for her sick British husband, John, and she has two British sons and a British granddaughter. Press reports differ on the background, with some reports that she was resident in the UK for 30 years and other reports suggesting a much shorter period. Nevertheless, the Home Office have taken the view that she is unlawfully resident in the UK and she was detained at an immigration detention centre and then removed to Singapore. On another level, Clennell’s case is entirely unsurprising. Just…

27th February 2017 By Colin Yeo

What is the no recourse to public funds condition?

The “no recourse to public funds” condition is imposed on grants of limited leave to enter or remain with the effect of prohibiting the person holding that leave from accessing certain defined public funds. A person who claims public funds despite such a condition is committing a criminal offence and there may well be future immigration consequences as well, as any existing leave can be curtailed or a future application refused. Additionally, section 115 of the Immigration and Asylum Act 1999 prevents migrants from accessing a range of welfare benefits unless they fall into one of the very limited exceptions. What is the legal basis for the “no recourse to public funds”…

21st February 2017 By Colin Yeo

Overstaying and applying for further leave: end of the 28 day grace period

A new set of requirements for overstayers who apply for leave to enter or remain in the UK was introduced late last year. In short, the 28 day grace period for overstayers was abolished and replaced with a very limited 14 day limit, but only where a “good reason” was also given for a late application. The change is expected to lead to an increase in the number of refused applications. People applying for leave to remain after the expiry of a previous period of leave will have less time to apply, and may have more obstacles to overcome. The changes are introduced in Statement of Changes to the Immigration Rules HC…

6th February 2017 By Colin Yeo

NHS shares patient data of suspected immigration offenders with Home Office

‘Patient confidentiality is one of the most important pillars of medicine’, explains Dr Vivienne Nathanson, previously Head of Science and Ethics at the British Medical Association. Can patient information be shared without consent? The general principle is that patient information is confidential and can only be disclosed to third parties without consent in very limited situations. These situations include, for example, where it would prevent the spread of an infectious disease or where there is a suspicion that a child is suffering, or is at risk of suffering, significant harm. There are also circumstances in which health professionals may be obliged to share confidential patient information where it would be…

1st February 2017 By Nick Nason

Home Office fails to act on recommendations of family returns advisers

The Home Office has belatedly published the reports of the Independent Family Returns Panel for 2012 to 2014 and 2014 to 2016. Home Office responses have been published in parallel. Why the Home Office was withholding from publication for so long the 2012-14 report is something of a mystery. The panel is made up of medical and child safeguarding experts, was established on 1 March 2011 to provide independent case-by-case advice to the Home Office on how to best safeguard children’s welfare during a family’s enforced return. The panel was put on a statutory footing by the Immigration Act 2014. Members are generally retired from senior posts including with social services, the police,…

19th January 2017 By Colin Yeo

New Home Office policy on administrative removals

Two new Home Office policies were published today: Criminal investigations (Immigration Enforcement) Liability to administrative removal (non-EEA): consideration and notification The one on administrative removal lools particularly important. It covers categories for administrative removal (overstayers, workers in breach, etc), types of illegal entry, no evidence of lawful entry cases, liability to removal, forms of deception, overstaying and extended leave, notification, curtailment and removal under previous legislation. The policy recognises that under the version of section 10 of the Immigration Act 1999 introduced by the Immigration Act 2014, deception no longer triggers a power to remove and instead curtailment action must now be pursued.

18th January 2017 By Colin Yeo

Fair dismissal for failure to produce evidence of right to work in UK | Personnel Today

An employment tribunal held that an employee was fairly dismissed after failing to produce evidence of his right to work in the UK. Interesting, if depressing. Hopefully this will be going up to the Employment Appeal Tribunal, if only so that we can see the law and reasoning behind it in a published determination. Source: Fair dismissal for failure to produce evidence of right to work in UK | Personnel Today

5th December 2016 By Colin Yeo

“Remove first, appeal later” provisions in force from today: new guidance published

The power under the Immigration Act 2016 to certify any human rights appeal, not just deportation appeals, for “remove first, appeal later” treatment came into force today, 1 December 2016. For background see this earlier blog post: New commencement order introduces out of country human rights appeals and more. Guidance has today been updated on how the power should be exercised by immigration officials: Section 94B of the Nationality, Immigration and Asylum Act 2002. Amongst the general updating, a new part has been added on the “phased implementation for non deport cases”. This part of the guidance applies the new power only to cases where the appellant did not have…

1st December 2016 By Colin Yeo

Removal Windows, Injunctions and Out of Country Appeals: The Acceleration of Enforced Removals

At the beginning of this month the Home Office brought into force new guidance on the suspension of removal directions for pending judicial reviews. There are two crucial changes to the policy: (1) At present, when a judicial review is brought within 3 months of a previous judicial review or appeal, the Home Office will only suspend removal on receipt of an injunction. This period is now extended to 6 months. (2) The second is new, building on the new removals process established by the Immigration Act 2014. Where a person is notified that they are liable to removal, the Home Office gives 7 days (or 72 hours if a person…

21st November 2016 By Lotte Lewis

Prosecutions for telling the truth

In the first successful challenge to prosecutions under s.35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, the Administrative Court in R (on the application of JM (Zimbabwe)) v Secretary of State for the Home Department [2016] EWHC 1773 (Admin) held that the Home Office may not lawfully require the Claimant, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agrees to return voluntarily. Facts of the case JM, a Zimbabwean national subject to deportation, was placed in immigration detention immediately on the expiry of his sentence in May 2013. The Home Office attempted to obtain an Emergency Travel Document (ETD) from the Zimbabwean…

26th July 2016 By James Packer

Home Office cancels 40% of scheduled removal flights, finds David Bolt

David Bolt, the Chief Inspector of Borders and Immigration, recently published a new report into the effectiveness of services that the Home Office outsources to private contractors, finding that inefficiency and lack of communication contribute to a waste of resources and time. The full report is available here: An Inspection of Home Of ce Outsourced Contracts for Escorted and Non-Escorted Removals and Cedars Pre-Departure Accommodation. The report focused on escorting and ticketing services in forced removals and the management of Cedars, the family Pre-Departure Accommodation Facility and identified several areas for improvement. In particular, it highlighted poor levels of collaboration between the Home Office and the different private contractors, which resulted…

31st March 2016 By Caterina Franchi

Indian student couple detained in dawn raid lose claim for unlawful detention

UPDATE 10/2/16: the judge has withdrawn the judgment. A married Indian couple detained in a dawn raid have lost their claim for unlawful detention. After successfully studying in the UK for some years, Ms Joshi’s latest application ran into problems when the college to which she applied to study a PhD was struck from the register of approved colleges. She was unable to find a new college in the 60 day grace period and so put in an application for more time. In the application she also claimed that her removal would breach her human rights. Her husband, Mr Thomas, applied at the same time as her dependent. The application was refused but…

9th February 2016 By Colin Yeo

Secretary of State removes appellant then claims appeal abandoned…

Well, this was a bit cheeky. A woman with an outstanding in-country immigration appeal was removed by the Home Office when she should not have been. The Home Office then argued that her appeal had to be treated as abandoned becuase of section 92(8) of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014, which reads: An appeal under section 82(1) brought by a person while he is in the United Kingdom shall be treated as abandoned if the appellant … (b) leaves the United Kingdom. This is the replacement for section 104 of the same Act, which was in similar terms and was in force for many…

29th January 2016 By Colin Yeo

Section 117C is limited to deportation cases, does not apply in removal cases

Section 117C is found to be limited to deportation cases (i.e. where a deportation order is in issue) and not to be applicable in removal cases which happen to involve a foreign national offender. The case is Clarke (Section 117C – limited to deportation) [2015] UKUT 628 (IAC) and the headnote reads: That section 117C of the Nationality, Immigration and Asylum Act 2002 is applicable only in deportation cases is made clear in section 117A(2) which, in directing the court or tribunal to the considerations involved when looking at the public interest question, clearly distinguishes between those cases that involve deportation from those that do not. Section 117A(2)(b) provides for a distinct…

16th November 2015 By Colin Yeo

Court of Appeal gives judgment on the “deport first, appeal later” regime

The Court of Appeal has given judgment in the test case on the meaning and effect of the “deport first, appeal later” provisions of the Immigration Act 2014. The case is R (On the Application Of Kiarie) v The Secretary of State for the Home Department [2015] EWCA Civ 1020 and the leading judgment is given by Lord Justice Richards. The short story is that the Court finds that the Home Office has been applying the wrong legal test in these cases but that it probably does not matter and removal while one attempts to pursue an appeal will generally be acceptable.

27th October 2015 By Colin Yeo

Iraq, Islamic state & indiscriminate violence

In HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409(IAC) (“HM2”) the Upper Tribunal speculated: …we consider that so far as Article 15(c) is concerned the most likely development is that the levels of violence will either continue to reduce or remain at around the same level as in 2010, 2011 and the first 9 months of 2012…. Whilst incidents in January-September 2012 demonstrate that insurgents still have the will and capability to launch multi large-scale bombings resulting in high numbers of civilian deaths, the evidence continues to indicate that their capability to carry out such attacks is diminished.

1st September 2014 By Ali Bandegani