Anti-trafficking victories in Supreme Court: Reyes and Benkharbouche

Today, Anti-Slavery Day, the Supreme Court has handed down judgments in cases that look at the extent to which diplomatic and state immunity allow diplomats to traffic and enslave their domestic workers with impunity. Traffickers will sleep a little less easily in their beds tonight. In Reyes v Al-Malki [2017] UKSC 61, Philippine national Cherrylyn Reyes brought a claim before the Employment Tribunal against the Saudi Arabian diplomat and his wife who had employed her at their home in London. She claimed she had been trafficked, that she had suffered racial discrimination and harassment, and that she had not been paid the national living wage. The couple claimed immunity from civil suit.  The Supreme…

18th October 2017 By Alison Harvey

ILPA funding available for strategic litigation

Grants of up to £30,000 are now available through the Immigration Law Practitioners’ Association to promote the rights of vulnerable migrant children and young adults. ILPA has relaunched the Strategic Legal Fund for Vulnerable Young Migrants. The fund will provide grants for organisations to: undertake pre-litigation research, or make third party interventions to ensure that the key legal points are made in existing cases. The first deadline for applications for the current funding round is 3 November 2017. More details are available on the project’s dedicated website: http://www.strategiclegalfund.org.uk/.

17th October 2017 By Conor James McKinney

Human rights, long residence and the integration test in the Court of Appeal

AS v SSHD [2017] EWCA 1284 Practitioners commonly rely on the “integration test” in the Immigration Rules to resist an individual’s removal on human rights grounds. The current rules can in some circumstances require a consideration of whether there would be “very significant obstacles” to an individual’s re-integration in that country if they were to be removed or deported. But what characteristics or circumstances can be considered when assessing these obstacles? The Court of Appeal in AS has provided some useful guidance. For a full exploration of the long residence rules and the 10 and 20 year rules in particular see our earlier post: The case of Stoly Jankovic: what are…

14th September 2017 By Thomas Beamont

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

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

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

24th May 2017 By Colin Yeo

Tribunal says foreign law is a question of fact normally determined by expert evidence

The Home Office proposed to remove the father of a family and three children to India and the wife and mother to Pakistan, thus separating the family. The family argued that they would be permanently separated because the immigration laws of India would not allow entry for the mother. The Home Office argued to the contrary, but the evidence on which the Home Office arguments was based was found to be, um, a bit flawed: It follows that the cornerstone of the Secretary of State’s case crumbles and collapses. The main pillar upon which the Secretary of State has sought to justify the impugned removal decisions has been shown to be devoid…

15th May 2017 By Colin Yeo

Strasbourg rules on state obligations towards trafficked persons

Chowdury and Others v Greece (Application number 21884/15 – the judgment is only available in French. An English-language press summary is available.) The European Court of Human Rights has found that strawberry-pickers in Greece were subjected to forced labour. The Court found that the authorities failed to prevent forced labour and protect the migrant workers. The case raises novel points about the scope of the right not to be subjected to forced labour, and the state’s obligations to investigate potential instances of forced labour and trafficking. The facts The applicants in this case are 42 Bangladeshi men who worked on a strawberry farm in Nea Manolada, Greece from 2012-2013. They…

2nd May 2017 By Thomas Beamont

Court of Appeal decides Supreme Court ruling in Hesham Ali is already redundant

Well, that did not take long. The Court of Appeal has in the case of NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 decided that the Supreme Court’s landmark judgment in Hesham Ali [2016] UKSC 60 is confined to cases in which the Immigration Rules are applied and does not apply to cases decided under the statutory human rights considerations introduced by the Immigration Act 2014. As background, in 2012 the Government introduced new Immigration Rules which in effect set a series of strict quasi-statutory tests to be applied in immigration cases in which human rights were pleaded. The intended effect was to reduce the…

18th April 2017 By Colin Yeo

Court of Appeal reaffirms position on adult dependent relatives

In Butt v SSHD [2017] EWCA Civ 184 the Court of Appeal considers the weight to be given to the relationship between parents and their adult dependent children in the Article 8 balancing exercise. It is notable – and this was the principle reason it managed to reach the Court of Appeal – because of the original decision of the First-Tier Tribunal (FTT) to make separate findings in relation to parents and those adult dependent children: allowing the appeals of the latter, while rejecting the former. The facts The Butt family arrived in the UK on 7 July 2004. They had been granted visit visas for a 6 month stay but did…

30th March 2017 By Nick Nason

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

Tribunal on recorded video evidence and Article 8 considerations

Official headnote to Lama (video recorded evidence -weight – Art 8 ECHR : Nepal) [2017] UKUT 16 (IAC): (i) Video recorded evidence from witnesses is admissible in the Upper Tribunal. Its weight will vary according to the context. (ii) Alertness among practitioners and parties to the Upper Tribunal’s standard pre-hearing Directions and compliance therewith are crucial. (iii) There are no hard and fast rules as to what constitutes family life within the compass of Article 8 ECHR. (iv) A person’s value to the community is a factor which may legitimately be considered in the Article 8 proportionality balancing exercise. Pre-recorded video would be particularly useful for an entry clearance appeal, it is worth pointing out….

2nd March 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

Strasbourg revisits approach to serious illness, medical treatment and Article 3

On 13 December 2016, the Grand Chamber handed down its much-awaited decision in Paposhvili v Belgium (Applcn No. 41738/10). The decision: (1) clarifies, widens and provides guidance on the circumstances in which an alien suffering from a serious illness can resist removal under art 3 ECHR; and (2) gives rise to serious questions as to whether the present UK jurisprudence is in step with the standards set in Strasbourg. The circumstances of the case The Applicant, Mr. Georgie Paposhvili, was a Georgian national, born in 1958, who had been living in Belgium with his wife and children, from November 1998. He claimed (and was refused) asylum in Belgium. From December…

27th December 2016 By Duran Seddon

Blocking detainees’ access to legal advice websites probably breaches Article 10 ECHR

Free Movement has reported twice on immigration removal centres (IRCs) blocking access to websites informing detainees of their legal rights. HM Chief Inspector of Prisons criticised Haslar IRC two years ago for having the websites of Bail for Immigration Detainees and Amnesty International blocked. What are "prohibited categories" of websites in IRCs if they include @BIDdetention Medical Justice @freemvmntblog ?? http://t.co/zyrDF5OcG4 — BID (@BIDdetention) March 8, 2013 The All Party Parliamentary Group on Refugees’ 2015 report on their inquiry into use of immigration detention slammed the detention centres for blocking access not only to the above websites, but also to the inquiry’s own website. We were told that, in practice, detainees…

13th December 2016 By Paul Erdunast

Hesham Ali and Makhlouf: What is the correct approach to determining deportation appeals?

In the cases of Hesham Ali [2016] UKSC 60 and Makhlouf [2016] UKSC 59 the Supreme Court has, finally, given guidance the correct approach to the determination of appeals against deportation decisions. Both the appeals were dismissed and the Home Office prevailed; but that is not the whole story and we have to look at the judgments carefully to understand the proper approach. Word is that the delay between the hearing of Ali and Makhlouf in January 2016 and handing down of the judgment last week was due to disagreements between the justices. Those disagreements were ultimately largely resolved, it would seem. Lord Reed gives the leading judgment in Ali with a…

24th November 2016 By Colin Yeo

Strasbourg finds asylum claim delay breaches Articles 8 and 13 ECHR

The judgment is in French only, unfortunately, but an English language press release is available. The summary reads as follows: In today’s Chamber judgment in the case of B.A.C. v. Greece (application no. 11981/15) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, a violation of Article 8 in conjunction with Article 13 (right to an effective remedy) of the Convention, and that there would be: a violation of Article 3 (prohibition of inhuman or degrading treatment) in conjunction with Article 13 (right to an effective remedy)…

18th October 2016 By Colin Yeo

Removal of married lesbians to India not a flagrant violation of family life

The Court of Appeal has held that the removal of married lesbians to India would not be a flagrant violation of their family life. Paragraph 7 sums up the issues: The FTT found that the appellants would continue to live together as a couple in India and could not be prevented from doing so there, even if they could not have as open a lifestyle as they did in the UK or enjoy a status having legal recognition, such as a civil partnership, under Indian law. Whilst the FTT accepted that the appellants shared family life with each other, it decided that their removal would not have such an effect…

18th May 2016 By Colin Yeo

Kidney transplant patient loses human rights immigration case

Hareef, R (On the Application Of) v Secretary of State for the Home Department [2016] EWHC 873 (Admin) is a case that was heard in the wake of GS (India), & Ors v SSHD [2015] EWCA Civ 40, which concluded that in asylum claims, Article 3 can have no real application in respect of an asylum seeker suffering from a serious medical condition who will not be able to acquire the necessary medical treatment back home if deported. Like the claimants in GS, Mr Hareef suffered from chronic renal failure. On arriving from Afghanistan in 2009, he collapsed and was taken to hospital and received dialysis. His application for asylum…

29th April 2016 By Chris McWatters

Council of Europe Commissioner condemns anti-migration rhetoric by Cameron and May

The Council of Europe Commissioner for Human Rights today published a Memorandum addressed to the UK Immigration Minister, James Brokenshire, in which he condemns the use of anti migrant language and rhetoric by Ministers including David Cameron and Theresa May, criticises discriminatory and disproportionate measures against migrants and expresses disappointment with the UK’s lack of solidarity with other EU Member States. The Commissioner commends the UK’s efforts in providing resettlement to Syrian refugees. However, he expresses disappointment with the UK’s lack of solidarity with other EU Member States by refusing to participate in the EU relocation programme. He notes the low number of asylum claims in the UK compared to elsewhere…

22nd March 2016 By Colin Yeo

Statutory human rights considerations apply to child and adult alike

The tribunal has held, inevitably, that the statutory human rights considerations apply to children as well as adults, although other considerations must also be taken into account: (i) In section 117B(1)-(5) of the Nationality, Immigration and Asylum Act 2002 parliament has made no distinction between adult and child immigrants. (ii) The factors set out at section 117B(1)-(5) apply to all, regardless of age. They are not however an exhaustive list, and all other relevant factors must also be weighed in the balance.  These may include age, vulnerability and immaturity. (iii) The juridical status of the relevant Home Office ‘Immigration Directorate Instructions’ must be appreciated. While these are subservient to primary and secondary legislation and…

15th March 2016 By Colin Yeo

Family life can be precarious even though Parliament forgot to mention it

Family life can be precarious even though Parliament forgot to mention it in the statutory considerations on Article 8. Or The Home Office May Have Its Cake And Eat It. That “precariousness” is a criterion of relevance to family life as well as private life cases is an established part of Article 8 jurisprudence: see e.g. R (Nagre) v SSHD[2013] EWHC 720 (Admin)and Jeunesse v Netherlands, app.no.12738/10 (GC).  The “little weight” provisions of s.117B(4)(a) and (5) of the Nationality, Immigration and Asylum Act 2002 are confined to ” private life” established by a person at a time when their immigration status is unlawful or precarious. However, this does not mean that when answering…

15th March 2016 By Colin Yeo

Refusal of leave to remain for their carer did not breach human rights of elderly couple

In this very sad case the carer for an elderly couple aged 91 and 93 applied for leave to remain on the basis that it would breach the rights of the elderly couple if she were no longer able to care for them. One of the couple suffered from Alzheimer’s and required 24 hour care and the carer had been employed since January 2014. The claim failed, despite the best efforts of my colleague Mark Symes, who acted for the carer and couple. Essentially, the tribunal held that the Home Office had been entitled to conclude that there might be alternative carers available to the couple. The carers’ policy was…

5th February 2016 By Colin Yeo

14 year long residence appeal caught by new 2012 rules fails

Question: …the issue raised on this appeal may be stated in the following terms: was the Appellant entitled after 9 July 2012 (when the new Immigration Rules came into effect) to continue to accrue continuous residence for the purposes of the 14 year rule contained in paragraph 276B of the old Rules up until the date of the notification of his liability for removal on 2 August 2012 with the result that the FTT should have concluded, on the basis of the unchallenged facts as found by it, that he had indeed achieved 14 years continuous residence by that date in accordance with the old Rules? Or put another way,…

29th January 2016 By Colin Yeo

Court of Appeal pronounces on abolished “no ties” private life rule

It is of academic interest given that the Immigration Rules were changed on 27 July 2014, but for what it is worth the Court of Appeal has considered the old “no ties” version of paragraph 276ADE on private life in the UK. This used to provide that a person would be permitted to stay if he or she: (vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

8th January 2016 By Colin Yeo

First successful entry clearance appeal on Article 10 free speech grounds

Jeremy Corbyn may be having a tough time since becoming leader of the Labour Party, but he can at least take some satisfaction in getting one over Theresa May in the Court of Appeal. The background facts are that a group of MPs and a peer had invited Mr Seherwet to a week long enquiry at the Houses of Parliament to discuss his conviction in the United States on charges of spying for the Cuban regime and his sentence of 15 years imprisonment.

1st December 2015 By James Packer

President gives guidance on statutory human rights considerations

President McCloskey has given guidance on the interpretation and effect of the statutory human rights considerations inserted into Part 5A of the 2002 Act by the Immigration Act 2014. The case is Deelah and others (section 117B – ambit) [2015] UKUT 515 (IAC) and Counsel Zane Malik’s four submissions were summarised at paragraph 3 of the determination as: (i) Sections 117A and 117B of the 2002 Act apply only to an appeal under section 84(1)(c) of the same statute. As a result, they have no application to this appeal which is brought under section 84(1)(a) and (g). (ii) Insofar as section 117B(4) and (5) of the 2002 Act purport to instruct Judges…

8th October 2015 By Colin Yeo

Another unsuccessful Legacy case

In R (on the application of Bah) v Secretary of State for the Home Department IJR [2015] UKUT 518 (IAC) the Upper Tribunal finds that even though the applicant had received a letter stating that the Home Office “aimed” to resolve cases by July 2011, this did not amount to an unambiguous promise because the letter went on to imply that some cases might not be. You can get a flavour of the reasoning from paragraph 42: I do not accept that the words: ‘your’, ‘will’, ‘be’ and ‘deadline’ made this letter a letter by which a specific promise was given to review the case by July 2011. Signing in…

1st October 2015 By Colin Yeo

Article 3 medical treatment cases not to be reconsidered by Supreme Court

The case of N v SSHD will stand: the Supreme Court has refused permission to appeal (see p9) from the Court of Appeal in the linked medical treatment cases on Article 3 ECHR with the words: With regret, the Panel can foresee no reasonable prospect of this Court departing from N v SSHD. In the Court of Appeal the cases were GS (India), EO (Ghana), GM (India), PL (Jamaica), BA (Ghana) & KK (DRC) v The Secretary of State for the Home Department [2015] EWCA Civ 40. The four whose appeals were dismissed by the Court of Appeal and who suffer from end stage kidney disease now face an early and unpleasant death within weeks following…

13th August 2015 By Colin Yeo

New tribunal cases on statutory human rights considerations and “integration”

The Upper Tribunal has handed down another two cases on the statutory human rights considerations introduced by the Immigration Act 2014. The relationship between Article 8, the Immigration Rules and the statutory considerations is the itch that judges cannot help but scratch, but it is primarily an academic and political issue rather than one of real substance. It is also the subject of one of the Free Movement CPD training courses if you are interested. There are plenty of more serious issues that affect real outcomes for refugees, migrants and their families, though, and it would be nice to see the tribunal turn its attention to some of those.

29th July 2015 By Colin Yeo

Human rights and best interests relevant in ALL decisions

In Granovski v Secretary of State for the Home Department [2015] EWHC 1478 (Admin) HHJ Coe QC sitting as a Deputy Judge of the High Court rejects the Home Office contention that the best interests of children and private and family life of the applicant and his family could only be considered in response to a specific paid human rights application:

7th July 2015 By Colin Yeo

When is Article 8 private and family life engaged?

The question of when family and private life exists in a legal sense is an increasingly important one in immigration law as it effectively determines whether a person has a right of appeal against refusal on an immigration application. The Court of Appeal addresses this issue in the case of Singh v The Secretary of State for the Home Department [2015] EWCA Civ 630, albeit not in a case that directly addresses rights of appeal. The context is that the Home Office and some judges take an extreme approach to family life which refuses to countenance that family life might exist between adults other than in exceptional circumstances. Home Office…

3rd July 2015 By Colin Yeo

Gulshan disapproved in High Court

This post is a largely academic one for the lawyers and judges amongst Free Movement readers. The latest case in the interminable parade of cases addressing the interaction of Article 8 and the Immigration Rules is the case of R (on the application of Sunassee) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2015] EWHC 1604 (Admin). Interestingly, this is a rare example of a judicial review of a decision of the Upper Tribunal refusal of permission to appeal to itself. These cases rarely reach a hearing because they are dealt with on the papers under CPR 54.7A. Read Desmond’s post on all this for a full procedural background: Challenging a refusal…

19th June 2015 By Colin Yeo

Precarious immigration status defined

The Upper Tribunal has promulgated long-awaited guidance on the interpretation of section 117B Nationality, Immigration and Asylum Act 2002. The headnote of AM (S 117B) Malawi [2015] UKUT 260 (IAC) provides:

28th May 2015 By Bijan Hoshi

Does the Human Rights Act prevent us deporting serious criminals?

It is very widely believed that the Human Rights Act stops the UK from deporting foreign criminals whence they came. To a limited extent, there is some truth in this. Some appeals against deportation decisions do succeed on human rights grounds. Not many, though, and none succeed because of the Human Rights Act as distinct from the European Convention on Human Rights. Other appeals against deportation succeed under EU law or the Refugee Convention. It is also strange but true that, contrary to popular belief, the era of the Human Rights Act has actually seen a massive downgrading of protection against deportation for foreign criminals. Read on to find out…

26th May 2015 By Colin Yeo

We already have a Bill of Rights, thank you very much

The Conservative Party manifesto includes replacement of the Human Rights Act with a Bill of Rights. We already have a Bill of Rights, so the proposed Conservative version will need to be called something different. Perhaps Bill of Rights 2: The Dark Night Rises. The Bill of Rights of 1689 was one of the most significant landmarks on the long march to Parliamentary democracy. It is of more immediate significance than Magna Carta, the 800th anniversary of which has been much celebrated this year. The Act is part of what has become known as the Glorious Revolution. It was based on the earlier Declaration of Right from 1688 and was…

12th May 2015 By Colin Yeo

Clearly unfounded certificate upheld in 19 years unlawful residence case

Upper Tribunal Judge Craig takes a hardline stance against certification as clearly unfounded an Article 8 claim based on 19 years unlawful residence in the case of R (on the application of Singh and another) v Secretary of State for the Home Department IJR [2015] UKUT 134 (IAC): In this case, there has been no evidence put either before the respondent or before the Tribunal which is or could be capable of persuading a decision maker that the claim should be allowed outside the Rules. The Rules, which have been approved in Parliament, set out circumstances in which an Article 8 claim can succeed where an applicant has been in…

24th March 2015 By Colin Yeo

New case interprets Chikwamba. Again

A new case from the Upper Tribunal (re-)interprets Chikwamba again: R (on the application of Idris) v The Secretary of State for the Home Department (IJR) [2015] UKUT 95 (IAC) [EDIT: curiously identical to R (on the application of Thakral) v The Secretary of State for the Home Department (IJR) [2015] UKUT 96 (IAC)]. Official headnote: The Chikwamba v SSHD [2008] UKHL 40 [2008] 1 WLR 1420 principle is only engaged if, in the terms of [30] (a) of SSHD v Hayat (Pakistan) [2012] EWCA Civ 1054, the SSHD has refused the application in question “on the procedural ground that the policy requires that the applicant should have made the application from his home state”.

5th March 2015 By Colin Yeo

Tribunal pronounces on statutory human rights considerations

In Dube (ss.117A-117D) [2015] UKUT 90 (IAC) the Upper Tribunal expresses its opinions on the new Part 5A of the Nationality, Immigration and Asylum Act 2002, introduced by the Immigration Act 2014. The Court of Appeal has already had its say in the case of YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 and you can read my earlier posts on the subject here and here.

4th March 2015 By Colin Yeo

Human rights, private life, paragraph 276ADE, suitability and ties

Bossadi (paragraph 276ADE; suitability; ties) [2015] UKUT 00042 (IAC) is very short but somewhat less than sweet. A panel of the tribunal tries to row back from the earlier case of Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) and suggest that the now scrapped (and so largely academic) “no ties” provision of paragraph 276ADE in the private life section of the Immigration Rules is “objective”, judges aren’t supposed to accept evidence from witnesses and ties on the basis of ancestry, blood, colour or whatever are sufficient for someone to be sent “home”. The official footnote: 1) Being able to meet the requirements of paragraph 276ADE of…

9th February 2015 By Colin Yeo

No broadening of Article 3 test in health cases

Unfortunately the Court of Appeal’s judgment in the Article 3 health test cases in GS (India) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40 (30 January 2015) does not change very much for migrants with serious health conditions seeking to remain in the UK.

4th February 2015 By Abigail Smith