Immigration tribunal one of first to convert to online court model

The first signs of an online court will be visible in tribunals by September, online processes will be extended to a wide range of civil court proceedings by May 2020, and the reforms will be incremental, according to one of the judges in charge… …The first jurisdictions to adopt the online court would be the social security and child support tribunal, followed by immigration and asylum. What could possibly go wrong? It seems obvious to test online courts on a jurisdiction where litigants do not always speak English and are some of the most vulnerable, marginalised and powerless in society and where tribunal systems mean it is not yet possible to…

23rd February 2017 By Colin Yeo

Court of Appeal testing new shorts

The Court of Appeal is testing out a new style of “short form” judgment. Given the backlogs at the Court of Appeal at the moment, this seems eminently sensible. Although the particular judgment — yet another appeal by the Secretary of State against a deportation appealbeing allowed — does beg the question of whether permission is granted rather too readily to the Secretary of State despite the supposed strictures of the second appeals test: This is a short form judgment which, with the encouragement of Sir Terence Etherton MR, judges of the Court of Appeal may in future use for appellate decisions in appropriate cases. This appeal raises no issue…

22nd February 2017 By Colin Yeo

Tribunal on meaning of absences from the UK for no more than 180 days

Official headnote: (i) On a proper construction of paragraph 245AAA(a)(i) of HC 395, an absence from the United Kingdom for a period of more than 180 days in one of the relevant 12 month periods will entail a failure to satisfy the requirements of paragraph 245CD. (ii) The term ‘residence’ in paragraph 245AAA(a) is to be equated to presence. Some very clever arguments put but sadly the case failed. Source: RN, R (on the application of) v Secretary of State for the Home Department (paragraph 245AAA) [2017] UKUT 76 (IAC) (12 January 2017)

21st February 2017 By Colin Yeo

New consultation on changes to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

The Tribunal Procedure Committee (TPC) is interested to receive your views on changes arising from the Immigration Act 2016, in particular to a number of changes to bail, which the Tribunal Procedure Committee considers may make amendments to the rules relating to bail applications desirable. The Immigration Act 2016 (“the 2016 Act”) received Royal Assent on 12 May 2016. It makes significant changes to the substantive law relating to immigration and asylum, including provisions relating to access to services, facilities, licences and work by reference to immigration status. It makes provision for the Director of Labour Market Enforcement; introduces language requirements for public sector workers; amends fees for passports and…

20th February 2017 By Colin Yeo

Shortage of judges hits immigration tribunals | Law Society Gazette

A rapid decline in the number of immigration tribunal judges could herald a crisis, despite the government’s insistence that there is sufficient capacity to deal with a growing backlog of work. Government figures show that in 2012 there were 347 fee-paid and 132 salaried judges in the first-tier tribunal. In 2016 there were only 242 fee-paid and 77 salaried. In the upper tribunal, a headcount of 40 fee-paid and 42 salaried judges in 2012 declined to 35 fee-paid and 42 salaried last year. Official figures show there were 62,903 outstanding cases in the first-tier tribunal at the end of the third quarter last year, up 20% on the same period…

20th February 2017 By Colin Yeo

Reconstructing Judicial Review By Sarah Nason

In her just published book, Reconstructing Judicial Review, Sarah Nason (Bangor University) uses legal theory and empirical research to explore the extent to which the nature of judicial review has changed since 2007. Here she discusses the research behind the book and sets out key features of judicial review as a tool for the advancement of justice and good governance. Source: Reconstructing Judicial Review | UKAJI

13th February 2017 By Colin Yeo

General grounds for refusal: owing a litigation debt to the Home Office

The Statement of Changes HC877, of 11 March 2016, gave the Home Office yet another power to refuse applications for leave to enter or remain in the UK. For all applications made on or after 6 April 2016, having a “litigation debt” to the Home Office may be a ground for refusal. These debts may arise in the course of any litigation against the Home Office (e.g. judicial reviews, claims for unlawful detention and appeals), where the court or Tribunal orders the other party to pay the Home Office’s costs. The purpose of this change, according to the Home Office’s Explanatory Memorandum, is to encourage applicants to pay litigation debts…

8th February 2017 By Colin Yeo

Rules under which over 10,000 fast track asylum appeals decided declared unlawful

The High Court has ruled in the case of R (On the Applications Of TN (Vietnam) & US (Pakistan)) v Secretary of State for the Home Department & Anor [2017] EWHC 59 (Admin) that over 10,000 asylum appeals had been decided under procedure rules so unfair that the determinations could be set aside. Any unsuccessful asylum seekers affected by these rules will now need to apply to the immigration tribunal to have their decision set aside. The critical legal question was whether the Court of Appeal judgment in R (Detention Action) v First-tier and Upper Tribunals (Immigration and Asylum Chambers), Lord Chancellor and SSHD [2015] EWCA Civ 840 applied as much…

23rd January 2017 By Colin Yeo

Court of Appeal endorses Home Office practice of issuing supplementary decision letters

The Court of Appeal has in effect endorsed the Home Office practice of issuing “supplementary” decision letters during judicial review litigation to try and make good defects in the original refusal. The case is Caroopen & Myrie v The Secretary of State for the Home Department [2016] EWCA Civ 1307. Underhill LJ concludes as follows: In summary, I would reject the submission that there is anything inherently wrong in the deployment by the Secretary of State in judicial review proceedings of supplementary letters post-dating the challenge. They may be effective in any one of three ways identified above. Ms Anderson sensibly acknowledged in her oral submissions that their use was…

18th 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

Immigration tribunal President blasts lawyers in sex grooming gang appeal (updated)

President McCloskey has blasted the “cavalier and unprofessional” lawyers for both claimants and the Home Office in his latest determination of Shabir Ahmed and others (sanctions for non – compliance) [2016] UKUT 00562 (IAC). The case is that of four men convicted in 2012 of child sex offences in Rotherham who were subsequently stripped of their British citizenship. The appeal is against deprivation of citizenship. Inevitably, there has been media coverage. The President does not mince his words: The Upper Tribunal has been treated with sustained and marked disrespect. The conduct of these appeals has been cavalier and unprofessional. The rule of law has been weakened in consequence. Some of the exact criticism…

13th January 2017 By Colin Yeo

Parliamentary and Health Service Ombudsman upholds three in four complaints about the Home Office

The Parliamentary and Health Service Ombudsman has revealed that it upheld 75% of complaints made against the Home Office and Border Force last year: Incorrect decisions, delays and wrong advice are the top reasons for the Parliamentary and Health Service Ombudsman upholding the highest proportion of complaints about the Home Office than any other government department, a report published today reveals. The report outlines the unresolved complaints the Parliamentary and Health Service Ombudsman investigated about all government departments last year. It provides detailed information about the ‘big four’ departments: the Home Office, Department for Work and Pensions (DWP), Her Majesty’s Revenue & Customs (HMRC) and the Ministry of Justice (MoJ),…

4th January 2017 By Colin Yeo

Supreme Court criticises complexity of immigration rules (but dismisses case anyway)

The Supreme Court has given judgment in the case of Mirza v Secretary of State for the Home Department [2016] UKSC 63. The case concerned the effect of section 3C of the Immigration Act 1971 as amended and whether it extends leave where an applicant for leave is found later to have made an invalid application. In short, it does not. The appeals were dismissed. In the course of giving the leading and only judgment, Lord Carnwath expresses dismay at the state of immigration law: I have found this a troubling case. It is particularly disturbing that the Secretary of State herself has been unable to maintain a consistent view of…

14th 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

Form FLR(O) is dead. Long live forms FLR(HRO) and FLR(IR)!

Venerable Form FLR(O) is no more and has been withdrawn with effect from today, 1 December 2016. It has been replaced by two new forms:  FLR(HRO) broadly for applications outside the Immigration Rules based on human rights: discretionary leave (DL) if you have previously been granted DL but have not previously been refused asylum, granted less than 4 years exceptional leave) medical grounds or ill health human rights claims (not to be used for claims on the grounds of family or private life, including on the basis of family dependencies between a parent and a child, or for protection (asylum) claims) leave outside the rules under the policy concessions in the…

1st December 2016 By Colin Yeo

Government reverses 500% immigration tribunal fee increases

In a surprising but very welcome development, the Government has reversed the 500% increase in fees for immigration appeals which took effect on 10 October 2016. Fees will instead be charged at the old rates and those who have paid the higher fees in the last few weeks will have their payments refunded. The fee increases were due to hit EU nationals and their family members very hard given the number of immigration appeals likely to be generated by the flood of permanent residence applications generated by Brexit. In addition, the Home Office may not have been terribly happy about having to pay the appeal fees in cases in which…

25th November 2016 By Colin Yeo

Massive batch of new forms and guidance released

There has been a massive batch of new guidance and forms issued today. At the time of writing these were the updates so far (updated 25/11/16): Application to extend stay in the UK as a partner: form FLR(M) Form UK Visas and Immigration Updated: 25 November 2016 UK ancestry Guidance UK Visas and Immigration Updated: 25 November 2016 Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5) Guidance UK Visas and Immigration Updated: 25 November 2016 UK visa, immigration and citizenship application forms Collection UK Visas and Immigration Updated: 24 November 2016 Points-based system: evidential flexibility Guidance UK Visas and Immigration Updated: 24 November 2016 Family members…

24th November 2016 By Colin Yeo

New Practice Statement on what tribunal “caseworkers” can do instead of judges

There is a new Practice Statement on what tribunal caseworkers (i.e. employed lawyers) can do instead of judges in the First-tier Tribunal Immigration and Asylum Chamber. Some of the functions are definitely ones I would consider to be judicial rather than administrative. I am not sure what has changed since last time but the list is quite a long one: Case management powers under Rule 4(3)(a), 4(3)(c), 4(3)(d), 4(3)(f), 4(3)(h), 4(3)(i), and 4(3)(k); Striking out of an appeal for non payment of fee and reinstatement under Rule 7; Treating an appeal as abandoned or finally determined under Rule 16; Withdrawal functions under Rule 17 (with the exception of Rule 17(2));…

23rd November 2016 By Colin Yeo

Justice must not only be done but must manifestly be seen to be done

Astonishing conduct by a judge: In summary, the Judge (a) engaged in a private conversation with the Appellant’s representative (b) in the absence of the other party’s representative (c) in the precincts of the court room (d) partly out of sight and earshot of the Appellant and his spouse (e) in a setting other than that of bench/bar (f) before the Appellant’s hearing began (g) relating to the Appellant’s case and, finally, (h) the contents whereof, other than a question about the Appellant’s religious adherence, itself an improper enquiry made in this fashion, were not divulged to the Appellant. Appeal allowed, remitted to a differently constituted tribunal. The headnote reads…

23rd November 2016 By Colin Yeo

Success rate for oral compared to paper immigration appeals

What do you get for your money when you pay for an oral over a paper hearing in the immigration tribunal? Since the introduction of much higher appeal fees in October 2016, the price difference is now between £490 for an “on the papers” decision and £80o for a proper oral hearing, even before paying for a lawyer to turn up. Is it really worth paying the extra for a full hearing? The difference is that an “on the papers” hearing is not really a hearing at all. Both sides have a chance to send in written evidence and submissions and a judge will then review the paperwork and issue a…

16th November 2016 By Colin Yeo

Updated Home Office policy on reviewing cases when appeals are lodged

Updated Home Office policy on reviewing cases when appeals are lodged: UK Visas and Immigration guidance for how it considers the grounds for appeal and supporting documents of an application. Call me a cynic, but I have never ever seen any evidence that ECOs or the Home Office seriously reconsider a decision when an appeal is lodged. A very polite request for reconsideration can sometimes get results if strong, but just lodging the appeal never seems to lead to reconsideration. If anyone has experience to the contrary, do leave a comment. UPDATE: Interestingly, a few people have been in touch to say they have found some decisions getting overturned when…

21st October 2016 By Colin Yeo

Upper Tribunal considers its powers to set aside its own decisions

The Upper Tribunal in this case considers its powers to set aside its own decisions. The official headnote: The decision of the Court of Appeal in Patel [2015] EWCA Civ 1175 entails the view that the Upper Tribunal’s powers to set aside its own decisions are limited to those in rules 43 and 45-6 of the Upper Tribunal Rules. This is actually a case from July which I seem to have somehow missed over the summer. The determination includes an interesting review of the jurisprudence and history of the tribunal’s powers of set aside, if you like that kind of thing. Which I do, tragically. The main practical import really seems to be that…

21st October 2016 By Colin Yeo

Fees for EU nationals and others appealing immigration decisions increase over 500% today

As of today, 10 October 2016, it now costs £800 to lodge an appeal against an immigration decision where a proper oral hearing is requested. The change was announced on 15 September 2016 and the necessary legal change, the First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) Order 2016, was laid at the same time to come into effect on 10 October 2016. The new fees only apply where the decision appealed against was taken on or after 10 October 2016, according to Article 7 of the Order: the amendments made by this Order only apply in respect of an appeal to the First-tier Tribunal against a decision which was taken on or after the…

10th October 2016 By Colin Yeo

Family and private life FLR(M) and FLR(FP) online applications now possible

Online versions of the FLR(M) and FLR(FP) application forms are now available for use. The form needs to be printed at the end and sent off to the Home Office with the required supporting documents. Use this online application as an alternative to the FLR(M) and FLR(FP) paper forms. Apply to remain in the UK as the family member or partner (for example, spouse) of a: British citizen person settled in the UK person who has refugee leave or humanitarian protection in the UK You can also use this form to apply on the basis of private life in the UK. You can add some family members (‘dependants’) to your…

10th October 2016 By Colin Yeo

Online EEA permanent residence and European passport return service now available

The Home Office has quietly and with no fanfare launched online residence certificate and permanent residence certificate application processes and accompanying European passport return service. I have put together a 20 minute video walk through of what the permanent residence application service looks like with some commentary which I hope is helpful for those considering whether to use the service. The video was recorded in October 2016 and the online process has since been updated and improved since then. You can read about the changes here. About the online EEA application process The online process is basically an online version of the EEA(QP) or EEA(PR) forms. However, the online versions…

4th October 2016 By Colin Yeo

Changes to appeals to Court of Appeal from 3 October 2016

Access to the Court of Appeal is being restricted with effect from 3 October 2016 by means of important changes to the Civil Procedure Rules (CPR). The headline changes are: Removal of the automatic right to an oral hearing when renewing an unsuccessful application for permission to appeal. Renewed applications will be determined on the papers, but a judge can exceptionally direct an oral hearing. The test for permission on second appeals is re-worded to require “a real prospect of success” (in addition to an important point of principle or practice). New seven day time limit for appeals from refusals of permission to apply for judicial review by the Upper Tribunal….

3rd October 2016 By Colin Yeo

No appeal to Court of Appeal until Upper Tribunal appeal concluded

The Upper Tribunal has ruled that there is no right of appeal to the Court of Appeal against decisions of the Upper Tribunal until Upper Tribunal appeal is finally concluded. This means there is no right of appeal to the Court of Appeal against an Upper Tribunal decision that there was or was not an error of law committed by the First-tier Tribunal. The official headnote: In a statutory appeal, the right of appeal under s 13 of the 2007 Act does not arise until the Upper Tribunal has completed the process required by s 12. I cannot imagine this decision being overturned by the Court of Appeal, which is…

27th September 2016 By Colin Yeo

Fresh claims *might* generate right of appeal after all

Two further cases have added to the jurisprudence on whether it is possible under the Immigration Act 2014 to appeal against a refusal of a fresh protection claim. The cases are R (on the application of Sharif Hussein) v First-Tier Tribunal (para 353: present scope and effect) IJR [2016] UKUT 409 (IAC) and  Sheidu (Further submissions; appealable decision) [2016] UKUT 412 (IAC). As background, I and others have argued since the passage of the Immigration Act 2014 that there is a right of appeal against a decision to reject a fresh human rights or asylum claim. By “fresh” I mean not the initial claim for protection but a second or…

26th September 2016 By Colin Yeo

Return of passport by Home Office to sit Secure English Language Test

The Home Office has confirmed that where it holds the passport of a migrant who wishes to sit the Secure English Language Test (SELT) it will either return the passport to enable the migrant to sit the SELT or will confirm directly with the SELT centre that the passport is held and is genuine. The full FOI response can be accessed here and the relevant parts are as follows: The Home Office does not has not issued any guidance specifically on the issue of the return of passports held by the Home Office to enable an individual to present identity documents at an approved Secure English Language Testing (SELT) centre. However,…

23rd September 2016 By Colin Yeo

No right of appeal against refusals for extended family members rules tribunal

In the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) the Upper Tribunal has ruled that there is no right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member. The official headnote: There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. The decision does not affect EEA nationals themselves nor family members, only “extended family members”, usually durable partners, dependent other relatives or members of household: see paragraph 8 of the…

21st September 2016 By Colin Yeo

Immigration tribunal to be merged into unified online justice model?

In a joint statement made yesterday, the Lord Chancellor, Lord Chief Justice and Senior President of Tribunals announced that all courts and tribunals will be moving towards an online model and will also merge into a single justice system. The proposals for the civil courts have been described as a “lawyerless” model in which lawyers are not required. This news comes the same day as the announcement that dramatic increases in immigration tribunal fees are to go ahead “as soon as possible.” There is no specific mention of the immigration tribunal int he joint statement but on tribunals generally the statement says: …The necessary ingredients are already in place to help…

16th September 2016 By Colin Yeo

Upper Tribunal can review Home Office decisions made concerning Scottish residents

The Upper Tribunal’s jurisdiction to decide an application for Judicial Review is not affected by the applicant’s being in Scotland. The Tribunal will, however, consider issues of forum non conveniens if it is suggested that its jurisdiction should not be exercised. Not sure that the Scottish judiciary will be terribly pleased about this. Some reactions on Twitter: @ColinYeo1 @jamiejkerr @alancaskie @G_MCGILL @MalikZane very interesting- mechanics of raising a JR in England 'seems' easier than Scotland — Darren Stevenson (@HC395) August 12, 2016 @ColinYeo1 Scottish bar will not be happy! — Deepak Bali (@iamdbali) September 5, 2016 Source: Kashif, R (on the application of) v Secretary of State for the Home Department…

5th September 2016 By Colin Yeo

No in-country right of appeal for two men accused of having their English tests taken by a proxy

Evidence had come to light that ETS tests in the case of these two men may have been taken by a proxy. Therefore their leave to remain in the UK was curtailed. The Court of Appeal agreed with the Home Office, quashing the decisions of the Upper Tribunal, which alongside the First-Tier Tribunal had accepted the two men’s arguments on the facts and law on appeal from the decision. The main point of law concerns section 92(4)(a) of the 2002 Act, and whether an appeal to a curtailment of leave which contains a human rights claim provides an in-country right of appeal in accordance with that section of the Act….

18th August 2016 By Paul Erdunast

Administrative Court judicial review guide: essential reading for practitioners

A new 152 page guide to judicial review applications has been issued by the Administrative Court Office. It is vitally important reading for all practitioners: The Guide does not have the force of law, but parties using the Administrative Court will be expected to act in accordance with it. There is no equivalent for immigration judicial reviews in the Upper Tribunal, but much of the guide is transferable as a matter of principle. Source: Administrative Court judicial review guide – Publications – GOV.UK

11th August 2016 By Colin Yeo

Fees for Upper Tribunal judicial review applications rise again

Fees for judicial review applications hare risen yet again from today, Monday 25 July 2016. A new fees order was quietly laid last Friday: The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016. The fees going up are for the permission stage and they rise by 10%. Other fees remain as they were. There is no convenient and accessible list of the different fees for Upper Tribunal judicial review applications, so I thought it might be useful to put them together into a blog post. Why the Upper Tribunal cannot do this on their website I do not really know, but it turns out the President does attach a schedule of…

25th July 2016 By Colin Yeo

Interesting report of tribunal expediting appeal after legal challenge

Available to ILPA members only, interesting report of the tribunal initially refusing to expedite a refugee family reunion appeal but agreeing to do so after a pre action letter was sent. Made a huge difference to the listing time. Source: Note on expediting cases in the First-tier Tribunal by Ben Gaston… · Resources · Immigration Law Practitioners’ Association

22nd July 2016 By Colin Yeo

Article 8 assessed at date of decision in entry clearance cases

Article 8 is to be assessed as at the date of decision in entry clearance cases, the Court of Appeal has found: Accordingly, I would reject the date of decision argument. The decision under appeal was, as regards article 8 as much as the policy issue, the ECO’s decision of 12 March 2012; and the relevant circumstances were thus, in accordance with section 85A (2), those appertaining at the date of that decision. Source: Gurung v The Entry Clearance Officer, New Delhi [2016] EWCA Civ 358 (07 April 2016) This post has been corrected. It originally suggested that Article 8 was to be assessed at the date of appeal, which is…

13th July 2016 By Free Movement

Should an application for judicial review be stayed while the decision maker reconsiders?

Paragraph 1: The situation in the present case raises again the question of whether it is appropriate to stay an application for judicial review when the defendant public authority has agreed to reconsider the decision in point, from scratch, with a fresh and open mind. The answer is that it is not appropriate to do so. Staying an application would have the effect of bringing the later decision within the scope of the judicial review. This would be unacceptable primarily because the decision-maker would have the Administrative Court’s shadow hanging over them when they make the decision. This is inconsistent with the function of the Administrative Court, which is to review discrete decisions by means of…

11th July 2016 By Paul Erdunast

Tribunal decides it has no jurisdiction to determine whether fresh protection claim test is met

More from the tribunal on how a “protection claim” implicitly means the paragraph 353 fresh claim must be met where it applies. The tribunal must decide its jurisdiction, apparently, but not in these circumstances, where someone else must decide it. I still don’t buy it, but so far the higher courts have shown zero interest in overturning this line of tribunal authority. 1.  A decision that further submissions do not amount to a ‘fresh claim’ under para 353 of the Immigration Rules is not a decision to refuse a protection or human rights claim and so does not give rise to a right of appeal to the First-tier Tribunal under s.82…

28th June 2016 By Colin Yeo

New case on effective service under 2013 amendments

Official headnote: 1. For the purposes of Art 8ZA(2) of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161)(as inserted by SI 2013/174 with effect from 12 July 2013), a notice is not sent to a postal address “provided for correspondence by the person” if the address is provided to the Secretary of State by a third party such as a sponsor educational institution unless the third party is the authorised agent of the person. 2. However, where no postal address (or e-mail address) for correspondence has been provided, an address provided by a third party may be the “last-known or usual place of abode” of the person…

23rd June 2016 By Colin Yeo