Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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How many EU citizens will be criminalised by Brexit?

Some EU citizens now living in the UK will find themselves committing criminal offences after Brexit. That much is certain. How many people exactly will become unlawfully resident is probably impossible to calculate, and here at Free Movement we do not have the resources to do so, but the number could plausibly run into the hundreds of thousands. EU citizens who have resided in the UK lawfully for five years before 29 March 2019 and continue to be resident in the UK will be entitled to “settled status”. (Those here for fewer than five years are entitled to “temporary status” while they clock up the necessary five years.) But this…

13th December 2017 By Colin Yeo

September 2017 immigration update podcast

Welcome to the September 2017 edition of the Free Movement immigration update podcast. This month covers several cases, one from the Court of Appeal and the others from the Upper Tribunal. I’m also going to give a mention to some of our new explainers on different aspects of immigration law and take a look at the case of Samim Bigzad, whose case highlighted the law on contempt of court for a government minister. The material is all drawn from the September 2017 blog posts on Free Movement. If you would like to claim CPD points for reading the material and listening to this podcast, sign up here as a Free Movement member. There are…

13th December 2017 By Colin Yeo

New immigration bail and detention powers introduced 15 January 2018

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

12th December 2017 By Colin Yeo

Australian supreme court considers British Overseas Citizenship basically worthless

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

8th December 2017 By Colin Yeo

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

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

24th November 2017 By Colin Yeo

Ministers still struggle with meaning of “indefinite” detention

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

22nd November 2017 By Colin Yeo

Naturalising or registering as a British citizen: the good character requirement

With very few exceptions, anybody over the age of ten who applies for registration or naturalisation as a British citizen needs to meet the so-called “good character requirement”. This is a requirement set out in Schedule 1 of the British Nationality Act 1981. Where a person is deemed by the Home Office not to be “of good character” then his or her application for citizenship will be refused. There is no further definition of what is meant by “good character” in the British Nationality Act 1981. However, there is guidance available from the Home Office as to what is likely to be considered behaviour that indicates a person is not…

20th November 2017 By Colin Yeo

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

Court of Justice finds EU citizens retain free movement rights after naturalisation in host state

The Court of Justice of the European Union has found in the case of C-165/16 Lounes that EU citizens who move to the UK and later naturalise as British retain their free movement rights under EU law even though they have become British. The court has held that the UK has wrongly been refusing to recognise free movement rights for such EU citizens since 2012. The case has particular significance to those EU citizens who have naturalised as British following the Brexit referendum because it means that the UK has wrongly been denying them their EU law rights in the meantime. The victory is a Pyrrhic one for them, perhaps, because after Brexit…

14th November 2017 By Colin Yeo

An immigration lawyer reviews Paddington 2: life in the hostile environment

Warning: contains spoilers. And information about the plot too. Let me say at the outset that Paddington 2 is a deeply unrealistic film. As a Paddington fan and father of two young children I had no problem suspending my disbelief to allow for a talking bear. I was, for the duration of the film at least, relaxed about the idea that an elegant crescent near Portobello Road might be populated by actual living, working Londoners. The absence of electronic screens from Brown family life seemed natural. It did not cross my mind, at the time, how improbable was the existence of multiple functioning red telephone boxes. I could even accept,…

13th November 2017 By Colin Yeo

The immigration rules for adult dependant relatives: out with the old…

Since July 2012 the immigration rules for adult dependent relatives have been, in practice, almost impossible to meet. Applicants need to demonstrate that they require a level of long-term personal care that they are unable to get in their home country, either due to cost or availability. This makes it impossible for the parents, grandparents or other adult dependent relatives of British citizens and those present and settled in the UK to join their family here. What do the rules say? The rules are set out in Appendix FM to the Immigration Rules. The main ones are as follows: E-ECDR.2.1. The applicant must be the- (a) parent aged 18 years or over;…

8th November 2017 By Colin Yeo

Ever wanted to write for Free Movement? We’re recruiting!

There is a lot going on in immigration law at the moment and we are looking to recruit more specialist contributors to Free Movement. If you can write fluently, you are interested in being read by a wide audience and you are fascinated by immigration law and practice then have a think about joining our small team of contributors. We are particularly looking for someone who can help with quick reaction legal analysis of case law and rule changes and who is capable of seeing the wider impacts of changes to immigration law. There will also be opportunities to write about developments and themes in immigration law, policy and practice, though. Free Movement is…

8th November 2017 By Colin Yeo

Could Catalan separatists qualify for refugee status in the UK?

Carles Puigdemont, erstwhile President de la Generalitat de Catalunya, fled Spain to Belgium this week following his parliament’s unilateral declaration of independence for Catalonia. Several of his ministers followed him into exile. A European Arrest Warrant will soon be issued seeking their extradition back to Spain to face criminal charges. Meanwhile, eight other Catalan ministers who stood their ground were detained yesterday by Spain’s high court and face charges of rebellion, sedition and misuse of public funds for their roles in the independence referendum, which was illegal under Spanish law. Other senior Catalan politicians face similar charges but their cases are complicated by parliamentary immunity. Puigdemont and his ministers breached Spanish…

3rd November 2017 By Colin Yeo

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

Brexit increasing risk of modern slavery, report reveals

In a report published today a group of experts on modern slavery reveal that uncertainty, confusion and threats to EU migrants as a result of Brexit is making it more likely that EU workers will face labour exploitation in the UK. This is a very good, thoughtful report. I’m a bit late to it; the research actually came out in August. The report articulates one of my concerns with ending free movement of workers. Exploitation of EU workers already increasing. Will be far, far worse after Brexit. https://t.co/JnrGI8OyPa — Colin Yeo (@ColinYeo1) October 24, 2017 There is lots of lobbying for “sector based schemes” for agriculture, construction, hospitality, food processing…

26th October 2017 By Colin Yeo

Home Secretary Amber Rudd announces review of Immigration Rules

The Home Secretary, Amber Rudd, has announced that the Law Commission will conduct a review of the Immigration Rules. The review came to light in Rudd’s oral evidence to the Home Affairs Select Committee on 17 October but Law Commission staff had already begun meetings before then, including with me. At question 84, Rudd was asked about the complexity of the rules. She replied: I have already requested the Law Commission to review our immigration laws with a view to simplifying them. There were 20,000 different pieces of regulation for non-EU regulations and we have now got them down to 4,000. It is incredibly important—I share your frustration—and this is…

26th October 2017 By Colin Yeo

Continuing professional development (CPD) training for immigration lawyers

What are the rules on continuing professional development (CPD) training for immigration solicitors, barristers and OISC advisers, and what CPD training is now approved by the legal regulators? How much CPD training can now be undertaken online? Here on Free Movement we provide a real variety of online CPD and can help all three groups of immigration lawyer meet their CPD needs. As background, the CPD training regime for all three types of practitioner underwent massive changes in 2016: The requirement to undertake a specific number of hours of training per year was dropped Any training undertaken can be with any training provider, not just a regulator-approved provider Online CPD…

26th October 2017 By Colin Yeo

New ebook now available: Naturalising as a British citizen

Our new ebook guide Naturalising as a British citizen is now available for purchase for £9.99 (free for Free Movement members). For most people, an application for naturalisation is something they can complete on their own. This ebook helps individual applicants to do just that. In 2016 just shy of 150,000 foreign nationals naturalised as British citizens. But 8% of applications were rejected, the majority because of failure to meet the “good character” and residence requirements. As the cost of an unsuccessful application is almost £1,300 – this processing fee is retained by the Home Office regardless of the outcome – £9.99 is a worthwhile investment for peace of mind. This comprehensive…

19th October 2017 By Colin Yeo

MPs launch inquiry into Home Office delivery of Brexit, submissions sought

Following on from the session last week in which I and others were called to give evidence to the Home Affairs Committee, a formal inquiry into the Home Office delivery of Brexit has now been launched. Written submissions are invited by the committee and further oral evidence will be heard. The terms of reference include but are not limited to: Does the Home Office have the capacity to register EU nationals already in the UK? What form should that process take and what risks need to be anticipated? What challenges does Brexit present for the Home Office’s effective management of immigration at the border and how might the Home Office…

19th October 2017 By Colin Yeo

FOI response: waiting times for permanent residence certificates triple

Eight months and a warning from the Information Commissioner later, the Home Office has finally replied to my Freedom of Information request on waiting times for EU residence documents. The figures only go to the end of 2016 and it seems likely that waiting times have increased yet further since then. The number of applications for documents is soaring and the capacity of the Home Office to cope is highly questionable. The figures show that the average wait for all such documents has risen considerably since 2015, with an EEA permanent residence certificate taking 116 days to arrive by the end of last year – almost triple the time it…

18th October 2017 By Colin Yeo

August 2017 immigration update podcast

Welcome to the August 2017 edition of the Free Movement immigration update podcast. This month I’m starting with a run through of a few relevant bits of news and some blog posts to highlight rather than cover in depth, then moving on to a series of cases and posts about deportation, some material on different aspects of family immigration including the MM case and the financial rules for spouses, and ending with some human rights and a few procedural issues. There’s quite a lot to fit in! The material is all drawn from the August 2017 blog posts on Free Movement. If you would like to claim CPD points for reading…

18th October 2017 By Colin Yeo

Why is the Home Office separating a British man from his wife when she is still breastfeeding their daughter?

This week the story of Dan Newton and his family has hit the newspapers. This post explains why the Home Office has acted as it has. It is not a mistake. Since harsh new rules were introduced in 2012, UK immigration policy does not usually allow British citizens working abroad to return to the UK if they have a foreign spouse. In effect, British citizens are exiled from their own country if they marry abroad. The Independent reports that Mr Newton is British and is married to Carla Zamora, an Ecuadorian citizen. They have three children together. All the children are British citizens. Mr Newton and his wife lived together…

16th October 2017 By Colin Yeo

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

Book review: The Making of an Immigration Judge by James Hanratty RD

James Hanratty RD, known as a compassionate and sometimes rather unconventional judge, will be a familiar name and indeed face to any London-based barrister specialising in immigration work. I for one was relieved rather than panicked when I would see that he was my client’s allocated judge in the morning on arrival at Hatton Cross. Published by Quartet, Mr Hanratty’s (I cannot really call him anything else I’m afraid) memoir is entitled The Making of an Immigration Judge. It covers Mr Hanratty’s early years, his first steps in law, his work at the Lord Chancellor’s Department, his two separate postings to Hong Kong and his membership of various private clubs….

11th October 2017 By Colin Yeo

Nick Blake QC retires from High Court

The Honourable Sir Nicholas John Gorrod Blake retired from the High Court (Queen’s Bench) with effect from 3 October 2017. Sir Nicholas Blake (68) was called to the Bar (M) in 1974, took Silk in 1994 and was elected a Bencher in 2002. He was appointed an Assistant Recorder in 1999, a Recorder in 2000 and a Deputy High Court Judge in 2002. He was appointed a Judge of the High Court (Queen’s Bench) in 2007 and was the President of the Upper Tribunal (Immigration and Asylum Chamber) from 2010 to 2013. Known also as a leading member of the immigration team at 2 Garden Court Chambers before leaving to…

10th October 2017 By Colin Yeo

Tribunal criticises government lawyers for “trench warfare” mentality and “inappropriate” conduct

In one of his final judgments as outgoing President, Mr Justice McCloskey launched a bitter broadside at the conduct of government lawyers in long-running litigation over the entry of refugee children. While the criticism of the solicitors at the Government Legal Department and of previous barristers instructed for the Home Office is robust and unambiguous, the background is hard to discern from the judgment itself, which arises essentially as satellite litigation around the failure of the Home Office to comply with previous orders made by the tribunal. The case is R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply –…

9th October 2017 By Colin Yeo

Book review: A Guide to the Immigration Act 2016 by Alison Harvey and Zoe Harper

If you want to look up how the Immigration Act 2016 works in practice, A Guide to the Immigration Act 2016 by Alison Harvey and Zoe Harper is the definitive guide to the legislation. More comprehensive than my own introductory ebook to the Act, Harvey and Harper dive straight into the detail. Every single section of the Act is set out, prefaced with commentary on how it fits into the whole and what the effect of the section is or will be, along with information on commencement, regulations, definitions and devolution. The text is probably too detailed to use for “self training” on the Immigration Act 2016 or on the…

6th October 2017 By Colin Yeo

July 2017 immigration update podcast

Welcome to the July 2017 edition of the Free Movement immigration update podcast. This month I begin by running through a whole load of judgments and determinations, including from the Supreme Court on sham marriages, some cases on procedure and costs and some shocking cases on unlawful detention. I then turn to a series of short policy updates and with a quick mention for a detailed post on the rules on deportation for non-EU nationals – which are the rules which will apply to all foreign nationals after Brexit, of course. The material is all drawn from the July 2017 blog posts on Free Movement. If you would like to claim…

5th October 2017 By Colin Yeo

June 2017 immigration update podcast

Welcome to the June 2017 edition of the Free Movement immigration update podcast. This month I’m starting with the current UK proposals on the future status of EU citizens in the UK and a few (!) problems with those plans, covering the major Supreme Court decision on the “deport first, appeal later” regime, taking a look at the new “safe return review” the Home Office now conducts before granting settlement to refugees and then whizzing through some important but fairly dry judgments on Dublin returns and subsidiary protection, service of immigration decisions, the law of appeals and automatic strike out of judicial review cases in the Upper Tribunal. The material…

3rd October 2017 By Colin Yeo

Mr Justice Peter Lane appointed new President of the Immigration and Asylum Chamber of the Upper Tribunal

The Right Honourable Sir Ernest Ryder, The Senior President of Tribunals has appointed Sir Peter Lane to be the Chamber President for the Upper Tribunal Immigration and Asylum Chamber with effect from 2 October 2017. This is the first “internal” appointment of an immigration tribunal judge to the top immigration judge role in my time in practice. Previous appointments since at least 1999 have always been from outside the existing immigration judiciary, including Sirs Andrew Collins, Duncan Ouseley, Henry Hodge, Nicholas Blake, and the outgoing president, Bernard McCloskey. President McCloskey will be much missed and I will be putting together a (positive!) review of his tenure. Any thoughts or (polite!)…

2nd October 2017 By Colin Yeo

Tribunal: Home Office must prove present risk to deport EU citizens

In the very recent case of Arranz (EEA Regulations – deportation – test) [2017] UKUT 294 (IAC) President McCloskey set out the correct approach to EU law deportations. The official headnote instructs us: (i) The burden of proving that a person represents a genuine, present and sufficiently threat affecting one of the fundamental interests of society under Regulation 21(5)(c) of the EEA Regulations rests on the Secretary of State. (ii) The standard of proof is the balance of probabilities. (iii) Membership of an organisation proscribed under the laws of a foreign country does not without more satisfy the aforementioned test. (iv) The “Bouchereau” exception is no longer good law: CS…

28th September 2017 By Colin Yeo

New Free Movement deputy editor appointed: Conor James McKinney

I am delighted to announce the appointment of Conor James McKinney as Deputy Editor for Free Movement. CJ, as he prefers to be known, joins Free Movement with a strong background in legal journalism and communication. He has written on legal affairs for the Times, the i, the Evening Standard and the popular Legal Cheek website. CJ has a particular interest and expertise in Brexit, and has appeared on BBC and LBC radio as a commentator. Before joining Free Movement, he coordinated legal coverage at the fact checking organisation Full Fact as a senior researcher. He holds degrees in law from Trinity College, Dublin and Queens’ College, Cambridge. CJ will…

25th September 2017 By Colin Yeo

Home Office launches new Assisted Digital service for online immigration applications

The Home Office has launched a new Assisted Digital service to help those who need it with online immigration applications. It is aimed at applicants who do not have the appropriate access, skills or confidence to complete an online immigration application form. The service does not offer immigration advice. The support available includes: Telephone support to complete the online form – you will be transferred to a skilled Migrant Help UK advisor who will help you complete your application form online. Face to face support at a library to access and complete the online form – you can either walk in at your convenience or book an appointed time with a…

25th September 2017 By Colin Yeo

Further guidance from Upper Tribunal on withdrawal of immigration appeals

Not much to say about this one, but clearly it is important in those cases where the Home Office does withdraw a decision once the appeal has been lodged. Official headnote: (i)            The public law character of appeals to the FtT is reflected in the regulatory requirement governing the withdrawal of appeals that any proposed withdrawal of an appeal must contain the reasons for the course mooted and must be judicially scrutinised, per rule 17 of the FtT Rules and rule 17 of the Upper Tribunal Rules. (ii)          Judicial evaluation of both the withdrawal of an appellant’s appeal and the withdrawal of the Secretary of State’s case or…

22nd September 2017 By Colin Yeo

Tribunal can (but won’t) hold Home Office in contempt for ignoring consent orders

The facts of R (on the application of MMK) v Secretary of State for the Home Department (consent orders – legal effect – enforcement) [2017] UKUT 198 (IAC) involved the not uncommon scenario of the Home Office withdrawing its decision in response to an application for judicial review, agreeing a consent order which included an agreement to pay the costs of the claimant and to make new decision be made within a certain time and then failing to comply with that consent order. As an aside, this is why the headline figures on success rates for applications for judicial review are so misleading: because a very significant number of claims are settled…

21st September 2017 By Colin Yeo

Deception, causation and deprivation of British citizenship

In Sleiman (deprivation of citizenship; conduct) [2017] UKUT 367 (IAC) the tribunal considered the question of how directly causative past deception must be of a subsequent grant of British citizenship in order for a person to be deprived of that citizenship on the basis of deception. The official headnote: In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation “by means of” fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship. The deception in this case was to mislead the authorities about age on…

19th September 2017 By Colin Yeo

Immigration (EEA) Regulations 2006 continue to apply for appeals says tribunal

Pretty obscure looking at first glance, this one: TM (EEA nationals – meaning; NI practitioners : Zimbabwe) [2017] UKUT 165 (IAC). So much so I confess I overlooked it. Firstly, some dual national British-EEA nationals were protected from the UK’s arguably over zealous implementation of McCarthy. I’ve had to advise on this before and it is a very limited group. Secondly, and much more importantly to day to day practice. the Immigration (EEA) Regulations 2006 are apparently preserved for appeals (or rights of appeal) already commenced on 1 February 2017, which was not the case when the 2006 regulations replaced the predecessor 2000 regulations (see MG and VC (EEA Regulations 2006; “conducive”…

19th September 2017 By Colin Yeo

Explainer: Can the Home Secretary really be guilty of contempt of court for breach of a court order?

The Home Office has been in the news for what one judge described as a “prima facie case of contempt of court.” Officials are reported to have breached multiple orders for the return of asylum seeker Samim Bigzad from Afghanistan to the United Kingdom. Ultimately, though, in legal terms it is Home Secretary Amber Rudd who is responsible for those actions. It is unlikely she personally sanctioned breach of the order. Can she really be in contempt of court for the actions of one of her officials? At the time of writing there has been no finding of contempt of court in the case of Samim Bigzad. However, clear and deliberate…

18th September 2017 By Colin Yeo

Euro-style stubble banned at work for Home Office immigration officers 

With the approach of Brexit, managers at the Home Office are re-asserting traditional English facial grooming standards, it seems: Britain’s immigration officers have been told they are not allowed to sport stubble at work. Dress code guidance published by the Home Office on Tuesday advised staff that an “unshaven or stubble appearance” is not permitted  – although full beards and moustaches are allowed. Should a worker wish to grow facial hair, they must do so “at a time that minimises the period when you present an unprofessional image,” according to the advice… It’s a good job these guys are focussing on the important stuff, what with a new immigration system to design and a…

15th September 2017 By Colin Yeo

Is “residence” the same as “presence” in the Immigration Rules?

Yes, “residence” is the same as “presence”, at least in paragraph 245AAA(a) of the Immigration Rules, says Upper Tribunal Judge Allen. 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. The decision is understood to be under appeal. The two words are different, after all, and if the meaning were intended to be the same then it is arguable the…

14th September 2017 By Colin Yeo
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