Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

Interruption to normal service…

Free Movement will be on light to non-existent blogging and Tweeting duties for the next fortnight or so owing to the birth on Monday of baby Annabel, sister to Alec. All is well but blogging is not top of FM’s to-do list at the moment.

13th June 2012 By Free Movement

Can reducing immigration be a legitimate aim in human rights law?

It has been announced that a minimum income threshold will be introduced for foreign spouses to be eligible to come to or remain in the UK. The level will be set at £18,600 for those without children and at higher levels for those with children. In doing so on Sunday morning breakfast TV Home Secretary Theresa May is reported to have said: “This isn’t just about the numbers though…” Observers of Government immigration policy might be rather surprised to hear this. The Government has made very plain that the intention of its immigration policy is to reduce numbers of immigrants. This is certainly no secret. The Conservative Party manifesto for…

11th June 2012 By Free Movement

Poor people to be prevented from marrying

Theresa May has announced that people considered by Bullingdon Club alumni David Cameron and George Osborne to be ‘poor’ will be prevented from marrying or living together in the same area. In order that individual assessments need not be made, a threshold of £18,600 is being set to define poverty. Where poor people break the spirit of the new law and do have children together but do not marry, a new form of exclusion order will be sought to prevent them from living in the same area as one another in order to make their lives as difficult as possible. The policy will act as a disincentive to being poor or…

11th June 2012 By Free Movement

How soft is the law on deportation right now?

Not very soft at all. Paragraph 364 of the Immigration Rules, which governs both the UK Border Agency and to a significant extent the immigration tribunal and courts, states that, subject to human rights law (an important proviso), there is a presumption in favour of deportation where the Home Office decides to try and deport someone, it will only be in exceptional cases that deportation is not the right course and, just to make things really clear for those not paying attention at the back, that deportation will normally follow where a person has broken the law: 364. Subject to paragraph 380 [which concerns human rights], while each case will…

10th June 2012 By Free Movement

Can Article 8 be ‘overridden’?

The BBC is today reporting that Theresa May intends on Monday to introduce new guidelines telling judges what to think about Article 8 of the European Convention on Human Rights. Article 8 is the right to a private and family life and is worth quoting in full: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of…

10th June 2012 By Free Movement

Can the UK suspend free movement?

In an interview with The Telegraph this weekend Home Secretary Theresa May appeared, at least to those wearing magic-rabidly-Eurosceptic-wishful-thinking-specs, to suggest that the UK Government was contemplating suspending free movement rights for southern Europeans if the Euro collapses: And what if a eurozone collapse sent thousands of economic migrants heading north from Greece or Spain? Could she legally restrict their right to come to Britain? This is another eyes-narrow moment. “As in every part of government, it is right that we do some contingency planning on this,” she says. “That is work that is ongoing.” But could you restrict entry in an economic emergency? “We will be doing contingency planning.” You…

27th May 2012 By Free Movement

Inter-country adoption case

In Buama (inter-country adoption – competent court) Ghana [2012] UKUT 146 (IAC) Upper Tribunal Judge Warr held that there is no basis for the UK Border Agency to go behind a court order made by a competent court in a foreign country. Where such an order is valid on its face the Agency would need to prove with evidence, for example expert evidence, that the order was not valid. Tanveer Ahmed [2002] UKIAT 00439, [2002] INLR 345, [2002] Imm AR 318 does not apply to court documents apparently. In this controversial old case Mr Justice Collins, then President of the Immigration Appeal Tribunal, held that documents are not self proving even if prima facie…

24th May 2012 By Free Movement

Two tribunal cases on deception

In the case of Mumu (paragraph 320; Article 8; scope) Bangladesh [2012] UKUT 143 (IAC) Judges of the Upper Tribunal Storey and Lane have dismissed an appeal against a refusal under paragraph 320(7A) of the Immigration Rules. This reads as follows: (7A)  Where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts had not been disclosed, in relation to the application. The tribunal finds, perhaps rather unsurprisingly given the text of the rule, that the deception need not be that of the applicant and dismisses the case under the Immigration…

23rd May 2012 By Free Movement

London Legal Walk sponsorship

As in previous years, a team from Renaissance Chambers is today undertaking the London Legal Walk and seeks sponsorship. We provide this blog free of charge but if you would like to support our cause we would be grateful. Follow this link to do so. I myself, shamefully, will not be on the walk but other members of our immigration team will be.

21st May 2012 By Free Movement

Advocate General Opinion on Other Family Members

Advocate General Bot has given his Opinion in the case referred to the Court of Justice of the European Union by President Mr Justice Blake. I have already flagged the new Opinion up on the blog but at the time had not had an opportunity to read it. That situation has now been rectified. For those unfamiliar with the procedure, an Opinion precedes a judgment and the judgment usually follows the Opinion, at least in outcome if not in reasons. The Advocate General advocates a middle ground position in terms of the obligation imposed on Member States by Article 3(2) of the Directive, but suggests that the Article must impose…

18th May 2012 By Free Movement

GS (India) and medical treatment cases

Some time ago, I put up an angry post (it is never a good idea to publish in anger) about the case of  GS (Article 3 – health exceptionality) India [2011] UKUT 35 (IAC), in which it was held that a diabetic man on dialysis who would be painfully and unpleasantly dead within two weeks of removal nevertheless had to go back. It seemed a case that any human with a modicum of compassion or common sense would consider to be ‘a very exceptional case, where the humanitarian grounds against the removal are compelling’, the legal test established by Strasbourg in N v United Kingdom (26565/05) [2008] ECHR 453. The excellent team in…

17th May 2012 By Free Movement

Crime and Courts Bill

As has been widely reported in the mainstream media, the Government proposes to scrap family visitor appeal rights. Again. The change is intended to come into full effect in 2014 but as early as July 2012 the definition of ‘family’ will be narrowed to exclude cousins, uncles, aunts, nieces or nephews. See the press release here. The full abolition is to be effected in yet another piece of legislation with a title that cements the subliminal link between crime and immigration, the Crime and Courts Bill. The justification is cost saving at both the Ministry of Justice and the Home Office. Appeal fees were introduced last December so increasing those would…

16th May 2012 By Free Movement

UKBA crushes people smuggler

Sometimes you just can’t make it up. The UK Border Agency has posted a video on YouTube of it crushing a van used by people smugglers. As I understand it, the nine Kuwaiti migrants were removed first. So were the people smugglers. Although it doesn’t actually explicitly say so anywhere in the press release. Indeed, Regional Director, Simon Walker at the UK Border Agency is quoted as saying Immigration abuse will not be tolerated, and we will always take the strongest possible action against those involved. This really is getting tough.

15th May 2012 By Free Movement

More unlawful detention cases

There has been a flood of judgments in the last few weeks on the issue of unlawful detention. With immigration detention used more frequently and for longer periods than ever before, the aftermath of the secret and unlawful presumption of detention policy and the ongoing travails of the UK Border Agency, it seems likely that many more such judgments will be seen in the coming months. Amougou-Mbarga: Detention in excess of 4 years lawful Already some cases involve extreme periods of administrative detention at the whim of a Government department equivalent to heavy criminal sentences for genuinely serious offences. R (on the application of Amougou-Mbarga) v Secretary of State for the Home Department…

9th May 2012 By Free Movement

How To Solve Heathrow Queues In Time To Save The Olympics

I have a new and cunning plan to solve the queues at Heathrow, save the Olympics and, as an added bonus, revitalise rock bottom morale at the UK Border Agency, which is by all accounts now falling apart at the seams of its soon-to-be-replaced uniforms. All Theresa May has to do is mug Dr Who, steal the Tardis and go back in time a few short months to the border checks fiasco. Instead of hanging Brodie Clarke out to dry before he has even had a chance to explain himself in flagrant denial of anything resembling fair process and thereby sending a signal to her civil servants that they will be…

1st May 2012 By Free Movement

European Commission warns UK

The European Commission has today given the United Kingdom two months to comply with European Union rules on the free movement of EU citizens and their families across the EU or face an EU court case. You can read the press release yourself here. The four issues highlighted are as follows: The Free Movement Directive guarantees that non-EU family members of EU citizens who hold a valid residence card issued by one EU country can travel together with EU citizens within the European Union without an entry visa. The UK laws do not grant this important right which lies at the heart of free movement. The United Kingdom does not allow extended family…

26th April 2012 By Free Movement

Happy Fifth Birthday!

Yet again I missed the blog’s birthday, which was 7 March. Unbelievably (for so, so many reasons) the blog has now been going for over five years. In that time it has clocked up roughly 1,346,037 hits, 521 posts and 2,608 comments between the old wordpress.com site and the newer self hosted site. When I think about the long, boring hours I have whiled away on writing long, boring posts on immigration law, fiddling around with cursed Yahoo Pipes, trying to work out why the blinking email subscription or blasted site feed was broken and so forth my eyes water with… er… nostalgia. Long time readers may also go a…

25th April 2012 By Free Movement

Other dependent relatives

A rare judgment on paragraph 317 of the Immigration Rules, the ‘other dependent relatives’ category, was handed down by the Court of Appeal last month and has so far escaped reporting here on Free Movement due to other commitments. The case is Mohamed v Secretary of State for the Home Department [2012] EWCA Civ 331. Giving the judgment of the court, Sir Stephen Sedley (as he is now referred to since retiring as a full time judge) started by setting out the issue to be decided: This appeal raises a question of law which was identified by Sir Richard Buxton in his grant of permission to appeal: does rule 317(i)(e) cover…

20th April 2012 By Free Movement

Marriage and validity and ‘subsisting’

A couple of cases on marriage were recently decided in the Family Division and are worth reporting here as they could have a bearing on immigration cases where the validity of a marriage is significant in some way. The first of the cases might also be relevant to defining ‘subsisting marriage’ under the Immigration Rules. In Galloway v Goldstein [2012] EWHC 60 (Fam) Mostyn J starts by setting out the background: The background to this application reveals the existence of a phenomenon which is by no means uncommon. The Applicant, whom I shall refer to as the husband, is English and the Respondent, whom I shall refer to as the wife,…

18th April 2012 By Free Movement

Unethical and inaccurate: Border Agency to start x-raying children

The UK Border Agency will start x-raying children again from 29 March 2012 in order to determine their age. This practice is highly controversial. The letter announcing the resumption of this procedure can be found here. This brings to mind another example of the application of false quasi-scientific ‘certainty’ to another unmeasurable: measuring skulls to determine race. The former Childrens’ Commissioner for England, Sir Al Aynsley-Green, is on the record deprecating x-ray age assessments and since 1999 the Royal College of Radiologists position has been that x-rays are inherently intrusive, carry a degree of risk, raise the question of informed consent and that there is no normative data outside western Europe and…

28th March 2012 By Free Movement

Section 85A commencement order doesn’t mean what it says

Far too late to be of use to anyone, the Upper Tribunal has held that the controversial commencement of section 85A did not affect appeals that had already been lodged. The case is Shahzad (s. 85A: commencement) Pakistan [2012] UKUT 81 (IAC). It was heard by a panel including the Deputy President, Upper Tribunal Judge Ockelton, on 4 October 2011 and only promulgated on 13 March 2012. Counsel was, almost inevitably, Zane Malik. Incidentally, Zane’s first Treasury brief is next week against me and several others in a country guidance case on Ahmadis in Pakistan – should be fun. The tribunal is highly critical of the draftsman of the commencement order,…

23rd March 2012 By Free Movement

No changing horses in mid stream

In the second Court of Appeal judgment from last week in which Zane Malik was Counsel for the Appellant, that of Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260, the same bench has given another judgment that many migrants will find unhelpful. Essentially, the Court holds that it is not possible to pursue an appeal on grounds other than precisely those pleaded to the Secretary of State or Entry Clearance Officer in the original application. For example, it is not possible to apply for leave under one Immigration Rule but then appeal on the basis that even if the applicant cannot succeed on the basis of…

15th March 2012 By Free Movement

Near Miss for Near Miss?

The Court of Appeal has in the case of Miah v Secretary of State for the Home Department [2012] EWCA Civ 261 rejected the idea of there being a free standing ‘near miss’ argument in immigration cases where the applicant falls just short of the requirements of the rules. As in another Court of Appeal case also out last week, to which the blog will shortly return, Zane Malik appeared for the Appellant. The Home Office obviously took the case very seriously as they briefed First Treasury Counsel Jonathan Swift QC against him. Stanley Burton LJ, with whom Maurice Kay and Lewison LLJ agreed, comprehensively rejected the proposition that the extent of…

14th March 2012 By Free Movement

Regulation of immigration advice and services

The Legal Services Board has issued a consultation paper that proposes potentially major changes to the regulation of immigration advice and services. The deadline for responses is 24 May 2011. The LSB is critical of the current regulatory regime, saying of their own investigation into the immigration market in 2011: This work has led us to the conclusion that there is likely to be significant consumer detriment because the qualifying regulators are not regulating immigration advice and services in a way that is consistent with the requirements of the 2007 Act. In addition, the complex regulatory architecture that exists for immigration advice and services presents the additional risks of gaps…

5th March 2012 By Free Movement

Exceptional circumstances now more… exceptional

As expected, the obscure but important Chapter 53 of the Enforcement Instructions and Guidance (‘Extenuating Circumstances’) has been amended following on from the scrapping of paragraph 395C of the Immigration Rules. The new text is basically in line with the amended rules and is set out below for reference. It shifts the onus to the migrant to make any exceptional circumstances known to UKBA and is less generous in a number of respects. As it happens, HJT Training have prepared a free briefing on paragraph 395C. If you’d like you can use the briefing as the basis to claim 1 CPD point at a cost of £25: the briefing is free but…

2nd March 2012 By Free Movement

Guest worker era begins

In a slew of new documents published today the Government has heralded the end of quasi-automatic settlement for skilled foreign workers under Tier 2 of the Points Based System, the evisceration of the Overseas Domestic Worker scheme, some tinkering with the Tier 5 temporary worker routes and the creation of yet another visitor category, a ‘permitted paid engagement’, which bypasses the Points Based System altogether. The Ministerial Statement can be found here, the data analysis on which the changes are purported based here, the Statement of Intent here and the summary of findings from the earlier consultation here. From 6 April 2016 a Tier 2 worker seeking settlement will need…

29th February 2012 By Free Movement

Obtaining IAS files

The sudden collapse of the Immigration Advisory Service shocked the sector and left many clients without any way of obtaining their paperwork from their former lawyers. Following legal action by the Immigration Law Practitioners Association it will now be possible to obtain files on demand until 28 May 2012. Unlike Solicitor Regulation Authority rules, OISC regulations make no provision for storage of files for defunct firms. There was presumably no money available for an orderly wind-down of the organisation and the IAS administrators, Cork Gully LLP, have applied to destroy all IAS files in their possession. In the meantime, it seems to have been difficult for ex IAS clients or…

28th February 2012 By Free Movement

Tamil returnee claims torture in Sri Lanka

UPDATE: the order made by the Upper Tribunal is now available. A Tamil failed asylum seeker forcibly returned from the United Kingdom to Sri Lanka on 21 February 2012 has claimed that he was tortured on arrival. He was later interviewed by British officials. A medical examination arranged by the British High Commission in Colombo showed fresh abrasions on the man’s legs, where he claims that he was kicked by Sri Lankan officials who were questioning him. The man had several other scars and marks that he said were unrelated to the incident, adding some credibility to the case. A full description of the incident can be found in a…

27th February 2012 By Free Movement

Appointments to Panel

This blog congratulates Zane Malik of 12 Old Square, who was this week appointed to the Attorney General’s C Panel of ‘junior juniors’. Zane has made a huge impact on immigration law in the last couple of years and it has become increasingly rare to see a judgment of the Administrative Court or Court of Appeal without his name on it. He has been mentioned on this blog on a couple of occasions. This is an unusual move for an immigration practitioner but if anyone can pull it off it is surely Zane. Congratulations also to another notable appointment in the small world of legal blogging, Adam Wagner of 1 Crown…

23rd February 2012 By Free Movement

Happy Valentine’s Day!

The BBC’s Inside Out Yorkshire programme ran a  story tonight on sham marriages, trailed in a BBC News item the day before. There are six days left to watch the programme on iPlayer if for some reason you would like to see it. As with Team UK Border Force: World Police on Sky, I can’t bring myself to watch it for fear of my damaging my television. If anyone else did manage to put themselves through it, do let me know in the comments below whether there was any coverage of genuine weddings that were disrupted and ruined. I dealt with such a case just recently. The registrar at Islington…

14th February 2012 By Free Movement

All change

A plethora of immigration tweaks were announced yesterday, mainly of a technical nature. There is still no sign of the introduction of a minimum income level nor the ending of Tier 2 settlement applications. It is beginning to seem likely that these will be announced at short notice, probably to avoid encouraging applications under the existing rules. Consider yourselves warned. Changes yesterday included: New Tier 1 forms and guidance. New facility for in country online applications for Tiers 2 and 5. Increase in the amounts required for maintenance for all Tiers and their dependents. Replacement of Tier 1 (Post Study Work) with a new scheme. The key requirements will be…

14th February 2012 By Free Movement

Good news for old work permit holders

A new decision from the President of the Immigration and Asylum Chamber of the Upper Tribunal offers relief to work permit holders caught out by a sneaky change to the Immigration Rules in April last year. This topic has been covered here on the blog before, here and here. Before the new dawn of the Points Based System, work permits were issued at a specified salary level for a period of five years. In April 2011, though, a new rule was introduced with no publicity that required work permit holders to be paid at salary levels set out in the labyrinthine Tier 2 salary codes if they were to qualify…

8th February 2012 By Free Movement

Indefinite detention: not very British

Just a quick one to flag up a guest post I’ve written for the 1 Crown Office Row UK Human Rights Blog. It covers Abu Qatada, indefinite detention and the irrelevance of the Human Rights Act to the decision that he must be released.

8th February 2012 By Free Movement

Going for Glory: Part 2

Free Movement entirely retracts the article that was previously published here regarding the Chapti case and apologises to those involved. The comments in the article went considerably beyond fair, were unreasonably speculative and were misleading as to the true circumstances of the litigation. No contact was made with those responsible prior to publication.

6th February 2012 By Free Movement

Training course: abolition of rule 395C and the end of the Legacy

Just a quick alert that Nicola Braganza of Tooks Chambers and Colin Yeo of Renaissance Chambers are delivering training this Monday night (6 February) for HJT Training on the recently announced scrapping of paragraph 395C of the Immigration Rules and tying that in with an update on the end of the Legacy and the litigation around inconsistency of decision making. At the time of writing there are still places left, but quite a few had already gone last time I checked. The course is being held near Liverpool Street station and the full details and booking information can be found here. It is a short course of 1.5 CPD.

5th February 2012 By Free Movement

English language requirements tightening

In parallel announcements the UK Border Agency has said that language requirements for Tiers 1, 2 and 4 of the Points Based System (highly skilled, skilled and students) are being tightened up slightly. The concession that allowed Tier 1 and 2 applicants to make an in-country immigration application before sitting the language test is being withdrawn. This was introduced so that applicants already in the UK were not caught out by the change to the rules, but is being withdrawn because the requirement is now more common knowledge and tests are easier to arrange now that supply from test providers has caught up with demand. Applicants for extensions under Tiers…

1st February 2012 By Free Movement

Zimbabwe gay guidance case

The latest Country Guidance case on Zimbabwe finds, in essence, that despite vociferous and violent pronouncements about homosexuality at the highest level in that country, Zimbabwe is a safe haven for lesbians and gays. The case is LZ (homosexuals) Zimbabwe CG [2011] UKUT 00487 (IAC) and it was reported on 26 January 2012. In some ways the case appears at first blush to represent simple common sense: each case must be argued on its own facts. However, the effect of a Country Guidance case is more pernicious than may first appear. It introduces a starting presumption as to the outcome of the case which must be rebutted by the party whose…

31st January 2012 By Free Movement

Fundraising

Got a Kindle for Christmas? Wondering what to do with it now you’ve read the first couple of chapters of Great Expectations and then swiftly moved on to some Sherlock Holmes? You can now subscribe to Free Movement on your Kindle: while away your commute and keep yourself bang up to date with the latest immigration and asylum law developments! Super. More seriously, I’ve decided to do a little fundraising for the blog, with any excess being donated to BAILII, who make the blog possible. Two Kindle ebooks have been created which include all the legal material posted on Free Movement in 2010 and 2011 respectively. These can be downloaded here: They…

24th January 2012 By Free Movement

Immigration rules amended to be less human rightsy looking

The Government has finally gotten around to amending the Immigration Rules to make them a bit less human rightsy looking. This follows a number of pledges from David Cameron, Theresa May and Damian Green to do so. Paragraph 395C of the rules is to be deleted, as predicted here on Free Movement some time ago. It is, though, a futile exercise in window dressing. The rule has benefitted not a single person as far as I am aware and the UK’s human rights obligations are unaffected by the change. The amendment is being brought into effect by Statement of Changes HC 1733 and will come into effect on 13 February…

20th January 2012 By Free Movement

The asylum merry-go-round

Lord Justice Ward is at it again: This is another of those frustrating appeals which characterise – and, some may even think, disfigure – certain aspects of the work in the immigration field. Here we have one of those whirligig cases where an asylum seeker goes up and down on the merry-go-round leaving one wondering when the music will ever stop. It is a typical case where asylum was refused years ago but endless fresh claims clog the process of removal. This are the first words of his judgment yesterday in the case of R (on the application of TM) v Secretary of State for the Home Department [2012] EWCA…

19th January 2012 By Free Movement