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.

Free Movement is away

I’m off on holiday and am delighted to say that I won’t be back for three weeks. I’d hoped to set a couple of posts to pop up automatically while I’m away but I’ve been too busy packing. See you in a few weeks.

5th September 2011 By Free Movement

More reported tribunal cases

I’m a bit behind on tribunal determination updates, but here’s the latest batch of diktats reported cases. The first is interesting, the others somewhat less so, in that they do not seem to have a great deal of broader application. The reporting of the Khalid and Others case seems downright bizarre, though, being as none of the appellants were played any part in the proceedings. It is difficult to see how, in an adversarial system where the tribunal has no investigative powers or resources of its own and is therefore dependent on the parties, it can be right that such a case becomes one of these bizarre, arguably unlawful, factual precedents for…

30th August 2011 By Free Movement

New research paper on marriage immigration

The Home Office have published a new piece of research they commissioned, entitled Marriage-related migration to the UK, by Katharine Charsley, Nicholas Van Hear, Michaela Benson and Brooke Storer-Church. It makes very interesting reading for anyone interested in immigration policy and in the history of spousal immigration. There are a number of graphs representing numbers of grants of settlements to spouses of different nationalities, for example, and while there is an overall upward trend the two stand out features are (1) that the increases are way below the general increase in migration to the UK, meaning that spouses now make up 40% of the total compared to 59% in 1995…

25th August 2011 By Free Movement

One MILLION hits!

Free Movement has just hit one MILLION, er, hits. As with Dr Evil, that isn’t actually a lot of hits in today’s world, but for a small, specialist legal blog it isn’t bad going. Time for some reminiscing… The first post was on 7 March 2007, when Dr Reid was still Home Secretary. The blog his half a million views on 30 April 2010 and has, with a John O induced blip, been gaining page views rapidly since then, with over 40,000 page views per month now. There are around 900 email subscribers as well, and just short of 500 Twitter followers. The most popular posts in the last 12…

23rd August 2011 By Free Movement

New ILPA website

The Immigration Law Practitioners Association (ILPA) have substantially re-vamped their website. It is a huge improvement on the old one. The public-facing site is basically the same as the old one but looks better and more modern. A new facility for members of ILPA to log into a members area has been created, though, and this is the big change. Inside the members area one is able to search through all the invaluable monthly members mailings dating back to 1999. The latest updates and documents are posted up as they arrive, so there is no longer any need to wait until the mailing flops onto the door mat to keep…

22nd August 2011 By Free Movement

The UK Border Agency: de-moralised

In his speech on Monday addressing the long term causes behind the recent looting, David Cameron blamed the State. The communities that erupted need less help, not more, it would seem. In some classic post-Blair, verb-free rhetoric, Cameron recited some rather tired soundbites (communities, rights, responsibilities, the usual). He also blamed human rights and that old chestnut of health and safety. His strongest language was reserved for government itself, though: “Some of the worst aspects of human nature tolerated, indulged – sometimes even incentivised – by a state and its agencies that in parts have become literally de-moralised.” By ‘de-moralised’ Cameron clearly did not mean ‘listless’ or ‘demotivated’. He meant that the…

17th August 2011 By Free Movement

Second appeal criteria tighter than expected

Mark Symes has posted an article over at the HJT Immigration Blog on a new case from the Court of Appeal on the ‘second appeal criteria’. The case is PR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 988. These criteria are the legal gateway not only to the Court of Appeal on appeal from the Upper Tribunal but also, following Cart and Eba, also to judicial review of the Upper Tribunal. The criteria are: (a) the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it. Mark…

15th August 2011 By Free Movement

English barrister refused right of audience in immigration tribunal in Scotland

It turns out that the muppets* at the Ministry of Justice have laid regulations that at first glance appear to forbid English and Welsh barristers and solicitors from appearing in the immigration tribunal in Scotland and Northern Ireland but which permit Scottish and Northern Irish equivalents to appear in England and Wales. This has been known for some time but it was hoped that something could be arranged quickly. That has not transpired and for the first time, as far as I am aware, an English barrister has now been refused a right of audience at Eaton House in Glasgow. It wasn’t me, before you ask. The legal background is…

8th August 2011 By Free Movement

Claim CPD hours through the blog

It is now possible to claim CPD (Continuing Professional Development) points through the blog, in conjunction with HJT Training. The poll a couple of weeks ago suggested that there is a reasonable level of interest in this, so we’ve put together two test tests, so to speak. The idea is that you can pay for and download a multiple choice test covering specific date range on the blog and then have a go at answering the questions. If you have been reading the blog and the material has stuck, this should be a nice easy way to claim CPD. The introductory test price is £25 for 1 CPD point. Blog posts…

3rd August 2011 By Free Movement

New bail guidance and AVID Handbook

I have started to think about the Herculean (perhaps Sisyphean a better analogy? – ed.) task of updating the HJT Immigration Manual, something I do at least once per year. This year there is a LOT to change, and I’m not looking forward to it, I have to say. This blog is helpful in flagging up all or most of the changes that need to be included, but I have realised that there are a few things that slipped under my radar for one reason or another. One of these, and quite an important one, is the new bail guidance that was issued by the new President of the Immigration and…

2nd August 2011 By Free Movement

Critical report on UKBA use of country information

The Chief Inspector of UKBA, John Vine, two weeks ago released a new report on the use of country information by the UK Border Agency in asylum claims. I’ve been too busy to finish writing about it, unfortunately, and am still catching up on various things that have happened recently. The UK Border Agency had advance sight of the report and has already responded. Most of the recommendations were accepted, at least in theory. In reality the standard response is: “thanks, we’re actually doing that already as far as we are concerned but we’ll slightly adjust our policy documents (which no-one ever reads) to pay some lip service”. The report found…

28th July 2011 By Free Movement

Important new case on costs

The Court of Appeal has given judgment in an extremely important new case on costs, R (on the application of Bahta & Ors) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 (26 July 2011). It specifically concerns the UK Border Agency and legally aided claimants but it also has far wider ramifications. It basically supplements or even replaces the long standing approach of Scott Baker J in R (Boxall) v Waltham Forest LBC 21 December 2000 (2001) 4 CCL Rep 258. It has become increasingly common for UKBA to concede a case before it reaches court. This avoids UKBA having to pay for Counsel to attend…

27th July 2011 By Free Movement

UKBA to Libyans: PLEASE don’t claim asylum

The UK Border Agency can be very generous and understanding when it wants to be. For some reason, Libyans currently in the UK whose visas are running out are being told that they don’t need to meet the rules required for an extension, they don’t need the right evidence and they don’t even need to pay the fee. Why would UKBA show such generosity? Because they are desperate to avoid Libyans claiming asylum and pushing up the asylum numbers. A new de facto application form has been created to accompany an FLR(O). There is massive repetition between the new ‘questionnaire’ and the FLR(O). UKBA just don’t do simple, as the…

22nd July 2011 By Free Movement

Exceptional Talent route finally opens

The Exceptional Talent route attracted a lot of attention and comment when it was announced way back in November 2010. Questions were starting to be asked about what had happened to it and whether arts and science organisations were really willing to be the determinants of who is a suitably good artist or scientist to be awarded a Willy Wonka style Golden Ticket to the UK. It isn’t hard to imagine the potential for politics and in-fighting. Confounding the doubters, the UK Border Agency yesterday revealed that the route will open on 9 August 2011 and negotiations with the Royal Society, Arts Council England, Royal Academy of Engineering and British Academy are complete. The allocation…

21st July 2011 By Free Movement

More tribunal decisions

Another series of edictsreported cases has been handed down by the Upper Tribunal. Official headnotes and links to the BAILII judgments are included below. I’ve also thrown in another couple of cases that slipped out since the last big batch. We have two Country Guideline cases. The first, ST,  is on Eritrean/Ethiopian nationality issues and deprivation of nationality as persecution. The second is MT, a profoundly important case for Ahmadis from Pakistan that finally updates country guidance to reflect the Supreme Court judgments in HJ. In short, if an Ahmadi would behave discreetly in order to avoid persecution, for example by only proselytising to perceived safe individuals, then he or…

18th July 2011 By Free Movement

Carpet Karaoke training video

Amnesty International have put together a training video for potential recruits to the private security firms contracted to carry out forced removals. It is well worth a watch. This is part of the campaign mentioned previously. Details on the Amnesty website here.

15th July 2011 By Free Movement

Consultation on family migration: Tories to reintroduce ‘primary purpose’ rule

The Government yesterday launched another consultation on restricting immigration, this time family immigration. The splash on the UKBA website is here, the Ministerial statement here, the consultation document here and the accompanying research paper, Family migration: evidence and analysis, here. The affected categories are fiancé(e)s, proposed civil partners, spouses, civil partners, unmarried or same-sex partners, dependent children and adult and elderly dependent relatives. The key proposals are as follows: defining more clearly what constitutes a genuine and continuing marriage, “to help identify sham and forced marriages”, for example requiring that the couple understand a common language, have been in a relationship for at least 12 months, can provide ‘accurate personal details about each other’…

14th July 2011 By Free Movement

CPD hours through Free Movement

Free Movement is planning to launch a scheme to allow regular readers who are barristers, solicitors or OISC advisers to claim some CPD hours by reading the blog and then answering multiple choice questions. This would be done in conjunction with HJT Training, of which the editor is a director. There would be a fee, which would be £25 per hour initially. Ten questions would need to be answered in order to claim one CPD hour (to show you have done the reading and assimilating, basically) and each test would specify the date range of blog articles covered. We are planning a test run in the next few days, but…

14th July 2011 By Free Movement

Ministerial statement on IAS

The minister with responsibility for legal aid, Jonathan Djanogly MP, has made a statement (reproduced below) on the Immigration Advisory Service going into administration. Once again, the emphasis is on transfer of files to new providers rather than on any attempt to salvage parts of the organisation. It looks like a slender hope, but it might be conceivable that those ‘new’ providers could be new entities created out of the ashes of IAS. It does seem that a recent audit by the Legal Services Commission went very badly for the organisation, or at least some offices within it. The LSC is said to be seeking to recoup several millions of pounds…

13th July 2011 By Free Movement

Some IAS offices viable?

Some or all of the staff at the IAS Bristol office have put together a press release and made a bid for independence. The text is reproduced below. This follows from a mysterious comment signed off only as ‘IAS’ left on the original Law Society Gazette story yesterday asserting that the IAS Northern Business Unit was a viable entity and basically wanted to go it alone There is a firm belief that the IAS Northern Business Unit is in a strong position to continue trading as a going concern and would appreciate the assistance of the LSC and other law firms in safeguarding the best interests of our clients. There are…

12th July 2011 By Free Movement

IAS website finally updated

Following the terrible news about the Immigration Advisory Service going into administration, their website has finally been updated with information for clients. The full text is reproduced below in case it changes or is taken down (complete with the wonky numbering of the original text). New information includes that IAS has been negotiating with the LSC for a solvent restructure. The trustees say they felt that was not going to be possible and placed the organisation in administration as of last Friday. IAS actually owes the Legal Services Commission money, presumably because of overpayments made by the LSC. A recent LSC audit seems to have gone badly at the organisation, which…

11th July 2011 By Free Movement

Immigration Advisory Service in administration

Rumours have been circulating over the weekend but the Legal Services Commission has now confirmed [UPDATES: see also BBC news story, Law Society Gazette story and comments and follow-up, Guardian story and subsequent FM post] that IAS, the largest provider of immigration advice and representation in the UK, has gone into administration: Immigration Advisory Service announce their decision to go into administration 11 July 2011 LSC to secure alternative provision as soon as possible Today, Immigration Advisory Service (IAS) announced that they have gone into administration. IAS is a not for profit charity and the largest provider of legal aid services in the asylum and immigration market. It has 14 offices across England and Scotland and…

11th July 2011 By Free Movement

Amnesty campaign on forced removals

Amnesty International has launched a campaign to change the way that the UK Border Agency conducts forced removals. The practices used by the private security contractors who do the dirty work for the Border Agency was highlighted earlier this year by the tragic death of Jimmy Mubenga. Follow this link to participate in the campaign, over on the Amnesty website. The campaign is accompanied by a new briefing, Out of Control: The case for a complete overhaul of enforced removals by private security companies. More information can be found in articles on the Amnesty website itself and on the newly launched HuffPost UK.

8th July 2011 By Free Movement

Critical HM Inspector of Prisons reports published

HM Inspectorate of Prisons yesterday published two reports based on unannounced inspections of the short term immigration holding facilities at Heathrow Terminals 3 and 4 (Terminal 3 report here and Terminal 4 report here). The reports are broadly positive and on the whole the detention facility staff come out of the reports quite well. However, the reports are very seriously marred by one awful incident that occurred during the inspection of Terminal 4: A European Union national child was detained without the necessary authority (IS91). The father was a non-EU national who had lived in the UK and was returning following a visit to his country of origin. The immigration…

7th July 2011 By Free Movement

Migration Museum Project event

The previously mentioned Migration Museum Project ‘100 Images of Migration‘ competition deadline has been extended to 15 July 2011. I have been given permission to use the image to the side as an example of one of the entries. A woman born in Britain holds the only two possessions her Polish mother brought with her when she arrived in this country shortly after the end of the Second World War. They are her Polish bible, and a photograph of her holding the bible on the farm in Germany to which she was deported to work during the War. She never returned to Poland. I like this picture as it is…

1st July 2011 By Free Movement

Batch of new tribunal decisions

The legal luggage carousel of the tribunal’s reporting committee has deposited a large batch of new cases in the arrivals hall of BAILII. Some of these cases are interesting, others perhaps a little less so. The more interesting include a couple of cases on the availability of funds in Tier 4 of the Points Based System, the first domestic judicial comment on Zambrano, from El Presidente himself (full post possibly to follow on that case), an interesting analysis of the use of savings to ‘top up’ income for the purposes of maintenance and accommodation and actual and perceived lesbians in Jamaica. I’ll list them in reverse order (earliest first) with…

30th June 2011 By Free Movement

Judicial review of the Upper Tribunal

Last week, while I was away, the Supreme Court held that the Upper Tribunal can be judicially reviewed, and in much wider circumstances than envisaged previously by the High Court and the Court of Appeal. For England and Wales the case is Cart and MR (Pakistan) [2011] UKSC 28 and for Scotland it is Eba v Advocate General for Scotland [2011] UKSC 29. This is extremely important in immigration and asylum cases. Where an appeal fails in the First Tier Tribunal, permission is sought from the FTT to appeal to the Upper Tribunal and refused and then sought from the UT and again refused, there was until last week no…

29th June 2011 By Free Movement

Strasbourg allows Somali test case

The cases of Sufi and Elmi v UK (Applications nos. 8319/07 and 11449/07) have been allowed by the European Court of Human Rights. This is a major judgment on return to Somalia and the conditions there. The press release can be found here and the judgment here (Word version here, BAILII version here). In summary, the Court holds that conditions in Mogadishu breach Article 3 for virtually everyone, although there might conceivably be some people with high level connections that would be safe (para 250). For most, and certainly for those who have been outside Somalia for a long time, return to Mogadishu is therefore unsafe. The Court also finds that it…

28th June 2011 By Free Movement

BAILII fundraising

BAILII, the invaluable resource which provides much of the material for this blog, is under threat of closure. It seems that the Ministry of Justice has withdrawn funding, and BAILII are seeking replacement commitments from solicitors firms and barristers chambers. Some professional associations have also committed funds. I have sought to persuade my own chambers, Renaissance Chambers, to contribute, and would suggest that anyone who finds this blog and/or BAILII to be useful gets their firm or chambers to chip in. Information about donating can be found here. A list of major donors can be found here. There are few solicitors firms on the list and the contributions from some…

17th June 2011 By Free Movement

Quila case live on web TV

[UPDATE: SEE HERE FOR OUTCOME OF CASE] Tune in to Supreme Court Live! on the web for live coverage provided by Sky News of the hearing in the Quila case in the Supreme Court. It kicks off at 10.30am this morning, 8 June 2011. This link takes you to the live website. You may want to tune in early as my test run just now revealed that I needed to install a newer version of a Microsoft plugin for my browser. You might also want to wander over to the UK Human Rights Blog for coverage as one of their editors, 1 Crown Office Row’s Angus McCullough QC, is leading…

8th June 2011 By Free Movement

Lives in the balance

Last weekend I finally read the Refugee Council report Lives in the Balance: The quality of immigration legal advice given to separated children seeking asylum. It is a short, sharp, very depressing but absolutely essential read for any solicitors, OISC advisers or barristers representing separated children in the asylum process. There are some stark findings. For example, it is estimated that there are currently fewer than 20 individual lawyers in London who are able to provide the desired standard of service to children and the figure is significantly lower in other areas of England. The report also reveals that standards of representation not only vary hugely between different firms but also within…

2nd June 2011 By Free Movement

Legacy cases criteria

Not much to report on this one, just that I tried a Freedom of Information request on the criteria for deciding Legacy cases and get a non-answer back in return. The request was refused to begin with but that decision was overturned on appeal. The information gleaned is already more or less in the public domain, however: apparently Immigration Rule 395C is simply applied, in combination with some of the deportation rules, such as paragraph 367. Paragraph 395C reads as follows: 395C. Before a decision to remove under section 10 is given, regard will be had to all the relevant factors known to the Secretary of State including: (i) age;…

1st June 2011 By Free Movement

Secret race discrimination

In an earlier post I highlighted the new Ministerial Authorisation permitting race discrimination by immigration officials. This followed on from the exposure of discrimination against Pakistanis purely on the basis of their nationality by the Chief Inspector of UKBA. At that time I asked whether anyone else had been able to find the list of countries referred to in the authorisation itself. I received no positive replies, and it transpires that in fact the list is a secret list which will not be disclosed, even in response to a Freedom of Information request. The justification for non publication is as follows (source): “The public interest in favour of disclosure under…

31st May 2011 By Free Movement

Shepherd Masimba Kambadzi v Secretary of State for the Home Department [2011] UKSC 23

The Supreme Court yesterday handed down judgment in the case of Shepherd Masimba Kambadzi v SSHD [2011] UKSC 23, in the Court of Appeal known as SK (Zimbabwe) v SSHD [2008] EWCA Civ 1204. For reference, the original High Court judgment by Mr Justice Munby, as he then was, can be found here and the Supreme Court press release and summary can be found here. The background to the case arose from the foreign national deportation scandal in 2006. Lord Hope quotes the prescient words of Chris Mullin, then a member of the Government: “Illegal migrants and paedophiles, a toxic mix. The tabloids will go bananas.” The tabloids did indeed go bananas, as might be expected. Unfortunately,…

26th May 2011 By Free Movement

Working with Refugee Children: Current Issues in Best Practice

Quick plug for a new publication from the Immigration Law Practitioners Association, to which I contributed a chapter. It is called Working with Refugee Children: Current Issues in Best Practice and can be downloaded for free from the ILPA website or requested from ILPA in hard copy. The launch was last Friday and was a very interesting affair. It was a real privilege to share a platform with a young person who had himself been through the appeals process, who had strong views about it and who was able to express himself so well. I learned a great deal from the experience. I think ILPA would probably want me to…

24th May 2011 By Free Movement

Correction to earlier shared burden post

My post on Friday about the Amos case may have been a little o’er hasty. The excellent Manjit Gill QC, who was Leading Counsel for the claimant in Amos, has sent in a correction by email, the relevant part of which is as below (reproduced with kind permission): “Please note the judgment is carefully framed to leave the arguments on whether the SSHD should or should not assist in the particular cases to be further ventilated in the Tribunal on remittal. It simply makes the point that the burden lies on the claimant and that the SSHD is not bound to assist i.e. the question of assistance is not an…

22nd May 2011 By Free Movement

Shared burden in European cases

Quick heads up for an interesting post by Mark Symes on the HJT Training blog. In the recent case of Amos v Secretary of State for the Home Department [2011] EWCA Civ 552 (12 May 2011) the Court of Appeal rejected the argument that there is a shared burden between the claimant and the UK Border Agency in establishing whether the claimant has retained rights of residence under European law since the breakdown in a relationship. This is a really difficult issue, and one that Mark will be discussing in the upcoming London and Birmingham training course plugged in his blog post (and now here as well!). My tuppence worth…

20th May 2011 By Free Movement

‘Unnecessary’ appeals to end

I’m full of good news today! The rumours were true and section 19 of the UK Borders Act 2007 is being brought into force as of 23 May 2011. It makes most Points Based System appeals, er, pointless. There’s a news item on the UKBA website and Damian Green had this to say about it: “Section 19 of the UK Borders Act 2007 will come into force on 23 May 2011. Section 19 restricts the evidence an appellant can rely on at such an appeal to that which is submitted to and considered by the UK Border Agency in support of an application. Reforming the immigration system and reducing the…

19th May 2011 By Free Movement

14 year rule for the chop?

It looks like the 14 year rule may be for the chop. See this question and answer from Prime Ministers Questions yesterday: Mr Hollobone: … Under rules introduced in 2003, illegal migrants who manage to avoid the authorities for 14 years can apply for permanent stay, have full access to the welfare system and even obtain a British passport. Given that in the past eight years nearly 10,000 such migrants have won such rights, and with an estimated half a million illegal immigrants in Britain today, will the Prime Minister seek to change those rules and restore some sanity to Britain’s border controls? The Prime Minister: My hon. Friend makes an important…

19th May 2011 By Free Movement

Fees for immigration appeals from October

The Ministry of Justice has confirmed that fees will be charged for lodging appeals in the immigration tribunal from October 2011. There is no summary and the important details are spread out all over the place, meaning the document requires careful and close reading to comprehend. Frankly, it is not well written or set out, and there is at least one odd contradiction. As ever at your service, I’ve saved you the bother: Fees to be set at £80 for paper hearings and £140 for oral hearings to begin with, but with increases likely, starting with the managed migration and settlement appeals No fees to be charged in the Upper…

17th May 2011 By Free Movement