Nick Nason

Nick is a lawyer at Edgewater Legal, simplifying immigration law for individuals and businesses.

British citizen wrongly denied passport and ordered to leave UK

The case of R (Miah) v Secretary of State for the Home Department [2017] EWHC 2925 (Admin) concerns a British citizen who made an application for a passport, was refused, and ordered to leave the country. He had no in-country right of appeal against the decision. This case highlights serious issues with decision-making at the Home Office, data sharing between government departments, and the lack of remedies available to applicants who wish to challenge refusal decisions. Citizen Miah Mr Miah was originally born in Bangladesh in 1965. His father had naturalised as a British citizen in 1960, and his parents married some time before that. Mr Miah therefore had a right…

28th November 2017 By Nick Nason

Tier 1 (Exceptional Talent) visas doubled to 2,000 per year

The Home Secretary recently announced that the number of people who can be accepted under the Tier 1 (Exceptional Talent) immigration route would double, from 1,000 to 2,000 each year. The exceptional talent visa regime does exactly what it says on the tin, providing a route for recognised or emerging leaders in certain fields to enter the UK to live and work. The “exceptional” criteria The fields in which individuals can show their talents exist are limited to science, the humanities, engineering, the arts and digital technology. The Home Office provide an overview of the route on its website, as well as detailed guidance for applicants. In order to apply for the…

22nd November 2017 By Nick Nason

Tier 2: chefs at restaurants with a take-away service not eligible

According to UK immigration rules, if a chef works at a restaurant which provides a take-away service, he is less skilled than one who plies his trade at a restaurant that does not. As a result, restaurants which provide a take-away service cannot offer employment to chefs under the Tier 2 skilled worker route. This policy was subject to challenge by the would-be head chef of the Thai River restaurant on Latimer Road in North Kensington, in the recently reported High Court case of R (Supawan) v Secretary of State for the Home Department [2017] EWHC 2918 (Admin). A challenge was made in very similar terms by another chef in R…

21st November 2017 By Nick Nason

Home Office pays damages to man detained to protect its own reputation

Abdulrahman Mohammed was last week awarded £78,500 by order of a High Court judge. The career criminal had been detained unlawfully under immigration powers on three occasions by the Home Office for a total period exceeding a year. Unusually, with both parties in agreement that the detention was unlawful, the issue in Mohammed v The Home Office [2017] EWHC 2809 (QB), was quantum: the amount of damages to which a claimant is entitled when wrongly deprived of his liberty by the state. No doubt due to the level of compensation arrived at by the court, the decision has been widely reported in the media. The case is also notable for…

14th November 2017 By Nick Nason

New guidance on the Surinder Singh route

The Home Office has updated its guidance on Surinder Singh cases, with “clarifications” on the requirements of the eponymous route. As our in-depth post on this topic explains, the Surinder Singh route is a potential means for British citizens to rely on family-friendly EU free movement laws – rather than the harsh UK immigration rules – to be reunited with their family members. The changes to the guidance include an additional clarification that a British citizen does not need to be a “qualified person” in their initial three months back in the UK to sponsor a family member in a Surinder Singh application. There are also new sections about retained…

13th November 2017 By Nick Nason

Should immigration policy be decided regionally?

Immigration policy is decided at a national level, meaning that the rules governing the entry of foreign nationals to the UK are almost entirely the same across the land. The requirements, for instance, to be met by nurses under Tier 2 of the Points Based System are the same in Cornwall as they are in Carlisle, regardless of local staffing needs. The £18,600 minimum income required for British nationals to bring in a foreign spouse is the same in London – where it is enough to rent a lock-up and go out on a quarterly basis, for one beer – as it is in Llandudno. Tier 1 entrepreneurs – who…

3rd November 2017 By Nick Nason

Tier 2 sponsor licence revocation challenge fails in High Court

Sivayogam is a religious charity, serving Hindu and Tamil communities in London. Finding priests in the UK and Europe had proven difficult so, in 2009, it applied for registration as a Tier 2 sponsor, allowing the organisation to bring in religious workers from abroad. Its experience in R (Sivayogam) v SSHD [2017] EWHC 2575 (Admin) is a good demonstration of the value of legal advice at an early stage of sponsor licensing disputes. Background Where the Home Office grants a Tier 2 sponsor licence it is essentially outsourcing immigration control to the sponsoring organisation. Employers are required to comply with the detailed guidance provided by the Home Office, which imposes “a…

31st October 2017 By Nick Nason

Visa rules confusion forces successful entrepreneurs to leave UK

In 2011, Russell and Ellen Felber set up the award-winning Torridon Guest House in Inverness. It has hundreds of stellar reviews across TripAdvisor and similar sites. The New Yorkers made their home in the Highlands having fallen in love with the area during a holiday there, initially spending £300,000 to purchase the guesthouse, and a further £100,000 on its refurbishment. Now the Felbers must leave Scotland and everything they have built. Their application for settlement was refused by the Home Office following an alleged misreading by the couple (and their solicitor) of the requirements of the entrepreneur job creation rules. That decision was upheld last week in Felber & Anor…

25th October 2017 By Nick Nason

AG: permanent residence needed before ‘enhanced protection’ kicks in

Today saw the release of the Advocate General’s Opinion in the Court of Justice of the European Union (CJEU) joined cases of B v Land Baden-Württemberg C-316/16 and Secretary of State for the Home Department v Franco Vomero C-424/16. The issue in these cases concerns the entitlement of European citizens to the ‘enhanced’ level of protection against deportation when they have committed crimes. Where an individual is entitled to such a level of protection – broadly attained following ten years’ residence in a European country – the member state must show that there exist imperative grounds of public security to justify their expulsion. For a detailed look at the law…

24th October 2017 By Nick Nason

Upper Tribunal tackles “genuine entrepreneur” test

Nadeem Anjum applied for a Tier 1 (Entrepreneur) visa in early 2015. It was refused. The Entry Clearance Officer took the view, following an interview with Mr Anjum, that he was not a “genuine entrepreneur”. Since rights of appeal against Points Based System applications were removed, judicial consideration of the terms of the relevant rules has been comparatively rare. The last entrepreneur case reported in the Upper Tribunal, for instance, was over two and a half years ago: R (Zhang) v Secretary of State for the Home Department (IJR) [2015] UKUT 138. The entry clearance decision Among the reasons for the original refusal were that, when asked specific questions about…

24th October 2017 By Nick Nason

Leaked immigration document suggests huge rise in European criminal deportation after Brexit

The recently leaked government immigration proposals indicate that European nationals who commit crime in the UK will be subject to the same automatic deportation rules as non-European nationals after Brexit. The UK Borders Act 2007 imposes a legal duty on the Home Office to bring deportation proceedings against any foreign national convicted of a crime and sentenced to 12 months or more in prison. These are referred to as “automatic deportation”: see section 32 of the UK Borders Act 2007. There is currently an exception for those resident under EU law (section 33(4)) but this will end with Brexit when EU law ceases to apply. 12 month sentences are imposed…

13th September 2017 By Nick Nason

What is the law governing the deportation of EU nationals?

Where a European national commits a crime in the UK and is sentenced to a term of imprisonment, they will often be subject to deportation proceedings. The protections afforded to them (and to British nationals who commit crime in European countries) are contained within a European Directive (2004/38/EC of 29 April 2004), and brought into domestic law by the Immigration (European Economic Area) Regulations 2016. We consider the protections afforded to European nationals against expulsion from the UK, the circumstances in which the protection can be invoked (and, arguably, lost), and consider the future of deportation law for European nationals if and when the UK leaves the Union. European rules…

23rd August 2017 By Nick Nason

Upper Tribunal provides guidance in cases of judicial bias

In Sivapatham (Appearance of Bias: Sri Lanka) [2017] UKUT 293 (IAC) (7 July 2017) frustrated novelist and president of the Upper Tribunal McCloskey J considers the law surrounding judicial bias in the tribunal. As with previous exponents of the art (see Denning LJ, or Moses LJ), judgments of the President are almost always entertaining on some level, written with eloquence and a sense of the dramatic, in ornate prose. This determination is no different, and brings together important guidance on the steps to be taken where judicial bias is alleged, and the relevant legal principles for a court hearing any such allegation. The Sivapatham allegations The particular facts of the…

18th August 2017 By Nick Nason

How to correct a mistake in a country guidance case

What happens where the Upper Tribunal makes a mistake in a country guidance case? And in what circumstances will the Court of Appeal have jurisdiction to hear an appeal against an Upper Tribunal decision that has already been remitted to the First Tier Tribunal? Both of these interesting issues crop up in AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944. The Case of AA AA was an Iraqi who claimed asylum in the UK in 2009. His appeal has now been in the court system for over 8 years (and counting). The initial application was rejected and several appeals dismissed until AA benefited from…

14th August 2017 By Nick Nason

Operation Nexus police/immigration joint working unsuccessfully challenged in High Court

In The Centre for Advice On Individual Rights In Europe v The Secretary of State for the Home Department & Anor [2017] EWHC 1878 (Admin) (21 July 2017) the excellent AIRE centre brought a challenge to the way Operation Nexus operates in respect of European and EEA nationals. Operation Nexus has been covered previously by Free Movement, most recently reporting on the belated released of guidance, with calls for both evidence and funding for this recent challenge publicised via the blog. What is Nexus? As detailed in previous writing on the subject, and as set out in this judgment [6] Operation Nexus has three strands or elements; only the first…

10th August 2017 By Nick Nason

Court of Appeal considers revocation of deportation order where deportee returns early in breach of the order

In SSHD v SU [2017] EWCA Civ 1069 (20 July 2017) the Court of Appeal considered for the first time the unusual case of an individual who had been deported from the UK, returned in breach of the order, and then applied for its revocation having established a private and family life during the subsequent period of unlawful residence. The case clarifies the applicable rules in revocation cases and provides further evidence, if it were needed, of the complexity of the relevant rules, with two differently constituted tribunals failing to consider two key (albeit very recently instituted) provisions. Facts In February 1998 the Secretary of State (SSHD) made a deportation order…

7th August 2017 By Nick Nason

What is the law on the deportation of non EU foreign criminals and their human rights?

Deportation proceedings pit the rights of the individual against those of the state, appointed guardian of the public interest. And as very clearly stated in primary legislation, the deportation of foreign criminals is in the public interest. The relevant law in this area is rent through with politics, shifting relentlessly with headlines, changes to rules or legislation, and the latest decisions of the courts. The shifts over the past 5 years have been unremitting. We consider the recent history of deportation law in the UK, the individuals who will be subject to these rules, and the arguments available to those seeking to challenge decisions to deport them. A brief and…

27th July 2017 By Nick Nason

When will a foreign adoption be recognised in common law for immigration purposes?

In W v SSHD [2017] EWHC 1733 (Fam) (07 July 2017) a married couple resident in the UK on a Tier 2 visa attempted to bring their 2-year-old adoptive son, V, to join them from Nigeria. The application they made for him to enter as a Points Based System dependent was rejected after the Secretary of State refused to recognise the currency of the Nigerian adoption document. As the couple were unable to satisfy any of the available statutory routes to demonstrate the adoption in the UK, the only option available was to apply for recognition of the adoption at common law. Such an order would have the same effect…

25th July 2017 By Nick Nason

Can a child stateless by “choice” be registered as a British citizen?

Under the British Nationality Act 1981, a child who is born in the UK and is (and always has been) stateless is entitled to register as a British citizen. See Schedule 2, Paragraph 3: 3 (1) A person born in the United Kingdom or a British overseas territory after commencement shall be entitled, on an application for his registration under this paragraph, to be so registered if the following requirements are satisfied in his case, namely— (a) that he is and always has been stateless; and (b) that on the date of the application he was under the age of twenty-two; and (c) that he was in the United Kingdom…

6th July 2017 By Nick Nason

Guidance issued on renewal applications following non-admittance by the Upper Tribunal

The case of KM (Bangladesh) v Secretary of State for the Home Department [2017] EWCA Civ 437 (21 June 2017) raises an interesting, if niche, procedural point. The case is relevant to parties who have had an appeal dismissed by the Upper Tribunal (UT); who wish to challenge the findings of the UT on a point of law; but who miss the deadline to make the application for permission to appeal against the determination to the Court of Appeal so that the application is not admitted; and wish to renew their applications directly to the Court of Appeal In this case the Court of Appeal gives guidance on how and…

4th July 2017 By Nick Nason

Should refugees claim asylum upon arrival in their first ‘safe’ country?

“Why don’t asylum seekers stop before they get here?” I have been asked this question many times. There are lots of safe countries on the way, so the argument goes. Why wait until they arrive in the UK to make their claim? They’re not going to get killed in France, after all. The insinuation is that the application for refugee status is cover for the real motive, probably economic, and the UK best serves those ends. With Refugee Week upon us, I wanted to explore this question. A numbers game Firstly, a few facts. During 2016, to the south, 123,370 people claimed asylum in Italy, and 85,244 in France. To…

20th June 2017 By Nick Nason

Tier 2: is it Brexit ready?

Tier 2 is a fortress. Everything about the UK work permit system is designed to disincentivise employers importing migrant labour from outside of the EU. Like a teacher who has lost control of her class at school and exacts revenge on her own children at home, who are occasionally fed and kept in the basement, the Tier 2 system controls what it can. For the time being, this does not include the number of workers who may enter to work from Europe. At last count, 2.24 million European Economic Area (EEA) nationals are employed in the UK without let or hindrance, with no need to obtain permission from the Home Office…

12th June 2017 By Nick Nason

When must the tribunal allow appeals against Home Office decisions containing errors of law?

Where the Secretary of State makes an error of law in a decision which is then appealed to the tribunal, does the tribunal have to allow that appeal on the basis that the decision contains an error of law? Not unless the decision as a whole is unlawful, finds the Court of Appeal in Singh (India) v Secretary of State for the Home Department [2017] EWCA Civ 362 (24 May 2017). Case outline Mr. Singh’s case was weak. He arrived in 2001 as a visitor for 6 months. He overstayed, and later made two Hail Mary applications in 2010 and 2012 to regularise his stay based on, apparently, little more…

5th June 2017 By Nick Nason

Country guidance issued between hearing and promulgation will still bind tribunal

Is the First-Tier Tribunal (FTT) bound to take into account a Country Guidance (CG) case that is issued by the Upper Tribunal after the date of the FTT hearing, and after the date the FTT judge signs the determination, but before that determination is promulgated? The short answer, in general, and for the very unfortunate appellant in NA (Libya) v Secretary of State for the Home Department [2017] EWCA Civ 143, is yes. Timeline The Libyan appellant in this case had been refused asylum and appealed against the decision to the tribunal. The appeal was heard by the FTT and allowed. The decision was made on the basis of information…

26th May 2017 By Nick Nason

Court of Appeal: “Particularly where children are concerned, there is no such thing as an average case”

By the tone of this judgment, the Court of Appeal in SSHD v RF (Jamaica) [2017] EWCA Civ 124 appears to be suffering from deportation fatigue, considering ‘yet another case’ [1] involving a foreign national criminal appealing against a decision to deport. It is testament to the high stakes involved, both politically for the Secretary of State, and individually for the foreign national subjects, that these cases are so regularly reaching the highest courts in the land. Exceptional vs Compelling Under Immigration Rule 398, a foreign criminal who has been sentenced to longer than 4 years imprisonment must show ‘exceptional circumstances’ if he or she is to outweigh the public interest in deportation….

25th May 2017 By Nick Nason

No human rights issues to be raised in EEA appeals, confirms Court of Appeal

In September 2015, the Upper Tribunal decided the case of Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC). The decision states that if an appeal is brought in the First-Tier Tribunal against an EEA decision then the only relevant issues that can be raised during the appeal are those directly connected to that EEA decision. Human rights issues, the Upper Tribunal ruled, were not justiciable. This case was covered at the time by Free Movement, where several issues were raised in respect of the reasoning of the tribunal, and the policy of attempting to artificially distinguish between European law rights and other rights guaranteed under domestic human rights…

19th May 2017 By Nick Nason

Tier 1 (Entrepreneur) visas: is Britain open for business?

Businesses large and small are the backbone of our economies, and enterprise is the engine of our prosperity. That is why Britain is – and will always be – open for business: open to investment in our companies, infrastructure, universities and entrepreneurs. –  Theresa May, Davos, January 2017 Entrepreneurs are used to taking risks. And in applying for a Tier 1 (Entrepreneur) visa, they will certainly be taking one. While in the 3 years to December 2016 the UK issued entry clearance to 2,821 holders of entrepreneur visas, and granted in-country extensions of leave in 7,283 cases in the same category, the refusal rate for both applications has consistently hovered…

17th May 2017 By Nick Nason

Family life succeeds in defeating s.94B ‘deport first, appeal later’ certification

The judgment in OO (Nigeria), R (on the application of) v Secretary of State for the Home Department [2017] EWCA Civ 338 is one of a series of cases challenging the lawfulness of the certification regime under s.94B Nationality Immigration Asylum Act 2002 (as amended). The issue has been considered several times on Free Movement, and judgment is still awaited on the lead test case of Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020, heard by the Supreme Court in March. This case is notable for its treatment of family life issues in respect of a (potentially) temporary absence from the United Kingdom whilst an appeal is ongoing, and a…

15th May 2017 By Nick Nason

Another successful unlawful detention claim

R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin) concerns a successful claim for damages by an individual unlawfully detained under immigration powers. It is notable for its restatement of the importance of the third Hardial Singh principle, and as a further example of the Secretary of State’s ‘enduring casualness’ [23] when dealing with cases involving immigration detention. Facts On 26 October 2015, Mr. Ademiluyi’s custodial sentence came to an end. He had served time for immigration-related offences, and in particular possession of a false passport, entering a sham marriage and bigamy. The Secretary of State for the Home Department (“SSHD”) had some months previously notified Mr. Ademiluyi that she intended…

9th May 2017 By Nick Nason

Supreme Court refuses damages to refugee wrongly prosecuted for illegal entry

Shortly after Christmas in 2009, a young woman from Somalia flew into Stanstead and claimed asylum. She had just turned 18. As later accepted by the Home Office, she had experienced severe depredations in her home country. This included her rape at the age of six in the presence of her disabled mother, and the murder of both of her parents. She fled Somalia in 2008, initially to Yemen, where she spent the next year. She was eventually able to fly to Europe with the help of an agent, who provided a British passport to facilitate her entry into the UK. After claiming asylum, the young woman from Somalia was…

26th April 2017 By Nick Nason

Home Office belatedly issues guidance on Operation Nexus

Operation Nexus was officially launched in November 2012, a law enforcement initiative aimed at deporting more ‘high harm’ foreign nationals. It has been criticised on many occasions for its opacity, and the lack of any publicly available policies which govern its implementation. See, for example, our previous post: Operation Nexus for dummies: happening now, in our time. Last month, 4 ½ years into its operation, the Home Office finally issued some guidance. What is Operation Nexus? According to the note, there are broadly two strands to Operation Nexus: Nexus Custody – Immigration Officers (IOs) deployed to designated police custody suites to examine all foreign nationals who are arrested. Cases identified as…

24th April 2017 By Nick Nason

Court of Appeal gives guidance on meaning of ‘unlawful residence’

The case of Akinyemi v SSHD [2017] EWCA Civ 236 concerns the deportation of a man born and raised in the United Kingdom, a country he has never left. It provides valuable guidance on the meaning of the word ‘unlawful’ within the context of deportation provisions introduced by the Immigration Act 2014 and shows just how far the law has moved in this area. Facts Remi Akinyemi is a man for whom one struggles to feel any great sympathy. Over the course of a prolific criminal career he accumulated 20 convictions and was found guilty of, amongst other offences, causing death by dangerous driving, possession of heroin with intent to supply, and…

11th April 2017 By Nick Nason

Deport first, appeal later certificates, judicial reviews and fresh claims considered by Upper Tribunal

In the judicial review case of Ayache, R (on the application of) v SSHD (paragraph 353 and s94B relationship) [2017] UKUT 122 (IAC) the Upper Tribunal considers the lawfulness of a decision to certify a human rights claim under s.94B Nationality, Immigration and Asylum Act 2002. For those not already aware, s.94B gives effect to the government’s “Deport First, Appeal Later” policy, which was upheld as lawful by the Court of Appeal in Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020. The test case was, however, subject to an onward to appeal which was heard by the Supreme Court last month. Judgment is awaited. Brief Facts The Applicant in the…

4th April 2017 By Nick Nason

Court of Appeal reaffirms position on adult dependent relatives

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

30th March 2017 By Nick Nason

Serious safety concerns raised in report on Morton Hall IRC

There is supposed to be a fundamental difference between custodial incarceration and immigration detention. The former is reserved for those who have committed crimes: its purpose is punitive, to protect the public and to rehabilitate offenders. The latter, however, is meant to be administrative: a stepping stone for those who are to be removed from the United Kingdom. The majority of those held in immigration detention have committed no crime. Blurred Lines However, a report released yesterday on Morton Hall Immigration Removal Centre (IRC) by the Chief Inspector of Prisons finds that the line between the two regimes is becoming increasingly blurred. According to the report, there has been a…

22nd March 2017 By Nick Nason

Scarring evidence in asylum cases

“The Tribunal’s conclusion was… that [in order to fabricate an asylum claim] the appellant had allowed himself to be anaesthetised and then branded with a hot metal rod”  – Elias LJ, KV (Sri Lanka) In this area of law, it is sometimes hard to live with the reality of what human beings can do to one another. It is trite to say that the white heat of a traumatic experience can be lost in the cold sterility of judicial evaluation. But it bears repeating that judges who specialise in immigration and asylum law are human beings, too. They have the capacity to become inured to the sea of trauma and…

15th March 2017 By Nick Nason

The Curious Case of the Eritrean Country Guidance

‘[I]t has to be said, Asmara does not feel like the capital of a country generating asylum applications with a 85% grant rate’ (sic)  –   Informal Home Office report of UK visit to Eritrea, 9-11 December 2014 In 2014, nationals of Eritrea were the second largest group of asylum seekers in the European Union. Thousands of Eritreans continue to reach the UK each year. The contents of guidance used by the Home Office to determine such claims and the manner in which that guidance is compiled is therefore of crucial importance, impacting directly on many lives. Executive reversal In March 2015, the Home Office reversed aspects of its position…

14th February 2017 By Nick Nason

Border Force needs to ‘up their game’ on slavery

According to estimates, there are 10,000-13,000 victims of modern slavery living in the UK. In order to tackle this problem, the UK government operates a Modern Slavery Strategy, and the Border Force plays its part by identifying potential victims, and ‘targeting’, ‘intercepting’ and ‘disrupting’ traffickers, primarily at the border. How are they doing? Not well, suggests the most recent report of the Independent Chief Inspector of Borders and Immigration. With only two prosecutions for trafficking related offences resulting from referrals made by the Border Force in the last two years, the Inspector finds that the department ‘may also be failing potential victims’. Two examples stand out in the report. In…

3rd February 2017 By Nick Nason

NHS shares patient data of suspected immigration offenders with Home Office

‘Patient confidentiality is one of the most important pillars of medicine’, explains Dr Vivienne Nathanson, previously Head of Science and Ethics at the British Medical Association. Can patient information be shared without consent? The general principle is that patient information is confidential and can only be disclosed to third parties without consent in very limited situations. These situations include, for example, where it would prevent the spread of an infectious disease or where there is a suspicion that a child is suffering, or is at risk of suffering, significant harm. There are also circumstances in which health professionals may be obliged to share confidential patient information where it would be…

1st February 2017 By Nick Nason

Operation Nexus for dummies: happening now, in our time

Two men are suspected of robbing a bank. Let’s call them Ken, a British national, and Boris, a non-British national. Boris arrived in the UK from somewhere in the Caucasus when he was 3, about 27 years ago. He holds Indefinite Leave to Remain in the UK but, being a bit scatty, never applied for British citizenship.

20th February 2015 By Nick Nason