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Good news from on high

Good news from on high

The House of Lords have just issued four judgments today, three of which are good news for immigrants.

The first is Beoku-Betts. In a surprisingly short judgment the Lords tell the Asylum and Immigration Tribunal to stop messing around and get on with assessing the rights of all family members affected by an immigration decision. Led by Mark Ockelton, as on almost all legal issues now, the tribunal have been unwilling to look at the rights of the child or spouse who is affected by the removal of an immigrant. They claimed it was because of the statutory framework, but that really didn’t trouble the Lords. The tribunal had tried to palm off the problem by saying that family members could always judicially review a decision themselves, but this was always completely impractical.

This judgment will have very significant ramifications for the way that cases are argued and decided. All sorts of new considerations and evidence will need to be looked at, such as whether the spouse knew about insecure immigration status when entering the relationship and the effect on any children.

The next case is EB (Kosovo), which is about the effect of Home Office delay on someone’s claim to remain in the UK on the basis of their private and family life. This is a humane judgment and includes a useful reminder to immigration judges on the importance of family life:

“The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child.”

In the past, many judges have not been at all troubled by doing exactly that which Lord Bingham here suggests they should not do. Lord Bingham goes on to say that delay on the part of the Home Office allows relationships to strengthen and grow and that the longer the delay, the less weight is to be attached to knowledge on the part of the spouses that the immigration position was uncertain. On top of that, delay by the Home Office reduces the extent to which the Home Office can claim that it is necessary to remove someone in the interests of maintaining a fair system.

The third case is Chikwamba, which is another great result and again blows out the water a long and un-illustrious line of case law. The Lords are highly critical of a tendency in tribunal decision-making that forces an immigrant with a family life in the UK to return to their country to apply for entry clearance. In these decisions, the tribunal in essence refuses to adjudicate on the persons rights and says ‘tell it to the entry clearance officer’. The Lords sound genuinely astounded that this result could have been contemplated in this particular case, and Lord Brown goes as far as saying:

“…it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad”

The last of the four House of Lords cases, AL (Serbia) and Rudi, went againt the immigrants. The case was a challenge to the ‘family amnesty’ whereby families consisting of at least one parent and at least one minor child were to be granted permission to stay in the UK. The Home Office wanted to clear the decks a little and dispose of some of the cases in the backlog. The claimants in this case were unaccompanied children, so they did not fall within the strict terms of the policy. ‘Tough’, say the House of Lords, basically.

Two of these four cases highlight a growing trend in the tribunal: the shirking of its judicial responsibilities and the wanton ceding of its own jurisdiction. One sees the same thing happening in bail cases where some immigration judges are remarkably uninterested in unlawful detention issues and will actually write in their reasons ‘you can always go to the High Court’. Is it laziness? Or fear of making decisions against the Home Office? Or something else? Will these judgments correct this tendency? I doubt it. If the tribunal continues to undermine its own raison d’etat, a surprising comparison with the Ragged Trousered Philanthropists might be apposite.

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.

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