Shocker: the Home Office appear to have accepted what the Lords say in Chikwamba (see previous posts on the House of Lords cases themselves and then on the secret policies if coming to this fresh). The policy just published and now to be applied in all relevant Article 8 cases is a pretty faithful reflection of what the Lords said in that case: that only in a small number of cases would it be proportionate to expect an individual to return home to apply for entry clearance rather than having their claim determined in the UK. It doesn’t mean they’ll win their cases, but it does force the Home Office and courts to decide the issues here and now rather than fobbing off the claimant by saying they should go back home and apply for entry clearance.
Luckily for my sense of moral outrage, normality returns in the policy on the EB (Kosovo) case. For this one, the Home Office invent a spurious requirement that delay is only going to assist an applicant where he or she had an expectation of being treated differently if the case had been decided earlier or was treated inconsistently to others who applied at the same time.
That is very clearly NOT what the Lords say and the Home Office appears to be making a mistake a first year law student would not: that the facts of a case are binding, rather than legal principles. My lecturers might be surprised, but even I can recall the difference between obiter dicta and ratio decidendi, the foundations of the common law system of precedent. Anyway, both policies are badly worded and ambiguous so there is scope for them to be interpreted in different ways. Almost certainly to the detriment of immigrants, if business is as usual.
There is almost nothing in the policy on the effect of Beoku-Betts, other than the rather surprising suggestion that the Home Office was already complying with the judgment anyway as the rights of family members were considered at the point of removal. This is so plainly untrue it is just a bit embarassing.
What will the AIT make of this? Given that the House of Lords judgments reverse a long and rather tarnished line of tribunal cases, they will probably be less than pleased that the Home Office have caved in on Chikwamba. It rather ties the Tribunal’s hands, although some senior immigration judges are capable of Houdini-like feats in such situations. It is quite probable that the tribunal will adopt a similar line to the Home Office on EB (Kosovo), however, as might the Court of Appeal if the sour comments in TG (Central African Republic) are anything to go by.