Book review: The Child in International Refugee Law by Jason Pobjoy

The Child in International Refugee Law by Jason Pobjoy, a barrister at Blackstone Chambers, is an extremely useful, practical and important contribution to the international protection of child refugees. I cannot do better than Pobjoy’s own summary of the themes that run through this work: The hypothesis advanced in this book is that progressive developments in the interpretation of the Refugee Convention, coupled with a greater understanding of the relationship between international refugee law and international law on the rights of the child, enable the Convention to respond in a sophisticated and principled way to refugee claims brought by children. This will require a creative alignment between refugee law and…

27th October 2017 By Colin Yeo

Immigration and nationality law following surrogacy agreements

A surrogacy arrangement is, broadly speaking, where a woman carries and delivers a child for another couple or person. Under section 2(1) of the Surrogacy Arrangements Act 1985, it is a criminal offence for a person on a commercial basis to initiate or take part in a surrogacy agreement in the UK. Many families in the UK opt for countries where commercial surrogacy is lawful, such as the USA and Ukraine. However, children born out of surrogacy arrangements will not necessarily be born British, even when the commissioning parents are British. This is mainly because of the definition of “father” and “mother” under British nationality law. Questions then arise as to the…

11th October 2017 By Nath Gbikpi

Tribunal criticises government lawyers for “trench warfare” mentality and “inappropriate” conduct

In one of his final judgments as outgoing President, Mr Justice McCloskey launched a bitter broadside at the conduct of government lawyers in long-running litigation over the entry of refugee children. While the criticism of the solicitors at the Government Legal Department and of previous barristers instructed for the Home Office is robust and unambiguous, the background is hard to discern from the judgment itself, which arises essentially as satellite litigation around the failure of the Home Office to comply with previous orders made by the tribunal. The case is R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply –…

9th October 2017 By Colin Yeo

The Theis case: immigration and nationality law for adopted children

The story of Patrick Thies, a US NHS surgeon who had to return to the US to apply for a new visa for his two adopted children while his British wife and biological son remained in the UK, made the news a couple of weeks ago. Immigration and nationality law as it relates to international adoption is undoubtedly complex and a topic with which only a few practitioners are familiar. There are numerically very few international adoption cases, after all. The inevitable cross over with family law does not make it any easier. This blog post provides an overview of the subject. Types of adoption The first thing to note…

21st August 2017 By Nath Gbikpi

Court of Appeal reiterates effect of orders in the family courts on deportation decisions

The Court of Appeal in GD (Ghana) [2017] EWCA Civ 1126 explained once again what effect residence orders granted by a Family Court have on immigration matters, and criticised both representatives in the First-Tier Tribunal for failing to put the relevant law to the Tribunal. The ‘residence order’ regime has now been replaced with ‘child arrangement orders’ by the Children and Families Act 2014, but this does not change the effect of family proceedings on immigration proceedings. Residence orders are made by a Family Court and determine with whom a child subject to the order will live, and will usually last until the child is 16 years of age. A decision-maker…

8th August 2017 By Paul Erdunast

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

Tribunal says foreign law is a question of fact normally determined by expert evidence

The Home Office proposed to remove the father of a family and three children to India and the wife and mother to Pakistan, thus separating the family. The family argued that they would be permanently separated because the immigration laws of India would not allow entry for the mother. The Home Office argued to the contrary, but the evidence on which the Home Office arguments was based was found to be, um, a bit flawed: It follows that the cornerstone of the Secretary of State’s case crumbles and collapses. The main pillar upon which the Secretary of State has sought to justify the impugned removal decisions has been shown to be devoid…

15th May 2017 By Colin Yeo

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

When is it reasonable to require British citizen children to leave Britain?

Two interesting and important legal points emerge from the Upper Tribunal’s determination in SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC). The first is on the issue of when, if at all, a British child might be required by immigration policy to leave the UK and the second is how far, if at all, the tribunal might take account of policies of the Secretary of State under the new appeals regime established by the Immigration Act 2014. Reasonableness of requiring a British child to leave UK It turns out that the Secretary of State’s policy is that it is never reasonable to require a British citizen child to…

29th March 2017 By Colin Yeo

The UK’s spousal and family visa regime: some reflections after the Supreme Court judgment in the MM case | University of Bristol Law School Blog

Very interesting and detailed reflections on the MM case in the Supreme Court on the spouse minimum income rule. Family and spousal migration is only one part of migration policy, and there is the broader issue of what values migration policy should serve generally. In recent political argument in the UK, three sets of voices have been prominent, virtually to the exclusion of all others. First, the proverbial “taxpayer”, the net contributor to government spending. Second, the needs of “business” for skilled and not-so-skilled workers. Third, the “legitimate concerns” of so-called “ordinary people”, constructed as the “white working-class” worried about cultural and demographic change. Largely absent from the discussion have…

13th March 2017 By Colin Yeo

Home Office fails to act on recommendations of family returns advisers

The Home Office has belatedly published the reports of the Independent Family Returns Panel for 2012 to 2014 and 2014 to 2016. Home Office responses have been published in parallel. Why the Home Office was withholding from publication for so long the 2012-14 report is something of a mystery. The panel is made up of medical and child safeguarding experts, was established on 1 March 2011 to provide independent case-by-case advice to the Home Office on how to best safeguard children’s welfare during a family’s enforced return. The panel was put on a statutory footing by the Immigration Act 2014. Members are generally retired from senior posts including with social services, the police,…

19th January 2017 By Colin Yeo

New case from President on children’s best interests and the public interest

Important new determination from President McCloskey on the best interests of children in human rights cases where the statutory considerations apply: Kaur (children’s best interests / public interest interface) [2017] UKUT 00014 (IAC). The official headnote: (1) The seventh of the principles in the Zoumbas code does not preclude an outcome whereby the best interests of a child must yield to the public interest. (2) This approach has not been altered by Part 5A of the Nationality, Immigration and Asylum Act 2002. (3) In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct. (4) The best interests…

18th January 2017 By Colin Yeo

Albino child from Nigeria wins asylum claim

A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk. Source: JA (child – risk of persecution : Nigeria) [2016] UKUT 560 (IAC) (24 November 2016)

22nd December 2016 By Colin Yeo

Dura Lex, Sed Lex: Refugee children must remain in Calais says Court of Appeal

The UK government, and Europe, has spared no expense to ensure that wherever the people trying to get to Europe end up, it isn’t here. But the courts are seemingly doing their best to help. The Court of Appeal’s judgment in Secretary of State for the Home Department v ZAT & Ors (Syria) [2016] EWCA Civ 810 keeps unaccompanied children in the Jungle. There are more than 10 million child refugees in the world today. Millions of them are unaccompanied. Families make what are to most people unimaginable choices about which child will be sent away from their families to seek safety alone. But the UK government has argued successfully…

7th September 2016 By Jared Ficklin

Seven year rule for children must be satisfied at date of application

This family life case highlights the important point that the ‘7-year rule‘ – that young people under 18 must have lived in the UK for at least 7 years – must be satisfied at the date of application. It is not sufficient that the rule, in Immigration Rules paragraph 276ADE (iv) has been satisfied at the date of the Secretary of State’s decision. This was unfortunate for the family in Koori who fell foul of the rule, despite serious confusion running through the Upper Tribunal case: 21. There appears to have been considerable confusion about the way in which this ground was dealt with in the UT. First, for some reason neither the…

3rd August 2016 By Paul Erdunast

Serial criminal to be deported despite impact on his children

If you attempt to murder someone with a gun, and after release from prison for attempted murder (a sentence of over four years), are caught again with a loaded gun and imprisoned, do not be surprised that only the most exceptional circumstances will save you from deportation. This was all in the context of running a drug-dealing ‘business’. The main point in the Home Office appeal in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 concerns the Article 8 argument which was rejected. Lady Justice Rafferty stated that the effect on the children of having only one parent subsequently remaining in the UK was not enough to pass…

15th July 2016 By Paul Erdunast

Boys to men: how to prepare asylum appeals for young Afghans

There are a considerable number of asylum claims in the UK by young Afghan boys and men. The number should not be overstated, though. The latest official immigration statistics show that Afghans are outside the top five nationalities claiming asylum in the UK and recent research shows that of 3,043 separated children who claimed asylum in the UK in 2015, 656 of them were Afghan. The overwhelming majority are thought to be boys. This phenomenon has been the subject of academic study and there are also documentaries that offer insight. The Refugee Support Network yesterday published a new research report, After Return: documenting the experiences of young people forcibly removed to…

6th April 2016 By Colin Yeo

Can children and parents apply to remain after seven years residence?

In 2012 the Immigration Rules were changed so that children with 7 years of residence in the UK might potentially qualify for leave to remain. The relevant rule is paragraph 276ADE of the Immigration Rules. No similar provision was made in the Immigration Rules for a child’s parents, though, and a child’s application will only succeed if he or she can show that it would not be “reasonable” for him or her to relocate abroad. The Home Office approach to such cases is to say that where the parents have no separate right to remain in the UK under the Immigration Rules — which is in almost all cases —…

4th April 2016 By Colin Yeo

Statutory human rights considerations apply to child and adult alike

The tribunal has held, inevitably, that the statutory human rights considerations apply to children as well as adults, although other considerations must also be taken into account: (i) In section 117B(1)-(5) of the Nationality, Immigration and Asylum Act 2002 parliament has made no distinction between adult and child immigrants. (ii) The factors set out at section 117B(1)-(5) apply to all, regardless of age. They are not however an exhaustive list, and all other relevant factors must also be weighed in the balance.  These may include age, vulnerability and immaturity. (iii) The juridical status of the relevant Home Office ‘Immigration Directorate Instructions’ must be appreciated. While these are subservient to primary and secondary legislation and…

15th March 2016 By Colin Yeo

Presidential guidance on public interest in removal cases affecting children

President McCloskey certainly isn’t wrong when he says of the immigration rules on human rights introduced in 2012: These provisions of the Rules have generated much jurisprudence during the last two years. In this latest contribution to that ever growing jurisprudential midden, Treebhawon and others (section 117B(6)) [2015] UKUT 674 (IAC), the President examines section 117B(6) of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. This provides: (6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b)…

16th December 2015 By Colin Yeo

“I couldn’t pick her up and it just broke my heart”

Last week the Children’s Commissioner for England released a study into the impact of the Coalition Government’s new family immigration rules, introduced in 2012. The report is an emotionally difficult read with some heart breaking quotes but unfortunately I’m not sure that those who should read it will read it; it is hard to imagine that the politicians or civil servants responsible for the rules and their Byzantine implementation will bring themselves to familiarise themselves with the misery they have caused. A good summary is available here and the full report here.

16th September 2015 By Colin Yeo

Importance of applying to register children as British citizens

The otherwise unremarkable case of Oladeji (s.3(1) BNA 1981) [2015] UKUT 326 (IAC) emphasises the importance of applying to register children as British if they are so entitled. I had to go through this with an otherwise very well informed client the other day. If at the time of a child’s birth the child meets the requirements for British citizenship (e.g. one of the parents is British or settled) the child is automatically born British without any action needing to be taken. If the child later after birth becomes eligible for British citizenship (e.g. one of the parents becomes British or settled) the child does not automatically become British. An application…

2nd July 2015 By Colin Yeo

Refusal of a child’s British citizenship application on character grounds overturned

The High Court has overturned the refusal on character grounds by the Home Office of a British citizenship application by a migrant child. Karon Monaghan QC sitting as a Deputy Judge of the High Court held that the Secretary of State had acted unlawfully in fettering her discretion by applying too rigid an approach, failing to carry out an evaluative exercise, ignoring relevant considerations, treating 16 and 17 year olds as if they were adults for character purposes and arbitrarily and disproportionately interfered with the child’s Article 8 private and family life. The Nationality Instructions are also held unlawful in their drawing of a bright line distinction between 16 and…

12th June 2015 By Colin Yeo

Meaning of “access rights” to children in immigration law

With the Children Act 1988, the language of “access” and “custody” was abandoned in family law, and with good reason. The language was suggestive of incarceration, it encouraged confrontation between parents and it was based on the idea of children as inanimate parcels or packages. In immigration law, though, that language has continued to be used by the Home Office. One wonders why.

1st June 2015 By Colin Yeo

Hundreds of children refused British citizenship on character grounds

A Freedom of Information request has revealed that 415 children aged 10-18 have been refused British citizenship on character grounds. The power to refuse citizenship on character grounds was controversially extended from adults to children as young as 10 in 2010. The refusals include 25 of children aged 10-13, 95 of children aged 14-15 and 300 of children aged 16-17. It is the refusals of children aged 10-13 that are most obviously absurd but all the refusals are highly questionable on moral grounds. What could the 25 children aged 10-13 have done to be refused on character grounds? Or, to look at it another way, what child can truly be…

26th January 2015 By Colin Yeo

Reported immigration case on prospective family proceedings

Official headnote from Mohammed (Family Court proceedings-outcome) [2014] UKUT 419 (IAC): Whilst it may be that in the Family Court jurisdiction prior to the coming into force on 22 April 2014 of the Children and Families Act 2014 there was always the possibility of a parent making a fresh application relating to contact, there is nothing in the guidance given in RS (Immigration and Family Court) India [2012] UKUT 218 (IAC) (which was approved by the Court of Appeal in Mohan v Secretary of State for the Home Department[2012] EWCA Civ 1363) that supports the notion that the mere possibility of such an application being made (or pursued) is a…

25th September 2014 By Colin Yeo

How children become failed asylum seekers

Kent Law Clinic has published a new report, How Children Become Failed Asylum Seekers, which needs to be read by anyone representing children in asylum cases. Taking the files of 25 “failed asylum seekers” who had arrived in Kent as children, they reviewed the decision making process of the Home Office, the legal representation and the Tribunal’s consideration of any appeal in each case, as well as seeking to identify any further legal action which could be taken. The research team found that the majority of the young people had been refused on credibility or plausibility grounds, but that many of those findings arose out of processes which have now been…

20th August 2014 By Jo Wilding

Court of appeal guidance on best interests of migrant children

The Court of Appeal has finally grappled with the question of how to apply the best interests of children in an immigration context and given detailed guidance on how judges should approach the exercise. The judgment, in the case of EV (Philippines) & Ors v Secretary of State for the Home Department [2014] EWCA Civ 874, is essential reading for anyone acting in or deciding immigration appeals involving children. To put it another way, in our age of anonymised initials ‘EV’ is one of the relatively rare combinations it is worth learning and remembering.

4th July 2014 By Colin Yeo

Working with migrant children survey

In the past eighteen months Migrant Legal Project (MLP) has represented a number of Vietnamese minors on remand or serving Detention and Training Orders at Young Offender Institutes. All had been picked up for criminal offences relating to cannabis cultivation. Forced labour for cannabis cultivation is the most common form of child trafficking in the UK and Vietnam is the single largest source country for child victims of trafficking. We have put together a short survey to assess how widespread the problem of re-trafficking, re-prosecution and removal/deportation of trafficked children is and to explore how legal practitioners currently respond. We are hugely grateful for all responses:

19th June 2014 By Colin Yeo

Home Office presses to remove severely ill 6 year old child

A child referred to in court only as “Maya” is six years old. She has Spina Bifida and is very severely disabled. She also has severe learning difficulties and extremely complex needs. For the last five years she has received highly specialised medical treatment and has attended a special school in Enfield which provides her with a very high level of support. The situation of Maya and her family is a hard one. It is a situation made all the harder by the twin facts that Maya is Algerian and that the Home Office want to send Maya back there.

27th May 2014 By Colin Yeo

Child victims and protective measures

This jumped out at me from the newspaper the other day: People who may find it difficult to give their best possible evidence in a courtroom environment and all child victims will be considered in the pilot areas. This allows them to give evidence and be cross-examined by both prosecution and defence barristers ahead of the trial, in front of a judge, and then it is shown to the jury as part of the trial. Three crown courts – Leeds, Liverpool and Kingston-upon-Thames – are testing pre-trial cross-examination this year.

29th April 2014 By Colin Yeo

Yashika Bageerathi and the Family Returns Process

The story of Yashika Bageerathi has touched many. A bright student brought to the UK by her mother with her siblings to escape domestic violence at home in Mauritius, she has a promising future here if allowed to remain. Because she has turned 18 and is no longer a child, though, the Home Office has apparently separated her case from that of her mother and siblings and is trying to enforce her return independently. I’m seeing some pretty odd reports on Twitter, though, so thought a bit of legal background might be useful. Basically, I can’t see how an airline can refuse to take someone who would be leaving voluntarily, albeit…

30th March 2014 By Colin Yeo

Best interests in the Supreme Court: a round-up of 2013

The Supreme Court considered the best interests principle in the immigration, asylum and nationality context twice during 2013.  Both cases continued the trend of the contraction of the principle in the higher appellate courts.

24th March 2014 By Bijan Hoshi

Human rights, expulsion and medical treatment cases: a review

Human rights medical treatment expulsion cases are perhaps some of the most stark, most difficult and most challenging cases faced by a human rights lawyer. They concern life itself and will often involve a miserable, painful death if unsuccessful. The claimant and his or her family will be understandably desperate to succeed. Politicians, civil servants and even judges characterise these cases as ‘health tourism’ and reply that individual cases are very sad but the NHS cannot provide universal health care for the entire world. Human rights lawyers instructed by those reliant on medical treatment in the UK who resist removal face the difficult task of attempting to achieve a good outcome…

27th November 2013 By Colin Yeo

Residence test threatens access to justice for children

On Wednesday 23rd October 2013, Parliament’s Joint Committee on Human Rights heard oral evidence on the government’s latest proposals to cut legal aid. The evidence was clear.  Those that will suffer the most from the proposals are society’s most vulnerable groups – children, care leavers, and victims of sexual abuse and human trafficking.

8th November 2013 By Samuel Hawke

Stranded spouses: a convenient form of child abduction

Child abduction is a criminal offence. It requires covert departure from the UK to another country, and from the abductor’s point of view preferably one that is not in Europe, not a signatory to the Hague Convention and that does not have a bilateral agreement with the UK. The incredibly extensive powers available to the High Court include ‘port stop’ orders for prevention of undetected departure or entry and obtaining various records of the abductor and family members from third parties in order to locate the missing child. All this is intended to and does make child abduction very difficult and very risky. Some parents, though, have cottoned on to…

24th October 2013 By Colin Yeo

Test in health human rights removal cases different for children

The Court of Appeal has held that a different test applies to children in human rights health cases. These difficult cases involve a person seeking to remain in the UK in order to receive life-saving medical treatment not available in his or her home country. The recent case of Rose Akhalu is one well known example and we discussed this type of challenge recently here on Free Movement. In a new judgment, R (on the application of SQ (Pakistan) & Anor) v The Upper Tribunal Immigration and Asylum Chamber & Anor [2013] EWCA Civ 1251 the Court of Appeal holds that the Article 3 high test of exceptionality does apply…

23rd October 2013 By Colin Yeo

Getting an appealable removal decision

Many migrants and their families get caught in a situation where they apply to the Home Office for permission to stay, are rejected but then are unable to appeal the decision to the immigration tribunal. This has long been a problem (‘Refusal with no right of appeal revisited‘) but is becoming even more acute given the terms of Appendix FM and the huge number of arbitrary refusals it is generating. Although it may well seem counterintuitive, a good outcome can be a formal removal decision from the Home Office.

23rd September 2013 By Colin Yeo