WP_Post Object ( [ID] => 83948 [post_author] => 6452 [post_date] => 2019-01-17 17:06:46 [post_date_gmt] => 2019-01-17 17:06:46 [post_content] =>

This month is a bumper update, with a host of immigration announcements just before Christmas to cover, including two sets of changes to the Immigration Rules, a white paper, an Immigration Bill and announcements on EU citizens’ rights. We run through the main policy and procedural changes for lawyers to be aware of before turning to some case law on asylum and detention, as well as all the Upper Tribunal’s reported decisions for this month — all in just 25 minutes.

[audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2019/01/December-2018-podcast.mp3"][/audio] The material covered in the podcast is all drawn from the following December 2018 blog posts on Free Movement:

Points Based System

New statement of changes to the Immigration Rules: HC 1779 Home Office confirms chaotic U-turn on suspension of Tier 1 (Investor) visas Immigration white paper published

Procedure

Dedicated Home Office team to consider new evidence in pending appeals Immigration health surcharge to double from 8 January 2019 Immigration lawyers have to publish their prices by 6 December 2018 Court of Appeal guidance on costs in ETS cases Rolling review can be appropriate, Court of Appeal holds

Brexit

New statement of changes to the Immigration Rules: HC 1849 A member of an EU national’s household can apply for settled status Government to water down EU citizens’ rights if no Brexit deal Immigration Bill to end EU free movement finally published

Upper Tribunal

Tribunal calls for sensible approach to evidence justifying late applications Family members of cross border workers can derive EU right to reside if needed for childcare Home Office further amends removals policy in response to Upper Tribunal judgment

Asylum

Tribunal finds “hair trigger” risk for activist Iranian Kurds Report plays down ill-treatment of non-Arab Sudanese in Khartoum Home Office allowed to withdraw concession in another pro-government appeal ruling Fast Track asylum appeals under an unlawful system were not necessarily unfair

Detention

Higher damages payable for unlawful detention caused by delay in providing bail accommodation 143-day average waiting times for detained asylum seekers – another unlawful system? [post_title] => Immigration update December 2018 [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => immigration-update-december-2018 [to_ping] => [pinged] => [post_modified] => 2019-01-17 17:06:46 [post_modified_gmt] => 2019-01-17 17:06:46 [post_content_filtered] => [post_parent] => 0 [guid] => http://www.freemovement.org.uk/?post_type=course_unit&p=83948 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82582 [post_author] => 6452 [post_date] => 2018-12-20 15:35:29 [post_date_gmt] => 2018-12-20 15:35:29 [post_content] => This month we again take it from the top with the Supreme Court’s latest attempt to cut through the complexity of our immigration law before turning to a major High Court decision on trafficking. November also saw the Home Office roll out a new in-country application system, so we’ll discuss what we know about that so far. There’s then some Upper Tribunal case law on appeals, asylum and Article 3 to chew on, and we conclude on the now-infamous paragraph 322(5). [audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2018/12/November-2018-podcast.mp3"][/audio] The material is all drawn from November 2018 blog posts on Free Movement. The main content of the downloadable 25-minute audio podcast follows the (non chronological) order of content below:

Appeals law

A “new matter” includes EU law arguments Upper Tribunal grants general permission to appeal to Afghan hijackers

Asylum

Immigration Rules on humanitarian protection conflict with EU law Home Office “too accepting” of dire asylum accommodation, immigration inspector finds

Article 3

Burden of proof rests with appellants in Article 3 appeals More Article 3 appeals rejected as Court of Appeal stands firm on Paposhvili

Paragraph 322(5) tax cases

Blame the accountant? Tribunal weighs in on paragraph 322(5) Home Office publishes paragraph 322(5) guidance but stands firm on controversial refusals [post_title] => Immigration update November 2018 [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => immigration-update-november-2018 [to_ping] => [pinged] => [post_modified] => 2019-01-17 17:05:32 [post_modified_gmt] => 2019-01-17 17:05:32 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/immigration-update-november-2018/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82165 [post_author] => 23 [post_date] => 2018-12-14 11:56:32 [post_date_gmt] => 2018-12-14 11:56:32 [post_content] => [post_title] => When can immigration bail be granted? [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => when-can-immigration-bail-be-granted [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:56:32 [post_modified_gmt] => 2018-12-14 11:56:32 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/when-can-immigration-bail-be-granted/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82164 [post_author] => 23 [post_date] => 2018-12-14 11:55:50 [post_date_gmt] => 2018-12-14 11:55:50 [post_content] =>

Pierre Makhlouf is the Assistant Director at the small charity Bail for Immigration Detainees (BID). BID does some amazing work with immigration detainees to assist them with bail applications and runs a rota for immigration lawyers to assist pro bono. His is an enormously experienced voice in this field and we were lucky to be able to grab Pierre to ask him a few questions about making immigration bail applications.

[audio mp3="https://www.freemovement.org.uk/wp-content/uploads/2018/09/Pierre-M-traing-podcast-2.mp3"][/audio]

[post_title] => Podcast interview with Pierre Maklouf [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => podcast-interview-with-pierre-maklouf [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:55:50 [post_modified_gmt] => 2018-12-14 11:55:50 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/podcast-interview-with-pierre-maklouf/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82162 [post_author] => 23 [post_date] => 2018-12-14 11:54:09 [post_date_gmt] => 2018-12-14 11:54:09 [post_content] => [post_title] => Other issues [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => other-issues [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:54:09 [post_modified_gmt] => 2018-12-14 11:54:09 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/other-issues/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82161 [post_author] => 23 [post_date] => 2018-12-14 11:53:03 [post_date_gmt] => 2018-12-14 11:53:03 [post_content] =>

Video link limitations, taking instructions from client and checking statement / bail summary, limited papers available to the HOPO, dealing with difficult judges, pressure to withdraw, whether to call evidence from client, making best use of supporters, bail in principle, addressing judge on conditions if bail granted

[post_title] => The bail hearing [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => the-bail-hearing [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:53:03 [post_modified_gmt] => 2018-12-14 11:53:03 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/the-bail-hearing/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82160 [post_author] => 23 [post_date] => 2018-12-14 11:50:00 [post_date_gmt] => 2018-12-14 11:50:00 [post_content] =>

If immigration bail is granted, conditions will be fixed by the immigration judge. The attendance of the supporters may be waived for the next occasion, so long as they provide letters explaining their absence and indicating their continued acquiescence to the original bail conditions.

The applicant must attend on the next occasion. If your client does not attend, the supporters risk forfeiting all or part of the sum they have put up. You must explain this to them. They may be liable even though they have done their best to avoid such an event (this advice would be prudently given in writing, and care should be taken over any conflicts of interest that might ensue).

[post_title] => What happens if bail is granted? [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => what-happens-if-bail-is-granted [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:50:00 [post_modified_gmt] => 2018-12-14 11:50:00 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/what-happens-if-bail-is-granted/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82159 [post_author] => 23 [post_date] => 2018-12-14 11:49:08 [post_date_gmt] => 2018-12-14 11:49:08 [post_content] =>

In the event of a breach of conditions, to ascertain the supporter’s appreciation of the situation, the immigration judge may question the supporter to see if their confidence in the applicant meeting their immigration bail conditions was well founded, whether they monitored compliance with bail conditions and whether they suspected any failure to comply.

A particular problem arises in cross-border cases. Where bail is granted in England and the supporter lives in Scotland, the financial condition is difficult to enforce. The old Presidential bail guidance note identified that

The available route, which has never been tested, would appear to be to obtain on order for payment from a Magistrates’ Court and register this in Scotland as a foreign judgment… to do diligence upon it under Scots law.

It identifies that the way to avoid the problem is to require that where the proposed supporters reside in Scotland, caution is taken by the tribunal in Scotland, even where bail in principle is granted by the tribunal in England and Wales (which may also set the amount of caution).

The latest guidance does not deal with the question, but the problem has not gone away. When consulting on the forms and guidance to implement Schedule 10, the tribunal said of the matter in its consultation document

it is questionable whether there is any significant purpose to be served by imposing a financial condition for a comparatively small sum when the cost and difficulty in enforcing payment is likely to be disproportionately high compared with the amount to be recovered.

If applicant is detained in Scotland but the supporters reside in England, the old guidance used to indicate that the tribunal in England and Wales can grant bail in the English/Welsh form while if bail is granted in such a case by the tribunal in Scotland, caution will normally be required. Again, the latest guidance is silent on the issue.

[post_title] => Forfeiture hearings [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => forfeiture-hearings [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:49:08 [post_modified_gmt] => 2018-12-14 11:49:08 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/forfeiture-hearings/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82157 [post_author] => 23 [post_date] => 2018-12-14 11:48:19 [post_date_gmt] => 2018-12-14 11:48:19 [post_content] =>

Role of supporters, who makes a good one, how to handle money on offer etc

[post_title] => Supporters and finances [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => supporters-and-finances [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:48:19 [post_modified_gmt] => 2018-12-14 11:48:19 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/supporters-and-finances/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82156 [post_author] => 23 [post_date] => 2018-12-14 11:47:39 [post_date_gmt] => 2018-12-14 11:47:39 [post_content] =>

Don't win a case by default because the Home Office is wrong about something, but VERY important to check any Home Office assertions that damage the client's case are actually true- bail summaries are notoriously incomplete or plain wrong.

[post_title] => Home Office inaccuracies [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => home-office-inaccuracies [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:47:39 [post_modified_gmt] => 2018-12-14 11:47:39 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/home-office-inaccuracies/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82155 [post_author] => 23 [post_date] => 2018-12-14 11:46:26 [post_date_gmt] => 2018-12-14 11:46:26 [post_content] =>

e.g. compliance with bail conditions

[post_title] => Previous behaviour [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => previous-behaviour [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:46:26 [post_modified_gmt] => 2018-12-14 11:46:26 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/previous-behaviour/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82154 [post_author] => 23 [post_date] => 2018-12-14 11:46:00 [post_date_gmt] => 2018-12-14 11:46:00 [post_content] => [post_title] => Whether removal is really pending [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => whether-removal-is-really-pending [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:46:00 [post_modified_gmt] => 2018-12-14 11:46:00 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/whether-removal-is-really-pending/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82153 [post_author] => 23 [post_date] => 2018-12-14 11:44:56 [post_date_gmt] => 2018-12-14 11:44:56 [post_content] => [post_title] => Length of detention [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => length-of-detention [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:44:56 [post_modified_gmt] => 2018-12-14 11:44:56 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/length-of-detention/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82152 [post_author] => 23 [post_date] => 2018-12-14 11:42:18 [post_date_gmt] => 2018-12-14 11:42:18 [post_content] =>

Part 5 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014 No. 2604 (L. 31)) makes specific provision for bail applications before the Tribunal.

The rules require detailed grounds in support, together with advance service of a bail address or the reasons why one cannot be provided and details of any financial condition supporter (although a supporter is not a pre-requisite under the rules). They similarly envisage service of the respondent’s bail summary by 2.00pm on the day prior to the bail application (paragraph 40(1)) provided adequate notice was given. Failure by the Home Office to serve the bail summary by 2.00pm the day prior to the hearing may lead to the case being treated as one where bail is not opposed, although the immigration judge must nevertheless look at the public interest factors relevant to the individual application.

Rule 39(3) requires the tribunal to dismiss an application on the papers if it is made within 28 days of a decision to refuse bail and there has been no material change in circumstances. It is therefore very important to set out in your application for bail what the change in circumstances is.

An immigration tribunal bail application must be made on a prescribed form, a B1.

An immigration judge may release your client on immigration bail subject to the same conditions that the Secretary of State may impose. This will include re-appearing before the immigration judge at a later hearing, usually the full appeal hearing.

Immigration judges can be expected to be sympathetic to clients not attending every further hearing especially where they have to travel some distance — but you may need to make clear at the hearing that your client has kept in touch with you. The exception is where the hearing is a bail variation or extension.

Immigration judges may require a financial condition or caution (Scotland) from the client or from financial condition supporters/cautioners (Scotland). The procedures are different in Scotland from England and Wales: in the former jurisdiction, the cautioner is required to deposit the caution with the tribunal, not simply to promise to pay if the person absconds. The grant of bail in Scotland is for a specific period.

The burden of proof in justifying detention lies, given the presumption in favour of bail, on the Secretary of State. The standard of proof is the balance of probabilities. The immigration judge must give a reasoned decision in writing.

Re-detention

Paragraph 1(6) of Schedule 10 provides that a person can be re-detained even if he or she has been granted immigration bail:

A grant of immigration bail to a person does not prevent the person’s subsequent detention under a provision mentioned in sub-paragraph (1).

This power enables the Secretary of State to detain a person even though that person has been granted bail by the tribunal.

[post_title] => How to apply for tribunal immigration bail [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => how-to-apply-for-tribunal-immigration-bail [to_ping] => [pinged] => [post_modified] => 2018-12-14 11:42:18 [post_modified_gmt] => 2018-12-14 11:42:18 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/module-unassigned/how-to-apply-for-tribunal-immigration-bail/ [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 82151 [post_author] => 23 [post_date] => 2018-12-14 11:41:15 [post_date_gmt] => 2018-12-14 11:41:15 [post_content] =>

New immigration bail guidance for tribunal judges was made public on 2 May 2018.

The guidance states at the outset that an immigration judge is not to decide whether continued detention is lawful (paragraph 6), i.e. whether it complies with the Hardial Singh principles. It then goes on to say at paragraph 30 that where detention is no longer justified, bail should be granted.

The guidance says that an immigration judge should not automatically impose a residence condition. The guidance for tribunal judges provides:

Where a person cannot offer a bail address, a judge may consider whether they might be eligible for support under schedule 11 to the 2016 Act. If the applicant is so entitled, the judge can grant bail subject to such an address being provided within 14 days (or such other suitable period) and the applicant being released immediately the address is available.

The period can be extended on application, and by consent, if necessary. If the likelihood of a bail address becoming available within a reasonable period is low, then it will be appropriate to consider whether other conditions such as more frequent reporting can be applied in the meantime rather than refusing bail.

This turns bail for those who need Home Office accommodation into a two stage process. Accommodation is not always provided in a timely manner, particularly in cases of ex-offenders.

Where the tribunal grants immigration bail it can direct under paragraph 6(3) that the Secretary of State may vary bail conditions, in which case paragraph 6(4) provides that the tribunal may no longer do so itself. It is common for immigration judges to transfer the management of bail to the Secretary of State. Paragraph 6(6) requires that notice be served on the relevant person on bail and on the Secretary of State.

There is a dedicated Free Movement post on the guidance.

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