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When does bad immigration advice affect a human rights appeal?
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When does bad immigration advice affect a human rights appeal?

We’ve three new Upper Tribunal decisions for you this week. Alex has written up one of them already and will cover another later in the week, lest readers be overwhelmed with too much excitement in one day.

The third new case is called Mansur (Immigration adviser’s failings, Article 8) [2018] UKUT 274 (IAC). Mr Mansur was let down by his immigration advisers and by the Home Office. The advisers failed to tell him that a fresh application for leave to remain would be invalid because a separate appeal was pending (Immigration Act 1971, section 3C(4)) or to withdraw that pending appeal when instructed to do so. The Home Office incorrectly informed Mr Mansur that his fresh application was valid and being considered, when in reality it had been invalidated because of the pending appeal. As a result, he ended up without leave for several months and was turned down for indefinite leave to remain which he had applied for on the basis of ten years’ continuous lawful residence.

The Office of the Immigration Services Commissioner investigated and found that the advisers failed to provide “competent and diligent representation”, but the First-tier Tribunal dismissed Mr Mansur’s appeal. President Lane was more sympathetic, approaching the matter as follows (per the official headnote):

(1) Poor professional immigration advice or other services given to P cannot give P a stronger form of protected private or family life than P would otherwise have.

(2) The correct way of approaching the matter is to ask whether the poor advice etc that P has received constitutes a reason to qualify the weight to be placed on the public interest in maintaining firm and effective immigration control.

(3) It will be only in a rare case that an adviser’s failings will constitute such a reason. The weight that would otherwise need to be given to that interest is not to be reduced just because there happen to be immigration advisers who offer poor advice and other services. Consequently, a person who takes such advice will normally have to live with the consequences.

(4) A blatant failure by an immigration adviser to follow P’s instructions, as found by the relevant professional regulator, which led directly to P’s application for leave being invalid when it would otherwise have been likely to have been granted, can, however, amount to such a rare case.

The President allowed the appeal on the facts, holding that to remove Mr Mansur now would “amount to a disproportionate interference with his Article 8 rights” to a private life in the UK.

 

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