Важные судебные решения и полезная информация для иммигрантов

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02 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> Appeal overturned after bus stop rant by court interpreter: https://www.bailii.org/uk/cases/UKUT/IAC/2019/352.html
An asylum appeal by an Eritrean woman, initially rejected by an immigration judge, has been overturned by the Upper Tribunal after it emerged the court interpreter embarked on a political rant to the woman’s barrister at the bus stop outside court afterwards.

[antontony]

04 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> Another failed challenge to the good character citizenship requirement: https://www.bailii.org/ew/cases/EWCA/Civ/2019/2024.html

R (Al-Enein) v Secretary of State for the Home Department [2019] EWCA Civ 2024 is another valiant but failed attempt to challenge the Home Office’s good character policy in relation to applications for British citizenship.

The issue in this case was whether the policy of looking back at a person’s immigration status in the decade prior to the application was lawful. Mr Al-Enein had been in the UK without valid leave between 20 November 2007 and 27 January 2010, when he was removed to Lebanon. He returned to the UK lawfully in 2012 as the fiancé of a British citizen and subsequently progressed to indefinite leave to remain. He applied for naturalisation in June 2015, but was refused for failing to meet the good character requirement due to non-compliance with UK immigration laws in the decade prior to application.

NB Should Mr Al-Enein approach the Legal Centre (www.legalcentre.org) before his application for Naturalization, he would have been warned about the consequences of applying at that stage and the imminent possibility of a refusal.

The particular challenge attempted here was to argue that the British Nationality Act 1981 already sets out a specific time period over which an applicant for naturalisation must have been resident in the UK and not in breach of the immigration laws. That period is three years for spouses/civil partners of British citizens, or five years for everyone else. This is what Parliament decided in enacting the legislation. But then the Secretary of State, using his sta***ory discretion to determine whether or not a person is of good character, is actually expanding that time period by a further seven or five years depending on the category. Doing so, it was argued, is ultra vires.

It seems fundamentally unfair that Parliament, after appropriate debate and scrutiny, specifies a required period of immigration compliance for would-be citizens, only for the Home Office to effectively lengthen it. One would think that if Parliament had intended an examination of a person’s immigration status over a longer period, Parliament would have passed legislation to that effect. But the Court of Appeal, like the Scottish courts, was having none of it:

“Although those requirements laid down by Parliament are sta***ory minimum requirements, there is no reason in law why the Secretary of State cannot impose an additional or extended requirement relating to breach of immigration laws as properly being a matter which is relevant to the more general question of good character… that requires an assessment or evaluation by the Secretary of State of all the relevant circumstances going to that issue.”

In other words, since Parliament has required the Secretary of State to determine whether a citizenship applicant is of good character without specifying how this is to be done, the Secretary of State can apply whatever policy he or she likes.

[antontony]

05 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> Administrative review under the EU Settlement Scheme: the 90% decision overturned success rate

Statistics – see https://www.whatdotheyknow.com/reque...coming-1450411 on administrative reviews of Settlement Scheme decisions show that 89.5% of initial decisions reviewed were overturned.

As of 12 September 2019, the Home Office had received 451 administrative review requests for Settlement Scheme decisions. More recent figures for administrative reviews have been requested but have been refused by the Home Office.

Half of the refusals could have been due to the case worker’s error…

As always, it is best to have at least a one-off consultation with our exerts from the Legal Centre (https://legalcentre.org/Initial-Consultation.html) in order to get a clear idea as to who to apply for the EU Settled or EU Pr-settled scheme.

Should you wish to be assisted further, the Legal Centre offers a cost effective package to assist migrant in order to get their EU Settled or EU Pre-settled status: https://legalcentre.org/EU-settled-a...nt-scheme.html

[antontony]

06 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> Update on registration applications under s4C BNA 1981

It may assist readers to know that the Home Office will grant registration as British without a citizenship ceremony under the relatively new provision to allow registration as British under s4C where the applicant has a criminal record (following the coming into force on 25 July 2019 of the BNA 1981 (Remedial) Order 2019 which removes the usual good character requirement).

For example, by the time the applicant’s application was approved the applicant was back in prison on a long-term basis and was thus not able to attend a citizenship ceremony. It is possible to make representations to the Home Office that when the guidance about when to waive the requirement to attend a citizenship ceremony was drafted, the possibility of a candidate being in custody had not been contemplated, as all adult applications were subject to a good character requirement. The Home Office then simply sent a registration certificate by post.

>>> Mentally ill man detained for 838 days awarded £100,000 compensation: https://www.gardencourtchambers.co.u...ntally-ill-man

A mentally ill Iranian man who was kept in immigration detention for 838 days in total has secured £100,000 in compensation from the Home Office. The test case concerning a man known as AKE was settled in the High Court recently.

The settlement does mean the legal issues in the case will not now be thrashed out in court. The Court of Appeal has repeatedly held that he immigration detention system discriminates against migrants with mental health conditions, in breach of the Equality Act 2010.

>>> Risk of trauma for children not enough to prevent deportation: https://www.bailii.org/ew/cases/EWCA/Civ/2019/2051.html

“…This is not a comfortable interpretation to apply. But that is what Parliament has decided…”

So held Lord Justice Baker, giving judgment in SSHD v KF (Nigeria) [2019] EWCA Civ 2051, and yet another deportation case in the Court of Appeal.

The case considered the meaning of “unduly harsh” in family separation cases, and endorses the line taken in SSHD v PG (Jamaica) [2019] EWCA Civ 1213 following the Supreme Court case of KO (Nigeria) v SSHD [2018] UKSC 53.
KF and his son.

In appealing against a 2014 deportation order following a three-year prison sentence for burglary and two robberies, KF relied on his relationship with family members in the UK, and in particular with his British son. He argued that it would be “unduly harsh” on his son for him to be deported (see Exception 2 in section 117C(5) of the Nationality, Immigration and Asylum Act 2002).

The First-tier Tribunal agreed, and this finding was upheld by the Upper Tribunal. In its assessment of the impact of KF’s deportation on his son the First-tier Tribunal had held:
“For [KF’s son], the adverse consequences remaining in the UK are likely to be that he would be deprived of a proper relationship with his father. I do not accept that maintaining a relationship, while living on different continents, via modern means of communication is in any way a substi***e for growing up with a parent. [KF’s] son is very young. This is the time when he would normally be bonding with his father. I think I am entitled to take judicial notice of the fact that being deprived of a parent is something a child is likely to find traumatic and that will potentially have long-lasting adverse consequences for that child. I take into account that in this case [KF’s] son has limited knowledge of his father and has the benefit of a supportive extended family. However in my view that is no substi***e for the emotional and developmental benefits for a 3 year old child that are associated with being brought up by both parents during its formative years. These benefits have been recognised by the courts on numerous occasions and the consequences of losing them should not be minimised.”

In November 2017, the Secretary of State applied out of time for permission to appeal to the Court of Appeal against the decision of the Upper Tribunal (made in August 2017). This was granted a year later following the judgment in KO (Nigeria).

Risk of trauma? No worries!

The Court of Appeal did not dispute the facts of the case. It described the conclusions relating to the importance of being brought up by both parents as “indisputable”. But:

“…those benefits are enjoyed by all three-year-old children in the care of both parents. The judge observed that it was a “fact that being deprived of a parent is something a child is likely to find traumatic and that will potentially have long-lasting adverse consequences for that child” and that he was entitled to take judicial notice of that fact. But the “fact” of which he was taking “judicial notice” is likely to arise in every case where a child is deprived of a parent. All children should, where possible, be brought up with a close relationship with both parents. All children deprived of a parent’s company during their formative years will be at risk of suffering harm. Given the changes to the law introduced by the amendments to [the] 2002 Act, as interpreted by the Supreme Court, it is necessary to look for consequences characterised by a degree of harshness over and beyond what every child would experience in such circumstances.”

The court reinforced the finding in PG (Jamaica) that there must be something in the factual matrix of a case which distinguishes it from other cases where a family is separated. It went on to allow the appeal and restore the original deportation order.

It’s what the people want

As well as continuing a trend in which the Court of Appeal remakes deportation appeal decisions rather than remitting them to the tribunal (and here for example, not considering at all whether “very compelling circumstances” might prevent deportation under section 117C(6), a step required where neither of the exceptions apply), this decision further embeds the problematic interpretation of the “unduly harsh” test as explored in our write-up of PG (Jamaica).

In reality, then, notwithstanding the real and accepted prospect of trauma and long-lasting adverse consequences for the children of deported parents, foreign national offenders sentenced to longer than 12 months facing deportation will need to show more than this to meet the test.

It is unsurprising that this causes the judges deciding these cases some discomfort.

[antontony]

09 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> General grounds for refusal: false representation: https://www.gov.uk/government/public...representation

This guidance is supplementary guidance relating to refusals on grounds of false representation under Part 9 of the Immigration Rules (the general grounds for refusal or GGfR) and the parallel provisions in Appendix Armed Forces, Appendix FM and Appendix V.

>>> UKVI update: Applying for a UK visa: approved English language tests: https://www.google.com/url?sa=t&rct=...I0MH37VOuJb-kj

Change made:

List of approved tests and providers from 7 November 2019 replaced with current list from 5 December 2019

[antontony]

11 December 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> High Court win for Turkish citizens accused of dishonesty: https://www.bailii.org/ew/cases/EWHC...2019/3208.html

In the case of R (Karagul & Ors) v Secretary of State for the Home Department [2019] EWHC 3208 (Admin), the High Court has found that the Home Office breached the principle of procedural fairness when refusing applications under the Ankara Agreement on the basis of bad faith or dishonesty.

Refused leave to remain amid dishonesty allegations

The case involved four Turkish nationals refused leave to remain in the UK as businesspersons under the Turkish European Communities Association Agreement (ECAA), commonly known as the “Ankara Agreement”.

All four applications were refused on the ground that the Home Office did not believe the applicants had a genuine intention to establish a business. As those were not human rights claims, the only remedies available to those applicants was administrative review or judicial review. The system of administrative review did not allow them to submit further evidence in answer to the allegations of dishonesty. So they turned to judicial review, arguing that:

1. The remedial regime for challenging the refusals violates the EU law principle of effectiveness; and
2. The way in which the decisions were made by the Home Office was in breach of common law fairness standards.

The High Court dismissed the first argument. It held that the claimants could not explain why a judicial review was incapable of providing effective protection to their rights to an effective remedy and fair trial.

It did, however, accept the second argument, relying heavily on the recent Court of Appeal case of Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673.

Officials must interview or follow a “minded to refuse” process

When refusing the claimants’ applications for leave, on the basis that they did not have a genuine intention or wish to establish their proposed businesses, the Home Office did not afford them an opportunity to address those allegations. Once their applications were refused, the claimants could only challenge the refusals by way of administrative review.

Following Balajigari, the High Court found that, before making a refusal on the basis of bad faith or dishonesty, the Home Office should either interview the claimants; or let them know that they were minded to refuse the application, and allow them an opportunity to submit representations in response to the allegations. Not doing so denied the claimants a fair process:

“If the Secretary of State on reconsideration decides to maintain her position that she does not accept the Claimants’ statements and implicit positions as to their true and genuine intentions, she is obliged to follow a fair process in which the Claimants have the opportunity to address this allegation before a final decision by a caseworker and also without being subject to an absolute prohibition on evidence being submitted in the AR [administrative review] in a challenge to the caseworker’s decision. The way to meet fairness standards in such cases can be either by way of interview or a “minded to decide” written process.”

The fact that the applicants could challenge the refusal by way of administrative review was not enough because of the limitations on putting forward new evidence. As Mr Justice Saini put it, “they have been found to have effectively been dishonest and then face an appeal process to be conducted without any chance to rebut that allegation that they did not have the relevant genuine intention with new evidence”.

Home Office policy still too narrow

This is a good result for the claimants and anyone making an application under the Ankara Agreement. However, the Home Office should adopt a fairer and less restrictive policy on when they will use the “Minded to refuse” procedure.
In addition, we still find it hard to understand how, in view of this case and the case of Balajigari, one can still justify visit visa refusals not attracting a right of appeal or a right of administrative review. They are routinely phrased as “I am not satisfied that you are a genuine visitor”, and therefore also making an accusation of dishonesty. We hope those are next in line for a challenge on the basis of procedural unfairness.

Judges have a sense of humour

Just to end on a lighter note, this sentence from the judgment made us smile:

“The Secretary of State has made an implicit finding of some form of bad faith (in the form of applications falsely claiming a certain genuine intention) and it is no comfort to a claim that he can hunt down the Guidance and will appreciate that when the Secretary of State says X she in fact means Y according to some special dictionary of terms used in the Home Office.”