Free Movement

There was more evidence at the weekend that a shortage of Polish plumbers will soon hit these shores. The Observer published an interesting, thoughtful article on the return of many Eastern European migrants from Ireland to their home countries or elsewhere in Europe. One side effect was the depletion in the ranks of Transylvania FC, a football team of Romanians that plays in the Leinster Senior League. This sounded like a brilliant integration story to me.

The article also tried to suggest that there were tensions between migrants and the settled Irish, but the evidence for this seemed pretty scanty and anecdotal. I’d have expected to see stats on race crime or similar. Could be lack of a problem, could be lack of evidence, could be lack of effort on the part of the journalist.

The serious lesson is not to wildly and irresponsibly extrapolate statistics on migration, something on which I have posted before, using the analogy of Elvis impersonators.

As an aside, I saw Once last year, a sweet natured, romantic comedy about a Dublin busker and a Czech immigrant. I came out thinking that it said a lot about the difference in approach to migration that the Irish produced that, whereas we came out with not-so-sweet films like Eastern Promises and Dirty Pretty Things. It’s easy to say these things from afar, ut the Irish seem to be far more comfortable with migration than the British have become.

The Government has lost yet again. I’m beginning to feel embarrassed for them. These repeated legal defeats smack of a basic failure to comprehend the idea of rule of law. That’s OK with individual politicians, of whom you can’t generally expect very much, but it is deeply worrying with a whole Government equipped as it is with processes and procedures, checks and balances, consultations, civil servants and legal advisers. I’m interested mainly in the immigration field, where the HSMP case, the overseas marriage rules case and now the junior doctors case immediately come to mind, but what about the repeated knock-backs on terrorism, torture and corruption?

Anyway, the House of Lords ruled against the Government on an attempt at a back-door change to the immigration rules for overseas junior doctors. The case was brought by Bapio Action Ltd, a company formed by the British Association of Physicians of Indian Origin to represent the interests of junior overseas doctors who had been lured to the UK by promises of a career here but after arrival were being deprived of an opportunity to apply for jobs.

The judgments differ considerably in their reasoning. Lord Bingham holds that the email sent out by a Home Office official was an unlawful exercise of the power to regulate immigration status that can only be exercised by the Secretary of State (and is rather critical of the attempt to affect so many lives by so such informal, ill-considered means). Lord Carswell agrees with him, more or less. Lord Mance disagrees and decides that the email did not directly affect immigration status, but that the email was a breach of legitimate expectation. Lord Rodger agrees with Lord Mance. Lord Scott disagrees with all of them and allows the Home Office appeal.

So, it’s a score draw between the Bingham reasoning and the Mance reasoning, which are really quite radically different. Whilst I love reading the differing judgments of the Lords, this kind of stalemate makes a strong case for single judgments. Perhaps when they become the Supreme Court.

The most interesting approach from an immigration lawyer’s perspective is that of Lords Mance and Rodger. There have been several cases recently which have been allowed on the basis of legitimate expectation. These all share a common feature. A group of immigrants have been led to expect a certain outcome, but the Home Office changes its mind and pulls the rug out from under their feet. This ought to be a lesson to the Home Office about such unfairness, but somehow I don’t think anyone at Home Office HQ is listening. The ambiguity in the reasoning is also something of a let off as well.

Unfortunately, it seems unlikely that this judgment will be much use to those affected by immigration rule 320(7B). The Court of Appeal case of Odelola, unless overturned, would appear to scupper that. It effectively permits changes to the immigration rules even after an application has been submitted but before it has been decided, as long as there was no express promise not to change the rules. This does seem at odds with other recent case law, so there might be some hope for it being overturned.

In terms of scraping the bottom of the barrel, this is beaten only by the withdrawal of the non-removal policy for over 65s. Why oh why would they bother? Since at least 1993, there has been a policy that where a British citizen marries a foreign national who is here illegally but who is not actively being removed, an application under the normal spouse rules will be permitted once the marriage has been going on for at least two years. Normally, it would be necessary for the foreign national to go home and apply for a visa, which is expensive, a Right Royal Pain In The Arse and risks refusal at the hands of some jobsworth entry clearance officer.

As I described in a very recent post, there was actually an equivalent policy for unmarried partners. Not any more, I imagine.

It was a confusing area and the various bits of Home Office guidance and policy documents were a real mess. The courts have said it would be a Good Idea to clean it all up a bit and rationalise the guidance. Well, you can’t get more streamlined than abolition, which is what happened on 24 April 2008, in a Ministerial Statement by Liam Byrne MP.

This would be bad enough at the best of times, but it is particularly awful gven the new ‘no return’ immigration rule 320(7B). This bans from re-entering the UK anyone who previously broke UK immigration laws. There’s a sort of tariff system of different terms of exclusion, which I’ve covered in previous posts on this.

So, not only have many couples lost the benefit of DP3/96 and the equivalents, meaning that the foreign national partner must go abroad and apply for a visa, they will also find that the foreign national spouse or partner cannot even apply for a visa for at least a year.

It is definitely time to start putting in human rights applications on behalf of British citizens who find themselves separated from partners or forced to emigrate. The rights of ‘third parties’ like spouses or children cannot normally be considered by the Asylum and Immigration Tribunal (unless the House of Lords decides otherwise in the awaited judgment in a case called Betts) but they can put in their own applications under section 7 of the Human Rights Act 1998.

Bastards.

An interesting case is circulating amongst immigration lawyers at the moment but has not been officially reported.

The Asylum and Immigration Tribunal reporting process is somewhat opaque, to put it mildly. Back in The Day, the tribunal used to send copies of all determinations to various organisations, and then lawyers could publicise or report whichever decisions they chose. Decisions that were influential were usually written by respected judges and there was a sort of Darwinian survival of the fittest element to the whole thing. Admittedly some lawyers did try citing daft decisions sometimes.

The process was given a distinctly Creationist make-over a few years ago. The tribunal decided that it only wanted lawyers and judges reading the decisions that it chose. A panel seems to have been set up that selects its favourite decisions. There is a widespread perception amongst immigration lawyers that it only seems to select decisions that are adverse to immigrants. I couldn’t possibly comment on that.

The decision this post is about is an unusually liberal one. It finally and belatedly puts married and unmarried partners on a par. The Home Office had been insisting that a policy called DP3/96 did not not apply to unmarried partners. It doesn’t, the tribunal found, but the Home Office introduced an almost exactly equivalent one back in 1999, they put it in their guidance to their caseworkers and they should jolly well start applying it.

Bottom line: if you have been in the UK living with someone for two years before the Home Office started enforcement action against you, some or all of that time you have had no immigration status and it is not reasonable for your partner to relocate with you to your home country (watch out, this requires something more than mere hardship), then you should be granted three years of Discretionary Leave. Enforcement action includes notifying you that you are an overstayer and that you are liable to removal. The people most likely to benefit are therefore overstayers rather than asylum seekers, as most asylum seekers have enforcement action started against them fairly early on.

Why hasn’t this decision been reported? Good question. Perhaps it will be, but there seems to be no hurry.

Liam Byrne, the Immigration Minister, has written to the Immigration Law Practitioners Association (ILPA) with some further clarification on the no return amendment to paragraph 320 of the immigration rules (see here, here and here for previous posts on this). There are no shocks, really, but he does rather usefully say that a previous breach of immigration laws will not be held against someone if they were later granted leave. The example he gives is a student who overstayed previously but despite this was granted leave by the Home Office.

The letter reiterates that the concession announced in Parliament only applies to those who were in the UK on 17 March 2008.

Not to put too fine a point on it, this is bonkers. It penalises anyone who left before 17 March to try and sort out their immigration position and benefits thoe who hung on in the UK. I’ve already had a few queries about this and there is a strong argument that a visa should be granted on human rights grounds. As no Entry Clearance Officer has ever knowingly granted a visa on this basis, as far as I am aware, anyone in this position will need to apply for a visa, get refused, wait six to nine months for an appeal, hopefully win their appeal, and then wait for a further three months for the ECO to grant the visa. Or, as long as they went voluntarily and at their own expense, they could save themselves the stomach ulcer and wait a year before applying. The length of time an appeal takes defeats the object of having the right of appeal in the first place.

It may seem unfair that a person who leaves the UK under one set of rules with certain expectations then has to apply to come back under a new, different set of rules. Not for immigration lawyers, though; the rules change pretty much every fortnight so this happens all the time. It does seem genuinely unfair that the case of a person who applied before 1 April is decided under rules introduced later. In a piece of rather unfortunate timing, the Court of Appeal decided only last Friday that this is perfectly lawful, however, in a case called Odelola v Secretary of State for the Home Department. It concerns different immigration rules but the principle applies to rule 320(7B).

This may seem to be at odds with the recent Highly Skilled Migrant Programme case, but that case was decided on the basis of legitimate expectation, an argument that was considered untenable in Odelola. In the HSMP case there were various pieces of guidance that could be said to create a legitimate expectation that the same rules would be applied, but there is no equivalent in the case of rule 320(7B).

So, what to do? As far as I can see, there is no easy effective remedy for those who left the UK before 17 March and are having their applications decided under the new no return rule. There have been suggestions in some cases that visa officers have cynically put applications on hold in order to apply the new rule after 1 April, and I have to say that this would not surprise me. For those with evidence of a deliberately delayed decision or suffering real hardship (for example they have children in the UK) it may be worth investigating urgent judicial review proceedings in the High Court on the basis that an appeal to the Asylum and Immigration Tribunal is not an adequate remedy. Such a case would also be suitable for arguing the human rights of the family left behind in the UK, which cannot normally be argued in the immigration courts.

It was with considerable pleasure that I read in the paper this morning that the HSMP Forum has won its challenge to the Home Office’s heavy-handed and inconsiderate change to the HSMP rules. I could use stronger language, but I’ll leave it to Mr Justice Bean, who decided the case: an ‘abuse of power’.

Essentially, he decides that a promise was made to those that were enticed to enter the UK under the scheme and leave behind them their jobs in order to make new lives for themselves ad their families here in the UK. The promise was simply that the rules under which they entered the UK would be the rules under which their settlement applications would be decided in four years’ time. In fact, the Home Office proceeded to pull the rug out from under their feet and tightened up the rules considerably, preventing many from qualifying for settlement.

Mr Justice Bean, sitting in the Administrative Court of the High Court, found that there was a legitimate expectation on the part of the migrants. Contrast this with the earlier decision by Ms Arfon-Jones, Deputy President of the Asylum and Immigration Tribunal, that there was no such legitimate expectation. Exactly the same guidance was quoted in both cases (the redoubtable Margaret Phelan being instructed in both cases probably helped). Why is it that yet again the AIT is being shown to be so wilfully conservative by the higher courts? Several months have gone by between the two decisions and many cases will have followed the first case and been unsuccessful in that time. I hope none of those involved ended up leaving the country in despair (who could blame them?) or were subjected to the indignity of detention and removal.

The Home Office and UK Visas have published guidance on their website about how their decision-makers should apply the re-entry ban and the concession that was announced. Unfortunately, they appear to be sticking to the strict terms of the concession that was announced in Parliament, meaning that the concession only applies to those present in the UK on 17 March 2008 who leave voluntarily before 1 October 2008. Anyone who left before 17 March 2008 does not fall within the concession and appears to face the exclusion ban.

Anyone in this position should certainly seek legal advice as it is absurd to treat worse those who had already departed from the UK in order to regularise their position than those who had lingered in the UK for longer.

The letter setting out the settlement reached between the Law Society and the Legal Services Commision and Ministry of Justice has leaked out… and is here for anyone interested.

No big bangs. A small increase to the fixed fees and some empty promises on consulting more in future. Doesn’t seem like much to me. It was no doubt satisfying to beat the LSC – it would have been tragically amusing if the Law Society, comprised of solicitors, had failed – but this looks a lot like a proper Pyrrhic victory.

For those who are interested, the terms are as follows:

Financial benefits 

• A revised approach to unrecouped payments on account from more than six years ago – subject to cases involving dishonesty and / or greater than £20,000 on an individual case. 
• An increase of 2% on all legal help fixed fees and underlying hourly rates from 01/07/08
• An increase of 2% in the hourly rates only for Level 2 Family Help lower
• Care level 2 fee increased from £347 to £405
• 5% increase in CLR fees and rates for mental health (whether paid as standard fee cases or exceptional claims), plus 2% for remote travel payments
• 5% increase in CLR fees and rates for asylum and immigration cases covered by the standard fee scheme (whether paid as standard fee cases or exceptional claims)
• New rules on Standard Monthly Payments so that changes will not happen so often, so unpredictably and with such large variations

 Stability measures 

• A commitment by the LSC (subject to certain caveats, particularly relating to CLACs and CLANs) not to terminate the Unified Contract before it expires through effluxion of time in April 2010
• Deferment of the further changes to family fee schemes (including standard fees for private law family litigation, adjustments to the escape threshold for care standard fees, and a new advocacy fee scheme) which had been due this year, until April 2010
• Acceptance by the LSC that their right to amend contracts is significantly curtailed, and that therefore the historic approach of making significant structural changes during the life of a contract cannot continue
• The rule on remainder work will be changed so that firms are entitled to undertake it for two years after termination of their contract, so long as it has not been terminated for fault.

 Certainty 

• The LSC is publishing a route map for civil and family legal aid showing the way forward until 2013, in which it commits not to introduce price competitive tendering for civil and family cases before 2013
• The LSC is announcing a delay of six months to the earliest possible date for the introduction of best value tendering for crime, and will publish a full route map in its response to the BVT consultation
• The LSC is publishing (once purdah for the local elections is out of the way) a list of the areas in which CLACs or CLANs may be introduced before April 2010. No CLACs or CLANs will be launched outside these areas before that date.

Reviews The following reviews are being set up, with terms of reference settled in the course of negotiations all reviews to be published.: 

• The setting up of a Consultative Group equivalent to the Criminal Contracts Consultative Group. An early task for this group will be a full review of the new fee structures
• A joint review of peer review accreditation, the specialist quality mark and other quality assurance issues.
• A joint working group to address concerns about the contract compliance audit processes.
• A joint review of the immigration stage billing problem, with a report to be published by 30th June 2008.
• Law Society involvement in the evaluation of CLACs and CLANs, including our Head of Research to be on the advisory board

There have been two important developments on returns to Iraq in the last week.

The first is that an unknown number of Iraqis appear to have been removed on a specially chartered flight on 27 March. According to the International Federation of Iraqi Refugees and Stop Deportations to Iraq, there are 200 Iraqis being held in detention and 55 of them were removed. I’ve never heard of either group before but these sorts of self-appointed interest groups are increasingly springing up in belated response to the appalling treatment asylum seekers receive from the UK government. The source was certainly being given credence by UNHCR London, who put out a request to lawyers for further information about the removals.

The second is that the Asylum and Immigration Tribunal have made a decision in the case of KH (Iraq) CG v SSHD [2008] UKAIT 00023. The hearing lasted one week and the determination has come out impressively quickly considering the difficult legal issues the Tribunal has had to address. The case concerns Article 15(c) of the EU Refugee Qualification Directive and the novel concept of protection on the basis of individual risk arising from indiscriminate violence. Spot the paradox there. The legal analysis and treatment of the central issue is superior to that in the rather half-cocked earlier decision in HH and others (Mogadishu: armed conflict: risk) Somalia CG v SSHD [2008] UKAIT 00022 but the bottom line is that the decision is essentially negative for most asylum seekers.

Is there a link between these two developments? If I was confident that the Home Office was a well oiled machine, I’d say ‘yes’. As a party they will have had advance notice of the outcome of the case, and would therefore have had time to plan a mass removal in its wake. It would have been sensible to wait for the outcome, as alert immigration lawyers may have been able to obtain High Court injunctions preventing removal pending the outcome of the case.

I wish I were wrong, but I very much doubt that anyone at the Home Office gives a damn what the Asylum and Immigration Tribunal or the courts thinks about the situation in Iraq, so I imagine this is in fact pure coincidence.