Mind your language II

On a day where there are several appalling linked stories in the press about the horror and misery of true trafficking (here, here and here), I was sorry to read the Home Office attempting to claim false credit for a trafficking criminal conviction.

The press release in question is dated 1 July 2009 and entitled ‘Man jailed for six years for human trafficking’. However, on further reading it transpires that the offence was a ‘facilitation’ offence, probably under section 25 of the Immigration Act 1971. It certainly sounds like a conventional smuggling case, not at all a trafficking case. There is a separate specific offence of trafficking, under section 2 of the Asylum and Immigration (Treatment of Clamaints etc) Act 2004. As far as I know there has never been a successful conviction for trafficking.

The Council of Europe Convention on Action against Trafficking in Human Beings, to which the UK is now belatedly a signatory, includes a specific definition of trafficking:

“Trafficking in human beings” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

This was not a trafficking case if the body of the press release is to be believed, and it is plain wrong and misleading for the Home Office to be trying to claim credit for a trafficking conviction when in fact there haven’t been any. In addition, the press release damages public understanding by confusing smuggling and trafficking. Smuggling is with consent, trafficking is without – it’s not a difficult conceptual difference.

This post joins another previous one on misleading press releases. Frankly, I’d quite like them to stop the appalling puns as well.

New PBS decision: not good news

No time for a proper post on this new case from the tribunal, NA & Others (Tier 1 Post-Study Work-funds) [2009] UKAIT 00025, so I’ll just paste in the headnote, which speaks for itself:

i. The new-style Immigration Rules governing Tier 1 (Post Study Work) contain a Maintenance (Funds) requirement in mandatory terms that admit of no discretion and make no allowance for sickness or other mitigating circumstances.

ii. The effect of para 245Z (e), read together with Appendix C of the Immigration Rules and closely related parts of the Policy Guidance dealing with Tier 1 (Post-Study) Work, is that, to qualify, an (in-country) applicant must show he or she held £800 or over for each and every day of the period of three months immediately preceding the date of application.

iii. This requirement, however, is relaxed for those who applied before 1 November 2008. Under transitional provisions they were only required to provide a bank statement showing a closing balance of £800 or over bearing a date anywhere within the period of one month immediately preceding the date of application.

iv. The requisite amount of £800 or over can be shown in the form of a personal or joint account and may be shown in the form of personal savings held in overseas accounts.

v. Because the relevant provisions require applicants to show that they had the requisite amount of £800 during a three-month period of time immediately before their application, it is not possible to apply s.85(4) of the Nationality, Immigration and Asylum Act 2002 so as to enable them to succeed on appeal by proving they had the requisite funds for a period of time (wholly or partly) subsequent to the date of application.

vi. However, until s.85A of the 2002 Act is brought into force (subsection 85(4)(a) of which stipulates that in respect of appeals in Points Based System cases the Tribunal may consider evidence adduced by the appellant only if it was submitted at the time of applying), it remains possible for appellants to satisfy the requirements of para 245Z(e) by providing on appeal evidence in specified form showing that they had £800 or over in personal savings for the period of three months immediately prior to the date of application.

Fresh claims

This is becoming something of a hot topic, no doubt because of the number of Sri Lankan and Zimbabwean fresh claims that have been made recently because of changed circumstances in those two countries. The Court of Appeal has just issued a judgment on the interpretation of paragraph 353 of the immigration rules, and it is actually quite a helpful one: R (on the application of AK (Sri Lanka)) v SSHD [2009] EWCA Civ 447. I wish Lord Justice Laws had been as helpful to me when I was in the Court of Appeal last week, but as will shortly be public record, he most certainly was not.

The court holds (i) ‘further submissions’ under paragraph 353 just means representations, whether they be ’short or long, reasoned or unreasoned, advanced on asylum or human rights grounds’, (ii) that no particular form is required to advance further submissions and they can be a different type of claim or merely be new facts to support a claim that has already been advanced and (iii) that the ultimate test is whether there is more than a ‘fanciful prospect of success.’

Sir Henry Hodge

Hodge Jones and Allen

I was very sorry to hear last week that Sir Henry Hodge, President of the Asylum and Immigration Tribunal, has died. He was a genial, very affable man, with an amused twinkle almost always in his eye. AIT stakeholder meetings and the like were made all the more bearable by his self deprecating and humorous chairing.

There was an obituary in The Guardian yesterday for those interested in learning more about his achievements. He had a proud record of working with the vulnerable and disadvantaged. The success and reputation of solicitors firm Hodge Jones and Allen is a lasting achievement.

Right to work

There are two recent important developments on this front.

The first is that the Home Office is appealing the ZO Somalia case on right to work for those who have made fresh asylum claims and have not received a decision within one year of their application. This may well be of interest to those stuck in the Legacy backlog awaiting decisions. Additionally, the Home Office are saying that even if they ultimately lose on the legal point, there is no obligation in European law to grant permission to work, only to decide the terms of access to the labour market. There will be no decisions made on right to work applications until the appeal is decided or the Home Office become, in their own language, ARE (Appeal Rights Exhausted).

The other important development applies only to Turks but is very important for them. In the new case of Sonmez v SSHD [2009] EWCA Civ 582 the Court of Appeal eventually concludes that prior breaches of immigration law do form an adequate basis for refusal of a permission to work application under the Ankara Agreement. The case concerns those who breached immigration law to establish employment or self employment and then have sought to rely on the Ankara Agreement to continue that employment or self employment. It is a split judgment, with Sedley LJ in the minority and Dyson and Maurince Kay LLJ in the majority. All agreed that the common law principle of ex turpi causa non oritur actio (’from a dishonorable cause an action does not arise’) was not by itself reason to refuse the applications. This was the basis of the Tribunal’s earlier decision. The Tribunal had raised the point of their own motion and not referred themselves to relevant authorities more or less confining that principle to contract or tort. The majority, however, found that previous breach of immigration laws to establish employment or self employment did amount to an abuse and, relying on the earlier cases of Tum and Dari, Kondova and LF (Turkey) this was sufficient reason in European Community law to deny the benefits of the Ankara Agreement.

As with ZO Somalia, this won’t be the end of the matter. Both issues will probably end up in the House of Lords and then the ECJ. That could be several years down the line, though.

PBS decision on the way

Wending my way north on the train at an ungodly hour this morning, I found my reserved seat was opposite a fellow immigration lawyer I know from times past. We had a gossip, and he tells me that he was recently at Processions House, the temporary home of the Senior Immigration Judges after the Great Fire of Field House, while a three day appeal on the Points Based System was being heard. Ian MacDonald QC was instructed, amongst others, and my friend thought that one of the panel was Hugo Storey.

It sounds like the tribunal has finally gotten around to listing a test case of some sort.

Guidance is certainly much needed, although many lawyers suspect that when it comes it will not be terribly helpful to the clients caught out by the strict and arbitrary requirements of the PBS. If a taster is needed, this unreported decision (my thanks to the reader who spotted it) suggests that at least one of the arguments commonly used to mitigate the effects of the PBS has not found favour in the senior eschelons of the now doomed Asylum and Immigration Tribunal.

One possible alternative approach worth highlighting is to make use of the 28 day concession announced by Lord Bassam at the time of the debates on the PBS in Parliament (see here at column 97-98). The Home Office will consider applications submitted within 28 days of the expiry of a person’s leave as if the application had been made in time. Well, because of section 3C of the Immigration Act 1971, if an applicant under the PBS is rejected by the Home Office and appeals, that person’s leave only expires when his or her appeal rights are exhausted. Some lawyers report that PBS applications made within 28 days of the end of the appeal process have been accepted and granted.

Whether it is financially worthwhile paying a lawyer and the hefty application fee is an open question, as no-one can predict the chances of success at the moment. It may be that such applications end up being rejected by the Home Office. The only remedy at that point would be an expensive judicial review application.

First reported PBS appeal decision

The determination concerns the award of a qualification for the purposes of Tier 1: Post Study Work rather than the bigger issue of the silly maintenance requirements. Senior Immigration Judge Spencer finds that a person has not been awarded a qualification until they have received the qualification certificate.

My own view, for what it is worth, is that this is a daft outcome. What neither the Home Office nor many immigration judges seem to understand is that the world does not revolve around their other worldly evidential requirements. Banks are not willing to issue the letters the Home Office requires for maintenance to be proved. Educational institutions do not understand the fine legal distinctions and technical wording that disqualified this appellant.

I have to add that I won a first instance appeal on exactly this point a few weeks ago, where the immigration judge accepted that a results letter and a letter confirming successful completion of the course was sufficient. However, it looks like the guidance might have changed yet again on this issue since then, and of course the old guidance is now unobtainable.

Paragraph 6 of the determination is interesting, in that the tribunal seems to have entertained the possibility that had the certificate been obtained by the date of the appeal hearing that might have changed things. Immigration judges are divided on the question of whether, if an appellant meets the requirements at the date of the appeal but not when the application was made to the Home Office, the appeal can be allowed. There is no consistency at all and outcomes are quite random, making it impossible properly to advise clients on the prospects of success. However, this was not a senior AIT panel, the point isn’t decided anyway and too much should not be read into this as a precedent.

Bad guy or fall guy?

The Fall Guy

There has been a rush of cases in recent weeks on the subject of the Refugee Convention exclusion clauses. The exclusion clauses basically exclude some people from refugee status. In reality, human rights law has evolved to prevent removal if there is a well founded fear in such cases, but there are other benefits to refugee status for which make it worth fighting.

Shivani Jegarajah, a fellow tenant at Renaissance Chambers and a brilliant advocate, has been prominent in the Court of Appeal of late, and two of the big decisions on the exclusion clauses are ones in which she acted. By the by, she also has another big Sri Lankan Court of Appeal judgment pending after a successful hearing last week. More to follow once the judgment is available.

The first case is KJ (Sri Lanka) v SSHD [2009] EWCA Civ 292. The Appellant had been a member of and fought for the LTTE but had then fallen foul of the organisation and fled to the UK. He had not been involved with terrorist activities or attacks on civilians. The Asylum and Immigration Tribunal decided that as an active member of an organisation that carried out acts contrary to the purpose and principles of the United Nations, he was excluded from refugee status.

But, of course, one man’s terrorist is another man’s freedom fighter. Lord Justice Stanley Burnton notes that the LTTE is not just a terrorist organisation, although it certainly has carried out terrorist attacks. An active member of an organisation that only carries out terrorist activities will probably be excluded, he finds, but in cases where the organisation engages in a conventional military struggle and other activities, a more careful examination of the personal guilt of that person is required.

The second case is R (on the application of JS (Sri Lanka)) v SSHD [2009] EWCA Civ 364. The claimant had again been an active member and combatant with the LTTE and became second in command of their Intelligence Division’s combat unit. Lord Justice Toulson explores the principles of criminal liability and complicity in international criminal instruments and concludes that the tribunal has been far too readily excluding people from refugee status. He specifically disapproves the earlier ’starred’ decision in Gurung [2002] UKIAT 04870, by Dr Hugo Storey. Specifically, he finds that acquiescence is insufficient and he finds that the continuum approach in Gurung is wrong as it is simplistic and distracts from the critical question of ‘whether the evidence provides serious reasons for considering the applicant to have committed the actus reus of an international crime with the requisite mens rea’.

Both cases, and another recent case on the PKK in Turkey, MH (Syria) v SSHD [2009] EWCA Civ 226, suggest the Home Office and the tribunal have been following too expansive an approach to the exclusion clauses.

Points Based System changes

The Home Office have today announced some changes to the Points Based System for Tier 4 students. In summary, the main changes are:

1. Transitional arrangements on maintenance are extended to 30 September 2009, meaning the applicant need only show the necessary money in their bank account at the date of application rather than for a period of 28 days prior to the application.

2. Letters about loans no longer need to include the account number.

3. Official financial sponsors can now sponsor dependants as well as the main applicant.

4. The higher financial requirements for London students now apply only to those studying in inner London.

5. The date of application inside the UK is now taken to be the date of posting or in case of use of couriers the date of delivery. Out of country, it is the date the fee is paid.

The extension of the transitional maintenance arrangements is most welcome, but is no consolation to those struggling with the three month requirement for Tier 1 and Tier 2 at the moment. The loans letter change was necessary because, as with other aspects of the scheme, the Home Office had made up the requirement without checking that it was possible to fulfil. The third and fourth changes above are probably due to lobbying pressure by educational institutions.

Permission to work for fresh asylum claimants

I recently wrote a post on fresh claims for asylum explaining what they are and summarising the criteria. New on this subject this week is ZO (Somalia) v SSHD [2009] EWCA Civ 442, in which the Court of Appeal holds that the same law on permission to work that applies to initial claims for asylum also applies to second or subsequent claims for asylum by the same person.

The Court of Appeal finds that the EC Reception Directive provides a right to work if an asylum claim is outstanding with the Home Office for more than a year. Time waiting for completion of an appeal does not count, it has to be a Home Office delay. The Court decides that there is nothing in the Directive to suggest that the rule does not apply to later claims for asylum, and that such an application need not have been found by the Home Office to be a ‘fresh claim’ within the meaning of immigration rule 353: a one year delay on a second or subsequent application for asylum is sufficient to trigger the right to work in the Directive.

The case is a follow up to the earlier case of Tekle, covered on the blog back in December 2008. I warned then that this does not automatically mean the right to work for Legacy cases, but as explained below this new case is a little different. The Home Office may pursue an appeal to the House of Lords, and even if they do not their appalling record at implementing judgments they lose suggests a long wait before anyone gets given permission to work in a form that would be accepted by an employer.

In fact, ZO (Somalia) is now the law unless overturned. It rather appears that anyone who can prove they made an asylum application to the Home Office — including a second or subsequent claim — and has been waiting for over a year for a decision now has the right to work in the UK. This must apply to thousands of people given the atrocious delays at the Home Office and the whole five year Legacy clearance exercise. It is arguable that the right to work is automatically imparted to them by the Reception Directive and European Community law. It is not something that the Home Office can grant or refuse, although the Home Office is obliged to decide the conditions for entry to the labour market. Nevertheless, the practical reality is that any person without a piece of paper from the Home Office to prove they have a right to work will have difficulty persuading an employer to give them a job.

If you are in this position, I’d suggest getting legal advice about your situation.