Permission to work judgment

I’ve just seen that judgment is now available on BAILII* in a recent successful challenge to UKBA’s refusal to grant permission to work to those who are entitled to it following the Court of Appeal judgment in ZO (Somalia).

More about the issue in previous posts starting here. It is a classic example of UKBA lawlessness. Incidentally, Steve Symonds of ILPA will be giving a talk on UKBA lawlessness at the ILPA AGM tomorrow, for which it is apparently not too late for members to book. I’ll be there!

* Enough of you are clicking on BAILII links to have induced the head honcho at BAILII recently to email me so say they were delighted that I made such free use of BAILII links but please acknowledge BAILII more – which I am absolutely delighted to do, BAILII is a marvellous website.

New President announced

The new president of the Immigration and Asylum Chamber of the new Upper Tribunal has been announced: Mr Justice Nicholas Blake QC. The appointment is effective as of 15 February 2010, when the unlamented Asylum and Immigration Tribunal is merged into the rest of the tribunal system.

The choice of appointment comes as a pleasant surprise to many. Nick Blake, as many in immigration law will continue to think of him, was primarily a claimant Counsel and was based at 2 Garden Court then latterly at Matrix Chambers (see his profile here). He was tirelessly active and very well regarded both as a man and as a brilliant lawyer.

Anyone expecting liberal decisions from him should not hold their breath, though. Andrew Collins was considered a liberal before his appointment as President but immigration lawyers were disappointed by many of his decisions. However, I would hope that this will put an end to some of the more obviously reactionary trends in the modern tribunal. The third party support saga, for example, was an unfortunate and personal legacy from the late Sir Henry Hodge. It seems a fair assumption that Nick Blake would never have gone off in that wrongheaded direction.

We should be grateful that someone of Mr Justice Blake’s calibre is willing to serve in this capacity. Most High Court judges find immigration and asylum cases an annoyance and this office is hardly a fast track to judicial advancement.

3rd party support: correction

My bad, as I believe some young people today sometimes say.

Many thanks to the excellent Philip Nathan of 36 Bedford Row, one of the juniors in the case, for a more authoritative explanation of the 3rd party Supreme Court case, which I reproduce from another forum with his permission:

The Supreme Court heard the linked cases of AM, VS, SA, KA and AM(2) during the  first three days of this week. After hearing from counsel for the ECOs, Monica Carrs Frisk QC, the Court indicated that they didn’t need to hear replies from the Appellants on the issues of joint sponsorship under the rules and whether the existing rules relating to spouses and dependant relatives and also children under 297, allowed for reliance on third party funds.  In light of this, it seems that they will be ruling on both issues in our favour thereby reversing both AA (Bangladesh) and AM (Ethiopia).

It seems likely also that questions may be asked as to why the SSHD seemingly ignored Collins J’s ruling in Arman Ali.  Issues relating to Article 8 and 317 (iii) remain undecided and the Court gave no indication of their position other than to seek further submissions in reply.  The case of AM(2) recently was added to the cases which were before the Court of Appeal last year, in order to consider the issue of Article 8 and Article 14 with respect to disabled sponsors.  This is where the Blogger’s [that's me!] confusion may have arisen as that hearing was was due to proceed yesterday afternoon immediately after the main issue, but the SSHD conceded Entry Clearance for that Appellant only, following the court’s indications at the end of the main hearing.  Leading counsel in the various cases were: Manjit Gill QC, Michael Fordham QC and Lord Pannick QC (+ Richard Drabble QC on the papers in SA but who was unfortunately unavailable for the hearing).  The juniors were those that appeared before the Court of Appeal last year plus Joanna Stevens for AM(2).

There was no indication as to when the Court will hand down its judgment.

Again, many thanks Philip.

Supreme Court allows 3rd party support

News just in, more to follow tomorrow, if there’s anything to say. AM (Somalia) was heard and allowed today. I’m currently at the Hammersmith and Fulham Community Law Centre AGM so not much chance to deal with this properly right now. Word is that the Supreme Court has overturned the Court of Appeal and tribunal and third party support is once again allowed under the immigration rules for spouses and dependent relatives. The written judgment will probably not be available for several weeks or months, unfortunately.

In short, this means that support from benevolent uncles is once more permitted as a contribution to maintenance under the immigration rules. Charles Dickens would approve, I feel.

UPDATE 12/11/09: I had a chat with one of the juniors in the case. The panel was of five judges. The appellant’s leaders were Manjit Gill QC, Michael Fordham QC (I’ve noticed he doesn’t do a lot of Treasury work these days) and David Panick QC, with Monica Carss-Frisk QC for the Home Office. The hearing lasted two and a half days. At the end the panel announced that the appeal was allowed and entry clearance should be granted. Intriguingly they also indicated that they were going to hold that third party support was permissible for the three categories under the rules. It isn’t clear which three, but must include spouses and dependent relatives. Children cases may also be included in the ruling.

Immigration regulator to give up on day job

Suzanne McCarthy, the current Immigration Services Commissioner

The Office of the Immigration Services Commissioner (OISC) is currently consulting on the regulation of immigration advisers. Or, more accurately, the de-regulation of immigration advisers.

It is illegal to give immigration advice in the UK unless the adviser is a member of an exempted profession (mainly solicitors and barristers) or is registered with the OISC at one of three levels. Level 1 does not involve giving advice as such, merely pointing an immigrant in the right direction or filling in simple forms. There is a test to pass to register at Level 1: an online multiple choice test done in the security and privacy of your own home. Meaning, of course, that anyone can take the test for you or even if you do it yourself you can look up the answers at your leisure. Level 2 allows the adviser to actualy give advice. Level 3 enables the adviser to carry out advocacy in the immigration tribunal.

It is all a bit more complicated than this, in fact, but life is too short to go into it further. The scheme is certainly not a simple one, and the OISC has struggled for the last decade to get the public, community groups, advisers and immigrants to understand it all. Now, the OISC is proposing to tear it all up, confuse the hell out of everyone again, merge levels 1 and 2 and allow current level 3 advisers to undertake judicial review applications in the new unified tribunal. As far as I can see from the consultation paper, there will be virtually no bar to anyone giving full-on immigration advice other than the at-home multiple choice ‘test’ and there will be no bar to OISC advisers undertaking judicial review work other than a simple advocacy test.

Now, I was an OISC adviser for years. There’s certainly nothing wrong with OISC advisers. I’ve seen terrible, terrible work by immigration solicitors and excellent work by OISC advisers. But the idea that an OISC adviser would be adequately equipped to do JRs after an advocacy test by the OISC is ridiculous. And the idea that the OISC is basically giving up on preventing the ignorant from giving immigration advice is very dangerous. It will reverse the admittedly limited progress the OISC has made into closing down dodgy immigration agents and consultants.

If the OISC was serious about regulation they would concentrate on improving their screening and application process, their visits, enforcement action and audits and basically get on with it. This looks like a classic governmental response: failing to do the job properly despite having perfectly good powers in place, blaming the legal framework and fiddling repeatedly with the rules to move the goalposts. We see it often enough in immigration law already, thank you very much. The proposals will do nothing to prevent or close down bad advisers. Instead this will distract the OISC and the regulated advice sector for a couple of years while simultaneously making it easier to give incompetent advice.

If you are concerned about the regulation of immigration advisers and the quality of advice given to immigrants, you may wish to respond to the consultation.

Guardian piece

My my, one gets more comments on The Guardian website than on Free Movement! I’ve been busy in court all day (on a non immigration case) and get back to find that there were 87 comments on the short piece I’ve done for Liberty Central at The Guardian’s website.

I haven’t yet read beyond the first few comments, but having seen those and being familiar with the tone of responses to other liberal commentators there I imagine many will be negative.

At some point later today I’ll be logging on there and starting to do a few responses…

Grounds of appeal in one stop appeals

Do not be fooled by the first judgment in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 by Lady Justice Arden. She holds that the appeal should be dismissed, but is out-voted by the rest of the bench, Lord Justice Moore-Bick and Lord Justice Sullivan.

The judgment concerns the nature of appeals and the convoluted link between rights of appeal and grounds of appeal created unnecessarily in the 2002 Act at sections 82 and 84. By a majority, the Court holds that as long as there is a right of appeal then any ground of appeal can be argued, no matter what the nature of the decision appealed against. For example, if a decision is made to deport an individual, that person can appeal on all available grounds, including race relations, EEA law, refugee grounds and so on.

I was surprised and slightly alarmed to read in Arden LJ’s judgment that there was even an argument that this was not the legal position. I always assumed that it was and have blithely assured immigration judges and instructing solicitors of this on several occasions in the past.

Permission to work

UPDATE: see this judgment.

There have been some interesting developments on permission to work for Legacy asylum seekers. Click here for the Story So Far.

I read in some stakeholder minutes recently that UKBA thought it had only be judicially reviewed once about failure to grant permission to work following the case of ZO (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 442 in the Court of Appeal. I thought this was very surprising at the time, and have now heard that there have been several successful judicial reviews. High Court judges are granting mandatory orders that UKBA grant permission to work. Judgment was given in one such case this week and I’ll post a link to it here once it is reported on BAILII.

This is a classic example of the Home Office wanting it both ways. UKBA lost the case and are so far having no luck appealing it. When UKBA win a court case but the appellants appeal, UKBA insist that the law is at stated in the judgment and will seek to remove people on this basis. When UKBA lose a case and try to appeal, they claim that the judgment should not be enforced. This particular example is even worse, though, as UKBA had the chance to apply for the judgment to be suspended pending resolution of any appeal but declined to do so at the proper time, only to resurrect the argument in individual cases later on.

The legal position is that anyone out there who has been waiting for a year or more for a decision on an asylum claim — whether a first claim or a fresh claim — can seek permission to work and can judicially review UKBA if permission is not granted.

Forced marriages and age

Two more things on this topic. One, I’ve belatedly discovered that UKBA released a draft version of the research report covered previously on this blog. The final version is in fact a more polished piece of work. One can only assume that UKBA deliberately released the less polished version in order to undermine it somehow.

Secondly, an interesting article has been published in the journal Feminist Legal Studies on age as a risk factor in forced marriages. I’m not normally an avid reader of this journal, I admit, but the article is well worth reading if you are interested in the subject. The authors are two of the researchers commissioned by the Home Office for the suppressed report. It’s an academic piece but here are just some of the interesting ideas raised:

1. Forced marriage should be seen as a species of domestic violence. Age would never usually be said to be a risk factor in other types of domestic violence cases as it is accepted that women of all ages can be victims. Why is this reasoning not applied to forced marriage cases, where there is evidence to suggest that applies equally?

2. The increase in the spouse visa age is based on the ‘common sense’ presumption that with age comes ‘maturity’ and independence. However, maturity is a cultural concept. For example, in many Asian families moving away from parents is not considered to be a sign of maturity but of something dysfunctional.

3. One perceived benefit of the visa age increase was allowing young people to complete their education. This ignores several considerations, including that marriage and education are not mutually exclusive, lots of people do not pursue higher education but will still not be able to live with their spouses in the UK.

4. The change has a disproportionate effect on minority communities and reinforces racist stereotypes. In short, it is discriminatory.

These are just a few points I’ve taken away from the article, though. As I said, I’d recommend reading it yourself.

Some refugees have more rights than others

It's a case

In the recent case of MS and others (family reunion: “in order to seek asylum”) Somalia [2009] UKAIT 00041 the tribunal looked at the refugee family reunion rules and came to the slightly surprising conclusion that not all refugees have the same rights.

A recognised refugee who arrived in the UK and made a formal claim for asylum as defined in the immigration rules is allowed to sponsor family members to come in from abroad under the special refugee family reunion rules at immigration rules 352A to 352F.

A recognised refugee who did not make a formal claim for asylum is not allowed to do so. The tribunal held that such a person has not ‘left the country of his former habitual residence to seek asylum’. Such refugees might include refugees sur place (who left their country for other reasons but due to a change at home have now claimed asylum), Gateway refugees, refugees recognised as such in another country but who have moved to the UK or refugees who themselves entered as family members of other refugees.

Some might say that this decision eliminates one possibility for ‘chain migration’ (a term that always causes a little bit more of me to die inside in protest) but the numbers affected are very small. Many immigration lawyers will have come across cases where a spouse enters under the family reunion rules but the original refugee dies or disappears. Under the previous more liberal interpretation, such a person would be able to bring in their own and the original refugee’s children. Not any more though.

Unless, of course, the decision is overturned on appeal. As the growing ‘Tribunal overturned again‘ category on this blog shows, this isn’t exactly infrequent. I can say with some assurance that the legal team has sought permission to appeal and is still waiting. If you are interested, you can even read the grounds of appeal.