Temporary migration

Free Movement is leaving for warmer climes and will return embarrassingly late in January.

I hope you all have a good Christmas break, and I hope UKBA doesn’t illegally remove too many detainees while their lawyers are off work.

I was going to do a parody of the hideous UKBA Christmas card but it is beyond parody. And too depressing. And, anyway, someone else beat me to it.

Finally, I’ve been considering partnering up with someone to do a hard-copy summary of what has happened in the last year in immigration law. Would anyone buy it?

Filed under: Blog news

Children and refugee status

Just a quick warning to practitioners. There have been a small number of examples recently of UKBA granting five years’ status to children recognised as refugees on the basis of their membership of a particular social group based on their age, but in the letter accompanying the status papers warning that status may be reviewed once the child reaches the age of 18. This seems most likely to arise in Afghan cases where the refugee case succeeds on the basis of LQ (Afghanistan).

Having had a quick look at the cessation policy, this is not obviously outside it, although there is a large question mark over UKBA’s involvement of UNHCR in such cases, which is a policy commitment.

An example letter can be found here.

It would be wise to be pushing arguments for there being both risk and a Convention reason other than for reasons of age, otherwise there is a chance the client will end up with unnecessary problems later.

Filed under: Asylum, Policy, Work

Good news in an HIV/AIDS case

This is another from last week’s luggage carousel – I’m still catching up, I’m afraid.

In the case of JA (Ivory Coast) & Anor v Secretary of State for the Home Department [2009] EWCA Civ 1353 the Court of Appeal has allowed the appeal of a woman with HIV/AIDS (albeit only to the extent of remitting it to the tribunal) on the basis that she was a lawful entrant, had previously been granted leave on the basis of her medical condition and had been lawfully resident in the UK for quite some time on that basis. These features were found to distinguish the case from Article 3 cases like D v UK and N v UK and placed the woman in a different legal context.

Her co-appellant was unsuccessful on the basis that the immigration judge had found that she could find work in Tanzania and support her treatment costs. Giving the leading judgment, Sedley LJ went on:

JA’s is a markedly different case. Her position as a continuously lawful entrant places her in a different legal class from N, so that she is not called upon to demonstrate exceptional circumstances as compelling as those in D v United Kingdom. There is no finding by the AIT that she has much if any hope of securing treatment if returned to Ivory Coast, or therefore as to the severity and consequences of removal (see Razgar [2004] UKHL 27). Depending on these, the potential discontinuance of years of life-saving NHS treatment, albeit made available out of compassion and not out of obligation, is in our judgment capable of tipping the balance of proportionality in her favour.

It was possible for JA to succeed on the basis of Article 8, essentially. This comes hot on the heels of KH (Afghanistan), in which the Court reaffirmed the high threshold to be met in Article 3 cases.

JA is the first bit of good news for HIV/AIDS sufferers facing removal for a very long time. It is a humane decision and may prove to be of assistance to the unknown number of claimants who were previously granted leave on the basis that the UK had assumed responsibility for their treatment, only to be told a few years later that the UK had later unassumed responsibility.

Filed under: Article 3, Article 8, Cases, Human rights

New removals policy

UKBA have changed their removals policy, and not in a nice way. The announcement letter to stakeholders is available here and does not really tell half the story. In essence, the 72 hour notice period for removals is to be waived in a wide range of cases and no-notice removals will become more widespread. This prevents access to a lawyer or the courts, basically, and it means that unlawful (why we don’t just say illegal still escapes me) removals can go ahead unchallenged.

Irritatingly, the new policy allegedly becomes effective on 11 January 2010, but in the meantime the old policy has been removed from the UKBA website and only the new one is available.

UKBA have been secretly trialling no-notice removals over the last year or so. There have been several cases (I previously posted about one of them) that have exposed the existence of secret policy exceptions to the normal rule that all removees receive at least 72 hours notice. Indeed, it is these cases that for Free Movement and perhaps others provided final confirmation that UKBA are institutionally unlawful, in the sense that there is a pervasive lack of respect for the rule of law and an ingrained culture of acting contrary to the requirements of law.

The new policy is, of course, couched in the weasely words and siren sounds one comes to expect of UKBA press releases and policy documents. The section that most sticks in the throat (there is competition) is about a so-called ‘best interests’ policy for not giving children any notice of their impending removal. Apparently it is in their best interests only to find out when they rock up at the airport. The modern UKBA tendency to dress up way they want to do as what they should do in the best interests of children is a disgraceful development.

ILPA is furious about the changes, which have not been the subject of any consultation despite numerous attempts by ILPA to meet with UKBA about this issue. I’ve never seen such a strongly worded and genuinely angry letter from the organisation.

Filed under: Cases, Immigration rules, Policy, Tribunal overturned again

3rd party support judgment

Further to my earlier posts on this, the judgment is now available on the Supreme Court website.

It makes interesting reading for any immigration lawyer. I will pick out some of my edited highlights.

Firstly, there is commentary on how the Immigration Rules should be interpreted. The earlier Lords case of Odelola is, inevitably, approved. Lord Brown, delivering the leading judgment, goes on to say that nevertheless, the meaning of the rules

“…is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State’s intention to be discovered from the Immigration Directorates’ Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules. IDIs are given pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act which provides that:

‘In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State . . .’

Free Movement cannot help but notice that this would be rather helpful in any appeal against MS (Somalia)…

Lord Brown goes on to comment that it is evident that the IDIs have frequently been issued inconsistently with the rules. This is very true, and many times the courts and tribunal have shown their exasperation at the conflicts between rules and policies, most recently in the long residence case of SA (long residence concession) Bangladesh [2009] UKAIT 00051. This is a to edged sword, though, as many of the inconsistencies are actually more generous than the rules, or at least more generous than the rules first appear on an initial reading.

Support of kindly uncles OK, C. Dickens relieved

Lord Brown decides to treat all of the relevant rules in the same way: 281, 297 and 317, in relation to spouses and partners, children and other dependant relatives respectively. Here, the Secretary of State is to an extent hoist by his own petard. Having argued that the change to rule 297 specifically in relation to children did not prevent the other immigration rules from being construed to prevent third party support, the logical consequence of the Court being minded to allow the appeal in relation to 281 and 317, where the wording is more ambiguous, is that the appeal is also allowed in relation to 297. This comes as a pleasant surprise to Free Movement, who thought the new wording of rule 297 was fairly clear cut against third party support.

In the end, the ratio is essentially that there is no reason of construction to prevent third party support, third party support is already accepted in relation to accommodation and there is no rationale for distinguishing between monetary support and accommodation.

The Court also allows joint sponsorship, and without any need for joint sponsors to have been named in the right box on the application form. Further, the Court also comments as follows:

Provided only that the relative abroad is getting funds on which he is wholly or mainly dependent and which he would not be getting save for his relative present and settled in the UK, that is sufficient. It is not necessary for the funds ever to have been part of the settled relative’s own personal resources.

The judgment allows an ECO or the tribunal to look at the question of whether third party support is sufficiently well-evidenced and reliable-looking to take into account when considering the question of maintenance. This is simply a sensible outcome.

Filed under: Cases, Immigration rules, Tribunal overturned again

New country guidance case

The case of TK (Tamils, LP updated) Sri Lanka CG [2009] UKAIT 00049 is next on the carousel. As can be seen from the title, it deals with the current situation on the ground in Sri Lanka since the military defeat of the LTTE in May 2009.

The country guidance can be summed up quite quickly: everything in Sri Lanka is fine and dandy in the tribunal’s view, despite widespread media reports to the contrary and the condemnation of the British Foreign Secretary and others. The risk criteria identified in the earlier case of LP remain valid. Despite the most important, seismic development in Sri Lanka in at least the last 25 years and a partially conflicting judgment from Strasbourg, the tribunal’s assessment made in 2007 was so prescient, far sighted and just darned good that it remains absolutely identical two years later. But of course.

There is also confirmation that there was a secret suspension of enforced removals but that these have now resumed, as of at least 26 October 2009. See paragraphs 119 to 122. The tribunal’s interpretation of the reasons for the suspension may strike some as intellectually dishonest, but I will forgo further comment.

The case is interesting mainly for other reasons. Firstly, the panel consisted of Lord Justice Carnwath, Mark Ockelton and Hugo Storey, which is the most heavyweight panel ever to have sat in the Asylum and Immigration Tribunal. The determination seems to have been written by Dr Storey.

The determination suggests that everyone stops calling country evidence ‘objective evidence’ because doing so prejudges one of the assessment criteria for the reliability and weight that should be attached to a piece of evidence. This is sound and sensible advice. Much country information is very far from objective – although that does not necessarily make it worthless.

It is also said that old country guidance cases should be accepted at face value as being correct at the time they were decided, even where re-examining the same country. This is dangerous, as it reinforces the self-serving nature of the country guidance system and means a new tribunal is explicitly starting with certain preconceptions. It also ignores the fact that quite a few country guidance cases have been overturned at the Court of Appeal (or Sessions) but remain designated as country guidance. See this interesting piece by Jonathan Mitchell QC on the issue.

Lastly, the determination takes rather an ‘old school’ approach to the expert evidence. Free Movement had hoped that the tribunal had collectively gotten over its hysterical approach to expert evidence after the Alan George fiasco. Apparently not, as even (especially?) this very senior panel is unnecessarily and rather cattily critical of the experts in the case for providing context (gasp!) and for giving opinions and analysis based on their experience and analysis (the horror!).

The sooner the tribunal comes to realise that genuine and respected experts in other academic disciplines do not and indeed cannot approach their task as if they were a seasoned and cynical old AIT judge, the sooner the tribunal will start making better quality and truly comprehensive country guidance decisions that command respect. No genuine expect trained in anthropology, history, sociology or indeed anything except law would see it as a valid or worthwhile exercise to omit context, which is crucial to a genuine and broad comprehension. That this is what the tribunal both expects and the methodology it applies itself says a great deal about the quality of the country guidance that emerges from this flawed and intellectually defunct process.

Finally, the tribunal’s obvious and blatantly unequal treatment of the evidence that was adduced from the British High Commission is very unfortunate, to put it mildly (see paragraph 70). It is accepted in its entirety despite UKBA failure to provide a witness for cross examination having undertaken to do so, despite criticisms made by Strasbourg in NA and Others and despite what the tribunal itself says in this very same determination about the need to assess objectivity and evaluate sources. I can’t do better than quote from paragraph 6:

[I]t is clear that [Strasbourg]’s endorsement of the validity of a system of country guidance such as is applied in the UK was not unconditional. It was given only because the Court was satisfied that the UK AIT had conducted a careful and comprehensive assessment weighing different sources according to their objective merit. The Court also fully recognised that country guidance is not inflexible; it must be applied by reference to new evidence as it emerges; otherwise it would fall foul of the principle of ex nunc assessment of risk. Our country guidance system can only expect to have authority domestically and command respect abroad, therefore, if it maintains these standards.

Quite.

Filed under: Asylum, Cases

New cases

The luggage carousel of the UK courts has deposited a collection of interesting new cases. I’ll take them one at a time.

Probably the most important of these is KH (Afghanistan) v SSHD [2009] EWCA Civ 1354, a long-awaited decision from the Court of Appeal on medical treatment, Article 3 and Article 8 in the post-N world. Although this case involved mental illness, the decision is highly relevant to HIV/AIDS cases. Longmore LJ rejects the argument that there is a conflict between Pretty v UK and N v UK, making it clear that his view is that N v UK is Strasbourg’s considered view of the subject of the threshold to be met for a breach of Article 3 in cases where it is claimed that removal will result in a deprivation of medical treatment or other support. He reiterates that the test is whether a case is ‘very exceptional’ and goes into some detail in considering what might or might not be exceptional. The following passage gives a flavour of the test to be met:

33. The truth is that the presence of mental illness among failed asylum-seekers cannot really be regarded as exceptional. Sadly even asylum-seekers with mental illness who have no families can hardly be regarded as “very exceptional”. If this case is to be regarded as a very exceptional one, there will inevitably be cases which will be indistinguishable. A person with no family would have to be equated with a person who has a family but whose members are unwilling or unable to look after him or her. I cannot think that Baroness Hale had such a wide category in mind. In order for a case to be “very exceptional” it would have to be exceptional inside the class of person with mental illness without family support. Perhaps a very old or very young person would qualify but hardly an ordinary adult.

Lord Justices Aitken and Sedley agree, although Sedley does not endorse the reasons given.

Arguably, the Court has fallen into the trap of considering cases from the starting point of an artificial ‘exceptionality’ test rather than the facts of the individual case. This could lead to a re-run of the Razgar/Huang saga, in which the House of Lords had to emphasise that this is a wrong-headed approach in a human rights context. With Lord Bingham now retired and in the context of Article 3 rather than Article 8, the Supreme Court may perhaps now consider that this approach is not impermissible in this context.

The Court is also virtually silent on whether Article 8 might fill the protection vacuum left by the high threshold imposed on Article 3 cases. The possibility is summarily dismissed at paragraph 35. There may be further argument to be had on this subject in future.

There is no news yet on whether there will be an appeal in this case.

Filed under: Cases

Keith Best departs IAS

Keith Best

It seems that news of this has circulated fast. After what must be fifteen years at the helm, former Tory MP Keith Best is departing the Immigration Advisory Service to take up the prestigious job of Chief Executive of the Medical Foundation for the Care of Victims of Torture.

Keith oversaw enormous expansion at IAS, from an organisation of 80 staff to over 300, and the shift in work from immigration-only in the aftermath of the split with the old UKIAS refugee unit, which became the Refugee Legal Centre, to asylum-also. He has always divided opinion in the sector, it would be right to say. Free Movement has a real soft spot for his old boss, though, and is very glad to see he is moving on to such a good job. Times are very tough at IAS by the sounds of things, since The Axe Woman arrived. And likely to get tougher.

With Barry Stoyle and Keith Best having left RLC/RMJ and IAS respectively, with Susan Rowlands having retired from ILPA, it feels like the old guard has gone. The new era of unified contracts, bidding wars, fixed fees and Efficiency is certainly upon us.

Filed under: Gossip

Dependency a question of fact

Many thanks to the encyclopedic John O of NCADC for this information. The Court of Appeal has allowed an appeal against the reasoning of the tribunal in AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048 and has found that in European Community free movement law, dependency is a question of fact. There should be no inquiry into how or why the situation of dependency arose, as long as there is as a matter of fact a relationship of dependency.

The judgment is not yet available on BAILII (link to follow here when it does appear) but was reported in The Times, from which I think I’m probably allowed to quote:

LORD JUSTICE SULLIVAN said that the Home Secretary had rightly conceded that the Asylum and Immigration Tribunal had erred in finding, in reliance upon its decision in AP(India) and Another v Secretary of State for the Home Department ([2007] UKIAT 48) of June 13, 2007, that the Court of Justice of the European Communities in Jia v Migrationsverke (Case C-1/05) ([2007] QB 545) had cast doubt on its earlier decision in Centre public d’aide sociale de Courcelles v Lebon (Case 316/85) ([1987] ECR 2811), so that regard was now to be had to “need”.

There was nothing in the Jia case to suggest that the court was departing from the proposition in the Lebon case that, for the Citizens’ Directive at least, the test being different under certain applicable rules, the status of a dependent member of a worker’s family was the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker’s support.

It followed that the decision in AP (India) should not be followed in so far as it suggested a different notion of dependence from the Lebon test.

The cases were remitted to the tribunal.

This is yet another example of wilful tribunal conservatism being overturned again on appeal. The tribunal is remarkably consistent in getting it wrong in this area of law.

Filed under: Cases, Tribunal overturned again

Spouse visa age challenge fails

The JCWI challenge to the increase to the spouse and partner visa age from 18 to 21 has been dismissed: Quila v Secretary of State for the Home Department [2009] EWHC 3189 (Admin) (07 December 2009).

For previous coverage of this issue on Free Movement, click here.

There will certainly be an appeal and at least two other judicial review applications were stayed behind Quila, which may now be joined together for a broader consideration of facts and issues – including consideration of Article 12, the right to marry, which did not arise in Quila. For anyone caught by this policy, the timescale for an appeal will be at least several months. The various teams have been good enough to keep me updated so far and I’ll post more information if I hear any.

Interestingly, at paragraph 22 Mr Justice Burnett notes that ‘[t]he attack on the rationality of the new policy, and thus also its proportionality, has been founded substantially upon the conclusions of a research project headed by Professor Marianne Hester of Bristol University.’ That research report was first published in full here on Free Movement. He goes on to find as follows:

In my judgment, the SSHD cannot properly be criticised for treating the conclusions of the research with caution. On its face, as it seems to me, the report identifies many of the problems it encountered. If, as the authors recognise, a large number of those providing information were suspicious of the motives underlying the suggested change of policy and there were difficulties in conveying a clear definition of ‘forced marriage’ to those being consulted, the results of research are likely to be of restricted value. The various reasons given by the SSHD for treating the research with caution are, in my view, entirely coherent.

This rather ignores the fact that the Forced Marriage Unit, UKBA itself, police forces and other key stakeholders thought that there were substantial risks to potential victims of forced marriage if the visa age were increased.

The research report may have ended up being something of a distraction from the real issues, in the end. Forcing a young couple to live abroad increases the individual risk of one of the parties being trapped in a forced, abusive marriage. At least if you are physically in the UK there is a chance of access to help. Fat chance abroad, frankly. The research report very strongly arguably supports that argument, but the problems with conducting research in this difficult area should not detract from the force of the basic premise.

The reasoning in relation to Article 8 is wide open to further challenge and the judge does not seem to have engaged with many of the arguments advanced by the claimants’ team. The finding that there was no interference is very susceptible to challenge and the argument runs that if Article 8 is engaged, then justification is needed for interference and there is no rational justification in the individual case. The argument should not get as far as whether the interference is proportionate or reasonable.

This certainly isn’t the end of the litigation on this issue.

Filed under: Cases, Spouse visa age