News from On High

The Supreme Court has ruled in favour of claimants in two immigration cases today.

In R (on the application of A) v London Borough of Croydon their Lordships have ruled that it is for the courts to decide age assessment issues. The courts should not simply defer to local authorities, as was being held by the Administrative Court and Court of Appeal. While there is certainly a resources imperative at local authorities to assess children as adults and lawyers have been concerned this is happening in practice, this outcome certainly doesn’t mean no more disputed age assessments. It does re-open the door to independent age assessments, depending on the outcome of the appeal against Collins J’s decision that pediatrician age assessments are a load of hocus pocus.

In BA Nigeria v SSHD their Lordships have upheld the Court of Appeal’s decision in BA (Nigeria) [2009] EWCA Civ 119, which means that there is an in-country appeal if a person advances a human rights claim, even if UKBA do not believe the claim constitutes a fresh claim as defined by Immigration Rule 353. There are, however, other ways for UKBA to act to limit appeal rights, primarily through a clearly unfounded certificate under s.94 2002 Act, which is what they have started to do in recent months.

More analysis to follow, in a bit of a rush at the moment.

Filed under: Cases

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.

Filed under: Cases

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.

Filed under: Cases, Tribunal overturned again

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.

Filed under: Cases, Tribunal overturned again

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.

Filed under: Cases, Tribunal overturned again

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.

Filed under: Asylum, Cases

More on Metock

It's a big case

There has been a spate of big cases in the last few days. I’ll deal first with what is probably the most legally significant, ZH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1060.

In ZH the Court of Appeal have confirmed for anyone that did not already know it that Regulation 12(1)(b)(ii) of the 2006 EEA Regulations is unlawful following Metock. Remarkably, a Deputy President of the tribunal, Ms Arfon-Jones, had refused to accept this, but the Home Office conceded at the Court of Appeal that the appellant had been right. However, the Home Office attempted to prop up the tottering decision by arguing that the marriage at the heart of the case was a sham marriage and the couple should not therefore benefit from it. The Court of Appeal gave this new point short shrift and pointed out that the facts found by the tribunal were that there was a genuine relationship between the couple.

Tantalisingly, Lord Justice Aitkens ends his judgment as follows:

For those reasons, I would allow the appeal. I am conscious, however, that serious and difficult issues arise which concern: (i) the interpretation of the word “spouse” and the phrase “marriage of convenience” for the purposes of the 2006 Regulations, (ii) whether it is the person seeking an EEA family permit or the SSHD that has the burden of proving that a marriage is a “marriage of convenience” for the purposes of the 2006 Regulations; and (iii) the nature and application of the “abuse of rights” doctrine for the purposes of the 2004 Directive and, therefore, the 2006 Regulations. The points were fully argued before us. These issues will be raised at the re-hearing before the tribunal. When I prepared a first draft of this judgment I thought it would be possible and right to express some views on all three topics, in the hope of assisting the tribunal, although my views would not, strictly speaking, have been necessary for my decision on this appeal. However, having considered the issues and after discussion with Rix and Wall LJJ, I have decided that it is not sensible to give any views on these topics. On further reflection I think it will be much better that the tribunal should first find the further facts that might be relevant and, if further issues of law arise, they will be considered on appeal if necessary.

So, the wait continues…

Filed under: Cases, Europe, Tribunal overturned again

Albanian/Kosovar deprived of British citizenship by Presenting Officer

In an unusually dramatic move, the Presenting Officer in the recent case of KB (para: 320(7A): “false representations”) Albania [2009] UKAIT 00043 served a section 40 notice on a witness in the case, thereby depriving him of his British citizenship. There is a right of appeal to the tribunal against such a decision and the tribunal records that it advised the unrepresented man to seek legal advice.

This was a case where the witness, who was sponsoring his wife to enter the UK from Albania, had claimed on arrival in the UK in 1999 to be a Kosovar. However, the tribunal records in the determination that the man was a national of Albania, although it is not clear how this was established. The Home Office accused him of lying about his nationality on entry and then continuing with the lie to obtain Exceptional Leave to Remain, then Indefinite Leave to Remain and then finally full British citizenship.

The tribunal, chaired by Mr Ockelton, found that a document obtained through falsehood and relied on in an immigration application does amount to a ‘false representation’ under immigration rule 320(7A) and therefore mandates refusal of the application and appeal. The tribunal goes on to comment that sometimes leave and even citizenship is appears to be granted when it should not have been, as well as the more usual complaint of not being granted when it should have been, before ending by observing that the Presenting Officer in court served the witness with a notice under s.40 of the British Nationality Act 1981:

Before us, Ms Tanner served on the sponsor a Notice of Decision under s40 of the British Nationality Act 1981, depriving the sponsor of his citizenship. We advised the sponsor to seek legal assistance in connection with it.

The case serves as a warning to any Albanian/Kosovans that should they by their actions cast doubt upon the basis on which they were granted ILR or citizenship — such as by sponsoring an Albanian spouse to enter the UK and presenting an Albanian passport — they are opening themselves to potential curtailment or deprivation proceedings.

Filed under: Asylum, Cases, Immigration rules, No return rule

Secret Sri Lanka policy emerges

In another development that would be shocking were we not so used to it by now, it has emerged that the Home Office has a secret policy not to return Tamils to Sri Lanka. This policy has existed since 25 April 2009 at least, which is the date of the last enforced return to Sri Lanka. The reason for the policy must be that the Home Office is concerned about the treatment of returned Tamils in the aftermath of the civil war. It would be interesting to know how far UKBA’s hands were tied by the Foreign and Commonwealth Office, which has taken a strong line on human rights abuses in Sri Lanka.

This non-return policy is ENORMOUSLY significant for two reasons:

1. The Home Office concedes that there is a risk on return in all Tamil asylum claims. This must be the case, as otherwise the policy would not exist. My guess is that HOPOs who have been vigorously arguing that it is perfectly safe for Tamils to go back to Sri Lanka have not been told that the official UKBA position is in reality that it is not safe. HOPOs have been misleading the tribunal and the courts, albeit I imagine inadvertently. There is past form for this. In the Rashid case it emerged that there was a secret policy about Iraqi asylum claims that was so secret that lots of people at the Home Office didn’t know about it. That was held to be unlawful and an abuse of power.

2. Any Tamils in detention since 25 April 2009 have probably been detained unlawfully and are entitled to compensation. Where there is no prospect of removal, it is not lawful to detain. If removals are suspended and there is no date for resumption of removals, UKBA cannot realistically claim that there is a prospect of removal.

As ever, this news emerges through a legal challenge in the courts. It underlines the importance of UKBA accountability to the proper courts, as opposed to the tribunal. The case is currently identified as R (on the application of B) v Secretary of State for the Home Department [2009] EWHC 2273 (Admin) but hasn’t at the time of writing appeared on BAILII. Detention in this case was held to be unlawful since 6 May 2009, when the claimant lodged an appeal, and the case has been transferred to the county court for the assessment of damages. Very substantial damages are likely to be awarded.

There is also reference in the judgment to a test case on Sri Lanka coming up in the tribunal in October.

Very good work indeed by the excellent Hugh Southey and Refugee and Migrant Justice.

Filed under: Cases

Post flight spouse

Since 2005, refugees have been granted five years of limited leave, at the end of which they are eligible to apply for settlement, or ILR. Before 2005, they were granted settlement straight away, on the grounds that this policy promoted integration.

One of the consequences of this change is that refugees with limited leave are unable to sponsor a new spouse or other family members under the main immigration rules (rules 281, 297, 317 and so forth). There is provision for admission of a pre-existing spouse or child (i.e. a spouse to whom the refugee was married or a child born before the sponsor fled to the UK) but this cannot be used for a new, post flight spouse.

Whether this was an unintended or deliberate consequence is not entirely clear. However, being as the 2005 White Paper that preceded the change ranted on about the evils of ‘chain migration’ (the words of the Government, not my words) it would not be entirely surprising it this was deliberate.

In the recent case of A (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 825 the Court of Appeal were faced with an appeal by the new, post flight wife of a refugee who was seeking admission but had been refused. The judgments record a catalogue of appalling failures by either or both Treasury Solicitors and UKBA in dealing with the issues raised by the case and complying with directions; ultimately this cost them the case, which they lost solely for this reason. This should certainly happen more often in the Asylum and Immigration Tribunal, but immigration judges who have followed this course in the past have been firmly trodden on by their senior colleagues, who rather miss the broader point and find that the interests of justice are not served if the Home Office are punished for non compliance. One might have thought the reverse were actually true – the Court of Appeal certainly seem to think so.

I digress. Human rights were certainly engaged, the Court found, and therefore UKBA had to explain how and why the interference was necessary in a democratic society, the fourth of Lord Bingham’s famous five questions from Razgar. UKBA had completely failed to put forward any justification at all (and the tribunal had failed to identify any justification, but had dismissed the appeal anyway!). The appeal was therefore allowed.

However, this will not be the end of the story. Very late in the day, UKBA did put forward a justification. The Court does not record what it was, only that it was put forward too late to be considered in this particular case. We can therefore expect these arguments to crop up again. I’ve got a couple of outstanding cases raising these issues, so I’ll be very interested to see what reasons the Home Office has cooked up.

Filed under: Cases, Tribunal overturned again