Home Office Presenting Officers

I am acutely conscious that this is a controversial, difficult subject and there have been many comments on this topic on this blog in the past.

I’ll say at the outset that many HOPOs I meet are pleasant and professional. They are a credit to the Home Office and make the best of a very difficult job. However, the systems and environment within which HOPOs work would frustrate the best intentioned individuals, and of course there are a number of HOPOs, as in any group of human beings, who do not sem to hold good intentions in the first place.

I have decided to post what I understand to be the latest HOPO training material, from day 1 of their internal training course. The previous version was made available to a well known asylum lawyer under a Freedom of Information Act request. Concerns were raised about aspects of that material and the Home Office duly sent out a revised version of their own accord. 

Concerns remain.

Firstly, it has become clear that HOPOs have no code of conduct as such. Barristers, solicitors and OISC advisers are all regulated by different codes of conduct which require us to work in certain ways. For example, they impose a duty of confidentiality to the client, a duty to act in the best interests of the client and a duty not to knowingly mislead the court or act unethically. These duties are very important to lawyers and where they are breached we are disciplined by our professional bodies and disbarred from practice.

One would expect HOPOs to have a similar code with defined duties. They do not. There is therefore no clear ethical or professional framework for them and neither the courts or their opponents can or should have confidence in HOPOs acting in a professional way. This is not an attack on HOPOs personally, but on the system within which they operate.

This does not, of course, prevent individual HOPOs from acting as closely as possible to what they understand to be a professional manner, as many do. They are not required to do so, nor is there a framework to help them do so.

Other advocates are said to be ‘officers of the court’. They have a duty to the court and are required to help the court reach a fair, just and lawful decision. A prosecutor in a criminal case has a duty to disclose information that would be helpful to the defence, for example. There is no such duty on HOPOs, despite the danger that a wrong decision will split a family, deprive children of parents or lead to torture or death. Nor is there a duty to reveal or point to one of the innumerable Home Office policies if one might assist an appellant.

One thing here that has really been getting my goat of late is that the Home Office recently revealed that they operate a presumption of detention in deportation cases (the judicial review judgment is due any day). How far they actually operated their presumption is open to question, as it would seem that not everyone in the Home Office was actually told about the policy and the presumption of liberty continued to be the declared policy – an example of Home Office incompetence par excellence, although a welcome one for a change. HOPOs notably still fail to mention to immigration judges in bail hearings that the bail summary, the justification for detention, is written from a completely different starting point to that of the immigration judge, who does (or should) apply the presumption of liberty. The Home Office officials writing these often highly misleading and inaccurate documents (this is a scandal all of its own) have to justify detention at all costs, basically, and never state a key reason for detention, which is the presumption. That is not proper nor ethical.

The issue of disclosure does get some airing in the training materials (see page 4), but it is very weakly expressed and it is certainly not written into a binding code.

There are also anomalies that become apparent in the training material. HOPOs regularly claim that they are not permitted to concede cases. This is particularly the case with entry clearance appeals. This never stopped HOPOs from raising entirely new issues never previously raised in an asylum or entry clearance refusal. It cannot be right that HOPOs would simultaneously lack the autonomy to concede issues but possess the autonomy to raise new issues: it would suggest that HOPOs are not neutral ‘officers of the court’ but instead are a thin red line fighting at all costs for appeals to be dismissed, never conceded.

However, this edition of the training material suggests that concessions can be made, albeit if practicable with the agreement of someone senior. In practice this news eludes HOPOs in court, I have to say, who continue to claim that concessions cannot be made. Simultaneously, the training material preserves the possibility of HOPOs raising new issues, preferably in advance of a hearing. Since HOPOs rarely get their case files in advance of a hearing, this is disingenuous. Appellants’ representatives are frequently ambushed with new issues and HOPOs regularly go on fishing expeditions in cross examination that would breach the Bar Code of Conduct (paragraph 708(j)). And the HOPO will then usually then resist any adjournment application based on the fact that the issue in question is a new one and the appeal has not been prepared on that basis.

Lastly, I cannot leave this subject without saying more about the late allocation of files to HOPOs and the lack of their continuity of conduct of cases, both of which very effectively preclude them from professionalism. A number of problems flow from this systemic failing.

All HOPOs universally refuse point blank to make concessions or agreements at Case Management Review Hearings. This defeats the object (and expense) of CMRHs and the Home Office approach contrasts very unfavourably with any other area of law or form of legal proceedings. I assume the reluctance is borne of fear. The HOPO does not retain conduct of the file and the fear is of later criticism by a colleague who feels that his or her chance of getting an appeal dismissed has been reduced. This is a disgraceful underlying attitude and it leads to considerable waste of public funds in having to prepare and then argue issues that could properly have been dealt with by agreement at an early stage.

HOPOs apply for adjournments because of late allocation of files. This is simply appalling. I had one case recently where the clinically depressed client was distraught at having to wait longer and the two witnesses, who had travelled a long way and made complex professional and child care arrangements to be there, had to come back another day. The client is now a refugee (the appeal was allowed and the Home Office attempted to appeal out of time — late again — but he is now alienated and disillusioned in a way that he was not before the delay. Well done, Home Office.

HOPOs routinely fail to comply with directions given by the tribunal. This is so endemic that most immigration judges decline to direct the Home Office to do anything because they consider it a waste of time. This includes simple directions such as giving warning of new issues or service of evidence or documents relied on. It is a disgrace that the Home Office cannot comply with directions – and equally disgraceful that the tribunal’s response is not to make them.

SHOPOs, the Senior HOPOs who appear for the Home Office at error of law reconsideration hearings, always fail to comply with the Rule 30 requirement for replies. The recent case of MB (Rule 30 Procedure Rules) DRC [2008] UKAIT 00088 highlights the issue. The Home Office stance at paragraph 11 would be laughable in its expectation of privilege if it wasn’t so objectionable to a legal aid lawyer. It isn’t as if the Home Office allow appellants to object to mandatory rules on the basis that we haven’t had resources, time or training. I wasn’t able to rock up to the tribunal with Home Office support and say that 5 days isn’t long enough to lodge an appeal when my client is detained at the other end of the country because the immigration service just moved him yet again, for example. Ms Kiss is always good value in that respect, though. I wonder if her response was sanctioned by higher authority.

Asylum lawyers are regularly blamed for spinning out proceedings. The Home Office recently consulted on the appeals process and repeated this charge. As an aside I note that this should have been a Ministry of Justice consultation and this has been taken by many as indicative of the extent to which the courts and tribunals are unduly influenced by one party to immigration proceedings. There is no recognition from the Home Office that considerable delay is caused by their own systemic and systematic failings.

Polite and considered comments welcome.

David Cameron opposes immigration rules change

Well, this is a bit of a surprise. “Cameron, David” has lodged an Early Day Motion opposing the latest change in the immigration rules (both latest changes: typically, the first set were badly drafted and needed almost instant amendment after publication). Thanks to John O at NCADC for spotting this development.

Usually, changes to the immigration rules are brought about by what is called the ‘negative resolution’ procedure, where the proposed changes are tabled by the Government and automatically become law unless a parliamentarian objects. There is very rarely any such objection, although it occurred in both the Lords and Commons over the no return rule debacle.

ILPA have been lobbying hard against these latest changes, called HC 1113, and have already produced two briefings against them (links to follow here and here when available on their website). The gist of them is that:

1. The sponsorship scheme is a nightmare for employers and educational institutions, who are being subcontracted against their will to carry out immigration control at the risk of very heavy penalties including closure if they prove not to be very good at it.

2. The documentation and bureaucracy surrounding the scheme is preposterously complex and voluminous. I quote from ILPA: “a 35-page, 58-question application form, accompanied by 130 pages of guidance on completing the form, plus reams of additional, essential, guidance)”.

3. Employers are expected to do a lot under the new scheme, but one thing they are not apparently required to prove is previous compliance with labour laws such as the minimum wage.

4. The scheme badly discriminates against countries with low incomes, whose citizens will not be able to qualify even though comparatively they might be very highly skilled and very well paid by the standards of their own country.

5. The working holiday maker scheme is being scrapped and replaced by a scheme that only covers Australia, Canada, Japan and New Zealand. This looks very heavily discriminatory on racial grounds and severs one of the few remaining historic links between the UK and the Commonwealth. That last sentence is my view, not necessarily ILPA’s.

But why is it David Cameron who has lodged the EDM? It rather looks like the Conservatives are going to oppose the changes, and presumably will vote against. This is a political minefield, so it will be interesting so see how it all plays out. The Tories don’t want to be caught looking soft on immigration, which is certainly how the Government will seek to portray them.

Sudanese test case

It has taken me a while to get around to posting on the House of Lords judgment in the Sudanese test case, SSHD v AH (Sudan) [2007] UKHL 49. This might be at least partly explained by my not wanting to have to post on it, as if this act of omission would somehow make the problem go away. Unfortunately, the House of Lords has allowed the Home Office’s appeal against the excellent Court of Appeal judgment in the Sudan/Darfur test case. The story was covered fairly extensively in the press when it happened.

The case was about whether it was reasonable to expect nomadic farmers from Darfur to relocate to squalid refugee camps around Khartoum after they have been driven from their homes in a state-sponsored genocidal conflict. For most human beings, this would be what is technically known in legal circles as a no-brainer.

Not so for the President of the Asylum and Immigration Tribunal, nor the House of Lords.

The House of Lords judgment makes quite strange reading. In particular, Lady Hale’s judgment reads very much like she is about to dismiss the Home Office appeal. She is quite critical of errors made by the Tribunal in the original case. However, she eventually ends up toeing the line. The reasoning of the Lords seems to be that the AIT cannot really have meant some of the things that it said, therefore no material error has been committed. The Tribunal is an expert Tribunal and should be allowed to get on with it, basically.

I disagree. I think they meant what they said and the errors look very real to me.

The Lords also rather fudge the issue of the starting point comparator for assessing what is and is not reasonable. The Tribunal suggested it could be the living conditions of the poorest in society. The Court of Appeal suggested that it should be the living conditions in the home area of the individual asylum claimant in question. The Lords say both starting points are relevant. But what if there is an enormous disparity in these starting points? And what happened to assessing claims based on the characteristics of the individual claimant?

It’s not really a very good judgment in my view, in legal terms, never mind the morality of the situation.

Latest ticking off

The Court of Appeal has given the Asylum and Immigration Tribunal another good ticking off. The case is AG (Eritrea) v SSHD and, frankly, is probably of no interest whatsoever to anyone except geeky immigration lawyers such as myself. However, it’s another piece of objective proof that the current AIT is taking far too conservative and political an approach to legal issues. Given the option of taking a liberal or a conservative approach, the AIT almost invariably opts for the conservative option, sometimes really straining the words of the statute to achieve their end. The only exception seems to be in cases invovling a perceived attempt by the executive to fetter judicial decision making. What does it take to make the senior immigration judges realise that they are proactively conservative and often plain wrong?

The case potentially resolves a long running legal dispute about the nature of the test for finding that the removal from the United Kingdom of an individual is a disproportionate act under Article 8 of the European Convention on Human Rights.

To cut a long story shorter, the AIT was imposing a requirement that a case be ‘truly exceptional’ before it could be allowed. This was based on a throw-away remark by Lord Bingham in House of Lords case of Razgar. In the later House of Lords case of Huang, the Lords had to say that the AIT (and the Court of Appeal, in upholding the AIT’s approach), had misinterpreted Lord Bingham’s remarks. He wasn’t imposing a legal test or requirement, he was merely predicting that the numbers of cases that would be found to be disproportionate would be few in number.

The AIT ignored this and carried on, business as usual. Their line was that it made no practical difference to their decision making. It was basically a bunch of legal clever-clogs counting the numbers of angels on the head of a pin.

Not so, say the Court of Appeal now. The AIT has confused causes and consequences and is imposing an additional test that simply doesn’t exist in the scheme of Article 8. They need to give up on this idea of exceptionality and just get on with applying Article 8 properly.

Will it make any difference to the AIT? Will the senior immigration judges experience a Damascean conversion, grow beards, don sandals and start munching muesli? Or will they continue to prosecute their conservative agenda? The latter, of course.

Certificates of approval and the Baiai case

UPDATE 19/4/09: The Home Office has stopped charging for Certificates of Approval. They say their policy is under review and they say they are “carefully considering the implications for those who have already paid a fee and will shortly announce its policy in this respect”. More to follow when anything concrete is announced.

—

The Home Office has finally published guidance for couples wanting to get married in the UK who are subject to immigration control and do not possess indefinite leave to remain. For some reason they sneaked it out on 19 June 2007 and it has only just been spotted by quite a few lawyers, myself included.

What reason could there possibly be for them sneaking out such a long-awaited and important piece of guidance? I’m sure it is nothing to do with the publicity that might be generated by such an obvious climb-down from their original position, forced on them by three linked judgments of the High Court (one, two and three) then the Court of Appeal.

Essentially, the Home Office introduced a scheme commencing in 2005 which required all those subject to immigration control and not in possession of indefinite leave to remain to apply for permission to get married (or entering a civil partnership) and permitting them to get married only at certain designated registry offices. Unless the applicant had been granted six months leave to enter and still had three months left to run or could show exceptional circumstances, the application (costing £135, incidentally) would be rejected.

The High Court then the Court of Appeal held that the scheme was disproportionate and discriminatory under Articles 12 and 14 of the European Convention of Human Rights. The reasoning was, in summary, that the scheme, which affected an enormous number of genuine, loving couples and prevented them from getting married, was disproportionate to the intended purpose. This purpose was to prevent abuse of immigration control through sham marriages, but the purpose could be fulfilled by far less intrusive means that did not effectively presume that anyone not settled in the UK and wanting to get married must be doing so for immigration purposes.

The amended scheme allows couples to establish that theirs is a genuine relationship. This is something they have to do anyway if they are going to make an application under the immigration rules (see previous post on this subject) or stand a chance of succeeding on a human rights application outside the rules. If you are considering making an application, the suggested means of proving your love and devotion is to provide the following information:

• when, where and how you and your fiancée(e)/proposed civil partner met
• when you decided to marry or enter into a civil partnership
• where you intend to live if permitted to marry or to enter into a civil arrangements for any religious ceremony, including the nature of the ceremony, the person conducting it and relevant contact details
• arrangements for any reception or celebration, including details of the location, proof of booking and relevant contact
• your relationship with your fiancé(e)/proposed civil partner if you are not living together (e.g. letters and photographs as evidence of the relationship)
• your life with your fiancé(e)/proposed civil partner if you are living together, including the address(es), how long you have lived together and documentary evidence in the form of correspondence addressed to both of you at the same address from utilities, government bodies, local authorities, financial institutions etc
• any children from your and your fiancé(e)/proposed civil partner’s present or previous relationships, including where they now live, the length of time any of them have lived with you, the names of their natural parents and who supports them
  contact telephone numbers for yourself and your fiancé(e)/proposed civil partner in case an officer wishes to contact either of you
• any additional information about yourself and your fiancé(e)/proposed civil partner which you would like us to know about, and/or any additional supporting evidence or documentation which might help your application.

The information has to be presented in affidavit form (a type of witness statement), which means lawyers need to be involved. This is entirely unecessary in my view and only adds to the cost, and I cannot see what benefit accrues to the Home Office or the scheme from this requirement.

Yet again, what a palaver. At least there’s a little more certainty out there now, though. As usual, the Home Office insisted that the judgment was not good law while they were appealing the decision, whereas in cases where the Home Office win and someone else appeals, they almost always insist that the judgment under appeal is good law and must be enforced.

Evolution of the New Asylum Model

A little too reminiscent of Cromwell’s New Model Army, perhaps, the New Asylum Model is supposed to herald a new age of high quality Home Office asylum decision making. The Home Office already seem to have stopped referring to it as being New, but as with ‘New Labour’ it may prove difficult to shake the label.

Anyway, the quality of Home Office decision making at the Asylum Casework Directorate and its predecessors is historically absolutely dire. The historic appeal success rate of over 20% only really hints at the problems. It might sound daft to the layman, but even where asylum cases were refused by the Home Office, they were usually refused for wrong, unsustainable reasons. The ‘reasons’ for refusal letters were just awful. Wrong name, wrong country, more references to piles of pants than was strictly necessary, ridiculous assumptions about how normal people behave in abnormal situations. I had one client from a war torn African state who was told he must have accidentally drunk the acid that left him with fused lips, mouth and throat and multiple operations by a plastic surgeon. What, thinking it was mint tea?

Belatedly, the Home Office somehow came to realise how much this was all costing. Although the poor quality decision makers were cheap (bottom grade civil servants, some of them, with minimum qualifications of two GCSEs), the actual cost was very high. The appeals process is legally aided and therefore involves lawyers, who have an annoying habit of insisting on time to gather evidence, medical and country expert reports and generally preparing cases. It takes time, and during this time the lawyers get paid and the asylum seekers receive welfare support. More expensive civil servants are required to defend the decisions (known as Home Office Presenting Officers) and Immigration Judges are pretty expensive too.

The Home Office was also getting a lot of criticism from organisations such as UNHCR, Asylum Aid and the Asylum Rights Campaign. And from the Home Affairs Select Committee. While this criticism might have motivated some of the civil servants who hatched the plan for the New Asylum Model, it is difficult to imagine ministers being too bothered, and the civil servants responsible for implementing the plan were always open at stakeholder meetings about the need for the project to be cost-neutral.

The solution, they decided, was to ‘front load’ the decision making process, putting more resources into the early stages of the process in order to reduce costs further down the line. This would also make removals easier as keeping track of asylum seekers would be more practical, and it would enable faster grants of asylum to genuine refugees. The key concept was the idea of case ownership by a named caseworker at the Home Office who would be responsible for all aspects of the management of an asylum case, from the initial decision to the appeal hearing, including what the Home Office call ‘contact management’, i.e. managing housing, welfare and periodically checking whether the asylum seeker has done a runner.

The model for the New Asylum Model was, slightly alarmingly, the fast track process at Harmondsworth immigration detention centre, also now in place at Colnbrook and Yarl’s Wood centres. Lawyers and campaign groups have been highly critical of this process, which is simply too fast for cases to have a proper hearing. However, the idea of a ‘case owner’ was pioneered here and was judged by the Home Office to be successful. Case ownership was tried in a non-detention context at Liverpool in 2005 and was initially referred to as the North West Pilot. This morphed one night into the North West Project, and finally became the New Asylum Model. NAM, as it has inevitably become known, being as civil servants and immigration lawyers do love their acronyms, is now up and running in new offices on Fleet Street in Cardiff, Glasgow, Leeds, central and west London (not Croydon, where the old asylum caseworkers were based) and Solihull.

There was an unusual degree of consultation as the process was being developed. Several stakeholder group meetings were held, workshops were organised, the Legal Services Commission was brought in, criticisms were heeded. A couple of people were recruited from outside the Home Office to add credibility and oversee quality: Evan Ruth and Jane Aspden, both formerly of the Refugee Legal Centre and UNHCR. They insisted on a thorough training programme to try and tackle the culture of disbelief at the Home Office and also insisted on examinations as part of the training. 280 staff were recruited, many of whom were completely new to the Home Office. Only around 40 of the old HOPOs are reputed to have applied for the new jobs. The staff were then put through a 52 day training course, designed and written with external input from a company called Skillbase, which in turn bought in expertise from a specialist immigration and asylum training company called HJT Training.

Has it made any difference? Sorry, but it’s too early to tell. A post with some first impressions will follow, though, and in the meantime you can always check out the rather propaganda-ish New Asylum Model newsletters the Home Office itself publishes.

Points based immigration system

The Home Office has been planning a shift to a points-based system for assessing immigration applications for some time, and recently announced the timetable for its introduction:

Tier 1: beginning of 2008. This part of the scheme is for the highly skilled, who will not require a job offer before being eligible to apply for a visa. It replaces the current Highly Skilled Migrant Programme, which the Home Office has neglected to mention is already a points-based scheme.

Tier 2: third quarter of 2008. This replaces the current work permit scheme. It is aimed at skilled migrants, but they require sponsorship by a UK based employer in order to be eligible to apply.

Tier 3: no plans. This part of the scheme is for low skilled migrants. Unsurprisingly, the press release is entirely silent on when this might be introduced. It clearly isn’t a priority. This matches well with a theme running through several previous posts: the Government’s use of immigration as a tool to ‘modernise’ the economy. I guess they reckon there are enough low skilled migrants from the European Community Accession states, although I’ve noticed that Polish plumbers aren’t very good at cooking Bengali food.

Tier 4: beginning of 2009. This is for students and is arguably the one bit of the scheme that might be quite a positive development for potential migrants, if it weren’t for the accompanying abolition of appeal rights (see below).

Tier 5: third quarter of 2008. This part is for temporary workers and ‘youth mobility’. It is effectively a rag bag collection of various quirky parts of the current Immigration Rules, including the working holiday maker scheme, BUNAC and the like, exchange language teachers and au pairs.

The paper published by the Government on the new scheme was quite encouraging. It looked like the talk of objective criteria and streamlined decision making might actually be realised, hopefully therefore at least reducing the number of crass decisions made by Entry Clearance Officers (often referred to as visa officers). Any move away from the appallingly subjective judgment calls Entry Clearance Officers are currently forced to make on matters such as ‘intention to leave the United Kingdom’ and ‘intention to live permanently’ with the spouse is certainly to be welcomed.

However, the main concern of lawyers and interest groups is that the new scheme entails the abolition of full appeals to the Asylum and Immigration Tribunal. Lawyers clearly have a vested interest in the continuation of such appeals, as their abolition reduces the work available to them. However, given the astronomical refusal rate at some entry clearance posts (Dhaka, Islamabd, Accra, for example) and the very high rate of success at some types of immigration appeal, I’d suggest the lawyers (of whom I am one) have a good point. This is very much confirmed by the reports of the Independent Monitor for Entry Clearance.

In addition, the scheme also involves the consolidation of the work permit application process. At the moment it involves a daft two stage process where the employer or individual applies to the Home Office in the UK (specifically a unit called Work Permits UK, based in Sheffield). If a work permit is granted, the potential migrant then uses it to apply for a visa to travel to the UK. It is far from unknown for some Entry Clearance Officers (mainly in Dhaka and Islamabad) to turn down visas even though work permits have been issued, even though their own instructions tell them not to do so.

The staff at Work Permit UK are specialists, know what they are doing and see themselves as providing a service to employers and to the economy. In contrast, most Entry Clearance Officers spend most of their time dealing with family, student and visit visas, have never met an employer other than the Foreign and Commonwealth Office in their short lives and see themselves as a modern thin red line. So what is the Government going to do? Abolish Work Permits UK and make the decision entirely that of the Entry Clearance Officers.

Not good, particularly in combination with the abolition of appeals against Entry Clearance Officer decisions.

Immigration fee increases

A number of people seem to have come across this site while looking for information about the increased immigration fees, about which I have already written a post. I thought it would be instructive to post up the old immigration fees, the new ones and the percentage increase. As you can see below, there are some pretty hefty increases.

Application type

Old fee

New fee

% increase

Visas

Settlement visa

£260

£500

92%

Work permit visa

£85

£200

135%

Long term visa

£85

£200

135%

Student visa

£85

£99

16%

Visitor

£50

£63

26%

Direct Airside Transit Visa

£30

£44

47%

Settlement/Nationality

ILR

£335

£750

124%

ILR Premium

£500

£950

90%

Nationality – right of abode

£20

£135

575%

Nationality – naturalisation

£200

£575

188%

Nationality – adult registration

£120

£400

233%

Nationality – minor single and multiple

£200

£400

100%

Nationality – renunciation

£120

£385

221%

Work

Highly Skilled Migrant Programme

£315

£400

27%

HSMP Leave to Remain

£335

£350

4%

Work permit

£153

£190

24%

Work Permit Leave to Remain

£335

£350

4%

Work Permit LTR Premium

£500

£550

10%

Business case unit

£335

£750

124%

Workers Registration Scheme

£70

£90

29%

SAWS

£12

£12

0%

Leave to Remain Other

LTR (non student)

£335

£395

18%

LTR (non student) Premium

£500

£595

19%

Certificate of Approval (to get married)

£135

£295

119%

Transfer of conditions

£160

£160

0%

Transfer of conditions Premium

£500

£500

0%

Adult travel documents (CID)

£195

£210

8%

Child travel documents (CID)

£115

£130

13%

Adult Travel Documents (CTD)

£42

£66

57%

Child Travel Documents (CDT)

£25

£45

80%

Students

Student LTR

£250

£295

18%

Student LTR Premium

£500

£500

0%

It is difficult to understand what the rationale for the specific fee increases actually is, assuming that there is a rationale. Some of the figures seem to be plucked from the air at random. The fee structure had been quite simple, but it has become far more complicated again. The various ‘Premium’ applications (which means a same day service in person at a Public Enquiry Office) used all to be £500 but are now £500, £550, £595 or £950 depending on what sort of application you are making.

The use of the word premium is quite entertaining. It makes it sound like business class travel or something similar. The idea of the Home Office being capable of providing any kind of service that can legitimately be descibed as premium is somewhat misguided. For them to charge £950 for it is, however, a joke in the very poorest taste.

Another judicial going over for the Asylum and Immigration Tribunal

I’m still catching up on a few developments while I was away over Easter, and have just read the Court of Appeal case of AH (Sudan) and Others v SSHD [2007] EWCA Civ 297, which came out on 4 April 2007.

This is yet another Country Guideline case which has been up and down the court system several times already. I have already commented on how difficult the Asylum and Immigration Tribunal (AIT) is making its own life by pursuing these supposedly definitive decisions, which are regularly overturned by the higher courts. El Presidente Mr Justice Hodge chaired the panel that decided the AIT decision under appeal, called HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062, although one of his colleagues, Dr Hugo Storey, seems to have written and signed off the determination. Dr Storey is in charge of the country guideline case system in the AIT, although no-one outside the AIT knows what that means in practice. And quite a few inside the AIT would probably like to know what it means, too.

The AIT’s decision is LONG. Which, as any appellate lawyer will tell you, means there is simply more rope with which the judge can hang himself. The Court of Appeal starts with some limited criticism of the way in which the Tribunal handled the voluminous evidence but ends up holding that the conclusions on immediate risk on return were probably right, even if the evidence was lightly mauled in reaching those conclusions. The recent Channel 4 News report (also reported in The Guardian) on the severe torture of one failed asylum seeker returned to Darfur from the UK casts considerable doubt on the correctness of these conclusions, but this evidence came after the Court of Appeal hearing - although not before judgment was handed down, it has to be said.

The Court of Appeal then goes on to be severely critical of the AIT’s approach to the legal question of what has become known as ‘internal relocation’. This is a legal device that is widely used in all common law jurisdictions (and was incorporated into the EC Qualification Directive setting out common European legal standards for refugee cases at Article 8 ) to refuse asylum to a person who could reasonably have relocated within his or her own home country to seek safety rather than fleeing abroad. Cases that turn on the possibility of internal relocation involve a great deal of argument over exactly what ‘reasonable’ means, as internal relocation will not be expected if it would be unreasonable in the circumstances for the individual concerned.

It is easier to explain with a concrete example rather than in the abstract. In the context of Sudan, no-one disputes that non-Arab Darfurians are being persecuted in Darfur and would be eligible for refugee status. However, the Home Office says that they can relocate within Sudan to the refugee camps around the capital city, Khartoum. The AIT agreed with the Home Office, saying in essence that (a) no, that didn’t make the Home Office and AIT itself complicit with genocide by aiding the Sudanese government in forcible relocation of a segment of the population of Darfur and (b) the conditions in the refugee camps might be pretty bad, but they weren’t that much worse than the rest of Sudan, so these Sudanese people can be expected to put up with it, hardy souls that they are. It would not be unreasonable to expect non-Arab Darfurians to relocate to the refugee camps around Khartoum, basically.

The Court of Appeal makes it completely clear that the AIT has imposed a ridiculously high test of reasonableness and has totally misunderstood previous jurisprudence of the Court of Appeal and House of Lords in the cases of E and Anor v SSHD [2003] EWCA Civ 1032 and Januzi v SSHD [2006] UKHL 5 respectively. To be fair to the AIT, so did a lot of lawyers. There was a great deal of confusion over the ratio of the decisions, which was simply that in assessing reasonableness the comparison must be between the home area and the proposed area of relocation, not between conditions in the UK and the proposed area of relocation. With respect to the Court of Appeal itself, the situation was also not helped by some quite militant sounding language from the Master of the Rolls in E and Anor.

This latest judgment is refreshing to read, and the Court of Appeal has at last imposed some common sense on what was fast becoming a deeply inhumane, very worrying area of asylum law. The radical shift this case must engender in the AIT’s understanding may well lead to a review of a lot of cases that have been dismissed over the last few years, not only concerning Sudan but also other countries. The AIT has been over-hasty in seeking to limit the numbers of successful appellants.

Lastly, the Court of Appeal then goes on to say a few words about one of my favourite hobby horses (see earlier post), the country guideline case system itself. They point out that they haven’t heard argument on the issue but reiterate the need for the AIT to reach an ‘effectively comprehensive’ decision, quoting from S and Others v SSHD [2002] EWCA Civ 539. The Immigration Advisory Service did an excellent report that drew heavily on S and Others, and their work on country guideline cases (and, I understand, on the AH (Sudan) case itself) deserves praise.

Keeping out Johnny and Jane Foreigner

Until 2002 or thereabouts, the minimum age for the fiance in the UK who was to marry the person from abroad was 16 but the minimum age for the person from abroad was 18. These ages were then equalised at 18. It would appear that the age for both is soon to rise to 21. The Home Office report and press release include some patronising waffle about allowing adults to establish an independent life and take advantage of higher education opportunities. There is also reference to combatting forced marriages.

I’d suggest these are very weak smokescreens for the the real justification, which can only be (i) to reduce the numbers entering the UK on marriage visas and (ii) to encourage UK immigrant communities to marry within the UK rather than abroad. As it happens, these are both semi-official Government policies. The forced marriages reference deserves to be taken a little more seriously than the rest, but the Government has recently made time for a much needed Private Members Bill to address this problem and there are plenty of other ways to deal with what is, fortunately, a relatively infrequent problem.

The Government’s immigration policy encourages immigration to the UK. There can be absolutely no doubt about this, and the figures speak for themselves. However, the type of immigrant the Government encourages is important. As Don Flynn has observed, the modernisers in the Labour Party see immigration as an economic tool to modernise the economy with highly skilled workers and maintain a low inflation economy. Economic migrants entering the UK on different forms of high skilled work permits contribute towards this policy and their number has increased dramatically since 1997. Similarly, relatively low skilled workers from the expanded EU also contribute to this policy, and the UK was almost the only country to grant access to the employed workforce on the accession of the new EU countries in 2004.

In contrast to these ‘useful’ immigrants, those entering on a marriage visa are perhaps considered by the Government to add only to social unrest and ghettoisation. Anne Cryer MP has certainly been banging on about this issue in these sorts of terms for some time (see section 5 of a submission she made to the Home Affairs Select Committee last year) and David Blunkett used to give these views a lot of credence in his day. John Denham MP and others have picked up his fallen mantle.

The same Home Office report also proposes that those from abroad visiting family in the UK will bring down upon the heads of their UK families a £1000 fine if they, to put it in colloquial terms, do a runner. This measure would also fit with the above analysis: encourage economically beneficial migration, discourage or prevent family-based immigration.

Why do I use the words migration and immigration slightly differently? Immigration has a permanent ring to it, at least to my ears. An immigrant may stay for the long term and acquire rights and responsibilities in the host community. A migrant is temporary in nature and can be disposed of once used.