Dereliction of duty

There has been a noticeable trend recently for the Home Office to refuse applications but not to take enforcement action. Several lawyers have commented on this elsewhere, I’ve just come across a couple of cases and so has a colleague in chambers.

Where a person’s leave has already expired, if he or she makes a new immigration application there is no right of appeal to the Asylum and Immigration Tribunal if the application is refused. This is because a refusal of leave to remain where there is no existing leave is not an appeal-able immigration decision.

In two recent examples, applications were made in time that would have generated a right of appeal. In one, too much money was paid for the fee, so the whole thing was rejected. I know. Bonkers. By the time the rejection was received, leave had expired and when the application was resubmitted it was refused with no right of appeal. In the other case it was a domestic violence application. The applicant claimed to be destitute and therefore exempt from the fee, but the Home Office rejected this assertion and therefore rejected the application purely on the basis of no fee being paid. Again, by the time the rejection was received, leave had expired and so when the re-submitted application was rejected there was no right of appeal.

Short of introducing some sensible rules on re-submitted applications and rights of appeal, what the Home Office should be doing in such cases is issuing removal directions to take enforcement action. The decision to make removal directions would generate a right of appeal, and the tribunal could then look at the merits of the case. As it is, UKBA is instead writing a letter saying (I paraphrase) ‘if you wouldn’t mind awfully, it would be nice if you left the country’.

Whichever way you look at it, this is woeful behaviour. It is a failure to take enforcement action against those who have no right to remain and it is also denying them a right of appeal to seek to prove their case. It’s bad for everyone.

Instead, privately paying clients and the Legal Services Commission end up paying immigration lawyers lots of money to bring judicial review applications that are almost certain to succeed. The Home Office must really love us.

Lord Justice Carnwath spotted at Taylor House

Lord Justice Carnwath

This Hello! style headline is perhaps the clearest sign yet that the Asylum and Immigration Tribunal will be abolished and amalgamated into the unified tribunal. The Home Office planning documents now state that the AIT will be scrapped, the AIT stakeholder meetings keep getting postponed and now the President of the new unified tribunal is sitting on AIT cases. For non immigration lawyers reading this, it is completely unheard of for a Lord Justice of the Court of Appeal to be deciding visit visa appeals and the like.

I wonder what he made of his experience.

The word is that the delay in announcing the change to the unified tribunal is because the Home Office wants to make sure the new system is sufficiently streamlined. The existing tribunals structure involves a two-stage permission to appeal system (first ask the lower tier for permission, then ask the upper tier for permission) which seems likely to be dropped in immigration cases. I’ve no idea what other ’streamlining’ they have in mind. There has been an undertaking that the procedure rules for the immigration bit of the unified tribunal will be drafted by the normal drafting committee, meaning that the Home Office will not get their grubby hands on it. I’d be surprised if the Home Office was willing to abandon the asylum service provisions (Home Office gets served then serves it on the asylum seeker), so it may be that the delay is about legislating on some parts of the new process so that the procedure rules committee is prevented from meddling.

Does this mean that there will start to be costs awards in immigration cases? A two-edged sword if ever there was one, but perhaps the only way to make the Home Office start to comply with directions, something they are notoriously poor at right now.

Free Movement to apply for Home Office job

Someone brought this job advert to my attention. It’s been fun writing this blog and representing immigrants and asylum seekers, but duty calls. You have to be part of it to change it, as Steve Cohen undoubtedly would not have said.

Free Movement, post recruitment

I’m confident I’ll get the job and very much look forward to working with ’strategic policy colleagues and process owners to deliver efficiency improvements across the policy and operational policy environment in line with the UKBA Business Plan’. I already see the Refugee Convention and human rights as ‘products’, by which I assume it is meant to be bought, sold, withdrawn, exchanged or returned at will. I reckon I’m ‘able to manage change effectively, identifying resistance’ and all that (it’s futile, we’ve often found). Actually, I’ve often favourably compared the Home Office to The Borg. Favourably to The Borg, naturally.

I can certainly ‘build on Litigation and Appeals stakeholder engagement with the Judiciary, the MoJ, Legal Services Commissions, OISC and the AIT’. I’ll build on it, alright. I’ll make sure I have no overall idea of what I’m building, make it up as I go along, rush the whole thing through and construct the most hideously deformed, deranged legal architecture known to bureaucracy! It will be the legal equivalent of Milton Keynes.

Actually, there’s not much to do on that last front, it’s pretty much sorted already. All it needs is another Bill.

I’m already thoroughly familiar with and therefore ready to ‘implement and further refine the strategy to minimise the adverse impact of litigation across the Agency and deliver savings on litigation costs’: ignore any adverse cases and do nothing. To be honest, though, I’m not sure this strategy can be any further refined, the Home Office is already flawless in its execution. I also know what they mean by ‘aligns policy and delivery with clear communications objectives’: do what the spin doctors tell me then make up a spurious excuse for it afterwards.

There’s not much in the job description on upholding the rule of law, I noticed, though. Perhaps that means they’ve got an internal candidate in mind?

The Truth

I’ve come across some interesting articles on ‘credibility’ through the Forced Migration Current Awareness Blog. This is an excellent blog which records various publications on all sorts of interesting subjects and effectively catalogues them, making future access possible. Links often appear on Free Movement in the bottom left hand feed box.

I hate the word ‘credibility’. I can’t see what is wrong with ‘truthfulness’, which is what we are really talking about. The vagueness and lack of focus of the word ‘credibility’ encourages appalling reasoning in Home Office reasons for refusal letters and HOPO submissions. I came across a classic example recently. There was very compelling medical evidence to show that tattoos had been burned off my client in several places. The Home Office argued that tattoos were unusual in the client’s culture, therefore his credibility was adversely affected. No more explanation was given.

But how was his ‘credibility’ affected? He obviously had indeed had tattoos and they had been burned off him. If we talked about truthfulness instead,  I would have hoped that the Home Office official would have recognised the incompleteness of the argument, or perhaps even its absurdity.

Anyway, this article by Dr Sameer P. Sarkar in the Journal of the American Academy of Psychiatry and the Law is a good introduction to those interested in notions of truth, perception, memory, recall and trauma. The article is hardly revelatory or groundbreaking as it should be universally understood that humans do not videotape events around them and cannot therefore replay them perfectly, in the right order, including everything that happened. However, this is sadly not universally understood in the world of immigration and asylum law. At least, not by immigration judges.

There is another very interesting article by Crystal Estrada in the Thomas Jefferson Law Review on the treatment of unaccompanied child asylum seeker testimony in the United States, arguing for a rebuttable presumption in favour of believing unaccompanied children. I think this is a hot topic here in the UK. I’ve seen enough appalling examples of bad practice regarding children that I’m sure this issue will reach the higher courts sometime soon.

Cambridge College of Learning

Cambridge College of Learning appears to have caused considerable grief for a considerable number of foreign students. I’ve come across a few cases myself and have heard others taking instructions at court in CCL cases as well. There are a LOT of these cases around at the moment.

What seems to have happened is that the college was on the required register of education providers, but was removed in January of this year. The reason for this is unclear, but the Home Office has refused hundreds of applications for visa extensions for students there. The refusal papers always seem to include some rather unclear witness statements from alleged employees of the college stating that at least some of the courses that students claim to have studied were never legitimate courses at CCL.

Yet there seem to be a lot of students out there who are saying that they did study the courses in question and as far as they were concerned it was a proper course, with proper assignments, lectures and so forth. They even have course materials. The college website is still functioning although rumour has it that the old physical premises are now occupied by a new institution of some sort. So what is going on?

Either the students are all liars who never studied the courses at all and simply bought qualification certificates or perhaps who ’studied’ courses knowing they were dodgy in some way, or the Home Office have it wrong and the students are innocent dupes who have been taken for a profitable ride by the college. Or perhaps the Home Office has it completely wrong and the college did deliver legitimate courses and the witnesses relied on by the Home Office are simply wrong or themselves lying.

It is all rather puzzling, and very difficult for an immigration judge to disentangle. Indeed, it is difficult to imagine different judges reaching consistent decisions – some judges would find the student to be lying, some judges would find the Home Office evidence weak and unreliable. A lot depends on the quality of legal representation (and the judge!). There are probably upwards of a thousand appeals currently going through the system and while some seem to be going ahead, many are now being adjourned to wait for a lead case or cases  to be decided. A couple of hundred cases have been adjourned at York House and six or seven hundred have been adjourned at Taylor House, which is where most of the cases have ended up and where the lead case or cases are likely to be heard.

Any information or updates on outcomes gratefully received.

AIT listing policy

Yarl's Wood detention centre. It isn't normally on fire.

This post is definitely one for other immigration lawyers. Anyone else will be left thinking ‘diddums!’

There is an ugly rumour abroad that immigration judges at Taylor House doing the CMR list are going to start sending two cases a day to be heard at Yarl’s Wood detention centre near Bedford.

I say this is an ugly rumour. The context is that I would gladly sell my grandmother to get a case heard at Taylor House. It is close to chambers, there are lots of nice coffee shops in which to wait and the judges seem friendlier (this is demonstrably the case in bail hearings). In contrast, the other main hearing centre, near Hatton Cross, takes two and a half hours to get to, the only place to hang out is Tesco’s and the judges on average seem rather severe.

Since the introduction of fixed fees in legally aided immigration work, travel time has made an enormous difference.  And travel time to Yarl’s Wood is measured in ice ages rather than hours. This may well be pleasing to some readers out there, but my personal experience is that in many cases is that my hourly rate for many cases has halved, and I really do not seem to ‘win some lose some’ as the Legal Services Commission disingenuously originally suggested. It removes any incentive to prepare well other than professional obligation and pride (admittedly both strong incentives) and is pushing good lawyers away from doing publicly funded immigration work.

If true, this rumour is entirely consistent with the complete disregard the Asylum and Immigration Tribunal has shown for the fixed fee arrangements. Some senior figures in the tribunal have emptily whispering that they like all parties to be represented and when fixed fees were introduced promised to look at ways to group cases together and list cases sympathetically. For example, it would help solicitors and barristers enormously if cases in which they are acting could be grouped together or if fixed fee cases were given priority or if better ‘not before’ starting time estimates could be given.

The AIT point blank refuses to do any of this. There was some sort of trial of afternoon lists at Taylor House but it seems to have fizzled out. I suspect immigration judges quite like their normal finishing time of shortly after lunch and aren’t willing to sit longer into the afternoon on a routine basis. Well, a prompt start at 10am would be a good start (SO many judges come down late with no apology), and it might be helpful for them to recognise that the world does not revolve around them.

I am not aware of any other courts that operate in such a cavalier fashion towards lawyers and the public. All other courts seem to have a staggered list with cases grouped for different start times. I’m blogging mainly on behalf of the lawyers, but our clients end up sitting around all day as well, having all been told to turn up at 10am. They also have better things to do than wait around all day.

Lastly, I can’t help thinking that the AIT seems perfectly happy to notify the Home Office in advance which cases are to be heard in the same hearing room so that the Home Office can send just one representative for multiple cases. Why is it that no steps in this direction can be contemplated for appellants’ representatives?

Spouse applications and appeals

I’ve just been doing the appeal on a not-terribly-well-prepared spouse case. It was a frustrating experience as the appeal may fail, although the case might potentially have been a strong one. It is difficult to tell where the fault lies for the problems in the preparation of the case, however. It could be the solicitor but it might be that the client has simply failed to provide evidence for which he was asked.

The applicant was the wife of a man based in the UK. He was originally a refugee but is now a British citizen, having naturalised a few years ago. The UK-based partner is referred to as the sponsor in these sorts of cases.

As in many spouse cases, the main issues were (i) whether the relationship was genuine and (ii) whether the applicant would be adequately maintained and accommodated without recourse to public funds once inside the UK. I’ll address the first issue in this post and return to the other in the future.

When an Entry Clearance Officer, sometimes colloquially referred to as an ECO or as a visa officer, has doubts about whether a relationship is genuine, there are two immigration rules he or she can and usually will rely on to refuse the application. These are the requirements that the marriage is subsisting and that the parties to the marriage intend to live permanently with one another, both set out at rule 281 of the immigration rules.

Case law says that the subsisting marriage requirement means more than just legally subsisting, the marriage has to be an ongoing, ‘live’ one. It is therefore important to show that the two parties are regularly in contact, whether that is by telephone, text message, correspondence, email or pigeon. Phone bills (preferably with proof of to whom the telephone numbers belong), print outs from telephone cards (or the cards themselves, although they could belong to anyone in the mind of a cynical ECO), copies of letters and envelopes (envelopes prove someone hasn’t just sat down one night to write a load of letters), birthday cards, pigeon feed bills and so on are invaluable evidence. A witness statement or letter to the ECO explaining how often the couple are in contact, what sorts of things they talk about and a few anecdotes about recent calls can be very helpful as it humanises the whole thing, which is half the battle with most ECOs and immigration judges. Evidence of visits is very helpful, including passport stamps, photos and then any other evidence of activities together, such as restaurant receipts, cinema tickets, hotel bills and so on.

Oh, a child or pregnacy can help, too. And the length of time between the refusal of applications and the listing of the appeal against refusal means that a child is sometimes on the way by the time of the appeal hearing, with one parent in one country and the other in another. Not much chance of attending antenatal classes together.

Evidence of financial support by the UK sponsor is also important if there has been any. This can be quite tricky, as the high commission on the likes of Western Union and the relatively small amounts that are transferred make that method of transfer quite unappealing. Bank transfers are difficult as many potential recipients don’t have bank accounts. Many people send money with friends or relatives who are going abroad, but providing evidence can be very hard. A letter and copy of relevant passport stamps showing travel to the country in question from the person or people concerned is usually the best that can be done.

All of this also helps with the ‘intention to live permanently with the other’ test. However, even if the couple can show all this evidence, an ECO can still turn around and effectively accuse both parties of entering into a sophisticated sham marriage (see the film Green Card) or, more commonly, accuse the applicant from abroad of deceiving the UK sponsor in order to secure entry to the UK. This is, I am sorry to say, far more common as a reason for refusal where it is a man applying to come to the UK and/or where the man is the younger of the two spouses. ECOs can be rather old fashioned in this respect, as in so many others.

Lastly, and this was one of the frustrations about the case I was recently handling, if an appeal is necessary then the date of the assessment of the facts at the appeal is the date of the original refusal. This means that evidence arising after the original refusal is unlikely to be relevant, unless it clearly casts light on the facts at the time of the refusal. For example, evidence of a strong ongoing relationship (lawyers sometimes refer to this as ‘intervening love and devotion’, as if we’d know about that) strongly suggests that the relationship was genuine all along. However, getting a new job with more money won’t help show that there was enough money in the household at the time of the refusal.

The burden of proof rests with the applicant. Failing to produce this sort of evidence means that it is very difficult to win a case. In this case, the corroborrating evidence of contact simply wasn’t there.

Bail for Immigration Detainees

The title of this post is a reference both to the excellent organisation, Bail for Immigration Detainees (BID to its friends) and to the underlying concept. BID helps immigration detainees make bail applications and works with the Free Representation Unit to get (mainly) barristers to do pro bono lists of bail cases at the major hearing centres, mainly Taylor House near Angel in London, York House near Heathrow and Newport, where Campsfield Detention Centre bail applications are heard.

I recently took on one of these BID lists at York House. One of the three cases was withdrawn the previous day because removal directions were made for the detainee for later that week. Making a bail application would have been pointless in these circumstances as no immigration judge would grant bail to a detainee who is about to be removed from the country.

The second case also looked hopeless. The detainee had with remarkable regularity been committing fairly minor offences for over a decade now and the Home Office had finally decided to deport him. He had lost his deportation appeal but the reconsideration application was still pending. Or, at least, it was until the day before the hearing, when reconsideration was refused. This was the end of the line, so bail also looked hopeless. However, the detainee was very seriously ill and needed to follow a complex 24 hr medication regime, meaning that he would be unable to go to ground without seriously jeopardising his health. An old friend turned up, his girlfriend and their 6 month year old child and two of his adult children, one of whom he was proposing to live with if bail was granted. The immigration judge refused to hear evidence from the detainee or his two sureties and refused bail.

He will now be removed, and the doctors say he’ll be dead within a year. It won’t be a nice way to go, either.

I spoke to some court staff afterwards and many representatives apparently withdraw bail applications if they see this particular immigration judge will be hearing their client’s application. This prevents a damaging refusal appearing on the court file and means that the next judge isn’t necessarily influenced from the start by a previous refusal. Once bail has been refused by one judge, it is usually necessary to show something substantial has changed since the last application if you are to succeed with a second or third. This judge’s record for completing the bail list for his court is apparently by 11.30am, which is quite impressive in its way. As a comparison point, the other bail list that day wasn’t over until nearly 3.30pm.

The last case looked like a good one to me and I was optimistic. We had a different judge, with a reputation for thoughtfulness. This detainee came from Eritrea, a country to which it is more or less impossible to remove people who do not possess identity documents, and he had already been detained for over five months. Detention is only lawful where there is a realistic prospect of the detainee being removed, and there simply wasn’t in this case. On top of that, all but one short paragraph of the Home Office’s bail summary (their reasons for opposing bail) consisted of standard platitudes that would apply to almost any asylum seeker and certainly weren’t sufficient to justify detention.

The fly in the ointment was that the detainee had made a second asylum claim using a false identity and had been imprisoned for this – for twelve months. No wonder the prisons are so full. A deportation decision had also been made as a consequence. He had been unable to appeal this as there is only five days to do so when you are detained, and he had no way of contacting a lawyer. He’d done it to get back on benefits, as these had been automatically withdrawn when his first asylum claim was over.

After a 45 minute hearing, the judge concluded that it was for the High Court to decide questions of lawfulness, not him (true enough), and that the use of deception in the second asylum claim meant he, the judge, could not be satisfied the detainee would comply with any bail conditions. On a different day or had I perhaps been more eloquent, bail mght have been granted, but the decision was a justifiable one.