The new address is www.freemovement.org.uk.

All of the posts and I think all or most of the comments have been moved across already. In terms of presentation you will see that I have made fairly slight changes. I hope you like the new look. It probably isn’t permanent, however. I may well change to three columns and post excerpts in due course – it makes the blog a bit more cluttered and involves an extra click to read full content, but there are various reasons for going down this road in the long term.

When I complete the switch over I will put a redirect on the current website, so if you do continue to check in here you will be redirected here automatically. However, if you have bookmarked anything other than the home page then I’m afraid I doubt such links will continue to work.

There will be further changes ahead after the switchover and I hope to add some additional functions and pages to the website in future. I’ve so far just added a fancy archives page. I hope to add a resources page soon with helpful links. I don’t have a great deal of time on my hands, so changes will probably be pretty gradual!

G W F Hegel

The Hegelian dialectic is sometimes expressed as thesis followed by anti-thesis followed in turn by synthesis. Over time, compromise is the outcome.

A tendency towards the middle ground can often be seen in human rights case law and immigration policy. A radical new case is handed down or law is passed. Advocates and judges seek to distinguish it to mitigate the perceived unjust individual effects. Such perception is based on the earlier paradigm. A new understanding is reached, which everyone often thinks is based on a ‘true’ understanding of the original proposition.

This may be the way things work in practice, but the case or the law itself is often unmodified and its intent and meaning is actually the same as ever it was.

Of the three major House of Lords immigration cases of 2008 (‘Good news from on high‘) EB (Kosovo), Beoku-Betts and Chikwamba, the first two have I think been more or less immune from the tendency to move to the middle ground. The principles then established are still being fairly faithfully applied today. Not so with Chikwamba.

In Chikwamba the House of Lords held that it was usually going to be disproportionate in a family case for a person to leave the UK simply to re-apply from abroad, for no other reason than this was the normal procedure set out in the rules.

The Home Office response to Chikwamba seemed to be to argue that unless one was from Zimbabwe, had children and had a name beginning with C then the case had no relevance. This is a common reaction by advocates of any variety who are perhaps too wrapped up in their client’s case to accept that a precedent is against that case: to seek to distinguish it on facts and try and persuade the judge that there is no point of principle in play.

The High Court case of R (on the application of Kotecha) v Secretary of State for the Home Department [2011] EWHC 2070 (Admin) has sometime been relied on by Presenting Officers as modifying the Chikwamba principle. Properly read, though, Kotecha is just the application of Chikwamba to two individual cases. One of the cases succeeds and the other fails. It is not guidance nor is it authority to undermine the Chikwamba principle.

If confirmation of the above analysis is needed it can be found in the new Upper Tribunal case of Hayat (nature of Chikwamba principle) Pakistan [2011] UKUT 00444 (IAC). The official headnote is as follows:

The significance of Chikwamba v SSHD [2008] UKHL 40 is to make it plain that, in appeals where the only matter weighing on the respondent’s side of an Article 8 proportionality balance is the public policy of requiring an application to be made under the immigration rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant’s side of the balance. The Chikwamba principle is not confined to cases where children are involved or where the person with whom the appellant is seeking to remain has settled status in the United Kingdom.

For those without current leave to remain wondering whether they should remain in the UK to make an application or return overseas to apply there, Chikwamba is a great assistance. There are considerations pointing in both directions, though. Irrespective of what the law requires, the Home Office routinely refuses in-country applications in family cases, forcing protracted and expensive litigation to secure success. Returning abroad is no panacea, though, as ECOs in certain countries seem to look for reasons to refuse any person who has broken immigration laws in the past, irrespective of the impact such refusal will have on their family in the UK. See this earlier post for a more detailed discussion of the issue. Not a lot has changed since then.

The official headnote to this new case, Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443 (IAC), reads as follows:

The decision whether to allow evidence to be given by electronic means is a judicial one, requiring consideration of the need to do so, the arrangements at the distant site, and the ability to assess such evidence, by reference to guidance such as that set out here.

In this case a decision had been made that a witness who could not afford to travel to North Shields would be permitted to give evidence by telephone. It was not known who had made the decision or what, if anything, they had considered or weighed in making that decision.

The Presenting Officer threw what is technically known as a hissy fit and refused to cross examine the witness. This is the equivalent of getting up and walking out if an adjournment application is refused. Ultimately this was the undoing of the Secretary of State’s appeal as it meant that the witnesses evidence was unchallenged. The smart thing to do might have been to ask a few questions such as “how do we know you are who you say you are?”

The tribunal, chaired by Deputy President Mr Ockelton, opines that in the common law there is a presumption that evidence will be given in person before the tribunal or court then goes on:

Departures from that model are likely to reduce the quality of evidence, the ability of the parties to test it, and the ability of the judge to assess it, particularly where it has to be assessed against other oral evidence. Any application to call oral evidence by electronic link therefore needs to be justified. There is a measure of agreement across common-law jurisdictions that the taking of evidence, or the hearing of submissions, in this way requires regulation and ought not to be regarded as routine.

Interestingly, from the point of view of immigration bail hearings, video linked evidence is now regarded as presumptive and routine, at least by the Immigration and Asylum Chamber powers that be, and a judicial decision that video link evidence will be permitted is certainly not made in individual cases. I’m pretty damn sure that video links are not used for bail hearings in the criminal or other courts. The liberty of mere migrants is the poor cousin to the liberty of free-born Englishmen.

It is also I think worth observing that this case opens the door to applying for special measures to enable children to give evidence in a friendly and safe environment. This would normally be considered to increase not diminish the quality of evidence given. See Chapter 4 on representing children in appeals in the recent ILPA publication Working With Refugee Children: Current Issues in Best Practice for ideas (disclosure: I wrote it).

The actual guidance given by the tribunal is given with the caveat that it amounts to minimum requirements and may well require adjustment over time:

a.      A party seeking to call evidence at an oral hearing by electronic link must notify all other parties and the Tribunal at the earliest possible stage, indicating (by way of witness statement) the content of the proposed evidence.  (If the evidence is uncontested, an indication of that from the other parties may enable the witness’ evidence to be taken wholly in writing.)

b.     An application to call evidence by electronic link must be made in sufficient time before the hearing to allow it to be dealt with properly.  The application should be made to the relevant judge (normally the Resident Senior Immigration Judge) at the hearing centre at which the hearing is to take place, and must give (i) the reason why the proposed witness cannot attend the hearing; (ii) an indication of what arrangements have been made provisionally at the distant site (iii) an undertaking to be responsible for any expenses incurred.

c.      The expectation ought to be that the distant site will be a court or Tribunal hearing centre, and that the giving of the evidence will be subject to on-site supervision by court or Tribunal staff.

d.     If the proposal is to give evidence from abroad, the party seeking permission must be in a position to inform the Tribunal that the relevant foreign government raises no objection to live evidence being given from within its jurisdiction, to a Tribunal or court in the United Kingdom.  The vast majority of countries with which immigration appeals (even asylum appeals) are concerned are countries with which the United Kingdom has friendly diplomatic relations, and it is not for an immigration judge to interfere with those relations by not ensuring that enquiries of this sort have been made, and that the outcome was positive. Enquiries of this nature may be addressed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division).  If evidence is given from abroad, a British Embassy, High Commission or Commonwealth may be able to provide suitable facilities.

e.      The application must be served on all other parties, in time for them to have a proper opportunity to respond to it.

f.       The decision whether to grant the application is a judicial one.  The judge making the decision will take into account the reasons supporting the application, any response from other parties and the content of the proposed evidence, as well as of the overriding objective of the rules.  If the application is granted, there may be further specific directions, which must be followed.

g.     If there is a direction for the taking of evidence by electronic link, the Tribunal will nevertheless need to be satisfied that arrangements at the distant end are, and remain, appropriate for the giving of evidence.  A video link, if available, is more likely to be suitable than a telephone link.  The person presiding over the Tribunal hearing must be able to be satisfied that events at the distant site are, so far as may be, within the observation and control of the Tribunal, and that there is no reason to fear any irregularity.

h.     There will need to be arrangements to ensure that all parties at the hearing, as well as the judge, have equal access to the input from the electronic link.  Particular attention needs to be given to the accommodation of any interpreter.

i.       In assessing any challenged evidence, the Tribunal may have to bear in mind any disadvantages arising from the fact that it was given by electronic link, and should be ready to hear and consider submissions on that issue.

j.       Nothing in this guidance is intended to affect the existing arrangements for the hearing of bail applications by video link from secure video conferencing suites. Nor is this guidance intended to affect the arrangements for video linking of one Tribunal room to another for the purposes of hearing submissions by video link.

It is, of course, for the party seeking to rely on evidence given by electronic means to make the arrangements and pay any associated costs. It should hopefully be abundantly clear after all of the above that any applications must be carefully made in very good time and must be well planned.

SH had claimed asylum and claimed to be a minor. Lincolnshire social services assessed him to be an adult. The Refugee Council strongly believed him to be a minor and arranged for an independent expert to carry out an age assessment. An adjournment of his fast track hearing was sought on that basis and notably the Secretary of State did not oppose the adjournment application. Nevertheless, Immigration Judge Froom refused to grant it, reasoning that no date had been set for an appointment with the expert, and declaring that there was only a rough estimate of when the report would be available. The Immigration Judge concluded that he could ‘justly determine the appeal on the basis of the evidence already available.’

Senior Immigration Judge King in the Upper Tribunal upheld the appeal’s dismissal on the basis that on the evidence before the Immigration Judge ‘his decision was one properly open to him and was not Wednesbury unreasonable or perverse or unfair.’ Even if the Immigration Judge had adjourned and considered the independent report, it was ‘reasonably likely’ he would have reached the same decision.

Many immigration lawyers will have experience of similar scenarios in non-fast track appeals where an adjournment to adduce expert evidence is refused [ed: oh yes indeed]. So it is useful to study the reasons given by Moses LJ, with whom Patten and Ward LJJ agreed, for finding that the First Tier and the Upper Tribunal had both fallen into serious error.

Moses LJ identified the ‘central issue in the appeal’ as the procedure by which the Tribunals below had reached their decisions (2):

8… It is fundamental that the parties should be allowed to answer adverse material by evidence as well as argument (see, e.g., In Re. D [1996] AC 593 at 603) and all the more so where the subject matter, such as a claim for asylum, demands the highest standards of fairness (R v Secretary of State for the Home Department ex-parte Fayed [1998] 1 WLR 763-777).’

Applying this principle to SH’s case:

9… The essential point is that the Secretary of State had expert evidence on which she relied and the appellant wished to produce his own. In those circumstances, it seems to me beyond argument that the judge ought, in fairness, to have given this appellant an opportunity to provide countervailing expert evidence, if he could obtain it, all the more so where the judge had been informed of assessments by others, such as Mr Jeff’s, which challenged the social workers’ own assessment. In my view, it was unfair and unlawful to refuse an adjournment at that stage.e, if he could obtain it, all the more so where the judge had been informed of assessments by others, such as Mr Jeff’s, which challenged the social workers’ own assessment.  In my view, it was unfair and unlawful to refuse an adjournment at that stage.  The judge appears to have done so merely on the basis that it would involve removing the appeal from the Fast-Track Procedure.  That provided no justification for his refusal.

As to the correct legal tests to be applied:

13… First, when considering whether the immigration judge ought to have granted an adjournment, the test was not irrationality. The test was not whether his decision was properly open to him or was Wednesbury unreasonable or perverse. The test and sole test was whether it was unfair…

14. The question for Judge King was whether it was unfair to refuse the appellant the opportunity to obtain an independent assessment of his age; the question was not whether it was reasonably open to the Immigration judge to take the view that no such opportunity should be afforded to the appellant.  Where an appellant seeks to be allowed to establish by contrary evidence that the case against him is wrong, the question will always be, whatever stage the proceedings have reached, what does fairness demand?

The centrality of the requirements of fairness are reiterated with a rousing quotation from the case of John v Rees [1970] Ch 345, 402:

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious,” they may say, ‘why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.’ Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

It is not, then, for the first instance judge to pre-judge whether the material sought will make a difference to the outcome of the case. Adjournments must be granted where it would be unfair not to do so, including in the fast track process.

And yet SH’s case has a sting in the tail. Moses LJ holds that once the evidence has been adduced later on it is not normally for the appeal tribunal to review what the outcome might have been had the evidence been available. The test applied by the SIJ is held to be wrong: whether it is reasonably likely the original judge would have reached the same conclusion. The correct test is whether it is inevitable the judge would have reached the same conclusion.

Accordingly, Moses LJ asks himself, notwithstanding the errors he has found ‘whether the evidence that the appellant is over 18 is so overwhelming that it is pointless to remit the matter to a First Tier Tribunal…’ Sadly for SH, he decides that ‘this is one of those rare cases in which the unlawful errors of procedure made no difference whatever.’ Despite the existence of an independent report assessing SH to be a minor and a second assessment by the local authority, agreeing that SH was a minor, the Court found that adverse evidence arising from a prior entry clearance application by SH was so detrimental to his claim to be a minor that the expert reports could not have made a difference.

Ed Mynott, Latitude Law.

The first in the series is on taking initial instructions and client care on Wednesday 23 November in central London. Click here to book and for price information. Future workshops are on taking a statement and evidencing an application.

The MAC is proposing the introduction of a minimum gross (i.e. before tax) income threshold of at least £18,600 and perhaps as much as £25,700. The MAC assumes that this threshold excludes possible future income from the spouse entering the UK – which means that the figures are proposed minimum incomes for the UK-based sponsor alone. Both figures, but particularly the higher one, are based on a huge range of assumptions.

The MAC also estimates that 45% of current applicants would not meet the lower income threshold and 64% of current applicants would not meet the higher threshold. For comparison, that fount of all knowledge, Wikipedia, tells me that in 2011 average and median individual earnings in Britain were around £26,000. Travis estimates that half the UK’s working population would be excluded from sponsoring family members by the higher of the two proposed thresholds.

As the MAC recognise in the report, there would be a significant bias against applicants from Scotland and the north of England, where average incomes are lower. There would therefore be a bias in favour of migration to the London area. The figures cited also assume that there are no children or dependents in the household, and the MAC proposes a multiplier formula to address this issue, meaning that much higher thresholds might be introduced for those with children.

The basis of calculation for the two proposed figures of £18,600 and £25,700 is very different, so it is not really a question of the Government picking a number somewhere between the two – it will likely be one or the other. The lower figure is based on the MAC’s opinion on income level required not to receive any benefits including tax credits. The higher figure is referred to as the ‘net fiscal impacts approach’, which uses a broader interpretation of the concept of burden on the state.

There will no doubt be more news to follow on this subject. There is no timescale for the introduction of the income threshold, but given Cameron’s support for the idea it may be introduced quite soon.

The language of the authorities on Pankina, which include English UK and Joint Council for the Welfare of Immigrants, suggests that minor requirements can be made in guidance, but substantive ones cannot. Ahmed clarifies that this is really a distinction between “substantive requirements” and the “means of proof” for those requirements.

At paragraph 41, Singh J, explains the principle from Pankina:

…the distinction which both as a matter of principle seems sensible and is supported by the authorities is that between:

(i) the substantive requirements which an applicant has to meet in order to obtain leave to enter or leave to remain under the immigration rules; and

(ii) the means of proving such eligibility:

see paragraph 6 of Sedley LJ’s judgment in Pankina itself.

The former can only be changed by amending the immigration rules and in accordance with the negative resolution procedure. The latter need not be and can properly be the subject of policy guidance. (Emphasis added)

When the Immigration Rules were changed in April (section 5, clause 134 (iv)) they said that new salary requirements would apply to people on work permits looking to apply for ILR. People who were granted their work permit on one salary requirement will now have to seek a wage increase or find new work. Another Free Movement blog has pointed this problem out, and said that the landmark decision of Odelola normally precludes a challenge based on legitimate expectation. But Ahmed might offer a way of challenging this without challenging the precedent in Odelola.

The rate required was not set in the Immigration Rules, it was set in the Tier 2 Codes of Practice. It is open to argue that the amount of money needed to become eligible to apply is not a “means of proof” but a “substantive requirement”. And therefore by not placing it before Parliament the Home Secretary might have fallen foul of the “constitutional problem” from Pankina.

The other change made in section 5, clause 134 (iv) of the Immigration Rules was that the “employer certifies” the correct rate is being paid. There is a clear distinction here between the substantive requirement of the wage rate, and the means of proof from the employer. This distinction is only made clearer with the change introduced at the end of October that applicants must now supply wage slips.

The wage rate is a “requirement which an applicant has to meet”, whilst the certification of that is a “means of proof.” This could leave the wage increase from April vulnerable to a Judicial Review (JR), similar to Ahmed.

The authorities show a clear line of reasoning about substantive changes being made in guidance. Alvi says, “making substantive changes outside the scope of the rules brings in Pankina.” And Ahmed said that rules can rely on guidance for “comprehension” but cannot be “supplemented” by “extraneous sources”.

Wage rates are not part of comprehending the rules, but an addition to them; the current situation allows the Home Secretary to make large changes to the qualifications an applicant needs to meet, without having them approved by Parliament.

If the court does not accept that the wage rates are “substantive requirements”, then an alternative argument might be made on the basis of fairness.

Another aspect of Pankina that Ahmed highlights is the way policy is applied. At paragraph 28, Sedley LJ says, “A policy is precisely not a rule: it is required by law to be applied without rigidity, and to be used and adapted in the interests of fairness and good sense.” The benefit the Home Secretary gets from using policy is tempered by the obligation to be flexible and fair.

This means that if the wage increase is held to be policy and therefore not part of the Pankina “constitutional problem”, it can be challenged on a case-by-case basis on the grounds of fair application.

In Pankina that meant not refusing an application because for a short period the requirement to maintain an £800 bank balance had not been met. In Ahmed there is a strong implication that had the CAS requirement not been a legitimate rule it too would have been subject to this fairness requirement.

Fairness has been gaining momentum in immigration decisions, and seems to be the intellectual child of the european idea of proportionality. As Sedley LJ commented, policy (by definition) ought to be applied less rigidly than rules. Not doing so could lead to ECHR claims; but it might be possible, on the basis of the accumulation of dicta in recent cases, to make an alternative argument stating that rigid application of policy is now out of step with the more general “fairness” requirement.

There is dicta from Lord Rodgers in Wilson to the effect that new laws will always affect people’s rights, this is not retroactive, but that sudden changes may well be unfair. Taken with the principle in Pankina and the suggestion in Ahmed that it would have applied under different circumstances, it is arguable that this is becoming something the courts are more willing to consider in a wider set of circumstances than before.

Indeed, the recent case from the Upper Tribunal of Alam showed a real willingness to apply this doctrine of fairness. Although the principle of fairness is not a means by which the courts can examine or avoid the merits of legislation, an order made under Nationality, Immigration and Asylum Act 2002 was subject to this assessment.

The Upper Tribunal held that when assessing the strength of the Home Secretary’s position in maintaining the Immigration Rules, fairness was an integral part of proportionality, which feeds into Article 8 arguments of a right to a private life, which may allow an applicant to circumvent ineligibility under the Immigration Rules where a strong private life is demonstrable. Alam left this point open.

In Mr Alam’s case he had embarked on an appeal, and then the rules had changed. The Upper Tribunal said that if this change was irrational or not lawful he could have a JR.

It seems that the JR on the ground of irrationality or lawfulness and fairness as part of proportionality can be viewed as two sides of the same coin. Whether it comes via JR or Human Rights, there might be a trend here of the courts seeking to deal with these cases in a more equitable way.

The Free Movement blog is right, Odelola “permits changes to the immigration rules even after an application has been submitted but before it has been decided, as long as there was no express promise not to change the rules.” Like tax law, you might plan your affairs based on one regime, but then find yourself dealing with another one. But an argument on the basis of the constitutional problem in Pankina as interpreted in Ahmed might be a challenge to that for people currently on work permits looking to apply for ILR.

Henry Oliver

(The author writes the Mulberry Finch blog. Mulberry Finch is a firm of immigration solicitors on Holborn.)

Naval (sic) gazing

There will be some changes coming on Free Movement. This has been absorbing quite a lot of my rather limited time of late, and there are several significant recent cases that I haven’t managed to flag up yet, for which I apologise. Work has been extremely busy and I have a family I’m supposed to spend time with as well.

Before I go further, the State of the Nation is that the blog topped 50,000 page views last month and has just short of 1,000 email subscribers. The Twitter account now has over 600 followers. The blog also has a Google Pagerank of 5/10, which is apparently quite good. We seem to be doing something right here, and I do not want to lose that. The current set up is not sustainable, however, yet it is also the case that I do not have a masterplan of what I would like the blog to be in a few months time. There will be trial and error, and I welcome feedback and suggestions from regular readers.

Firstly, you may have noticed that I am receiving a bit more help from other contributors. I certainly welcome this, and I hope it is proving useful to readers. Only last week I used some of the material that Sarah Pinder had very helpfully posted up. A range of input from different people inevitably raises new legal points and information that I alone would have missed, and I think a range of opinions would be useful as well.

I am open to further developments on this front. I did wonder about seeking ‘correspondents’ to cover particular legal areas, for example, but I doubt I’ll find enough nutterspotential bloggers out there willing to put in the necessary time. I have also wondered if any of the more thoughtful comment contributors from the Home Office might be interested in contributing more regularly.

Secondly, I am in the process of moving domain names and creating a self hosted website. This will enable me to add additional features to the blog. If you have any requests or suggestions, let me know. One idea was to set up a ‘Closet’ page to host anonymised skeletons and other precedents that might then be useful to others. However, this might be giving away just a bit too much of my output for free. There are also some apparently minor tweaks that self hosting will allow, such as better information about the various blog contributors.

Thirdly, I have some costs to recoup. Ever since I realised I needed to pay a fee to stop WordPress hosting Google ads on the blog (WordPress have to make a living too) I have had some very limited costs associated with the blog, but these have now increased. I’ve been willing to give away my time for free, although I’ve had plenty of doubts along the way, but I’m highly reluctant to fork out actual cash for the privilege of giving away my time. This is a vexed subject and, again, I’m entirely open to suggestions from those who find the information on the blog helpful.

If you have any other thoughts or suggestions on these or other topics, let me know either privately or by leaving a comment.

Omotunde (best interests – Zambrano applied – Razgar) Nigeria [2011] UKUT 00247 (IAC)

This case has already been mentioned on the blog but a closer look is warranted as it gives an idea of how the domestic courts are applying the principles in Zambrano in relation to deportation cases, a potentially difficult issue for practitioners and judges alike. This was the subject of one of the recent Renaissance Chambers lectures, and the training notes prepared by myself and Sarah Pinder can be downloaded here if you are interested.

Omotunde addresses the deportation of a foreign criminal who had a British Citizen child. The issue arose as to whether removal of a particular parent would ‘deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’

The Tribunal, chaired by the President, noted that as Zambrano was not a case involving deportation, the ECJ  had not considered how Article 20 TFEU would be applied if there were strong public interest reasons to expel a non-national parent.

The Tribunal therefore sought to give some guidance on these issues and their considerations are set out at Paragraph 32, 35 and 38 of the determination as follows.

32. As a result of this decision national courts must engage with the question whether removal of a particular parent will ‘deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’. We conclude that either requiring Tolu to live in Nigeria or depriving him or his primary carer would undermine his rights of residence. The Court of Justice did not have to consider how Article 20 would be applied if there were strong public interest reasons to expel a non-national parent. We would conclude (subject to any further guidance from the CJEU or the Court of Appeal) that any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality. We doubt whether there is a substantial difference between the human rights based assessment of proportionality of any interference considered by Lady Hale in ZH (Tanzania) and the approach required by Community law.

…

35. The assessment of proportionality is a matter for us, in the light of the judge’s sentencing remarks and the analysis of the public interest engaged, and on the facts of the particular case: see RG (Automatic deport – section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC); [2011] Imm AR 84. We recognise that there can be a public interest in deporting both those who are personally dangerous or a persistent threat to public order and others whose offending may be a single instance but its nature and seriousness make deportation appropriate as a mark of public disapproval and the protection of public order by the deterrent effect on others. Equally we recognise that “seriousness” in this context is not to be judged by the threshold for automatic deportation, but the gravity of the offending as assessed by its place in the criminal calendar.

…

38. We accordingly ask the following questions:

1. Is there family life enjoyed between the appellant and Tolu that requires respect in the context of immigration decision making?

Yes: Father has been resident here for 18 years and was lawfully resident at the time of Tolu’s birth here.

2. Would deportation of the father interfere with the enjoyment of that family life?

Yes: If father is deported and Tolu remains in the United Kingdom, as he is entitled to, he loses his parent and dominant carer. If Tolu joins father voluntarily in Nigeria he loses his home, his school, regular contact with mother and aunt and his friends, and the benefit of being brought up in the country of his birth, as a British citizen, with all the benefits which flow from that upbringing. Telephone/email contact is no substitute for the active care and contact Tolu now enjoys with both parents while in his father’s care.

3. Is such an interference in accordance with the law?

Yes it is required by s 32 of the UK Borders Act 2007, subject to our assessment of the human rights claim under s.33.

4. Is such an interference in pursuit of a legitimate aim?

Yes: deportation of the father is a measure reasonably connected with the interest of public safety and protection of public order and the rights of others. It is not necessary to demonstrate that the appellant presents a personal risk to others and is likely to personally re-offend. Public safety may be promoted by the deterrent effect of deporting those liable to it, provided the deportation is necessary and proportionate.

5. Is deportation necessary, proportionate and a fair balance between the rights to respect for the family life of the appellant and his child and the particular public interest in question?

It is in this context that we make our assessment of the weight to be attached to the seriousness of the offending and the proportionality of a deterrent effect. We note that the appellant has not been convicted of an offence of serious intentional violence or sexual misconduct; nor is this an offence of importing or dealing in class A drugs or people trafficking where deportation as a measure to deter others may have particular efficacy. We note that the appellant is not a recidivist offender and is not assessed to have a high risk of re-offending. We take account, however, of the fact that the appellant participated as a mature adult in a serious fraud on public revenue to the tune of £41,600 in his personal case, but that he was not considered by the trial judge to be the dominant personality in the overall conspiracy of a much greater value.

We consider that Tolu has a strong claim to continue to enjoy the support of his father and continue to be brought up in the United Kingdom. Such a course is in his best interests and his rights as a British citizen and a citizen of the European Union.

It is clear from this that the Tribunal, at paragraph 38, sought to tailor the five stage Razgar test, the most important emphasis being on the fifth question. Each case is fact specific and turns on the nature of the bond between parent and child, balanced against the seriousness of the offence and the public interest in deporting the individual. This is another important reminder that it is critical that as much information as possible is provided to address the circumstances of the individual.

It seems that UKBA enforcement officers in Liverpool have been off on their fishing trips at, amongst other places, the local bus and train stations, which to the best of my knowledge serve no international traffic. As described in the newspaper, it would appear that with a view to apprehending unsuspecting immigration offenders, the UKBA officials are giving bus and train passengers ‘a tug’ just to see what turns up. One affronted passenger, a British citizen, wrote to the UKBA and received a reply from the inspector at Liverpool UKBA office to the effect that the powers for immigration officers to conduct such checks are contained within the Immigration Act 1971, yet The Observer comments that the Act provides for no such thing.

It was a quiet Sunday afternoon, so rather than entertain the lad whilst the missus did the ironing, I decided to see what I could find out…..

Contrary to what is stated in the article, immigration officers actually do have the power to examine an individual post-entry, as held in Baljinder Singh v Hammond [1987] 1 All ER 829, [1987] Crim LR 332. This permits an Immigration Officer to examine someone already in the UK in order to establish whether he is “a British citizen and if not whether he may enter the United Kingdom without leave, and if not whether he should be given leave and on what conditions”, the power being derived from Sch. 2 para 2 of the ’71 Act.

However, it must be questioned whether the blanket approach of requesting identification of every person who happens to be disembarking from a given bus or train is intra vires.

The UKBA’s published Enforcement Instructions and Guidance (31.19) set out the procedures IOs are meant to follow, including having to have a ‘reasonable suspicion’ as well as regard to the Race Relations Act 1976. The incidence cited in The Observer report indicates that the UKBA, in Liverpool at least, are seeking to address the terms of the Race Relations Act by requiring everyone onboard a disembarking bus or train to produce identification, but this in turn raises questions of ‘reasonable suspicion’.

So, either a British citizen, or an EEA national or a foreign national lawfully in the UK is required to demonstrate their right of abode, presence under Directive 38/2004 or lawful status under the Immigration Rules whilst travelling within the UK? Such a blanket requirement hardly gives grounds for a ‘reasonable suspicion’ and must be ultra vires.

As someone commented to me:-

“Certainly, I would have simply pushed my way past and prayed some overzealous Immigration Officer or copper arrested me – the compo would certainly be in the £5000 – £25,000 range.”

Ralph Davies

(The author is an OISC-registered immigration adviser and ex-immigration officer.)