My my, one gets more comments on The Guardian website than on Free Movement! I’ve been busy in court all day (on a non immigration case) and get back to find that there were 87 comments on the short piece I’ve done for Liberty Central at The Guardian’s website.

I haven’t yet read beyond the first few comments, but having seen those and being familiar with the tone of responses to other liberal commentators there I imagine many will be negative.

At some point later today I’ll be logging on there and starting to do a few responses…

Do not be fooled by the first judgment in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 by Lady Justice Arden. She holds that the appeal should be dismissed, but is out-voted by the rest of the bench, Lord Justice Moore-Bick and Lord Justice Sullivan.

The judgment concerns the nature of appeals and the convoluted link between rights of appeal and grounds of appeal created unnecessarily in the 2002 Act at sections 82 and 84. By a majority, the Court holds that as long as there is a right of appeal then any ground of appeal can be argued, no matter what the nature of the decision appealed against. For example, if a decision is made to deport an individual, that person can appeal on all available grounds, including race relations, EEA law, refugee grounds and so on.

I was surprised and slightly alarmed to read in Arden LJ’s judgment that there was even an argument that this was not the legal position. I always assumed that it was and have blithely assured immigration judges and instructing solicitors of this on several occasions in the past.

There have been some interesting developments on permission to work for Legacy asylum seekers. Click here for the Story So Far.

I read in some stakeholder minutes recently that UKBA thought it had only be judicially reviewed once about failure to grant permission to work following the case of ZO (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 442 in the Court of Appeal. I thought this was very surprising at the time, and have now heard that there have been several successful judicial reviews. High Court judges are granting mandatory orders that UKBA grant permission to work. Judgment was given in one such case this week and I’ll post a link to it here once it is reported on BAILII.

This is a classic example of the Home Office wanting it both ways. UKBA lost the case and are so far having no luck appealing it. When UKBA win a court case but the appellants appeal, UKBA insist that the law is at stated in the judgment and will seek to remove people on this basis. When UKBA lose a case and try to appeal, they claim that the judgment should not be enforced. This particular example is even worse, though, as UKBA had the chance to apply for the judgment to be suspended pending resolution of any appeal but declined to do so at the proper time, only to resurrect the argument in individual cases later on.

The legal position is that anyone out there who has been waiting for a year or more for a decision on an asylum claim — whether a first claim or a fresh claim — can seek permission to work and can judicially review UKBA if permission is not granted.

Two more things on this topic. One, I’ve belatedly discovered that UKBA released a draft version of the research report covered previously on this blog. The final version is in fact a more polished piece of work. One can only assume that UKBA deliberately released the less polished version in order to undermine it somehow.

Secondly, an interesting article has been published in the journal Feminist Legal Studies on age as a risk factor in forced marriages. I’m not normally an avid reader of this journal, I admit, but the article is well worth reading if you are interested in the subject. The authors are two of the researchers commissioned by the Home Office for the suppressed report. It’s an academic piece but here are just some of the interesting ideas raised:

1. Forced marriage should be seen as a species of domestic violence. Age would never usually be said to be a risk factor in other types of domestic violence cases as it is accepted that women of all ages can be victims. Why is this reasoning not applied to forced marriage cases, where there is evidence to suggest that applies equally?

2. The increase in the spouse visa age is based on the ‘common sense’ presumption that with age comes ‘maturity’ and independence. However, maturity is a cultural concept. For example, in many Asian families moving away from parents is not considered to be a sign of maturity but of something dysfunctional.

3. One perceived benefit of the visa age increase was allowing young people to complete their education. This ignores several considerations, including that marriage and education are not mutually exclusive, lots of people do not pursue higher education but will still not be able to live with their spouses in the UK.

4. The change has a disproportionate effect on minority communities and reinforces racist stereotypes. In short, it is discriminatory.

These are just a few points I’ve taken away from the article, though. As I said, I’d recommend reading it yourself.

It's a case

In the recent case of MS and others (family reunion: “in order to seek asylum”) Somalia [2009] UKAIT 00041 the tribunal looked at the refugee family reunion rules and came to the slightly surprising conclusion that not all refugees have the same rights.

A recognised refugee who arrived in the UK and made a formal claim for asylum as defined in the immigration rules is allowed to sponsor family members to come in from abroad under the special refugee family reunion rules at immigration rules 352A to 352F.

A recognised refugee who did not make a formal claim for asylum is not allowed to do so. The tribunal held that such a person has not ‘left the country of his former habitual residence to seek asylum’. Such refugees might include refugees sur place (who left their country for other reasons but due to a change at home have now claimed asylum), Gateway refugees, refugees recognised as such in another country but who have moved to the UK or refugees who themselves entered as family members of other refugees.

Some might say that this decision eliminates one possibility for ‘chain migration’ (a term that always causes a little bit more of me to die inside in protest) but the numbers affected are very small. Many immigration lawyers will have come across cases where a spouse enters under the family reunion rules but the original refugee dies or disappears. Under the previous more liberal interpretation, such a person would be able to bring in their own and the original refugee’s children. Not any more though.

Unless, of course, the decision is overturned on appeal. As the growing ‘Tribunal overturned again‘ category on this blog shows, this isn’t exactly infrequent. I can say with some assurance that the legal team has sought permission to appeal and is still waiting. If you are interested, you can even read the grounds of appeal.

It's a big case

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

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

Tantalisingly, Lord Justice Aitkens ends his judgment as follows:

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

So, the wait continues…

John Vine

A tad sensationalist, I know, but true enough, you will find. The Chief Inspector of UKBA, John Vine, just published his report on the UKBA visa operation at Abuja. The findings are that the operation is poor:

• The ’service’ represents poor value for money for customers. High fees are paid but refusal notices are repetitive, poorly written, unbalanced and poorly presented.
• The information available to potential visa applicants is confusing, can be inconsistent and needlessly has to be sourced from multiple websites. This leads to unnecessary refusals.
• The quality of information recording was found to be very poor indeed. The inspectors attempted to look at a sample of 100 files but by the time incorrectly referenced and lost files were eliminated, there were only 64 files in the sample.
• The quality of decision making was found to be poor on all the measures used. 11% of cases showed ‘wholly unreasonable’ judgment by ECOs and 31% of the sample were deficient in some way.
• Entry Clearance Manager oversight was inadequate, as was complaint handling. There is therefore little or no feedback to ECOs to improve standards.

The report is written in a very balanced and impartial manner and the conclusions are well supported and, when it comes down to it, incontrovertible. At the time of writing there is no UKBA response to the report, unlike for previous inspectorate reports. The silence is perhaps telling.

None of the above comes as news to immigration lawyers or to the unfortunate applicants who have had to apply to Abuja. However, I suspect that the most telling point made in the report is the criticism of poor value for money. It isn’t said anywhere in the report, but the idea of a ‘customer’ has yet to sink in at UKBA, despite the large fees now paid for the cursory examination applications get at the hands of ECOs. Perhaps these inspection reports will slowly begin to shift this attitude.

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

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

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

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

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

News just in: Mr Justice Davis sitting in the High Court has ordered the Home Office to disclose ‘details of the route and destination’ of a proposed removals flight to Iraq. Rumours about this charter flight have been flying and the Home Office have been, unusually, refusing to provide any details of the flight’s destination within Iraq. Mark Henderson, instructed by Refugee and Migrant Justice, has secured an order for information to be given to one applicant and for his removal to be stayed pending compliance with the order.

The Home Office have not complied.

This is a case where the Home Office is trying to have it both ways. In GH v SSHD [2005] EWCA Civ 1182 they argued that the route and destination of removal could not be considered by the tribunal but could be subjected to judicial review when the precise route and destination of removal were decided. Now, they are claiming that there is no need to disclose this information.

Will the Home Office prove unwilling to disclose the information and cancel the flight? Will they seek to appeal the decision to make the order? Will they just provide the information as ordered? Or will they just go ahead anyway and break the law? If I find out, I’ll let you know.

It appears that UKBA have genuinely gone nuts. From tomorrow, 14 October 2009, they are requiring that any further submissions in an asylum case must be made in person by appointment. At the same time UKBA is now requiring that all initial claims for asylum made inside the UK (rather than on arrival at port) must be made at Croydon. It is no longer possible to claim asylum in Scotland, Wales or Northern Ireland, it would seem.

Liverpool Asylum Screening Unit will no longer receive initial claims for asylum, only further submissions for claims made before 5 March 2007. Further submissions in claims made since that date can be made to regional UKBA teams but must still be made in person.

The press release can be found here and a statement by still Immigration Minister Phil Woolas here. There’s also a letter to stakeholders available here and the updated policy instruction is here. A new (non-compulsory) form and guidance is available here.

This really does seem mad. It means that if there is a change in circumstances in the country of origin and the asylum claimant wants to make submissions on it, he or she has to travel to Liverpool. If the asylum claimant receives a new document from abroad, it means a trip to Liverpool to hand it in. This simply isn’t going to happen – Liverpool is a long way from most places and travelling there on asylum support is impossible. Instead the new information will all come out if UKBA attempts to remove someone, at which point the fresh claim will have to be considered. The effect of this change is very likely to be an increase in last minute judicial review claims.

It is worth noting that the new policy does not obviously apply to Article 8 claims based on UK relationships or similar as it specifically refers to asylum cases.

As ever, there was of course no consultation on this. UKBA claims that legal representatives were involved in the drawing up of the non-compulsory further submissions form, but in reality the extent of that ‘involvement’ was simply to say that it was a very bad idea indeed and UKBA should not go ahead.