Residential Tenancies Under The Immigration Act 2014

London is famous for its booming property market. Because of buoyant rents and rising property prices people with money find it easy to profit from buying to let residential property in London. Landlords value rent and anyone who is able to pay high rent will find it easy to get accommodation in the metropolis. Agents generally only ask to see a UK bank account and a valid ID, like a provisional driving licence, for money laundering purposes. Other than that property firms know people value their privacy and find nosey agents off-putting. Therefore, operating in a competitive market, landlords and agents do not investigate their customers’ immigration status. Nearly all the provisions of the Immigration Act 2014 (“the Act”, which aims to create a “hostile environment for illegal migrants”) have raised eyebrows. António Guterres, UN High Commissioner for Refugees denounced the legislation as creating a “climate of ethnic profiling”. The requirements regarding renting property (in Part 3 (Access to Services), Chapter 1 (Residential tenancies), sections 20 – 37) will inevitably stifle business in the property market and have also been condemned as a “valuable tool for racist landlords”.

It had been initially reported that the scheme for landlords to verify tenants’ immigration status will run in just one area before 2015 and the Home Office claimed that:

The measures are intended to make it more difficult for illegal migrants to rent property and thus encourage illegal migrants to regularise their stay or leave the UK.

Further to the above, the scheme is in the process of being rolled out and as of 1 December 2014, landlords in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton should carry out right to rent checks for new tenancy agreements to determine whether tenants have the right to rent in the UK.

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Upper Tribunal Gives Judicial Review Warning

Okondu & Anor, R (on the application of) v Secretary of State for the Home Department (wasted costs; SRA referrals; Hamid) IJR [2014] UKUT 377 (IAC) (20 August 2014)

With more than a thousand claims being filed very month, the Upper Tribunal (Green J and UTJ Gill) has given an all out warning to law firms regarding immigration judicial reviews. In light of the UT’s recent jurisdictional acquisition of the bulk of immigration judicial review cases, Green J considered it good timing to “lay down some markers” in order to control – “act in a manner which is commensurate with their duty towards the Tribunal” – the bad behaviour of law firms. The judges are clearly very angry about the poor quality of work that is being submitted in judicial review cases. They are equally concerned about the low level of disclosure. However, despite the shoddy standard of papers that the judges have had sight of, they did not feel that a weak claim should be a reason for someone not to approach a court for a remedy. In the instant proceedings, two Nigerian nationals, otherwise unconnected to each other, Abdussalam and Okondu, were represented by their respective lawyers who did really poorly in making their clients’ cases and they have therefore been named and shamed in this decision so that others take care to avoid a similar fate.

Abdussalam relied on his health to remain in the UK. He had a weak case and was accused by the Home Office of “remaining here to access free medical care” which he could obtain in Nigeria where he had lived for thirty years. The pre-action assertions of his representatives that he would kill himself if removed did not match the expert’s views (who found the risk of suicide to be “low”). The Home Office found this grossly misleading Continue reading

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Experts and Temporary Leave to Remove from Jurisdiction

AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWFC 2758 is an important case where an arranged marriage broke down and during the course of private law proceedings the mother wanted to take her six year old child to India, a non-Hague Convention country, for a three-week holiday. The mother, who arrived in the UK by virtue of her marriage, did not wish to return to India for good and provided assurances about coming back to the UK after three-weeks. The court considered an expert report used in another, similar, case, from a dually qualified lawyer in Indian and English law. The expert concluded that the father would have to take lengthy court proceedings in India, and that orders made by the High Court in England would be one of many factors weighed in the balance and the Indian courts would inevitably give independent judgment on merits having regard to the welfare of the child.

The family is Sikh. The father feared that once in India by the mother’s family – her father being a sarpanch (an elected head of a village level statutory institution of local self-government, a panchayat or village government) – could use the son as a bargaining tool in support of an attempt to claim some of his family’s land in India. For him, in the event that the mother wished to go and see her family then he and his parents would very gladly care for their son whilst she makes her trip. Continue reading

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Lord Neuberger: the Price of Liberty is Eternal Vigilance

Lord Neuberger PSCOn 26 August 2014, Lord Neuberger of Abbotsbury PSC delivered a speech entitled The Third and Fourth Estates: Judges, Journalists and Open Justice at the Hong Kong Foreign Correspondents’ Club. It can be viewed here and despite the seriousness of the issues he debated, Lord Neuberger nevertheless charmed and humoured his audience during the course of his luncheon address. Genuinely enforceable rights under the rule of law – central to a civilised society – accessible by everyone remained at the heart of his Lordship’s thoughts. “Rights which are unenforceable are as bad as no rights at all,” he said and “the rule of law also requires the honest, fair, efficient and open dispensation of justice,” he explained further. Lord Neuberger made no secret of his view that for the rule of law to prevail, judges must not only be independent, honest, fair, and competent but the public must also perceive them as having these qualities. He said that it was obvious that judicial jobbery fatally undermined the rule of law.

His Lordship moreover clarified that “an incompetent or unfair judge is almost as much of a contradiction in terms as a dishonest judge” and emphasised that the judiciary’s duty of fairness – i.e. the equal application of the law regardless of age, class, gender etc. – is well reflected in lady justice being portrayed as blind in western art. Stressing that the separation of powers between the legislature, the executive and the judiciary (which in addition to being impartial must also be independent from the executive’s meddling, influence and interference) is crucial to the rule of law, Lord Neuberger neatly explained that: Continue reading

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Litany of Forensic Criticisms Unacceptable in Appeals

VHR (unmeritorious grounds) Jamaica [2014] UKUT 367 (IAC)

This is an interesting decision of the Upper Tribunal (Haddon Cave J & UTJ Hanson) where it decided that appeals should not be mounted on the basis of a litany of forensic criticisms of particular findings of the First-tier Tribunal, whilst ignoring the basic legal test which the appellant has to meet. At first instance, the FtT panel had dismissed this appeal involving a Jamaican appellant (A), a forty one year old with children in the UK born out of multiple relationships, who had appealed against the SSHD’s decision to make an automatic deportation order triggered by his conviction for the offence of wounding with intent to do grievous bodily harm committed in July 2010. The UT was hypercritical of legal aid barrister of the year S Chelvan. However, it is noteworthy that Haddon Cave J’s dubious EU law analysis in McCarthy & Ors [2012] EWHC 3368 (Admin) has recently been impeached by AG Szpunar – whose Opinion was also partially criticised by Professor Peers for chasing a “semantic butterfly” – in Case C-202/13 McCarthy.

A claimed he entered the UK in December 2001. He was removed for overstaying in 2004 but re-entered in 2005 and was granted ILR as the spouse of a settled person in 2008. In 2011, while sentencing A to four years’ imprisonment on the basis that his victim would recover, HHJ Roach said the wounding was doubly serious because A not only carried a knife but used it to cause irreversible harm to his victim’s dominant left hand. Continue reading

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Defence of Illegality Inapplicable to Trafficked Nigerian Woman’s Discrimination Claim Says Supreme Court

220px-Mansfield_OldHounga v Allen & Anor [2014] UKSC 47 (30 July 2014)

“A small claim generates an important point”, said the Supreme Court in this intriguing case regarding the circumstances in which the defence of illegality should defeat a complaint by an employee that an employer has discriminated against her by dismissing her in breach of section 4(2)(c) of the Race Relations Act 1976 – subsequently subsumed by section 39(2)(c) of the Equality Act 2010. In January 2007, at age 14, Miss Hounga (H), a Nigerian national, the appellant (in employment rather than immigration proceedings), entered the UK by assuming a false identity under which the UK immigration authorities granted her a visitor’s visa for six months. She came to work (without the right to do so) as a domestic servant for Mrs Allen (A), a dual Nigerian and British national, who “arranged” her entry into the UK. H appealed the Court of Appeal’s decision that her race discrimination claim against A failed because of the illegality of her contract of employment.

H was not paid for looking after A’s children and was seriously physically abused and threatened that if she left A’s house – from where she was ultimately ejected in July 2008 – the authorities would put her in prison because she did not have a visa. Apart from the human trafficking aspect, that lead the Supreme Court to touch upon some international law and jurisprudence, this case also produced significant analysis of contract and tort. Indeed, the towering figure of Lord Mansfield (LCJ, 1756–1788, see 2013 biography Justice in the Age of Reason ) – who famously held that, irrespective of the laws of the colonies, slavery had no legal basis in England and Wales – is also remembered in this judgment (albeit for different reasons). Continue reading

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Advocate General Sharpston: Charter Constrains “Verifying” Asylum Claimants’ Sexual Orientation

In her recent Opinion in Joined Cases C-148/13, C149/13 and C-150/13, A, B and C, AG Sharpston agreed with the view that “an individual’s sexual orientation is a complex matter, entwined inseparably with his identity, that falls within the private sphere of his life.” She observed that homosexuality is not considered a medical or psychological condition in the European Union (EU) and no medical test exists to determine sexual orientation. She considered the pseudo-medical test of phallometry, focusing on the subject’s physical reaction to pornographic material, to be a “particularly dubious” method to confirm homosexual orientation. She thought that any medical examination to confirm sexual orientation violates article 3 (right to integrity of the person) and article 7 (respect for private and family life) of the Charter of Fundamental Rights of the European Union (CFR) and also falls foul of the proportionality requirement under article 52(1). Therefore, AG Sharpston concluded that establishing a gay asylum claimant’s credibility using a medical test is a terrible idea. The question posed by the referring court, the Raad van State (Netherlands), was abstractly expressed in the following terms:

What limits do the Qualification Directive, and the Charter, in particular articles 3 and 7 thereof, impose on the method of assessing the credibility of a declared sexual orientation, and are those limits different from the limits which apply to assessment of the credibility of the other grounds of persecution and, if so, in what respect?

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