“Unduly harsh” and “very compelling circumstances”: Court of Appeal signals simplified approach in deportation cases

AA (Nigeria) v Secretary of State for the Home Department [2020] EWCA Civ 1296 (9 October 2020) 

The Court of Appeal has yet again examined KO (Nigeria) v SSHD [2018] UKSC 53, discussed here, and the meaning of “unduly harsh” and “very compelling circumstances” in section 117C of Part 5A of the Nationality, Immigration and Asylum Act 2002. Popplewell, Moylan, Baker LJJ said that the decision in HA (Iraq) v SSHD [2020] EWCA Civ 1176, discussed here, clarified that Lord Carnwath’s approach in KO (Nigeria) at paragraphs 23 and 27 (that the word “unduly” implies an element of comparison and assumes that there is a “due” acceptable level of “harshness”) does not propose some objectively measurable standard of harshness which is acceptable, but sets a bar which is more elevated than mere undesirability but not as high as the very compelling circumstances test in section 117C(6). The court held that beyond that, further commentary on the phrase “unduly harsh” is of limited value and it said that trying to identify some “ordinary” level of harshness as an acceptable level as regards what may be commonly encountered situations in cases is potentially misleading and dangerous. The court found no reason in principle why cases of undue hardship may not occur quite commonly. The court explained that how a child will be affected by a parent’s deportation will depend upon an almost infinitely variable range of circumstances, pointing out that it is not possible to identify a baseline of “ordinariness”. 

Giving the only judgment, Popplewell LJ was of the view that tribunal judges should not express their decisions by categorisations of degrees of harshness as this complicates the “single and straightforward statutory test”. Judges should identify the factors which are relied on as making the consequences of deportation unduly harsh and evaluate whether cumulatively they do so, being aware that it is an elevated threshold. His Lordship agreed with the judgment in HA (Iraq) that it is not desirable to approach the issue by trying to single out “the norm” and what in the individual case goes beyond that. Popplewell LJ stressed that each case is different “involving a multitude of individual factors, and it is impossible to measure objectively a norm or baseline as the comparator against which the individual case is to be judged.” Mr AA, the 32 year old appellant from Nigeria had no right to remain in the UK and was convicted of supplying Class A drugs and sentenced to 4½ years’ imprisonment. His human rights claim was rejected and a deportation order was made. FTTJ Swaney allowed his appeal as his deportation would disproportionately interfere with the rights of his partner and two children under article 8 of the ECHR. The UT found that the FTT’s decision involved an error of law. It then dismissed AA’s appeal against his deportation order. The key question on appeal was whether the UT was right to conclude that the FTT’s decision was perverse.  Continue reading

Posted in Article 8, Court of Appeal, Deportation, ECHR, Families, Immigration Act 2014, Immigration Rules, Nigeria, Proportionality, Public Interest, Tribunals, UKSC | Tagged , , , , , , , , , | Leave a comment

Syria returnee’s proceedings do not breach right to fair trial

QX v Secretary of State for the Home Department [2020] EWHC 2508 (Admin) (21 September 2020)

“QX” the claimant for judicial review was a British jihadi who had spent time in Syria. He aligned himself with a group that was itself aligned with al Qaeda. He had performed a significant leadership role and continued to engage in activities which posed a risk and a danger to the UK’s national security. QX applied for a review of two of the obligations imposed on him after his return to the UK under a Temporary Exclusion Order (TEO). He challenged the obligations imposed upon him section 9 of the Counter-Terrorism and Security Act 2015, namely (i) a reporting obligation, QX had to report daily to a named police station between specified hours, and (ii) an appointments obligation, QX had to attend a two-hour appointment with a theologian each week and a two-hour appointment with a mentor from the Home Office Desistance and Disengagement Programme (DDP). QX sought an order quashing the obligations, submitting that both these obligations engaged and breached his right to respect for private and family life under article 8 of the ECHR as these were neither necessary nor proportionate. Farbey J had held in an earlier preliminary judgment – QX v SSHD  [2020] EWHC 1221 (Admin) – that article 6 of the ECHR applied to these review proceedings, and that QX and his lawyers were therefore entitled to the level of disclosure in cases that fall within the principles set down by SSHD v AF (No 3) [2009] UKHL 28

Farbey J did not at that stage decide whether the material provided to date met that test. The Special Advocates asked her to rule that the proceedings breached article 6 on the grounds that the AF (No 3) test had not been met. The test as to whether QX had received sufficient disclosure of the case against him in order to have a fair trial under article 6 was set out in AF (No 3) whereLord Phillips held at para 59: “…the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consists of purely general assertions and the case against the controlee is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be”. The test as to whether QX had received sufficient disclosure of the case against him in order to have a fair trial under article 6 was the same as the one under the Prevention of Terrorism Act 2005 in control order cases. Determining the preliminary issue, Farbey J held that the obligations imposed on QX by the SSHD subsequent to his return to the UK while under a TEO were compatible with article 6 of the ECHR. Continue reading

Posted in Article 6, Article 8, Disclosure, ECHR, High Court, ISIS/ISIL, Islam, Judicial Review, Politics, Syria, Terrorism | Tagged , , , , , , | Leave a comment

Home Office loses appeal in Ugandan LGBT asylum case

PN (Uganda), R (On the Application Of) v Secretary of State for the Home Department [2020] EWCA Civ 1213 (28 September 2020) 

The Court of Appeal has dismissed the SSHD’s appeal against Lewis J’s decision in PN v SSHD [2019] EWHC 1616 (Admin), which is discussed here. Furthermore, McCombe, Dingemans and Henderson LJJ allowed part of PN’s appeal against the judgment to the extent of holding that her detention from 10 September to 12 December 2013 was unlawful. Lewis J had held that the dismissal of PN’s appeal against the refusal of her asylum claim had been reached by a procedurally unfair process because her case had been dealt with under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 which did not give her sufficient opportunity to obtain evidence to support her claim. PN sought to set aside the findings of the judge that she was lawfully detained from 29 July to 6 August 2013 and from 10 September to 12 December 2013. The SSHD sought to set aside his finding that the court had, on an earlier occasion, granted PN permission to apply for judicial review to quash the FTT’s decision. The SSHD contended that even if PN was granted permission to apply for judicial review to quash the decision of the FTT, that decision should not have been quashed because in fact the proceedings before the FTT were fair to PN. The SSHD said that the consequential findings of unlawful detention should be set aside. PN was a former Yarl’s Wood detainee who was removed from the UK on 12 December 2013. 

However, five-and-a-half years later, granting relief Lewis J made a mandatory order for the Home Office to use its best endeavours to facilitate PN’s return to the UK so that she could continue with her asylum appeal. PN initially came to the UK as an accompanying child on a visitor’s visa. But she remained in the UK when the visa expired and became an overstayer. She was arrested in July 2013 and detained. She then claimed asylum on the basis that she would be at risk of persecution in Uganda because she was a lesbian. She claimed that she did not know who her mother was, and her father had died young. She said she had been brought up by other members of her family and sexually abused and raped as a child. PN claimed she had had lesbian relationships as she was growing up in Uganda. It was common ground that in Uganda lesbians are persecuted on the grounds of their sexual orientation but the SSHD disputed PN’s claimed lesbianism and refused her asylum claim. Her appeal was dealt with under the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005. Her appeal was dismissed by the FTT and the UT refused permission to appeal. She became appeal rights exhausted and then made further submissions, which included an affidavit from a woman Rose (R), also Ugandan, who said she had been in a lesbian relationship with PN. Her fresh claim was rejected and she was removed to Uganda until a series of events led to Lewis J ordering her return. Continue reading

Posted in Access to Justice, Article 3, Asylum, Court of Appeal, ECHR, Human Trafficking, Judicial Review, Law Society, Persecution, Refugee Convention, Removals, Tribunals, UKSC, Yarl's Wood IRC | Tagged , , , , | Leave a comment

Lahore High Court ruling on forced conversion to Islam

In Nasira v Judicial Magistrate and 5 others Writ Petition No. 45156 of 2019/PLD 2020 Lahore 489, the Lahore High Court granted a petition under Article 199 of the Constitution of Pakistan 1973 by a Christian woman called Nasira where she sought her 14-year-old daughter Pumy Muskan’s recovery from the alleged illegal custody of her “employers” and prayed that they be dealt with in accordance with the law. Nasira’s husband was serving a jail sentence in a criminal case. She was left to support a large family all by herself by working in different houses and enlisted her daughter for some household work and chores. Her daughter’s employers had promised not only to pay for her needs but also to provide education. When Nasira went to meet Pumy Muskan she was told that she was with the employer’s sister in another city and had embraced Islam and did not want to see her mother anymore. Upon Nasira’s protests, the employers turned her out of their house. The police refused to help her and she turned to the local Christian leader, Mr Mushtaq Gill, who intervened and informed the Station House Officer (“SHO”, a policeman) that the incident had tormented the Christian community and urged him to recover Pumy Muskan. The SHO was reluctant at first but agreed to produce her before the judicial magistrate in Sargodha and her employers were also in attendance. The SHO said that Pumy Muskan had converted to Islam. 

He also requested that she should either be handed over to her mother as she was a child or be sent to the Dar-ul-Aman (shelter home). The magistrate took the child’s statement who expressly stated that she did not want to go with her mother. So he lodged her in the shelter home. When Nasira requested the superintendent of the shelter home to allow her to see her daughter, he flatly refused. Later the mother learned that the superintendent had also released her on the magistrate’s order and she was restored to the employers’ custody upon. Nasira approached the Lahore High Court with her Article 199 petition for the restoration of custody to her. Through her counsel, Nasira submitted that her daughter had been forcibly converted her to Islam through inducement and undue influence and she was merely a child who was incapable of make an informed decision to change her religion. She further submitted that even if she had consented to it the change was of no legal consequence and argued that even if Pumy Muskan’s conversion was recognised and declared valid, Nasira was her mother and could not be deprived of her custody. Indeed, it was apparent that so as to enthusiastically support the conversion of a Christian girl the Pakistani authorities had not only ignored the Injunctions of Islam but also the law of the land. Nasira prayed to the court that her daughter’s custody with her employers should be declared illegal and she may be returned to her lawful custody. Tariq Saleem Sheikh J agreed with Nasira. Continue reading

Posted in Article 9, Asylum, Children, Conversion, ECHR, Families, Foreign law, Guardianship, India, Islam, Lahore High Court, Pakistan, Persecution, Tribunals | Tagged , , , , , , | Leave a comment

High Court of Sindh on Pakistan and the Hague Convention

The case of Mst Farhat (Petitioner) v Umair Hanif Ghanchi and Others (Respondents) 2019 CLC 1311 Sindh is an early example of the High Court of Sindh grappling with the issues connected to the Hague Convention on the Civil Aspects of International Child Abduction 1980 to which Pakistan has aligned itself (discussed here and here). Fahim Ahmed Siddiqui J held that if the actions of the father had amounted to “parental abduction” then the Hague Convention would play a part in bringing the child back to Pakistan. The mother’s petition was dismissed by the High Court of Sindh. She was aggrieved by the Additional Sessions Judge-VIII, Karachi South’s order to dismiss her application for habeas corpus under section 491 (Power to issue directions of the nature of a Habeas Corpus) of the Code of Criminal Procedure. Mst Farhat was a divorcee with three children and she married again and had a son, Master Raem Ahmed, with Mr Umair Hanif Ghanchi and she had custody of the child from his birth. Mr Ghanchi was a businessman who spent most of his time in Dubai for business purposes. The couple then fell out badly. Mst Farhat left the house along with her children. However, they entered into a family settlement and the father was allowed to take custody of the son as and when he would visit Karachi. The father then arrived in Karachi and he secretly removed the child to Dubai without the mother’s permission. 

The mother went to the police. Consequently, she became aware that the father obtained an ex parte Guardian Certificate from the Family Court fraudulently and provided an incorrect address for her. He produced a no objection affidavit given by her, a document which bore her forged signature. She then approached the court filing an application under section 12(2) of the Civil Procedure Code 1908 which was decided in her favour. Thus the Guardian Certificate issued to the father was cancelled and the Guardian and Wards application was also dismissed. The mother simultaneously filed an application under section 491 for the production of her son before the court and to hand over the custody of the child to her. But her application was dismissed. She argued that at the time of filing of the habeas corpus petition, her son was only six years old, as such he was within the period of Hizanat, and his custody was with her. This, she said, was the outcome of jurisprudence of the Supreme Court of Pakistan, i.e. PLD 2004 Supreme Court 1 and 2015 SCMR 731. She submitted that her anxiety that her son would be removed from Pakistan was not even considered and the Family Court gave the right to remove the child from Pakistan without even a prayer from the father in that regard. The fact that the Family Court’s judgment was dismissed in light of her legal challenge did not prevent her son’s removal to Dubai. Continue reading

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Court of Appeal clarifies asylum bars in child abduction cases

G (A Child: Child Abduction) [2020] EWCA Civ 1185 (15 September 2020) 

The Court of Appeal has held that Lieven J (the High Court Judge) had been wrong to stay proceedings on the basis that there was a bar to determining an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 as, contrary to the facts as she had been given, no independent application for asylum had been made by or on behalf of the child. In any event, there was no bar to determining the application or even to making a return order, as opposed to implementing any such order. The appellant father, a national of a European Union Member State (EUMS), appealed against an order staying his application against the respondent mother for the immediate return to South Africa of their only daughter “G” pending a determination by the SSHD of asylum claims made by the mother and, as Lieven J understood it, by G. In 2006, the father met the mother, a South African citizen who had described herself as coming from “a very traditional African family”. They married in 2010 and G was born in 2012. She had dual EUMS/South African nationality, but was always habitually resident in South Africa. The mother claimed that the father was controlling and sexually and racially abused her. He denied the allegations. The mother had some mental health issues which she blamed on the father’s alleged behaviour and abuse. A child arrangements order was made following their divorce and they shared full parental rights. 

In March 2020, the mother removed G to the UK without the father’s consent and claimed asylum on the basis of fear of persecution because she was a lesbian and claimed she had been threatened by her family as a result of her sexual orientation. The SSHD mistakenly believed that an application for asylum had also been made on G’s behalf. The mother had opposed the father’s application under the Hague Convention by raising the issue of grave risk to the child and the child’s own objections. Lieven J held that the Hague Convention application should be stayed until the SSHD had determined G’s asylum application. The SSHD later confirmed that no asylum application had been made by G herself, but only by the mother with G as her dependant. The father submitted that Lieven J had erred (i) in considering that any form of refugee status was an absolute bar to return under the Hague Convention, (ii) by breaching article 11 of the Convention in not acting expeditiously in G’s return back to South Africa, and (iii) in also failing to consider G’s own status within the asylum claim. The father’s appeal, which was allowed, raised important issues concerning the interplay between obligations of the state under the Hague Convention as incorporated by the Child Abduction and Custody Act 1985 and, alternatively, under immigration law including the Refugee Convention 1951 and the relevant European Directives. Continue reading

Posted in Article 8, Asylum, Child Abduction, Children, Court of Appeal, ECHR, Families, Habitual Residence, Hague Convention, High Court, Immigration Rules, International Law, Lady Hale, Pakistan, Refugee Convention, Removals, South Africa, Spouses, UKSC | Tagged , , , , , , , , , , , | Leave a comment

Court of Appeal reviews the meaning of “unduly harsh”

HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 (04 September 2020) 

The appeals of HA and RA, both Iraqis, concerned the terms of Part 5A of the Nationality, Immigration and Asylum Act 2002 (especially section 117C), and the deportation rules set out in Part 13 of the Immigration Rules. The Court of Appeal found no reason in principle why cases of “undue” harshness may not occur quite commonly under section 117C(5), which addresses article 8 and additional considerations in cases involving foreign criminals. The court clarified the effect of KO (Nigeria) v SSHD [2018] UKSC 53, discussed here, and the meaning of “unduly harsh”. It held that the child’s British citizenship must be weighed in the balance and explained that the statutory threshold may be met in cases where the foreign criminal’s partner works full-time. The provision in section 117C(5) states “Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.” According to the Court of Appeal, there is no reason why undue harshness should be a rarity in deportation cases. Furthermore, Underhill LJ addressed why Lord Carnwath had been virtually silent on the statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The court took the opportunity to examine the relationship between and NA (Pakistan) v SSHD [2016] EWCA Civ 662 and KO (Nigeria). It allowed both appeals. 

HA and RA had entered the UK in a clandestine manner in 2000 and 2007 aged 20 and 14 respectively. HA entered into a relationship with a British woman NT and they had three British children. They all lived together. NT already had a daughter who lived nearby and was involved with the life of the family. HA did not work but NT had a full-time job. HA was sentenced to sixteen months’ imprisonment for assisting unlawful immigration and possessing an unlawfully obtained immigration card, and also of an offence of failing to surrender to custody. He was attempting to arrange the illegal entry of his mother and his brother into the UK. A deportation order was made against him six years after his release from custody. RA’s claim for asylum was refused but he was granted discretionary leave which was not extended. However, RA married a British citizen, of Kurdish Iraqi descent like himself, KI with whom he had a British citizen daughter Y. KI and Y had visited RA’s mother in Erbil, in the Iraqi Kurdish Region. RA was convicted, and pleaded guilty, of an offence under section 4 of the Identity Documents Act 2010 and was sentenced to twelve months’ imprisonment. Originally from Kirkuk, he was sent a forged Iraqi passport by his mother so that he could visit her in Iraq. But the forgery was detected when he presented the passport for travel. He was said to be of good character and he received maximum credit for his guilty plea. His deportation was sought. The FTT allowed both appeals but the SSHD appealed in both cases. Continue reading

Posted in Article 8, Asylum, Automatic Deportation, Children, Citizenship and Nationality, Court of Appeal, ECHR, Families, Immigration Rules, Iraq, Lady Hale, Parliament, Proportionality, Public Interest, Removals, Spouses, Tribunals, UKSC | Tagged , , , , , , , , , , , | Leave a comment

Passports: Foreign law must be proved by expert evidence

Hussein and Another (Status of passports: foreign law) [2020] UKUT 250 (IAC) 

CMG Ockelton VP has explained that (i) a person who holds a genuine passport, apparently issued to him, and not falsified or altered, has to be regarded as a national of the State that issued the passport, (ii) the burden of proving the contrary lies on the claimant in an asylum case, and (iii) foreign law (including nationality law) is a matter of evidence, to be proved by expert evidence directed specifically to the point in issue. The appellant Mr Hussein, who had permission to appeal, and the applicant Mr Abdulrasool, who was seeking permission to appeal, were father and son who made asylum claims, which were refused. The applicant, who was born in 2000, additionally claimed that he was so dependent on his parents that it would be disproportionate to remove him from the UK. Mr Hussein’s wife and two minor children were included in the appellant’s claim as his dependents. Both men gave their oral evidence in a hearing before FTTJ McAll in January 2020 as did Mr Hussein’s brother. The SSHD was not present and FTTJ McAll considered Mr Hussein’s claimed history in detail. He decided that he was untruthful and concluded that he had fabricated important parts of his account supporting his asylum claim. He decided that Mr Hussein was a national of Tanzania and could be returned there. He disbelieved the asylum claim and concluded that there was no good article 8 reason why he should not leave the UK and return to his country of nationality. Both appeals were dismissed. 

Upon the father and son’s applications for permission to appeal, the former was granted permission whereas the latter was not. Notably, the permission judge’s reasons were not intelligible. She was considering grounds of appeal that did not challenge the judge’s primary findings as to credibility and fact. The grounds challenged FTTJ McAll’s reasoning leading to his conclusion that the appellant was a national of Tanzania and challenged his conclusion that he did not appreciate that although over 18 the applicant had been treated as a dependant of his parents for article 8 purposes. The appellant’s nationality was the principal question and it was clear that he was born in Somalia and he entered the UK using a Tanzanian passport but later claimed that he was not entitled to a Tanzanian passport. The fact of his Tanzanian nationality would render is asylum claim wholly unmeritorious. He would not be persecuted in Tanzania. On the other hand, he argued that his asylum claim should be considered on the basis that he is a national of Somalia. Moreover, he said that he should not in any event be returned to Tanzania as he might have to suffer the consequences of his claimed fraudulent acquisition and ongoing use of a Tanzanian passport. It was his second Tanzanian passport that was used to enter the UK and it was claimed that the appellant Mr Hussein obtained both of his  fake Tanzanian passports (issued in 2017 and 2005) by bribing members of the Khoja Shiah Community in Kenya. Continue reading

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A look at the new Home Office adoption guidance 

The new guidance Adopted children and children coming to the UK for adoption (Version 1.0) was published by the Home Office on 23 July 2020. It informs decision-makers how to decide applications for leave to enter or remain in the UK either as an adopted child or a prospective adopted child under the age of 18 under paragraphs 309A to 316F of Part 8 of the Immigration Rules. The new guidance applies to applications for entry clearance to, or limited or indefinite leave to enter or remain in, the UK as (i) the adopted child of a parent or parents present and settled in the UK or being admitted for settlement in the UK, (ii) the adopted child of a parent or parents given limited leave to enter or remain in the UK, (iii) a child for adoption, and (iv) a child for adoption under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993. The guidance explains that together with the relevant rules it covers, it forms part of the full arrangements for ensuring that the Home Office will give practical effect to the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of a child in the UK, and article 3 of the UN Convention on the Rights of the Child, i.e. the consideration of the child’s best interests must be a primary consideration in any immigration decisions affecting them.

Decision-makers are reminded that they should consider whether there are exceptional circumstances that warrant a grant of leave outside the rules. And decision-makers must demonstrate that a consideration has taken place of all the information and evidence provided in the application concerning the best interests of a relevant child. They must carefully assess the quality of any evidence provided. Original, documentary evidence from official or independent sources will be given more weight in the decision-making process than unsubstantiated assertions about a child’s best interests. It is stated in the guidance that officials must bear in mind that adoption is a complex area and the guidance itself is not fully reflective of every combination of circumstances and overseas law. Accordingly, decision-makers must be open to making further enquiries as to the substantive nature of the relationships involved. The new guidance relates to both intercountry adoptions and overseas domestic adoptions. UK adoption law requires there to be a full transfer of parental responsibility to the adoptive parents and for the child to be legally the child of the adoptive parents. In matters where the adopted child still retains normal ties with the natural parents, the application will not satisfy the requirements of the Immigration Rules and so the decision-maker/ECO must consider any exceptional circumstances on article 8 of the ECHR grounds warranting the grant of leave or entry clearance outside the rules. Continue reading

Posted in Adoption, Adoption Convention, Article 8, Children, Citizenship and Nationality, ECHR, Families, Habitual Residence, Immigration Rules, Nationality, s 55 BCIA, Settlement, UKSC | Tagged , , , , , , , , | Leave a comment

Principles and practice of adoption law in Pakistan

Pakistan is not party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 and adopting a child in Pakistan is a long, difficult, and legally-complex process. Observably, the Guardians and Wards Act 1890 governs the rights and interests of minors in Pakistan. Moreover, Pakistani law and Islamic Sharia law, upon which Pakistani family law is based, does not allow for adoptions of Pakistani children in Pakistan. Adoption is not a valid mode of filiation in Islamic law. According to Pakistan’s laws, prospective adoptive parents who are non-Muslim may not be appointed guardians of Muslim children and non-Christians may not be appointed guardians of Christian children. Children abandoned at an Islamic orphanage are deemed Muslim unless there is evidence to the contrary. In general, adoptions are a community matter in Pakistan and the country has no express statute which provides for the adoption of children. People often opt for informal adoptions according to their faith, outside the family courts. However, such informal adoptions do not meet the requirements in Western countries for granting an immigration visa to an adopted child. Prospective adoptive parents must therefore comply with their own national immigration law and applicable provisions of the colonial Guardians and Wards Act 1890 in Pakistan. Not all children in orphanages or children’s homes are adoptable and many are in an orphanage only temporarily owing to financial or other hardship. The biological parents of such children would not have consented to their child’s adoption.

For a foreigner to be legally matched with a child, the law in Pakistan requires that an orphanage should be licensed under the relevant local laws. In addition, Pakistani law requires that guardianship of a Pakistani child be appointed by the competent authority (i.e., the family court having jurisdiction) in compliance with domestic law/procedures and in interesting proceedings known as Mrs Ingrid Pereira and Another (Petitioners) v Additional District Judge (Karachi) and Others 2012 PLD 208 Karachi, we can see all the dilemmas for the adopting parents. This was a case involving adoption and section 7, section 10 and section 26 of the Guardians and Wards Act 1890. The facts were that Mrs Ingrid Preira, wife of Mr Terence Preira and Mr Terence Preira, (the petitioners), real sister and brother-in-law of late Carol Bob through their attorney Mrs Lilly Rose Francis, applied to the Family Judge at Karachi South for their appointment as legal guardians of two children, namely Whitney Ingrid Lourdes Bob and Britney Davina Mary Bob. Sadly, however, their application was dismissed on the ground that the father of the children was alive and there was no sufficient or cogent reason for appointment of the petitioners as their guardian. Aggrieved by such an order, the petitioners appealed but their appeal was dismissed by the IV-Additional District Judge, Karachi South upholding the order of the family judge. The petitioners then had to attack those orders in a constitutional petition which was granted by Salman Hamid J. Continue reading

Posted in Adoption, Adoption Convention, Cases, Children, Habitual Residence, Human Trafficking, International Law, Karachi, Pakistan, United States | Tagged , , , , , , , | Leave a comment

How do Pakistani courts approach child abduction cases?

What can be said about the approach taken by the Pakistani court’s in child abduction cases? Little is known about this topic and of course since Pakistan is a new entrant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 it has not yet had the chance to develop any jurisprudence on it. However, some pre-Convention decisions are still very helpful in that regard and establish guiding principles. In the case of Misbah Rana/Molly Campbell, Writ Petition No.9730 of 2006, decided on 29 November 2006 by the Lahore High Court, Mian Saqib Nisar J (as he then was, later the Chief Justice of the Supreme Court of Pakistan) gave two judgments. The first of these was Ms Louise Anne Fairly v Sajjad Ahmed Rana PLD 2007 Lahore 293. The second was Ms Louise Anne Fairly v Sajjad Ahmed Rana PLD 2007 Lahore 300. The principle of “judicial comity” was key and Pakistan was not a pariah state. Mian Saqib Nisar J noted that Sajjad Ahmed Rana’s solicitors refused to act for him and the Scottish Court was equally unimpressed with him. Mian Saqib Nisar J recorded that he examined and interviewed Misbah Rana/Molly Campbell in his chamber. Despite the fact that she wanted to live in Pakistan, in his view “the reasons given by her that she is being prevented by the petitioner [mother] to lead her life in lines and according to the Islamic virtues seems to be tutored.”

He furthermore remarked that “at present, she is under the influence of respondents and therefore, much weight and importance cannot be given to her opinion.” The brief facts of the case were as follows. In Scottish proceedings, the Scottish Court had directed Sajjad Ahmed Rana, the father, not to remove Misbah Rana/Molly Campbell from the care and control of her mother, Louise Anne Fairly. However, despite the restraining order, he did remove his 12 year old daughter to Pakistan. This had resulted in the mother invoking the constitutional jurisdiction of the Lahore High Court to seek custody of the child. Mr Rana resorted to raising the plea that since the child professed Islamic faith, therefore, it was not in her welfare to be returned to Scotland because the culture and norms there were fundamentally in contradiction to the Islamic injunctions behind which he sought refuge (albeit unsuccessfully) for his misdeeds. Molly/Misbah was a British citizen and moreover a citizen of Pakistan by descent under section 5 of the Pakistan Citizenship Act 1951. The case was infamously seen in light of the “clash of civilisations” thesis. The Muslim father with a long beard, who looked like a mullah from Pakistan, had indeed abducted his half Scottish daughter and dragged her all the way to Punjab for a forced marriage. The mother was a white woman who converted to Islam and the couple had four children, whom they brought up as Muslims. Continue reading

Posted in Child Abduction, Children, Families, Forced marriage, Guardianship, Hague Convention, Islam, Lahore High Court, Muslims, Pakistan, Racism, Scotland, Spouses | Tagged , , , , , , | Leave a comment

US accepts Pakistan’s accession to the Hague Convention

On 22 December 2016, Pakistan deposited its instrument of accession in relation to the Hague Convention on the Civil Aspects of International Child Abduction 1980. This made Pakistan the 96th Contracting State to the Convention which entered into force for Pakistan on 1 March 2017. Pakistan became the first South Asian and the fourth Muslim country to align itself with the principles of the Convention and on 25 September 2017 the Ministry of Law and Justice took action to ensure that the family courts are in a position to entertain international child abduction cases concerning custody, orders passed by foreign courts and judgments from Contracting States of the Hague Convention. On 1 July 2020, the US State Department announced that the United States of America accepted Pakistan’s accession to the Hague Convention which will enter into force between the United States and Pakistan on 1 October 2020, and will put in place an internationally recognised legal framework so as to resolve cases of parental child abduction between these two countries and it is said that the two countries will act in partnership to enhance their “shared commitment to protecting children” so as to “open a new chapter in the vibrant US-Pakistan relationship.” The Convention is crucial to deterring international abduction and securing the return of abducted children and the US State Department states that preventing and resolving cases of international parental child abduction is one of its highest priorities.

Parents seeking access to their children in treaty partner countries may also invoke the Convention. The Convention addresses where child custody issues should be decided and it provides a mechanism under civil law in either country for parents seeking the return of children who have been wrongfully removed from or retained outside of the country of their habitual residence in violation of custodial rights. After having accepting Pakistan’s accession, the US has has 80 partners under the Convention and the State Department’s Office of Children’s Issues is the Central Authority for the US under the Convention. In Monasky v Taglieri 140 S. Ct. 719 (2020), an important judgment, the Supreme Court of the United States decided that a child’s habitual residence under the Convention depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents. The Supreme Court of the United States also followed previous precedent in its review of cases arising under the Convention by considering the text of the Convention, the history of the drafting and negotiation of the Convention, and the views of the sister-state signatories. The Court specifically rejected the existence of categorical requirements in order to determine the habitual residence of a child, even if an actual agreement exists between parents for establishing the habitual residence of an infant. Continue reading

Posted in Child Abduction, Children, Family Court, Guardianship, Habitual Residence, Hague Convention, International Law, Lady Hale, Pakistan, UKSC, USSC | Tagged , , , , , , , , | Leave a comment

Court of Appeal on Nikah and non-qualifying ceremonies

HM Attorney General v Akhter & Ors [2020] EWCA Civ 122 (14 February 2020) 

This was an important judgment which was given earlier in the year. The Court of Appeal held that an Islamic ceremony of marriage which was not performed in line with the formalities required by the Marriage Act 1949 so as to create a valid marriage under English law was a “non-qualifying ceremony” – which did not create even a void marriage. Etherton MR and King and Moylan LJJ found that it had long been recognised that some ceremonies would not create even a void marriage, and the legal rights guaranteed by the the European Convention on Human Rights did not change that outcome. The Attorney General appealed against a decision of Williams J to pronounce a decree nisi of nullity that had been made pursuant to section 11(a)(iii) of the Matrimonial Causes Act 1973. Nasreen Akhter (petitioner, a trainee solicitor) and Mohammed Shabaz Khan (respondent, a car salesman) had a Nikah ceremony – an Islamic ceremony of marriage conducted by an Imam – in December 1998 at a London restaurant. The Nikah certificate – not produced until 2006 – had recorded the name of Akhter’s father as the Wali and was signed by him and recorded the names of two witnesses. Earlier in Akhter v Khan [2018] EWFC 54, Williams J doubted the respondent’s real intentions, he was satisfied that the parties agreed that the Nikah ceremony would eventually be followed by a civil marriage ceremony and found that they understood that – without a civil ceremony – their marriage would not be legally recognised. 

The Imam told the petitioner’s father that because the Nikah was not “registered”, a civil ceremony was necessary in order for the marriage to be legally recognised. She knew of this and was concerned that her rights were not protected and told the respondent that they would be treated as cohabitees. However, no civil ceremony ever took place despite the petitioner’s concerns. She raised the issue with the respondent on a number of occasions and indeed soon after the Nikah had occurred. The couple had four children. The family lived in England and also in Dubai but their marriage ended and the parties separated in 2016 and Akhter petitioned for divorce which Khan defended, the Attorney General intervened in the proceedings. The issue was whether the 1998 Nikah ceremony created a “non-marriage”, or whether it created a void marriage as regards which a decree of nullity could be pronounced, thereby entitling Akhter to apply for financial remedy orders. It was the view of Williams J that a holistic approach was appropriate to interpret section 11 of the of the Matrimonial Causes Act 1973 flexibly, taking into account the rights of the couple and their children under article 8 of the ECHR. Williams J judged that the couple’s failure to conduct the necessary civil ceremony was not a deliberate failure to comply with the formalities required by the 1949 Act resulting in a non-marriage. It was only a failure to comply with “certain” formalities, permitting him to hold that the marriage was void. Continue reading

Posted in Article 12, Article 8, Divorce, ECHR, Families, Family Court, Human Rights Act, Islam, Nikah, non-marriage, Pakistan, Spouses, UKSC | Tagged , , , , , , , | Leave a comment

Court of Appeal refuses to reopen paragraph 322(5) appeal

R (Akram) v Secretary of State for the Home Department [2020] EWCA Civ 1072 (12 August 2020)

The Court of Appeal has refused to reopen the appeal of a Pakistani Tier 1 (General) Migrant who had been refused indefinite leave to remain (ILR) on the basis of five years’ residence pursuant to paragraph 245CD(b) read with paragraph 322(5) of the Immigration Rules. Mr Saud Akram arrived in the UK with leave to enter as a student which he later extended. On 1 April 2011, he applied for further leave to remain as a Tier 1 (General) Migrant and declared that, from 16 March 2010 to 15 March 2011, he had total earnings of £38,267.58, i.e. £14,212.58 salaried earnings from Medina Processing Limited and £24,055 self-employed earnings trading as SA Party Decorators & Catering. His claimed earnings were supported by bank statements, accounts and an accountants’ letter. For his claimed level of earnings, he was awarded 20 points which was sufficient for the purposes of obtaining further leave to remain. Yet in his tax return for the year 2010-11, he oddly declared only £734 earnings from self-employment. His application was granted and his leave was extended to May 2016. In April 2016 he applied for ILR on the basis of five years’ residence but made no claim under article 8 of the ECHR. To catch up with the anomalous £734 declaration, Mr Akram used a revised tax calculation, dated 21 April 2016, for the year 2010-11 which meant that he paid HMRC tax of almost £5,000. 

The change aligned the income he had earlier declared to the SSHD for that year. He also provided confirmation from HMRC of his declared income for tax purposes and tax paid for the period 2008-2009 to 2016-2017. He completed a questionnaire accompanying his application in which he explained that the discrepancy in his declared income for 2010-11 and its recent correction was due to a typing error which he “got amended & updated & tax paid”. The decision-maker refused the ILR application applying paragraph 245CD(b) read with paragraph 322(5), the former paragraph provided that an applicant must not fall for refusal under the general grounds for refusal, which include paragraph 322(5), as a ground upon which leave to remain “should normally be refused”. The decision-maker said that during the premium appointment Mr Akram completed a questionnaire regarding his economic activities and his earnings from employment and in answer to question 9 he answered “yes” to him being satisfied that the self-assessment tax returns he submitted to HMRC accurately reflected his self-employed income. The retrospective attempt to alter the level of claimed earnings with HMRC was insufficient to satisfy the SSHD that he had not previously been deceitful or dishonest in his dealings with HMRC. Continue reading

Posted in Appeals, Article 8, Court of Appeal, Hostile Environment, Immigration Act 2014, Immigration Rules, Judicial Review, Pakistan, Paragraph 322(5), PBS, Settlement, Tier 1, Tribunals | Tagged , , , , , , | Leave a comment

Tribunal’s guidance on paragraph 322(5) and accountants

Ashfaq (Balajigari: appeals) [2020] UKUT 226 (IAC) (17 June 2020) 

In relation to paragraph 322(5), Ockelton VP has found that (i) if the SSHD’s decision of the carries a right of appeal, the availability of the appeal process corrects the defects of justice identified in Balajigari, (ii) in an earnings discrepancy case there is no a priori reason to suppose that any of the declared figures is or was accurate, in particular, the fact that a person is now prepared to pay a sum of money to HMRC does not of itself prove past income at the level claimed, and (iii) any accountant’s explanation said to have made or contributed to an error is essential as the allegation of error goes to the accountant’s professional standing and without evidence from the accountant, the Tribunal may consider that the facts laid by the SSHD establish the appellant’s dishonesty. Mr Ashfaq appealed to the FTT against the SSHD’s refusal of his ILR under paragraph 322(5) because of an earnings discrepancy problem. In the present context, the appeal was against the refusal of ILR on the basis of 10 years’ lawful residence, under paragraph 276B. The reason for the refusal was not that the basic requirements of paragraph 276B were unmet, but owing to paragraph 322(5). Ockelton VP noted that in Balajigari v SSHD [2019] EWCA Civ 673 (discussed here and here), the SSHD said the official policy and practice is only to use paragraph 322(5) where the discrepancy is the result of deliberate misrepresentation either to HMRC or to the Home Office, i.e. only where it is the result of dishonesty. 

Balajigari concerned judicial review challenges since no no right of appeal arose against the refusals and the court held that paragraph 322(5) is not limited to cases of criminal conduct, threats to national security, war crimes or travel bans, despite the fact that the dishonest submission of false figures to the Home Office or HMRC would be criminal conduct. Consequently, paragraph 322(5) could properly and lawfully be used against an applicant who had made different statements of his income for the purposes of obtaining leave and for the purposes of tax. However, the applicant’s conduct must be dishonest in the sense contemplated by Rix LJ in Adedoyin v SSHD [2010] EWCA Civ 773 and it was insufficient merely to demonstrate that the concerned statements (or one or more of them) were factually inaccurate. Moreover, the misconduct must be sufficiently serious to merit refusal in these terms and “the rule is only concerned with conduct of a serious character” and the dishonest and deliberate submission of false earnings figures would satisfy the threshold, wherever that were to be pitched. Indeed, the SSHD is not obliged to make further enquiries with HMRC, and the lack of action by HMRC does not conclude the matter in an applicant’s favour. Continue reading

Posted in Appeals, Article 8, ECHR, False Statements and Misrepresentations, Immigration Rules, Judicial Review, Pakistan, Paragraph 322(5), PBS, Settlement, Tier 1, Tribunals | Tagged , , , , , , , , | Leave a comment

Immigration bail policy is systemically unfair 

R (Humnyntskyi & Ors) v Secretary of State for the Home Department [2020] EWHC 1912 (Admin) (21 July 2020) 

In these three conjoined judicial review claims, Johnson J declared that the SSHD’s policy for the provision of accommodation pursuant to Schedule 10 of the Immigration Act 2016 to individuals granted immigration bail is systemically unfair. The SSHD is also fettering her discretion by not specifying in version 4 of the policy that the categories of case capable of amounting to exceptional circumstances were not limited to the three categories mentioned in earlier versions whereby the power may be exercised only if the SSHD thinks that there are exceptional circumstances to justify doing so. The guidance said that the power to enable bail conditions and provide accommodation may be exercised if the SSHD thinks that there are exceptional circumstances to justify doing so and that exceptional circumstances will normally justify providing accommodation in SIAC cases, harm cases and article 3 ECHR cases. Mr Humnyntskyi had been detained for a period of 16 months pending his deportation from the UK and the delay in his deportation occurred largely because he gave a false name and nationality. Conditional orders for bail, subject to a residence condition, were not effective because he did not have suitable accommodation and the SSHD did not provide accommodation and he was deported to Ukraine. Mr Humnyntskyi  had sought a declaration that he was unlawfully detained, but not damages. “A” was detained for a period of 11 months and a grant of bail, initially subject to a residence condition, was not effective because A did not have suitable accommodation and the SSHD did not provide it. 

Later A was released on bail without any residence condition and he was homeless for a period of 15 months (and street homeless for 10 months). In these proceedings an order was made for interim relief requiring the SSHD to provide accommodation which was provided, but A was not moved to the accommodation until eight days after the final date for compliance with the order. He sought a finding that the SSHD had breached his rights under article 3 of the European Convention on Human Rights relating to the prohibition on inhuman or degrading treatment. “WP” was detained for a period of 4 months and any requests for accommodation did not receive a favourable response. WP withdrew a bail application because of the lack of accommodation and owing to her concerns about being homeless. In these proceedings, an order was made for interim relief requiring the SSHD to provide accommodation which was provided to her. WP sought damages for unlawful detention. On 15 January 2018 – when the 2016 Act entered into force – internal policy guidance on the provision of Schedule 10 accommodation was promulgated by the SSHD.  Addressed to caseworkers, it is primarily focussed on foreign national offenders (FNOs), a term not defined in the guidance. It covers persons like Mr Humnyntskyi and A who are being deported from the UK following the commission of a criminal offence. Continue reading

Posted in Article 3, Bail, Court of Appeal, Deportation, ECHR, Immigration Act 2016, Judicial Review, UKSC | Tagged , , , , , | Leave a comment

Court of Appeal avoids jurisdictional elephant trap costs order 

JH (Palestinian Territories) v UTIAC & Anor [2020] EWCA Civ 919 (17 July 2020)

The Court of Appeal has allowed a Palestinian appellant’s appeal, and dismissed the SSHD’s cross-appeal, against an order of the Administrative Court that there should be no order for costs in respect of his judicial review claim. “JH” unsuccessfully claimed asylum and humanitarian protection in the UK. But the FTT allowed his humanitarian protection appeal related to the humanitarian situation in the Gaza Strip and it refused his asylum appeal. Permission to appeal against those decisions was granted to both JH and the SSHD. JH later applied to the UT for permission to rely upon amended and extended grounds of appeal but the UT refused permission and JH sought permission to seek judicial review of the UT’s refusal. The SSHD failed to file an an acknowledgement of service, but corresponded with the Administrative Court asking it to consider the case without an acknowledgement of service because the relevant law was settled and that judicial review should not be available according to the principles established in R (Cart) v Upper Tribunal [2011] UKSC 28. The Administrative Court refused permission and upon appeal Sales LJ (as he then was) granted permission to appeal against the refusal to grant permission. He identified an important point of principle, namely that a lesser standard of proof should have been applied in JH’s asylum claim. The grant required that the parties should promptly invite the court to consider assigning the judicial review claim to the UT with a view to the claim being heard together with the appeal for which permission had already been granted. 

Notably, neither party requested a hearing under CPR 54.7A(9)(a), or the assignment of the judicial review to the UT in accordance with the judge’s comments. The decision to refuse permission to amend the grounds was quashed by HHJ Pearce pursuant to CPR 54.7A(9)(b). The order was silent as to costs and JH applied to vary it to award him the costs of the judicial review claim. The Administrative Court ordered detailed assessment of A’s legally aided costs but made no order as to costs, holding that the SSHD was an interested party, but had taken no steps in the litigation and was not liable for JH’s costs in line with R (Gudanaviciene) v FTTIAC [2017] EWCA Civ 352. The decision was made before R (Faqiri) v UTIAC [2019] EWCA Civ 151 and became the subject of the present appeal. Meanwhile, JH’s case was remitted to the UT and the matter was resolved and the SSHD agreed to grant JH leave to remain. The SSHD and JH both withdrew their appeals against the FTT’s determinations. JH argued that for an order for costs to be made in the same terms as the order endorsed in Faqiri was a worthless outcome in this particular case, and likely to be made in error in similar cases in future, by virtue of a jurisdictional elephant trap, which was not fully argued before the court in Faqiri. The SSHD disputed that there was any jurisdictional impediment to the type of contingent costs order made in Faqiri, which effectively provided for “costs in the appeal”. Continue reading

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The Hong Kong British National (Overseas) Visa

A person who had been a British overseas territories citizen by connection with Hong Kong was able to register as a British National (Overseas) (BN(O)) before 1 July 1997. This was to recognise the UK’s special and enduring ties with such persons as a result of its historic role in Hong Kong. The UK argues that China’s decision to impose its national security legislation on Hong Kong breaches the 1984 Sino-British Joint Declaration, thus subverting the “one country, two systems” framework. China regards itself as a superpower and thinks of this century as the Chinese century. The clash of civilisations is all too apparent and the UK has no choice but to oppose the Communist Party of China (CPC) which believes that political freedom must be subservient to economic necessity and national security. The CPC looks at things differently when it comes to Hong Kong which was wrestled away from the Qing Dynasty by the British during the First Opium War in which the great British Empire legitimised the opium trade by invoking the principles of free trade. China suffered economically. Opium addiction was rife as a result and the British victory marked the beginning of the “hundred years of national humiliation” (1839 to 1949) when the western powers, Russia and China dominated China. It is against that background that the present problems in Hong Kong arise and things are bound to get worse. Consequently some three million BN(O) passport holders and their dependents will be allowed to move to UK for five years and then apply for settlement. 

According to the Home Office, the creation of the new bespoke Hong Kong BN(O) Visa route, demonstrates the UK’s commitment to BN(O) citizens in Hong Kong. The BN(O) citizens coming to the UK will have access to the job market at any skill level and without meeting any salary threshold. On the other hand, they will not have any access to public funds. Persons who arrive in the UK under the route will be able to apply to settle in the UK and apply for indefinite leave to remain once they have lived in the UK for five years and they will then be able to apply for British citizenship after holding ILR for 12 months. Applicants will not need to have a valid Hong Kong BN(O) passport but will need a valid passport to show proof of identity. Notably those born after 1 July 1997 were not eligible to become BN(O)s having been born after the UK’s handover of Hong Kong. A BN(O) citizen can come to the UK as a visitor for up to six months without a visa, or apply for an existing UK visa route, and  eligible BN(O) citizens who are unable to satisfy the Immigration Rules may be granted Leave Outside the Rules at the border. Eligible BN(O) citizens will be able to switch to the Hong Kong BN(O) Visa route once it is open, from within the UK. Continue reading

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Global Talent, Start-up, Innovator and Graduate Visas 

The Home Office is keen to emphasise that the UK wants to attract only the best and brightest talent from around the world. On 20 February 2020 the Global Talent route was launched under the current system for non-EU citizens, so as to improve the UK’s attractiveness to highly skilled individuals with specialist skills. The route reformed and replaced Tier 1 (Exceptional Talent) and is designed to attract recognised global leaders, and tomorrow’s leaders in science, humanities, engineering, the arts (including architecture, film and fashion design) and digital technology. This is with a view to enriching the UK’s knowledge, economy and society. Top scientists and researchers are able to benefit from a quicker endorsement process as part of a fast track STEM scheme. Moreover, a cross-departmental unit called the Office for Talent will be set up in order to make it easier for leading global scientists, researchers and innovators to come and live and work in the UK. For the Global Talent route applicants must be endorsed by a recognised UK body, as approved by the Home Office. Individuals can apply the following endorsing bodies who will verify their expertise before they can apply for a visa, The Royal Society, for science and medicine, The British Academy, for humanities, The Royal Academy of Engineering, for engineering UK Research and Innovation, for science and research, Tech Nation, for digital technology and Arts Council England, for arts and culture.

Once endorsed, subject to criminality and immigration checks, migrants are given a highly flexible permission, enabling them to work for employers or be self-employed. They are allowed to change jobs without informing the Home Office and travel abroad and return to the UK for research purposes and bring dependants with them. There is no limit on the number of eligible individuals who can use the Global Talent route which will be open to both EU and non-EU citizens. Individuals internationally recognised at both the highest level and as leaders in their particular field, or who have demonstrated promise and are likely to become leaders in their area. The Fast-track Science, Technology, Engineering and Mathematics scheme will facilitate access for top scientists and researchers, who will enhance the intellectual and knowledge base of the UK, a fast-track endorsement process is available to EU and non-EU citizens and to benefit from this offer, persons must be (i) in receipt of a named award or fellowship, (ii) in a senior academic position, such as a professor or associate Professor, within an eligible higher education Institution, research organisation or institute, and (iii) part of a publicly funded research team that in receipt of prestigious funding or awards. Continue reading

Posted in Economy, Global Talent, Graduate, Immigration Rules, Innovator, PBS, Start-up, Students | Tagged , , , , | 1 Comment

Skilled Workers and the new PBS 

In order to qualify for the new Skilled Worker visa, applicants must pass the mandatory UK criminality checks and will need to meet the following mandatory criteria, they must have a job offer from a licensed sponsor and they must speak English to an acceptable standard. This will also be applicable to EU citizens. While there is no cap on the number of people who can rely on the new PBS, applicants must satisfy the points scoring requirements of the new system. The job must be at or above the minimum skill level: RQF3 level or equivalent (A-level or equivalent qualification). Workers will not need to hold a formal qualification. It is the skill level of the job they will be doing which is important. Meeting the mandatory criteria above will earn the applicant 50 points and in relation to “tradeable points”, applicants must obtain a further 20 tradeable points through a combination of points for their salary, a job in a shortage occupation or a relevant PhD. If the applicant is paid the higher of the general salary threshold of £25,600 or the “going rate” for their particular job, they will get an extra 20 points. Scope exists to earn the required extra tradeable points even if the applicant is paid less than the general threshold or the going rate, provided they are paid at least £20,480. That being the case, the applicant may earn points if they have a job offer in a specific shortage occupation as recommended by the MAC or a PhD degree relevant to the job.

There are also different minimum salary rules for workers in certain health or education jobs, and for “new entrants” at the start of their career. The salary requirement for new entrants will be 30% lower than the rate for experienced workers in any occupation. However, the minimum of £20,480 must always be met. The Home Office will retain the ability to widen the number of attributes that will score tradeable points to enable the government to meet the needs of the economy. Notably, the mandatory requirements will not be tradeable. Individuals of all nationalities (except British and Irish) who have a confirmed job offer, and whose employment will be sponsored by a UK employer who is Home Office licensed, can apply to work in specified occupations (at RQF3 or equivalent and above). In relation to the “going rate”, it is noteworthy that these rates are based on the 25th percentile of earnings in the UK data drawn from the Annual Survey of Hours and Earnings (ASHE) which is updated annually by the Office for National Statistics, normally at the end of October. Continue reading

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