New Perspectives on Paragraph 322(5) and ILR

R (Khan) v SSHD (Dishonesty, Tax Return, Paragraph 322(5)) [2018] UKUT 384 (IAC) (3 May 2018)

Migrants in the defunct Tier 1 (General) category used to be a viable source of highly skilled workers for the UK. Since the route was susceptible to abuse the Home Office abolished it altogether. However, that was not enough to please the government and unusually decision-makers began to employ paragraph 322(5) of the Immigration Rules to indiscriminately target to thousands of highly skilled migrants whose only fault perhaps was to contribute positively to the UK’s economy and society. In these judicial review proceedings, Martin Spencer J imparted much needed guidance on paragraph 322(5) and quashed two refusals to grant ILR to Mr Shahbaz Khan who entered the UK on 4 July 2009 as a Tier 1 (General) migrant with his wife and two sons A1 and A2. After an application made in January 2012, him and his dependants were granted leave to remain on the same basis until 16 February 2014. In this application, he claimed that he had earned £36,000 during May 2011 to December 2011 from salaried employment as a director but later in 2012 his tax return only declared a sum of £7,650 for the tax year from April 2011 to April 2012. Then a further application resulted in an extension of leave until 6 February 2017. In July 2016, Khan applied for ILR and a few days prior to that application his accountants reported an error to HMRC for the tax return for 2011/2012.

Malfunctioning software was to blame for the error and later, correcting a discrepancy of £14,719.13 in underpaid tax, an amended tax return was filed. Mr Shahbaz Khan’s first application for ILR was refused on the same day on 20 July 2016. Rejecting the idea that there had been a genuine error, the decision-maker took a grim view of the tax discrepancy and considered that he had under-declared his salary and tax return with HMRC so as to reduce his tax liability or provided a high figure for salary to UKVI in order to boost his chances of points scoring on the immigration side of things. A second application for ILR was made on 22 November 2016 and upon the decision-maker’s request evidence in the form of an accountant’s letter clarified that the earlier reported salary of £7,650 was only for December 2011 (£4,500) and January 2012 (£3,150). The mistake was that the figures of the months from May 2011 to November 2011, the bulk of the gross annual salary of £39,150, had been omitted because of a mixture of clerical errors and software issues. The accountant’s letter very apologetically explained that no ill intention was meant and that a genuine mistake had been made.

Article 8 and Private Life: Supreme Court Confirms Bright-line Interpretation of ‘Precarious’ in Section 117B(5) of NIAA 2002

Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58 (14 November 2018)

In interpreting the meaning of “precarious” in section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (as amended), whereby little weight should be given to a private life established by a person at a time when their immigration status is precarious, the Supreme Court has held that anyone present in the UK who is not a British citizen and who has time-limited leave short of indefinite leave to remain has a precarious immigration status. Lord Wilson disagreed with Sales LJ that some migrants holding limited leave to remain could have an immigration status which was not precarious. Moreover, the Justices also unanimously held that the expression “financially independent” in section 117B(3) means an absence of financial dependence upon the state. The Tanzanian appellant, Ms Rhuppiah, arrived in the UK in 1997 and renewed her student visa a dozen times. She befriended one Ms Charles, a fellow student who suffered from ulcerative colitis. They lived together since 2001 and Ms Charles provided Ms Rhuppiah accommodation in exchange for her care without which Ms Charles would face formidable difficulties and seek state care. When her leave expired in November 2009, Ms Rhuppiah was twice refused ILR because of intermittent periods of overstaying and because of using the wrong form and random changes to the Immigration Rules. The decision-maker also refused her claim outside the rules under article 8 of the ECHR.

Subsequently, FTTJ Blundell dismissed Ms Rhuppiah’s appeal since her private life in the UK had been established at a time when her immigration status had been precarious. He also determined that she was not financially independent as she depended on support from her father and from Ms Charles, who was a skilled systems engineer for the Ministry of Defence. FTTJ Blundell observed that her first ILR application failed owing to the ineptitude of her college. Moreover, her second ILR application was hampered because she used the incorrect form and enclosed the wrong fee and by the time she corrected her mistake the 14-year rule in paragraph 276B(i)(b) she sought to rely upon was deleted on 9 July 2012. FTTJ Blundell accepted that she rightly felt cheated by events. But applying Patel [2013] UKSC 72 he held that a “near miss” was irrelevant and was as good as a mile. Further appeals to the Upper Tribunal and the Court of Appeal failed but Ms Rhuppiah was granted 30 months leave to remain in February 2018 on the basis of paragraph 276ADE(1)(iii) because she had lived continuously in the UK for at least 20 years. This rendered her appeal academic but the Supreme Court heard her case because of the public importance of definitively interpreting the word “precarious” in section 117B(5).

Court of Appeal: Banger is Unrestricted in Scope

Secretary of State for the Home Department v Christy [2018] EWCA Civ 2378 (25 October 2018)

The Court of Appeal recently held that the derived right of facilitation identified in Banger (C-89/17, EU:C:2018:570, discussed here) cannot be read as being subject to the limitations as the derived rights identified in O v Minister voor Immigratie, Integratie en Asiel (C-456/12, EU:C:2014:135). The appeal by the Home Office, which Sales LJ dismissed without hesitation, against a decision to reconsider an application for a residence card shows that the UK authorities are extremely desperate to claw something back from the CJEU’s judgment in Banger. A US citizen, Ms Christy had established a “durable relationship” within the meaning of article 3(2)(b) of the Citizens’ Directive (2004/38/EC) with Mr Jones, a UK national, while they were both residing in Poland. She had initially taught in Slovakia but after meeting him in London the couple decided to move to Poland in 2011 where he worked in a school and exercised his rights of free movement as a worker under article 7(1) of the Directive and the TFEU. The Polish authorities granted her entry and a right of residence under Poland’s ordinary domestic immigration rules and she did not need to seek to rely on any rights she might have as the durable partner of an EU citizen in order to acquire these benefits. It was undisputed that there was a durable relationship, which began and developed in Poland, between the couple. They returned to the UK in 2015 and Christy applied for a residence card.

Her application was refused because she was not married to her partner and so she could not satisfy the requirements of regulation 9 of the then Immigration (European Economic Area) Regulations 2006. Relying on Cain (IA/40868/2013), she said that regulation 9 was incompatible with EU law as articulated in the historic case of Surinder Singh (C-370/90, EU:C:1992:296) because it excluded durable partners. The refusal was maintained but in August 2016 the tribunal ordered that her case be remitted to the decision-maker to consider whether a residence card should be issued in the exercise of discretion. But the matter still proceeded into the Court of Appeal with the government arguing that the tribunal had no jurisdiction to entertain the appeal and that Christy had no entitlement under EU law to reside in the UK or to have her residence here facilitated in accordance with national legislation. SM (Algeria) [2018] UKSC 9 (discussed here) settled the jurisdiction point and Banger enlarged the Singh principle to cover an extended family member (EFM) and where an EU citizen returns to his member state of origin it must facilitate the entry and residence of the third country national non-EU partner with whom the EU citizen has a “durable relationship”.

Ticking the Fee Box: Crucial Guidance on Authorising Payment and Validity of Immigration Applications

Kousar & Ors v Secretary of State for the Home Department [2018] EWCA Civ 2462 (07 November 2018)

Giving guidance on the scope of the earlier Basnet [2012] UKUT 113 (IAC) principle concerning the rejection of applications as invalid, the Court of Appeal has unanimously held that the rejection of an application owing to the applicant’s failure to tick the right box was lawful and the evidential flexibility policy did not apply. Irwin LJ said that the FTT had no jurisdiction to hear an appeal against an application in the Tier 1 (Entrepreneur) category of the Points-Based System (PBS) that had been declared invalid where the applicant had not been able to show that the necessary steps were taken to authorise and effect payment of the application fee because of a failure to tick the correct box authorising the Home Office to take payment. The court took the opportunity to reiterate that the PBS is a deliberately complex set of rules. Significantly, the system is intentionally bureaucratic with the result that “the process of acquiring or demonstrating the acquisition of the relevant points is painstaking.” Prior to attempting to switch into the Tier 1 (Entrepreneur) category, Mrs Shabana Kousar entered the UK as a Tier 4 (General) student in December 2010 and renewed her student leave for a further two years until August 2014. Upon making her last minute Tier 1 (Entrepreneur) application, Mrs Kousar correctly completed the form but she overlooked the essential requirement that she needed to tick the box giving authority for the £1,093 fee to be paid.

No dispute arose about her ability to pay the fee or regarding the fact that her dependant husband and two children’s linked applications did not suffer from this defect. Whereas the last minute Tier 1 (Entrepreneur) application was made on 14 August 2014 – a day prior to the expiry of Kousar’s student leave – the Home Office for once acted dutifully and corresponded with her on 15 August 2014 advising her that the requirements of the relevant fees regulations had not been met and therefore her application was invalid. The clearance of her family’s fees did not matter and the sum of £3,279 was refunded into her account since the main applicant’s application had not been charged owing to the failure to tick the right box. A fresh application, which was refused on the merits, was validly made after Kousar’s leave had run out. She also unsuccessfully challenged the first refusal by way of judicial review and the UT found that she had no right of appeal and that her application was not validly made but that the refusal of the second application on the merits was arguably not unlawful. The judicial review claim was eventually struck out in January 2016 but in December 2014 Kousar had also quietly filed an appeal against the first refusal to the FTT.

Seven Year Rule: Child-Centred Decision By Supreme Court

KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53 (24 October 2018)

The Supreme Court unanimously dismissed these appeals. But thankfully Lord Carnwath’s meticulous judgment clarified wide-ranging misconceptions in the courts below regarding the correct interpretation of sections 117A to 117D of Part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended). Centrally, section 117D(1) defines a “qualifying child” as someone under the age of 18 who is either a British citizen or has lived in the UK for a continuous period of seven years or more. Despite the controversial nature and history of these cases, Lord Carnwath’s short but robust judgment concentrates on simplicity because the novel statutory scheme aims “to produce a straightforward set of rules” on article 8 of the ECHR and public interest considerations. Whereas KO and IT concerned the meaning of “unduly harsh” in section 117C(5), NS concerned section 117B(6) and if parental conduct affects whether it would not be reasonable to expect a qualifying child to leave the UK. AP involved paragraph 276ADE(1)(iv) of the Immigration Rules and whether it would not be reasonable to expect a child with continuous residence of at least seven years to leave the UK. As “foreign criminals” within the meaning of section 117D(2), KO, a fraudster, and IT, a drug dealer, both had British children. The FTT allowed KO’s appeal but UTJ Southern reversed the decision by holding that it would not be “unduly harsh” if the children stayed in the UK with their mother upon KO’s deportation.

After being deported, IT sought the revocation of his deportation order. At first he was unsuccessful but the FTT allowed the appeal on the basis of Sanade [2012] UKUT 48 (IAC) because his British son could not be expected to relocate outside the EU. The UT upheld this reasoning, however the Court of Appeal allowed the government’s appeal by applying a “compelling reasons” test and assessing harshness in light of the “nature of the offending”. Fraudulently produced qualifications were used to obtain leave to remain in NS and Elias LJ held that UTJ Perkins was right to dismiss the appeal by striking the proportionality balance by accounting for parental misconduct. Presently aged 19, AP entered the UK in 2006. The FTT allowed his appeal but then the UT found otherwise. Subsequently, Elias LJ allowed AP’s appeal because of the judge’s overall failure to treat his best interests as “a primary consideration”. The maxim in Zoumbas [2013] UKSC 74 that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” remained Lord Carnwath’s point of departure and he held that Part 5A intends to be consistent with the general principles relating to children’s best interests.

Standard of Proof for Statelessness is Balance of Probabilities

AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234 (12 October 2018)

The Court of Appeal has held that those asserting that they are stateless need to prove their case on the balance of probabilities. But if such persons are for good reason unable to produce documents or apply for nationality in the state with which they were most closely connected, the Home Secretary would make the necessary enquiries. Comparatively speaking, in refugee cases a different and lower standard of proof is appropriate. A national of Guinea, AS clandestinely entered the UK using someone else’s passport and claimed asylum on the basis that he had opposed the Guinean government. He soon descended into drug abuse and resorted to crime to feed his habit and was convicted of robbery and theft in the UK. His asylum application was refused because it was considered that despite his opposition to the government, he was not at real risk of persecution upon return to Guinea. A deportation order was made and he asserted that even though he had been born and brought up in Guinea, he had never held any identity documents or a passport. He claimed to be stateless and the Guinean embassy refused to issue him an emergency travel document because embassy officials could not verify his identity. FFTJ Talbot concluded that AS had made no real attempt to establish his nationality. He had not contacted his family, the college where he studied, the Guinean birth registration authority or any agency for assistance.

In the Upper Tribunal, AS argued that FFTJ Talbot erred by imposing too high an evidential burden upon him and ought to have approached the appeal on the basis that he only had to establish a reasonable degree of likelihood or a real risk that he was stateless. He also complained that since the Guinean embassy did not provide him with an ETD, this key point alone established that he was stateless. The onus was not upon him to do more and FFTJ Talbot had set the bar too high by wrongly imposing upon him an obligation to establish that he was stateless on the balance of probabilities. He also contended that a person’s statelessness is capable of amounting to an exceptional circumstance for the purposes of the Immigration Rules or is at least capable of having a material bearing on whether exceptional circumstances exist. However, the Upper Tribunal (Ockelton VP and UTJ Blum) remained unpersuaded and held that the question whether a person is stateless for the purposes of the Immigration Rules can only be determined by reference to the meaning of that term in the Convention Relating to the Status of Stateless Persons 1954. 

Section 67: Court of Appeal on UASC and Procedural Fairness

R (Help Refugees Ltd) v The Secretary of State for Home Department & Anor [2018] EWCA Civ 2098 (03 October 2018)

So that they may properly challenge adverse decision-making by way of judicial review, the Court of Appeal has held that sufficient and adequate reasons must be given to unaccompanied asylum-seeking children (UASC) who were found to be ineligible for transfer to the UK under the scheme created by the section 67 of the Immigration Act 2016. The arrival of large numbers of UASC from the Middle East and North Africa has caused a humanitarian crisis in Europe. Whereas Citizens UK [2018] EWCA Civ 1812 and AM and Others [2018] EWCA Civ 1815 concerned the lawfulness of the expedited process adopted by the Home Office to assess the eligibility of 2,000 UASC to be transferred to the UK from the Calais Jungle, the present proceedings involved section 67 of the 2016 Act which concerns the relocation and support of unaccompanied refugee children. The provision required the UK to relocate and support a “specified number” of UASC from European countries. After consultation with local authorities, an intake of 480 children was specified. Supported by the AIRE Centre (the Intervener), Help Refugees Ltd, a charity, brought judicial review proceedings challenging the lawfulness of the process of statutory consultation conducted by the executive with local authorities prior to arriving at the “specified number” for the purposes of section 67. Hickinbottom LJ allowed the appeal on the common law fairness duty but rejected the challenge to the legality of the consultation.

Equally under challenge was the adequacy of the reasons given by the British authorities to UASC who were assessed for relocation to the UK under section 67 but were rejected for alleged non-compliance with the relevant criteria. Earlier in Help Refugees Ltd [2017] EWHC 2727 (Admin), the Divisional Court dismissed the challenge in its entirety. Treacy LJ and Ouseley J found that no procedural unfairness arose from the absence of a written decision. Despite the fact that the USAC had been transferred pursuant to a statutory authorisation, the first instance judges opined that the 2016 Act had the clear purpose of being operated swiftly without cumbersome bureaucracy and it contained no provision for a written decision, reasons or formal challenge. In the Divisional Court’s view, section 67 was an unusual provision, involving no application process, no right to transfer if eligible, and no mechanism for comparing the relative merits of those who were eligible, and not all who might be eligible could be transferred. A conventional approach to procedural fairness was not necessary.