Court of Appeal: American Visitor’s Appeal Allowed

PG (USA) v The Secretary of State for the Home Department [2015] EWCA Civ 118 (26 February 2015)

In this case, Elias and Fulford LJJ, Dame Janet Smith allowed Phyllis Gain’s appeal and remitted the matter to the Upper Tribunal in order for the article 8 decision to be remade. Gain, a 76-year old American national worked for the United States Foreign Service between 1965 and 2005. Her daughter’s family, including three daughters, moved to the UK in 2012 because her son-in-law (called Mr Stuck) worked as a minister of religion. Gain had two hip replacements and had fractured her arm. In the USA she moved with her family each time Mr Stuck was transferred to a new church. Her family in the UK had been granted leave to remain until mid-2015 pursuant to the Tier 2 (Minister of Religion) route and hoped to settle in this country. However, Gain’s entry clearance application was refused in June 2012 because she failed to show financial dependence on a relevant relative who was present or settled in the UK and that she did not meet the rules for points-based system dependants as she was not Mr Stuck’s spouse, partner or child.

Gain appealed against the refusal and upon review the Entry Clearance Manager thought that in light of her wealth she could visit the UK to see her family and found a “limited” interference with article 8 ECHR because the decision was justified and proportionate in the interests of maintaining effective immigration control. However, she nevertheless entered the UK as a visitor and in January 2013 she sought to renew her leave on that basis but her application was refused in March 2013 because the decision-maker was (i) not satisfied that as a result of the extension she would not have been in the UK for more than 6 months; and Continue reading

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Article 8 and Public Interest Considerations: Key Features

Dube (ss. 117A-117D) [2015] UKUT 90 (IAC) (24 February 2015)

This was the Home Office’s appeal against the decision of First-tier Tribunal where the judge upheld Dube’s appeal in relation to being refused indefinite leave to remain. Dube was a female Zimbabwean born in 1948 who entered the UK as a visitor in 2002. Her initial attempts to remain in the UK on human rights grounds failed and appeal rights became exhausted in 2005. She overstayed but made further applications for leave to remain in 2010, 2011 and 2012. In response to the application made in 2012, the Home Office did not consider it sufficient reasoning to grant leave to Dube despite the fact that she was HIV positive (diagnosed in 2003) and that she suffered from hyperthyroidism, dizzy spells and memory loss. Similarly, the refusal rejected the claim that she had formed a family life with her children and grandchildren in the UK. Similarly, her assertions that she had ties to the Seventh Day Adventist Church amounted to naught and were immaterial. She had not been in the UK for 20 years and she also accepted that she had family ties with two brothers and a 37-year old son in Zimbabwe.

The refusal maintained that she remained in the UK with full knowledge of her illegal status. She could return to Zimbabwe and continue her activities with her church there. Her health problems could be addressed in Zimbabwe as confirmed by the Country of Origin Service Report. Despite all this, the First-tier judge conducted a freewheeling sort of article 8 ECHR analysis. He concluded that Dube discharged the burden of proof and the reasons given by the decision-maker did not justify the refusal. Applying EB (Kosovo) [2008] UKHL 41, he found that with the passage of time, where a person should have been removed but was not, the importance of immigration control became diluted. Continue reading

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Presidential Guidance on Article 8 and Entry Clearance

Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) (6 March 2015)

The Entry Clearance Officer (ECO, Cairo) appealed the decision of the First-tier Tribunal to allow Mostafa’s appeal against the ECO’s decision in September 2013 to refuse him entry clearance to the UK as a family visitor to visit his wife, a British citizen ordinarily residing in the UK. The refusal of entry clearance related to the ECO’s reservations about Mostafa visiting the UK for a limited period and that he would leave at the end of the visit. The refusal advised Mostafa that his right of appeal was limited to section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002, that the decision was unlawful under section 6 of the Human Rights Act 1998 as being incompatible with Mostafa’s Convention rights. The First-tier judge allowed the appeal on the Immigration Rules but made no finding on article 8, which was “unequivocally” raised in the grounds of appeal and skeleton argument. In mounting his appeal, the ECO argued that was not open to the First-tier Tribunal to consider whether the decision was in accordance with the rules or otherwise in accordance with the law.

McCloskey J and Perkins UTJ said at para 9 that the question of entertaining an appeal on the basis that the decision was not in accordance with the law or the rules did not arise because these grounds were impermissible. On the other hand, as in Mostafa’s case, where an appellant had demonstrated that the refusal of entry clearance interfered with article 8 rights, it was necessary to assess the evidence and see if the substance of the rules had been met the appellant because the potential to satisfy the rules informed the proportionality of the decision to refuse entry clearance. Continue reading

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Supreme Court: Jamaica Generally Unsafe for Gay Community

One LoveR (Brown (Jamaica)) v Secretary of State for the Home Department [2015] UKSC 8 (4 March 2015)

The Home Secretary’s appeal to the Supreme Court, in relation to whether Jamaica should be included on the list of states designated in section 94(4) of the Nationality, Immigration and Asylum Act 2002 (NIAA), was finally dismissed last week. Lady Hale, Lord Sumption, Lord Carnwath, Lord Hughes and Lord Toulson held that since homosexual, bisexual and transsexual persons living in Jamaica were at risk of persecution because of their sexual orientation, the Home Secretary had acted unlawfully by designating Jamaica, under section 94(5)(a) of the NIAA, as a state in which there is in general no serious risk of persecution of persons who are entitled to reside there. Back in June 2013, the Court of Appeal (Pill, Moore-Bick [dissenting] and Black LJJ, see here) held by majority that since it was not in dispute that homosexuals were routinely persecuted in Jamaica it was unlawful for the Home Secretary to include Jamaica in the list of states designated as generally not presenting any serious risk of persecution to those entitled to reside within them.

In the present case, having spent five months in the UK, in October 2010 Brown claimed asylum after overstaying his visitor’s visa. He said that he would be violently persecuted in Jamaica because he was gay. A week after he claimed asylum, Brown was detained under the Detention Fast Track (DFT)/Detention Non-Suspensive Appeals (DNSA) policy which allows the detention of those whose claims are capable of being determined quickly so that they can be removed promptly if they fail. When Brown’s claim was refused and his appeal was pending, he remained in detention for a month or so. But the First-tier Tribunal (FtT) Continue reading

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Kaleidoscopic Changes in Immigration Rules Continue

Statement of Changes in Immigration Rules HC1025 brings further kaleidoscopic changes to the existing abyss of legal nonsense surrounding visas for the UK. Ahead of the impending general election, some unwitting politicians are demanding an “Australian style points-based system” of immigration in the UK. Oddly, claims that there is no points-based system (PBS) at the moment are being aired all the time. It is quite alarming that politicians can make such claims on television because points-based immigration applications, which in distinction to their aim have produced “whirlwind” litigation, were introduced way back in 2008. Indeed, some of the changes in HC1025 are directed at bringing changes to the PBS. As for limits, it is also the case that Tier 2 (General) has been subjected to an annual limit of 20,700 persons, i.e. a “cap”, for some years now. Yet, insofar as political promises are concerned, the attempt to bring net migration down to the tens of thousands has proved to be a fool’s errand.

HC1025 produces multifarious changes in relation to the rules. For example, it streamlines the fifteen existing visitor routes to just four – namely, standard visitors, visitors for marriage or civil partnership, visitors for permitted paid engagements and transit visitor. The changes in the 200 plus page document enter into force at more that half a dozen points in time over the next two months and 27 February, 6 April and 24 April appear to be key dates. Some of the developments create interchangeability of purpose for visitors and enable them to carry out different types of activities on the same visa. Continue reading

Posted in Appendix FM, Asylum, Children, ECHR, Entrepreneurs, Exceptional Talent, Immigration Rules, PBS, Tier 1, Tier 2, Tier 4, Visitors | Tagged , , , | 2 Comments

Immigration Act 2014: New Appeals Regime Rolled Out

Further implementation of the abolition of appeal rights under the Immigration Act 2014 (“the Act”) arrived earlier this month in the form of the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (“the Order”). The implementing legislation should have been simple because it affects people who do not know English as a first language. But instead its intricacies exceed the complexities of legislation related to the Treasury. On the lighter side, as disclosed by the title, the Order is the fourth commencement order produced pursuant to the Act. The effect of the Order is to kill off the right of appeal for certain persons who have been refused further leave to remain under the points-based system, where the application is made on or after 2 March 2015. With some exceptions, the Order also removes the right of appeal for all decisions on applications for leave to remain under the rules from 6 April 2015. The Immigration Rules will allow affected persons to apply for an administrative review as provided for in statement of changes HC1025 (see here).

The Order is composed of three parts and the modifications to the appeals structure are reflected in part 3. Article 2 of the Order, provides that more than a dozen provisions of the Act relating to marriage and civil partnership will enter into force this month. Moreover, article 3 relates to biometric information and article 5 contains a transitional provision about the solemnisation of a proposed marriage in the Anglican Church. The Order observes that the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (“the Commencement Order”, see here) got the ball rolling in relation to provisions relating to removal and appeals. Continue reading

Posted in Appeals, Article 8, Immigration Act 2014, Immigration Rules, PBS | Tagged , , | 20 Comments

TN & MA (Afghanistan): Is JR an Effective Remedy for UASCs?

Like the case of AA (Afghanistan), the cases of TN and MA (Afghanistan) (AP) (Appellants) UKSC 2014/0047 also involve the Reception Directive and regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 which impose on the Home Office the duty to endeavour to trace the members of a minor’s family as soon as possible after he makes a claim for asylum. Of course, TN and MA’s narratives are also related to Afghanistan’s endless war but as discussed below all these cases also involve further legal dilemmas. TN and MA arrived in the UK as unaccompanied asylum-seeking children (or ‘UASCs’). They were granted discretionary leave to remain, until they reached the age of 17½, after they had reached 16½. Since the said leave was for less than a year, the appellants did not enjoy a right of appeal against refusal of their asylum claims under section 83(2) of the Nationality, Immigration and Asylum Act 2002 (NIAA). This situation led them to argue that they were denied an effective remedy, within article 39 of Council Directive 2005/85/EC (the Procedures Directive), by way of appeal.

The appellants equally contended that the limitations of judicial review disadvantaged them and that “corrective relief”, emerging from cases such as Rashid [2005] Imm AR 608 and S [2007] INLR 450, was in issue. They also placed reliance in the Charter of Fundamental Rights of the European Union (CFR). However, the Court of Appeal (Maurice Kay, Beatson and Briggs LJJ) held that UASCs who had been unsuccessful in their asylum claim and were granted discretionary leave at the age of 16½ until they reached the age of 17½ had an effective remedy in judicial review to challenge the initial rejection of their asylum claims. Continue reading

Posted in Afghan War, Asylum, CFR, Children, CJEU, ECHR, European Union, Judicial Review | Tagged , , , | 1 Comment