Supreme Court Allows Evidential Flexibility Appeal

On 14 October 2015, a generous Supreme Court allowed four appeals in as many judgments. In Gohil [2015] UKSC 61 and Sharland [2015] UKSC 60, among other things, “opening the floodgates” the court held that Varsha Gohil and Alison Sharland were entitled to have their divorce settlements reopened and seek new payouts because their former husbands had concealed vital financial information during their divorce cases. In Shahid [2015] UKSC 58, the court found that the appellant – who was convicted of the racially-aggravated abduction and murder of a 15-year-old boy – was segregated unlawfully during three separate periods totalling 14 months and that his article 8 rights had been violated. And in the immigration case of Mandalia [2015] UKSC 59, holding that the government’s “high level of pedantry” was “misplaced” the court unanimously allowed a Tier 4 (General) student’s appeal and quashed the refusal of his visa extension application. Presently aged 33, an Indian national, Mr Manish Mandalia entered the UK as a student in February 2008. His visa was extended until 9 February 2012. With just two days to spare, on 7 February 2012 he sought to renew his leave to continue his studies but his application was refused because his bank statements were not as specified by the rules.

Pursuing a two-year certified accountancy course, Mandalia submitted his application with evidence that he had held at least £5,400 for a consecutive period of only 22 days ending no earlier than a month prior to the date of his application whereas the rules underpinning his application exacted that his bank statements needed to show that he had held the said amount for a consecutive period of 28 days. He complained that the evidential flexibility policy, which allowed him to cure his mistake before his application was refused and a decision to remove him was made, was not applied to him. The question for Lady Hale DPSC and Lord Clarke, Lord Wilson, Lord Reed and Lord Hughes JJSC was whether the home office acted unlawfully in refusing Mandalia’s application without first inviting him to provide a further bank statement or statements which showed that he had also held at least £5,400 throughout the missing/preceding six days? Continue reading

Posted in Article 8, Immigration Rules, Legitimate Expectation, PBS, Students, Tier 4, UKSC | Tagged , , , , | Leave a comment

Tier 1 Investor Visas ‘Not Fit For Purpose’

According to Professor David Metcalf OBE, Tier 1 (Investor) visas are “absolutely not fit for purpose” and he said the UK derives “absolutely no gain” from the operation of this golden system of immigration and citizenship for wealthy individuals. Quite paradoxically, these revelations, made by the chair of the independent Migration Advisory Committee (MAC), come off the heels off the government’s concerns that criminals are using the buoyant London property market to conceal their ill-gotten gains. Under fire from the Home Affairs Select Committee on Tuesday 20 October 2015, Metcalf also admitted before MPs that the home secretary failed to consult him prior to launching her failed bid to reduce net migration to the tens of thousands. Things are made even more scandalous by the fact that the British taxpayer is doling out huge sums of money to potentially dodgy foreign businessmen and oligarchs who invest in gilts and are recklessly rewarded with accelerated settlement rights and citizenship over and above the interest money earned from investing in government bonds. Interestingly, Metcalf also backs the controversial minimum income requirements for spouses and suggests a “minimum gross income figure to support a two-adult family of between £18,600 and £25,700”.

So-called Tier 1 “golden visas” are fashionable among the Chinese and Russian elites and Chinese investors (more than 350 in 2013-2014) using the scheme are increasing at an exponential rate. Although the scheme brings billions to the UK in investment its weaknesses are all too apparent to MAC and Transparency International says that the visas are being used to launder money. Metcalf is very concerned that the home office is handing settlement rights out to rich individuals and he also thinks that the UK is paying foreigners for the privilege of acquiring British citizenship. Metcalf’s claims could not have come at a more inopportune moment because the Chinese president Xi Jinping is visiting the UK on a four-day state visit and the two countries have just signed business deals worth £40 billion. The seriousness surrounding the deal-making was so profound that even Labour leader Jeremy Corbyn succumbed to pressure and decided not to engage in political grandstanding by upsetting Xi Jinping – who was clear that opportunity may knock just once and had played hard to get with president Obama Continue reading

Posted in China, Citizenship and Nationality, Immigration Rules, Judicial Review, MAC, Pakistan, PBS, Settlement, Tier 1 | Tagged , , , | 2 Comments

Tier 1 Exceptional Tech Talent Visas

During colonial times, British bayonets and bullets butchered entire populations. The British were notorious for blowing people to bits at the cannon’s mouth. But now British battalions are chicken to pull the trigger in the battlefield against baddies such as the Taliban. So they want a British Bill of Rights to solve the problem. Ministers want to be able to detain people such as Serdar Mohammed – accused of being a bomb-maker – indefinitely in some Afghan hellhole but since the courts said otherwise, the government now wants to derogate from the “ludicrous” European Convention on Human Rights (ECHR) so that the British war machine can confidently enter war zones with a “licence to kill”. Because it has cost the government £150 million to defend thousands of judicial reviews and compensation claims arising out of British misconduct in Iraq and Afghanistan, action is being taken to discipline lawyers making bogus claims and “two human rights firms” have been referred to the regulator to “end the human rights farce”. As promised in Theresa May’s recent speech, rogue lawyers will no longer be allowed to misuse human rights but the army will be permitted to indulge in abuse and torture. Forget human rights, turn to tech!

Although we have entered an era when the kid gloves have come off, there is a brighter side to life outside the ECHR and asylum and the global war on terror. Notably, despite all the gloom and doom, a few foreigners are still welcome but the deal is that you must be an asset to the UK. Clever foreign technology specialists are in high demand and the Tier 1 (Exceptional Tech Talent) scheme caters to them. Tech City UK, the taxpayer-funded organisation designed to promote the UK’s digital technology sector, received 19 applications and approved 17 but it has an annual capacity of 200 annual places. Since there was too much red tape for small companies to cut through, there will be four new ways for foreign technology specialists to satisfy the criteria. Tech City UK’s mission is to attract and secure world-class talent from outside the European Union (EU) and the Tier 1 (Exceptional Tech Talent) scheme will open on 12 November 2015 and the full criteria and application process will go live on that date. Continue reading

Posted in Afghan War, Business, ECHR, Exceptional Talent, Immigration Rules, Iraq, PBS, Tier 1 | Tagged , , , | 1 Comment

Theresa May’s New Crusade

Life should be a fairy tale if you are Theresa May but things are not going according to plan in her Alice in Wonderland world. Although economic and social realities negate everything she claimed in her recent speech at her party’s conference, she could not resist declaring another immigration crusade. The fact that she clearly failed in reducing net migration should be a tipping point in the debate because her inability to curb the influx of foreigners signifies the UK’s skills deficit. However, since delegates paid £250 per head to attend the event, she was under pressure to perform. With adrenaline pumping through her veins at the podium, in a state of total euphoria the home secretary again attacked those without hope who have fled terrible predicaments – as ever, to her refugees are fit and wealthy. Although her pronouncements failed to create the narcotic results she was hoping for, one thing is for sure. In light of her speech, all foreigners are evil and immigrant bashing is the new British fad again. However, since bashing “Pakis” is a decades old tradition in the UK, she added nothing new to the debate and only made herself more dislikeable.

Bewildered by the dehumanising way in which British and European politicians have reacted to persecuted people seeking sanctuary, the UN high commissioner for human rights, Zeid Ra’ad Al Hussein recently drew parallels with 1938 when the free western world limited its intake of Jews fleeing Nazi persecution and arguably even contributed to the Holocaust. David Cameron’s “swarm” remarks and Theresa May’s maxim that immigration makes it “impossible to build a cohesive society” seemed to be at the forefront of his thoughts but he did not name and shame them out of politeness. The UN official urged a closer examination of history and thought that the use of language, even the use of the word “migrants”, made it appear “as if they don’t have rights.” Protesting that “these are human beings”, Al Hussein called upon wealthy European countries to produce a blueprint for the intake of one million Syrian refugees over the next five years. Continue reading

Posted in Access to Justice, Appeals, Article 8, Court of Appeal, ECHR, Immigration Bill 2015, Immigration Rules, Judges, Judicial Review, UKSC, Women | Tagged , , , , | 6 Comments

Former Rogue UBS Trader Kweku Adoboli Loses Deportation Appeal

In comparison to Tom Hayes (who got 14 years’ imprisonment and is appealing his sentence and conviction) and others being prosecuted for benchmark rigging, it is arguably quite scandalous that UBS rogue trader Kweku Adoboli (who was convicted of two counts of fraud and sentenced to seven years’ imprisonment) was released from prison after spending just a bit over three years behind bars for losing $2.5 billion in unauthorised trading. Ghana-born Adoboli – who travelled the world as a child – is said to be the son of a United Nations official/diplomat. Because of his misconduct, the Financial Conduct Authority (FCA) understandably wishes to ban Adoboli, who reckoned he had a “magic touch”, from being a regulated person in financial services. But now it has emerged that Adoboli was notified of his liability to deportation and has lost his appeal in relation to the decision to deport him from the UK. The 35-year old Ghanaian national, who has resided in the UK for 23 years but never got around to obtaining British nationality, was released from prison in June 2015 and reportedly found the immigration tribunal’s decision upholding his deportation to be “heartbreaking”. His rogue trading wiped off £2.7 billion ($4.5 billion) from UBS’s share price.

The media suggests that the former public school head boy and University of Nottingham graduate – holding a degree in e-commerce and digital business studies – plans to appeal the tribunal’s decision. It has been reported that the home office only seeks to deport individuals whose sentence is longer than four years (Immigration Rules, Part 13, Deportation and Article 8, paragraph 398(a)) unless they are able to demonstrate otherwise. (A sentence of four years’ imprisonment or more means the person is a serious criminal and “very compelling circumstances” is an extremely high threshold. As a general principle, the greater the public interest in deporting the foreign criminal, the more compelling the foreign criminal’s circumstances must be in order to outweigh it.) However, under paragraph 398(b) the deportation of a person from the UK is conducive to the public good and in the public interest where they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than four years but at least 12 months. It is common knowledge that anyone who has been convicted of Continue reading

Posted in Article 8, Automatic Deportation, Business, Court of Appeal, Immigration Rules, Tribunals, UKSC | Tagged , , , , , , , , | Leave a comment

New Punishments: Immigration Bill 2015

The onslaught continues. The Immigration Act 2014 promised to root out the ills of the system but now fresh legislation has been proposed to cure things even further and the home office recently announced a welter of new (improved) anti-immigrant measures in the Immigration Bill 2015. For example, in addition to the right to rent checks introduced under part 3 of the 2014 Act, it is now apparent that rogue landlords will be made subject to the new criminal offence of renting to illegal immigrants. Pursuant to the new punishments, the home office will also be able to close any business down for 48 hours for reason of employing illegal workers (illegal migrants in the UK are estimated to be between 420,000 to 860,000 – the Migration Observatory reports). Those hiring illegal workers “will be hit from all angles” said James Brokenshire in August 2015 as he promised to heighten enforcement raids from this autumn. Intriguingly, the Migration Advisory Committee, or MAC, estimates that on average employers can expect one wage enforcement visit from HMRC in 250 years and expect to be prosecuted for failing to pay the minimum wage once in a million years.

Within the measures set out in the new bill – which represent a further crackdown on access to services, enforcement and appeals – businesses will risk losing their licences to sell food and alcohol if they are found using illegal migrants as labour. Such provisions are seen as being in the “best interests of the British people and those who play by the rules.” Not long ago, in 2010, Theresa May and her boss David Cameron plotted a course to reduce net migration to the hundreds of thousands. But then came the rude awakening: instead of receding, net migration soared to new record levels, and data released in August 2015 demonstrated that it stood at 330,000. New economic problems are also afoot. For example, Andy Haldane, the chief economist of the Bank of England (BoE), has been arguing the case for reducing interest rates even further (from 0.5 percent) with the global financial crisis having entered a dreaded third phase. Continue reading

Posted in Access to Justice, Appeals, Article 8, Bank Accounts, ECHR, Economy, Employment, Enforcement, European Union, Human Rights Act, Immigration Act 2014, Immigration Bill 2015, Judicial Review, Politics, Tribunals | Tagged , , , , , , | 1 Comment

Immigration Act 2014: Bank Accounts

Although the Immigration Bill 2015-16 has arrived, the details of the Immigration Act 2014 are still being digested. Apart from rogue employers and landlords, provisions enacted under the 2014 Act also created a system that deals with immigration offenders in relation to bank accounts. These banking provisions hardwired immigration law with the larger discourse of regulating financial services. The Financial Conduct Authority (FCA) is the UK’s famous conduct of business regulator. Like the Prudential Regulation Authority (PRA), a subsidiary of the Bank of England (BoE), the FCA is a creature of statute and owes its existence to the Financial Services Act 2012 which introduced wholesale changes to the UK’s regulatory framework for financial services. Among other things, on 1 April 2013, the 2012 Act abolished and replaced the earlier Financial Services Authority (FSA) with the FCA and the PRA. When he came into office Martin Wheatley, the cashiered CEO of the FCA, unwisely said that in his role as City Sheriff he would shoot first and ask questions later. George Osborne could not renew his contract because of his overt aggression to the financial elite; Wheatley resigned and lamented that he had “unfinished business” to settle. Prior to the 2008 financial crisis, the banks enjoyed a free hand to cheat.

Tracey McDermott (who has been acting as CEO from 12 September 2015) temporarily replaced Wheatley and Andy Haldane (the BoE’s Chief Economist) has been tipped as his permanent replacement. Wheatley bit the dust because the FCA’s clumsy and controversial March 2014 scoop to the Telegraph entitled Savers locked into ‘rip-off’ pensions and investments may be free to exit, regulators will say (about investigating 30 million ancient “zombie” insurance policies) not only destroyed market value (almost £3 billion in just a few hours) and caused market free-fall for companies such as Aviva and Prudential, but also demonstrated his misunderstandings about his own role as regulator. That is where he ended up throwing the axe at his own feet. But later on he candidly accepted that the debacle was a “screw up”. I am only mentioning all this because Continue reading

Posted in Bank Accounts, Court of Appeal, Economy, Enforcement, FSMA, Immigration Act 2014, Immigration Bill 2015, Immigration Rules, Judges, Lady Hale | Tagged , , , , , , | 2 Comments