Immigration

Omotunde (best interests - Zambrano applied - Razgar) Nigeria [2011] UKUT 00247 (IAC)

Fri, 15 Jul 2011 09:17:13 GMT

1. When applying the judgment of the Court of Justice of the European Union in Ruiz Zambrano (European citizenship) [2011] EUECJ Case C-34/09 OJ 2011 C130/2 and that of the Supreme Court in ZH (Tanzania) [2011] UKSC 4; [2011] 2 WLR 148, in relation to the proposed administrative removal or deportation of one or both of his non-national parents, the welfare of a child, particularly a child who is a British citizen, is a primary consideration.

2. National courts must engage with the question whether removal of a particular parent will 'deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen'.

3. Where there are strong public interest reasons to expel a non-national parent, any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality. There is no substantial difference between the human rights based assessment of proportionality of any interference considered by Lady Hale in ZH (Tanzania) and the approach required by Community law.

4. In this particular context, the Article 8 assessment questions set out in Razgar [2004] UKHL 27 should be tailored as follows, placing the assessment of necessity where it most appropriately belongs in the final question dependent on the outcome of proportionality and a fair balance, rather than as part of the identification of the legitimate aim:

1. Is there family life enjoyed between the appellant and a minor child that requires respect in the context of immigration decision making?
2. Would deportation of the parent interfere with the enjoyment of that family life?
3. Is such an interference in accordance with the law?
4. Is such an interference in pursuit of a legitimate aim?
5. Is deportation necessary, proportionate and a fair balance between the rights to respect for the family life of the appellant and the child and the particular public interest in question?

Jahangara Begum and others (maintenance – savings) Bangladesh [2011] UKUT 00246 (IAC)

Fri, 15 Jul 2011 09:14:57 GMT

Where the likely income of a family falls below the level of adequacy as established in the case of KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065 the shortfall can be met where there are sufficient savings. The assessment of the appropriate level of savings is not an arbitrary calculation and the proper reference is to the length of the initial visa. If an appellant is able to meet the requirements of adequacy for the period of the initial visa, and there is no reason to believe that he will not be able to meet the maintenance requirements in the longer term, then he is entitled to entry clearance.

Rana (PBS – Appendix C – overdraft facility) India [2011] UKUT 00245 (IAC)

Fri, 15 Jul 2011 09:12:50 GMT

Proof of the requisite funds for ‘Maintenance’ under the Points Based System is retrospective. For example, a student must show that the funds were available for a continuous period of 28 days before the application for entry clearance or leave to remain was made. If, throughout that period, an overdraft facility could have been used to withdraw the requisite funds, there is nothing in principle or in the Rules to prevent that from demonstrating that the requisite funds were available. PO (points based scheme: maintenance: loans) Nigeria [2009] UKAIT 47, which takes the opposite view, was decided pre-Pankina on the basis of the Policy Guidance.

Ejifugha (Tier 4 – funds – credit) Nigeria [2011] UKUT 00244 (IAC)

Fri, 15 Jul 2011 09:10:57 GMT

The requirement in paragraph 11 of Appendix C of the Statement of Changes in the Immigration Rules HC 395 (as amended) is that the funds be “available”. It is unhelpful to ry to paraphrase that.

Funds required by paragraph 11 of Appendix C can take the form of a credit card limit.

SA (Divorced woman – illegitimate child) Bangladesh CG [2011] UKUT 00254 (IAC)

Fri, 15 Jul 2011 09:08:28 GMT

(1) There is a high level of domestic violence in Bangladesh. Despite the efforts of the government to improve the situation, due to the disinclination of the police to act upon complaints, women subjected to domestic violence may not be able to obtain an effective measure of state protection by reason of the fact that they are women and may be able to show a risk of serious harm for a Refugee Convention reason. Each case, however, must be determined on its own facts.

(2) Under Muslim law, as applicable in Bangladesh, the mother, or in her absence her own family members, has the right to custody of an illegitimate child.

(3) In custody and contact disputes the decisions of the superior courts in Bangladesh indicate a fairly consistent trend to invoke the principle of the welfare of the child as an overriding factor, permitting departure from the applicable personal law but a mother may be disqualified from custody or contact by established allegations of immorality.

(4) The mother of an illegitimate child may face social prejudice and discrimination if her circumstances and the fact of her having had an illegitimate child become known but she is not likely to be at a real risk of serious harm in urban centres by reason of that fact alone.

(5) The divorced mother of an illegitimate child without family support on return to Bangladesh would be likely to have to endure a significant degree of hardship but she may well be able to obtain employment in the garment trade and obtain some sort of accommodation, albeit of a low standard. Some degree of rudimentary state aid would be available to her and she would be able to enrol her child in a state school. If in need of urgent assistance she would be able to seek temporary accommodation in a woman’s shelter. The conditions which she would have to endure in re-establishing herself in Bangladesh would not as a general matter amount to persecution or a breach of her rights under article 3 of the ECHR. Each case, however, must be decided its own facts having regard to the particular circumstances and disabilities, if any, of the woman and the child concerned. Of course if such a woman were fleeing persecution in her own home area the test for internal relocation would be that of undue harshness and not a breach of her article 3 rights.

Begum (EEA – worker – jobseeker) Pakistan [2011] UKUT 00275 (IAC)

Fri, 15 Jul 2011 09:05:17 GMT

(1) When deciding whether an EEA national is a worker for the purposes of the EEA Regulations, regard must be had to the fact that the term has a meaning in EU law, that it must be interpreted broadly and that it is not conditioned by the type of employment or the amount of income derived. But a person who does not pursue effective and genuine activities, or pursues activities on such a small scale as to be regarded as purely marginal and ancillary or which have no economic value to an employer, is not a worker. In this context, regard must be given to the nature of the employment relationship and the rights and duties of the person concerned to decide if work activities are effective and genuine.

(2) When considering whether an EEA national is a jobseeker for the purposes of EU law, regard must be had to whether the person entered the United Kingdom to seek employment and, if so, whether that person can provide evidence that they have a genuine chance of being engaged. If a person does not or cannot provide relevant evidence, then an appeal is bound to fail on this ground.

Rose (Automatic deportation - Exception 3) Jamaica [2011] UKUT 00276 (IAC)

Fri, 15 Jul 2011 09:01:31 GMT

1. The personal scope of the safeguards against expulsion which Article 27 of 2004/38/EC (the “Citizens Directive”) affords to “family members” does not include "other family members"(OFMs).

2. Hence Exception 3 to s.32(4) and (5) of the UK Borders Act 2007 (which arises where the removal of a foreign criminal from the United Kingdom in pursuance of a deportation order would breach the rights of the foreign criminal under the EU treaties [previously “Community treaties”] cannot be invoked by OFMs.

3. However, a person who has been found to be an OFM/extended family member under the Immigration (European Economic Area) Regulations 2006 needs to be considered by the Secretary of State as a person in respect of whom the discretion to issue a residence card under regulation 17 may be exercised.

4. The result of the exercise of that discretion may be that regulations 20-21 apply to the appellant’s removal, and the decision would not be lawful without regard to them.

5. So if consideration has not been given to the exercise of the discretion, the assessment of criteria going to deportation or removal cannot be completed.

Aladeselu (2006 Regs - reg 8) [2011] UKUT 00253 , 28/06/2011

Wed, 13 Jul 2011 14:01:00 GMT

The appellants (all adults) were in the UK unlawfully. They had a maternal cousin who was a Dutch citizen who they had previously lived with in Nigeria and who had been supporting them financially both in Nigeria and in the UK. In 2008, after the appellants had arrived in the UK, the cousin moved to the UK and began exercising her Treaty Rights. The appellants’ applications for Residence Cards as the “extended family members” of the cousin were refused by the UKBA. The Immigration Judge dismissed their appeals: he did not consider any of the appellants could meet the requirement set out in regulation 8 of the Immigration (European Economic Area) Regulations 2006 which stipulate that extended family members must either be accompanying or joining the EEA national sponsor in the UK.

The Upper Tier Tribunal set aside the decision of the IJ and found that:

1. For the purposes of establishing whether a person qualifies as an Other Family Member (OFM)/extended family member under regulation 8 of the Immigration (European Economic Area) Regulations 2006, the requirement that they accompany or join the Union citizen/EEA national exercising Treaty rights must be read as encompassing both those who have arrived before and those who have arrived after the Union citizen/EEA national sponsor.

2. The 2006 Regulations do not impose a requirement that an OFM/extended family member must be present in the United Kingdom lawfully.

3. But in the context of the exercise of regulation 17(4) discretion as to whether to issue a residence card, matters relating to how and when an OFM/extended family member arrives in a host Member State are not irrelevant.

The full determination can be found here:
http://www.ait.gov.uk/Public/Upload/j2387/00253_ukut_iac_2011_ta_nigeria.doc

R (Cart) v Upper Tribunal; R (MR (Pakistan)) v UT & SSHD [2011] UKSC 28

Mon, 27 Jun 2011 11:32:36 GMT

The Supreme Court held that an Upper Tribunal decision refusing permission to appeal to itself from a determination of the First-Tier Tribunal (including in an asylum case as per MR (Pakistan)) is amenable to judicial review in the High Court and that the Court of Appeals' approach in Cart was too restrictive in requiring 'outright excess of jurisdiction' or 'denial of procedural justice'. Rather the test to be applied by the High Court on such a judicial review application should be akin to the 'second appeals test' in that the appeal (or here JR claim) raises an important point of principle or practice or there is some other compelling reason for the court to hear it.

Cvetkovs (visa - no file produced - directions) Latvia [2011] UKUT 00212 (IAC)

Mon, 13 Jun 2011 07:51:59 GMT

The appellant was a stateless person resident in Latvia. He applied for a visa operating as leave to enter to visit his sister who was resident in the United Kingdom. His application was refused and he appealed. He asked for the appeal to be determined on the papers. The respondent failed to provide a respondent's bundle.

Mr Justice Blake took the opportunity to comment on the failure of the respondent to provide a bundle for the entry clearance appeal 'in flagrant breach of the obligations upon him':

6. The respondent's failure to provide the material documents in this case is a clear breach of the obligation on him imposed by rule 13 of the The Asylum and Immigration Tribunal (Procedure) Rules 2005. It is not sufficient to provide the IJ with simply the notice of the decision to which the appeal relates. The application form and any material submitted by the applicant needs to be provided under rule 13(1)(b) as does any other document referred to in the decision pursuant to 13(1)(c). A failure to provide this material is not merely a breach of the respondent's obligation under the Procedural Rules, it will usually frustrate the effective hearing of the appeal. In many cases the appellant himself will wish to rely upon material that he has already provided to the Visa Officer.

...

10. For the future, we consider that Immigration Judges of the First-tier Tribunal, Immigration and Asylum Chamber are entitled to be robust in determining Entry Clearance appeals where the Visa Officer is not satisfied as to the purpose of the visit from the documents produced but fails to provide those documents to the Tribunal.

The Upper Tribunal (Mr Justice Blake and Mr Batiste) held:

1. Where a visit visa application is refused because the Visa Officer is not satisfied of the appellant’s intentions as a result of only limited documents being produced and translated; and the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, directions can be given indicating that unless the respondent complies with the rules it may be that the Tribunal will assume that the appeal is unopposed.

2. Where the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, and the First-tier Tribunal issues a reasoned decision, based on the material before it, allowing the appeal, a challenge by the respondent based on sufficiency of reason is unlikely to prosper on an application for permission to appeal to the Upper Tribunal.

Patel (revocation of sponsor licence - fairness) India [2011] UKUT 00211 (IAC)

Mon, 13 Jun 2011 07:31:57 GMT

The appellant had applied for further leave to remain under Tier 4 of the points-based system with a sponsorship letter from the Lyceum Academy. At the date of application, the Academy was a sponsor approved by the Home Office. The appellant heard nothing more about his application until he received a notice of decision refusing his application on the basis that the Academy had been removed from the list of approved sponsors and he therefore had no sponsorship letter capable of earning him points under the points-based system. According to the appellant's evidence, the Academy had been removed from the list of sponsors that day, or shortly before, and he was wholly unaware of this until he received his refusal letter.

The Upper Tribunal (Mr Justice Blake and Mr Batiste) held:

(1) Immigration Judges have jurisdiction to determine whether decisions on variation of leave applications are in accordance with the law, where issues of fairness arise.
(2) Where a sponsor licence has been revoked by the Secretary of state during an application for variation of leave and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined.
(3) It would be unfair to refuse an application without opportunity being given to vary it under s.3C(5) Immigration Act 1971.
(4) Leave to remain granted by s.3C Immigration Act 1971 is relevant leave for the purposes of the Immigration Rules and the cases of QI (para 245ZX(1) considered) Pakistan [2010] UKUT 217 (IAC) and HM and others (PBS – legitimate expectation – paragraph 245ZX(I) [2010] UKUT 446 (IAC) have been overruled by QI (Pakistan) v SSHD [2011] EWCA Civ 614, 18 April 2011.
(5) Where the Tribunal allows an appeal on the grounds that the decision was not taken fairly and therefore not in accordance with the law, it may be sufficient to direct that any fresh decision is not to be made for a period of sixty days from the date of the reasoned decision being transmitted to the parties, in order to give the appellant a reasonable opportunity to vary his application.
(6) By analogy with the present UKBA policy on curtailment of leave where a sponsor licence is revoked a 60 day period to amend the application would provide such a fair opportunity.

Secretary of State for the Home Department (Respondent) v AP (Appellant) ([2010] UKSC 24 & 26)

Thu, 24 Jun 2010 18:01:20 GMT

The three issues the Supreme Court had to reach a decision on in this appeal were as follows:

1) Whether conditions which are proportionate restrictions upon article 8 rights to respect for private and family life can ‘tip the balance’ in relation to article 5 (which guarantees the right to liberty and security), ie whether they can be taken into account in holding that a control order is a deprivation of liberty when, absent those restrictions, it would not have been held to be such.

2) Whether the judge can take into account subjective and/or person-specific factors, such as the particular difficulties of the subject’s family in visiting him in a particular location, when considering whether or not a control order amounts to a deprivation of liberty.

2) Whether it was permissible for the Court of Appeal to interfere with the first instance judgment on the ground that the judge had relied on findings of fact in respect of article 5 which were inconsistent with his findings of fact in respect of article 8.

MS (Palestinian Territories) (FC) (Appellant) v. Secretary of State for the Home Department (Respondent), [2010] UKSC 25

Thu, 24 Jun 2010 16:56:00 GMT

The appellant was born in Gaza in 1985. Having lived in Libya until about 2002, he then spent time in mainland Europe before arriving in the UK in April 2007. He subsequently claimed asylum and humanitarian protection. On 24 May 2007, the Home Secretary refused the appellant’s asylum and human rights claims. The letter sent by the Home Secretary recorded that a decision had been taken to remove the appellant from the UK and stated:

"If you do not appeal, or you appeal and the appeal is unsuccessful, you must leave the United Kingdom. If you do not leave voluntarily, directions will be given for your removal from the United Kingdom to Palestine National Authority."

The appellant appealed the decision under section 82 (2) (h) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). He did so on the grounds that the decision was ‘not in accordance with the law’ within the meaning of section 84 (1) (e) of the 2002 Act. The appellant argued that this was so because directions for his removal to the Palestinian Territories could not lawfully be given under Schedule 2 of the Immigration Act 1971 (‘the 1971 Act’), since paragraph 8 (1) (c) of Schedule 2 required that there was reason to believe that he would be admitted to the country chosen.

The immigration judge accepted the evidence given in support of the appellant that, owing to his lack of documents and the fact that he did not have any living parents, he would not be admitted to the Palestinian Territories. However, the immigration judge rejected the appellant’s argument that this meant that the decision was ‘not in accordance with the law’ under section 84 of the 2002 Act. The Immigration Tribunal and the Court of Appeal agreed with the immigration judge. The appellant appealed to the Supreme Court.

The Supreme Court unanimously dismissed the appeal. The Court held that there is no right of appeal against an immigration decision under section 82 (2) (h) of the 2002 Act on the ground that the country or territory stated in the notice of the decision is not one that would satisfy the requirements of paragraph 8 (1) (c) of Schedule 2 to the 1971 Act. Sir John Dyson SCJ gave the court’s judgment.

ZN (Afghanistan) (FC) and Others (Appellants) v. Entry Clearance Officer (Karachi) (Respondent) and one other action, [2010] UKSC 21

Thu, 13 May 2010 21:41:11 GMT

This appeal raises the question of which immigration rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and consequently obtained British Citizenship.

Bagdanavicius & Anor, R (on the application of) v [2005] UKHL 38 (26 May 2005)

Thu, 26 May 2005 00:00:00 GMT

The House of Lords held that where an applicant for asylum was resisting deportation, it was not sufficient for him/her to demonstrate that they would be at risk from suffering serious harm from persons or bodies that were not organs of the state. Rather, the applicant must also demonstrate that the state did not provide reasonable protection from such ill-treatment. The fact that such protection would not “obviate” the threat of serious harm was not relevant. The relevant state authorities must take only ‘reasonable’ measures to prevent such persecution from occurring.