Immigration law update for 27 July to 2 August 2019
Welcome to the Richmond Chambers immigration law update for the week of 27 July to 2 August 2019. Highlights this week include decisions from the Court of Appeal on the ‘Devaseelan’ guidelines, cessation of refugee status following a change in internal relocation conditions and whether a Certificate of Sponsorship is a document. There is also an interesting new academic research report on immigration judicial reviews.
Appeals, administrative review and judicial review
31.7.2019: Research: ‘Immigration Judicial Reviews: An Empirical Study’ by Professor Robert Thomas and Dr Joe Tomlinson.
30.7.2019: Case-law: The Secretary of State for the Home Department v BK (Afghanistan)  EWCA Civ 1358. A ‘Devaseelan case’ arising from the power in Schedule 2 to the Immigration Act 1971 to revoke a grant of indefinite leave to remain or enter on entry where an immigration officer is satisfied that leave was obtained as a result of either false information given or a failure to disclose material facts. It was accepted by the SSHD that the burden of proof in establishing the falsity of information provided lies on the SSHD and that the standard of proof is the ordinary civil standard but can only be discharged with the production of cogent evidence. It was also accepted that “false” meant dishonest as opposed to merely inaccurate (AA (Nigeria) v Secretary of State for the Home Department  EWCA Civ 773). The case turned on the findings of an Adjudicator in a 2004 asylum appeal and the apparently inconsistent findings of the Upper Tribunal which the SSHD said were not open to the Upper Tribunal applying the guidelines in Devaseelan v Secretary of State for the Home Department  UKIAT 702. The Court of Appeal reviewed Devaseelan and related authorities before finding that various procedural features of the 2004 Decision, coupled with the difficulty of identifying the evidence on which the Adjudicator’s finding was based, entitled the Upper Tribunal, once they had recognised that the 2004 Decision was the starting point, to depart from that starting point and make their own assessment of the evidence before them.
Application process and practice
1.8.2019: Guidance: Correcting an incorrect endorsement: ECB19: Information and guidance on handling visa applications made outside the UK.
Asylum process and practice
1.8.2019: Form: Unaccompanied Asylum Seeking Children: statement of evidence: Use this form to give UK Visas and Immigration information about an asylum claim.
30.7.2019: Case-law: MS (A child) v The Secretary of State for the Home Department  EWCA Civ 1340. The SSHD raised the question of whether for the purpose of article 27 of the Dublin III Regulation a “transfer decision” includes the rejection of a take charge request, which involves no transfer. However, by the time the matter came before the Court of Appeal, the point had become academic because the SSHD had taken the pragmatic step of soliciting a further take charge request which was accepted, resulting in the Respondent being admitted to the UK for his asylum claim to be determined. The Court therefore decided to exercise its discretion not to determine the issue.
29.7.2019: Guidance: Nigeria: updated country policy and information notes.
29.7.2019: Case-law: Secretary of State for the Home Department v MS (Somalia)  EWCA Civ 1345: The SSHD decided to cease the Respondent’s refugee status and subject him to a deportation order. The Respondent’s appeal was allowed by the First Tier Tribunal and the SSHD’s appeal to the Upper Tribunal was dismissed. The SSHD appealed against the Upper Tribunal decision on three grounds: (1) the FTT and the UT erred in concluding that the SSHD cannot “in principle” rely upon the availability of internal relocation as the basis for the cessation of refugee status under Article 1C(5) of the Refugee Convention; (2) the FTT and the UT erred in failing to apply s.72 of the Nationality, Immigration and Asylum Act 2002 to the Respondent’s case, and (3) the FTT erred in concluding that the removal of the Respondent to Somalia would breach the UK’s obligations under Article 3 of the ECHR. Regarding (1), the Court held that in a case in which refugee status has been granted because the person cannot reasonably be expected to relocate, a cessation decision may be made if circumstances change, so as to mean that that person could reasonably be expected to relocate, provided that the change in circumstances is, in the language of the Qualification Directive,”significant and non-temporary”. It followed that the FTT and UT had erred in law in holding that the availability of internal relocation cannot in principle lead to a cessation of refugee status. Regarding (2), the fact of the Respondent’s sentence of at least 2 years was before the FTT and the UT and they were accordingly obliged by s.72 of the 2002 Act to presume that he had been convicted of “a particularly serious crime and to constitute a danger to the community” of the UK when considering the lawfulness of the decision to deport him notwithstanding his status as a refugee. By failing to apply the statutory presumption the FTT and the UT erred in law. Regarding (3), the FTT applied the wrong legal test when deciding whether there would be a breach of Article 3 because it had relied upon and applied paragraph 408 of the MOJ decision, despite the fact that the Court of Appeal had disapproved paragraph 408 in Said v SSHD.
Enforcement, detention, removal and deportation
31.7.2019: News story: UK Parliament Human Rights Committee: Home Office rejects Human Rights Committee’s call for a time limit to immigration detention.
30.7.2019: News story: Guardian: Home Office spent £268k on deportation flights that never flew. Cost covers three-month period during which high court had halted enforced return policy.
29.7.2019: Case-law: Secretary of State for the Home Department v MS (Somalia)  EWCA Civ 1345: See case summary under ‘Asylum process and practice’ above.
29.7.2019: Case-law: HS, R (On the Application Of) v Secretary of State for the Home Department  EWHC 2070 (Admin): The Claimant successfully argued that his re-detention was unlawful because the Home Secretary failed to give true or adequate reasons for returning him to detention. Notably, the substance of the new information justifying his re-detention was not sufficiently communicated to him by checking box e and box 12 on form IS.91R (‘conducive to the public good’ and ‘character, conduct or associations’). This was ‘far too broad’.
2.8.2019: Guidance: Partners, divorce and dissolution: How UKVI recognises a genuine and subsisting relationship and identifies a valid divorce or dissolution of a civil partnership.
General grounds for refusal
31.7.2019: Case-law: Hameed v The Secretary of State for the Home Department  EWCA Civ 1324: The Appellant had been refused leave to remain as a Tier 2 General migrant under paragraph 322(1A) of the Immigration Rules on the basis that the Certificate of Sponsorship (CoS) submitted with his application was a false document. The administrative review decision accepted that the Appellant did not knowingly use deception in his application but maintained the original refusal decision. Appealing against the decision to refuse his application for judicial review, the Appellant argued that it was wrong to find that he had made a false representation under paragraph 322(1A) of the Immigration Rules when he had not acted dishonestly. Applying Adedoyin v Secretary of State for the Home Department  EWCA Civ 773, the Court held that “… a false document is itself dishonest and that fact avoids the need to establish dishonesty or deception on the part of an applicant or another.” The Secretary of State was therefore entitled to refuse the application under paragraph 322(1A). The Court also held that online documents such as CoS are a ‘document’ for the purpose of paragraph 322(1A).
30.7.2019: News story: EIN: Two new reports find victims of trafficking in the UK are not being adequately supported and face detention.
Immigration control and the hostile environment
30.7.2019: Joint Letter: Joint letter to new British Home Secretary on the future of the immigration and asylum system. Over 30 organisations working with migrants and refugees have written to the new Home Secretary to raise a number of pressing issues, which require action if the immigration and asylum system is to regain the trust of the public.
29.7.2019: Press release: Migration Watch: An amnesty for illegal immigrants?. Migration Watch sets out its opposition and invites the public to sign a petition to, “Rule out any prospect of granting an amnesty on illegal immigration”.
28.7.2019: News story: Guardian: Windrush scandal continues as Chagos Islanders are pressed to ‘go back’. British passport holders say they are routinely pressed by council officers to leave the UK
26.7.2019: Briefing: Migration Observatory: Net migration to the UK. This briefing provides an overview of net migration to the UK – defined as the difference between immigration and emigration of people moving for at least a year.
Points based system
1.8.2019: Guidance: Guidance on application for UK visa as Tier 2 worker.
29.7.2019: News story: EIN: New Home Secretary outlines Johnson government’s plans for a skills-based, Australian-style immigration system.
1.8.2019: Guidance: Sponsor a Tier 4 student: guidance for educators: Guide on how to apply for a Tier 4 sponsor licence and how to sponsor a student.
31.7.2019: News story: Guardian: Leave to remain – but no home to remain in after fees treble. Young people who have grown up in the UK being forced into destitution by Home Office fees.
31.7.2019: News story: Guardian: Ijeoma Moore: fighting for the right to stay in the only home she knows. Student has had to pay ruinous fees and jump through multiple hoops just to remain in UK
29.7.2019: News story: Guardian: Overseas students face ‘unacceptable’ visa costs after outsourcing. Universities fear chaos in September as private company struggles with workload.