Personal Immigration

Immigration law update for 6 July to 12 July 2019

Welcome to the Richmond Chambers immigration law update for the week of 6 July to 12 July 2019.   Highlights this week include the Upper Tribunal provides guidance on appealable decisions, permission to appeal requirements and anonymity directions, UKVI has published a list of its decision making offices for out of country applications along with the region and location of application and the Independent Chief Inspector of Borders and Immigration finds 2018-19 was “a particularly difficult year” for the Home Office.

Appeals, administrative review and judicial review 

12.7.2019: Case-law: Sutharsan, R (on the application of) v Secretary of State for the Home Department (UT rule 29(1): time limit) [2019] UKUT 217 (IAC):  The 21-day time limit in rule 29(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for filing an acknowledgment of service in immigration judicial review proceedings begins to run on the day after the person concerned is provided with a copy of the application for judicial review, not on the day it was sent. A copy that is sent by post will be deemed to have been provided on the second business day after it was posted, unless the contrary is proved.

12.7.2019: Case-law: Smith (appealable decisions; PTA requirements; anonymity : Belgium) [2019] UKUT 216 (IAC): (1) A decision by the First-tier Tribunal not to decide a ground of appeal constitutes a “decision” for the purposes of s.11(1) of the Tribunals, Courts and Enforcement Act 2007. It may therefore be appealed to the Upper Tribunal; (2) If an appellant’s appeal before the First-tier Tribunal succeeds on some grounds and fails on other grounds, the appellant will not be required to apply for permission to appeal to the Upper Tribunal in respect of any ground on which he or she failed, so long as a determination of that ground in the appellant’s favour would not have conferred on the appellant any material (ie tangible) benefit, compared with the benefit flowing from the ground or grounds on which the appellant was successful in the First-tier Tribunal; (3) In the event that the respondent to the appeal before the First-tier Tribunal obtains permission to appeal against that Tribunal’s decision regarding the grounds upon which the First-tier Tribunal found in favour of the appellant, then, ordinarily, the appellant will be able to rely upon rule 24(3)(e) of the 2008 Rules in order to argue in a response that the appellant should succeed on the grounds on which he or she was unsuccessful in the First-tier Tribunal. Any such response must be filed and served in accordance with those Rules and the Upper Tribunal’s directions; (4) If permission to appeal is required, any application for permission should be made to the First-tier Tribunal in accordance with rule 33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, within the time limits there set out. This includes cases where the appellant has succeeded on some grounds but failed on others, in respect of which a material benefit would flow (see (2) above); (5) There is, however, no jurisdictional fetter on the Upper Tribunal entertaining an application for permission to appeal, even though the condition contained in rule 21(2)(b) of the 2008 Rules has not been met, in that the First-tier Tribunal has not refused (wholly or partly), or has not refused to admit, an application for permission to appeal made to that Tribunal. Rule 7(2)(a) of the 2008 Rules permits the Upper Tribunal to waive any failure to comply with a requirement of the Rules. The guidance in EG and NG (UT rule 17: withdrawal; rule 24: Scope) Ethiopia [2013] UKUT 143 (IAC) is otherwise confirmed; (6) The Upper Tribunal is, nevertheless, very unlikely to be sympathetic to a request that it should invoke rule 7(2)(a), where a party (A), who could and should have applied for permission to appeal to the First-tier Tribunal against an adverse decision of that Tribunal, seeks to challenge that decision only after the other party has been given permission to appeal against a decision in the same proceedings which was in favour of A; (7) When deciding whether to make an anonymity direction, the starting point is that open justice is a fundamental principle of our legal system. Subject to statutory prohibitions on disclosure, any derogation from that principle should be allowed only to the extent that is necessary in order to secure the proper administration of justice. As a result, just as is the case in other jurisdictions, the parties in immigration proceedings should be named, unless doing so would cause harm, or create the risk of harm, of such a nature as to require derogation from the basic principle. In most cases involving international protection, anonymity of an individual will be required, lest the proceedings themselves should aggravate or give rise to such a risk. That will normally be the case throughout the course of the proceedings, including any appeals.

Application process and practice

10.7.2019: FOI Release: List of UKVI international application points and decision making centres. A table showing UKVI’s decision making offices for out of country applications along with the region and location of application.

9.7.2019: Guidance: Visas and immigration Service and Support Centres.

9.7.2019: News Story: EIN: Law Society says contracted-out visa and immigration services undermine the rule of law and damage UK’s reputation.

Asylum process and practice  

11.7.2019: Guidance: Somalia: updated country policy and information note.

11.7.2019: Guidance: Zimbabwe: updated country policy and information note.

British nationality law 

9.7.2019: JCHR Update: Good Character Requirements: Draft British Nationality Act 1981 (Remedial) Order 2019 – Second Report and Press Notice (9 July 2019)

9.7.2019: News Story: EIN: Parliament’s human rights committee says nationality law ‘good character’ test should not be applied to children.

9.7.2019: News Story: Guardian: Home Office ‘applies good character test to children as young as 10’. Human rights committee says children who have grown up in the UK are being denied citizenship.

Enforcement, detention, removal and deportation

11.7.2019: Case-law: Secretary of State for the Home Department v PG (Jamaica) [2019] EWCA Civ 1213: The Court of Appeal allowed the Secretary of State’s appeal against decisions of the First-tier Tribunal and Upper Tribunal to allow the appeal of a Jamaican national against a deportation order.  The Respondent had a British partner and was a father of six children who had been born in the United Kingdom and were British citizens. He had committed a number of offences relating to controlled drugs. The Court found that the effects of deportation on the family would be ‘necessary and expected consequences’ rather than unduly harsh.

11.7.2019: News Story: EIN: Women For Refugee Women says Chinese women trafficked to the UK are being routinely detained.

9.7.2019: Case-law: Lauzikas, R (on the application of) v Secretary of State for the Home Department [2019] EWCA Civ 1168 (09 July 2019): A claim of unlawful detention by a foreign national prisoner remanded in custody and given a sentence which resulted in his immediate release from prison. 

9.7.2019: News Story: Guardian: Halt ‘inhumane’ Glasgow asylum seeker evictions, Serco urged. Housing provider is expected to enter first premises and change locks in next few days.

9.7.2019: News Story: Guardian: More than 500 victims of trafficking detained in 2018, UK study finds.  Hundreds held in detention centres despite guidance they should be housed and supported.

8.7.2019: Guidance: Returns preparation. Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.

European Union law, EEA free movement, settled status and Brexit 

9.7.2019: Guidance: EU Settlement Scheme: application processing times. Current expected processing times for applications to the EU Settlement Scheme.

8.7.2019: Guidance: EU Settlement Scheme: ID document scanner locations. Locations where you can go to get your biometric ID document scanned if you do not have an Android device with near field communication (NFC).

6.7.2019: Case-law:  Rehman (EEA Regulations 2016 – specified evidence : Pakistan) [2019] UKUT 195 (IAC) (08 April 2019). The principles outlined in Barnett and Others (EEA Regulations; rights and documentation) [2012] UKUT 142 are equally applicable to The Immigration (European Economic Area) Regulations 2016. Section 1 of Schedule 1 to these regulations provides that the sole ground of appeal is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom. The provisions contained in regulations 21 and 42 must be interpreted in the light of European Union law. In some cases, this might involve ignoring the requirement for specified evidence altogether if a document is not in fact required to establish a right of residence.

General requirements of the rules and guidance 

11.7.2019: Guidance: updated list of approved English language tests and test centres.

Immigration control and the hostile environment 

10.7.2019: News Story: Guardian: Home Office ‘not that bothered’ over English tests scandal, MP says.

9.7.2019: News Story: Guardian: MPs to question Home Office officials over English tests scandal. Thousands of students have left or been removed from the UK after being accused of cheating.

6.7.2019: News Story: Guardian: Secret plan to use charities to help deport rough sleepers.   Home Office accused of turning ‘outreach workers into border guards’ as emails reveal new scheme targeting non-UK homeless.

Inspections of border, immigration and asylum services

8.7.2019: News Story: EIN: Independent Chief Inspector of Borders and Immigration finds 2018-19 was “a particularly difficult year” for the Home Office.

OISC

11.7.2019: Corporate Report: OISC Annual Report and Accounts: 2018 to 2019.

Points based system

9.7.2019: Case-law: Kabir v The Secretary of State for the Home Department [2019] EWCA Civ 1162 (09 July 2019).  The Upper Tribunal did not err in law in refusing to admit fresh evidence as to the genuineness of banking documents submitted by the Appellant in his application for leave to remain as a Tier 1 Entrepreneur.   The material did not inevitably resolve the factual issue in the Appellant’s favour, the Appellant had failed to follow the correct procedure in Rule 15(2A) of the Procedure Rules and the new evidence could, with reasonable diligence, have been made available to the FTT on the initial appeal. 

8.7.2019: Guidance: Employer sponsorship: restricted certificate allocations. A list of restricted certificates allocated each month for employer sponsorship in Tier 2 (General).

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