04-12-19 – Consequences of missing the EU Settlement Scheme deadline

If you are planning to apply for the EU Settlement Scheme there is an application deadline, meaning that if you miss the deadline to apply for a post-Brexit status you will be unlawfully resident in the UK. It is not clear what will happen to people who have not made an application by the deadline. It is possible that the government may remove them from the UK. According to the Home Office people who miss the deadline for “a good reason” will still be able to apply. So far, no details have been given as to what makes a good reason. In the Home Office guidance covering late applications from non-EU nationals one can find a restrictive good reasons policy. Examples include hospital admission for emergency treatment or a close family bereavement. This restrictive policy applies to migrants who already know the conditions of their immigration status, including the date on which it expires. The situation with the EU citizens who have come to live in the UK, some of them many years ago, under free movement law and whose right to live in the UK was never conditional on a status being granted by the Home Office is very different. Under these strict rules, Settlement Scheme applicants will have to account for and possibly provide evidence for their delayed applications, even though they may never have been aware of the need to apply for settled status. Potentially, such people, may be denied their access to the NHS, benefits, employment and accommodation as well detained and even sent out of the country. It may also hinder their application, as unlawful residence is considered a criminal offence in the UK. Any Home Office policy on late applications should be in the spirit of its June 2018 statement of intent, according to which securing EU citizens’ rights is and always has been a top priority. Penalising those who fail to apply within the deadline can hardly been seen as a way to secure these top priority rights. An alternative approach is to make the EU Settlement Scheme a declaratory scheme rather than by way of application. Organisations such as JCWI and the3million are campaigning for a declaratory scheme as a way to automatically guarantee the right to remain, so people need only register and not apply to prove their residence status. Under such a scheme, if the EU residents miss the registration deadline they will be considered as undocumented and not unlawful. This would be the only sure way to avoid another Windrush scandal.

04-12-19 – Home Office’s fee waiver policy is challenged in the Upper Tribunal

The Upper Tribunal is to consider a legal challenge to the government’s policy on immigration fee exemptions. The Home Office’s policy has been strongly criticised as it wrongly focuses on whether migrants would be made “destitute” by the fee, when the correct test should be whether they can afford to pay or not. According to the Home Office guidance the applicants for a fee waiver need to show that one of the following three circumstances apply: 1. They are destitute 2. They would be made destitute by the payment of the fee 3. There are exceptional circumstances If none of the above can be demonstrated, the waiver application will be refused. And without payment, the main application for leave to remain will be rejected as invalid. That is what happened to the family of five involved in this case, whose leave to remain fees amount to over £7,000. They provided evidence that they cannot afford this but were not able to establish destitution because they have somewhere to live. The family’s solicitors, Duncan Lewis, argue on the family’s behalf that this focus on outright destitution is unlawful. The correct test should be a simple affordability: do they have the money or not? The Home Office says that the policy is compatible with the leading cases of Omar [2012] EWHC 3448 (Admin) and Carter [2014] EWHC 2603 (Admin). Saul Stone of Duncan Lewis says that “if we are successful in this case, or are able to secure changes to the policy through settlement, it is likely to be beneficial for a large cohort of people”.

02-12-19 – The new Home Office policy on statelessness

Background on statelessness Back in 2013 the Home Office introduced a statelessness determination procedure introducing Part 14 to the Immigration Rules. Eligible stateless people can regularise their immigration status and access some of the benefits guaranteed under the 1954 Convention on the Status of Stateless Persons. Under Part 14, applicants can be recognised as stateless and granted leave to remain in the UK. If granted leave to remain under Part 14, stateless people can reunite with their families on a similar basis with refugees and have access to nearly the same benefits as refugees. In April 2019 Part 14 was amended, bringing in the following main changes: • The duration of leave granted to persons under Part 14 was extended from two and a half to five years. • Paragraph 407 was amended to require that those granted indefinite leave to remain under Part 14 have had five years leave to remain as a stateless person, rather than a combination of different types of leave as had previously been possible. The most substantial changes • A new section introducing changes in how the Home Office should deal with applicants who have outstanding asylum claims and permitting, for the first time, asylum and statelessness applications to proceed in parallel in some circumstances. • The section on “General grounds for refusal” adds a helpful requirement that even where the general grounds apply, the caseworker “must still consider whether an applicant meets the definition of a stateless person”. If the applicant is stateless and inadmissible to any country (with a right of permanent residence), the Home Office may need to grant leave outside the Rules. The new section on “Further leave applications” also confirms that where the applicant is stateless and not admissible to any other country, but the general grounds apply, the caseworker “should look to grant leave outside the Rules”. • Changes to the administrative review procedure. These confirm that where caseworking errors are found on administrative review and the case is returned to the statelessness determination team, the case should go to a different caseworker. The new caseworker should reconsider it within three months and their decision should be subject to a “second pair of eyes” check by a Senior Caseworker or Higher Executive Officer. Although not stated in the policy instruction, the applicant should also be provided with reasons why their application for administrative review did or did not succeed. The instructions clarify that, on refusal, applicants must be advised that they are entitled to administrative review. There is also clarification that there is no fee for the administrative review of decisions relating to Part 14 because there is no fee for the underlying application.

28-11-19 – Invalid applications result in gaps in continuous lawful residence

Mistakes made on application forms, including innocent mistakes may render an application invalid and accordingly result in a gap in an individual’s “continuous lawful residence” in the UK. This is important because in most cases of Indefinite Leave to Remain applications, there is a necessary period of “continuous lawful residence” in the UK as part of the requirements to meet in order to make a successful application. The applicant in Das (paragraph 276B – s3C – application validity) Bangladesh [2019] UKUT 354 (IAC) was unfortunate in this regard. Background facts of the case Mr Das made an application on 11 September 2008 to extend his student visa in the UK. Instead of using the August 2008 version, he mistakenly used to April 2008 version of the application form. When this fact was become known, he submitted his application on the correct form and subsequently was granted his student visa extension. When Mr Das applied for Indefinite Leave to Remain on the basis of 10 years’ continuous lawful residence 10 years, the Home office refused his application because of the wrong form mistake he made in 2008. At that time, he had submitted the new form after the expiry of his visa, which made him an ‘over-stayer’ until his application was granted several months later in March 2009. The Upper Tribunal’s reasoning The court propounded that submitting the wrong form automatically invalidates an application. The situation was deemed to be “materially indistinguishable” from failure to pay the required application fee, which also invalidates an application automatically. Accordingly, there was a gap in Mr Das’ “continuous lawful residence” in the UK and the appeal was dismissed.

28-11-19 – The Innovator Visa Update

The Innovator visa, launched in March 2019 has attracted a total of 14 applications in its first six months of operation. That compares to 997 applications for its predecessor visa, Tier 1 (Entrepreneur), over the same period last year. Some applications for the now closed Entrepreneur route are still making their way through the system, but hardly any Innovator visas are replacing them. 12 out of those 14 applications have now been approved. The problem is that the visa is extremely unappealing to the type of experienced entrepreneurs it is pitched at.

20-11-19 – A 54-day Stopover Recognised as “in transit” for Refugee Convention

In Idahosa v R [2019] EWCA Crim 1953, the Court of Appeal has ruled that an asylum seeker who had stopped over in the United Kingdom for 54 days en route to Canada can rely on the exception to false documents offences available to refugees. The court took a purposive and generous approach to interpreting the Refugee Convention to conclude that even a stopover of 54 days met the requirement of remaining “in transit” to another country to claim asylum. What is the ‘false documents offence exception’? The Refugee Convention necessitates that contracting states do not prosecute refugees for immigration offences, which are linked with seeking international protection, including using false documents to enter a country to claim refuge. UK law has accordingly applied the exception to domestic cases, such as in the decision in R (Adimi) v Uxbridge Magistrates Court [1999] EWHC Admin 765 where it was held that the protection awarded by the Refugee Convention must also apply to refugees who are “in transit” from their country of origin to the country in which they intend to claim asylum. Background facts to the case of Idahosa Mr Idahosa entered the UK lawfully from Nigeria and intended to travel onwards to Canada to claim asylum. His stay in the UK was expected to be brief however prolonged when his agent was unable to arrange his travel to Canada. After 54 days, he was arrested at Gatwick Airport attempting to board a flight to Canada using a false British passport, which he was using as it allows visa-free travel to Canada. The false documents offence exception was applied in his case as the court concluded that Mr Idahosa remained intent on leaving the UK for Canada to be reunited with his partner. He was not able to do so merely because he was prosecuted at Gatwick Airport. The Court of Appeal accordingly had quashed his conviction. This judgement demonstrates that the Court of Appeal grapples complicated issue of public international law to obtain a result which does not neglect fundamental rights.

19-11-19 – The law that precludes a child from obtaining British citizenship from her biological British father in cases where her mother is married to someone else

There now may be a re-evaluation in the law in this area as a result of a government’s decision to drop its appeal against a landmark ruling made in the case of K [2018] EWHC 1834 (Admin). Brief background to the case Born in the UK, K’s biological parents were of British and Pakistan nationalities. She was then issued with a British passport shortly after she was born. However, the Passport Office later found that the child’s mother was still married to a Pakistani citizen and consequently have drawn back the child’s British Passport. In reality, the child’s mother had left her abusive husband several years before the child was born. The law in this area According to Section 50(9A) of the British Nationality Act 1981, a child’s father is defined as the husband of the woman who gives birth to the child at the time of the child’s birth, regardless of any biological relations. However, if the woman is unmarried, the biological father can be recognised as the child’s father for citizenship purposes. These definitions are crucial when it comes to determination of a child’s nationality at birth. According to Section 1(1) of the British Nationality Act 1981, children born in the UK are only British citizens at birth if at time of birth, one of their parents is British or has ‘settled status’ in the UK. Issues in K’s case Due to the facts that K’s mother was still legally married to her Pakistani husband at the time of birth of K and that K’s mother did not yet have settled status in the UK- K was not technically British at birth. Judge’s comments The judge in K considered that the effect of Section 50(9A) of the Act was discriminatory and incompatible with human rights law. Despite this, pursuant to the wording of the Act, the Passport Office’s action had not been unlawful. The judge had then made a “declaration of incompatibility”, which intends to convey a cue to the government to revise the law in this area. Furthermore, the judge thinks that the discretionary route for citizenship application under Section 3(1) of the 1981 Act is problematic for cases like K. Section 3(1) permits the Home Office to register children as British citizens if it “thinks fit” and provided they are of good character. A supplementing guidance states that caseworkers are to register such children “where there is compelling evidence that someone other than the mother’s husband is the child’s natural father”. The judge is of the opinion that this route was an unsatisfactory solution, as the determination upon a grant of citizenship in such circumstances should not be discretionary; it should be a legal right. Regardless of this, the Home Office at first decided to appeal the decision and propounded that to change the Section 50(9A) of the Act would have consequences in other areas such as in surrogacy cases. They were granted permission to appeal but has now withdrawn its appeal. It is unclear what moves the department plan to take next but hopefully this could be sign for change.

14-11-19 – Home Office’s Shocking Refusal Letters

Some of the refusal letters contain outrageous yet real excuses for declining a visa or asylum claim, to list a few… 1. A woman had made an asylum claim and told the Home Office that she was a victim of domestic violence. The Home Office rejected this claim by stating that ‘’You stated you suffer domestic violence within a year after your marriage, but your husband has funded you visit to the UK and you visited United Arab Emirates and the UK 3 times within 10 years. This is not credible.” The Home Office officer seemed to have decided that a partner who funds his partner’s holidays can not be a violent person. 2. In certain circumstances, UK residents can be deported from the UK due to criminal convictions or that their presence in the UK is otherwise not “conducive to the public good”. In opposing such arguments with regards to one Jamaican national’s case, the Home Office has stated “You spent the first formative years of your life in Jamaica and as such, it is considered that you are familiar with the cultural, social and economic aspects of life in Jamaica” In reality, the relevant Jamaican national had left Jamaica at age three therefore could not have been “familiar with the cultural, social and economic aspects of life in Jamaica’’. 3. The third case is regarding a father of a British child who applied for Leave to Remain in the UK. His 14 year old child wrote a letter pleading with the Home Office not to take her father away but had to face the cold and cruel response from the Home Office stating “… best interest of a child are not to be interpreted as a requirement to bend and sway to the every whim and demand of a child”. This very problematic response contradicts the Home Office’s legal requirement to take into account of the best interests of children when making immigration decisions. In this case, the Home Office interpreted the child’s need as merely a “whim”.

14-11-19 – Complete Removal of Asylum Support is in Violation of EU Law

The Court of Justice of the European Union has ruled that it is unlawful to completely withdraw all housing and financial support from an asylum seeker, even if they have breached the rules of an accommodation centre. In the case of C-233/18 Haqbin v Federaal Agetschap Voor De Opvang Ban Asielzoekers, the court strongly reproached Belgium for imposing a total withdrawal of support on a child asylum seeker for failing to comply with the rules. Background facts of the case The relevant child is an unaccompanied child who was originally from Afghanistan and had sought asylum in Belgium. He got accommodated at the Broaechem reception centre where he got involved in a fight with others. Consequently, the director of the Broechem reception centre punished the child with a 15-day exclusion from the centre. During this time, the child had to spend few nights sleeping rough in public parks in Brussels as well as staying at his friends’. The law in this area EU law provides for sanctions to be imposed on asylum seekers who break the rules at a reception centre however the court in this case clarified that any sanction imposed must be proportionate and not result in a violation of the asylum seeker’s dignity. Case decision The court decided that the complete withdrawal of material support was in violation of the EU law because it is clear that the child’s dignity was violated. The court also went on to stress the significance of taking into account both the best interests and the vulnerability of an unaccompanied child asylum seeker.

11-11-19 – Cambridge academic misses out on Indefinite Leave to Remain due to excess absences

A recent post by a young Cambridge academic who was refused indefinite leave to remain after spending a year abroad has triggered a viral reaction on Twitter. Asiya Islam, a sociology PhD student, made her application under the so-called “long residence” rule. In accordance with this rule, people who have lived lawfully in the UK for a “continuous period” of ten years can apply for indefinite leave to remain.  However, continues residence can be “broken” if too much time is spent outside the UK within this ten year period as was the case with Ms Islam who spent twelve months in India conducting research for her Cambridge PhD. Ms Islam relied on the Immigration Rules which were changed on 1 October 2019 to expressly state that overseas research absences will be disregarded for applicants in PhD-level occupations.  The problem for Ms Islam is that this exemption only applies to people who are applying for settlement after five years in the UK holding a Tier 2 work visa sponsored by an employer which is an entirely different immigration category.  The wording of the guidance implies that the absences must arise out of “compelling or compassionate circumstances”. Compassionate circumstances might be for example frequent trips outside the UK to care for a terminally ill parent. A compelling event could be if the applicant is physically prevented from returning to the UK, for example, because of an air-traffic control strike or unexpected hospitalisation abroad.  What next for Asiya Islam? If Ms Islam’s previous visa has not yet expired then this refusal should not effect her status. She will be allowed to remain on the terms of her previous visa until that visa expires.   However, if her last visa expired while the indefinite leave application was under consideration, she will be given a right of appeal in accordance with the Convention on human rights. Alternatively, she may be able to renew her previous visa for the time being or apply for an alternative visa.