News

31.10.2019 - Detainees with indefinite leave to remain are not entitled to Home Office accommodation

An immigration detainee who has indefinite leave to remain must apply to their local council for housing benefit rather than for a bail address or asylum support provided by the Home Office. In R (AT (Guinea))) v Secretary of State for the Home Department [2019] EWHC 2709 the claimant AT had previously been granted indefinite leave to remain but had claimed asylum when the Home Office tried to deport him. AT was granted bail by the First-tier Tribunal on three occasions. The judge insisted that AT is discharged to a stable address. Unfortunately, AT was not able to provide that for himself, so he applied to the Home Office for asylum accommodation under section 95 of the Immigration and Asylum Act 1999. When rejected, he appealed that decision to the asylum support department of the First-tier Tribunal. The appeal was dismissed on the ground that he was not “destitute” within the meaning of the legislation because he could apply for support from his local authority. Nigel Poole QC agreed with the specialist social support judge: The Claimant was, until 22 January 2019, a person with indefinite leave to remain. Accordingly, whilst the appeal against his deportation order was pending, he was not under “immigration control” for the purposes of the 1999 Act, and therefore he was not excluded from eligibility to benefits under s.115 of the 1999 Act. As a result, Nigel Poole QC rejected AT’s claim that the Home Office had behaved irrationally when refusing to provide him with accommodation. The above case illustrates that the Home Office support with accommodation should only be used as a last resort.

30.10.2019 - Immigration campaigners have filed a lawsuit to determine how the Home Office algorithm, which filters out applications for a UK visa actually works

This is the court’s first attempt to establish how an artificial intelligence program affects immigration policy decisions regarding entry into the country. The newly created Foxglove advocacy group for justice in the new technology sector has supported the Joint Immigration Welfare Council (JCWI) initiative to force the Home Office to explain on what basis the algorithm “sorts” visa applicants. Both groups said they fear that the “sorting tool” using artificial intelligence has created three channels for applicants, including a “quick channel” that leads to “priority visas for white people.” Home Office insists that the algorithm is only used to sort submitted applications. It claims that the final decision rests with people, not artificial intelligence. A spokesperson for the Home Office said: "We have always used processes that allow British immigration authorities to efficiently distribute immigration cases." Corey Crider, director of Foxglove, refutes Home Office's statement. “Home Office insists that its visa issuing algorithm does not have racial bias, but that is far from true. The system distributes the applicants in a green, yellow and red channels according to nationality - and it is easy to guess who will be in the green line and who is not that lucky. It's illegal". Home Office claims the new system is fully compliant with the 2010 Equality Act. He added that out of more than 3.3 million applications for a visa to the UK, by the end of June this year, 2.9 million people have received the right to enter the UK.

16.10.2019 - Refugee dependant family members may be deported from the UK if the situation in their country of origin has changed

Granting refugee status usually implies the existence of certain circumstances that would make it illegal for a person to return to his country of origin. But circumstances may change, and this may affect whether a person will continue to have a refugee status. Article 1C (5) of the Refugee Convention and paragraph 339A (v) of the Immigration Rules give the Home Office the right to revoke refugee status if the circumstances in which the person has been recognized as a refugee have changed. The situation may be completely different if the person who has been granted refugee status is a dependent person, and his parents are escaping in the UK from persecution in their country. In the case of Secretary of State v. K.N. (DRC) [2019] The EWCA Civ 1665 the Court of Appeal found that refugee status could be revoked if the circumstances that led to the granting of status changed. Refugee status may be revoked due to a criminal offense K.N. came to the UK at the age of nine. He and other members of his family were recognized as refugees in 1994 due to the political activities of his father in the Democratic Republic of the Congo. K.N. He was convicted of various crimes and ultimately convicted of conspiracy to robbery in June 2012, for which he was sentenced to imprisonment for four and a half years. The Home Office has attempted to deport K.N. in accordance with article 72 of the 2002 Law on Citizenship, Immigration and Asylum. It was assumed that K.N. poses a danger to society because of the crimes he committed. The Home Office also sent K.N. a letter annulling his refugee status stating that “the circumstances surrounding his initial asylum application have changed since fundamental and lasting changes have taken place in the Democratic Republic of Congo”. K.N. appealed against both decisions. The court considered that the actions of K.N. do not fall under Section 72 of the Law, and, accordingly, that his refugee status cannot be anulled. The High Court also ruled in favour of K.N. in the decision on deportation. The court found that he was not recognized as a refugee in his own right, but "because his parents were recognized as refugees." Consequently, “any political changes in the Democratic Republic of Congo were not related to the circumstances in connection with which he was recognized as a refugee”. The Court of Appeal found that, in accordance with Article 1C (5) and paragraph 339A (v): “The withdrawal of refugee status is not allowed solely because of a change in the basis on which the defendant was granted this status, “a change in the circumstances in connection with which he was recognized as a refugee ” is also required.

15.10.2019 - Court of Appeal concludes that refugee’s relatives are not refugees themselves

The Court of Appeal ruled that the UN Refugee Convention should not apply to members of a refugee family. As a result, anyone who has received refugee status in accordance with UK law, as a member of a recognized refugee's family, is not covered by the Refugee Convention. In fact, the Court of Appeal ruled that the Home Office was mistaken in granting refugee status to members of a genuine refugee family. Refugee family member convicted of crime Secretary of State v. J.S. (Uganda) [2019] EWCA Civ 1670 concerned a Ugandan citizen who was admitted to the United Kingdom to reunite with his mother. At that time, she was already recognized as a refugee under the Refugee Convention. J.S. was allowed to remain in the United Kingdom, apparently on the grounds that he was also a refugee. However, no investigation into his personal circumstances has ever been conducted to determine whether he himself was at risk of persecution in Uganda. J.S. was convicted of a serious felony, and Home Office decided to extradite him. At that time, officials still believed that J.S. was a refugee under the Refugee Convention. Therefore, they proposed annulment of his refugee status, as he was convicted of a serious crime. In the Court of Appeal, the Home Office changed its position, arguing that J.S. never received refugee status in the first place.

13.10.2019 - Queen Elizabeth addressed immigration issues in her throne speech this morning

The Queen Elizabeth II opened the new parliamentary session with a throne speech in the House of Lords today. In a throne speech, which outlined the government’s plans to pass new laws, the following was announced: "The new immigration law will put an end to freedom of movement and lay the foundation for a fair, modern immigration system that meets global requirements. My government intends to preserve the residency rights of resident citizens who made a great contribution to the country's economy." The main elements of the bill are: • Termination of free movement of EU citizens in accordance with UK law. • Establishment of a procedure governing the treatment of EU citizens arriving after January 2021, the treatment of citizens of non-EU countries, and the establishment of a procedure for treating EU citizens residing in the UK until Brexit date. • Clarification of the immigration status of Irish citizens in the UK after the abolition of the rules regulating free movement. • Clarification of the application deadline in accordance with the EU Settlement Scheme. • Granting EU citizens and their families the right to appeal against decisions in respect of the EU Settlement Scheme. The right of appeal for EU citizens who are denied residence will undoubtedly be very welcomed. At the moment, the only real remedy is an administrative review. The bill is forecasted to "pave the way for a new point-based immigration system." The government also plans to pass a bill on foreign offenders, which "will increase the maximum sentence for foreign offenders who return to the UK in violation of the deportation order." Today, in view of the current political situation, there is practically no chance of adopting these bills. However, it is entirely possible that in general elections in the coming months, the government will receive a majority in parliament and will insist on translating the bills passed today into legislative acts.

10.10.2019 - Are you applying to stay in the Isle of Man, Jersey or Guernsey?

Immigration professionals often come across this question at the submission stage of various UK visa applications. What are the British Crown Dependencies? The Crown Dependencies are three island territories located within the British Isles. They are not part of the United Kingdom, but are closely connected to it. Each one is a separate jurisdiction: the Bailiwick of Jersey, the Bailiwick of Guernsey, and the Isle of Man. The Crown Dependencies are each self-governing, have directly elected legislative assemblies, and their own legal systems and courts of law. All are outside the European Union. They are not represented in the UK’s parliament and are not recognised as independent sovereign states. However, the UK government does remain responsible for each Crown Dependency’s defence policies and foreign affairs. Why are the Crown Dependencies flagged up in UK visa applications? In short, if you do want to live and work in one of the Crown Dependencies, making a UK visa application is the incorrect one to make. Each Crown Dependency has its own immigration processes and procedures for those wishing to work there, but their foundations lie in the Immigration Act 1971. In practice, the Crown Dependencies and the UK have similar, and in some cases identical, immigration requirements. Any condition attached to a UK visa (such as the police registration requirement, limited work permissions, and absolutely no recourse to public funds) would also apply to visas granted in the Crown Dependencies. Can I visit the Isle of Man, Jersey or Guernsey on a UK visa? In short, if you have been granted a UK visa, you do not need a separate visa to visit one of the Crown Dependencies. There is no immigration control between the UK and the Crown Dependencies, nor between the three islands themselves. The same can be said if you have a visa from one of the Crown Dependencies – you are permitted to subsequently visit the United Kingdom. If you wish to live and work in the UK, however, you would need to apply for a separate UK visa. How can I get a visa to live and work in one of the British Crown Dependencies? If you intend to live and work in one of the Crown Dependencies, you must apply for the correct residence visa. If eligible to apply, you may do so from within the UK or outside it. Once you have been granted a visa to live in one of the Crown Dependencies, you are also permitted to visit the UK.

03.10.2019 - Why can’t my children join me in the UK?

Earlier this week, the Guardian newspaper published a story concerning Amber Murray, a U.S. researcher who got a job at Oxford as an assistant professor of geography, but whose two young daughters were denied entry visas to the UK. Ms. Murray's husband lives in Cameroon and gave his consent to the girls' stay with their mother in Oxford. So why were they denied visas? Regardless of the immigration status of parents, all children must meet the following requirements in order to move or join their parents in the UK: 1. The child must be under the age of 18 at the date of application 2. The child should not be married or be in a civil partnership and should not lead an independent life 3. As far as point-based visa applications are concerned, a child over 16 must show that he lives with his parents, or explain why not, and prove that his parents still provide for him financially. 4. Both parents must be residing legally in the UK or, if only one of the parents is in the UK, then: • This parent must be the only surviving parent; or • This parent should be solely responsible for raising the child; or • There must be good reasons for satisfying the application. It was because of the latter requirement that the Murray children could not join her in the UK.

02.10.2019 - Child is deemed self-sufficient if supported by parent working without work permit

The Court of Justice of the European Union has decided that a child is self-sufficient in EU law even if supported only by the earnings of a parent who does not have permission to work ( C-93/18 Bajratari). The case concerned an Albanian family living in Northern Ireland where a man had held a residence card enabling him to work. He continued to do so even after it expired. He had been joined by his wife and they had three children together, all born in Northern Ireland. Two of the children had obtained certificates of Irish citizenship, meaning that they were EU citizens. The wife and mother applied for a residence card of her own based on derivative rights of residence, arguing that her continued presence in the United Kingdom was necessary if her two EU citizen children were to remain within the EU. Her argument was based on the case of  C-200/02 Zhu and Chen, which required her to show that her EU citizen children were self-sufficient. The family was supported by the father’s earnings, but these earnings were unlawful. The question for the court was whether the children were “self-sufficient” in EU law and therefore whether the parents might derive an EU law right of residence from the children. The application was rejected by the Home Office and appeals to the first-Tier and Upper Tribunals were unsuccessful. The Court of Justice held: “a Union citizen minor has sufficient resources not to become an unreasonable burden on the social assistance system of the host Member State during his period of residence, despite his resources being derived from income obtained from the unlawful employment of his father, a third-country national without a residence card and work permit”. The court emphasised that the family in this case has no recourse to public funds at all and that the father had been paying National Insurance and other tax contributions on his earnings.

01.10.2019 - Family courts have no power to prevent removal of children at risk of FGM abroad

The President of the Family Division concluded that the family courts have no jurisdiction to interfere with Home Office, even if they think it is necessary to protect a girl from female genital mutilation (FGM). The most they can do is to ask the Home Office to refrain from removing the child and to reconsider the removal decision in light of the family court’s determination. In response to media pressure in this case — reported as A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam) — the Home Office has agreed to wait until the family court proceedings have finished.  The judgment highlights a worrying gap in the legislation designed to protect girls and women from FGM. The case concerns a ten year old girl, known as A, who was due to be removed to Bahrain with her mother. The mother is originally from Sudan, where she was subject to FGM as a child. There is a risk that both mother and daughter could be removed a second time from Bahrain to Sudan, where there is a high risk that A will be subject to FGM. A's school has informed Suffolk County Council of this risk. The council immediately applied for an order under Schedule 2 of the Female Genital Mutilation Act 2003 preventing anyone from taking A outside the United Kingdom. A family judge issued an order preventing the Home Office from removing her. The issue when the case came before the President of the Family Division was whether the judge had the power to make such an order. Sir Andrew McFarlane concluded that the order was made without jurisdiction and must be set aside. His reasons are based on the long-standing principle that the family courts cannot use their powers to interfere with immigration control because immigration decisions are made under a different statutory regime with different criteria.  The overall decision in this case is disappointing, but McFarlane can hardly be blamed for following authority. Instead, the judgment illustrates a gap in the FGM legislation. Parliament should have included a power for the family courts to issue injunctions against the Home Office where necessary to protect girls from FGM.

24.09.2019 - Court of Justice finds that self-employed women have maternity rights

The Court of Justice has handed down judgment on 19 September 2019 in the case of  HMRC v Dakneviciute C-544/18 holding that “a woman who ceases self-employed activity in circumstances where there are physical constraints in the late stages of pregnancy and the aftermath of childbirth retains the status of being self-employed, provided that she returns to the same or another self-employed activity or employment within a reasonable period after the birth of her child”. The UK position has been that women who have even short periods of maternity leave lose their EU law right of residence and therefore lose their right to welfare benefits and stop accruing continuous residence to count towards permanent residence.