January 15, 2018

New immigration bail and detention powers in force from today

When, in 2015, the government and the Home Office announced a major reform in immigration policy, no one knew exactly what was to follow and what the changes would take.
But in the last 2-3 years, we are witnessing that these changes are coming quickly and that they are less and more often at the expense of the applicants and immigrants.
Significant changes to immigration detention powers and a new status called “immigration bail” come into force today, 15 January 2018. The Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) Regulations 2017 commence sections 61(1) and (2) and 66 of the Immigration Act 2016 and most of the immigration bail provisions set out in Schedule 10. As the explanatory note summarises:

Schedule 10 introduces a new framework for immigration bail, replacing a legal framework containing six different legal statuses (including immigration bail and temporary admission) with a single power of immigration bail.

This power to grant bail is conferred on both the Secretary of State and the First-tier Tribunal, in the former case by paragraph 1(1) and (2) of Schedule 10 and in the latter case by paragraph 1(3). The difference is that the Secretary of State may grant bail where a person is not detained but is liable to detention but there is no equivalent power for the tribunal.

Immigration bail applications to the Secretary of State must be made on a new form Bail 401 published overnight. It promises that “the Home Office will respond within 10 working days”.

Applications to the tribunal are made on a new version of form B1. Compared with the old form B1, the new tribunal bail form incorporates some welcome simplification of language (e.g. “recognizance” is now referred to as “financial condition”). There is no longer a section asking for consent to electronic monitoring in Section 3 of the form, but Section 5 now contains a Yes/No consent to future management of bail being transferred to the Home Office.

A further point of detail: the transitional provisions in the regulations cited above erroneously cited 20 November 2017 as the date of changeover from the old system(s) of immigration bail to the new. Last week that was corrected to 15 January 2018 by the Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) (Amendment) Regulations 2018.
The overhauled immigration detention framework

The practical effect of this new framework is a significant expansion of immigration detention powers. For starters, a tribunal is no longer permitted to grant bail in any circumstances for eight days after arrival or where removal is within 14 days: see Schedule 10(3).

An additional news and the problem is that Bail can now be imposed even on a person who cannot lawfully be detained, including where “the Secretary of State is considering whether to make a deportation order against the person under section 5(1) of the Immigration Act 1971”: see Schedule 10(1)(5).

Schedule 10 continues:

A grant of immigration bail to a person does not prevent the person’s subsequent detention…

So even if someone is granted bail, they can still be detained.

The Home Office may unilaterally vary bail conditions without judicial scrutiny, for example by increasing reporting frequency – Schedule 10(6).

No doubt, all these changes are against the inters of applicants.

And that is not all. Schedule 10(10)(1) provides:

An immigration officer or a constable may arrest without warrant a person on immigration bail if the immigration officer or constable—

(a) has reasonable grounds for believing that the person is likely to fail to comply with a bail condition, or

(b) has reasonable grounds for suspecting that the person is failing, or has failed, to comply with a bail condition.

In other words, someone can be arrested for possible future breaches of bail conditions. The only test is whether the immigration or police officer has “reasonable grounds for believing.”

Combined with the Home Office’s power, in other circumstances, to ignore a tribunal’s grant of bail, the jaded practitioner might be forgiven for wondering how much more pummelling the concept of “bail” can take.

In any case, from now on the persons on the bail are not any longer safe anymore even if the bail is given by the Court.

January 12, 2018

Big changes to continuous residence rule for ILR applicants

As said many time in last 12 months, the government and the Home office are taking more and more restrictive approach to immigration rules and policy.
None of the rule changes in 2015/17 have been in favour of immigrants in the UK.In contrary , all changes have brought further limits and obstacles to already restrictive immigration policy. Some of changes are happening without big publicity and knowledge of applicants.

Hidden within December’s statement of changes (HC309) to the Immigration Rules are new provisions that will affect how the Home Office assesses continuous residence for indefinite leave to remain (ILR) applications.

Certain visa categories require an applicant to show they have been “continually resident” in the UK over a five year period before they can apply for ILR. These include a number of the work-based categories such as Tier 2 General.

The current test for assessing continuous residence is in paragraph 245AAA(a)(i) of Part 6A of the Immigration Rules. This states that an applicant for ILR must not have been absent from the UK for a period of 180 days or more in any of the five 12-month periods preceding the date of the application.

In practice, this means that if someone is applying for ILR on 10 January 2018, they have to count back 365 days to 11 January 2017 to check that they have not exceeded the 180-day limit in that period, and so on until the start of their five years’ residence in the UK.

From 11 January 2018, the wording of the rule is going to change so that an applicant for ILR must not be absent for more than 180 days during any 12-month period over the five years. The substitution is made in section 6A.3 of the statement of changes:

In paragraph 245AAA(a), for:

“(a) “continuous period of 5 years lawfully in the UK” means, subject to paragraphs 245CD, 245GF and 245HF, residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain, except that any absence from the UK for the purpose of assisting with the Ebola crisis which began in West Africa in 2014 shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that his Sponsor agreed to the absence(s);”,


“(a) References to a “continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:

(i) the applicant has not been absent from the UK for more than 180 days during any 12 month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose;”.

The difference is subtle but significant.
It will mean that an application for ILR could be refused if at any point over the five years the 180-day limit is exceeded in any 12-month period. Absences are calculated on a rolling basis, instead of in fixed blocks.

To go back to the example above, if the applicant had spent seven months outside of the UK between October 2014 and April 2015, under the current rules their continual residence would not be broken: by applying on 10 January 2018 they could divide the absences across two different 12-month blocks. Under the new rules, the application is likely to be refused as the applicant was absent for over 180 days over a-12 month period.

The Home Office hopes that this new system will be fairer. At present, applications with similar levels of absences can be decided differently depending on the date of application. It is also optimistic that the new system will not be too onerous for applicants.

In reality, for jet-setting applicants at least, this will become a mathematical headache to assess, as each trip abroad will require a new calculation. This is where a sophisticated Excel spreadsheet will come in handy.

Unlike the high profile changes to the absence criteria for ILR dependants announced at the same time, this new formula for calculating continuous residence will, in effect, be retrospective. Anyone applying for ILR on or after 11 January will be caught by it.

In the explanatory memorandum, the Home Office refers to this as a “minor change”. Quite the contrary. It will have massive ramifications for anyone who travels frequently out of the UK and has been carefully planning their trips abroad over the last few years to keep within the current rules.

Ironically, the individuals this will affect most are going to be highly skilled workers – the so called “brightest and best” to whom successive governments have been at pains to keep the UK accessible. It will be the senior executives who have to travel for work, or even the young professionals on Tier 2 visas who may have taken a one-off secondment abroad for career advancement and find that years later this leaves them unable to apply for ILR.

Such people are at risk of getting boxed in by the current Tier 2 General provisions that puts a limit of six years as a total stay in this visa category. If they are unable to apply for ILR, they will have no option but to return home. They will also be prevented from returning to the UK on another Tier 2 visa by the 12-month “cooling off” period, which precludes all but the highest earners from applying for consecutive Tier 2 visas.

To be fair to the Home Office, 180 days per year is still a generous limit for absences considering that the aim of the concept of continual residence is to demonstrate the strength of your connections to the UK. The complaint here is not with the rule itself but more that this is another example of significant changes to the Immigration Rules being implemented with little warning and with no transitional provisions to mitigate any unjust effects.

The change in the rules will inexorably lead to a change in the Home Office’s caseworking guidance. Hopefully the new guidance will allow some scope for caseworkers to use discretion when applying these new rules, particularly to those who would have qualified for ILR under the old rules.
Moreover, these changes are just the beginning of huge immigration reform that will follow after the Brexit in March 2019!

December 20, 2017

Tribunal not permitted to consider post-decision evidence without consent of Home Office

Here is another blow to the Immigration and Asylum Act 1999 and appeal rights in immigration acts.

In Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 488 (IAC) the Upper Tribunal, chaired by Mr Ockelton, decided that the tribunal cannot take into account a post-decision relationship and birth of a child in a human rights appeal without the consent of the Home Office.

This is because of the constraints of subsections 85(5) and (6) of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014:

(5) But the Tribunal must not consider a new matter unless the Secretary of State has given the Tribunal consent to do so.

(6) A matter is a “new matter” if –

(a) it constitutes a ground of appeal of a kind listed in section 84, and

(b) the Secretary of State has not previously considered the matter in the context of –

(i) the decision mentioned in section 82(1), or

(ii) a statement made by the appellant under section 120.

This amendment appeared to have been introduced to stop appellants raising entirely new issues such as an undeclared asylum claim during an appeal against a different type of decision, which was possible under the old shoddily drafted statutory scheme. Under the new shoddily drafted statutory scheme, the power goes far wider than that, though, and enables one of the parties to the appeal to dictate the subject matter of the appeal.

Another way of drafting this could easily have been found to prevent appellants raising entirely new issues. But the Home Office likes explicitly to assert its supremacy in statute and parliamentarians let them get away with it.

Anyway, the official headnote reads:

1. Whether something is or is not a ‘new matter’ goes to the jurisdiction of the First-tier Tribunal in the appeal and the First-tier Tribunal must therefore determine for itself the issue.

2. A ‘new matter’ is a matter which constitutes a ground of appeal of a kind listed in section 84, as required by section 85(6)(a) of the 2002 Act. Constituting a ground of appeal means that it must contain a matter which could raise or establish a listed ground of appeal. A matter is the factual substance of a claim. A ground of appeal is the legal basis on which the facts in any given matter could form the basis of a challenge to the decision under appeal.

3. In practice, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter. The assessment will always be fact sensitive.

The headnote by itself is remarkably unilluminating. In practice, the effect is that the tribunal was prevented from considering a post-decision new relationship and the birth of a child in a human rights appeal. These matters will therefore need to be the subject of a fresh human rights claim.

It is hard to see how the Home Office could conclude that these matters did not pass the Immigration Rule paragraph 353 test for a fresh claim, meaning a further appeal is virtually inevitable.