Court of Appeal says to Home Office: Go away!!!

When feeding my son, I sometimes have to heap the spoon up with something he likes to eat, to disguise something he does not.

This is what the Home Office did when applying for permission to appeal in Secretary of State for the Home Department v Barry [2018] EWCA Civ 790.

The resulting judgment of the Court of Appeal is the legal equivalent of his usual reaction: that is, to grab the spoon and attempt to redecorate the nearby furniture.

Aside from the spectacle of the Secretary of State getting a kicking in the higher courts, the judgment is noteworthy for what it says about the Home Office approach to litigation, and for demonstrating how hard it is to win a deportation appeal.
The “systemic failure”

The Home Office made a deportation order against Thierno Barry, who had committed a serious crime and was imprisoned for three years.

Mr Barry appealed against the deportation order to the First-tier Tribunal. He was married to a British woman, and had two young British children. If he were deported, it would mean the end of his relationship with them. The tribunal found in his favour:

the FTT concluded that there were exceptional circumstances in this case which outweighed the public interest in deportation (para. 165). It also emphasised that this was a “very strong” Article 8 claim and that it was a “rare case”.

The Secretary of State’s appeal to the Upper Tribunal was dismissed. Undeterred, a further application was made to the Court of Appeal for permission to appeal on the grounds that

that there may be a “systemic failure” by the UT when applying paras. 398 and 399 of the Immigration Rules

Applying the “second appeals test” derived from section 13(6) of the Tribunals, Courts and Enforcement Act 2007 — where permission is only granted where the appeal would raise some important point of principle or practice, or where there is some other compelling reason to hear the case — permission was granted.
Punitive costs order

At some stage, the Secretary of State decided that the sole ground upon which permission to appeal was granted was no longer arguable. This was not made clear to the court until the day of the hearing.

Like an audience member on BBC Question Time, straining with hands up to ask a really important question, the Secretary of State was called upon only to belch loudly down the microphone.

The Court of Appeal reacted much like one imagines David Dimbleby would in that situation: with a kind of bemused contempt, and an order to pay costs on the indemnity basis.

There was no issue of general importance other than the suggestion that there was a “systemic” problem in the UT. That was an unusual allegation and a serious one… Having obtained permission on that basis, the Appellant failed either to make the submission good with evidence or to pursue the argument. She abandoned it without even explaining why. In my view, in all the circumstances of this case, the Appellant’s conduct was indeed unreasonable to a high degree.

This means that the legal team for Mr Barry can charge their full commercial rates for his representation, and the bill will be picked up by the taxpayer.
The house that Hugo built

This judgment shows that, in the current climate, it is not enough to simply win a deportation appeal at the First-tier Tribunal.

You need a judge who can write, knows this corner of the law inside and out, and properly records the proceedings and any concessions made by the Secretary of State on the day of the hearing.

To paraphrase the title of the excellent 2010 report by the immense Bail for Immigration Detainees, you need a good judge, on a good day.

The determination of the First-tier Tribunal needs to be so perfect, so utterly watertight, that it can survive the scrutiny (in this case) of

An Upper Tribunal judge at permission
Two Upper Tribunal judges at an error of law hearing
A Court of Appeal judge at permission
Two Court of Appeal judges at full hearing

Fortunately for Mr Barry, he got Judge Norton-Taylor, who appears to have constructed a tribunal determination of such unspeakable fairness that not even the grounds-smuggling Home Office senior appeals team could touch it.
The “hostile environment” in the courts and tribunals

It is ironic that the Secretary of State complained of a “systemic” issue with the Upper Tribunal’s treatment of deportation cases.

It has long been the Secretary of State’s approach to challenge every allowed deportation appeal, notwithstanding the merits of the case, arguing at almost every turn that determinations of the immigration tribunals refuse to exhibit sufficient cap-doffing to the “public interest” in booting out foreign criminals.

As ever in this area, decisions are driven as much by politics as they are the law, with no apparent concern for the consequences. The Court of Appeal’s punitive costs order is the least it could have done.

NEW Immigration, Visa and Nationality Fee’s 2018-19

Just received a letter from the UKVI, Fri 16/03/2018

Dear colleague,

Legislation was laid in Parliament today, (16 March) which sets out a number of changes to immigration, visa and nationality fees. These changes will come into effect on 6 April 2018.
Careful consideration is given to individual fees to help reduce the funding contribution from UK taxpayers, whilst continuing to provide and invest in a service that remains attractive to our customers and competitive with other countries.
The key changes are outlined below.
• Increased fees on growth routes (work, study and visit) by 4%.
• Increased fees on most non-growth routes (nationality, settlement, family) and most associated premium services by 4%.
• The fee for the overseas optional ‘Priority Visa’ service for entry clearance will increase by 15%.
• For the fourth year running, we are not making any changes to fees under the sponsorship system.
• Fees for entry clearance to enter the Channel Islands and Isle of Man will rise in line with fee changes seen in the rest of the UK.

A full list of the new fees can be found on www.gov.uk.
If you have any queries regarding the fee changes, or would like to discuss any particular areas of interest, please contact: feesandincomeplanning.requests@homeoffice.gsi.gov.uk

Yours sincerely,
Richard Hornby
Director of Finance

EU citizens’ rights during transition

The European Union has offered Britain a status quo transition until the end of 2020 after Brexit. The bloc wants its three million citizens in Britain to remain eligible for all the same rights until the end of that period.
The EU/UK’s 8 December 2017 Joint Report on the UK’s “orderly withdrawal from the European Union” has laid out various points of agreement on Citizens’ Rights, including the need for EU nationals in the UK and British citizens in EU27 member states before 29 March 2019 to register for a temporary or, subject to eligibility, settled status after that date. Freedom of movement for those arriving before the cut off date would be protected.

Whilst the Joint Report includes the caveat that “nothing is agreed until everything is agreed”, it does provide a degree of certainty for UK employers in terms of EU nationals arriving in the UK before Brexit day next March.
Theresa May had cheered Brexiteers in January when she declared there would be a “clear difference” for EU migrants who arrived after March 2019 and only those who arrived before could “continue their life” in the UK. It took ministers and businesses by surprise and was rejected by the EU, which warned it could jeopardise the transition period, which the government wants agreed in the March EU council.
Yesterday ministers confirmed they were abandoning Mrs May’s position,

Threfore, the status of those EU nationals arriving during the Transition Period after March 2019, remains controversial.

The UK Home Office’s leaked paper on the future of its UK immigration policies of September 2017 (the official version was due in Autumn 2017 but is yet to be released) floated the idea of registration for around only 2 years for those EU nationals filling lower skilled roles and those filling higher skilled being able to stay longer for say up to 5 years. This would be a stark change from the current largely unrestricted freedom of movement. The UK was adamant that there has to be a different expectation for those arriving before and after the UK’s exit from the EU. As recently as Theresa May’s trip to China at the start of February, she was very clear on this point.

However, on 7 February 2018 the EU released its latest negotiation position paper “Transitional arrangements in the withdrawal agreement”. This paper included reference to the EU’s wish for 31 December 2020 to be the end date of the implementation period to coincide with the end of the EU budget year and so falling short of the UK’s plans for a two year transition/implementation period.

Importantly, the EU’s paper also demanded that the status quo should be maintained during the implementation period including full freedom of movement, no new trade agreements with non EU 27 and continued submission to the jurisdiction of the European Court of Justice without the UK having any legislative input in this period, in Jacob Rees Mogg’s words, making the UK “a vassal state”. The EU makes clear that Citizens’ Rights are “not negotiable” and that there cannot be “two sets of rights for EU citizens”, one for those arriving before and another after 29 March 2019.

Despite the UK’s strong previous position that it would set its own agenda, the UK’s own negotiation position paper (proposing amendments for discussion to the EU’s own paper) of 21 February 2018 was conspicuous by the absence of any meaningful ‘pushback’ on the EU’s demands for freedom of movement of EU nationals to continue unabated during the implementation period.

In fact, the only noticeable retort in the UK’s paper was a meek request for the December 2020 implementation period end date to be discussed in view of whether it is long enough – given the UK has always been planning for two years from March 2019. These are only draft papers and the game is a long way from finishing, but it is hard to ignore a potential softening of the UK’s position on free movement for those EU nationals arriving in the UK after March 2019 next year. For those employers relying heavily on European nationals, this would be a welcome development.

Poured on top of the UK’s apparent poor negotiating position is, according to some news outlets, the government’s own analysis that the cost of cutting EU migration would exceed any gains from, for example, any new UK/US trade agreement.

Complete capitulation to the EU 27 bloc on all issues would not sit easily with the Brexiteers within the Conservative party. This raises the prospect of an unholy alliance between Conservative Brexiteers and elements of the Labour party to vote down any Agreement ultimately brought to Parliament. This in turn raises the possibility of the dreaded scenario of the UK leaving the EU without Agreement. A recipe for complete chaos.

As the negotiations progress and we near the UK’s exit in just 12 months time, we will continue to provide you with updates