The position of EU citizens living in the UK and UK nationals living in the EU (proposal)

Dear Mr. Brandon ,

Today, the Government published a paper outlining our offer for EU citizens in the UK, and UK nationals in the EU. You can read more about our offer for EU citizens on GOV.UK: Status of EU citizens in the UK: what you need to know.
You can also read the full policy paper: Safeguarding the position of EU citizens living in the UK and UK nationals living in the EU
There is no need to do anything now. The UK will remain a member of the EU until March 2019 and there will be no change to the rights and status of EU citizens living in the UK, nor UK nationals living in the EU, during this time. So, EU citizens do not need to apply for documentation confirming their status now.
Our policy paper sets out that we will be asking EU citizens to make an application to the Home Office for a residence document demonstrating their new settled status. We will make the process as streamlined and user-friendly as possible for all individuals, including those who already hold a permanent residence document under current free movement rules. We expect the new application system to be up and running in 2018.
Information is also available on what UK nationals travelling and living in Europe need to know.

Thank you,

Home Office Communications

‘Deport first, appeal later’ struck down by Supreme Court – what next?

You could be forgiven for having missed it amidst the much more harrowing news events of last week. But last Wednesday the government’s Hostile Environment strategy took a major body blow. The controversial ‘deport first, appeal later’ policy was struck down by the Supreme Court in a unanimous ruling.
JCWI has been campaigning against this policy since its introduction in the Immigration Act 2014, and we are encouraged and relieved by the Supreme Court’s judgment. So what, in a nutshell, is the significance of this case for migrants and campaigners?
The case of R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] tested the legality of the Government’s policy of deporting convicted foreign nationals who have been convicted of crimes, without allowing them to exercise the right of appeal from within the UK. It involved two cases against deportation, considered to be arguable by the Secretary of State. In both cases, the Home Office had certified the cases as only bringing a right of appeal from outside the UK, meaning that the appellants would not have the chance to bring the appeal from within the UK and to be present at the hearing. It was argued that the Home Secretary would breach their human rights by removing them from the UK before they could appeal the decision and without making proper provision for them to appeal and participate in the appeal.
We had been waiting with interest for the Supreme Court’s judgement in this case, and have been greatly concerned by the implications of the ‘deport first, appeal later’ policy. During the passage of the 2014 Act JCWI argued that denial of in-country appeal rights amounts to a breach of basic principles of fairness and access to justice. In our view this policy undermines the rule of law – it essentially enables the Government to avoid scrutiny of its deportation decisions.
Worse still, the ‘deport first, appeal later’ policy was extended beyond foreign nationals who had committed crimes under the Immigration Act 2016. This means that all migrants seeking to make a legal appeal against an immigration decision would only be able to do so from outside the UK, unless it was considered that this would put them at risk of serious or irreversible harm on return. This would result in a wide range of people, including family members of British citizens, being denied the ability to challenge decisions made by the Government in a court of law – a central legal principle which we all have come to depend upon.
Thankfully, last week, the Supreme Court roundly and emphatically found that May’s policy was unlawful. The judges found that deporting foreign national offenders forced them to conduct appeals from abroad, but did not provide a fair system compliant with human rights for doing so. The Court was not convinced that appellants could find legal representation overseas or access the facilities in order to give live evidence from abroad. It also reported that just 72 out of 1,175 people subjected to the policy had lodged an appeal from overseas since its introduction and that none, to date, have been successful.
It is now unlikely that the Government can continue to deport foreign national offenders, without first giving them the right of in-country appeal. It is also very unlikely that the scheme can be extended to cover appeal rights on wider immigration decisions without the policy being amended. Whilst the Government may seek to make practical arrangements to overcome some of the Court’s objections, it’s hard to see how this could work in practice given the depth of the criticisms. It may also be that some individuals whose appeal from overseas has been unsuccessful, or who had been unable to appeal, will be able to apply to have their cases reconsidered and potentially be returned to the UK in order to do so.

When must the tribunal allow appeals against Home Office decisions containing errors of law?

Where the Secretary of State makes an error of law in a decision which is then appealed to the tribunal, does the tribunal have to allow that appeal on the basis that the decision contains an error of law?

Not unless the decision as a whole is unlawful, finds the Court of Appeal in Singh (India) v Secretary of State for the Home Department [2017] EWCA Civ 362 (24 May 2017).
Case outline

Mr. Singh’s case was weak. He arrived in 2001 as a visitor for 6 months. He overstayed, and later made two Hail Mary applications in 2010 and 2012 to regularise his stay based on, apparently, little more than the time he had spent in the UK. Both of these applications were, unsurprisingly, rejected.

That second application was made on 5 July 2012, four days before the introduction of substantially redrafted immigration rules on 9 July 2012. When the Secretary of State came to consider the application she erred in doing so under the new rules, instead of the rules in place at the time the application was made.
Decisions of the tribunals

The initial tribunal rejected the appeal, applying the Razgar test and finding that the case lacked merit. The appellant appealed to the Upper Tribunal on the sole basis that the third step of the test – that the decision was made in accordance with the law – was not satisfied.

The Upper Tribunal agreed that this constituted an error of law, and that this was contained within both the initial decision of the Secretary of State, and also the FTT determination. However, the UT did not find that it was necessary to remit the decision back to the Secretary of State for a fresh decision, holding that

A decision that is not in accordance with the law does not automatically need [to] go back to the drawing board; this will depend upon what additional purpose is to be served by doing so

The UT took the view that any application remitted to the Home Office would not be decided any differently, and that the outcome of the case as a whole was never in doubt.
Onward appeal to the Court of Appeal

When the appeal against this decision was heard over three years later, the question for the Court of Appeal was whether or not this approach was lawful.

The appellant relied in particular on the old s.86(3) s.86(6) Nationality Immigration Asylum Act 2002 which, for those requiring refreshment, read as follows:

(3) The Tribunal must allow the appeal in so far as it thinks that—

(a) a decision against which the appeal is brought or is treated as being brought was not in accordance with the law (including immigration rules), or

(b) a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.
[…]

(6) Refusal to depart from or to authorise departure from immigration rules is not the exercise of a discretion for the purposes of subsection (3)(b)

The main thrust of the argument was that, on a proper construction of section 86(3), the law requires the tribunal to allow an appeal if it finds that the decision under appeal is not in accordance with the law. This is the effect of the word ‘must’ in s.86(3). As pointed out by the court [24]:

The construction of section 86(3) that the appellant contends for would create an obligation on the tribunal to mark any part of a decision that is not in accordance with the law with an order that allows an appeal against it, despite its lack of materiality in the end result.

Decision of the Court

The Court of Appeal reframed the question which, it said, was implicit in the appellant’s grounds of appeal:

how should the immigration and asylum tribunal approach a decision made on behalf of the Secretary of State which it is said breached the appellant’s article 8 rights when a human rights decision outside the Rules is challenged on appeal?

In answering its own question, Ryder LJ giving lead judgment, explained that the question had been arguably decided as long ago as R (Huang) v Secretary of State for the Home Department [2007] 2 AC 167. He elaborates [31-32]:

It is as a consequence now well established that in human rights cases the tribunal will consider the evidence that is relevant to the decision in question at the date of the hearing. Its task is to consider the evidence afresh. The tribunal accords appropriate weight to the judgment of the decision maker who has access to specialist sources of knowledge and advice while at the same time exercising a merits jurisdiction on all of the evidence properly available to it.

When doing so the tribunal is not limited to a secondary reviewing function such as would be appropriate in judicial review unless Parliament constrains the function of the tribunal in that or any similar way. Parliament has done so on more than one occasion, for example by removing a right of appeal or by imposing a judicial review test rather than a merits test upon certain appeals. When not so constrained, the tribunal is part of the decision-making process. Its appellate function is an extension of the decision making function. The tribunal stands in the shoes of the decision maker. It is independent of the Executive but undertakes the same task by applying the Immigration Rules and such other policy guidance as the Executive may lawfully promulgate within the statutory scheme. The tribunal may differ from the Secretary of State’s view about a particular public interest that is in play in a particular case but must always in so doing provide a reasoned conclusion including by reliance upon country guidance or other authoritative specialist materials.

But what about the ‘must’ in s.86(3)?

The court finds that this provision must be read down, in line with the law cited regarding the role of the tribunal as a secondary decision-maker, to mean that

a decision of the Secretary of State is not in accordance with the law within the meaning of section 86(3)(a), with the consequence that the appeal must be allowed, only when it is the decision read as a whole which is unlawful.

The court therefore imports a materiality test, requiring consideration of whether the error of law would have made a difference to the outcome of the decision as a whole before invoking the ‘must’ of s.86(3). In this case, the Court of Appeal agreed with the Upper Tribunal that the overall decision was not unlawful, and dismissed the appeal.