Cut off date for new arrivals from EU likely to be April 2017??? Alarming!!!

A hardline report chaired by prominent Leave campaigner Gisela Stewart into the status of EU nationals in the UK has recommended a cut off date for new arrivals from the EU, likely to be April 2017, and a massive registration programme for existing EU residents. EU citizens arriving after the cut off date would be subject to the full force of UK immigration law on Brexit, presumably meaning they would become unlawfully resident on that date.

The report, which has been co-ordinated by organisation British Future, assumes a total end to EU free movement law in the UK, “hard Brexit”, departure from the European Economic Area and Single Market and expulsion on non qualifying EU residents and family members. Essentially, it proposes a UKIP future for the United Kingdom.

The report recommends that the Home Office simplify the application process for permanent residence. Applications would be compulsory and would involve cross checking against multiple government databases rather than reliance on documents propduces by the applicant. The method proposed looks to me fundamentally incompatible with EU law, and involves imposition of a good character test and an application for ILR rather than permanent residence. How this could occur while the UK remains a member of the EU and EU citizens therefore continue to enjoy free movement rights is unclear, but it does not look very well thought through.

The report at least proposes a five year “transition” for EU nationals who were qualified persons or had permanent residence at the cut off date. This would allow those people to bring their family members to the UK under the equivalent of EU rules, which are far more family-friendly than the extremely harsh UK immigration rules. Entry of parents and grandparents is basically banned under UK rules but remains feasible under EU rules, and under EU rules there is no real minimum earnings requirement for sponsoring a foreign spouse, unlike the £18,600 requirement under UK rules.

Those with permanent residence would have their status converted to “bespoke” Indefinte Leave to Remain (ILR) under the UK immigration rules. What “bespoke” means or how it would differ from “normal” ILR and be distinguished from it when it is called the same thing is not explained.

The report is not an official or Government report but was co-ordinated by British Future. How likely the recommendations are to find their way into UK Government policy is questionable. This is particularly so as the report in effect abandons tens or hundreds of thousands of existing residents of the United Kingdom who are currently lawfully present in the UK because of EU free movement laws.

The report focuses on “qualified persons”, meaning those who are working, self employed, self sufficient with comprenehsive health insurance or students with comprehensive health insurance. It does not address long term residents from the EU who are not qualified persons (for example the non-working EU national spouse of a British citizen who does not have comprehensive health insurance) nor does it address third country family members from outside the EU but who have or had a relationship with an EU national in the UK.

The report itself states that only 64% of EU nationals resident for over 5 years have qualified for permanent residence. If it is assumed that there are 2.8 million EU nationals in the UK, that means over 1 million have not qualified. Many therefore probably never will. The report assumes these people will be expelled at the end of a five year transition period, in what would be the biggest mass expulsion of population from this country since 1290, when Edward I infamously ordered the Jews of England into exile.

Given that no-one in their right mind was proposing removing qualified persons, one wonders what the point of the exercise was. The report dodges the very hard questions faced by Ministers and civil servants.

Court of Appeal has finally had it with the Points Based System

The Points Based System is notoriously complex and indecipherable. Initially I believe this was simply incompetence on the part of Home Office officials unable to communicate in plain English and ill equipped to design to and then adapt to the constantly shifting requirements of Ministers.

My view is that the complexity of the system is now deliberate; an opportunity has been grasped and the Points Based System is now used as a barrier to all immigration rather than as a gateway to the “right” migrants. It was even extended to family migration in the form of Appendix FM with accompanying Appendix FM-SE with accompanying policies and guidance.

There is in effect a financial filter; only those employers or migrants able to afford top quality legal representation can successfully navigate the labyrinth.

This is anathema to “good” law and we have seen some rather strong judicial criticism of the Points Based System. In Hossain & Ors v Secretary of State for the Home Department [2015] EWCA Civ 207. Lord Justice Beatson says at paragraph 30:

The detail, the number of documents that have to be consulted, the number of changes in rules and policy guidance, and the difficulty advisers face in ascertaining which previous version of the rule or guidance applies and obtaining it are real obstacles to achieving predictable consistency and restoring public trust in the system, particularly in an area of law that lay people and people whose first language is not English need to understand.

This follows on from very strong words in previous Court of Appeal cases. In Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, Jackson LJ stated that the “provisions have now achieved a degree of complexity which even the Byzantine emperors would have envied”. In Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 Underhill LJ said:

I fully recognise that the Immigration Rules, which have to deal with a wide variety of circumstances and may have as regards some issues to make very detailed provision, will never be “easy, plain and short” (to use the language of the law reformers of the Commonwealth period); and it is no doubt unrealistic to hope that every provision will be understandable by lay-people, let alone would-be immigrants. But the aim should be that the Rules should be readily understandable by ordinary lawyers and other advisers. That is not the case at present. I hope that the Secretary of State may give consideration as to how their drafting and presentation may be made more accessible.

In those previous cases the judges have nevertheless generally gone on to find in favour of the Secretary of State’s interpretation, no matter how arcane.

The latest criticism comes in the case of SI (India) v Secretary of State for the Home Department [2016] EWCA Civ 1255 from Lord Justice Rafferty. We can hope, perhaps optimistically, it represents a sea change. It is worth quoting extensively:

17. The SSHD’s decision is set out in a letter of 5th November 2013. Although this is a PBS case, there are five pages of fairly dense typescript which recite the standard relevant paragraphs. One page shows in tabular form the points awarded. The reasoning supporting the decision is confined to two sentences in a box on page three. The first sentence does no more than recite the policy that parental sponsorship is not permitted for Tier 1 applications. It is silent as to any reasoning for the decision maker’s reliance on that policy and in particular does not apply the policy to the evidence. The Applicant, and the tribunal, are left to navigate to their own conclusions about whether the evidence submitted is rejected and if so why. The second sentence – “parental sponsorship …is not permitted…in addition the evidence submitted is post-dated the date you made the application…” – reads as if the decision maker considered the additional evidence and rejected it as not submitted at the time the application was made. Both members of this court so construed it. So too did the Upper Tribunal judge and the Applicant. We were told in submissions that we are all wrong and that the sentence intended to convey that some of the additional evidence relates to a time period which is irrelevant.

18. As the Senior President of Tribunals said on 16th November 2016 in evidence to the Constitution Committee of the House of Lords and repeated in dialogue during this hearing a decision letter which to the extent we read here lacks clarity and reasoning cannot withstand scrutiny by this court. It is inappropriate to expect an applicant who may not enjoy publicly funded legal representation to construe such poor drafting. Nor should the administration of justice oblige a tribunal to expend public time and money itself attempting that task. Decision letters should set out with clarity a) the facts determinative of the application, b) why the applicant’s evidence has been rejected and c) the reasons for coming to the conclusion reached.

19. In our view a reader of the decision letter would struggle to understand b) and c) above. Three judges and one barrister certainly did. That is enough to dispose of this appeal, which we allow.

The particular issue in the case turned on the maintenance requirement for Tier 1 Post Study Work migrants, a category that was abolished in The Great Student Crackdown. In particular, had the Secretary of State misinterpreted the meaning of “nominee” in Indian banking law? The direct precedent value of the case is therefore little, unless it does represent a turning point.

Meanwhile, I imagine Home Office civil servants are beavering away designing a new post-Brexit immigration system. There has been no public consultation and if civil servants are left to their own devices with no external input I fear in future that we will see more complexity and bureaucracy, not less.

Source: SI (India) v Secretary of State for the Home Department [2016] EWCA Civ 1255 (07 December 2016)

Remove First Appeal Later (or never)

Posted on December 05th 2016

this 2016 will be remembered in 5the UK immigration field a as one of the worse years so far for immigrants!
We are very concerned about people being denied a fair chance to appeal and it is only by getting information from the public that we can challenge these harsh new measures.
But, still, the Government continues to do all it can to ensure that those people subjected to poor Home Office casework decisions cannot appeal to an independent tribunal.

Last week, new provisions came into force, extending the ‘deport first appeal later’ scheme to all immigration decisions that still retain a right of appeal. This means that the Secretary of State has the power to ‘certify’ immigration appeals as only pursuable from abroad, where she judges that this will not cause “serious or irreversible harm”. Since 2014, the scheme has applied to foreign national offenders challenging deportation decisions. From yesterday, the law extends its application to most people appealing an immigration decision, meaning that they can be removed from the UK first and forced to appeal from abroad. This undermines fair and effective access to justice for migrants and will cause gross injustice for families living in the UK.

New guidance issued yesterday states that implementation will be phased and will not at first apply to anyone who had outstanding leave at the time they made a human rights claim or those whose claim relies on their relationship with a British family member. However, the intention to extend to further cases remains.

The Home Office has good reason for avoiding the tribunals. Home Office decision making is appalling and strewn with errors and frequent wrong decisions. This is a not altogether unexpected consequence of allowing gap year students to decide asylum claims. For example, between October and December 2015, 41% of appeals against Home Office decisions were allowed in the First-tier Tribunal. The Parliamentary and Health Service Ombudsman has revealed serious problems with Home Office decision-making, upholding 70% of complaints made.

By forcing people to leave the country before an independent tribunal gets to hear their appeal, the Government is massively reducing the chances that they will be able to appeal and, if they do, that they will be able to get a fair hearing. In the year since ‘deport first appeal later’ was brought in for offenders the number of appeals against deportation dropped substantially. Strikingly, the success rates of appeals brought out of country was half that of those brought in country the year before.

There are many reasons why this has happened. Forced removal has a significant psychological impact, particularly as people may be removed to countries where they have no support network, no funds, may not even speak the language, and are separated from their family. Deadlines for lodging appeals are short, and it is difficult to manage while also looking for housing and dealing with all of the additional stress and problems that come with moving to a different country. It is also much harder to gather evidence to support your appeal from abroad and to instruct solicitors. Those appealing a Home Office decision are likely to need to show the court copious documentary evidence of their life in the UK, difficult to gather from outside the UK. Witness evidence from friends and colleagues is also far harder to organise. In addition, court video links are frequently unreliable or unavailable, and friends and family may lose hope once their family member is removed from the UK.

The Government is chipping slowly away at the rights of people to access the courts and to get a fair hearing. These new provisions, when combined with cuts to legal aid, removal of appeal routes altogether, and a continued intent to raise court fees means that it is harder than ever to hold the Home Office to account for decisions that are wrong and cause devastation to individual and families who have made their lives here. However, last week’s turnaround on Tribunal fees shows that we must continue to do everything in our power to challenge these regressive policies, and to protect access to justice so that we have an immigration system that is transparent and fair.