Home Office human rights appeals
5 June 2014
Here is another example of changed attitude in human rights appeals by the Home Office Presetning Office (HOPO)’s policy regarding appeals against first instance judge (AIT) decisions. Its practice is changing now. It used to be very rare to lodge an appeal agint Judge’s decesion to alloow apela on human rights grounds.But, it apparently became standard practice to seek permission to appeal in some asylum allowed appeals and all or virtually all deportations cases. However, recently it appears to be standard practice for the Home Office to seek permission to appeal against any appeal that is allowed on human rights grounds, or at lest on human rights grounds only.
The more or less standard grounds are as follows:
Ground one: Making a material misdirection of law
1. It is respectfully submitted that the Tribunal has erred in law in its approach to the Article 8 assessment in this case.
2. MF Nigeria [20131 EWCA Civ 1192 confirms that the Immigration Rules are a complete code that form the starting point for the decision-maker. Any Article 8 assessment should only be made after consideration under these Rules. That was not done in this case. It is submitted that the Tribunal erred in law by not having regard to the Rules and that the subsequent proportionality assessment is unsustainable because of this omission.
3. Furthermore, it was made clear in Gulshan [2013] UKUT 00640 (IAC) that the Article 8 assessment shall only be carried out when there are compelling circumstances not recognised by these Rules. In this case the Tribunal did not identify such compelling circumstances and its findings are therefore unsustainable.
4. Gulshan also makes clear that at this stage an appeal should only be allowed where there axe exceptional circumstances. Nagre [2013] EWHC 720 Admin endorsed the Secretary of State’s guidance on the meaning of exceptional circumstances, namely ones where refusal would lead to an unjustifiably harsh outcome. In this case the Tribunal has not followed this approach and thereby has erred.
5. It is respectfully submitted that the Tribunal has failed to provide adequate reasons why the appellant’s circumstances are either compelling or exceptional. It is submitted that there is no reason why the appellant’s husband cannot hire care whilst the appellant returns to [country] to make the appropriate entry clearance application to return. It is submitted that the appellant and her husband can continue to maintain contact with each other via modem methods of communication and visits whilst she does so as they have been able to do so over many years.
6. It is submitted that bad the Tribunal taken these issues into consideration they would have found that the decision to remove is proportionate.
7. Permission to appeal is respectfully sought so that a fresh decision can be made in. regards to the human rights decision.
There is no ground two, incidentally. Permission is regularly granted.
It is irritating to see what is surely incorrect law being perpetuated. The idea that Gulshan creates some sort of legal threshold of compelling circumstances that must be passed before human rights can even be considered is obvious nonsense.
Observers of Home Office submissions may also be interested in the standard case law compilation relied on by some Presenting Officers. The inclusion of the ancient MG [2005] UKAIT 00113 case is a bit of a mystery as there has been an awful lot of legal water under the bridge since then. The only glaring omission that immediately springs to mind is the Supreme Court decision in Patel, which addresses precisely the interaction of the immigration rules and human rights grounds.
Upper Tribunal procedure rule amendment on service, 11 June 2014
Upper Tribunal procedure rule amendment on service
11 June 2014
Immigration Rules and practice are going through great reforms these days! None of them are in favour of applicants. in contrary!
The Tribunal Procedure (Upper Tribunal) Rules 2008 are to be amended from 30 June 2014 to ensure that one party to proceedings gets notice before the other and indeed is responsible for serving the other party. Because the proceedings are immigration ones involving asylum seekers, the obvious bias in treatment of the parties, supposedly equal before the law, is not apparently generally considered to be problematic. There might be more of an uproar if the same approach were applied in housing possession proceedings, for example: you only find out you’ve lost when the bailiffs or police appear to forcibly evict you. In fact this service provision has existed in one form or another since 2000 and was unsuccessfully challenged in the case of Bubaker v Lord Chancellor & Ors [2002] EWCA Civ 1107.
Umpire appeal at cricket match
The latest iteration of the rule expands the type of asylum decision that must be sent to the Home Office for service on the asylum seeker to include decisions to refuse (or not to admit) an application for permission to appeal to the Upper Tribunal made by the person who appealed to the First-tier Tribunal. For some reason this had been left out of previous versions of the rule.
The power is very seldom if ever used to detain an asylum seeker.
Delaying notification about their decision until they are ready to deport them and not giving them notice should result in many more deportations.
Finally, there is still the possibility of a Cart-type judicial review, so this is not necessarily the final stage in any event. And I doubt the High Court would tolerate the imposition of biased service procedures.
Immigration Bill becomes law
Published 14 May 2014
Home Office, UK Visas and Immigration and Border Force
Borders and immigration Minister: James Brokenshire MP
The Immigration Bill received Royal Assent today (14 May).
UK border
The Immigration Bill received Royal Assent today (14 May) making way for a series of reforms which will ensure our immigration system is fairer to British citizens and legitimate migrants and tougher on those with no right to be here.
The Immigration Act 2014 contains 77 clauses and makes fundamental changes to how our immigration system functions.
It will limit the factors which draw illegal migrants to the UK, make it easier to remove those with no right to be here and ensure the Courts have regard to Parliament’s view of what the public interest requires when considering Article 8 of the European Convention on Human Rights in immigration cases.
Immigration Act
Immigration and Security Minister James Brokenshire said:
The Immigration Act is a landmark piece of legislation which will build on our existing reforms to ensure that our immigration system works in the national interest.
We are already planning its implementation and will ensure these measures are introduced quickly and effectively.
The Immigration Act will significantly enhance the way Border Force, Immigration Enforcement and UK Visas & Immigration undertake their work to secure the border, enforce the immigration rules and continue to attract the brightest and the best.
Highlights of the Immigration Act
Cutting the number of immigration decisions that can be appealed from 17 to 4, while allowing us to return certain harmful individuals before their appeals are heard if there is no risk of serious irreversible harm
Ensuring that the courts have regard to Parliament’s view of what the public interest requires when considering European Convention of Human Rights (ECHR) Article 8 claims in immigration cases – making clear the right to a family life is not to be regarded as absolute and unqualified
Clamping down on people who try to gain an immigration advantage by entering into a sham marriage or civil partnership
Requiring private landlords to check the immigration status of tenants, preventing those with no right to live in the UK from accessing private rented housing
Introducing a new requirement from temporary migrants with time-limited immigration status by requiring them to make a financial contribution to the National Health Service
Immigration Act
The Immigration Act will also include powers to prevent repeat bail applications when a removal is imminent, revoke driving licences held by immigration offenders and allow the Home Secretary to deprive a naturalised individual of their British citizenship if their actions have been seriously prejudicial to the interests of the United Kingdom and the Home Secretary has reasonable grounds for believing the person is able to become a national of another country.
Immigration Act
The Immigration Act has been a collaborative effort, involving the Home Office, 12 other government departments, the devolved administrations and the Crown dependencies.
It also continues the Home Office’s work to reduce net migration by focusing on eliminating immigration abuse, including removing from the UK those with no right to be here and preventing others from entering.
