21 February 2017 - UK & EEA Immigration Law Updates from the Legal Centre
ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>
RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>
⦁ Updated guidance on Small' sponsor Immigration skills charge (17 February 2017)
The immigration skills charge in s85 of the Immigration Act 2016 will be set at £1000 per employee per year , £364 for small businesses and charities. But what is small?
The Companies Act 2006 has been amended so that small is now an turnover of £10.2 million or less – see s 382 therein.
£10.2 million is also the figure given in the UKVI website relating to businesses applying to become a registered sponsor:
<noindex>https://www.gov.uk/uk-visa-sponsorship-empl...or-your-licence</noindex>
⦁ Shortage of judges hits immigration tribunals: <noindex>https://www.lawgazette.co.uk/news/shortage-...5059890.article</noindex>
A rapid decline in the number of immigration tribunal judges could herald a crisis, despite the government’s insistence that there is sufficient capacity to deal with a growing backlog of work.
Government figures show that in 2012 there were 347 fee-paid and 132 salaried judges in the first-tier tribunal. In 2016 there were only 242 fee-paid and 77 salaried. In the upper tribunal, a headcount of 40 fee-paid and 42 salaried judges in 2012 declined to 35 fee-paid and 42 salaried last year.
Official figures show there were 62,903 outstanding cases in the first-tier tribunal at the end of the third quarter last year, up 20% on the same period in 2015. The age of a case at disposal was 48 weeks between July and September 2016, 15 weeks longer than the same period in 2015…
⦁ New report shows detainees in prison denied immigration advice: <noindex>http://www.biduk.org/detainees-prison-deni...e-%E2%80%93-bid</noindex>
Hundreds of foreign nationals in the UK are being denied access to immigration advice according to new research from the charity Bail for Immigration Detainees (BID). In their new report, Mind the Gap: Immigration Advice for Detainees in Prisons, BID has found that just 1 in 20 people held under immigration powers in prison have received independent advice on their immigration case. More than 10% of immigration detainees in the UK – some 500 at any one time – are held in prisons rather than Immigration Removal Centres.
⦁ Pilot of the powers to search for and seize UK driving licences held by illegal migrants, 14 February 2017
<noindex>http://data.parliament.uk/DepositedPapers/...al_migrants.pdf</noindex>
Government plans to pilot the powers set out in s 43 of the Immigration Act 2016 to search for and seize UK driving licences from those without leave to enter or remain are announced in this letter from Baroness Williams, the Home Office minister in the House of Lords to the shadow minister, Lord Rosser.
The pilot is intended to address concerns raised in parliament during the passage of the Immigration Act 2016 about the impact on Black and Minority Ethnic communities of the stop and search of drivers under the provisions. The letter explains that police will conduct the pilot in Kent and West Yorkshire. The powers have not yet been commenced. There will be an initial period of collecting baseline data that will begin this month when the powers will not be in force. Following the collection of sufficient baseline data, the driving licence powers will be commenced in the pilot areas only. Immigration Enforcement will separately pilot their use of the driving licence powers in the same areas. There will then be a public consultation on the powers after the pilot has been concluded.
<> Caselaw Update: Recent Upper Tribunal and forthcoming Supreme Court judgments
Recent Upper Tribunal judgments
R (on the application of Munyua) v Secretary of State for the Home Department (Parties’ responsibility to agree costs) [2017] UKUT 00078 (IAC): <noindex>https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-78</noindex>
Where judicial review proceedings are resolved by settlement, the parties are responsible for doing all they can to agree costs, both as to liability and amount, rather than leaving this to the decision of the Tribunal, which is likely to carry its own penalty.
Neshanthan (cancellation or revocation of ILR) [2017] UKUT 00077 (IAC): <noindex>https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-77</noindex>
i) Article 13 of the Immigration (Leave to enter and Remain) Order 2000/1161 (the “2000 Order”) applies to holders of indefinite leave to remain (“ILR”) who travel to a country or territory outside the common travel area so that their ILR does not lapse but continues if Article 13(2)-(4) are satisfied.
ii) If the leave of such an individual continues pursuant to Article 13(2)-(4) of the 2000 Order, an immigration officer has power to cancel their ILR upon their arrival in the United Kingdom.
iii) The grounds upon which such leave may be cancelled are set out at para 321A of the Immigration Rules.
iv) Section 76 of the Nationality, Immigration and Asylum Act 2002 Act is an alternative and additional power, available to the Secretary of State, to revoke indefinite leave to enter or ILR in the circumstances described at s.76(1)-(3) of the 2002 Act.
The appellant in this case had been granted Indefinite Leave to Remain (ILR) following ten years lawful residence in the UK as a student. On his return to the UK after a short absence, his ILR was cancelled by an Immigration Officer at port on the basis that he had fraudulently obtained his English Language (TOEIC) certificate when he applied for leave to remain as a student.
Following his appeal to the First-tier Tribunal, leave to appeal was granted by the Upper Tribunal to consider the question of whether an immigration officer has the power to cancel ILR at the port of entry. The Upper Tribunal concluded that an immigration officer does have this power and its summary of conclusions on the issue is copied in the head note.
The Upper Tribunal also considered the appellant’s application for permission to appeal the finding that the appellant had obtained his TOEIC fraudulently which was renewed orally at the hearing. This was heard on a provisional basis as the parties were not in a position to address without an adjournment the question of whether the procedural rules empower the Upper Tribunal to reconsider its own decision on permission. The question is discussed in the judgment but the Tribunal found that the grounds for permission were wholly unarguable in any event. It was reasonable for the Immigration Judge to have rejected as unreliable the medical evidence submitted to explain that the appellant had not been fit and well when he stated under questioning in his interview at port that he did not take the English language test himself and that this was arranged by someone else. The non-attendance of the Secretary of State at the First-tier Tribunal and lack of cross-examination did not mean there was no challenge to the evidence. The appellant’s admission at interview could be relied upon by the respondent to discharge the initial and overall legal burden to establish deception whatever the shortcomings in the generic evidence on the English language testing issues. The reliance on the interview responses by the judge did not mean he placed the burden of proof on the appellant.
Forthcoming Supreme Court judgments
Look out for the decisions of the Supreme Court that will be handed down on Wednesday 22 February 2017 at 9:45am in the following cases (and joined appeals):
R (on the application of MM (Lebanon)) v Secretary of State for the Home Department
Whether the introduction into the Immigration Rules of a Minimum Income Requirement (MIR) for a UK citizen or resident wishing to bring a non-EEA spouse or partner into the UK is in breach of art. 8 ECHR, unlawfully discriminatory and/or irrational?
R (on the application of Agyarko) v Secretary of State for the Home Department
1. Whether the requirement that an applicant for leave to remain in the UK, who formed a relationship with a British citizen while present in the UK unlawfully, must demonstrate either "insurmountable obstacles" to that relationship continuing in a different country or "exceptional circumstances" to justify consideration outside the scope of the Immigration Rules, is compliant with art.8 ECHR.
2. Whether the tests of "exceptionality", "exceptional circumstances" or "compelling circumstances" where applicants for leave to enter or remain do not satisfy the Immigration Rules are compliant with art.8 ECHR.
R (on the application of RN v Secretary of State for the Home Department (paragraph 245AAA) [2017] UKUT 00076(IAC): <noindex>https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-76</noindex>
(i) On a proper construction of paragraph 245AAA(a)(i) of HC 395, an absence from the United Kingdom for a period of more than 180 days in one of the relevant 12 month periods will entail a failure to satisfy the requirements of paragraph 245CD.
(ii) The term ‘residence’ in paragraph 245AAA(a) is to be equated to presence.
The impact of absences on continuous lawful residence for the purpose of Indefinite Leave to Remain as a Tier 1 (General) migrant under paragraph 245CD of the Immigration Rules was considered in this application for judicial review decided by Upper Tribunal Judge Allen.
A continuous period of five years lawful residence in the UK is required for Indefinite Leave to Remain under this rule but the relevant provisions on absences under paragraph 245AAA have changed over time. There was no maximum period of permitted absences in the rule until 13 December 2012, when the rule identified absences of more than 180 days as breaking continuous residence. On 09 April 2015, the Secretary of State introduced a new policy on the exercise of discretion in cases where ‘serious or compelling circumstances had led to the absence.
RN had had absences of more than 180 days during the first two years of her five years leave to remain in the UK, both of which were during the period in which there was no maximum period of permitted absences. Her absence during the second year arose because her mother was kidnapped in Nigeria but this was rejected by the Home Office as a serious or compelling circumstance on the basis that her evidence and the police report did not amount to proof of the kidnap.
RN argued that the Secretary of State had misconstrued the meaning of a ‘continuous period of five years lawfully in the UK’ in the rule in the light of BD [2010] UKUT 418 (IAC). She also argued with reference to R v London Borough of Barnet ex parte Shah [1993] 2 AC 309 on ‘ordinary residence’ that the reference to residence in the rule did not mean presence. Both arguments were dismissed. The judge found that BD was of limited assistance as it was determined when there was no definition of ‘continuous period’ in the immigration rules but that this was now included in the rule. The case of Shah, decided in the context of local authority education awards did not assist. It was necessary to take account of the statutory framework or legal context and if residence was not equated to presence then the purpose of the provision on residence would be unclear and it would be differently defined within the same rule.
RN’s argument that the Secretary of State should have treated as a relevant circumstance the fact that her absences took place during the period in which there were no restrictions on absences within the rules also failed. Following Odelola [2009] UKHL 25, the Secretary of State is not obliged to consider or apply its old rules and guidance. To do so would undermine the certainty and predictability needed for the operation of the immigration system. There was no failure in choosing not to exercise discretion on this point either. The Secretary of State chose to create a policy where discretion may be exercised in serious and compelling circumstances and this policy is rational.
The judge considered that the kidnapping of RN’s mother in Nigeria would amount to a serious and compelling circumstance and the summary dismissal of the police report and RN’s own evidence without adequate reasoning was unlawful. However, as this reason for absence only applied to one of the two years in question, it did not change the decision to refuse the application for judicial review.
UK BA on-line EEA PR application form error The form now asks applicants to specify any absences from the UK of over six months rather than every single absence ever, which is incredibly helpful to many. If that is selected, however, the response generated on the final application form states: “Have you spent more than 6 months outside the UK in total in any one year since you arrived in the UK? - "I haven't had any absences outside the UK”. This is not necessarily accurate and raises questions as to whether the final declaration can safely be made on the form by applicants who have been outside the UK but for less than six months per year. The UK BA UK Visas and Immigration informs that this is a mistake and intends to correct it on the on-line form early next week