Language requirements In R (Ali and Bibi) v SSHD [2015] UKSC 68, 18 November 2015, the Supreme Court dismissed a challenge to the rule requiring that a foreign spouse or partner pass an English language test before coming to live in the UK.
The Court found that the rule did not breach Article 8 of the European Court of Human Rights, but has invited further submissions from the parties on whether the operation of the current guidance is incompatible with Article 8 where compliance with the rule is impracticable.
The spouses, who had yet to make applications, would have been unable to satisfy the requirement, in Mr Bibi’s case because it would have involved relocating to a different part of the country for several months to study for, and to take, the test, which he could not afford to do, and in Mrs Ali’s case because there was no test centre in the country where she lived. Migration Advisory Committee advice on the Tier 2 General route
MAC asked the Government to look at whether Tier 2 restricted to an expanded shortage occupation list only, whether minimum salary threshold to be raised, whether an Immigration Skills Surcharge should be implemented to be directed towards high level skills provision; whether Tier 2 dependents should continue to receive automatic rights to work. Tier 1 Investor clarification
The UK BA clarified that the reference to Investment Syndicate Companies is intended as a measure to specifically prohibit applications which seek to rely upon investment in so-called ‘namecos’ which operate as part of underwriting syndicates in the Lloyds insurance market. In-country Tier 2 PEO application date
According to the UK BA, the specified evidential requirements, such as the most recent bank statement and the wage slip, would be based on the date of application rather than the date of appointment for those Tier 2 applicants, who lodge their same day applications via the UK BA PSC (PEO). The UK BA reserves the right to ask for the later statement if necessary, but it does not need to be provided up front. Most recent case-law R (on the application of Bent) v Secretary of State for the Home Department IJR [2015] UKUT 00654 (IAC)
Dismissal of a judicial review brought against the Secretary of State’s decision not to revoke a deportation order and to certify the application under section 96 of the Nationality, Immigration and Asylum Act 2002.
The Claimant had lived in the UK since he was 12 and was now 27 years old. He had convictions for robbery, possession of a bladed instrument, drugs possession and had most recently served a three-year sentence for supplying class A drugs. He had a daughter aged 4 years who was a British Citizen and lived with her mother who was her primary carer.
The Claimant argued that his case had been heard prior to the introduction of s.117C of the Nationality, Immigration and Asylum Act 2002 and the new formulation of immigration rules 399 and 399A and the change allowed further arguments to be raised in his case. He also had new evidence in the form of a prison service report confirming his risk of reoffending was low, further evidence of his relationship with his daughter and evidence of his depression. He claimed that the Secretary of State had not properly used her discretion in line with J v Secretary of State for the Home Department [2009] EWHC 705 (Admin) when determining whether certification was appropriate.
The Court held that the introduction of s.117C and the change in the immigration rules did not change the consideration of his case as these were a codification of principles under Article 8 European Convention on Human Rights and the weight to be given to the public interest in the deportation of criminals, which were considered in his original appeal against the making of a deportation order. The claimant’s relationship with his daughter had been properly considered in his original appeal. Though there were changes to the test of whether it would be unduly harsh for the child to remain in the UK without the claimant, this was a high test that the case could not meet given the child lives with her mother and has never lived with her father though she now spends weekends with him. There must be a proportionality exercise imported into that threshold which takes into account the father’s conduct. In relation to private life, the new test of having lived half one’s life in the UK (replacing the test of 20 years residence) had to be approached qualitatively rather than mathematically discounting time spent in prison. In any event, the Claimant could not be said to be integrated in the UK given his series of crimes and there was no reason he could not reintegrate into Jamaica.
The Court found that there was nothing of substance to indicate that the second and third limbs of J (regarding consideration of new matters) were not met and there was nothing to show, in relation to the fourth limb of J, that the Secretary of State should have used her discretion differently. The reason the Claimant was not deported after his original appeal was unsuccessful was that he evaded detention and his repeated attempts to abscond or defeat removal mitigated any argument that Secretary of State should have used her discretionary powers to grant a right of appeal. Wagner (advocates’ conduct – fair hearing) [2015] UKUT 00655 (IAC)
Interesting and to some degree rare decision by the Upper Tribunal to allow the Appellant’s appeal following the rude and aggressive behaviour of the UK BA Presenting Officer during the Appellant’s appeal hearing.
(i) Legitimate advocacy does not extend to aggressive questioning of, or confrontation with, a party or witness. The Tribunal should intervene where this occurs.
(ii) Similarly, mere comments by an advocate under the guise of questioning are improper and may also require judicial intervention.
(iii) Improper conduct on the part of an advocate, unchecked and unrestrained by judicial authority and hearing management, can potentially render a hearing unfair.
После 6 (!) безуспешных часов открыть дверь UK BA извинился перед народом и отпустил всех домой. Поговорил с другим менеджером - Карен. Она начала обзванивать все, кто подается на следующий день, т.е. в пятницу, 18-12-2015, и отменять их appointments. Обещала сегодня перезвонить и уточнить, когда смогут принять решение. Вот так бывает.