UK and EEA Immigration Law Update November 2015
•UK BA Guidance on EEA case-law and appeal: <noindex>https://www.gov.uk/government/publications/...law-and-appeals</noindex>
•IAC appeal listing priority:
Some categories below are mutually exclusive, but the priority will be, subject to above
1) Detained appellants, (including bail)
2) Deprivation of Citizenship
3) Appeals involving children, (including those linked to a parents appeal), both in and out of country
4) Asylum appeals
5) Other appeals
Currently it takes about 8-9 months for the appeal to be heard from the date the appeal is lodged to the IAC, and the gap is growing
•Police Registration using the 30 day visa (to collect the migrant’s BRP card)
The following information confirms that one only has to register with the Police using either the 30 day visa or the BRP once it has been collected. Any subsequent changes will then need to be made in the usual way: <noindex>http://content.met.police.uk/Article/How-t...0/1400028544770</noindex>
Recent case-law
•R (on the application of Turay) v Secretary of State for the Home Department IJR [2015] UKUT 00485 (IAC)
Judgment of Ockelton, J dismissing a judicial review of the Secretary of State’s decision to refuse leave to remain as a spouse under Appendix FM.
The challenge was brought on the basis on the basis that the Secretary of State failed to interpret the rules in light of Article 8 of the European Convention on Human Rights and make further enquiries in order to reach a lawful decision in this case where the claimant had made their initial application without representation.
The Court held that there was no basis on which the Secretary of State should have investigated whether there were insurmountable obstacles to family life abroad. The claimant had ticked the box on the form indicating that she and her husband could live together outside the UK if necessary, there was no further information in the application to indicate that was a mistake and no basis for the Secretary of State to override that assertion. The argument that the Secretary of State failed to ask appropriate questions and consider whether paragraph 276ADE of the Immigration Rules on long residence applied instead was also unsuccessful.
•Weldemichael and another (St Prix [2014] EUECJ C-507/12; effect) [2015] UKUT 00540 (IAC)
An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations) for a period in which she was absent from working or job-seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJEU in Jessy St Prix:
(a) at the beginning of the relevant period she was either a worker or seeking employment;
( the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);
© the relevant period did not extend beyond 52 weeks; and,
(d) she returned to work.
So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.
•Barry (conduct of hearing) [2015] UKUT 00541 (IAC)
In appropriate cases, for example appeals in which the grounds and arguments involve an unmeritorious challenge to the rationality of the decision of the FtT, Upper Tribunal Judges, bearing in mind the overriding objective, should not hesitate to determine the appeal without hearing from the Respondent’s representative.
•KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 (IAC)
The Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of s117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.
•Tigere, R (on the application of) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57. Supreme Court upholds challenge to student loan blanket ILR eligibility requirement.
Paragraph 49
“the appellant is clearly entitled to a declaration that the application of the settlement criterion to her is a breach of her rights under article 14, read with article A2P1, of the Convention. ...Such a declaration would leave the department in no doubt that this appellant is entitled to a student loan, while leaving it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of other applicants, now and in the future.”
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