Immigration law update August 2015
Case-law:
- Tigere, R (on the application of) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57
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.”
-MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC)
1.The phrase “unduly harsh” in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
2. Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold.
3. The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.
-Yusuf (EEA - ceasing to be a jobseeker; effect) [2015] UKUT 00433 (IAC)
An individual who has acquired the status of worker for the purposes of article 45 (ex Article 3) TFEU) (and thus regulation 4 (1) (a) of the Immigration (European Economic Area) Regulations 2006) only through being a jobseeker, who is a qualified person under regulation 6(1)(a), does not retain the status of worker on ceasing to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent.
The term ‘worker’ within article 45 covers, to a greater or lesser extent, not only actual workers but also:
(1) those entering a state for the first time to seek employment (‘first-time’ job seekers’)
(2) those who have had a job and are again seeking work (‘second-time job seekers’)
(3) vocational or occupational trainees; the involuntarily unemployed and sick;
(4) injured and retired workers; and,
(5) women who, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, give up work or jobseeking, provided they return to work or find another job within a reasonable period after the birth of the child.
- R (on the application of Bilal Ahmed) v Secretary of State for the Home Department (EEA/s 10 appeal rights: effect) IJR [2015] UKUT 00436 (IAC)
(1) The fact that P (who is not an EEA national) has a right of appeal under the Immigration (European Economic Area) Regulations 2006 against an EEA decision to refuse P a residence card does not have the effect of precluding the Secretary of State from removing P under section 10 of the Immigration and Asylum Act 1999.
(2) Section 92(4)( of the Nationality, Immigration and Asylum Act 2002 (as it was before the changes made by the Immigration Act 2014) does not afford P an in-country right of appeal against the section 10 decision, where the issue of whether P is a member of the family of an EEA national is a matter of dispute.
(3) The factual issue of whether P is a family member falls to be determined by the First-tier Tribunal on appeal by P against the EEA decision and/or the section 10 decision, whether or not P may by then be outside the United Kingdom. A judicial review by P of the decision to remove and/or the setting of removal directions will not succeed where P’s application is based on marriage to an EEA national, if the Secretary of State reasonably suspects P of being a party to a marriage of convenience.
- R (on the application of Oyekan) v Secretary of State for the Home Department IJR [2015] UKUT 00410(IAC)
Judicial Review dismissed; evidential requirements for proxy marriages under EEA law following Kareem and TA and Others (Kareem explained) Ghana discussed.
-R (on the application of Chirairo) v Secretary of State for the Home Department IJR [2015] UKUT 00411 (IAC)
Successful judicial review challenging refusal of leave to remain on the basis of inconsistent treatment with the claimant’s sister.
In 2006, the claimant and his sister were accepted as dependents on their father’s application for leave to remain as a student when their appeals were allowed by the Tribunal, the Tribunal taking into account the fact that the claimant had turned 18 years. The Home Office did not appeal and subsequently granted 5 months leave to the whole family. When the claimant’s father then applied for leave to remain as work permit holder, the family were granted leave as his dependents but the claimant was refused. In subsequent applications, the claimant’s parents were granted Indefinite Leave to Remain and his sister, who was by this time over 18 years, Discretionary Leave to Remain. The challenge was brought against refusal of the claimant’s application for Discretionary Leave to Remain in 2012 highlighting the distinction made between his case and that of his sister.
Judicial review was granted, the Tribunal holding: “This decision was only explicable on the basis that the Home Office had chosen, rather than following or appealing the judge’s decision, to side step it by granting a short period of leave and then disregarding it. That amounted to a clear disregard of the statutory appellate procedure and the decision must be set aside.”
- R (on the application of Hamasour) v Secretary of State for the Home Department (supplementary decision letter – effect) IJR [2015] UKUT 00414 (IAC)
The decision in Nash v Chelsea College of Art and Design [2001] EWHC 538 (Admin) may provide a useful tool on the issue of whether a supplementary decision letter amounts to a fresh decision, or whether it merely supplements the decision already made, and in relation to matters to be considered in terms of the effect of such a supplementary decision letter.
-Iqbal (Para 322 Immigration Rules) [2015] UKUT 00434 (IAC)
(i) The effect of the words “are to be refused” in paragraph 322 of the Immigration Rules is to render refusal of leave to remain the United Kingdom obligatory in cases where any of the listed grounds arises. The decision maker has no discretion.
(ii) The doctrine of substantive legitimate expectations is a nuanced, sophisticated one which should not be prayed in aid without careful reflection.
-NA and VA (protection: Article 7(2) Qualification Directive) India [2015] UKUT 00432 (IAC)
The word “generally” in Article 7(2) of Council Directive 2004/83/EC (the Qualification Directive) denotes normally or in the generality of cases. Thus the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and access to such system by the claimant may not, in a given case, amount to protection. Article 7(2) is non-prescriptive in nature. It prescribes neither minima nor maxima. The duty imposed on states to take “reasonable steps” imports the concepts of margin of appreciation and proportionality.
-R (on the application of GB by litigation friend, Francesco Jeff) v Oxfordshire County Council (age dispute- relevance of documents) IJR [2015] UKUT 00429 (IAC)
The duty of the Tribunal in disputed age assessments is to consider the evidence as a whole, including documentary evidence relied upon, even where there are a number of documents produced purporting to verify the claimed age. SA (Kuwait) v SSHD [2009] EWCA Civ 1157 considered.
-Jobseekers who do not find a job are not workers finds Upper Tribunal
Fortunately, the Upper Tribunal has clarified a pressing issue of European Union law for us in the case of Yusuf (EEA – ceasing to be a jobseeker; effect) [2015] UKUT 433 (IAC):
An individual who has acquired the status of worker for the purposes of article 45 (ex Article 3) TFEU) (and thus regulation 4 (1) (a) of the Immigration (European Economic Area) Regulations 2006) only through being a jobseeker, who is a qualified person under regulation 6(1)(a), does not retain the status of worker on ceasing to be a jobseeker. In such a scenario, the purpose in interpreting article 45 widely – to give effect to the right to move to another member state to seek employment – is absent.
The term ‘worker’ within article 45 covers, to a greater or lesser extent, not only actual workers but also:
(1) those entering a state for the first time to seek employment (‘first-time’ job seekers’)
(2) those who have had a job and are again seeking work (‘second-time job seekers’)
(3) vocational or occupational trainees; the involuntarily unemployed and sick;
(4) injured and retired workers; and,
(5) women who, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth, give up work or jobseeking, provided they return to work or find another job within a reasonable period after the birth of the child.
Не нужно. Это не помогает.