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Immigration cases
Secretary of State for the Home Department v SK (Sri Lanka) [2012] EWCA Civ 16 (19 January 2012) Thu January 19
TM, R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 9 (18 January 2012) Wed January 18
Naved (Student - fairness - notice of points) Pakistan [2012] UKUT 14 (IAC) (13 January 2012) Fri January 13
UKBA news
New application form and guidance for Bulgarian and Romanian applications Mon January 16
The UK Border Agency has published a new version of Form BR3, which is used to apply for an accessio
Update for Tier 4 sponsors: educational oversight and other changes Tue January 10
An update for Tier 4 sponsors about educational oversight and information about changes coming into
Tier 1 (Exceptional talent) - new procedure for Arts Council England endorsement Tue January 3
From today, applicants under Tier 1 (Exceptional talent) of the points-based system must follow a ne
Taiwan is added to the Tier 5 youth mobility scheme Thu December 22
From 1 January 2012, Taiwan will join the list of countries and territories that participate in the
London 2012 Games spectators: visa applications open from 1 January 2012 Tue December 20
From 1 January 2012 you can apply for visitor visas to come to the UK to watch the Games.
Masterclass in Immigration Law
David Jones, HJT Director and Garden Court barrister, (“fantastic advocacy skills and charming manner”: Chambers and Partners) presents HJT’s immigration law update on 7th February 2012 at 4pm at their Liverpool street training centre, focusing on recent issues arising from regular migration under the immigration rules. Numerous important decisions have been decided by the courts recently, addressing substantive law issues such as the burden of proof in general refusal cases, the role of the “best interests of the child” in immigration applications, and
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Posted in Immigration | 0 Comment(s)
HJT Directors Review of 2011
The three directors are doing their annual joint course this Thursday, 19th January, a joint review of developments in 2011.
I will be covering immigration law, Mark will be doing EU developments (lucky him!) and David will cover changes in human rights.
Click here to book, there are still some places available.
Topics will include:
Immigration Law – The latest thinking on mandatory refusals, students under the PBS, appeal rights for overstayers and others, litigating and generating decisions under the Legacy, and running deportation
read more>>>
Posted in Training | 0 Comment(s)
Join us for HJT's Review of 2011
On 19 January 2012 the three HJT Directors will be giving a practical summary of legal developments in 2011 in three key areas: immigration under the rules, European Union free movement law, and human rights. Today’s blog concentrates on developments in European Union free movement law, which we will cover in much more detail at the training (subsequent posts will address the other two critical features).
Do you ever have a case where there is a shortage of evidence of ongoing exercise of Treaty rights by an EU national and your efforts to corroborate that fact have run aground?
read more>>>
Posted in EEA | 0 Comment(s)
HJT immigration manual on Kindle
Got a new Kindle for Christmas? Why not treat yourself (!) to the 10th edition of the HJT immigration manual on Kindle!
We have uploaded the individual chapters to the well known Amazon e-bookstore. Each is priced at £4.59, which is the cost of the manual minus printing costs divided by the number of chapters.
The advantage for you is that you don't need to lug the hard copy around with you and you can just download the chapters that are relevant to your studies or your practice. Even if you buy all 14 chapters there is still a cost saving for you.
This is a
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Posted in Training | 2 Comment(s)
Judicial Review Conference
HJT Training’s acclaimed
annual judicial review conference gives you the chance to keep up to date and
hear from leading practitioners on the implications of the latest developments
in judicial review in the immigration field. We aim to refresh the knowledge of
practitioners regarding procedures and funding, and to address the latest
substantive law, including the impact of the transfer of some immigration
judicial review proceedings into the Upper Tribunal.
We commence with an overview
of the year’s developments before
experienced practitioners discuss funding,
read more>>>
Posted in Training | 0 Comment(s)
Stuck at OISC Level 1?
HJT Training
invites you to a series of workshops designed to help you get to Level 2. This
series of 3 hour early evening courses is unique in the sector.
Each workshop
looks in a practical way at the key skills needed to run a successful
immigration case. From taking initial instructions through to drafting a Notice
of Appeal to the First-tier Tribunal, the course examines the vital stages in
case preparation. The session wil include an introduction, group and individual
work, case studies, and plenty of time to ask questions.
The workshops
are designed and run by Julian
read more>>>
Posted in Training | 0 Comment(s)
Judicial Review in the Upper Tribunal - HJT's December Conference
HJT Training held a very successful session on the transfer of judicial reviews to the Upper Tribunal on 30 September 2011. Speakers included Deputy President of the Upper Tribunal (Immigration and Asylum Chamber) Mark Ockelton, and Jawaid Luqmani. You can see Colin Yeo’s useful blog with links to key resources here.
We learned the following:
1) There will be a form equivalent to the N461;
2) Fees will almost certainly be the same;
3) The facility to give an undertaking on fees will likely be
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Posted in Judicial review | 0 Comment(s)
Transfer of judicial review
The conference on transfer of some forms of judicial review into the Upper Tribunal was a sell out and the event was a great success. Mark Ockelton, Deputy President of the Immigration and Asylum Chamber of the Upper Tribunal, revealed a number of interesting points, including the pending release of further Statutory Instruments and the Lord Chief Justice's new practice direction.
Those documents are now available:
Practice Direction
Explanatory memorandum to SIs below
The Tribunal Procedure (Upper Tribunal) (Amendment) Rules 2011
The First-tier Tribunal and Upper
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Posted in Judicial review | 0 Comment(s)
10th edition of HJT manual
We've now completed work and printed the 10th edition of the HJT Immigration Manual. It is available to buy here. A free sample (the contents pages, introduction and chapter one, on immigration control) can be downloaded here.
The 10th edition continues the tradition of gradual improvement from earlier editions and the trend away from mere training notes towards a fully fledged textbook. Various diagrams have been used to break up the text and help illustrate points and concepts, and the manual now includes a large number of useful examples and case studies.
The manual was
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Posted in Training | 0 Comment(s)
Asylum Appeals to the Court of Appeal Radically Cut
It is a dark day for asylum seekers and their ability to obtain lawful adjudications on their appeals on Refugee Convention grounds. Alive to the 77% increase in applications for permission to appeal in immigration cases since 2005, the majority of which were from reconsiderations by ordinary Immigration Judges that raised no point of general importance, the Court of Appeal in PR (Sri Lanka) & Ors v Secretary of State for the Home Department (Rev 2) [2011] EWCA Civ 988 (11 August 2011) has at last confronted the meaning of the “Second Appeals” test, which must be satisfied
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Posted in Appeals | 0 Comment(s)
CPD on the Beach
What better way to spend an idle moment during the summer
holidays than reading a briefing which attracts CPD points if some accompanying
multiple choice questions are answered. You can record
your answers on paper at the time, and then send them to our office when you
are back at work.
Immigration Practitioners are invited to benefit from this
Briefing as a Gift from HJT Training.
International Protection Law
Update (Refugee, Humanitarian Protection and Human rights)
Those wishing to claim Four Hours of CPD by correctly answering Multiple Choice Questions,
read more>>>
Posted in Immigration | 0 Comment(s)
Supreme Court finds immigration detainee was falsely imprisoned
On 25 May 2011 the Supreme Court allowed the appeal in Kambadzi v Secretary of State for the Home Department [2011] UKSC 23
The issue was whether the Appellant was falsely imprisoned in circumstances in which there was a statutory power to detain, but the Secretary of State had failed to exercise that power in accordance with her published policy by conducting monthly reviews. By a majority of 3:2 the Court found that the conduct of the reviews was fundamental to the propriety of continued detention. The Secretary of State’s failure to conduct monthly reviews amounted to a
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Posted in Deportation and removal | 0 Comment(s)
Proving Rights of Residence regarding EEA Estranged Spouses
In the recent decision of Amos, we find the Court of Appeal commenting on the approach to the European Union law of right found in the Citizens Directive and transposed into the domestic EEA Regulations by Regulation 10(5) and 15(1)(f).
The Court summarised the requirements for permanent residence for a person relying on the retained right of residence following marital breakdown as follows: 1) At all times while residing in this country until their divorce, the spouse of the applicant family member must have been a worker or self-employed or have sufficient resources including
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Posted in EEA | 0 Comment(s)
Zambrano: what does it mean in the UK?
The new European Court of Justice case of Zambrano represents a radical
departure away from previous case law and understanding of European free
movement law and towards a new concept of European citizenship rights. For the
first time the ECJ held that all citizens of Member States have a right to 'the
genuine enjoyment of the substance of the rights attaching to the status of
European Union citizen'. Movement across borders is unnecessary, as is economic
activity of any sort. This has wide implications for cases involving British
children but may also offer new arguments in
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Posted in Immigration | 4 Comment(s)
Zimbabweans - new Country Guidance in EM, and developments on Article 8
The decision in EM Zimbabwe of 14 March 2011 changes the prevailing situation of Zimbabwe asylum seekers. From 19 November 2008 until 13 March 2011, RN Zimbabwe prevailed, meaning that the critical issue for a person whose primary asylum claim had failed, and now relied on the general country evidence, was whether they could show loyalty to the Zanu-PF regime, in circumstances where they might face roadblocks at which their knowledge of the party’s songs and propaganda might be tested. This was the case whether they were from a dense urban area or a rural one. Anyone forced to lie to
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Posted in Asylum law | 0 Comment(s)
Fresh claims
In R (on the application of MN (Tanzania)) v Secretary of State for the Home Department [2011] EWCA Civ 193 the Court of Appeal has yet again returned to the vexed issue of the standard of review in asylum fresh claim judicial reviews. As Mark discussed last week, this category of judicial review claim will be heard in the Upper Tribunal from 1 October 2011.
The first paragraph of the judgment is quite wistful for earlier, simpler times:
There was a time when the development of the law by judicial decision progressed at a measured pace and had the appearance of
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Posted in Asylum law | 0 Comment(s)
Immigration Judicial Review moving to Tribunal
Presently the Administrative Court has a power to transfer judicial review proceedings into the Upper Tribunal: but rather a sterile one in the immigration field, because of the wording of section 31A of the Seniors (previously, Supreme) Courts Act 1981, which excludes judicial review where it involves a challenge to a decision made under the immigration acts or the British Nationality Act 1981. Now the Government has expressed, via a statement by Lord McNally, its intention to commence Section 53 of the Borders, Citizenship and Immigration Act 2009 with effect from 1 October 2011, opening up
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Posted in Judicial review | 0 Comment(s)
Bringing workers into the UK - European Union law and Vander Elst
As entry for migrants becomes increasingly difficult under the Points Based System, it is necessary to consider what other avenues might be available for firms to bring staff into the United Kingdom. For those firms incorporated elsewhere in the European Union there may be an avenue under the Vander Elst principle. In Raymond Vander Elst v Office des Migrations Internationales. (Freedom to provide services) [1994] EUECJ C-43/93 (9 August 1994) the national court asked whether the European Treaty was to be interpreted as precluding a Member State from requiring undertakings which are
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Posted in Points Based System | 0 Comment(s)
Can an asylum seeker be a student for immigration rule purposes ?
Can an asylum seeker be a student for immigration rule purposes ? This matters in practice, because if they can, it might be wrong for the Secretary of State to curtail their leave to remain as a student when refusing them asylum. Time there was when one might have imagined only answer to this question being negative, particularly because the old immigration rule on students, rule 57(iv), included the requirement that a student “intends to leave the United Kingdom at the end of his studies;”: and how could a person asserting a fear of persecution in their country genuinely claim
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Posted in Points Based System | 1 Comment(s)
Effect of a determination on non parties
The High Court recently had reason to consider the extent to which courts and tribunals are able to bind non-parties with a determination or judgment. The case is R (on the application of
PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin)
(04 August 2010) and it makes interesting reading for anyone dealing with tribunal cases like NA & Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031.
Mr Justice Hickinbottom held, in short, that a tribunal determination is not binding on any person or body who was not party to the determination. The context
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Posted in Appeals | 0 Comment(s)
Points Based System – HJT’s Historic Policy Links
Keeping track of the
various generations of Forms and Policy Guidance for Points Based System
applications is a real job. We now provide links to each generation of guidance
that we have been able in a publicly accessible location for Tiers 1-2, 4 and
5, here. Seasons Greetings!
read more>>>
Posted in Points Based System | 2 Comment(s)
Deportation Proceedings
Deportation Proceedings
HJT aims to give a professional service to support our clients in their casework,
and for that reason, we now intend,
from time to time, to put up pages that link to important
sources of information via various
themes. Colin has recently put one up on the topic of Points Based System case
law. This blog addresses all aspects of deportation: statutory materials, the
immigration rules, and the important case law. And it links to the course that
HJT offers from time to time regarding practical representation in deportation
proceedings.
Section
read more>>>
Posted in Deportation and removal | 1 Comment(s)
Family Members of Points Based System Migrants
The remedies for those who have been refused entry clearance (visas) under the Points Based System (PBS) are rather slight. There is in general no appeal under the immigration rules, a restriction achieved by a rather arcane legislative route: section 88A(1) of the Nationality Immigration and Asylum Act 2002 explains that a person may not appeal against refusal of entry clearance if the decision to refuse is taken on grounds which relate to a provision of immigration rules specified by Order of the Secretary of State. There is such an Order: for the Immigration, Asylum and
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Posted in Points Based System | 0 Comment(s)
Fees to lodge appeals on the way
The Government intends to start charging fees to lodge immigration appeals, including asylum appeals. A 12 week public consultation has been launched. You can have your say and access the relevant documents here.
The proposed fee levels are as follows:
Around £65 for paper hearings in the First-tier Tribunal
Around £125 for oral hearings in the First-tier Tribunal
Around £250 for Upper Tribunal appeals (£50 for permission application, £200 for a full hearing)
It is proposed that the following be exempted from the fees
read more>>>
Posted in Appeals | 0 Comment(s)
PBS appeals
I thought this list of appeal decisions and links to BAILII might be useful for reference. Several of the older determinations have been superseded, of course. I've included headnotes or short comments for the current decisions.
CDS
(PBS "available" Article 8) Brazil [2010] UKUT 305 (IAC)
1. Funds are “available” to a claimant at the material
time if they belong to a third party but that party is shown to be willing to
deploy them to support the claimant for the purpose contemplated.
2. Article 8 does not give
read more>>>
Posted in Points Based System | 2 Comment(s)
New Presidential Guidance Note
The Presidents of the Immigration and Asylum Chambers of the First Tier and Upper Tribunals have issued a new joint Guidance Note on child, vulnerable and sensitive witnesses. It supplements rather than replaces the existing Practice Direction by the Uber President of the Tribunal, Lord Justice Carnwath.
It is essential reading for any advocates intending to call such witnesses and provides very useful and humane guidance on the role of the judge in ensuring a fair hearing.
read more>>>
Posted in Appeals | 2 Comment(s)
Points Based System 2 - Technical Refusals and Disproportionate Consequences
The Points Based System was supposed to replace the old immigration rules with a system that was clearer and more objective. But is it really fair? Time and time again ones comes across cases where people are penalised for technical errors, often minor slips in immigration applications which are then returned as invalid by the Home Office, leading to the migrant (who hitherto has fully abided by the rules) suddenly finding themselves without leave to remain, unable to extend their stay under the immigration rules.
The best way of responding to unfairness is to use discretion. As the
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Posted in Points Based System | 0 Comment(s)
New season of courses
HJT's new season of immigration training is now available for booking. For ease of reference the courses are as follows:
Long
Residence
Monday 4th October 2010 (Azhar Chohan)
EU Law
Update
Wednesday
6th October 2010
(Sandra Akinbolu)
Immigration
Update
Tuesday
12th October 2010
(Allan Briddock)
Domestic
Violence
Monday 18th October 2010 (Colin Yeo)
OISC
Level 1 Accreditation
Tuesday 19th October 2010 (Vincent Fox)
Running
PBS Appeals
Wednesday
20th October 2010
(Colin
read more>>>
Posted in Training | 0 Comment(s)
Immigration Amnesty
Nothing quite gets the blood racing like this topic. So I thought I would briefly write about some aspects of the question.
Firstly, of course, it must be appreciated that there is no such thing as an amnesty officially acknowledged. Such material as there is inhabits the blandly designated territory amongst the Home Office policies “Enforcement Instructions”, under Chapter 53, “Extenuating circumstances”. In their introduction these inform us that the Secretary of State will not seek to remove people incompatibly with their human rights: but will also forgo
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Posted in Deportation and removal | 1 Comment(s)
Withdrawal of refugee status: August 2010 watershed
Until 30 August 2005, persons recognised as refugees in the UK were granted Indefinite Leave to Remain. Generally there would be no reason for this grant of leave to be reviewed, unless perhaps in a case where an individual came to the adverse attention of the authorities, for example through criminal activities. However after that date a refugee receive a Residence Permit (UKRP) valid for five years, at the end of which time they must make an application for indefinite leave to remain: see immigration rule 339Q(i). It appears that those who apply for settlement before their UKRP expires will
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Posted in Asylum law | 0 Comment(s)
Direction to grant ILR unlawful
In the case of IT (Sierra Leone) v Secretary of State for the Home Department [2010] EWCA Civ 787 the Court of Appeal has held that it was unlawful for an Immigration Judge to have made a direction for the Respondent to grant ILR following a successful Article 8 appeal.
The Court cites Farinloye v Secretary of State for the Home Department [2010] EWCA Civ 203 and also R (Islam Shahid) v Secretary of State For The Home Department [2004] EWHC 2550 (Admin) and establishes quite comprehensively that (a) there is no power under s.87 of the 2002 Act to make a
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Posted in Appeals | 0 Comment(s)
Immigration Law - Long Residence
Many migrants apply to remain in the UK having been here for significant periods of time, under the long residence rules. These entered the immigration rules and partially replaced the long residence “concession” some time ago. In essence the requirement under the rules is that a person who has been in the UK for ten years legally (with no absences abroad for more than 6 months), or for fourteen years unlawfully prior to enforcement action such as a notice of liability to removal “stopping the clock”, where there is no contrary “public interest” reason to
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Posted in Immigration | 1 Comment(s)
He who asserts must prove
There is a useful reminder from
the tribunal that he who asserts must prove in the case of MH (Respondent's bundle: documents not provided)
Pakistan [2010]
UKUT 168 (IAC).
The ECO asserted that some of
the bank statements relied on were false. The appeal was originally decided on
the papers, and the judge found that deception had been proved by the ECO’s
documentation verification report. On appeal, the tribunal found that there was
no such report on file and the Presenting Officer could find no trace of such a
report on the UKBA computer system. In short, there was no
read more>>>
Posted in Appeals | 0 Comment(s)
Points Based System 1 - Leave to Remain and New Applications
Many people fall foul of the strict procedural requirements of the Points Based System, leaving them with a refusal from the Home Office, and in a quandary as to what step to take next. This may be because an individual fails to provide the documents that the policy guidance mandates as necessary to prove their entitlement under the Rules. Immigration lawyers have been used to rules which prevented further applications succeeding once one application had failed: for example by a mandatory refusal where an individual had overstayed their leave to enter; or via an
read more>>>
Posted in Points Based System | 3 Comment(s)
Strict approach to general grounds
In FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC) Mr Ockelton has on behalf of
the tribunal adopted a strict approach to the meaning of deception under the
general grounds for refusal.
The appellant had ticked
the box on the VAF asking whether he had any criminal convictions. In fact he
had a conviction for a traffic offence. He was refused under rule 322(1A) on
the basis of non disclosure and false representations. This rule is very
broadly drafted:
“(1A) where false
representations have been made or false documents or information have
read more>>>
Posted in Immigration | 0 Comment(s)
Tribunal's milk teeth showing through
The case of CS
(Tier 1 home regulator) United States of America [2010] UKUT 163 (IAC) is
far more important than its title suggests. The President, Mr Justice Blake,
confirms at paragraph 7 that the consent of the Upper Tribunal is required if
the Respondent attempts to withdraw a decision in order to ‘kill’ an appeal:
"At the outset Mr Laverty
Senior Home Office Presenting Officer sought to withdraw the decision in order
for the respondent to re-determine it, as he submitted that the Guidance had
not been properly applied by the IJ and the interpretation reached
read more>>>
Posted in Points Based System | 3 Comment(s)
Weight to be given to offending
In the new case of Secretary of State for the Home Department v HK (Turkey) [2010] EWCA Civ 583 the Home Office failed in its attempt to overturn an allowed appeal against deportation.
The Home Office argument was that the tribunal,
by considering the
circumstances surrounding the committal of the offence, was
impermissibly trespassing on the nature and seriousness of the offence, which
was a matter for the Secretary of State
The Court also rejected the Home Office contention that there was no family life between the adult offender and his parents as there were no
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Posted in Deportation and removal | 0 Comment(s)
The Upper Tribunal Pt 2: Reopening Findings
Can an Immigration Judge in the Upper Tribunal revisit the findings of the Tribunal that transferred the matter to him - to use the language of the last era of the Tribunal, in what circumstances would it be proper to go behind the “pink form” expressing the reasons for the case moving from first to second stage reconsideration ? Nothing in the language of the Rules or legislation suggests that the findings as to error of law are any more fragile than was hitherto the case. It is not obvious that the fact the appeals system now comprises two tiers reduces the judicial
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Posted in Immigration | 0 Comment(s)
The tribunal as initial decision maker
In the recently reported case
of MS (AS & NV considered) Pakistan
[2010] UKUT 117 (IAC) the tribunal has taken on board the Court of Appeal
judgment of AS and NV [2009]
EWCA Civ 1076 and accepts that in more cases the tribunal will have to act as
first instance decision maker.
AS and
NV was about the separation of rights of appeal from
grounds of appeal in sections 82 and 84 of the 2002 Act. Because of this slightly
odd statutory separation, the Court of Appeal held that it does not matter what
type of immigration decision gives rise to a right of appeal,
read more>>>
Posted in Immigration | 0 Comment(s)
Points Based System changes
The recent changes to the PBS in Statement of Changes HC 439 increase the earnings required to score points in Tier 1 to £25,000 but as a sweetener make it easier for very high earners to score points with earnings over £40,000, including 75 points for in excess of £150,000.
Intra-Company Transfers would appear to have proven too popular, as restrictions on eligibility for settlement for new ICT-ers have been introduced, presumably to make the route less attractive.
Tier 2 was also revamped slightly, with minimum earnings increased to
read more>>>
Posted in Immigration | 0 Comment(s)
Signing interview records
In a little-noticed change to the Immigration Rules, the requirement to ask asylum seekers to sign their asylum interview record has finally, belatedly been removed. This was always an unfair request as the interviews were not read back to interviewees and there has been no independent interpreter allowed at the interviews for some years now. As far as we are aware no asylum seeker with representation has actually acceded to this request for a very long time.
See Statement of Changes HC 439 paragraph 55, and the now amended Immigration Rule 339NC, from which the offending paragraph
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Posted in Asylum law | 0 Comment(s)
The Upper Tribunal – 1
Will we see a new era of superior decision making now we have the Immigration and Asylum Chamber of the Upper Tribunal ? There is certainly a radical change of personality, given that doyen of refugee advocates Nicholas Blake heads the operation in his judicial persona. And judges of the higher courts are members of both Upper Tribunal and the First-tier Tribunal, so we may see judges familiar to us from the Court of Appeal and elsewhere appearing in Field House. But there are differences of legal power, too. The Upper Tribunal’s predecessors were creatures of statute, and possessed no
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Posted in Asylum law | 0 Comment(s)
Welcome to the HJT Training immigration blog
We intend to use this blog to keep readers up to date with
the latest legal developments in immigration and asylum law. We will focus on
case law and legislative changes.
Several authors will contribute to the blog. If you are
yourself interested in writing a guest post on a subject of interest to you
(which would also be of interest to our readers!) then please get in touch.
We are open to suggestion and as this is a new project for
us we may well make changes as we progress and develop. For example, at launch
there is not yet a full facility to subscribe to the blog by email,
read more>>>
Posted in Training | 0 Comment(s)
