Free Movement news COPY

Question 1

JH (Palestinian Territories) v Upper Tribunal [2020] EWCA Civ 919

Answer 1

builds on the principle that the Home Office can be found liable for expenses in Cart/Eba type judicial review cases. The Court of Appeal has confirmed that the issue of costs should not be decided by the High Court itself and should be transferred to the Upper Tribunal for the final call once the substantive issue is decided.

Question 2

section 19 of the Tribunal, Courts and Enforcement Act 2007

Answer 2

allows for applications to be transferred out of the High Court to the Upper Tribunal, even if just to deal with the issue of costs.

Question 3

A Cart JR is `

Answer 3

a challenge by way of judicial review against a decision made by the Upper Tribunal (UT), Immigration and Asylum Chamber, to refuse permission to challenge a First-Tier Tribunal decision, in circumstances where there is no further right of appeal to the Court of Appeal.

Question 4

A Cart JR needs to be brought within`

Answer 4

16 days of the UT decision, rather than 3 months, as is the case with most other judicial reviews, and, crucially, the 16 days start on the date on which the UT permission refusal was sent.

Question 5

Faqiri v Upper Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 151

Answer 5

the UK government can be asked to pay expenses where a judicial review has been brought against the Upper Tribunal’s refusal to grant permission to appeal

Question 6

Test for Cart JRs

Answer 6

“second appeals test”:

that the proposed appeal would raise some important point of principle or practice, or
that there is some other compelling reason for the relevant appellate court to hear the appeal

Question 7

Coronavirus concession

Answer 7

Those in UK on visas expiring between 24 Jan and 31 Jul - could apply for extension to 31 Jul if unable to travel home due to coronavirus (online form).

“Grace period” until 31 Aug - don’t need to notify HO if staying on during grace period

“Exceptional indemnity” - if you intend to leave the UK but are not able to do so by 31 August 2020, you may request additional time to stay, also known as ‘exceptional indemnity’, by contacting the coronavirus immigration team (CIT).

Question 8

BALAJIGARI

Answer 8

Re para 322(5), which applies where it is “undesirable” to permit an applicant to remain in the UK “in the light of his conduct … character or associations or the fact
that he represents a threat to national security”.

Before the HO decides the applicant has been dishonest, the Home Office must notify applicants of its concern and give them a fair opportunity to offer an explanation.

Question 9

Mendes v Secretary of State for the Home Department [2020] EWCA Civ 924

Answer 9

Court of Appeal considered the process for removing an EU citizen from the UK whilst they have a pending appeal against deportation.

Question 10

certified under regulation 33 EEA 2016 Regs

Answer 10

Can be removed from the UK before any appeal against deportation is over (if will not breach human rights)

Question 11

Hafeez v Secretary of State for the Home Department & Anor [2020] EWHC 437 (Admin).

Answer 11

When deciding whether to certify under reg 33 (to deport while appeal ongoing), must apply individualised proportionality assessment (as in Lauzikas in detention context). This is because EU law applies to certification decision.

Question 12

Kiarie and Byndloss [2017] UKSC 42

Answer 12

Deport first, appeal later (non-EU context) - a “certificate” is issued under section 94B of the Nationality, Immigration and Asylum Act 2002, which was inserted into that Act by the Immigration Act 2014.

Kenya; Jamaica.

Not fair

Question 13

Lauzikas v Secretary of State for the Home Department [2019] EWCA Civ 1168

Answer 13

the Court of Appeal decided that an individualised proportionality assessment had to be carried out when deciding whether to detain an EU national; detention could not be an automatic consequence of the deportation decision being made

Question 14

H (A Child) (Disclosure of Asylum Documents) [2020] EWCA Civ 1001

Answer 14

A mother and child’s asylum records were ordered to be disclosed in family proceedings.

Confidentiality vs procedural fairness

Previous judgement - R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam),

Question 15

R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam),

Answer 15

the High Court clarified the general principles and procedures applicable where one party in private law family proceedings wants to access documentation generated in an asylum claim.

Question 16

section 59 of the Immigration Act 2016

Answer 16

requires the Home Secretary to issue guidance for determining whether a person is vulnerable and consequently whether they should be detained

Adults at Risk policy introduced as a result

Question 17

Adults at Risk policy - risk levels

Answer 17

Level 1 – declaration of vulnerability made by a detainee or their legal representative.

Level 2 – professional evidence that the individual is vulnerable.

Level 3 – professional evidence that the individual is vulnerable that detention is likely to cause harm (typically demonstrated by evidence that it has already caused harm).

Question 18

Tameside duty

Answer 18

Lord Diplock’s speech in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, in which he observed (at page 1065B) that:-

“The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

Question 19

Rule 35 of the Detention Centre Rules 2001

Answer 19

the main mechanism by which vulnerabilities are reported to Home Office decision-makers. The caseworker guidance requires officials to review detention within two working days of receiving a Rule 35 report.

Question 20

Hardial Singh principles

Answer 20

The authoritative formulation of the Hardial Singh principles is found in Lumba [2011] UKSC 12:

(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) the deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.

Question 21

Pormes v The Netherlands (application no. 25402/14)

Answer 21

European Court of Human Rights has approved the deportation of a man who had lived in the Netherlands between the ages of four and 29, on the basis of multiple convictions for indecent assault.

ECHR found “was a healthy adult man, and it has neither been argued nor has it appeared that he was unable to manage by himself in that country. In that latter context the Court notes that the applicant possessed a number of practical skills such as metal work and cookery (see paragraph 6 above), and there is no reason to assume that he would not have been able to adjust to Indonesian culture and to learn the language. Contacts with his foster family and others in the Netherlands may have been maintained through modern means of communication. The Court further observes that no exclusion order was imposed on the applicant, which leaves open the possibility that he may apply for a visa in order to make visits to the Netherlands.”

He amassed several convictions for indecent assault in his late teens and early 20s, but did not re-offend between December 2007 and his removal from the Netherlands in August 2016.

The court was satisfied that in conducting the balancing exercise under Article 8, “great weight” must be attached to the offences committed by Mr Pormes, particularly because:
- The offences were repeat offences;
- Had resulted in a custodial sentence;
- They had been committed at a time when Mr Pormes knew he was here unlawfully; and
- Mr Pormes was an adult when he committed the offences
All things considered, Mr Pormes’ rights under Article 8 were not breached. It was a proportionate interference because of the public safety issues which arose.

NB delay of 6.5 years in this case.

Question 22

IHS due to rise…

Answer 22

from £400/y to £624/y from 1 October 2020.

So for 2.5y, going from £1,000 to £1,560

Discount rate from £300 to £470 (students, their dependants, and those on Youth Mobility Scheme)

Question 23

R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin)

Answer 23

The High Court found that:

“The Secretary of State, as a public official, is under a duty to make and interpret rules in the light of section 3 of the Human Rights Act. The requirement in regulations 6 and 30 of the 2010 Fees Regulations that, in this class of case, a fee must be paid, there is no provision for waiver and an application without a fee “is not validly made” must, in the light of section 3, be read subject to a qualification that the specified fee is not due where to require it to be paid would be incompatible with a person’s Convention rights.”

In other words, charging a fee for a human rights based immigration application will itself breach human rights law where the person concerned cannot afford the fee.

Question 24

R (Carter) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin)

Answer 24

Mr Justice Stewart stated that

“if a person demonstrates upon proper proof that they cannot pay the fee, then a policy which does not provide for waiver in those circumstances is incompatible with a Convention right [26].”

Question 25

R (Dzineku-Liggison & Ors) v Secretary of State for the Home Department (Fee Waiver Guidance v3 unlawful) [2020] UKUT 222 (IAC)

Answer 25

While the Home Office should have been assessing whether an applicant could afford the fee, it was instead assessing whether the applicant was destitute or would be rendered destitute by payment of the fee. The Upper Tribunal in Dzineku-Liggison had to reiterate that the correct test is affordability.

Question 26

Applications eligible for a fee waiver are:

Answer 26

applications for leave to remain under the five-year partner route from applicants who are not required to meet the minimum income threshold because their sponsor is in receipt of one or more specified benefits and who instead must demonstrate that their sponsor can provide adequate maintenance

applications for leave to remain under the five-year parent route

applications for leave to remain under the ten-year partner, parent or private life route, where the applicant claims that refusal of that application for leave to remain would breach their rights (or the rights of other specified persons) under Article 8 of the European Convention on Human Rights

applications for leave to remain on the basis of other ECHR rights, provided that human rights constitute a substantive basis of the claim

applications for further leave to remain from applicants granted discretionary leave following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further leave to remain would breach their ECHR rights

applications for further discretionary leave from victims of trafficking or slavery who have had a positive conclusive grounds decision, have already accrued 30 months’ discretionary leave and are seeking to extend it for reasons related to trafficking or slavery

BUT NOT applications for ILR [except SET(DV)…]

Question 27

section 95(3) of the Immigration and Asylum Act 1999

Answer 27

In asylum support context, applicants are considered destitute when:

1. They do not have adequate accommodation or any means of obtaining it, or
2. They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.

Question 28

Refusal of fee waiver apps and 3C leave

Answer 28

Applicant should be given 10 wd to provide further evidence to demonstrate they qualify.

If not satisfied, HO will refuse fee waiver app. Applicant then has 10 wd to pay fee and submit application, or any extant 3C leave will expire.

Question 29

The three leading cases on fee waivers are:

Answer 29

R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin)

R (Carter) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin)

R (Dzineku-Liggison & Ors) v Secretary of State for the Home Department (Fee Waiver Guidance v3 unlawful) [2020] UKUT 222 (IAC)