HJT Chapter 1 - Immigration Control Flashcards
JCWI [2020] EWCA Civ 542
The Court of Appeal reversed the Administrative Court’s decision that the “right to rent” scheme was unlawful. The Court of Appeal accepted that the evidence showed statistically significant discrimination against prospective tenants lacking a British passport. However, this was only indirect discrimination, as Article 8 does not give any general right to a home. Indirect discrimination is justified in matters of social policy unless the measures are found to be “manifestly without reasonable foundation”. Here, as the ensuing discrimination was by private citizens (landlords) rather than government decision makers, the government had to be given wide leeway. Given there was no disproportionate interference with the right to be free from discrimination in matters touching on one’s private life that affected all potential tenants, the scheme was lawful.
Kanwal [2022] EWHC 110 (Admin)
[Mnemonic - can interview people by a wall]
looks at the procedure for an illegal working interview and finds that on-the-spot questioning at the place where a migrant was encountered and suspected of illegal working was fair so long as the purpose of the enquiry was made clear to them at the time
eg Sidabras v Lithuania (2006) 42 EHRR 6, Negassi [2013] EWCA Civ 151, Tekle [2009] 2 All ER 193
[Mnemonic - no gassing off to work]
There is no general right to work for migrants outside of the Rules and permission conditions permitting them to do so. An unlawful prohibition on access to the labour market is not capable of amounting to an interference with the right to private life other than in extreme circumstances (eg Sidabras v Lithuania (2006) 42 EHRR 6, Negassi [2013] EWCA Civ 151, Tekle [2009] 2 All ER 193). This would not apply to foreign nationals with no pre-existing rights of access to the domestic labour market.
Rahman [2006] EWHC 1755 (Admin)
[mnemonic - rah-rah-sidestep]
The obligation to determine an application based on present circumstances means that an ECO may refuse to grant a visa following a successful appeal: but only if there is a real change of circumstances or where genuinely new information has come to light: they should not search for further information with a view to undermining the result of the appeal.
“what will not be permitted is conduct on the part of the Entry Clearance Officer, which simply amounts to a deliberate attempt to circumvent an adverse decision which has been reached by the adjudicator, by simply carrying out further investigations with a view to coming up with a new basis for refusing entry clearance. […] seeking to sidestep the adjudicator’s decision”
Balajigari v The Secretary of State for the Home Department [2019] EWCA Civ 673
[Mnemonic - Balance don’t agree; ballad explaining discrepancies]
Earnings discrepancy cases in T1GM cases. HO believed applicants claiming falsely inflated earnings, in order to meet requirements. Discrepancies with tax returns to HMRC. Para 322 refusals - under 322(2) (false rep in previous app), or 322(5) (more general misconduct - to capture possibility may have misled HMRC).
Challenged on basis discrepancies not due to dishonesty - innocent explanation (carelessness/ignorance).
Before refusing, the Home Office must:
* Let the applicant know that they are minded to refuse, and allow them a chance to submit more information as to why they should not be refused.
With all of the evidence in front of them:
* Consider whether the applicant was dishonest
* Consider whether, even if dishonest, the applicant’s presence in the UK is undesirable
* Consider whether, even if dishonest and undesirable, the applicant should be granted leave for other reasons
Ali [2021] EWCA Civ 1357
[Mnemonic - leaving Ali’s application to the last day is OK]
An extension of leave, if made by no later than the last day of a person’s leave either online or sent by signed for delivery will be an ‘in-time’ application.
JH (Zimbabwe)[2009] EWCA Civ 78
[Mnemonic - journey headlong to Zimbabwe (no turning back during appeal)]
It is not possible to vary the application once it has been refused (s3C(4))
(s3C
(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.
(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).)
Also: an application made on the wrong form (in that case, on a SET form for ILR rather than an FLR form for further limited leave) may in fact be a valid immigration application, even though it was hopeless on its merits (i.e. the wrong application was made but on the right form for that application). On this analysis, the application would of course be valid, and would at least extend s3C leave.
Saimon [2017] UKUT 371 (IAC)
[Mnemonic - Salmon leaping over a Cart]
The UT found that where a UT decision refusing permission to appeal was set aside by a successful judicial review (i.e. what is often called a Cart JR after the case which first recognised this kind of challenge), the appeal becomes pending once again.
Akinola [2021] EWCA Civ 1308
[Mnemonic - about 3C leave reviving when extension of time granted for out of time appeal - awaken - ola! sounds like a judge doing a magic spell to reawaken 3C leave]
answered the long-vexed question as to the impact on s3C leave of the FTT extending time for a late appeal.
When an extension of time is granted for an out-of-time appeal, section 3C(2)(c) is engaged by the resurrection of a pending appeal. This results in a revival of the section 3C leave
But this protection of immigration status did not operate retrospectively – for to do so would have implications for the individual’s legal relationship with third parties and the state
When an extension of time is granted, the notice of appeal is effective from the date when it was filed, so that the appeal proceedings are instituted at that date rather than at the date when the decision to extend time is made or written notice of it is provided to the parties
The Court of Appeal hoped that the SSHD would feel able to exercise her discretion to mitigate the disadvantages of the gap in relation to out-of-time appeals in the same way it understood she had done re withdrawn decisions. Indeed the 3C and 3D Guidance now states (from 15 October 2021, Version 11.0):
“Where the Tribunal has extended time to appeal and the appeal is ultimately successful the person should not be disadvantaged by the break in their leave in any future application for immigration leave. For the purposes of deciding the application you should treat any gap in leave as if the person was lawfully in the UK where the appeal is allowed.”
Akinola also finds that the withdrawal of an immigration decision by the SSHD reinstates s3C leave from the date the decision is withdrawn. But it does not reverse the previous legal position. A reconsideration of a migrant’s case without an accompanying withdrawal of the previous decision had no impact on a person’s past or present immigration status.
Bajracharya [2019] UKUT 417 (IAC)
Mnemonic - Badger preceding chariot. If badger invalid, chariot still there.
where a varied application is treated as invalid by the HO, its predecessor remains extant for decision, which is another way in which s3C leave may be sustained
Das [2019] UKUT 354 (IAC)
Mnemonic - das tough that you didn’t notice.
the SSHD treated an application made in-time as invalid because it was made on the wrong form. The applicant’s next application was granted, but was, as so often the case following an invalid application, made after the last period of leave had expired. The SSHD treated the period between the expiry of leave and the next grant of leave as overstaying. That conclusion was challenged on appeal, based on the argument that the SSHD had not provided evidence that she had expressly notified the applicant that the earlier application was invalid. Without such notification, it was argued that section 3C leave had operated to keep their status lawful throughout both applications.
The UT disagreed, pointing to the differing regimes for validity that have been in force over time. From 29 February 2008 to 9 July 2012, Immigration Rule 34C had stated that applications which did not comply with the formalities specified in Rule 34A would be treated as invalid and not further considered. The situation was to be contrasted with that identified in Mirza [2016] UKSC 63 (mentioned at 1.5 above) where the Supreme Court had held that where an application was invalidated after it had been made by failing to complete the biometric formalities, it would only be invalid from the point at which the SSHD notified the applicant of a decision to void it. Other kinds of invalidity, such as failures to use the right form or pay the correct fee, rendered an application invalid from the outset.
The fact that more recent versions of the Immigration Rules took a more generous approach by giving an opportunity to rectify potential invalidity did not assist someone who had applied under the previous system.
JZ [2022] EWHC 771 (Admin)
Mnemonic - judge zealous. Jay Z
Judge who handed down lengthy prison sentences to Taliban members. Unwilling to come out of hiding to provide biometrics in Pakistan before LOTR decision (willing to provide biometrics after positive decision in principle).
Interim relief granted that HO make decision in principle, before requiring biometrics. Documented and identifiable history of JZ makes his case different from that of most immigrants.
Mirza [2016] UKSC 63)
Mnemonic - 3C merely extends (Z to A) for VALID applications
The case concerned the effect of section 3C of the Immigration Act 1971 as amended and whether it extends leave where an applicant for leave is found later to have made an invalid application. In short, it does not.
Refusals for not paying the fee, paying the wrong fee, or not attending biometrics appointment.
Basnet [2012] UKUT 113 (IAC)
Mnemonic - basketball net; failing to score the goal of paying the fee.
where the HO claim that the applicant’s bank refused to forward them the fee, the burden of proof is on the HO to show this did in fact happen. This is because – usually – only the HO has access to the relevant information: for example only they hold a cheque that was written for the wrong sum, or payment authority for the wrong amount, or a record of a declined credit card payment, or credit card details which are incorrect. Subsequent decisions have tightened up the Basnet approach somewhat: see e.g. Mitchell [2015] UKUT 562 (IAC), emphasising that a migrant can be expected to challenge the declaration sooner rather than later, and that the Basnet principle only applies where the migrant can show a prima facie case that their application had provided all relevant requirements to be valid. For example, they would need to show they had sufficient funds to meet the payment in question.
SGW [2022] UKUT 15 (IAC)
Mnemonic - sometimes gotta waiver
The provision of biometrics is central to the immigration system. Holds that this was a rational policy position given the legitimate national security purpose in ensuring applicants were who they claimed to be and that they posed no risk to the UK’s security. The Biometrics Guidance (Version 5.0) was unlawful re its treatment of applications for entry clearance for failing to on its face refer to the possibility of waiver, exemption or deferment of enrolment and for indicating that a failure to enrol biometrics precluded the validity of the application.
