Supreme Court Rules Bad Conduct of Parents Irrelevant to Best Interests of Children
The Supreme Court has recently ruled that the conduct of a parent is irrelevant to the analysis of the best interests of a child, when a tribunal is considering the impact of removing that child or their parent from the UK.
The case of KO (Nigeria) and Others v Secretary of State for the Home Department  UKSC 53, looked at the treatment of “qualifying children” and their parents, under the statutory regime contained in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), as well as a related issue under Part 7 of the Immigration Rules. Part 5A of the 2002 Act is headed “Article 8 of the ECHR: Public Interest Considerations” and was introduced by section 19 of the Immigration Act 2014. By section 117A it is to apply where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under article 8, and would so be unlawful under section 6 of the Human Rights Act 1998.
KO (Nigeria) sets out the Supreme Court’s most recent interpretation of the public interest question when applied to qualifying children, defined as persons under the age of 18 who are British or a have lived in the United Kingdom for a continuous period of seven years or more.
The Court held that the purpose of Part 5A of the 2002 Act is to produce a straightforward set of rules, intending to reduce discretion in taking public interest into account, and to be consistent with the general principles relating to the ‘best interests’ of children. According to the Court, para 276ADE(1)(iv) contains no requirement to consider the criminality or misconduct of a parent as a balancing factor and such a requirement cannot be read in by implication. Equally, section 117B of the 2002 Act does not include criminality as a consideration, although Lord Carnwath recognised that the immigration status of the parent or parents is indirectly relevant to the consideration of whether it is reasonable for a child to leave the UK. Finally, the Court held that the hurdle of ‘unduly harsh’ in section 117C does not require a balancing of relative levels of severity of the parent’s offence, having already been considered in the structured assessment required by that provision.
This judgment will undoubtedly be welcomed as positive for appellants, one which promotes children and parents’ rights in the face of negative Home Office decisions. However, following the entanglement of conflicting and confusing decisions regarding the regime introduced by the 2014 Act that preceded it, it remains to be seen how effective the impact of this ruling will be and how consistently it will be applied by Courts and Tribunals moving forward.
Posted by: Gherson Immigration, https://is.gd/4rpcX0
Campsfield House Immigration Removal Centre to Close May 2019
The Home Office has announced that Campsfield House immigration removal centre will close by May 2019, when the current management contract with Mitie Care and Custody ends. The closure of the 282 bed centre is part of Home Secretary Sajid Javid’s commitment to cut the number of people detained at any given time and improve the welfare of detainees. These reforms were announced in response to Stephen Shaw’s review into welfare of vulnerable people in detention.
By next summer, the Home Office will aim to reduce the immigration detention estate by almost 40% since 2015.
Immigration Minister, Caroline Nokes said: “I am grateful to all the staff who’ve worked at Campsfield over the years for their commitment and professionalism. Now is the right time to modernise and rationalise the detention estate. We are committed to ensuring we have a fair and humane immigration system that provides control, and detention must only be used when we are confident no other approaches will work. In response to Stephen Shaw’s second review of the government’s approach to vulnerable people in immigration detention, the Home Office committed to working with charities, faith groups, communities and other stakeholders to develop alternatives to detention, strengthening support for vulnerable detainees and increasing transparency. In addition, reforms have already led to a reduction in the number of occupants per room, and will improve facilities in immigration removal centres, including piloting the use of Skype and reviewing the training and support for staff in immigration removal centres.
In 2015, Centres in Dover and Haslar closed and the Verne Immigration Removal Centre in Dorset closed in January 2018. There are no current plans for further immigration removal centre closures. However, as the Home Office progresses with reforms outlined in the response to Stephen Shaw’s second review, the use of immigration detention and the implications for the detention estate as a whole, will be kept under review.
Source: Gov.uk, https://is.gd/r3OSso
Home Office Faces £1m Bill for Short-changing Victims of Trafficking
The government has been ordered to make back-payments to victims of trafficking that are likely to reach more than £1m, after a high court judge ruled that Home Office cuts to their support payments were unlawful. The ruling followed the department’s decision in March to reduce support payments to people it accepted were victims of trafficking from £65 per week to £37.75, a fall of 42%. The Home Office defended the change by saying it wanted to bring levels of support to victims of trafficking in line with support levels for destitute asylum seekers. The higher support level paid to victims of trafficking was in recognition of their higher support needs during their recovery from being trafficked. In a judgment that condemned the Home Office as failing in its duty to victims of trafficking, Mr Justice Mostyn ruled that the government acted unlawfully in reducing the payments and ordered back-payments likely to exceed £1m.
Read more: Diane Taylor, Guardian, https://is.gd/5xFbl8
Legal Briefing From Shu Shin Luh, Garden Court Chambers
'On Thursday 8th November Justice Mostyn, struck down the decision to cut subsistence payments to victims of trafficking awaiting conclusive grounds decisions who are in receipt of asylum support.
The rate went from £65 per week to the asylum support rate (£37.75 per week for s95 and £35.39 per week for s4(2)) from 1 March 2018.
Generic relief was granted to all those affected by this cut. This means any client whose monies were cut would be repaid the sum of the cut (£27.25 for s95 Potential Victims of Trafficking' (PVoTs) and £28.05 for s4 PVoTs) from 1 March until either date of repayment (if they are still waiting for a CG decision) or to the date they exited the NRM if they got a CG decision. See attached judgment. Moving forward they should also be receiving £65 per week until such time as the SSHD makes any further (lawful) change.
The SSHD has agreed to make a public announcement about this but refused to give a timescale of when or when he will inform all the victims.
If you are representing a PVoT or know a PVoT awaiting CG decision, ask them whether they’ve been cut. If they have, they are entitled to repayment. The repayment amount to today’s date is £981 for a s95 claimant. This is a significant amount for them. They should ask their support providers for the back payments and if they have solicitors, they should ask their solicitors to write to the HO. Otherwise, the Government will drag their feet as this is going to cost them upwards of £1 million.
Case Comment Part One: KO (Nigeria) & Ors v SSHD
Seven Year Rule: Child-Centred Decision By Supreme Court
The Supreme Court unanimously dismissed these appeals. But thankfully Lord Carnwath’s meticulous judgment clarified wide-ranging misconceptions in the courts below regarding the correct interpretation of the Nationality, Immigration and Asylum Act 2002 (as amended), Part 5A, ss 117A to 117D. Centrally, s 117D(1) defines a “qualifying child” as someone under the age of 18 who is either a British citizen or has lived in the UK for a continuous period of seven years or more. Despite the controversial nature and history of these cases, Lord Carnwath’s short but robust judgment concentrates on simplicity because the novel statutory scheme aims “to produce a straightforward set of rules” on ECHR, art 8 and public interest considerations. Whereas KO and IT concerned the meaning of “unduly harsh” in section 117C(5), NS concerned section 117B(6) and if parental conduct affects whether it would not be reasonable to expect a qualifying child to leave the UK. AP involved the Immigration Rules, para 276ADE(1)(iv) and whether it would not be reasonable to expect a child with continuous residence of at least seven years to leave the UK. As “foreign criminals” within the meaning of s 117D(2), KO, a fraudster, and IT, a drug dealer, both had British children. The FTT allowed KO’s appeal but UTJ Southern reversed the decision by holding that it would not be “unduly harsh” if the children stayed in the UK with their mother upon KO’s deportation.
After being deported, IT sought the revocation of his deportation order. At first he was unsuccessful but the FTT allowed the appeal on the basis of Sanade  UKUT 48 (IAC) because his British son could not be expected to relocate outside the EU. The UT upheld this reasoning, however the Court of Appeal allowed the Government’s appeal by applying a “compelling reasons” test and assessing harshness in light of the “nature of the offending”. Fraudulently produced qualifications were used to obtain leave to remain in NS and Elias LJ held that UTJ Perkins was right to dismiss the appeal by striking the proportionality balance by accounting for parental misconduct. Presently aged 19, AP entered the UK in 2006. The FTT allowed his appeal but then the UT found otherwise. Subsequently, Elias LJ allowed AP’s appeal because of the judge’s overall failure to treat his best interests as “a primary consideration”. The maxim in Zoumbas  UKSC 74 that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” remained Lord Carnwath’s point of departure and he held that Part 5A intends to be consistent with the general principles relating to children’s best interests.
Read more: Asad Khan, UKSC, https://is.gd/IXM9tG
Case Comment Part Two: KO (Nigeria) & Ors v SSHD
(ii) Undue Harshness
Next, the court opined that the structure of s 117C was difficult to follow as it begins by that deporting foreign criminals is in the public interest; which increases with the seriousness of the offending. The unimpressive drafting led Lord Carnwath to observe that rather than expressly indicating “how or at what stage of the process those general rules are to be given effect,” s 117C is instead devoted to rules for two types of foreign criminals and two exceptions.
First, exception 1 in s 117C(4) revolves around lengthy lawful residence, social and cultural integration in the UK and very significant obstacles to integration in the country of proposed deportation. Therefore, these three factual issues define exception 1 and none of them involve the seriousness of the offence. Furthermore, exception 2 addresses the criminal’s subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and whether the net effect of the foreign criminal’s deportation on the partner or child would be unduly harsh.
Unless exception 1 or 2 applies, the public interest requires deportation of those sentenced to less than four years. To offset the public interest in deportation, foreign criminals who have been sentenced to four years or more must show “very compelling circumstances” in addition to the exceptions. Since exception 1 is self-contained, exception 2 in section 117(C)(5) also falls to be treated similarly despite being linguistically less precise than exception 1 because nothing suggests that the word “unduly” intends to refer back to the issue of relative seriousness in s 117C(2). Thus, like the reasonableness test under s 117B, exception 2 is “self-contained”. Bearing all this in mind, Lord Carnwath further deciphered that:
Read more: Asad Khan, UKSC, https://is.gd/IXM9tG
Rhuppiah (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2017/0075
On appeal from the Court of Appeal Civil Division (England and Wales)
The appellant is a Tanzanian national who was in the UK from 1997 to 2010 on various grants of leave to remain as a student. Since 2010 she has been in the UK unlawfully. She lives with and cares for a friend, Ms Charles, who has ulcerative colitis. Her brother, sister-in-law and niece also live in the UK. Her application for leave to remain was rejected by the respondent. The appellant appealed on the basis that she should be granted leave to remain outside the rules on the basis of her private life under Article 8 of the European Convention on Human Rights. Applying Part 5A of the 2002 Act, the First-tier Tribunal held that little weight should be given to her private life with Ms Charles and her niece as it was established whilst her immigration status was precarious. It also held that fluency in English and financial independence were neutral factors in the Article 8 balancing exercise and that in any event she was not financially independent as she relied on Ms Charles and her father for lodging and maintenance respectively.
The issue is:
The meaning of precarious in s.117B(5) of the Nationality Immigration and Asylum Act 2002 (the “2002 Act”); (2) the weight to be given to private life established at a time when the appellant’s immigration status was precarious when conducting the balancing exercise under Article 8; and (3) the weight to be given to financial independence and proficiency in English when conducting the balancing exercise under Article 8.
The Supreme Court unanimously allows the appeal.
More information at: https://www.supremecourt.uk/cases/uksc-2017-0075.html
Deportation Charter Flights Average Cost £440,253.9
Written question - 188082 Asked by Caroline Lucas
To ask the Secretary of State for the Home Department, what the cost to the public purse has been of immigration removal charter flights departing from Royal Air Force bases in the UK since May 2017.
Answered by: Caroline Nokes
Five Home Office charter flights have departed from RAF Brize Norton since May 2017.
The total cost of operating these flights was £2,201,269.50. This includes the costs of escorts, coaches, chartering aircraft, air passenger duty and administrative costs associated with operating the flights.
Settlement Scheme: Extended Family Members
As many EU nationals might be aware, a pilot scheme is currently open for certain EU nationals already residing in the UK and their family members to apply for a new “settled” or “pre-settled” status, which will confirm their right to reside in the UK after Brexit (including any transitional period). Some are already eligible to apply under this scheme, including employees from selected NHS trusts, higher education institutions and health or social care organisations in the UK.
In March 2019, the settlement scheme will be fully open to the public for all eligible applicants. Aside from the obvious family members of EU nationals, such as non-EU spouses, civil partners and their children, the scheme will also be open to ‘extended family members’. Eligible extended family members include unmarried partners of EU nationals and those related to an EU national, their spouse or civil partner as their:
- children, grandchildren or great grandchildren under 21 years old;
- dependent children over the age of 21;
- dependent parents, grandparents or great-grandparents; and
- dependent relatives holding a residence card to prove their relationship.
The benefit of applying under the settlement scheme is that once extended family members have been granted settled or pre-settled status (depending on the length of their residence in the UK), they will also benefit from being able to work in the UK, use the NHS, undertake study in the UK and access public funds (if eligible).
As stated above, the settlement scheme will be fully open to the public by March 2019 for EU nationals and their families. However, it should be noted that the scheme only applies to those already resident in the UK at the end of the intended transitional period. Those arriving after that date will be treated differently. Further, EU nationals and their family members (including extended family members) who have been resident in the UK for a period of 5 years or more and wish to obtain British citizenship should consider applying for permanent residence now under the current scheme.
Posted by: Gherson Immigration, https://is.gd/z6riFX
Challenge to Legality of Removals – Home Office Further Amends Policy
The judgment in R (FB and NR) v SSHD (JR/9948/2017 and JR/9949/2017), was handed down on 31st October 2018. The Upper Tribunal (UT) found the Home Office removals policy (‘Judicial reviews and injunctions’, Version v15.0) to be unlawful in several respects, as detailed below. On 5 November 2018, the Home Office published a new revised version of the policy (v.17) implementing the Upper Tribunal’s findings.
Amendments to policy
In light of (c), on the 21st May 2018, the SSHD made significant amendments to the policy as challenged, reflecting concessions made by the SSHD in the course of this litigation. The amended version (V.15) of the policy included a new section entitled “Consideration of deferral of removal” (see pages §§14-16). In general, it covered:
- Access to legal advice and the courts during the notice liability to removal period (usually 72 hours [if detained] or 7 days [if at liberty]);
- Deferring removal due to a change of legal representation;
- Deferring removal, in detained cases, where the person liable to removal has not had access to legal advice during the notice of liability to removal period; and
- Provision of all relevant documents to representatives upon request.
Read more: Ghearson, https://is.gd/h5hc8y
Trial of the Stansted 15 – Days 23 & 24
Day 23: Defence Witnesses – Lyndsay Burtonshaw and Laura Clayson
The day started with prosecuting barrister McGhee cross examining Lyndsay Burtonshaw, who had given her evidence the day before.
Starting from the position, agreed by Lyndsay and the other defendants, that they had wilfully entered a security restricted area, Mr McGhee put it to Lyndsay that their intent was to maximise disruption of the airport. Lyndsay refuted this and indicated that their intention was to disrupt only one flight – the deportation charter flight intended for at least two people who faced death if they were flown to Nigeria – and the remote location of the charter flight planes in relation to the rest of the airport would make this possible without disrupting any other flights.
Read on, https://is.gd/9xEvT0
Day 24: Defence Witnesses – Laura Clayson and Melanie Evans
Laura Clayson confirmed she was first aware of the deportation charter flight process in January 2017. Between when she first became aware of the process she had been to four to five meetings to discuss taking action about the issue at her friends’ homes in North London.
The Prosecutor Tony Badenoch cross-examined and asked if fracking or climate change had come up in these meetings. They had not. Deportation charter flights were the focus of these meetings.
Laura learned about the deportation charter flights through reading the Corporate Watch report ‘Collective Expulsion’. https://is.gd/EiByZc
She knew charter flights were taking off from Stansted.
Reccies had been done of the area. The reccies had been done by Dr Ram, Helen Brewer and Eddy Thacker and Ali Tamlit. Laura: Safety was paramount.
Read on: https://is.gd/RDuZEy
US: Proposed Asylum Regulation Violates Law
The interim final rule to limit asylum proposed on November 8, 2018, by the Trump Administration is the latest attempt to shut American doors to people fleeing persecution and violence, Human Rights Watch said today.
“US law is crystal clear that asylum seekers have the right to lodge asylum claims regardless of where they enter the country, and President Trump cannot change the law on a whim,” said Bill Frelick, Refugee Rights director at Human Rights Watch. “The US government should absolutely be encouraging the safe, orderly and efficient processing of asylum claims at ports of entry, but the way to do that is by providing sufficient resources to receive and process asylum seekers in a fair and humane manner. Under current practice, border agents are repeatedly turning asylum-seekers away and telling them to come back another day.”
International refugee law says that asylum seekers have the right to lodge asylum claims irrespective of illegal entry or presence, which US asylum law affirms by saying, “any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival…) irrespective of such aliens status, may apply for asylum.”
The interim final rule asserts that the administration can effect these changes under its regulatory authority, but in fact the rule represents an unlawful attempt to change the letter of the statute by regulation. The Immigration and Nationality Act (INA 208(b)(2)(C)) unambiguously states that ineligibility grounds for asylum established by regulation must be “consistent with” section 208 of the INA, which explicitly says that aliens may lodge asylum claims “not at a designated port of entry.” “This interim regulation is not only inconsistent with the letter of the law, but flatly contradicts it,” Frelick said.
Read more: Human Rights Watch, https://is.gd/6lbtTD
Return Of The Post-Study Visa?
In 2012 the government abolished Tier 1 post-study work visas. This was motivated by a general frustration with migrants exploiting student visas as a way of prolonging their stay in the UK and entering the labour market. In order to obtain a Tier 4 (General) Student visa, prospective students must currently satisfy an exhaustive list of personal and course requirements. Applicants must have been offered a place on a course and demonstrate enough money to support themselves. They are also restricted from working more that 20 hours per week. The length of time they are allowed to remain in the UK after graduation is dependent on the type and length of the course of study. For example, students who have graduated from a 3-year course may be able to stay for a maximum of 4 months from the end of their course.
If graduates hope to work in the UK they must secure a separate visa that will enable them to do so. The type of visa that graduates may apply for is dependent on whether they can secure employment with an employer who is able to sponsor them. For a General Tier 2 work visa an applicant's employer must sponsor their application. This means that the graduate must already have obtained a job offer and in most cases must also be paid at least £20,800 per year or what is stated in the appropriate Home Office soc code, whichever is higher. The appropriate salary requirement would be a challenge for any recent graduate. These hurdles often deter international graduates from applying to work in the UK, although new recommendations hope to change this.
There is concern that restrictions on post student visas are damaging the UK's position as the second largest destination for international students after the US. In a Guardian article published on Tuesday, Lord Bilimoria emphasised the importance of international students to the UK economy . He argued that "these bright, talented and qualified students" contribute to our financial sector, tech start-ups, high value manufacturing and art industries, and it is these industries that keep the UK punching above its weight in global economics and innovation. In light of this, the All Party Parliamentary Group for International Students Inquiry Report has made various recommendations to the Government. In summary, it recommends:
The government should set an international student recruitment target and remove students from net migration statistics. This means that student visas would not be restricted by immigration targets set out by the government;
The government should offer post-study work visas that are unrestricted by job type or salary. They recommend a visa that would be valid for two years work experience after graduation;
The Government should seek a special deal with the EU that allows unrestricted movement of students and researchers;
The Immigration Rules should be widened to encourage students at multiple levels;
The promotion and protection of small specialist vocational and further education providers;
A review of the interview process for student immigration to ensure that it does not limit diversity;
Protect local courses and institutions and encourage work experience schemes and industry engagement;
The government should include education as part of their trade strategy and should accurately track education data.
Posted by: Gherson Immigration - https://is.gd/HXYPbl
CPIN China: Contravention of National Population and Family Planning Laws
1.1 Basis of claim
1.1.1 Fear of persecution or serious harm by the state because the person has contravened the national population and family-planning laws.
1.2 Points to note
1.2.1 Decision makers should take into account amendments to the family planning policy allowing married couples to have two children, which came into effect in January 2016.
Published on Refworld, 13/11/2018
Asylum Research Consultancy (ARC) COI Update Vol. 182
This document provides an update of UK Country Guidance case law, UK Home Office publications and developments in refugee producing countries (focusing on those which generate the most asylum seekers in the UK) between 31 October and 12 November 2018.