UK Judge Halts Home Office Flight to Remove Asylum Seekers

A senior high court judge has halted a charter flight hours before up to 20 asylum seekers who crossed the Channel to the UK in small boats were due to be forcibly removed to Spain, a country they had previously passed through. The judge, Sir Duncan Ouseley, ordered the flight to be grounded because of concerns that the asylum seekers due to fly might be left destitute in the streets of Madrid, as happened to another group earlier this month. It is thought to be only the second time an entire Home Office charter flight has been grounded by a high court action.

Under regulations known as Dublin III, one European country can return asylum seekers to another they have previously passed through if there is evidence of this in the form of fingerprints or other proof. The legal challenge on behalf of five asylum seekers – four from Yemen and one from Syria – was launched last week after the Guardian revealed that 11 Syrian asylum seekers who arrived in the UK on small boats and were removed to Spain because they had been fingerprinted in that country were told to leave the airport in Madrid. They were not given the opportunity to advance their asylum claims on arrival in Spain. They were abandoned in the streets without food, water or shelter in temperatures of 32C.

Read more: Diane Taylor, Guardain, https://is.gd/gPoosp

El Salvador Asylum Seeker Wins Appeal Against Tribunal Decision

An asylum seeker who claimed to fear persecution from a criminal gang in El Salvador has succeeded in challenging the finding of the Upper Tribunal that there were no arguable grounds of appeal against the original decision. The petitioner, MF, argued that the First-tier Tribunal judge had erred in analysing the evidence produced in support of the appeal, in particular the accounts given by him and his family. The appeal was heard in the Outer House of the Court of Session by Lord Braid.

No well-founded fear: The petitioner originally claimed asylum in February 2017 when he arrived in the UK with his wife and three children. In his claim, he stated that he feared persecution from a gang in El Salvador known as the Mara Salvatrucha (MS13). His account was that his family had been subjected to threats of violence as a result of extortion by the criminal gang which operated in the area in which he and his family ran a cheese and diary shop. The Secretary of State for the Home Department refused his claim in July 2017, with the decision being appealed to the First-tier Tribunal. The FTT concluded that the petitioner did not have a well-founded fear of persecution. This conclusion was reached on the basis that the FTT did not find the petitioner’s account credible.

Read more: Scottish Legal News, https://is.gd/tcF79W

People from Commonwealth countries often ask whether they can get a British visa on the basis of their country’s historical ties to the UK. The answer is, generally speaking, “no”. But there is one route which is open only to, although not to all, Commonwealth nationals: the UK Ancestry visa. This post sets out the main requirements of the UK Ancestry route and gives some tips on making a successful application. When I refer to Home Office guidance, I mean this document, which is also a good starting point for anyone looking at making a visa application on the basis of ancestry.

Who can apply for a UK Ancestry visa? As mentioned above, the Ancestry visa route is only open to Commonwealth nationals. Not all Commonwealth nationals qualify, though. The basic eligibility criteria are found in paragraphs 186 to 193 of Part 5 of the Immigration Rules. The applicant must: Be a Commonwealth national: Be 17 years old or over: Have at least one grandparent born in the UK or Islands; Ireland (if before 31 March 1922); or, in certain circumstances, on a British-registered ship or aircraft: Be able to work and intend to seek employment or work in the UK; and Be able to “maintain and accommodate” himself or herself and any dependant in the UK, without recourse to public funds. In addition, as with most routes, applicants must ensure that they do not fall foul of the general grounds for refusal, found at Part 9 of the Immigration Rules (interested members can access our training on the general grounds for refusal here).

Read more: Freemovement, https://is.gd/BI0Cb1

Fake Law by the Secret Barrister

Sir James Munby once warned that public confidence in the family courts, which he ran between 2013 and 2018, was undermined by “ignorance, misunderstanding, misrepresentation or worse”. The problem affects all areas of law but takes different forms. “Ignorance”, to adopt Sir James’s blunt phrasing, arises from a lack of what is called public legal education: people do not know much about the legal system to begin with. “Misunderstanding” arises from the inherent complexity of the law. “Misrepresentation or worse” is chiefly laid at the door of the press and politicians; Theresa May’s “catgate” speech to the 2011 Conservative Party conference is still the classic text, although it is less well remembered that the story started life in the Sunday Telegraph (“Immigrant allowed to stay because of pet cat”).

The different forms of public legal miseducation feed off one another. A low base level of knowledge means that people are ill-prepared to interrogate false claims. The difficulty of easily stating what the law is or decoding a dense and controversial judgment hinders rapid rebuttal. Political attacks on liberal judges or activist lawyers reinforce cynicism and ignorance.

Read more: Freemovement, https://is.gd/FgJBKK

EDM 880: Suspension of Income Requirements for Family Visas

That this House notes that there are thousands of couples and families who are currently separated, or at imminent risk of becoming separated, due to restrictive income requirements for British nationals and settled residents wishing to be joined in the UK by a partner from outside the EEA; welcomes the Minister for Immigration's commitment of 23 March 2020 that no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control; further notes that family separation would clearly constitute such a negative outcome; further welcomes that Minister’s statement of 1 September 2020 that the circumstances brought about by the coronavirus pandemic are exceptional; notes with concern, however, that income requirements continue to be imposed on the sponsors of people applying to enter or remain in the UK with their British families despite those assurances; notes that guidance for caseworkers makes no mention of flexibility in the application of income requirements; is deeply troubled by the potential impact on those who must meet those income requirements of mass job losses caused by the coronavirus pandemic; and calls on the Government therefore to immediately suspend income requirements.

Parlilament, 14 September 2020, https://is.gd/mcC9YW

Put Your MP to Work – Ask Them to Sign EDM 880

To find your MP go here: https://www.writetothem.com/

Is a Statement of Changes Even a Statement of Changes?

Nowadays if it doesn’t introduce a new appendix to the Immigration Rules? On 10 September 2020, the government laid the first statement of changes of its infamous “new Point-Based Immigration System”. It includes the addition of five new appendices. The explanatory memorandum also tells us that The routes are the first to be simplified in line with the recommendations of the Law Commission in its report, ‘Simplifying the Immigration Rules’, to which the Government responded on 25 March 2020. The Immigration Rules will eventually be consolidated in the new style. Those routes relate to students: what have been known as Tier 4 and Tier 4 (children) will now be “Appendix ST: student” and “Appendix CS: child student”.

Welcome to the new age of simplification. In addition to Appendix ST and Appendix CS, there are three new appendices, whose names tell us what they are about: Appendix ATAS, Appendix English Language and Appendix Finance. These only apply to students for now but are likely to apply to other routes as the new system is unrolled. While applicants will need to refer to all those appendixes in an application; they no longer will need to look at part 6A; part 8; part 15; Appendix A; Appendix C; Appendix E; Appendix H or Appendix 6. Five Appendices is better than eight, right? The changes will take effect on 5 October 2020 at 09.00. Applications made before then will be considered in line with the Rules in force at the time.

Read more: Freemovement, https://is.gd/nB4qeJ

I’m a Home Office Presenting Officer: Ask me Anything

We Presenting Officers can usually be put into two categories. The first group is unable to see anything wrong with any decision and will defend it at all costs. Although hopefully they’re few and far between, anyone with a bit of experience before the tribunal has probably come across them. Then you have the second group. Most of us are law graduates who came to the Home Office just to get some experience whilst applying for pupillage or training contracts. The relative flexibility and decent pay kept us here way longer than we’d planned.

So what’s it really like for Home Office Presenting Officers? Well, first of all there’s the training. Most of my younger colleagues were fresh out of university when they started, although having a law degree is not always a requirement of the job, so in theory anyone who can demonstrate the required competencies could in a month be defending the Secretary of State in appeals.

Read more: Freemovement, https://is.gd/Rl7qeG

Court of Appeal judgment Revisits “Unduly Harsh” Test and Other Key Concepts

If you are a deportation lawyer, stop what you are doing and read HA (Iraq) v SSHD [2020] EWCA Civ 1176, handed down by the Court of Appeal on 4 September 2020. It will take you about three hours, but it will be worth it. The lead judgment of Lord Justice Underhill contains far-reaching and important analysis of key aspects of UK deportation law. In doing so, it reverses decisions made by President Lane in the Upper Tribunal intended to give guidance on the same. HA (Iraq) is particularly fascinating in its treatment of the “unduly harsh” test as formulated by Lord Carnwath in KO (Nigeria) v SSHD [2018] UKSC 53.

Interpretation of the “unduly harsh” test: There is a lot going on in this judgment, and for anyone involved in deportation law it is really a must-read. Probably the most significant aspect is the Court of Appeal’s treatment of the “unduly harsh” test. Broadly, whilst there is a presumption in favour of deportation for any foreign national sentenced to 12 months’ imprisonment or more, section 117C(5) of the Nationality Immigration and Asylum Act 2002 says that deportation will not be in the public interest for those sentenced to 1-4 years where its effect on a deported person’s child (or partner) would be “unduly harsh”.

Read more: Freemovement, https://is.gd/Bop4K6