Deportation Appeal Not a “Dress Rehearsal” says Court of Appeal

Lowe v Secretary of State for the Home Department [2021] EWCA Civ 62 is about the role of the Upper Tribunal in deportation appeals. The role of an appellate court when reviewing the findings of fact made by the court below sounds straightforward: it will only intervene if the findings are irrational or perverse on the basis of the evidence. But applying that apparently clear principle in practice can be messy. The split Court of Appeal in this case illustrates how.

The underlying issue in the deportation appeal was narrow. The appellant had been sentenced to less than four years in prison and sought to rely on the “private life” exception to deportation. As shown below, one of the requirements for availing of that exception is that there are “very significant obstacles” to reintegration into the person’s home country (Jamaica, in this case). The only dispute was whether Mr Lowe would in fact face very significant obstacles to reintegrating. He had left Jamaica at the age of three and lived in the UK ever since, so on the face of it there were good reasons to think that such obstacles existed. The First-tier Tribunal thought so, allowing Mr Lowe’s appeal against deportation. The Upper Tribunal reversed that decision.

In the Court of Appeal, Mr Lowe challenged the Upper Tribunal’s decision on the grounds that the judge had merely substituted his own view rather than identifying that the First-tier Tribunal decision had been irrational. The majority of the court agreed:

Read more: Freemovement, https://is.gd/xLe392

Appeal Judges Reject Challenge to Domestic Abuse Policy

In FA (Sudan) v Secretary of State for the Home Department [2021] EWCA Civ 59, the Court of Appeal has confirmed that someone applying to stay in the UK under the domestic abuse rules must have had permission to remain as a partner. This appeal was a bold challenge to the validity of that requirement, on the basis that it was discriminatory.

The case concerned the policy on short-term help for migrant victims of domestic abuse, originally introduced in April 2012 and now called the Destitute domestic violence concession (destitution being one of the criteria). Successful applicants get three months’ permission to remain, permitting them to take up employment and also immediate access to benefits. The idea is to allow victims of domestic abuse some stability whilst they prepare an application for indefinite leave to remain as a victim of domestic violence under Appendix FM. Think of the concession like a springboard on to the full application.

The three-month period is designed to remove at least some of the uncertainty of a victim of domestic abuse having their visa curtailed on the basis that their relationship is no longer subsisting. Granting of the concession would normally be followed up by a full application within the three-month period (without which the person becomes an overstayer).

Read more: Freemovement 

Police in southeast England said Sunday that they have made a further nine arrests at a former army barracks, which has been used to house hundreds of asylum-seekers and where a suspected arson attack took place. Kent Police said in a statement that 14 people have now been arrested following a “disturbance” on Friday at the site in the coastal town of Folkestone, which saw windows smashed and a building set alight.

Five men previously arrested in connection with the unrest remain in custody. One of them, 31-year-old Mohammed Ali, has been charged “with assault by beating, using or threatening unlawful violence and criminal damage.” He is due to appear in court on Monday. Police said no serious injuries were reported as a result of the attack, even though a “significant amount of damage was caused to one part of the site following a fire, which is believed to have been started deliberately.” The fire broke out at the site, where around 400 people have been staying. The barracks has been dogged by accusations of poor conditions, and at least 120 residents reportedly tested positive for COVID-19 recently.

Read more: World News,  

 Care Workers at Risk of Missing Out on EU Settled Status

Care workers eligible for the EU Settlement Scheme seem unaware of the need to apply, a new report has found. The Joint Council for the Welfare of Immigrants (JCWI) surveyed 290 social care workers and found that as many as one in three had never heard of the Settlement Scheme, which allows EU citizens and their family members who apply before 30 June 2021 to remain in the UK despite Brexit. Survey responses were collected between January and March 2020, mostly from eastern Europeans.

The results showed that “1 in 7 care workers surveyed online either did not know or were not sure what the EUSS was and 1 in 3 care workers surveyed in person had never heard of the EUSS before we met them”, according to JCWI. One of them was a Swedish-Ethiopian care assistant, Aisha, who had “never heard of the EU Settlement Scheme until JCWI’s visit” and didn’t understand it after their visit either.

Although applications are straightforward for most people, those most at risk of slipping through the cracks are people like Aisha with “very limited English” and zero digital literacy. There have been almost five million Settlement Scheme applications so far, but the size of the target population is unknown and JCWI point out that “if even a tiny fraction… are unable to apply in time, tens of thousands of people will lose their status overnight”. A Social Market Foundation survey carried out around the same time found that awareness of the Settlement Scheme was also low among European farm workers.

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

Stansted 15: Protestors Have Convictions Overturned on Appeal 

On 28 March 2017 the Home Office chartered a Boeing 767 in order to remove or deport some 60 individuals to West Africa. That evening the 15 appellants breached the security perimeter fence at London Stansted Airport and entered the restricted area. They were intent on halting the flight by various means including erecting makeshift tripods using scaffolding poles and "locking on" to one another around the base of one of the tripods and around the nose of the plane. Builders' foam was used to secure the locking mechanisms. Disruption at the airport ensued, including the closure of the single runway for a significant period. The appellants fulfilled their immediate aims in that the flight was unable to depart.

A Group of protestors taken to court after preventing a deportation flight from taking off at Stansted have had their convictions overturned on appeal. The ‘Stansted 15’ cut through the airport’s perimeter fence and locked themselves together around a Boeing 767 jet chartered by the Home Office to transport people from UK detention centres for repatriation to Africa. They were later convicted at Chelmsford Crown Court of an offence arising out of the March 2017 incident. Three were given suspended jail sentences and the other 12 were handed community orders. 

The group were granted permission to appeal against their convictions in August 2019 and a three-day hearing took place before the Lord Chief Justice, Lord Burnett, sitting with Mr Justice Jay and Mrs Justice Whipple, in November. The judges handed down their decision on Friday 29th January 2021. Lord Burnett said the protestors “should not have been prosecuted for the extremely serious offence … because their conduct did not satisfy the various elements of the offence. “There was, in truth, no case to answer.”

The protesters, who all pleaded not guilty, were convicted in December 2018 of the intentional disruption of services at an aerodrome under the Aviation and Maritime Security Act 1990 (Amsa). They were sentenced in February 2019.

In documents before the court, the Stansted 15’s barristers argued this law is intended to deal with violence of the “utmost seriousness”, such as terrorism, not demonstrators. They argued that Amsa is not concerned with risks of “a health and safety-type nature” posed by those who have trespassed at an airport without causing or intending to pose “a direct risk of endangerment” to the operation of the airport, or people there. Lawyers for the group also argued the Attorney General – who is required to sign off on the use of this legislation – should not have granted consent for the law to be used in this case, that the Crown Court judge, Judge Christopher Morgan, made errors in summing up the case, and there were errors in directions given to the jury.

Read more: Echo-News, https://is.gd/CCbkuj 

Man Who Lived in Uk Under Assumed Identity For Over a Decade Wins Right To Stay

Stealing someone’s identity is not a “false representation” for the purposes of a 20-year long residence application, the Upper Tribunal has found. The case is Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376 (IAC). Bangladeshi national Sultan Mahmood, 41, has been living in the UK since at least 1996, but not as Sultan Mahmood.

To his employer, his doctor and the taxman he was British citizen Rezaul Karim, 44, having adopted that man’s identity (and National Insurance number) and lived in that guise for over a decade. In 2009, Mr Mahmood applied for indefinite leave to remain. He did so in his own name, but “openly admitted” his fake identity: the evidence in support of his application included “eleven P60 forms dated from 1998 to 2009” in the name of Rezaul Karim.

His double life, Mr Mahmood argued, was not inherently a breach of the immigration laws. Unsurprisingly the Home Office refused his application, but Mr Mahmood appears to have stuck around and in 2016 reached 20 years of continuous (if unlawful) residence in the UK. That opened up the possibility of regularising his stay under the long residence rules, and the Bangladeshi citizen duly applied for permission to stay under the 20-year rule.

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

 
Analysis of Flawed UK Tribunal Approach to Marriages Of Convenience

Interesting piece over on the EU Law Analysis site by Aleksandra Jolkina about the flawed approach by the First-tier and Upper Tribunals to questions of marriages of convenience in EU law. The tribunals frequently blend the highly ambiguous domestic “genuine and subsisting relationship” requirement with the much more objective EU law approach, leading to absurd outcomes: Over the past two decades, the UK authorities have grown increasingly suspicious towards in-country marriages between mobile EU citizens and third-country nationals with an unstable or irregular residence status.

In a widespread climate of Euroscepticism, such arrangements are frequently denounced as ‘marriages of convenience’, entered into to help foreigners circumvent British immigration law. This contribution will consider how the concept of marriages of convenience is interpreted by UK courts, what implications this may have for families of EU citizens living in the country and how the situation will change post-Brexit.

The final paragraphs are pretty damning. As Jolkina writes, “the validation of the hostile Home Office practices by so many judges is deeply disturbing”. A lot of civil servants and immigration judges almost seem to enjoy delving into the private lives of others, quite frankly. They would no doubt wrinkle their noses at the suggestion but I rarely see judges impose boundaries.

Read more: Freemovement, https://is.gd/352xcl

 
Analysis of Flawed UK Tribunal Approach to Marriages Of Convenience

Interesting piece over on the EU Law Analysis site by Aleksandra Jolkina about the flawed approach by the First-tier and Upper Tribunals to questions of marriages of convenience in EU law. The tribunals frequently blend the highly ambiguous domestic “genuine and subsisting relationship” requirement with the much more objective EU law approach, leading to absurd outcomes:

Over the past two decades, the UK authorities have grown increasingly suspicious towards in-country marriages between mobile EU citizens and third-country nationals with an unstable or irregular residence status. In a widespread climate of Euroscepticism, such arrangements are frequently denounced as ‘marriages of convenience’, entered into to help foreigners circumvent British immigration law.
This contribution will consider how the concept of marriages of convenience is interpreted by UK courts, what implications this may have for families of EU citizens living in the country and how the situation will change post-Brexit. The final paragraphs are pretty damning. As Jolkina writes, “the validation of the hostile Home Office practices by so many judges is deeply disturbing”. A lot of civil servants and immigration judges almost seem to enjoy delving into the private lives of others, quite frankly. They would no doubt wrinkle their noses at the suggestion but I rarely see judges impose boundaries.

Read more: Freemovement,    https://is.gd/352xcl