“Chen Parent” Could Claim Child Benefit Once Daughter Had Permanent Residence
Another in the rich vein of legacy EU law appeals lodged pre-Brexit. FE v HMRC (CHB) [2022] UKUT 4 (AAC) is about the right of Chen parents — the primary carers of self-sufficient EU citizen children — to claim benefits, in this case child benefit. The appellant FE is Nigerian. His daughter F is an Irish citizen with spina bifida. FE had the right to reside as a Zambrano carer, but this didn’t entitle him to child benefit: for that, he needed to be a Chen carer. To qualify under the Chen case, he would normally need to have “sufficient resources and comprehensive sickness insurance cover”, which the First-tier Tribunal determined that he did not.
But F had, in December 2009, acquired the right of permanent residence under EU law. That complicated the picture: The issue for me is whether, F having obtained a right of permanent residence by virtue of having previously been a Chen child, the appellant as her primary carer is required to have sufficient resources and comprehensive sickness insurance cover. The judge’s conclusion, as set out in the headnote, is that the appellant did qualify as a Chen parent until F turned 18, on 16 January 2020:
He had such a right until the latter date as the primary carer of his daughter F when a minor, in order to give useful effect to the right of permanent residence she enjoyed under art.16 of Directive 2004/38. As such, he was entitled to claim backdated child benefit up to that date, although not after F turned 18.
Read more: Freemovement, https://rb.gy/bjpzjc
Staying on After Study: a Whistle-Stop Tour of the UK Graduate Visa Rules
The Graduate immigration route is for international students who have completed a degree or other higher educational qualification in the UK. It allows people who previously had a Student visa to: 1) work in the UK after their degree/qualification is completed 2) in a job at any skill level or salary, for a period of two years (or three years following a PhD/doctorate)
There is no requirement to have a sponsor in order to apply under this route. In addition, dependants are permitted. The application costs £700 plus the NHS surcharge. It is not possible to extend a Graduate visa. Applications will be rejected as invalid if the person previously had permission to stay under the Graduate route (or the old Doctorate Extension Scheme).
Would-be Graduates must be in the UK when they apply and should not leave the Common Travel Area whilst their application is pending. Importantly, the Graduate route does not lead to settlement.
Read more: Freemovement, https://rb.gy/xxkuu2
How Human Trafficking Victims Can Appeal Against Criminal Convictions
In R v AAD, AAH, and AAI [2022] EWCA Crim 106, handed down on Thursday 3 February 2022, the Court of Appeal (Criminal Division) has outlined avenues to appeal against criminal convictions for victims of trafficking who are confirmed as such after conviction. Immigration practitioners should be aware of these appeal options when working with trafficked clients. The two avenues to appeal are as follows:
1. Arguing That a Conviction Following a Guilty Plea Is Unsafe
The Court of Appeal confirmed that a victim of trafficking can submit that a conviction following a guilty plea is unsafe (see paragraphs 155-157). The court allowed the appeal of AAH, who had received a positive conclusive grounds decision (i.e. recognising her as a confirmed trafficking victim) after entering a guilty plea. It outlined the three categories of cases where a court may overturn a conviction following a guilty plea:
where the defendant was deprived of a defence that was good in law; in cases of abuse of process, where it was not just to try the defendant at all; and where the admission of guilt was not true.
Practitioners should be aware of the defence available under section 45 of the Modern Slavery Act 2015 which applies to those who have been compelled to commit an offence due to being trafficked or enslaved.
2. Arguing That the Prosecution Was an Abuse Of Process
The court also reopened the abuse of process jurisdiction for victims of trafficking issued with a conclusive grounds decision (see paragraphs 110-143). The abuse of process jurisdiction provides a route for a trial that is unjust to be stayed. It is available in cases where
it would be impossible for the accused to receive a fair trial, or it would be unjust to try the accused. Where the Crown Prosecution Service ought not to have prosecuted in the first place, a victim of trafficking can appeal against a conviction resulting from the prosecution.
This is crucial in ensuring that the CPS complies with its duty of non-prosecution of trafficking victims. But following the decisions in R v DS [2020] EWCA Crim 285 and R v A [2020] EWCA Crim 1408, it had appeared that the abuse of process protection was no longer available in trafficking cases.
Read more: Freemovement, https://rb.gy/nmmqta |
TUI Airline Bosses Forced to Pull Out of Deportation Flights
After over a year of mounting pressure against TUI (formerly Thomson Airways), the airline has said it will stop deporting people for the Home Office. It’s a victory for migrants and anti-racists as the Tory government has lost the main airline that flew charter flights. The announcement on Monday 14th Februaty 2022,came after regular Stop TUI protests supported by a coalition of organisations. They included Black Activists Rising Against Cuts, Global Justice Now and Lesbians and Gays Support the Migrants.
The campaign is not ruling out further actions. It said, “We continue to urge TUI to publicly state their regret for running charter deportations, to distance themselves from the Home Office, and to make a firm commitment that they will not become re-involved in the future.” The campaign organised a national day of action last August which saw protests and the shutting down of TUI travel agency stores in ten cities. The following month a large and lively demonstration in Brighton marched from the Labour-left festival, The World Transformed, to the TUI headquarters.
Since TUI started helping the Home Office deport people in 2020, it has caused misery for people trapped in Britain’s deadly immigration system. The company was responsible for hundreds of deportation. It ran nine flights to 19 destinations as part of Operation Sillath in November 2020 alone. Deportations are racist and dangerous.
Read more: Sam Ord, SWP, https://rb.gy/xhnlau
Refugees Can Make Backdated Child Tax Credit Claims
I can do no better than adopt Tom Royston’s summary of R (DK) v Revenue and Customs [2022] EWCA Civ 120: in an important decision about the rights of refugees to financial support for children, the Court of Appeal in England and Wales has agreed with their colleagues in Scotland: refugees can make backdated child tax credit claims.
The refugee in this case was a Sri Lankan man known as DK. He claimed asylum in December 2009 and was refused three times, before eventually securing refugee status ten years later. DK then applied for backdated child tax credit in respect of his son, who had by now turned 18 and left full-time education but was a qualifying child for much of the period during which his father’s asylum claims were pending. He relied on regulation 3 of the Tax Credits (Immigration) Regulations 2003:
(4) Where a person has submitted a claim for asylum as a refugee… in the first instance he is not entitled to tax credits, subject to paragraphs (5) to (9). (5) If that person – (a) is notified that he has been recorded by the Secretary of State as a refugee or has been granted section 67 leave, and (b) claims tax credit within one month of receiving that notification… (6) He shall be treated as having claimed tax credits – (a) on the date when he submitted his claim for asylum…
In other words, you could claim a lump sum calculated from the date you claimed asylum. The rationale is that you had been a refugee, and thus entitled to benefits, all along — it just took the Home Office a while (a decade, in this case) to officially confirm that via the asylum process.
Read more: Freemovement, https://rb.gy/q4phn6
Anonymous Appellants and Secret Hearings
The Upper Tribunal (Immigration and Asylum Chamber) has updated its guidance on exceptions to open justice. Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private runs to 53 paragraphs, twice the length of its 2013 predecessor, issued under President Blake.
The note reminds judges: Given the importance of open justice, the general principle is that an anonymity order should only be made by UTIAC to the extent that the law requires it or it is found necessary to do so. Situations where “the law requires it” include to protect alleged victims of sexual offences or human trafficking, or children involved in Family or Youth Court cases.
Situations where it is “necessary” relate to human rights or the best interests of children. Such situations “may require the weighing of the competing interests of an individual and their rights (for example, under Articles 3 or 8 of the ECHR or their ability to present their case in full without hindrance) against the need for open justice”. Anonymity should not be granted merely because an appellant or witness has done something “social embarrassing” or committed a crime.
The guidance note also covers applications to hold all or part of a hearing in private.
Read more: Freemovement, https://rb.gy/xhxaf8
When Can the Home Secretary Take Your Citizenship Away?
One of the Home Secretary’s more startling powers is to take people’s British citizenship away where they acquired it by fraud or it is “conducive to the public good”. In the latter case, losing citizenship often amounts to exile in the interests of national security: the tactic is to wait until the person is abroad before making the deprivation order. Under the Nationality and Borders Bill, the person need not be told about the order at all.
The Home Office tells us that this power is used “sparingly”. Between 2010 and 2018, “only around 19 people a year were deprived of their citizenship on ‘conducive to the public good’ grounds”. Whether that is rare or routine depends on your point of view, but the average conceals an upward trend in recent years (insofar as figures are available). Fighting cases in the SIAC national security court is — “like wrestling with a shadow” — and the role of judges in policing one of the state’s most draconian powers.
Stripping people of British citizenship without telling them is definitely illegal – for now
Read more: Freemovement, https://rb.gy/omfctx
Uncertainty for Zambrano Carers Following Court of Appeal Ruling
The Court of Appeal has dismissed the government’s appeal against last year’s decision that the EU Settlement Scheme rules on Zambrano carers are unlawful. But the judgment in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 leaves the situation for these carers — non-EU parents of British citizen children — uncertain.
The court held the Home Secretary had misunderstood domestic law but did not rule that there had been any breach of EU law. While the Home Secretary is now required to rewrite the Immigration Rules with regard to Zambrano carers, it remains to be seen whether she will do so in a way that will provide a route to settlement under the Scheme for those with existing permission to stay in the UK.
Read more: Freemovement, https://rb.gy/fnvhmn |