Any Home Secretary has Massive Power to Control Immigration
Immigration law is complex, badly drafted and it is spread out across multiple legal instruments in piecemeal fashion. That said, it collectively gives the government of the day extremely wide-ranging powers to control all aspects of immigration. Almost any legal rule the Home Secretary wants to change can be changed virtually at will — subject to a parliamentary majority — using immigration rules or secondary legislation. Constraints on the powers of the Home Secretary and immigration officials tend to be real-world or resource issues rather than legal ones.
The criteria for entry, ongoing residence, settlement or expulsion on all immigration routes, the very existence of those immigration routes, the level and structure of application fees, the composition of the Migration Advisory Committee, the resourcing of workplace inspections or criminal investigations and more can all be changed with ease. Whether such changes will achieve the intended policy outcome will depend on how well designed, managed and implemented the changes were.
Some, perhaps much, of the immigration legislation now on the statute book has found its way there as a matter of form and politics rather than necessity. When officials are under pressure to explain perceived failings in their department, they may find it useful to blame perceived legal constraints which in truth have little if any relevance. Politicians under similar pressure from the public have been known to do the same. This tendency may be reinforced by campaign and lobby groups, which sometimes use an Act of Parliament as a focal point for a campaign.
Read more: Freemovement, https://shorturl.at/lsGQV
Appellant Keeps British Nationality After Court Of Appeal Overturns Dishonesty Finding
An appellant did not act dishonestly when he applied for British citizenship and answered ‘no’ when asked whether there was anything that might cast into doubt his good character. This was despite him being arrested four weeks after citizenship was granted and later pleading guilty to an offence that took place prior to the application.
This is the conclusion of Lord Justice Lewison, Lord Justice Green and Lady Justice Andrews in Hafiz Aman Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201.
Read more: Freemovment, https://shorturl.at/CGOUZ
Statement of Changes HC 590: Salary Thresholds Increased, Shortage Occupation List Gone
As previously advised, today a statement of changes and explanatory memorandum to the immigration rules was published to bring in the income threshold increases for both skilled worker and Appendix FM partner routes. The immigration minister made a statement summarising the changes relating to the skilled worker, Appendix FM partner, EU settlement scheme, the new immigration salary list and administrative review for EU settlement scheme applications.
A deeper dive into the changes affecting worker routes will follow, including the extent to which the Migration Advisory Committee’s recommendations have been implemented, but some of the main changes are set out below. Read more: Freemovment,
Read more: Freemovment, https://shorturl.at/epqB2
JUSTICE: Way Forward for EU Settlement Scheme
Legal reform charity JUSTICE has published a report today from their EUSS working group that looks at the ongoing problems with the EU settlement scheme and makes 16 recommendations. The report commends the scheme as being largely successful and for processing a huge number of applications in a relatively short period of time. However the working group believes that the government is not properly facilitating the rights of all those EEA nationals who are entitled to them under the Withdrawal Agreement.
Issues include backlogs and delays, decision making that lacks clarity and consistency, with injustices hard or impossible to remedy following the removal of administrative review and the fact that invalidity decisions cannot be appealed. Those most likely to be affected are people least likely to be able to navigate their way out of it alone: older people, victims of trafficking and/or domestic violence, homeless people, children in care, people with literacy issues or language barriers, those who lack digital skills, as well as those with criminal records.
Read more: Freemovment, https://shorturl.at/fqyX3
|
Lords’ Further Defeat of Rwanda Bill Delays Final Vote Past Easter
Peers have inflicted a further series of defeats on Rishi Sunak’s flagship small boats bill, which would see asylum seekers deported to Rwanda.
The House of Lords voted on Wednesday night that the government’s bill should have “due regard” for international law, and that the UK’s treaty with Rwanda should be fully implemented before flights start. Peers defeated the government on all seven votes, including passing an amendment that would exempt Afghan heroes who supported British troops from deportation to Rwanda.
Labour’s Vernon Coaker told peers that the reputation of the country was at stake, stressing that it “can’t be right” that the fundamental bill exempts ministers from following international law.
Read more: Holly Bancroft, Independent, https://shorturl.at/dJPQT
Challenge to Home Office Policy of GPS Tagging Migrants
The President and Vice-President of the Upper Tribunal (Immigration and Asylum Chamber) handed down their decision in the first challenge to the Home Secretary’s policy of imposing an electronic monitoring condition by way of GPS tags on non-UK nationals facing deportation. The Applicant, Mark Nelson, challenged the Home Secretary’s decision to require him to wear a GPS tag as a condition of his immigration bail on the basis that it was an unlawful interference with his Article 8 rights under the European Convention on Human Rights.
At the date of the hearing, the Applicant had been wearing his GPS tag for 18 months and had never been held to be in breach of his immigration bail conditions. On the first day of trial, the Home Secretary accepted that the Applicant’s GPS tag had not been sending any GPS signal for about six months – an issue which the Home Secretary had previously denied. The Home Secretary also conceded that there had been a failure to conduct lawful reviews of the proportionality of the decision to maintain the GPS tag until July 2023.
The Tribunal held that the imposition of the GPS tag had been an unlawful interference with the Applicant’s Article 8 rights as the Home Secretary’s failure to comply with his published policy to conduct reviews was not “in accordance with the law” under Article 8. The Tribunal held that the requirement to conduct regular reviews were an “integral part of the legal framework” given that the statutory duty to impose an electronic monitoring condition as a condition of bail was subject to the legislative exceptions that electronic monitoring must not continue if its continuation would be either impractical or incompatible with a bailed individual’s human rights. The Tribunal emphasised that “[n]either of those considerations are static, and the existence of those exceptions is undoubtedly an important feature which underpins the need for the policy” (§64).
Moreover, the Tribunal held that the 197-day period during which the Applicant’s tag was not sending GPS signal was a disproportionate interference with his Article 8 rights. During this time, requiring the Applicant to wear this tag was “essentially pointless” as the Home Secretary knew it was not working and that imposing it could not fulfil the “legitimate aims” of the legislation (§69). Notwithstanding its previous findings, the Tribunal held that the ongoing decision to require the Applicant to wear a GPS tag as a condition of immigration bail was proportionate owing to various factors which were all “finely balanced” (§77).
Source: Doughty Stree Chambers, https://shorturl.at/uzPT4
Government Told by High Court to Keep “Rather Basic Point” in Mind When Advising on Redactions
The government continues to try to maintain its ability to redact the names of junior civil servants in judicial review proceedings and the courts continue to tell them that they cannot do this. The latest instalment is MTA, R (On the Application Of) v Secretary of State for the Home Department & Ors [2024] EWHC 553 (Admin)
The substantive judicial review
This was a challenge to decision to refuse MTA’s request for resettlement under the Afghan Citizens Resettlement Scheme. The claimant challenged the decision to restrict pathway three of the scheme in the first year of its operation to women, girls, religious and other minorities who are at highest risk of human rights abuses and dehumanising treatment by the Taliban.
He argued that his application should have been considered on its own terms, by reference to the risk that he was facing in Afghanistan. The court said that the Secretary of State “must be afforded significant latitude to decide how to prioritise the availability of a finite resource”. The judicial review was dismissed.
Read more: Freemovment, https://is.gd/cOJwiM
|