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Patel and others v Secretary of State for the Home Department UKSC

As the Appeal in Patel & Ors v Secretary of State for the Home Department [2012] EWCA Civ 741 is pending in the Supreme Court I thought I would summarize very briefly the issues in leading cases in this area of immigration law for our Blog, which in Jackson LJ’s words “has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions”.

The two issues before the Court of Appeal in Patel [2012] EWCA Civ 741 1) were that when refusing an extension application whether the Secretary of State is bound to decide, at the same time (or, possibly, very shortly afterwards), whether to make a removal direction, and 2) if she was so obliged, whether that can give rise to a right in the appellants to challenge her refusal of their extension application in the FTT. Both parties relied on irreconcilable decisions of the Court of Appeal in support of their cases as given below.

The appellants’ case was that, considering the Court of Appeal’s decisions of Mirza [2011] EWCA Civ 159 as followed by the court in Sapkota [2011] EWCA Civ 1320 both points must be resolved in their favour at least in this court. (As a result of Mirza and Sapkota the SSHD had adopted a practice of incorporating in a single written notice her decision to refuse to grant or to extend leave and her decision to issue removal directions. Later the Court of Appeal upheld in Ahmadi [2013] EWCA Civ 512 earlier UT decision (referred in Patel as Ahmadi [2012] UKUT 000147)  that this practice of incorporating both decisions in a single notice is incompatible with the relevant legislation and therefore unlawful, without affecting the lawfulness of the variation decision: s47 of the 2006 Act has recently been amended in response to Ahmadi judgement).

In Patel the SSHD relying on AS (Afghanistan) [2009] EWCA Civ 1076 and Lamichhane [2012] EWCA Civ 260 took a position that both section 47 of the 2006 Act and section 120 of the 2002 act confer on her a right to make a removal decision and serve one-stop notice respectively and not an obligation.

Following consideration of the above decisions, in preliminary conclusions, the court summarized that despite underlying legislative policy of the 2002 Act in favour of one-stop notice scheme the issue turns on the structure and language of the legislation, and in the light of the language used and particularly the word ‘may’, section 120(2) of the 2002 Act appears to confer a statutorily unfettered discretion, and section 47(1), for the same reason, appears to permit, but not require, a decision to be made.

The court also summarized the proposition that SSHD must observe the public law and human rights norms in connection with the exercise of her powers under section 120 of the 2002 Act and section 47 of the 2006 Act. The court identified the problems with accepting the proposition that rejection of an extension application would be invalidated by a delayed removal direction, and rejected this proposition.

Contrary to the impression of this argument on this Court in Mirza the Court in Patel was not impressed here by the argument that the failure of the SSHD to deal promptly with the question of the removal decision following decision on extension application will make people overstay and commit criminal offence thereby. The reason for rejecting this argument was that many people make extension applications after their leave to remain has expired, section 3C of the 1971 Act would not apply, so that such a person commits a criminal offence notwithstanding the fact that he or she has made an extension application. Thus, many people to whom the reasoning in Mirza and Sapkota would apply would be in breach of the criminal law anyway so the failure of SSHD to consider removal decision does not make them commit this crime. For these reasons and others given in the judgement the court decided for the SSHD and dismissed the appeal.

The appellants appealed to the Supreme Court and the case was heard on 3 July 2013. The issues before the Supreme Court include the question whether it is lawful for the SSHD to refuse leave to remain without at the same time or shortly thereafter also making and serving removal directions. If it is not lawful, whether such an omission renders the decision to refuse leave to remain (extension decision) unlawful.

Pending appeals in the Supreme Court in Alam (Appellant) v Secretary of State for the Home Department (Respondent) and Anwar (Appellant) v Secretary of State for the Home Department (Respondent) raise similar and additional issues for which we await a decision.

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AA, R (on the application of) v Secretary of State for the Home Department [2013] UKSC 49 re Section 55 of the Borders, Citizenship and Immigration Act 2009

This is an appeal against unlawful detention in which the appellant’s position was that where the Secretary of State detained the appellant (a minor) in the mistaken but reasonable belief that he was aged over 18 the detention was unlawful on the proper construction of section 55, and that the Secretary of State’s reasonable belief that he was over 18 is no defence to his claim.

The Secretary of State relied for justification of the appellant’s detention on the statutory power of detention created by paragraph 16 but the appellant contended that the decision to detain him was unlawful because it was made in breach of section 55.

The Court held that the arrangements made by the Secretary of State under section 55 in her published policies: Every Child Matters, EIG and Assessing Age are detailed and careful, and that the guidance complies with the Secretary of State’s obligation under section 55(1), applying its natural and ordinary meaning. And on the facts of this case there was no basis for finding that there was a failure by any official to follow that guidance.

It was held that there was no breach of section 55 and therefore the exercise of the detention power under paragraph 16 was not unlawful. The Court commented that the risk of an erroneous assessment can never be entirely eliminated but it can be minimised by a careful process and there are appropriate safeguards.

The Court disapproved the proposition that any detention under paragraph 16 of a child in the mistaken but reasonable belief that he was over 18 would ipso facto involve a breach of section 55.

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Southall black sisters giving tough time to UKBA

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Go Home or Face Arrest

The new Home Office van campaign regarding illegal immigrants, “It’s not British, it’s Brutish”.

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Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC) overturned in Secretary of State for the Home Department v Raju & Ors [2013] EWCA Civ 754

This in an appeal concerning four Tier 1 PSW applicants in whose case the Upper Tribunal concluded that they were entitled to the 75 points they needed for PSW visa because although they had not sent the required documents when they sent their PSW applications to the Home Office, they had been awarded the qualification by the time the Secretary of State made her decision. The Secretary of State appeals against this Upper Tribunal decision in this case.

The appeal turned on the construction of the relevant provisions in the Immigration Rules and the Home Office contended that the relevant rule requires the qualification to have been obtained within the period of 12 months prior to the making of the application. The Court held that Paragraph 34G of the Immigration Rules precludes the concept of a continuing application which starts when it is first submitted and concludes at the date of the decision.

The Court held that an application is made when paragraph 34G says it is made and AQ  is not authority for the proposition that the applications were ‘made’ throughout the period starting with the date of their submission and finishing with the date of the decisions.

This judgment has overturned the Upper tribunal’s earlier judgment in Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC) and bad news for PBS applicants indeed, although from the wording of the judgement it is arguably that it only applies in quite narrow circumstances.

This does not mean that applications are always closed at the date the application is submitted. The normal rule remains that an application is open and can be varied up until the date of decision: JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78. However where PBS applicants supply further documents after the date of application it is only helpful if the documents go to show the situation before the date of application.

In any case where documents were missing or in wrong format and the application was subsequently refused without any regard to evidential flexibility policy then the decision may be successfully challenged on appeal.

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No longer any right of appeal against Family visitor visa refusal

On 25 June 2013, significant changes to when a person has a right of appeal, or has a right of appeal from within the UK, against an immigration decision came into force. As a result of these changes the right of appeal against the refusal of a family visit visa has been removed.

After the Crime and Courts Bill came into force on 25 June 2013 applicants who are refused a family visit visa no longer have the right of appeal against the refusal. An applicant’s options on receiving a refusal of a family visit visa application are now limited and include making a fresh application or applying for an administrative review.

Following these changes the Secretary of State can certify a refusal of leave to remain in the UK on the grounds that it is no longer conducive to the public good for the person to remain in the UK. The person will not have a right of appeal against the decision from within the UK but must leave the UK and appeal from overseas. The remedy prior to removal in such a case is to bring a judicial review.

And also where a person is appealing against a deportation order in certain national security cases before the Special Immigration Appeals Commission, the Secretary of State can certify that it is not in the interests of national security for them to remain in the UK and that to remove them would not cause ‘serious irreversible harm’ to their human rights. Then the person cannot appeal until they have left the UK. The remedy prior to removal in such a case is to bring a judicial review.

If your visa has been refused and you need advice on your options, contact us today.

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Proposals for £20,000 penalty for per illegal employee

Since 2008, employers have had a responsibility to check that their employees have the right to work in the UK. Employers who fail to do so face civil penalties, principally fines. On 9 July 2013, the Home Office launched a consultation on measures they claim will get tougher on employers who continue to employ those who do not have permission to work in the UK.

The ‘refined’ measures include:

  • increasing the size of the maximum financial penalties;
  • changes to how the penalty is calculated;
  • clarification and addition of ‘mitigating factors’;
  • improving the recovery of penalties and changes to the objection and appeal system;
  • reducing the range of acceptable documents for checking purposes to focus on Biometric Residence Permits (non-EEA nationals);
  • replacing annual follow-up check on employees with time-limited permission to work in the UK with checks when their permission is due to expire.

The Home Office is proposing to double the maximum available civil penalty to £20,000 for each illegal worker. The proposal is to retain two mitigating factors when calculating the final penalty; each one leading to a reduction of £5,000 in the civil penalty.

The proposed mitigating factors are: reporting the suspected illegal workers to the Employer Helpline, for which the employer would receive a reference number; and active co-operation with the Home Office’s investigation; and a partial check also currently counts as a mitigating factor. A partial check covers the circumstances where an employer has only checked and copied one of a specified combination of documents, or failed to carry out a follow-up check when a full check had been undertaken at the start of employment. The Home Office proposes to stop using a partial check as a mitigating factor.

The Home Office also proposes to require students to present acceptable evidence of their term dates as part of the right to work checks. This is in order to:

– prevent students from working in breach of their visa conditions;

– make it easier for employers to understand the limits on students‟ ability to work; and

– support students in demonstrating their ability to work.

Closing date for this consultation is 20 August 2013 and proposals will be taken forward through the Immigration Bill in autumn 2013 and in secondary legislation in early 2014.

If you are in the UK with no right to work, contact us today for advice on how you may obtain right to work in the UK.

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