Inflexibility within new mandatory online application process: Redundancy of “10 working day grace period” to pay Immigration Health Surcharge

The new online application process, whilst appearing on the surface to have provided a “straightforward” method of completion of online application forms, in practice has inbuilt inflexibility and unfairness on issues that matter the most, ie fees.

In relation to validity of applications, Paragraph 34 of the Immigration Rules provides that an application for leave to remain must be made in accordance with sub-paragraphs (1) to (9). Paragraph 34 relevantly provides as follows:

“(3) Where the applicant is required to pay a fee, this fee must be paid in full in accordance with the process set out in the application form.

(4) Where the applicant is required to pay the Immigration Health Surcharge, this must be paid in accordance with the process set out on the visa and immigration pages of the GOV.UK website”.

Paragraph 34 also states:

“34A. Subject to paragraph 34B, where an application for leave to remain does not meet the requirements of paragraph 34, it is invalid and will not be considered.

34B. (1) Where an application for leave to remain does not meet the requirements of paragraph 34(1)-(9), the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification.

(2) Where an applicant does not comply with the notification in paragraph 34B(1), or with the requirements in paragraph 34(G)(4), the application is invalid and will not be considered unless the Secretary of State exercises discretion to treat an invalid application as valid and the requirements of paragraph 34(3) and (5) have been met.

(3) Notice of invalidity will be given in writing and served in accordance with Appendix SN of these Rules”.

Paragraph 34B above, appears to provide some measure of exercise discretion, however as will be apparent that discretion highly likes applies to other requirements of Paragraph 34 such as provision of proof of identity by an applicant.

 

The problem

On 6 November 2014, the Immigration Rules introduced a correction opportunity for invalid applications, giving applicants 10 business days to correct errors or omissions which would result in their application being invalid. With the mandatory requirement to adhere to online completion of application forms, the new application process however ensures that, for those not granted a fee waiver, the Home Office will obtain both the application fee and NHS Heath Surcharge upfront. There is now generally no longer any room for a “grace period” in relation to provision of the Surcharge. This is because the new online process does not permit a bypassing of payment of the Health Surcharge: before an applicant can pay the required Home office fee, they are automatically led to the relevant GOV.UK site which prompts payment of the surcharge. Once the charge is paid, then and only then is the applicant returned to the online form so as to make payment of the application fee. Bar cases where a fee waiver has been granted, simply put therefore, the new process does not permit actual online submission of a completed from unless both sets of fees are paid in advance.

Current information on GOV.UK website confirms the above:

“Pay the healthcare surcharge

If you’re making an immigration application online you pay the healthcare surcharge as part of the application process. You must complete the payment and return to the online immigration application in less than 30 minutes”.  https://www.gov.uk/healthcare-immigration-application/pay

Prior to the onset of the mandatory online application process regime, submission of a paper FLR(FP) application form enabled an applicant to complete the application form, attach supportive accompanying documentation and provide payment of the application fee either by cheque or via provision of debit/credit card details within the paper payment page. Whilst the Home Office took weeks to consider validity of the application, a financially challenged applicant would take that opportunity to source any remaining funds going towards the surcharge and then make online payment thereby avoiding invalidation of their application. Most times the Home Office would, upon exercising discretion send out correspondence to the applicant requiring that the surcharge be paid within 10working days of the date of their letter. With the exception of those granted fee waivers, the new application process however appears to have removed the previous flexibility that accompanied paper applications.

 

Have the in-built flexible provisions of the Immigration (Health Charge) Order 2015 been made largely redundant?

The new online application process also raises the question whether in practice the Home Office have made largely redundant relevant existing provisions of the Immigration (Health Charge) Order 2015 SI 2015 No. 792, ie the Principal Order. It is the Principal Order that requires a person who applies for entry clearance for a limited period, or for limited leave to remain in the United Kingdom, to pay an immigration health charge. The Order came into force on 6th April 2015.

Of note, as regards the consequences of a failure to pay a charge, the Explanatory Note to the 2015 Order summarises the effect of Article 6 as follows:

“Article 6 sets out the consequences of a failure to pay a charge. The entry clearance officer or the Secretary of State, as applicable, may inform the person of the failure to pay the charge. Where a person applies for entry clearance, the person will have 7 days to pay the outstanding amount or the application must be refused. Where a person applies for leave to remain, the person will have 10 days to pay the outstanding amount or the application must be treated as invalid”.

Although Article 6 was subsequently amended by the Immigration (Health Charge) (Amendment) Order 2017, SI 2017 No. 420, however those amendments related to the following as summarized by the Explanatory Note to the 2017 Order:

“Article 2 amends article 6 of the Principal Order, which sets out the consequences of a failure to pay a charge, in relation to a case where an application for leave or entry clearance is refused and the immigration health charge has either not been requested or has been refunded. If the refusal is subsequently overturned by the Secretary of State or a competent court or tribunal and the application is granted, an entry clearance officer or the Secretary of State may request payment of the charge or part of the charge. It also makes provision for cases where entry clearance or leave to remain is granted for a lesser period than that requested by the applicant and the Secretary of State has refunded part or all of the charge. If on appeal or otherwise a longer period of leave is to be granted, the Secretary of State may request payment of the charge for the additional period of leave. The applicant must then pay within the time specified in article 6(1) of the Principal Order or the additional period of leave cannot be granted”.

Information on the Home Office website currently provides:

“When you must pay

If you apply for a visa online, you pay the surcharge as part of the application.

If you apply for a visa by post, you must pay the surcharge online before you send your application. You’ll need to include your IHS reference number on the application form.

If you do not pay

You’ll get an email from UK Visas and Immigration if you do not pay the surcharge (or do not pay enough) as part of your visa or immigration application.

Once you get the email, you must pay the surcharge within:

  • 10 working days if you’re inside the UK

 

  • 7 working days if you’re outside the UK”.

https://www.gov.uk/healthcare-immigration-application/how-much-pay

The provision of a “grace period” within which to pay the surcharge appears to reflect the provisions of the Principal Order, however as a substantial majority of applications are now submitted online, the new process appears to leave no room for an in-country applicant to provide payment of the surcharge within a requested 10working days after submission of the application. This is because as set out above, the online forms have been set up not to permit this.

The very limited situations within which a “ grace period” is given to pay the surcharge is in the circumstances summarized above as per the Explanatory Note to the 2007 Order. These are however usually circumstances in which for example an applicant has already paid the surcharge on application but refused entry clearance as a partner and the surcharge is refunded. Where a resultant appeal succeeds, for the applicant to be granted entry clearance, they will first be required to pay the refunded surcharge. UK Decision Making Centre will send an email to the applicant to the following effect:

“The decision to refuse your visa application has been overturned and our office will now proceed to the next stage of your application. To complete this process we require you to undertake the following steps: Pay your I.H.S and submit your passport to the visa application centre…. Shortly, you will receive a further email providing a link for your IHS payment. If you do not receive an email within 7 working days of this email, please contact Sheffield.PostDecisionIHS@fco.gov.uk with your name, GWF reference and request the IHS payment email be sent”.

A further email will then follow stating, “Please note that if the full payment is not made by —— 2019 then your application will be refused.  If this is the only reason for refusing your application, you will have to make a new visa application and your visa fees will not be refunded”.

Another scenario in which an applicant will be given 10working days to make payment of the Surcharge applies when a settlement application is made ( settlement applications do not require payment of the surcharge). Where the application is refused, say because of adverse criminal issues and the applicant is instead granted limited leave to remain, time will be given within to make payment of the surcharge online.

The above scenarios however do not apply to the vast majority of individuals submitting applications online where that process has deliberately removed any room for enabling applicants to first pay  the required application fee, submit the online application and then await payment of the surcharge days or weeks later upon request.

 

Out -of- date and potentially misleading Home Office Policy Guidance

Home Office Guidance policy published nearly 6months ago, Applications for leave to remain: validation, variation and withdrawal currently appears to give misleading information regarding the possibility of a continuing “grace period” since in FLR(FP) applications, it is no longer possible to make applications on paper. The Guidance provides:

“Requirement: Fee payment

The online and paper applications explain how to pay the application fee. Each applicant must pay any relevant fee for their application in full and according to the process set out on the form. The fee to be paid is the one in place on the date the application is submitted (for information on how to calculate the date of application see: Date of application: original application). If the fee changes after this date and whilst an application is being considered, this does not make the application invalid.

The fees can be found on GOV.UK.

If an applicant has not paid the correct fee, you must write to them by using the validation warning template ICD 4944 on Doc Gen, or the Invalid Application Warning template on Atlas, and give them 10 working days to rectify their mistake. You must provide instructions on how to pay the correct fee. If they do not do this, you must reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen or the Invalid Application template on Atlas.

If the applicant attends a Service and Support Centre you must tell them in person that they have not paid the correct fee and ask them to pay the fee then or return the completed application form and correct fee within 10 working days.

If the correct fee is paid within 10 days the date of application is the date the original application was made.

You do not have discretion to treat an application as valid where the applicant has not paid the correct fee even when the other requirements of paragraph 34 have been met. Therefore, it is important that you give them the opportunity to pay the correct fee”.

In relation to fee waiver applications, again the Guidance policy Applications for leave to remain: validation, variation and withdrawal is grossly out of date in so far as it proceeds on the basis that it is not possible submit online fee waiver applications. In fact for the past few months, the only method of submission of fee waiver applications has been online. The Guidance currently states:

“Fee waiver or fee exemption and validation

Some applicants can apply for a fee waiver or qualify for a fee exemption. The most common is the fee waiver for particular human rights based applications. For guidance on fee waivers for these applications see: Fee Waiver: Human Rights Based and other specified applications.

Applicants making a paper application and requesting a fee waiver

If an applicant has made a paper application for leave to remain and also requested a fee waiver, if the application is made ‘in time’ (before their current leave has expired), and the request for a fee waiver is refused, you must write to them by using the validation warning template ICD 4944 on Doc Gen or the Invalid Application Warning template on Atlas and give them 10 working days to pay the application fee. If they do not pay the fee within that deadline, you must reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen or the Invalid Application template on Atlas. If the fee is paid within 10 working days the application date is the date the paper form was submitted.

If an applicant has made a paper application for leave to remain and also requested a fee waiver, if the application is made ‘out of time’ (where the applicant does not have current leave) and the request for a fee waiver is refused, you must inform them that request for a fee waiver has been refused and their application for leave to remain is therefore invalid and has been rejected using the notice of invalidity template: ICD 4946 on Doc Gen or the Invalid Application template on Atlas.

Applicants making an online application and requesting a fee waiver

It is not currently possible to request a fee waiver online”.

Fee waiver applications can be made online via the following link: https://visas-immigration.service.gov.uk/product/fee-waiver

The new online process for fee waiver applications is also confirmed by the Home Office’s other more relevant Policy Guidance, Fee waiver: Human Rights-based and other specified applications, which states:

“From 4 January 2019, fee waiver requests are to be made using the digital (online) request form and submitting the request online. The relevant application for leave to remain form can also be accessed online and completed at the same time. This online form can then be exited and stored until the outcome of the fee waiver request. When the outcome of the fee waiver request has been received, this online leave to remain form can then be retrieved and the application submitted”.

As regards a “ grace period” for payment of the Surcharge, in light of the above clarifications in relation to how the new process operates in practice, the Guidance appears to provide general information which is at odds with the actual online application process. The Guidance, Applications for leave to remain: validation, variation and withdrawal states:

“Requirement: Immigration Health Charge payment

………………..

If an applicant (including a dependant applicant) has not paid the correct IHS, you may write to them by using the template ICD 4944 on Doc Gen or the IHS payment template on Atlas and give them 10 working days to pay correctly. If they do not respond, you should normally reject the application as invalid using the notice of invalidity template: ICD 4946 on Doc Gen or the Invalid Application template on Atlas”.

 

Conclusion

The exercise of any discretion which might be open to the Home office to require the surcharge to be paid weeks after submission of the online form, appears unworkable in practice. This is by virtue of the existence of the introduction of the new online application process itself. Once the online application form has been submitted, an applicant will need to request an appointment within 5 working days of making their application. The new application process is set out in a recent blog post: Part 2: How not to fall foul of the new application process and ensure a valid Home Office application.

A policy of permitting a delay in payment of the surcharge by applicants will likely render the new online application process unworkable. That should however not justify the Home Office closing off entirely the ability of an applicant to be provided an opportunity in practice to make subsequent payment of the Surcharge after submission of the online application and before their application is decided. This is in fact what appears in reality to have been contemplated by the Immigration (Health Charge) Order 2015 when it came into force four years ago.

 

 

 

Home Office to refuse Zambrano applications under EEA Regs if Appendix FM/Article 8 alternative route available

Zambrano claimants applying under the Immigration (European Economic Area) Regulations 2016 are being railroaded by the Home Office.  Access to a derivative right of residence is being severely restricted, if not shut altogether.

The Home Office’s interpretation of the effect of Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028 as set out in their current Guidance, Derivative rights of residence, is intended to not only shut out as many Zambrano applicants as possible but refuse to such claims.

Via amended guidance, Derivative rights of residence published on 2 May 2019, Home Office caseworkers are currently being instructed that Zambrano applications are to be refused if the applicant has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim.

The Home Office seem to be not only making up the law as they go along but extending it.

 

Basics- Derivative rights of residence:

As confirmation of a derivative right of residence, a person can apply for a derivative residence card.

A person may qualify for a derivative right of residence in one of the following categories:

  • Zambrano cases
  • Chen cases
  • Ibrahim and Teixeira cases
  • Dependant child aged under 18 of a primary carer in one of the categories set out above

The Zambrano judgment ( Ruiz Zambrano v Office National de l’Emploi (C-34/09) 8 March 2011 [2012] QB 265), established that European Union (EU) member states cannot refuse a person the right to reside and work in a host member state, where to do so would deprive their EU citizen children of the substance of their EU citizenship rights by forcing them to leave the European Economic Area (EEA).

The primary carer of a British citizen will have a derivative right to reside in the UK if the British citizen:

  • is also residing in the UK
  • would be forced to leave the UK, and the EEA, should the primary carer be denied such a right

Provision is made to recognise a person’s derivative right of residence on the basis of the Zambrano judgment in the Immigration (European Economic Area) Regulations 2016 under Regulation 16(5):

Derivative right to reside

This section has no associated Explanatory Memorandum

16.(1) A person has a derivative right to reside during any period in which the person—

(a)is not an exempt person; and

(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).

…………………………..

(5) The criteria in this paragraph are that—

(a)the person is the primary carer of a British citizen (“BC”);

(b)BC is residing in the United Kingdom; and

(c)BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.

………………

(8) A person is the “primary carer” of another person (“AP”) if—

(a)the person is a direct relative or a legal guardian of AP; and

(b)either—

(i)the person has primary responsibility for AP’s care; or

(ii)shares equally the responsibility for AP’s care with one other person.

……………………………….”

The regulations do not impose an age limit on the relevant British citizen who is dependent upon their primary carer.

 

What the Policy Guidance states:

Policy Guidance, Derivative rights of residence currently instructs Home Office Caseworkers as follows:

“Alternative means to remain in the UK

A derivative right to reside is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer.

As a Zambrano case centres on a person seeking to remain in the UK with a British citizen, there is significant overlap with the right to respect for private and family life which is protected by Article 8 of the European Convention on Human Rights (ECHR).

Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.

In the case of Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017), the Court of Appeal ruled that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. The Court also ruled that Zambrano is a not a back-door route to residence for those who have a British citizen child without having or acquiring leave to remain.

This means that a Zambrano application must be refused if the applicant:

  • has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available
  • has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child

 

Applicants being refused because it is open to them to apply under Appendix FM to the Immigration Rules should be directed to the information available at www.gov.uk/uk-family-visa.

If an applicant has made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, and they were refused and exhausted their appeal rights recently, you must consider whether a derivative right of residence exists following the caseworking steps outlined in this guidance”.

 

Patel in the Court of Appeal – Factual Background:

In the conjoined appeals in Patel, the Court of Appeal considered the question of derivative claims for residence in the United Kingdom by claimants without rights of residence, based upon their care for British citizens who are their “direct relatives” whether children or adults in need of care. The Court was asked to consider whether the approach was altered by the decision of the CJEU in Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others (10 May 2017) (Case C-133/15) (Grand Chamber), [2017] 3 WLR 1326, [2017] 3 CMLR 35.

It is important to set out the factual background to the claimants involved in the litigation in Patel so as to better “appreciate” in part the originations of the Secretary of State’s formulation of his amended policy guidance as set out above.

  • Mr Shah, a Pakistan national born on 2 September 1986 came to the UK in August 2008 as a student but his leave to remain was revoked in 2012. After making an unsuccessful claim on human rights grounds, he applied for a Derivative Residence Card on 2 December 2013, which was refused on 28 March 2014. He appealed to the First Tier Tribunal against that decision. His appeal was based on the claim that he was the primary carer of Aaryan Shah, a British citizen, born on 20 June 2013, his parents having undergone a civil marriage on 10 October 2012. Mr Shah’s wife was a UK citizen. The FTT accepted the evidence that Mr Shah was the primary carer of the child. He did not work and she did. The evidence was that his wife worked during the day, during which time Mr Shah cared for the child. The mother also cared for the child when not at work, and there was no suggestion she was incapable of caring for the child in any way whatsoever.
  • Mr Bourouisa, an Algerian citizen, born in 1983 entered the United Kingdom illegally in December 2004. He married a British citizen in 2008. Their son was born in June 2009. On 7 April 2014, Mr Bourouisa,  applied for a Derivative Residence Card as the primary carer of his son Adam, who was a British citizen. The Secretary of State refused the card on 9 May 2014 on the ground that Adam would not be compelled to leave the United Kingdom.
  • Mr Patel, an Indian national, was born on 11 September 1986. He entered the United Kingdom in February 2010 as a Tier 4 (general) student migrant with leave to remain until 13 June 2012. On 8 June 2012, he sought indefinite leave to remain outside the rules, which was refused in January 2013. His appeal against that decision was dismissed in October 2013 and permission for further appeal was refused. On 27 June 2014, Mr Patel sought leave to remain on the basis of his family and private life, and on 29 August 2014 that application was refused. On 4 December 2014, Mr Patel applied for a Derivative Residence Card, claiming to be the primary carer of a British citizen, his father. Both his parents are UK citizens.

The claimants in Shah and Bourouisa argued that Chavez-Vilchez represented a softening of the Zambrano principle, sufficient for them to succeed. The claimant in Patel argued likewise, applied to a dependent adult. The Secretary of State submitted that the case of Chavez-Vilchez added nothing to the cases, none of which concerned children whose sole effective carer would be forced to leave the country.

 

Patel- Court of Appeal’s considerations:

The Court of Appeal considered as follows in Patel:

  • The Court observed that the European authority after Zambrano in the period before Chavez-Vilchez distinguished between cases where both parents, or the single parent with care of a child or children, were leaving the EU, and those where one parent in a family could remain. It was noted that in Zambrano, the departure of both parents from Belgium would in practice compel the departure of their very young children, and thus deprive them perforce of their EU citizenship rights. In Dereci and Others (C-256/11, EU:C:2011:734), the mother of the children had Austrian citizenship, and if she chose to remain in Austria, the children could remain. If they left Austria, it was an exercise of choice to keep the family together, not a deprivation of rights by compulsion. That distinction stood despite the consideration of family life enshrined in Article 7 of the Charter and the rights of the child enshrined in Article 24.
  • The Court of Appeal further observed that English cases have followed a similar line, in construing European authority and the 2006 Regulations. Reference was made to Harrison v Secretary of State for the Home Department [2012] EWCA Civ 1736 [2013] 2 CMLR 23, which was concerned with the application of the Zambrano principle in a deportation case. In Harrison, Elias LJ observed (paragraph 55) that in the cases before him, there was a measure of agreement. The application of the Zambrano test “requires a Court to focus on the question whether as a matter of reality the EU citizen would be obliged to give up residence in the EU if the non-EU national were to be removed from the EU”.  Elias LJ also agreed with the Secretary of State that: “… there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the European Union. If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci [2012] 1 CMLR 45, but that is an entirely distinct area of protection.” (paragraph 63)
  • As regards, Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others (10 May 2017) (Case C-133/15) (Grand Chamber), [2017] 3 WLR 1326, [2017] 3 CMLR 35, the Court of Appeal noted that that case concerned a request for a preliminary ruling from the CJEU from eight mothers of minor children with Netherlands nationality “for whose primary day to day care they are responsible”, and the refusal of benefits by the Dutch authorities on the ground that the mothers did not have a right of residence in the Netherlands. The circumstances of the various children and their families were considered. The circumstances varied, but in many instances the fathers of the children gave no, or very limited, care to the children, and the non-resident mothers were the only carers, or provided the great majority of the parenting.
  • The CJEU in Chavez confirmed that the relevant question was whether the children would, in practice, be compelled to leave the EU if their mothers were obliged to leave the territory of the EU (paragraph 65). That was a question of fact in each case, and the Court in Chavez touched on a number of factors relevant to that question between paragraphs 68 to 72 of their judgement.
  • A further question submitted to the CJEU centred on whether the third-country national parent in such circumstances had the obligation of establishing that the national parent was “not in a position to provide the primary day-to-day care of the child” (paragraph 73). The Court’s answer was to the effect that the third-country national had the burden of showing that a decision to refuse residence to them would deprive the child of the genuine enjoyment of the substance of their rights as citizens: thus the evidential burden lies on the third-country national parent (paragraphs 73-75), whilst the Member State must ensure a system to protect those rights (paragraph 76). The practical or evidential question was re-stated between paragraphs 77 and 78 in Chavez.

 

Patel- underlying principle in Zambrano is undisturbed by Chavez-Vilchez and no alteration in the test of compulsion:

  • The Court of Appeal’s conclusions in Patel were that the underlying principle in Zambrano remains undisturbed by Chavez-Vilchez, albeit that in the case of a child dependent on one parent who is a third country national with no right of residence, the State must ensure a careful process of enquiry. However, the third-country national bears the evidential burden of establishing that the child citizen will, in practice, be compelled to leave the EU, unless rights of residence are granted to the (principal) carer parent.
  • The Court stated that as always with CJEU authority, the context must be borne in mind when looking at the conclusions of the Court. It was noted that in Chavez-Vilchez, the reference came before any final decision by the referring court. The Dutch court was looking for guidance. There were no crisp findings of fact in respect of the eight different cases. However, the assumption which ran through the cases, whether the EU citizen father assisted with child care or not, was that the EU citizen parent would remain in the Netherlands whatever the outcome of the case. None of these cases were family units with parents living together. In each case the context was: if the non-EU citizen mother leaves and the EU citizen father remains, will the EU citizen child be compelled, in practice, to leave?
  • In the Court’ s judgment, the decision in Chavez-Vilchez represented no departure from the principle of EU law laid down in Zambrano, although it does constitute a reminder that the principle must be applied with careful enquiry, paying attention to the relevant criteria and considerations, and focussing not on whether the EU citizen child (or dependant) can remain in legal theory, but whether they can do so in practice. There was no alteration in the test of compulsion.
  • It followed that Chavez-Vilchez did not represent any kind of sea-change to the fundamental approach to be taken. It did not mean that English reported cases implementing Zambrano but pre-dating Chavez-Vilchez (such as Harrison, and Sanneh) hold diminished authority.

 

Court of Appeal’s conclusions in Patel:

The Court stated that in both Shah and Bourouisa there was impressive evidence of the strength of family life, and of the determination of the British citizen mother (in each case) to stay with the family unit and move abroad, if the husband and father must leave. However hard such a choice may be, it was a choice, not a necessity, not compulsion. The evidence in each of these two cases was clear that were the British parent to remain, they would be able to care for the children concerned perfectly well. The child citizen would be under no compulsion to leave the EU.

The Court of Appeal in Patel further stated at paragraph 76:

“Quite a number of years ago, Parliament chose to abrogate the historic approach that marriage to a British citizen would bring, in effect automatically, residence in Britain for the spouse. No such automatic consequence now follows, see s.6(2) of the British Nationality Act 1981 and s.2 of the Nationality, Immigration and Asylum Act 2002. Those who marry a British citizen and have children, without having (or acquiring) leave to remain, do so at the risk that they may be compelled to leave the country, facing the real quandary that arises for these families. The Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents”.

The Court of Appeal allowed the Secretary of State’s appeals in Shah and Bourouisa. This was because in each case, the Tribunal started with the desirability of maintaining the family life, and jumped to the conclusion that there was the requisite compulsion on the child. That was an error. The correct approach would have been to ask is the situation of the child or children such that, if the non-EU citizen parent leaves, the British citizen will be unable to care for the child or children, so that the latter will be compelled to leave. In so doing, the Tribunal must pay regard to all the relevant circumstances indicated by the CJEU in Chavez-Vilchez, and in particular in paragraphs 70 to 72.

The Court of Appeal also emphasised that consideration of the respect for family life (whether considered under Article 8 ECHR or Article 7 of the Charter), although a relevant factor, cannot be a trump card enabling a court or tribunal to conclude that a child will be compelled to leave because Article 8 (or Article 7) are engaged and family life will be diminished by the departure of one parent. Family life will be diminished by the departure of one parent in the great majority of cases. The question remains whether, all things considered, the departure of the parent will mean the child will be compelled to follow.

The Court in Patel further stated as follows at paragraph 79:

“In these two cases, the question of compulsion did not really even arise, in my view. If one parent left, each British parent would have been perfectly capable of looking after the child. There was no real evidence to the contrary. There would have been a loss of earnings, a diminution in material things and an important loss of two parents living together with their child, but as the evidence stood, it seems to me, there was no proper basis for a finding of compulsion. In Shah, a claim under Article 8 has already been rejected. In Bourouisa, it has not been made. That is a separate matter legally. I should not be understood to close off such a claim, in theory or in practice”,

In relation to the case of Patel, the Court stated that the question remains of compulsion. The evidence in the case was too equivocal to amount to compulsion, however one looked at the matter. There was absolutely no doubt as to the parents’ devotion to their son, or his to them. Were he to leave to India, there was no doubt that the parents said they would follow, but that really represented their cultural and individual commitment to each other. That, again, was choice not compulsion.

The evidence was no house existed and  there was no extended family in India. Part of Mr Patel’s case was that medical facilities would be more limited in India. The Upper Tribunal considered, on the evidence, it was inevitable the parents would in fact remain. But even if that were wrong, this situation could in no way be regarded as one of compulsion to leave. At the very least, the case represented a very difficult choice for Mr Patel’s parents however they were not obliged to leave in any sense.

 

Conclusion:

It should be noted that the following, amongst other submissions, were made on behalf of the Secretary of State in Patel before the Court of Appeal:

  • “42. In her submissions in relation to this case, Ms Smyth for the Secretary of State began by emphasising that Mr Bourouisa has never made an application for leave to remain in the United Kingdom on family life grounds. I pause to remark that such an application might well be open to him. We have seen material in the course of the case which might well be relevant to such an application, although it cannot bear upon the decision we must take”.
  • “68. In Patel’s case, the Appellant has already failed in an Article 8 claim. Had he succeeded, the result would have been a grant of leave to remain which would obviate the need for leave under the Zambrano principle”.

 

These submissions and the Court’s “remark” have now been incorporated into Guidance to be applied by Home Office decision makers as if they were the Court of Appeal’s ruling.

The question that springs to mind is this: why should be the Secretary of State be so focused on coercing potential Zambrano applicants into submitting applications under other routes before relying on Regulation 16(5) ?  There are many reason for this – which of course would all have been the subject of many a meeting before the Guidance was finally published it its amended form.  The sense in the reasoning is however not altogether apparent having regard to the Guidance.

A blanket application of the relevant parts of the Guidance to all Zambrano applications appears grossly wrong. This also does not appear to be the proper effect of a correct interpretation of the principles arising out of Patel.

If to be amended at all so as to read into the Guidance that potential Zambrano applicants are required to first make an Appendix FM/Article 8 claim, then the Guidance needed to make express distinction between the following categories of Zambrano claimants:

  • A Zambrano applicant in a marriage/relationship with a British citizen seeking to advance a claim that they are the primary carer of a British citizen child as in Shah and and Bourouisa. The “target” of paragraph 76 mentioned above in Patel appears to be for such persons.
  • Zambrano applicant without leave, who is the primary carer of a British citizen child but not in a relationship with the other British citizen parent.
  • Joint Zambrano applicants( in a relationship and both without leave to remain in the UK) but who share equal responsibility for their British citizen child. The Guidance states: “Joint applicants. If two primary carers are in the UK otherwise unlawfully, they can both assert a claim to a derivative right in line with regulation 16(9) of the 2016 regulations. Such an application must be considered on the basis that both people would be required to leave the UK for an indefinite period”.  Joint Zambrano applicants in this scenario are, absent any adverse factors, most likely to succeed in their application. Why then point them to the direction of an Article 8 claim?

The Court of Appeal in Patel whilst noting that in Shah, a claim under Article 8 had already been rejected but not in Bourouisa, was clear that this was a separate matter legally and that the Court should not be understood to close off such a claim, in theory or in practice. That is all that the Court stated. In such circumstances, contrary to what the amended Guidance seeks to achieve, submission of an Appendix FM/Article 8 application should not be made a prerequisite before resort can be made to a Zambrano application under the Regulations.

The Court in Patel warned that those without leave to remain, who marry and have children, will not automatically obtain residence in the UK.  In requiring Appendix FM/Article 8 to be the first port of call for future Zambrano applicants, the result is that any negative conclusions/findings of fact resulting from an adverse previous Home Office or Tribunal decision on Article 8 considerations, can subsequently be relied upon by the Home Office on a future Zambrano application/appeal.

Zambrano applications  under the Regulations require a fee of £65.00 in order to be processed whilst Appendix FM/Article 8 claims, not having the benefit of a fee waiver grant, require online payment of £1033.00 by way of application fee as well as £1000.00 NHS Surcharge per applicant.  Just because the Secretary of State appears to be seeking to abruptly stem the flow of a flurry of Zambrano applications, should not result in such applicants being penalized merely because, administratively, there exists a legal loophole for circumventing the exorbitant Article 8 application fees.

 

 

 

 

 

 

Court of Appeal endorses Upper Tribunal in JG on interpretation of section 117B(6)(b): Reasonable to expect a child to leave the UK and parental relationship

In Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 (12 April 2019), the Court of Appeal, among other issues considered Section 117(B)(6) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, in the following respects:

 

  • “a genuine and subsisting parental relationship with a qualifying child” in section 117B(6)(a), and

  • “it would not be reasonable to expect the child to leave the United Kingdom” in section 117B(6)(b)

The Court of Appeal made it clear that the,“ position has now been reached in which this Court is not only free to depart from the approach taken by Laws LJ in MM (Uganda) but indeed is required to do so in order to follow the binding decision of the Supreme Court in KO (Nigeria)”.

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Upper Tribunal on the interpretation of Section 117B(6)(b) and how a “reasonable to leave” construction can be more favourable than an Article 8 proportionality exercise

Following the Supreme Court’s judgment in KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53,  the Upper Tribunal in JG (s117B(6) : “reasonable to leave” UK) Turkey (Rev 1) [2019] UKUT 72 (IAC) (15 February 2019), considered the proper construction of Section 117B(6) with the surprsing result that on the facts, an Appellant who was found to be, “both dishonest and unscrupulous, each to a high degree…… flagrantly defied the law of the United Kingdom by overstaying her leave for a large number of years”, succeeded in her appeal.

 

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Part 1 after KO(Nigeria): The Upper Tribunal weighs in on the unduly harsh test

“We make no apology for dwelling upon NA (Pakistan)”,  state the Upper Tribunal in RA (s.117C: “unduly harsh”; offence: seriousness) Iraq [2019] UKUT 123 (IAC) (4 March 2019) in a seeming mammoth judgement setting out, breaking down and applying the law relating to deportation of foreign nationals following the Supreme Court’s decision in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53

 

For those who have over the years managed to keep a close eye on caselaw relating to deportation of foreign nationals, the Upper Tribunal judgment is a “welcome” reminder of already known caselaw and principles. Those yet to catch up, are encouraged to do so. There is no escaping the avalanche of caselaw.

 

To add to matters, the Upper Tribunal chose on the same day, 11 April 2019, to publish yet more caselaw on deportation: MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 122 (IAC) (4 March 2019).  As per paragraph 1 of RA : “In this appeal and that of MS (s.117C(6): “very compelling circumstances”) Philippines [2019] UKUT 00122 (IAC), which was heard consecutively, we consider how section 117C (Article 8: Additional considerations in cases involving foreign criminals) should be construed, following the judgment of the Supreme Court in KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53”.

 

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