Is Mnangagwa’s New  Government paving the way for  UK mass removals of failed Zimbabwean Asylum Claimants ?

Three months.  That is  the amount of time the UK Government  gave  undocumented Zimbabweans before broaching  the subject of enforcing their return  following Mugabe’s ouster on 21 November 2017.  Time to come down from the  lingering  false high induced  by Mugabe’ s departure, back to a crashing reality and forlorn acceptance  that,  “Hapana zvambochinja muZimbabwe”, ie nothing much has changed in Zimbabwe.

Apparently, it has been reported by various Zimbabwean media outlets on 13 February 2018, that one of Zimbabwe’s Vice Presidents,  Kembo Mohadi met  with the British Ambassador to Zimbabwe, Ms Catriona Lang in Harare. An interesting array of  subjects came up for discussion,  however the one  that has made the headlines is an announcement by the British  Government of its intention  to  repatriate some 2500 undocumented Zimbabweans  residing  in the UK.  It has been  reported that  the Vice President   told journalists after the meeting that,  “ Zimbabwean has no problems receiving its nationals back but would want them vetted  to ensure  they are genuine  Zimbabweans before taking them back”.

It is no secret, at least from 2010, that the UK government  has been  keen to  enforce removals to Zimbabwe- https://www.gov.uk/government/news/enforced-returns-to-zimbabwe-will-resume.  Yesterday’s headlines therefore should not unduly alarm.   The  persistent  problem for the UK Government  has  been the  seeming  unsurmountable obstacle erected by the Zimbabwean government whilst under Mugabe’s rule.  Since Restrictive Measures were installed in 2002,  the Zimbabwean Government has  required the returnee’s consent before issuing an emergency travel document ( ETD in ) relation to enforced returns.  In practice,  to the UK Government’s chagrin,  this has meant over the years, that  non- consenting Zimbabwean failed  asylum seekers, deportees who have exhausted  their rights of appeal and  those without leave,   generally  have been  irremovable.

The   position of the Zimbabwean authorities  has therefore been  that they will only accept voluntary returnees. The dilemma  faced  by the UK Government has  increasingly  been highlighted  by successive  recent litigation in the UK Courts.  Relevant blog articles in this regards are as follows:

The Zimbabwean government has stated, as any  Government should, that it will accept its own nationals however having regard to the  fact that the discussions  with the  British Ambassador  seem to have taken  place  behind closed doors, the pressing  issue  is whether  it is  now  a “ done deal” that  the Zimbabwean government has as of 13th February 2018 agreed to relax  the manner and procedures  which it will employ to re-document failed asylum claimants  to Zimbabwe.

 

Issue of a Zimbabwean Emergency Travel Document:

The Country Returns Guide published  on 5 February 2018 is relevant  and current as at that date  for consideration in relation to  seeking to ascertain  the minimum requirements applicable before the Zimbabwean Government  will issue an Emergency Travel Document https://www.gov.uk/government/publications/country-returns-guide

  • Submission letter
  • Bio-data form
  • 4 photographs of passport standard, cut  to size
  • Supporting evidence, if available
  • Full UK birth certificate must be provided for children born in the UK
  • All supportive evidence accompanying a travel document must be translated into English
  • Fee £80

The Guide is currently clear that , “The Embassy will only issue a travel document where the individual is returning voluntarily  and has signed  a disclaimer in their presence to that effect”.

A travel document issued would be valid for 6months.

As regards applications for a Temporary Travel Document, Information from the Zimbabwean Embassy website currently  states, http://www.zimlondon.gov.zw/index.php/consular-services/applying-for-a-temporary-travel-document:

Application for a Temporary Travel Document.

Please be advised that a Temporary Travel Document can ONLY be applied for in person at the Embassy, in emergency circumstances, where the Zimbabwe Passport is not available for travel. All TTDs are now issued on condition that the applicant applies for a passport with the Embassy as well.

Applicants are required to bring along the following:

  1. Old/Expired Passport (if lost, applicants are required to produce a Police Report or a letter from the Home Office);
  2. Long Birth Certificate;
  3. National Identity Card (Paper type, metal type or plastic type)
  4. Two Passport sized colour photographs, and
  5. £80 in Cash or Postal Order

Where applying for  Zimbabwean passport,  the relevant information  is as  follows, http://www.zimlondon.gov.zw/index.php/consular-services/requirements-for-passport-application:

Requirements for application for a Zimbabwean passport

Please be advised that applicants need to COME in person and submit your application form because applicants need to have their fingerprints taken at the Embassy

The following documents are required when submitting the application form:

1.Original and photocopy of Zimbabwean Long Birth Certificate;

2.Original and photocopy of National  Identity Card (ID)(Paper type, metal type or plastic type), for those who turn 16. Kindly be advise that all Zimbabwean children who have turned 16 years of age are required to obtain Zimbabwe National Registration Cards (IDs), by law, before they can apply for Zimbabwe Passports.The registration cards can only be obtained by going to Zimbabwe to make the application in person.

3.Marriage Certificate and photocopy, (for married women – ID should be in married name);

4.Proof of Citizenship, if claiming citizenship in Zimbabwe by Descent, Registration or Naturalisation;

5.Old/Expired Passport plus photocopy of bio-data page for new type passport or pages 1 to 5 for old-type Passport or letter from Home Office;

6.A fee of £65 in Cash or Postal Order

Children below 18 years should be accompanied by either parents or Legal Guardian, with I.D card or valid Passport to sign Section 5 of the Passport form;

Parents and Legal Guardians of children below 18 years whose dependents are not resident in the United Kingdom need to sign Section 5 at the Embassy and send it to their dependents.

  • 2 x colour photographs of 4.5cm long by 3.5cm wide dimensions, taken from a studio with a WHITE background and applicants should wear DARK coloured upper clothes.
  • Consular Office is open between 09:00am and 12:30pm, Monday to Friday.

INFORMATION REGARDING PROCESSING OF PASSPORT APPLICATIONS

All passport applicants please take note of the following information:

1.Processing of passport application, including payment of processing fee is done in Zimbabwe. This procedure can either be done by the applicant when he/she travels to Zimbabwe or by a third party nominee residing in Zimbabwe who is a relative of the applicant.

2.It is the responsibility of the applicant to send the application form to Zimbabwe for processing.

3.Passport application forms can be processed at any nearest Passport Office in Zimbabwe. NB: all emergency passports (one day) are processed in Harare.

4.Passport processing fees to be paid at the Passport Office in Zimbabwe are:

US$50 for a passport that is processed in six weeks

US$250 for a passport that is processed in two weeks

US$315 for a passport that is processed in one day.

  1. A complete passport application form to be sent to Zimbabwe   should consist of the following documents:
  1. the stamped passport application form (P1)
  2. certified copies of birth certificate, I.D. and relevant pages of the old passport; including the page affixed the visa sticker/ proof of residence
  3. stamped passport size photos
  4. original receipt issued by the Embassy (retain a copy)
  5. the letter authorising your nominee to submit the application and also collect the new passport once it is issued.

Once the new passport is ready for collection, the applicant is required to tender the old passport to the Embassy for cancellation and then fax copies of the cancelled passport to the nominee to enable him/her to collect the new passport.

 

Potential Impact of the “Announcement”:

There is no  shield against removals of failed asylum seekers  to Zimbabwe where they have no pending  claims/applications/appeals.  That “ protection” has not been  there for several  years, however the concern  is that where  the Zimbabwean government   has agreed to relax the procedure  for the issue of emergency travel documents e.g by not requiring  a person’s consent before issue of such a document,  then the Home office will be in a position to detain  and remove  much more quickly.

The risk of  detention  and removal is most high for those who  report yet have no pending claims.

Where a failed asylum seeker  has pending further submissions,   such a claim could  be refused without a right of appeal and  the  person  simultaneously  served with the decision upon reporting   with  detention  also being effected.

In circumstances where an Article 8, human rights private and family life application is made but refused and certified,  with either no right of appeal or an out-of-country right of appeal provided, again the Home Office can chose to  serve a decision  with detention  occurring at the same time.

A readiness to issue emergency travel documents  by the Zimbabwean Embassy further affects  the success of bail applications for Zimbabwean nationals  who are detained. Where the Home office are able to  argue on   the facts of a specific  case that removal is imminent   due to   recent issue of a travel document by the Zimbabwean authorities, or an  expectation  of issue of such a document within a fairly short time, then a Tribunal Judge may be  hesitant in granting bail.

It is important to remember that each case is considered on its own merits- even where a refusal decision is served, say with no  right of appeal, a claim for judicial review may be pursued seeking to obtain an in-country right of appeal.  A stay on removal may also be obtained  via judicial review proceedings. A prolonged  detention  can be challenged  by way of judicial review. A bail application to the Tribunal to obtain release from detention will also be one of the first issues for consideration   A further leave to remain application, where relevant  can always  be  submitted following a previous refusal decision.

 

How does the announcement  concern claims for asylum from Zimbabwean nationals?

The current issues in play  concern  how readily and reasonably quickly   the UK government  can procedurally  take steps to enforce a removal to Zimbabwe for  persons without  current Zimbabwean passports.  It has always been the case for several years now that those with current valid Zimbabweans are being removed where they have been found to have no further basis of stay in the UK. Issues regarding whether or not a person can submit a new claim for asylum, protection based further submissions  and matters of risk of return are not  affected – these are matters that Mohadi could  not have contributed to in any  meaningful  way on 13 February 2018. It is for UK based Home Office Caseworkers  to make decisions on  registered asylum claims emanating from Zimbabwean nationals.

Is it in order that the British authorities would  consider it appropriate  at this juncture to seek to open up the subject of Zimbabwean  mass removals when elections due this year have not  yet been held?  Mnangagwa  has promised  free,  fair and credible elections, however whether  the issue of violence from ZANU(PF) and the army can be contained immediately  before or after the elections is another  matter.

Perhaps  the announcement  on returns is an indicator  of  whether a new  Home office Zimbabwe Country Information Note  due to published  by the Home Office,  has  restricted even  further the categories of those that might be considered at risk on return to Zimbabwe. Time will tell, however for now, in relation to those who are undocumented who have not yet  taken steps to regularise their status, so  was to avoid the distress,  alarm and shock that an unexpected detention brings,  it might be prudent to  ensure  there is a viable  and  effective claim pending with the Home Office.

Pending any  relevant publications or Announcements  from the Home Office  on the issue, it is also well worth having regard to the next Country Returns Guide in the following months  so as to consider whether the above mentioned requirements  for issue of  a Zimbabwean Emergency Travel Document have been amended.

 

 

Non EEA family members and retained rights of residence : Pitfalls faced by divorced applicants and how to overcome them

What usually proves problematic for non EEA family members seeking to assert their rights following divorce and upon application, is that having regard to the EEA Regulations and current accompanying Home Office Guidance, in addition to other evidence, they will be required to provide documentation relating to the EEA National Sponsors’ identity and nationality as well as evidence that the EEA national was exercising free movement rights at the time that the parties divorced. An affected applicant’s inability to provide the EEA national’s valid passport or nationality identity card or evidence of the EEA national’s employment at the relevant date of divorce might result in a refusal of that application.

Overall, depending on the facts of a case, prior to application a divorced non EEA family member applicant may need to have regard to the following:

  • Needing to ensure that the application for residence documentation is accompanied or joined by the evidence or proof required by the 2016 EEA Regulations
  • Ensuring that the specified documentation required to accompany the retained rights of residence application has been submitted
  • Making sure that the applications is validly submitted to avoid its rejection without any substantive consideration
  • Submission of relevant documentation to ensure that they will be issued a long Certificate of Application so that they can start or continue in employment whilst their application is pending
  • In the event that the application might refused, prior consideration of whether they have provided relevant documentation to obtain a right of appeal
  • Awareness that their existing residence card can be revoked

 

Introduction:

Family members of European Economic Area (EEA) nationals can retain the right of residence in the UK where a marriage or civil partnership has terminated. The non-EEA national spouse or civil partner of an EEA national can, in certain circumstances, retain a right of residence when their relationship ends. The family members of the former spouse or civil partner may also retain a right of residence. This is in line with regulations 10(5) of the 2016 regulations. The family member will retain the right to reside in these circumstances if they can satisfy the relevant conditions of regulation 10.

Once the marriage or civil partnership has been officially terminated, the non-EEA spouse or civil partner, and anyone who was related to the EEA national sponsor by marriage, must meet the requirements of regulation 10(5) in order to retain a right of residence in the UK

The regulations provide for certain family members of EEA nationals to keep their right of residence in the UK under regulation 10 when:

  • the EEA national, either:

-dies, regulation 10(2)

-leaves the UK, regulation 10(3)

-divorces their spouse or dissolves their civil partnership, regulation 10(5)

  • the family member is the parent of a child who retains the right of residence – regulation 10(4)

A person can acquire permanent residence in a number of ways, most commonly if they have resided in the UK in line with the regulations for a continuous period of 5 years. This can include time spent as a family member who has retained a right of residence under regulation 10 of the 2016 EEA Regulations.

 

The Problem – divorced non EEA family members:

The requirements of Regulation 10(5) provide that a person who ceases to be the family member of an EEA national sponsor because of a divorce, or annulment or a dissolution of civil partnership will retain a right of residence where all the following conditions are met:

  • the EEA national was a qualified person, or had permanent residence, on the date of the termination of the marriage or civil partnership.
  • the applicant was residing in the UK in accordance with the regulations at the date of termination and either: -the applicant is not an EEA national but if they were, they would be a worker, self-employed person, or self-sufficient person in line with regulation 6 ;- the applicant is the family member of the person described in the bullet above
  • the applicant meets the requirements of either regulation 10(5)(d)(i), (ii), (iii), or (iv) of the 2016 regulations.

To meet the conditions of regulation 10(5)(d)(i) the applicant must have:

  • been married to, or in a civil partnership with, the European Economic Area (EEA) national for at least 3 years immediately before beginning proceedings for divorce, annulment or dissolution
  • lived in the UK with the EEA national sponsor for at least one year during the time of their marriage or civil partnership

In line with regulation 10(6) of the 2016 regulations, to be eligible to retain the right of residence, the non-EEA national must be undertaking activities similar to those of a qualified person. This means they must be either a:

  • worker
  • self-employed person
  • self-sufficient person

They must also remain a worker, self-employed person or a self-sufficient person to continue to retain their rights under the regulations and in order to acquire permanent residence.

Regulation 21(2) and (5) of the 2016 Regulations specifically provides:

Procedure for applications for documentation under this Part and regulation 12This section has no associated Explanatory Memorandum

21.(1) An application for documentation under this Part, or for an EEA family permit under regulation 12, must be made—

…………….

(2) All applications must—

(a)be accompanied or joined by the evidence or proof required by this Part or regulation 12, as the case may be, as well as that required by paragraph (4), within the time specified by the Secretary of State on http://www.gov.uk; and

(b)be complete.

……………………………….

(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national”.

Home Office Guidance Free movement rights: retained rights of residence  and Processes and procedures for EEA documentation applications is clear that when a non-EEA national has previously been issued a residence card, this only demonstrates that they had a right to reside under the regulations on the date it was issued. If they later apply for confirmation of a retained right of residence, the Home Office Caseworker must request evidence, where necessary, so they are satisfied that the applicant meets the relevant requirements/conditions relating to retained rights.

Home Office Guidance Free movement rights: retained rights of residence also states that where the applicant has already been issued a document confirming they have a retained right of residence, they would only need to show that they continue to meet the conditions in regulation 10(6). This means showing they are a worker, self employed person or self-sufficient person and that they have resided in the UK for a continuous period of 5 years.

In practice however, where a person has previously been issued with a residence card valid for 5years confirming that they have retained a right of residence as a divorced non EEA family member, upon applying for permanent residence, Home Office Caseworkers are requiring original evidence of exercise of treaty rights for the EEA national previously seen by the Home Office 5years prior and even evidence of the EEA sponsor’s nationality and identity  once again despite a considerable period of time having elapsed. In most cases evidence, such as payslips or P60 certificates would have been  destroyed, misplaced or even retained by the EEA national Sponsor. In any of these circumstances, the EEA national might have left the UK following divorce or the parties might have parted acrimoniously with a forgone conclusion reached even prior to application of little or no chance in obtaining the required documentation from the EEA national.

 

RETAINED RIGHTS AND THE RELEVANT PROVISIONS: CITIZEN DIRECTIVE AND 2016 EEA REGULATIONS:

The Citizens Directive:

The Citizens Directive 2004/38/EC provides as follows:

 

Preamble 14 provides:

(14) The supporting documents required by the competent authorities for the issuing of a registration certificate or of a residence card should be comprehensively specified in order to avoid divergent administrative practices or interpretations constituting an undue obstacle to the exercise of the right of residence by Union citizens and their family members”.

 

Article 13 Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership

“1.   Without prejudice to the second subparagraph, divorce, annulment of the Union citizen’s marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

2.Without prejudice to the second subparagraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State where:

(a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or

(b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen’s children; or

(c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or

(d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on personal basis.”

 

Article 14 Retention of the right of residence

“1.   Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2.Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically”.

 

Article 7 Right of residence for more than three months

“1.   All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2.The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c).

3.For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(a) he/she is temporarily unable to work as the result of an illness or accident;

(b) he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office;

(c) he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months and has registered as a job-seeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

(d) he/she embarks on vocational training. Unless he/she is involuntarily unemployed, the retention of the status of worker shall require the training to be related to the previous employment”.

 

Article 10 Issue of residence cards

The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

2.For the residence card to be issued, Member States shall require presentation of the following documents:

(a) a valid passport;

(b) a document attesting to the existence of a family relationship or of a registered partnership;

(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host Member State of the Union citizen whom they are accompanying or joining;

(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen…………”

 

Article 11 Validity of the residence card

“1.   The residence card provided for by Article 10(1) shall be valid for five years from the date of issue or for the envisaged period of residence of the Union citizen, if this period is less than five years.

2.The validity of the residence card shall not be affected by temporary absences not exceeding six months a year, or by absences of a longer duration for compulsory military service or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country”.

 

The 2016 EEA Regulations:

The 2016 EEA Regulations provide as follows:

“Family member who has retained the right of residence”

10.(1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraphs (8) and (9), a person who satisfies a condition in paragraph (2), (3), (4) or (5).

……………………………………………………………………..

(5) The condition in this paragraph is that the person (“A”)—

(a)ceased to be a family member of a qualified person or an EEA national with a right of permanent residence on the termination of the marriage or civil partnership of A;

(b)was residing in the United Kingdom in accordance with these Regulations at the date of the termination;

(c)satisfies the condition in paragraph (6); and

(d)either—

(i)prior to the initiation of the proceedings for the termination of the marriage or the civil partnership, the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;

………………………………………….

(6) The condition in this paragraph is that the person—

(a)is not an EEA national but would, if the person were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or

(b)is the family member of a person who falls within paragraph (a).

…………………………………………….

(8) A person (“P”) does not satisfy a condition in paragraph (2), (3), (4) or (5) if, at the first time P would otherwise have satisfied the relevant condition, P had a right of permanent residence under regulation 15.

(9) A family member who has retained the right of residence ceases to enjoy that status on acquiring a right of permanent residence under regulation 15”,

 

“Issue of residence card

18.(1)

…………………………………

(2) The Secretary of State must issue a residence card to a person who is not an EEA national but who is a family member who has retained the right of residence on application and production of—

(a)a valid passport; and

(b)proof that the applicant is a family member who has retained the right of residence.

(3) On receipt of an application under paragraph (1) or (2) and the documents that are required to accompany the application the Secretary of State must immediately issue the applicant with a certificate of application for the residence card and the residence card must be issued no later than six months after the date on which the application and documents are received.

…………………………………………

(6) A residence card issued under this regulation is valid for—

(a)five years from the date of issue; or

………………………………………..

(7) A residence card—

(a)must be called “Residence card of a family member of an EEA national”;

(b)is proof of the holder’s right to reside on the date of issue;

(c)is no longer valid if the holder ceases to have a right to reside under these Regulations;

(d)is invalid if the holder never had a right to reside under these Regulations.

(8) This regulation is subject to regulations 24 and 25”.

 

RETAINED RIGHTS – PERMANENT RESIDENCE AND THE RELEVANT PROVISIONS OF THE CITIZEN DIRECTIVE AND 2016 EEA REGULATIONS:

The Citizens Directive:

The Citizens Directive 2004/38/EC provides as follows:

 

Article 18 Acquisition of the right of permanent residence by certain family members who are not nationals of a Member State

Without prejudice to Article 17, the family members of a Union citizen to whom Articles 12(2) and 13(2) apply, who satisfy the conditions laid down therein, shall acquire the right of permanent residence after residing legally for a period of five consecutive years in the host Member State”.

 

Article 20 Permanent residence card for family members who are not nationals of a Member State

1.Member States shall issue family members who are not nationals of a Member State entitled to permanent residence with a permanent residence card within six months of the submission of the application. The permanent residence card shall be renewable automatically every ten years.

2.The application for a permanent residence card shall be submitted before the residence card expires. Failure to comply with the requirement to apply for a permanent residence card may render the person concerned liable to proportionate and non-discriminatory sanctions.

3.Interruption in residence not exceeding two consecutive years shall not affect the validity of the permanent residence card”.

 

The 2016 EEA Regulations:

The EEA 2016 Regulations state as follows:

“Right of permanent residence

15.(1) The following persons acquire the right to reside in the United Kingdom permanently—

……………………………………………..

(f)a person who—

(i)has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and

(ii)was, at the end of the period, a family member who has retained the right of residence.

…………………………………….

(4) A person who satisfies the criteria in this regulation is not entitled to a right to permanent residence in the United Kingdom where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1), unless that decision is set aside or otherwise no longer has effect”.

 

“Issue of a document certifying permanent residence and a permanent residence card

19.(1) 

……………………………………..

(2) The Secretary of State must issue a person who is not an EEA national who has a right of permanent residence under regulation 15 with a permanent residence card no later than six months after an application is received and the production of—

(a)a valid passport; and

(b)proof that the person has a right of permanent residence.

(3) Subject to paragraph (4) a permanent residence card is valid for ten years from the date of issue and must be renewed on application.

(4) A document certifying permanent residence and a permanent residence card is—

(a)proof that the holder had a right to reside under regulation 15 on the date of issue;

(b)no longer valid if the holder ceases to have a right of permanent residence under regulation 15;

(c)invalid if the holder never had a right of permanent residence under regulation 15.

(5) This regulation is subject to regulations 24 and 25”.

 

 

THE REQUIREMENT TO PROVIDE DOCUMENTATION

Applications must be accompanied or joined by the evidence or proof required by the 2016 EEA Regulations:

Home Office Document Processes and procedures for EEA documentation applications contains the Guidance on applications for a document to confirm a right of residence in the UK.

From 1 February 2017, applications for documentation made under the 2016 regulations must:

    • be made online (where applicable) or by post or in person using the specified application form
    • be accompanied or joined by the evidence or proof required by the regulations within the specified time
    • be complete
    • in the case of applications for a residence card or derivative residence, be submitted while the applicant is in the UK

 

In line with regulation 21, an application for documentation must be accompanied or joined by the evidence or proof required by:

  • part 3 of the 2016 regulations (Residence documentation), or regulation 12 (Issue of EEA family permit),
  • regulation 21(5) (Procedure for applications for documentation under Part 3 and regulation 12)

Part 3 of the 2016 regulations (residence documentation) sets out the different residence documents (except for an EEA family permit which is covered at regulation 12) and the requirements which must be met in order for those documents to be issued. In line with regulation 21, the applications for documents must be accompanied or joined by the listed evidence or proof required by that Part or regulation 12.

Regulation 21(5) specifies that where an application for documentation is made by a person who is not an EEA national on the basis that they are, or were, the family member of an EEA national, or an extended family member of an EEA national, the application must be accompanied or joined by either a valid national identity card, or a passport for the EEA national sponsor.

 

Requirement for applications to be valid:

In line with regulation 21(4), applications can be rejected as invalid where, within the specified time period where for example, the requisite valid identification document or documents has not been submitted. In line with regulation 42, alternative evidence of identity and nationality may be accepted where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control.

in line with regulation 21(4), applications can be rejected as invalid where, within the specified time period:

  • the incorrect fee, or no fee has been submitted
  • the incorrect form, or no form has been submitted -each case must be considered on its individual merits and the Home Office caseworker must refer to a senior caseworker in all instances – in such circumstances, the caseworker may continue to accept an application submitted by post or in person which does not use the specified application form
  • -in line with regulation 21(6) there may be circumstances beyond the control of the applicant which means that they are unable to comply with the requirement to submit an application online (where applicable) or using the specified form
  • the requisite valid identification document or documents has not been submitted
  • – in line with regulation 42, alternative evidence of identity and nationality may be accepted where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control
  • the biometric sections have not been completed (where relevant)the relevant sections on the form have not been completed.
  • the specified documents, proof or evidence have not been submitted

 

To qualify for a document certifying permanent residence or a permanent residence card (regulation 19), an application is only valid where it is submitted on the specified form, is complete, the relevant fee has been paid, and includes:

    • proof of identity, which is: -for EEA nationals – a valid national identify card or passport issued by an EEA state;  -for non EEA nationals, a valid passport
    • evidence to show they have a right to permanent residence, either because they have resided in the UK for a continuous period of 5 years and had a right of residence under the regulations throughout that period or because they fulfil one of the other qualifying conditions to obtain permanent residence
    • when applying as family member or extended family member of an EEA national, a valid passport or valid national identity card for the relevant EEA national sponsor
    • where relevant, evidence to show they are, or their family member is, an EEA national worker or self-employed person who has ceased activity
    • where relevant, evidence they were the family member of an EEA national worker or self-employed person who has died, they resided with that EEA national immediately before their death, and either: o the worker or self-employed person had resided continuously in the UK for at least the 2 years immediately before their death o the death was the result of an accident at work or an occupational disease
    • where relevant, evidence they have retained the right of residence and have resided in the UK for a continuous period of 5 years

 

 

Documents required for retained rights of residence applications:

Relevant Home Office Guidance Free movement rights: retained rights of residence provides that the documents/evidence that must be provided by family members of European Economic Area (EEA) nationals who are applying for a document for a retained right of residence as per Regulation 10(5) is as follows:

  • of their identity and nationality through a:- valid EEA national ID card or passport issued by an EEA state if they are an EEA national; -valid passport if they are a non-EEA national
  • of the identity and nationality of the EEA national sponsor, which must be a valid EEA national identity card or passport issued by an EEA state
  • the EEA national was exercising free movement rights at the time the relationship was terminated or had permanent residence
  • the marriage or civil partnership lasted for at least 3 years immediately before the start of proceedings for divorce, annulment or dissolution- the types of documents that must be provided can be found here: Free movement rights: direct family members of EEA nationals
  • they resided in the UK for at least one year during the marriage – the types of documents that must be provided can be found here: Free movement rights: direct family members of EEA nationals
  • their relationship with the EEA national has been terminated, such as a: -decree absolute, -decree of annulment,-certificate of dissolution
  • they are a worker, self-employed person or self-sufficient person or the family member of such a person

Documents submitted to prove a retained right of residence must also be originals. Home Office Caseworkers cannot accept photocopies unless there are exceptional circumstances and the applicant gives valid reasons for not being able to provide the original document. In such circumstances, the Caseworker can accept a copy certified by the body or authority which issued the original or by a notary.

All documents not in English must be translated.

 

Retained Rights: documentation and consideration whether to issue a long Certificate of Application(COA):

A “long’ COA confirms a right to take employment while the application is under consideration. If an applicant has not submitted all of the evidence required, the Home Office Caseworker must issue a ‘short’ COA, which does not confirm a right to take employment. Anyone issued with a ‘short’ COA due to their failure to submit the required evidence cannot later be issued with a ‘long’ COA if they submit this evidence.

Guidance Processes and procedures for EEA documentation applications requires that the a Home Office Caseworker issue a ‘long’ COA to anyone who applies for a residence card because they retain a right of residence under regulation 10 provided that they submit the following evidence:

  • a valid passport
  • a valid national ID card or passport for the EEA national
  • evidence of termination of relationship (for example, decree absolute, final order of dissolution of a civil partnership, death certificate) and either: – evidence the EEA national exercised free movement rights in the UK as a jobseeker, worker, self-employed person, self-sufficient person or student at the date of the termination – evidence the EEA national had permanent residence in the UK at the date of the termination

 

Retained rights- refusal decisions and rights of appeal in relation to residence card applications:

Home Office Guidance Free movement rights: retained rights of residence provides that an application must be refused if the applicant:

  • has not provided any valid proof of their own or the EEA national sponsor’s identity
  • provides evidence of their own or the EEA national sponsor’s identity that is either:forged, -counterfeit
  • has not provided any proof that they are related to the EEA national sponsor
  • ceased to be the family member of an EEA national who was exercising free movement rights in the UK
  • does not provide enough evidence to show that they meet the conditions of regulation 10

Regulation 36(4) provides a right of appeal to persons claiming to be a family member who has retained the right of residence provided certain documentation has been produced.

 

Retained rights- refusal decisions and right of appeal in relation to permanent residence card applications:

Regulation 15(1)(f) of the regulations states that a person will have a permanent right of residence in the UK if they:

  • have lived in the UK in line with the 2016 regulations for a continuous period of 5 years
  • have a retained right of residence at the end of the 5 year period

Home Office Caseworkers must make sure that the person:

  • met the conditions of being the family member of an EEA national who is exercising free movement rights in the UK prior to retaining a right of residence
  • met the conditions of regulation 10 at the time of their change in circumstances
  • continued to meet the conditions of regulation 10(6) until the end of the 5 year period of residence

Home Office Guidance Free movement rights: retained rights of residence states that where the applicant has already been issued a document confirming they have a retained right of residence, they would only need to show that they continue to meet the conditions in regulation 10(6). This means showing they are a worker, self employed person or self-sufficient person and that they have resided in the UK for a continuous period of 5 years.

The Guidance states that it is not necessary for the applicant to show that, following divorce, the EEA national has continued to be a qualified person.

If the applicant has provided sufficient evidence, then the Home Office Caseworker must issue either a:

  • document certifying permanent residence to EEA nationals
  • permanent residence card to non-EEA nationals

Home Office caseworkers must refuse the application if the applicant:

  • provides evidence of their own or the EEA national sponsor’s identity that is either:forged or counterfeit
  • has not provided any proof that they are related to the EEA national sponsor
  • does not provide enough evidence to show that they meet the conditions of regulation 15(1)(f)

Regulation 36 provides a right of appeal to persons claiming to be a family member who has retained the right of residence where certain documentary requirements have been met.

 

Revocation of an existing residence card and appeal rights:

A non EEA family member of an EEA national who has previously been issued with a document confirming their right of residence may not retain that right of residence in the UK.

Regulation 24(3) of the 2016 regulations states that a registration certificate or residence card can be revoked if the holder of the certificate or card has ceased to have, or never had, a right to reside under the regulations.

If an applicant is making an application under regulation 10 but they have previously been issued a registration certificate or residence card as the family member of an EEA national exercising free movement rights, Home Office caseworkers must revoke the existing document if they do not satisfy the:

  • conditions of regulation 10
  • the 2016 regulations in any other capacity

Where an applicant who has been issued a residence card because they satisfy the conditions of regulation 10, the Caseworker must revoke the document if they become aware that they have had a change in circumstances which means they no longer meet those conditions.

The Caseworker would revoke the document providing the applicant is not a qualified person in their own right and they do not qualify under any other part of the 2016 regulations. For example, an applicant who was issued a residence card as evidence of a retained right of residence may no longer meet the conditions of regulation 10 because they stop working.

Regulation 36(4) of the regulations provides for a right of appeal against the revocation of a document on the basis of a retained right of residence provided the documentary requirements are met.

 

ADDRESSING THE PROBLEMS: RELYING UPON HOME OFFICE GUIDANCE AND EEA REGULATIONS:

Retained rights and long Certificate of Application- providing a reasonable explanation:

In deciding whether a long Certificate of Application can be issued, Guidance Processes and procedures for EEA documentation applications currently acknowledges at page 30 that in cases of retained rights, there may be some circumstances where the applicant is unable to provide either the EEA national’s identity or evidence they were exercising free movement rights at the date of the termination. If the applicant provides a reasonable explanation for the missing information (for example because the applicant was the victim of domestic violence by the EEA national), then a ‘long’ COA can be issued.

 

Alternative evidence of identity and nationality- exceptional reasons  and circumstances beyond applicant’s control:

To benefit from certain provisions of the 2016 regulations, for example when applying for a document or seeking to appeal a decision, a person must present either a valid:

  • national identity (ID) card issued by an EEA member state
  • passport

Regulation 42 of the EEA Regulations provides:

“Alternative evidence of identity and nationality

This section has no associated Explanatory Memorandum42.—(1) Subject to paragraph (2), where a provision of these Regulations requires a person to hold or produce a valid national identity card issued by an EEA State or a valid passport, the Secretary of State may accept alternative evidence of identity and nationality where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control.

(2) This regulation does not apply to regulation 11”.

Regulation 42 entitles the Secretary of State to accept alternative evidence of identity and nationality where a person is unable to produce the required documents due to circumstances beyond their control. This regulation does not apply to anyone seeking admission to the UK under regulation 11, as this already contains a provision allowing an applicant to establish their right to enter by other means.

The Home Office Guidance on Processes and Procedures acknowledges that there may be exceptional reasons why a person cannot provide such documentation and a Home Office Caseworker can accept alternative evidence of identity and nationality if they cannot produce the required document due to circumstances beyond their control.

This may be, for example, if they have been granted asylum in the UK and there would be a potential risk to the applicant in seeking documentation from the authorities in their home country, or their asylum claim has failed but there is an ongoing appeal against that decision. In such cases, a Home Office issued application registration card (ARC) can be accepted as alternative evidence of identity and nationality. Where such alternative documentation is accepted, this can also be considered acceptable for the purposes of an applicant’s appeal rights.

There may also be other reasons why a person cannot produce a passport or ID card. Each case must be considered on its individual merits.

There are circumstances where alternative ID must not be accepted by Home Office Caseworkers. The following are not sufficient reasons for accepting alternative ID:

  • where the applicant claims cost or inconvenience as a reason for not supplying valid ID
  • if an ARC card is submitted but the asylum claim was refused and the applicant’s appeal rights are exhausted

Passports and identity documents must be originals. Policy Guidance states that copies of these documents should not be accepted, except, in the case of passports only, where they have been verified, copied and submitted to the Home Office by a local authority participating in the European Passport Return Service.

 

Difficult circumstances and further enquiries about EEA national’s status- Applicants who are unable to provide all the evidence of their EEA sponsor:

Home Office Guidance Free movement rights: retained rights of residence also acknowledges that an applicant may be unable to provide evidence of the EEA national sponsor to support their application for a document confirming they retain the right of residence in the UK due to difficult circumstances.

Where a relationship has broken down due to domestic violence or other difficult circumstances it may not always be possible for the applicant to provide all of the necessary documents about the EEA national sponsor. In such circumstances, Home Office Caseworkers can make further enquiries about the EEA national sponsor’s status but only where the applicant has shown they have made every effort to provide the necessary evidence.

Regulations 17,18 and 19 of the 2016 regulations put the responsibility on the applicant to provide the necessary proof that they are eligible for a document to confirm their right of residence in the UK.

Once again the Policy Guidance states, that cases where an applicant has previously been issued a document this only demonstrates that they had a right to reside under the regulations on the date it was issued. If they apply for a retained right of residence, the case worker must be satisfied that the applicant meets the relevant requirements relating to retained rights and request evidence where necessary,

The Guidance also states that cases where there has been a breakdown in the relationship between the applicant and their EEA national sponsor it may not always be possible for them to get the documents that are needed to support their application. An example of this could be where the applicant was the victim of domestic violence and cannot provide evidence relating to their EEA national sponsor’s nationality or free movement rights (to ask them to do so could put them at risk).

Another example would be where the applicant’s relationship has ended under difficult circumstances but they have provided evidence to show that they have made every effort to provide the required documents. Such as, attempting to make contact with the EEA national sponsor during divorce proceedings.

When dealing with these cases, Home Office caseworkers must take a pragmatic approach and:

  • consider each case on its merits
  • if they are satisfied the applicant cannot get the evidence themselves, make enquiries on their behalf where possible, getting agreement from their senior caseworker before doing so.

Where it is agreed that that the Home Office caseworker can make additional enquiries the applicant must give the caseworker as much detail as they can about the EEA national sponsor. If they cannot provide proof of the EEA national sponsor’s identity, nationality or proof of relationship, then the caseworker must check existing records to see if their identity has been established in any previous applications.   If they can give the name of the EEA national sponsor’s employer or place of study or existing records hold such details, the caseworker may contact the employer or educational establishment to enquire if the EEA national sponsor is working or studying there. The caseworker must decide whether to do so according to the facts of the individual case and with the agreement of their senior caseworker. The caseworker must not make reference to domestic violence to the employer or educational establishment where this is the reason for the enquiry.

If the caseworker decides not to get information directly from the EEA national’s employer or educational establishment, for example because of the exceptional circumstances of the case or because the EEA national is self-employed, then the caseworker must make enquiries with Her Majesty’s Revenue & Customs (HMRC) to try to gather the necessary information.

Applicants may also have difficulty providing evidence to cover a continuous 5 year period when they are applying for a document confirming a permanent right of residence. If there are periods of time that the applicant cannot provide documents for or where checks with HMRC do not cover the full 5 year period, the caseworker must discuss the case with their senior caseworker. They will decide whether discretion should be applied based on the circumstances of the case. The senior caseworker must look at the amount of information provided by the applicant along with the level of evidence that has been gathered.

 

Reconsiderations:

Where residence documentation has been refused, an applicant can request a reconsideration of their application.

Reconsideration would be appropriate when:

  • the applicant or representative raises a point of law – this could include accusations that the wrong regulation has been applied to the refusal
  • the applicant or representative raises a challenge to Home Office policy – this could include where the wrong policy has been applied or the policy itself is alleged to be unlawful
  • the applicant or representative has rightly drawn attention to the fact that evidence alleged not to have been provided in support of the application was actually with the Home Office at the relevant time
  • new and compelling evidence was submitted before the refusal decision was dispatched that would, if it had been considered at the time, have led to documentation being issued If, after reconsideration, it is decided to maintain the refusal the relevant Home Office Caseworker must write to the applicant or representative explaining why this is justified and their options for challenging the decision.

Cases where reconsideration would not be appropriate Reconsideration would not be appropriate when:

  • the applicant or representative requests a reconsideration without putting forward any substantive arguments
  • the applicant or representative submits documentary evidence after the refusal decision has been issued
  • the applicant or representative asks for reconsideration on a different basis than the original application (for example under Article 8 of the European Convention on Human Rights)

Generally, where the applicant has already lodged an appeal but they have asked for the decision to be reconsidered, this must be refused and the applicant advised to pursue their appeal through the proper channels. 

 

CONCLUSION

The 2016 EEA Regulations were brought into effect in February 2017 for a reason: to erode residence rights for EEA nationals and their non EEA family members as well as to plug any perceived gaps through which it was thought applications which should fail were “sailing” through successfully. In as much as there are some hindrances in the way of success of residence document applications, it is important to remember that there will always be legitimate ways, such as relying upon the Secretary of State’s own Home Office Guidance to push an application through to success.

 

A very modest extension of the protection under Article 3 in medical cases: Court of Appeal rules upon meaning and effect of the guidance in Paposhvili

Despite  the Court of Appeal’s guidance in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64   as regards the test in paragraph 183 of Paposhvili,  it is obvious that  there is still some unfinished judicial business yet to be resolved.  This is evident as  the  Court in AM  was ultimately at pains to stress that it was, “  highly desirable that the Supreme Court should consider the impact of Paposhvili for the purposes of domestic law at an early stage”.  The Court had been urged by the  appellants  not express any view about the true meaning and effect of the guidance in Paposhvili, and in particular regarding the test in paragraph 183 of the judgment in that case: the contention was that the Court  should not venture to do this, but should simply apply the law as laid down domestically by the House of Lords in N v Secretary of State for the Home Department and dismiss the appeals, with a view to granting permission to apply to the Supreme Court. It was argued that  since  the Court of Appeal was bound to dismiss the appeals, anything  that Court  said about the new test in Paposhvili would  be obiter and would not provide assistance for other courts or tribunals.  The  Court of Appeal ploughed  ahead nonetheless  and made it clear that, “We are providing authoritative guidance on the true interpretation of a legal criterion governing how courts and tribunals in the domestic legal system should make judgments regarding the exercise of their powers to grant stays of removal. That guidance will be formally binding upon courts and tribunals below the level of the Supreme Court, in the usual way”.

A question therefore arose in AM as detailed below  as regards the operation of Article 3 of the ECHR  in relation to removal of foreign nationals from the UK where they are suffering from serious illnesses. The issue was whether the test for application of Article 3 in this context should now be adjusted in light of the Grand Chamber judgment in Paposhvili v Belgium.

 

Summary Background:

The appeal concerned two Appellants, AM and Mr Nowar :

  • The appellant, AM was a national of Zimbabwe, born in 1987 who became subject to deportation proceedings following  several  convictions.  AM is HIV positive. The issue which arose was whether to return AM to Zimbabwe would violate his right under Article 3 not to be subjected to inhuman treatment, by reason of his medical condition. In an appeal, the First Tier Tribunal  held  that Article 3 did not prevent the deportation of AM; it was not satisfied that AM was at a critical stage of his illness nor that treatment for his condition would not be available for him in Zimbabwe if he were returned there, even though the specific ARV drug he was then taking (Eviplera) would not be available. The Upper Tribunal dismissed AM’s appeal, holding that the FTT had properly considered the medical evidence and that there was nothing in it to indicate that Eviplera was the only possible ARV drug which AM could take. The Upper Tribunal observed that the burden of proof was on the appellant and that it had been incumbent on him to show that he would be at risk of a significant deterioration in his health and possible death in Zimbabwe if he could not take Eviplera but could only take the other ARV treatments which were available in Zimbabwe. It was also considered that the FTT had not engaged in improper speculation, but in light of the burden of proof and the evidence before it had come to a conclusion which was properly open to it.
  • Mr Nowar was a national of Jordan, born in 1986. Mr Nowar was  diagnosed with cancer. In an appeal, the First Trier Tribunal  found  that Article 3 did  not impose an obligation on an expelling state to provide individuals with a particular standard of health care. It was  undeniable in this case that the appellant did receive sufficient health care in Jordan sufficient to put him into remission. The Judge could not construe any of the UK medical evidence before him to found the basis for a contention that either the Jordan treatment fell so below international standards that it could be said to have done him harm, or that he has shown that he would be denied treatment on return. The Judge was satisfied on the evidence before him  that he would be able to avail himself of further treatment in Jordan and, equally importantly, that he would have the considerable support of his family and friends in doing so.

 

What is the domestic position in medical condition cases?

The position in domestic law was authoritatively settled in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296. The approach laid down by the House of Lords in that case was endorsed by the Grand Chamber of the European Court of Human Rights (“ECtHR”) in N v United Kingdom (2008) 47 EHRR 39.

The test to determine when Article 3 may prevent removal of a foreign national from the UK, where he is suffering from a medical condition which may get worse if he is removed, was authoritatively laid down in domestic law by the House of Lords in N v Secretary of State for the Home Department. That case concerned a Ugandan woman suffering from advanced HIV, or full-blown AIDS, who was receiving effective treatment in the UK which would not be available to her if she was returned to Uganda. If returned to Uganda, the claimant would die within a matter of months, whereas if she stayed in the UK she could live for decades. Despite this, her claim under Article 3 failed. Lord Hope of Craighead gave the principal speech. He referred to what was then the leading judgment of the ECtHR, in D v United Kingdom (1997) 24 EHRR 423, which also concerned expulsion of a foreign national suffering from AIDS, and a range of other authorities.

The claimant in D v United Kingdom was in an advanced stage of AIDS and close to death; he would receive no comfort or moral support while dying if returned to his country of origin. The case was treated as an exceptional one, in which the ECtHR held that Article 3 would prevent removal. In Amegnigan v The Netherlands, [2004] ECHR 741, judgment of 25 November 2004, the ECtHR characterised the circumstances in D v United Kingdom as “very exceptional”. Lord Hope set out the test to be derived from the Strasbourg authorities in [50], as follows:

“…. For the circumstances to be … ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. …”

As Laws LJ summarised the effect of these opinions in at [66] in  GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40; [2015] 1 WLR 3312, according to the House of Lords the D v United Kingdom exceptional situation in which Article 3 will prevent removal to another country with lesser standards of care “is confined to deathbed cases.”

The claimant in N v Secretary of State for the Home Department applied to the ECtHR, relying on Article 3. In its judgment in N v United Kingdom, the Grand Chamber dismissed her application, holding that her case “does not disclose very exceptional circumstances, such as in D v United Kingdom” and that her removal to Uganda would not give rise to a violation of Article 3. The ECtHR referred to the speeches in the House of Lords without adverse comment. Its summary of the principles to be drawn from its own case law included this:

“42. In summary, the Court observes that since D v United Kingdom it has consistently applied the following principles.

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling state. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the contracting state is not sufficient in itself to give rise to breach of Art.3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the contracting state may raise an issue under Art.3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

43.The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v United Kingdom and applied in its subsequent case law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

 

What is the Paposhvili Test?

The “Paposhvili test” is set out in paragraph 183 of the judgement:

The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness”.

Where a foreign national seeks to rely upon Article 3 as an answer to an attempt by a state to remove him to another country, the overall legal burden is on him to show that Article 3 would be infringed in his case by showing that that there are substantial grounds for believing that he would face a real risk of being subject to torture or to inhuman or degrading treatment in that other country, which is reflected in the formulations in Paposhvili, paragraphs 173 and  183. In Paposhvili, at paragraphs  186 to 187, the Grand Chamber of the ECtHR gave  guidance how he may achieve that, by raising a prima facie case of infringement of Article 3 which then casts an evidential burden onto the defending state which is seeking to expel him.

 

Court of Appeal’s considerations and conclusions:

The Court’s considerations and conclusions were as follows:

    • The Court of Appeal observed that it was  common ground that neither AM nor Mr Nowar could bring himself within the test for application of Article 3 laid down in N v Secretary of State for the Home Department  and N v United Kingdom –  both of them were  very far from being able to do so.
    • The Court of Appeal further observed that  the  parties were  also in agreement that the decision of the House of Lords in N v Secretary of State for the Home Department  was  binding authority so far as the Court of Appeal was concerned regarding the test to be applied in domestic law in this type of case, with the consequence that both appeals to the court had to be dismissed. It was common ground that this was so even though it appeared  that the ECtHR had more recently, in Paposhvili, decided to clarify or qualify to some degree the test previously laid down in N v United Kingdom, which corresponds with that set out by the House of Lords in N v Secretary of State for the Home Department. This was  a result of application of the usual rules of precedent in this jurisdiction.
    • It was considered that the  context of the case in Paposhvilli  and what exactly was decided in it are of significance for interpreting the guidance given at paragraph  183. The Grand Chamber did not itself rule that on the medical evidence adduced by the applicant and his contentions about the state and availability of medical assistance in Georgia, had those been properly examined by the Belgian authorities, it would in fact have been a violation of Article 3 to remove him to Georgia. Its ruling was to the effect that Belgium would have violated a procedural aspect of Article 3 if it had removed him without examination of the issue which the applicant had raised relying on Article 3 and his medical condition.
    • It was noted  by the Court that there were a significant number of other cases involving claims by foreign nationals seeking to resist removal from the UK by invoking Article 3 on medical grounds which were  already in the system, in which  reliance was sought to be placed on Paposhvili even though the claims had been dismissed by application of N v Secretary of State for the Home Department and N v United Kingdom. In those cases, orders have been made in a similar way to prevent the removal of the appellants from the UK until final determination of their cases, which were on hold until the position in relation to the adoption of the guidance in Paposhvili into domestic law had been clarified. In addition, it was noted that  similar new claims based on application of Article 3 on medical grounds may be brought forward at any time. In relation to those claims, all courts below the Supreme Court would be bound by the decision in N v Secretary of State for the Home Department, but claimants may contend that they have grounds for saying that their cases are covered by the new guidance in Paposhvili (in particular at paragraph 183 and that any question of their removal from the UK should be stayed until the Supreme Court had decided to modify domestic law (potentially decisively in their favour) by reference to that guidance.
    • The Court  of Appeal stated in all of these situations, where an appellant or other claimant has no good claim to resist removal from the UK other than on the footing that the Supreme Court might adopt the guidance in Paposhvili, a stay of removal would usually only be justified pending a new decision by the Supreme Court if their case would satisfy the test set out in Paposhvili at paragraph  183. If a court or tribunal at a full hearing can determine that it does, a stay is likely to be justified; and if not, not. If a court or tribunal is for some reason having to make a decision regarding a stay without a full examination of the Article 3 case with reference to the test in Paposhvili, then it might be sufficient if the claimant has a good arguable case that his claim would satisfy that test.
    • It was considered  relevant and appropriate for the Court of Appeal  to rule upon the meaning and effect of the guidance in Paposhvili, in particular as regards the test in paragraph 183. In doing so, the Court would  provide guidance to other courts and tribunals which are faced with arguments based on the test in Paposhvili to ensure that they adopt a uniform and consistent approach to such arguments. The Court noted that at  the very least, what they  say would  be persuasive authority. The Court however stated that it went further than this as the Court was  providing authoritative guidance on the true interpretation of a legal criterion governing how courts and tribunals in the domestic legal system should make judgments regarding the exercise of their powers to grant stays of removal. That guidance would  be formally binding upon courts and tribunals below the level of the Supreme Court, in the usual way.
    • In considering the extent of the change in the law applicable under the Convention which is produced by the judgment in Paposhvili, as compared with the judgments in D v United Kingdom and N v United Kingdom, it was  clear  to the Court of Appeal that both that paragraph  183 of Paposhvili, relaxes the test for violation of Article 3 in the case of removal of a foreign national with a medical condition and also that it does so only to a very modest extent.
    • So far as the ECtHR and the Convention are concerned, the protection of Article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where “substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy” (para. [183]). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the Article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of Article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely “rapid” experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.
    • It was considered that there are a number of powerful indicators, including in the Grand Chamber’s judgment itself, which support this interpretation of paragraph 183  and the inference that the Grand Chamber only intended to make a very modest extension of the protection under Article 3 in medical cases
    • Article 3 is an unqualified right with a high threshold for its application (see N v United Kingdom, para. [43], and also Paposhvili, para. [174].
    • The Grand Chamber in Paposhvili sought  only to “clarify” the approach set out in N v United Kingdom not to effect any major change to what had been authoritatively laid down in that case.
    • The Grand Chamber at paragraph 183 in Paposhvili, as well as using the rubric “other very exceptional cases”, which itself indicates how rarely the test in Article 3 will be found to be satisfied in medical cases, emphasised in the final sentence that it was still intending to indicate that there was “a high threshold for the application of Article 3” in medical cases. This echoed the point made by the Grand Chamber in paragraph  43 of N v United Kingdom, about the high threshold for application of Article 3.
    • It was  true that if one read the phrase “would face a real risk … of being exposed … to a significant reduction in life expectancy” in paragraph 183 out of context, it might be taken to indicate a very wide extension of the protection of Article 3 in medical cases, since in very many such cases where a foreign national is receiving treatment at a higher level of effectiveness in the removing state than would be available in the receiving state (e.g. in the case of those suffering from AIDS) they would be able to say they would face a real risk of a significant reduction of life expectancy if they were removed. But this was not a tenable interpretation of paragraph  of Paposhvili, read in its proper context. N v United Kingdom was itself a case where removal resulted in a very significant reduction in life expectancy (as was also noted in Paposhvili at paragraph 178 , in which no violation of Article 3 was found, and the Grand Chamber in Paposhvili plainly regarded that case as rightly decided. N v United Kingdom was itself a Grand Chamber judgment, decided by 14 votes to 3. It was impossible to infer that by the formula used in paragraph  178  of Paposhvili the ECtHR intended to reverse the effect of N v United Kingdom. Moreover, the Grand Chamber’s formulation in paragraph 183  requires there to be a “serious” and “rapid” decline in health resulting in intense suffering to the Article 3 standard where death is not expected, and it makes no sense to say in the context of analysis under Article 3 that a serious and rapid decline in health is not a requirement where death rather than intense suffering is the harm expected. In  the Court’s  view, the only tenable interpretation of paragraph  read in context, was  the one given above.
    • The Court also considered in that regard, it was  also significant that even on the extreme and exceptional facts of the Paposhvili case, where the applicant faced a likelihood of death within 6 months if removed to Georgia, the Grand Chamber did not feel able to say that it was clear that a violation of Article 3 would have occurred for that reason had he been removed. Instead, all that the Grand Chamber held was that the applicant had raised a sufficiently credible Article 3 case that it gave rise to a procedural obligation for the relevant Belgian authorities to examine that case with care and with reference to all the available evidence. The violation of Article 3 which the Grand Chamber held would have occurred if the applicant had been removed to Georgia was a violation of that procedural obligation.
    • In the Court’s  judgment, neither AM’s nor Mr Nowar’s claim satisfied the test in paragraph 183  of Paposhvili.
    • AM’s claim failed to satisfy the test in paragraph 183  of Paposhvili because he had failed to show that there are substantial grounds to believe he faces a real risk of a serious and rapid decline in his health resulting either in intense suffering (to the Article 3 standard) or death in the near future if he was  removed to Zimbabwe. He was HIV positive, but did not yet have AIDS. He had adduced no medical report which said that he was likely to die soon if removed to Zimbabwe, even if he received no treatment at all; or that he could not tolerate, without side-effects, any of the range of ARV treatments available in Zimbabwe; or that, if the only ARV treatments available to him in Zimbabwe are ones which would produce side-effects, those side-effects would be so severe as the cost of keeping him alive that they would constitute suffering at an intensity to bring his case within Article 3 according to the high threshold which applies in that regard. AM’s case was not even as strong as that of the applicant with AIDS in N v United Kingdom, which the Grand Chamber in Paposhvili had affirmed was correctly decided.
    • Mr Nowar’s claim failed to satisfy the test in paragraph  of Paposhvili because he too had failed to show that there are substantial grounds to believe he faced a real risk of a serious and rapid decline in his health likely to result in his death in the near future if he was  removed to Jordan. The evidence was  that his cancer was in full remission at the moment. It was  speculative whether and when it might recur and, if it did, what Mr Nowar’s life expectancy would be. Also, he was successfully treated for his cancer previously in Jordan and there was no good reason to think the same effective treatment would not be available to him in Jordan if his cancer did recur. The Grand Chamber had affirmed in Paposhvili, and indeed had emphasised in its judgment, that a violation of Article 3 did not occur just because the care in the receiving state did not meet the same high standards as the care in the removing state. Article 3 does not impose an obligation on a removing state ensure an absence of disparities between the health service provision which it is able to provide and that available in the receiving state.
    • The effect of this analysis for each appellant was  that his appeal to the Court of Appeal  should be dismissed and any application for an extension of the stay of his removal from the UK was likely to be dismissed as well, subject to what might happen in relation to any grant of permission to appeal to the Supreme Court in the cases.
    • The Court  further  made it clear that it seemed  to be highly desirable that the Supreme Court should consider the impact of Paposhvili for the purposes of domestic law at an early stage; it was however considered that  these cases fell  a long way short of satisfying the test in paragraph  of Paposhvili and consequently  the Court had  some doubt whether they were  ideal as vehicles for that exercise. It was also stated that where the Court of Appeal were to refuse permission to appeal, the appellants could ask the Supreme Court for permission to appeal and it might be appropriate to extend the stay of removal in their cases while that procedure was implemented.

 

Conclusion:

The Court of Appeal acknowledges that Paposhvili has some significance but not much- the position currently  in effect remains largely the same as per established caselaw, ie there is still “a high threshold for the application of Article 3” in medical cases.

For claimants seeking stays on removal pending a decision in the Supreme Court, it is clear that considerations on grant of such stays by the Tribunal or other Court would usually only be justified if their case would satisfy the test set out in Paposhvili at paragraph  183.

The Appellants in AM were clear that they were headed for the Supreme Court, however whilst their cases are pending to be heard, could it be that in the meantime, the Home Office will  formulate and publish guidance which acknowledges the existence of Paposhvili so as to also set out issues of considerations on grant of stays?

 

When a deportee makes a fresh claim on family life grounds: Best interest of a British child, the evidence and Paragraph 353 examined by the Admin Court

In an unusual case, concerning a  foreign national criminal, where the effect of deportation was intended  to separate  mother from  British child, in MG, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWHC 31 (Admin) ,   the Administrative Court  concluded that the Secretary of State’s  refusal to treat the Claimant’s submissions in relation to her relationship with her daughter as a fresh claim in light of the evidence submitted was irrational and should be quashed and re-taken.

The Claimant, MG,  sought to reply  upon Paragraph 353 of the  Immigration Rules  in raising  representations  as regards her family life with her  British minor  daughter, who was living with her father.  MG also sought to resurrect a  trafficking claim   that had previously been considered. A claim for unlawful detention also  formed part  of the judicial review proceedings. Only the Article 8  challenge under Paragraph 353 succeeded, with  the Court finding that the Secretary of State’s refusal to treat the Claimant’s various sets of further submissions as fresh claims was unlawful.

 

Background in Summary:

The Claimant, a Namibian national,  entered the UK in 2006, overstayed her leave, thereafter committed several criminal offences and became  subject to deportation. Although MG’s appeal against deportation succeeded  with the result that a  deportation order of 2012  was revoked, MG subsequently  overstayed  the leave that was   granted  following the successful appeal.

In 2014, the Claimant was arrested for breach of the peace whilst under the influence of alcohol. She  was served with a further deportation letter with an out of country right of appeal. MG appealed against the deportation decision and made an asylum claim. On 13 October 2014, the Secretary of State sent a supplementary decision letter dismissing the asylum and human rights claims. On 12 February 2015, the Claimant’s appeal was dismissed by the First-tier Tribunal.

After MG became appeal rights exhausted, she submitted several sets of representations which were considered and  refused,  however the most relevant for current purposes were those submitted on 24 March 2016 and 29 March 2016, relying upon  paragraph 353. The representations  claimed that MG  had an ongoing and subsisting relationship with her daughter and that removing her to Namibia would breach her rights under Article 8 European Convention on Human Rights  and contended that consideration be given to that relationship under section 55 of the Border, Citizenship and Immigration Act 2009. The representations were refused by decision of  6 April 2016  without a right of appeal.

MG sent a Pre-Action Protocol letter of claim. On 18 April 2016, the Secretary of State  rejected the further submissions dated 4 and 6 April 2016 and responded to the Pre-Action Protocol letter  and maintained a decision to refuse. On 20 April 2016, the Claimant issued judicial review proceedings.

 

The relevant law – Paragraph 353 of the Immigration Rules:

Paragraph  353 of the Rules  provides as follows:

“Fresh Claims

When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

 

Some relevant caselaw considered  in MG in relation to fresh claims:

The Court in MG summarised  the  relevant principles  arising as follows :

Whether further submissions constitute a fresh claim on asylum or human rights grounds is a matter for the Secretary of State.  A decision as to whether a fresh claim arises can only be reviewed on Wednesbury unreasonableness grounds.

As  regards the task of the Secretary of State when considering further submissions, the question for the Secretary of State  is whether there is a realistic prospect of success in an application before an Immigration Judge.

The question which the Secretary of State must ask herself is “whether an independent tribunal might realistically come down in favour of the applicant’s asylum or human rights claim, on considering the new material together with the material previously considered” .  In answering that question she  must be informed by anxious scrutiny of the material.

In relation to the task of the Court, it should be noted that the  decision remains that of the Secretary of State and her determination is only capable of being impugned on Wednesbury grounds (irrationality). When reviewing a decision by the  Secretary of State, the Court will ask two questions:

  • First, has the Secretary of State asked herself the correct question? In the context of a human rights case, the correct question is whether there is a realistic prospect of an Immigration Judge, applying anxious scrutiny, concluding that there will be a breach of a Claimant’s human rights on his or her return home.
  • Second, in addressing that question, has the Secretary of State satisfied the requirement of anxious scrutiny?

 

Relevant Immigration Rules  considered- Article 8 and the public interest in the deportation of foreign criminals

As provided in the Immigration Rules:

“A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.

A398. These rules apply where:

(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;

(b) a foreign criminal applies for a deportation order made against him to be revoked.

  1. Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, and:

(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months;

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

  1. This paragraph applies where paragraph 398 (b) or (c) applies if –

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;

and in either case

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported;

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has been lawfully resident in the UK for most of his life; and

(b) he is socially and culturally integrated in the UK; and

(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.”

 

Relevant  statutory considerations – Article 8 and the public interest in the deportation of foreign criminals

Sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002, entitled “Article 8 of the ECHR: Public Interest Considerations” gives statutory expression to the above provisions.

As set out at section 117C (Article 8: additional considerations in cases involving foreign criminals):

“(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C’s life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”

 

Caselaw on deportation  considered:

 

Caselaw on Article 8 considered on children’s best interests:

The Court summarised the relevant  principles arising from the above caselaw as follows:

The assessment of the child’s best interest must focus on the child, while simultaneously evaluating the reality of the child’s life situation and circumstances. The child’s best interests have a freestanding character.

Article 24 of the EU Charter of Fundamental Rights creates a free standing right. Article 24(3) mandates that every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both her parents, unless that is contrary to his or her interests.

Section 55 of the Borders Citizenship and Immigration Act 2009 obliges the Secretary of State to devise systems and structures for the purpose of safeguarding and promoting the welfare of children who are in the UK.  In  relation to  section 55 of the 2009 Act, the  substance of the primary duty must be properly acknowledged, the relevant children must be identified and their best interests must then be considered, to be followed by a considered balancing exercise. In assessing the best interests of the affected child, the decision maker must be properly informed. Furthermore, it must be apparent from the terms of the decision that the best interests of the child, as assessed, are ranked as a primary consideration and accorded a primacy of importance. The second duty imposed by section 55 is to have regard to the statutory guidance promulgated by the Defendant: Every Child Matters – change for children, November 2009.

Children must be recognised as rights holders and not just as adjuncts to other people’s rights.

 

The basis  upon which the Tribunal dismissed the Article  8 claim in 2015:

The Tribunal dismissed the Appellants appeal on the following basis:

“37. The Appellant’s daughter in the UK is in the custody of her father. Her daughter is a British citizen and I have noted the details of the Contact Order. The Appellant showed me a few cards and photos and messages that she has sent her daughter in the UK. However, it is that difficult to see how much contact they have had since she was born in 2009 (sic). The relationship was turbulent with her daughter’s father and the Appellant left permanently in 2010 when she was drinking heavily. I have not been given any further details of her relationship with her daughter.

38.In the circumstances I cannot be persuaded that the Appellant has a genuine and subsisting relationship with her daughter it is in the child’s interest to remain with her father (sic). The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits. Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.

39.She has one daughter in Namibia with whom she could be reunited. Therefore I cannot find that there would be breaches of Article 8 were she to be removed.”

 

The basis upon which the Article 8 representations was  refused by the Home Office in 2016:

The  Secretary of state refused MG’s  representations on the  following  grounds:

  • MG was noted to have submitted a plethora of documents as evidence of  her relationship with her daughter, including evidence that she had  received visits from her daughter whilst in detention, and cards and letters, to and from MG  and her  daughter and her former partner.
  • Whilst it was accepted that the evidence provided did indicate that MG  had  some form of relationship with her daughter; she had been absent for almost all of her daughter’s life and as such, any relationship they did  have would  be extremely limited in nature.
  • It was noted  that the Immigration Judge  found  in MG’s appeal against deportation: “Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh”.
  • The best interests of the child were served by her remaining in the United Kingdom with her father, who had cared for her since her birth. It was also observed that in MG’s appeal against deportation, the Immigration Judge found: “…it is in the child’s interests to remain with her father. The Appellant can have contact with her daughter and this could be maintained from Namibia by modern technology and visits.”
  • There was no evidence  to conclude that MG’s  presence  was  needed to prevent the  daughter from being ill treated, her health or development being impaired, or her care being other than safe and effective.
  • There was no suggestion that the daughter relied on MG  either emotionally, or financially. There was  no evidence which would indicate that MG had  provided financially towards the care of her  daughter, either currently, or in the past.
  • It was acknowledged that MG’s absence would likely result in some negative emotional impact on her  daughter, but she would continue to live with her father, who would  support her as she adapted to life without face-to-face contact with her mother. She would continue to attend school where she would have the stability and support which was necessary to complete her education.
  • The Immigration Judge at appeal found that there was no evidence that MG’s deportation would result in her  losing all contact with her daughter. MG’s  eldest daughter remained in Namibia, in the care of her maternal Great Grandmother, and MG had  maintained contact with her  elder daughter, since her arrival in the United Kingdom.
  • It was acknowledged that indirect contact was not the same as remaining in the family home, or even living separately, but in the same country, however, it was considered that MG could maintain contact with her daughter, if she wished. Further to this, there was no evidence that the daughter  would be unable to visit MG in Namibia. Consequently, it was not accepted that there were  factors in MG’s case that would be considered very compelling if  her daughter remained in the United Kingdom without her.
  • It was not considered that there were insurmountable obstacles to family life with them being able to continue outside of the United Kingdom, nor had MG provided any evidence which would demonstrate that there were compelling circumstances which would effect  her daughter  if she remained in the United Kingdom. She  was a British citizen and could continue to enjoy all the benefits afforded to her as such, upon  MG’s return to Namibia.
  • MG and her former partner were required to make a decision as to whether he and their daughter should accompany MG  to Namibia, or remain in the United Kingdom.
  • It was noted that  the Witness Statement of the Claimant’s former partner, dated 11 April 2016,  stated: “I have now visited M with [the Claimant’s daughter] at Yarlswood IRC between 4 – 5 times. The most recent visit was on 5 April 2016. We spend 3 hours at Yarlswood IRC, between 2 pm and 5 pm and [the Claimant’s daughter] is very happy playing with her mother and they complete homework together and enjoy a good family life”.
  • It is was however noted by the Secretary of State  that as MG  had  been detained since 11 May 2014, a period of almost two years, it would appear that direct contact with her daughter was extremely sporadic. As such, any relationship MG had with her daughter  was  assumed to have been maintained via in-direct methods of communications. This was  at odds with MG’s claim that  she would be unable to maintain contact with her daughter, using these same methods of contact, upon her return to Namibia.
  • Note was also taken of the letter written by the Claimant’s daughter, in which she expressed that she missed her mother, and her wished for her mother to be released from Yarl’s Wood Immigration Removal Centre. Whilst it was accepted that MG’s deportation would have a negative emotional effect on her daughter, any impact was a direct result of MG’s actions.
  • It was noted that  the MG had  provided evidence of her  contact with her daughter during her detention; however, this evidence did not suggest that the nature of her relationship with her daughter, had strengthened, or differed significantly from that which was considered by the Tribunal, which found that claims to family life with a child did not outweigh the public interest in securing MG’s deportation.
  • MG had not lived as part of family unit with her daughter] since November 2010, and since this date, she had spent 3 years and 3 months, either serving her custodial sentence, or detained. It was accepted that prior to her imprisonment, and between periods of detention, MG utilised her visitation rights, as directed by the Court Order; however, bythe Claimant’s former partner’s own admission, MG had only seen her daughter four or five times in the past two years.
  • There was no evidence which would suggest that her daughter relied on MG to meet her day to day care, particularly given MG’s absence in her life, due to imprisonment and subsequent detention. There was no evidence which would suggest that MG  provided any unique or essential care for her daughter that she would not be able to receive from an alternative source.
  • It was noted that MG claimed that the Secretary of State’s decision to deport  failed to take into account the Claimant’s daughter’s rights under Article 24 of the EU Charter of Fundamental Rights. It was stated  that the best interests of  MG’s daughter  had  been fully considered, and it had been concluded that her best interests were served by remaining in the United Kingdom with her father.
  • It was noted that the Tribunal had  found: “Even if she does have a genuine relationship with her daughter it is not of the depth to outweigh the public interest in deportation and would not be unduly harsh.
  • It was considered that MG’s deportation, in accordance with primary legislation, remained in the public interest and no information had been provided which would suggest that the Secretary of State should depart from the Tribunal’s settled findings.
  • Whilst it was accepted that  MG had  provided a number of document’s  which had not previously been submitted, it was not accepted that this evidence significantly differed from that previously considered by the Secretary of State and the Tribunal; as such there were  no reasons apparent which would suggest that the Secretary of State  should depart from her, or the Tribunal’s findings, in respect  of MG’s claims to family life in the United Kingdom.
  • MG had been convicted of a very serious offence, one which fully engaged the public interest in securing her removal, and none of the claims made constituted very compelling circumstances sufficient to outweigh that interest.
  • It was concluded that MG’s submissions did not meet the requirements of paragraph 353 of the Immigration Rules and did not amount to a fresh claim. This was because the submissions were not significantly different from the evidence that had previously been considered.

 

The Court’s reasoning and conclusion:

The Court noted that it had to consider whether the Secretary of State’s view that the further submissions, taken together with the previously considered material, did not create a realistic prospect of the Claimant succeeding before an Immigration Judge was irrational/Wednesbury unreasonable, bearing in mind the need for anxious scrutiny (i.e. the need to give proper weight to the issues and to consider the evidence in the round).

It was also noted that in  order for Article 8 to overcome the public interest in the Claimant’s deportation, it would have to be shown firstly, that she had a genuine and subsisting parental relationship with her daughter (paragraph 399(a) and s.117C(5)), and secondly, that her deportation to Namibia would be “unduly harsh” upon her daughter (paragraph 399(b) and s.117C(5)).  It was also observed that these  propositions were not accepted by the First-tier Tribunal in its decision of 12 February 2015.

It was noted that the Secretary of State had  concluded that the Claimant had provided no evidence to suggest that the nature of her relationship with her daughter “differs significantly from that considered by the Tribunal.”  It was also equally taken into account that the Claimant’s further representations enclosed a witness statement from the Claimant’s former partner who was the father of her daughter and documents emanating from the Claimant’s daughter written to or about the Claimant. The Claimant’s former partner had also  clarified that it was no longer his intention to move permanently to Ireland with his daughter, as had been the case when he sought and was granted a court order in October 2014. In April 2016, he and his daughter were settled and living in London and he was expressly encouraging the relationship between his daughter and the Claimant. The representations also enclosed evidence from the daughter expressing her wish for her mother not to be deported.

The Court stated that it was said on  the Appellant’s behalf  that the evidence was relevant to two issues: (a) whether the Claimant had a genuine and subsisting relationship with her daughter and (b) whether it would be unduly harsh for the daughter to remain in the UK without her mother. The Claimant contended that it could  not  be said that the evidence was incapable of leading to a positive conclusion before a putative immigration judge, bearing in mind that the judge would be likely to hear live evidence from the entire family. The fresh claim introduced the Claimant’s daughter’s voice into the fresh claim, thus she was entitled to consideration as a child rights holder, and not just a conduit of rights of her mother. She and her father provided evidence of why it would be in her best interests for her mother to remain in the UK – so that she can foster and develop a direct and meaningful relationship with the Claimant. It was submitted  that it is not in dispute that the Claimant’s daughter’s best interests were to  remain with her father (as was the case at the time of FTT decision in February 2015). However, the evidence presented in the new claim demanded a further and fuller consideration of whether it was in the Claimant’s daughter’s best interests for her mother to remain in the UK and the effect on her if her mother was permanently excluded from the UK, bearing in mind that in the absence of exceptional circumstances the Home Secretary would not even consider whether to re-admit the Claimant to the UK within 10 years of the date of deportation (paragraph 391(1) of the Statement of Changes in Immigration Rules (1994) HC 395, as amended). The need for a careful and balanced assessment on these points was said to be heightened in light of the Secretary of State’s duty under section 55 and Article 24 of the EU Charter of Fundamental Rights.

Having considered the material relied upon and the submissions made by both sides, the Court came  to the conclusion that the decision of the Secretary of State that the further submissions relating to the Claimant’s relationship with her daughter, taken together with the previously considered material, did not create a realistic prospect of the Claimant succeeding before an Immigration Judge was Wednesbury unreasonable, bearing in mind the need for anxious scrutiny (i.e. the need to give proper weight to the issues and to consider the evidence in the round). This was for the following reasons:

  • The Secretary of State was presented with evidence from the Claimant’s former partner and material originating from the Claimant’s daughter and sent to the Claimant which was not before the First-tier Tribunal (the Tribunal only had evidence of correspondence sent from the Claimant to her daughter) and did raise the issue of whether there existed a relationship between the Claimant and her daughter in circumstances where the Tribunal had stated that it was not persuaded that there was any genuine and subsisting relationship between the Claimant and her daughter. The  Secretary of State accepted that there was “evidence of a relationship” in her response dated 6 April 2016.  Accordingly, the Tribunal’s decision which had rested on the two limbs (no genuine and subsisting relationship but even if there was, it was not of the depth whereby it would be unduly harsh on the Claimant’s daughter for her mother to be deported) now rested only on one.
  • In relation to the issue of whether it would be “unduly harsh” on the Claimant’s daughter for her mother to be deported, whilst the Tribunal had concluded that even if a relationship existed it was not of a depth to outweigh the public interest in deportation, the question of the actual depth of that relationship, albeit one where personal contact was inevitably sporadic in light of the fact the Claimant was in immigration detention, had to be further considered in light of the new evidence and the question of the negative emotional impact and the best interests of the child assessed on the basis of anxious scrutiny. The question to be considered was whether there is any realistic prospect of the Claimant succeeding before an Immigration Judge bearing in mind the need for anxious scrutiny. There was at least some evidence regarding a greater depth of relationship and including evidence which emanated from the Claimant’s daughter herself than had been before the Tribunal when making its decision on 12 February 2015. The Court was not satisfied that such evidence was properly weighed in terms of its significance, given the Secretary of State’s  focus on the quantity of direct contact rather than on the depth of the relationship.
  • It was also unclear from the decision letters what consideration was in fact given to the evolving situation where the Claimant’s former partner’s intentions regarding where his daughter would live and as to contact with her mother had changed. The Claimant’s former partner had been the principal witness in the criminal trial that had led to the Claimant’s imprisonment but this had all changed by April 2016 at which time he was submitting evidence in support of a continued relationship between the Claimant and her daughter. There is no reference to this change of position in the Secretary of State’s response letters.
  • Whilst it was clear that Article 24(3) of the Charter of Fundamental Rights was considered by the Secretary of State, this section of the response referred back to the best interests of the child reasoning and was considered essentially through the prism of section 11 Children Act 2004. It was not clear  from the responses to what extent the Secretary of State did take into account the Claimant’s daughter’s own free-standing rights, including in relation to Article 24(3) which states that every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his/her parents, unless that is contrary to his/her interests.
  • Further, whilst the Secretary of State accepted that there was a negative emotional impact on the Claimant’s daughter, she then stated that this was the product of the Claimant’s own actions and that the predominant issue was the public interest in deportation. It was not clear whether and to what extent that admitted negative emotional impact was assessed against the “unduly harsh” criterion (i.e. whether it would be unduly harsh for the Claimant’s daughter to remain in the UK without her mother following deportation) as opposed to focusing on the reason why that impact had arisen.
  • Accordingly, the Court was not satisfied that the decisions dated 6 and 18 April 2016 applied the correct test or asked the right question in relation to the issue of the relationship between the Claimant and her daughter and/or satisfied the requirement of anxious scrutiny.
  • The Court made clear it that it was  not expressing any conclusion about whether the Secretary  of State could rationally have reached the conclusion that she did; rather that  the Court was  concerned as to the manner in which the issues were approached and whether it was considered in accordance with the approach which has been identified in the case-law as the one the Secretary of State must follow.
  • Accordingly, the Court quashed the decisions of 6 and 18 April 2016 and required the material submitted to be reconsidered by the Secretary of State and a fresh decision made.

 

Conclusion

The Secretary of State’s decision as set out above  appeared fully reasoned  however clearly anxious scrutiny  had not be applied. The  relevant question had not been properly   considered,  ie  whether there was any realistic prospect of the Claimant succeeding before an Immigration Judge bearing in mind the need for anxious scrutiny. The Secretary of State had neglected to  consider the greater depth of relationship   between mother and child as shown by the evidence before her.  As sometimes is the case, the Secretary  of State’s lengthy and seeming rational decision was however doing nothing more than merely  paying lip- service to the best  interests of MG’s child.

 

 

 

 

 

 

 

 

 

 

 

 

What you need to know to submit a successful application for indefinite leave to remain as a victim of domestic violence

Paragraph 289A, Part 6 of Appendix Armed Forces and section DVILR of Appendix FM of the Immigration Rules allow those who have leave in the UK as the partner of someone with the right of permanent residence and whose relationship has genuinely broken down, because of domestic violence, during their probationary period of leave, to be granted indefinite leave to remain.

To qualify for indefinite leave to remain as a victim of domestic violence  the applicant must meet the requirements set out in Part 8 of the Immigration Rules or Appendix FM or Appendix Armed Forces to those Rules.

Documentary evidence as set out below  is required  from an applicant  in order  to support an application for indefinite leave to remain:

  • Evidence of previous cohabitation with the partner
  • Evidence of domestic violence
  • Evidence of relationship with the partner
  • Evidence of destitution( where relevant)

 

DEFINITION OF DOMESTIC VIOLENCE

The government introduced a new definition of domestic violence from 31 March 2013. The definition of domestic violence and abuse is:

Any incident or pattern of incidents controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality – this can include, but is not limited to, the following types of abuse:

  • psychological
  • physical
  • sexual
  • financial
  • emotional

Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by:

  • isolating them from sources of support
  • exploiting their resources and capacities for personal gain
  • depriving them of the means needed for independence
  • resistance and escape
  • regulating their everyday behaviour

Coercive behaviour is:

  • an act or a pattern of acts of assault, threats, humiliation and intimidation
  • other abuse that is used to harm, punish, or frighten their victim

There is no difference between psychological (mental) abuse and physical abuse when it comes to assessing if a person has been the victim of domestic violence.

If an applicant submits evidence to show they have been subjected to domestic violence from someone other than their partner, they can still qualify for settlement under the rules.

In the domestic violence context, family members, whether directly related, in-laws or stepfamily, are defined as:

  • mother
  • father
  • son
  • daughter
  • brother
  • sister
  • grandparents

Evidence must clearly show the violence has been the reason for the breakdown of the relationship, for example where the person who abuses the applicant is a member of the sponsor’s family and against whom the sponsor offers no protection.

If the perpetrator is under 18 in England and Wales or under 16 in Scotland, the law deals with them differently. Offenders may be given a reprimand or a final warning. Both of these are admissions of guilt and are evidence that domestic violence has occurred.

The legal definition of injury is when any harm is done to a person by the acts or omissions of another.

 

 RELEVANT REQUIREMENTS

Only those in the UK whose last grant of leave was under specific provisions of the immigration rules are eligible to be considered for leave on domestic violence grounds.  There are a number of separate provisions in the immigration rules which enable a grant of leave to victims of domestic violence.

The provision which applies to a particular individual will depend on the rule under which they were last granted leave as a partner.

The Immigration Rules for domestic violence are in paragraph 289A, section DVILR of Appendix FM and Part 6 of Appendix Armed Forces.  They allow an applicant granted leave under these provisions, as a partner of a person present and settled in the UK, or of a member of the Armed Forces who is either British or has 4 years’ service to qualify for indefinite leave to remain, under these sections if they are a victim of domestic violence.

A person must be 18 years or over to qualify for leave as a partner.  This means no-one under the age of 18 can apply under the domestic violence rule as the main applicant.

Paragraph 289A of the Rules:

This applies to persons  already in the UK and previously admitted for either:

  • 27 months
  • granted an extension for two years, as a partner of a settled person under part 8 of the Immigration Rules before 9 July 2012 (before 30 November 2013 if the sponsor is a full time member of HM Forces who is British)

Where an applicant was granted limited leave to enter or remain under Part 8 before 9 July 2012 (before 30 November 2013 if the sponsor is a full time member of HM Forces who is British) a Home office Caseworker  will  therefore need to consider under paragraph 289A.  They  must be satisfied on the following points:

  • applicant was admitted for 27 months to the UK, or given an extension of stay for two years in the UK, as the spouse, civil partner, same-sex partner or unmarried partner of a person present and settled here under paragraph .276AD, 282(a), 282(c), 285, 295(B), 295B(c) or 295E
  • relationship was subsisting at the beginning of the relevant period of leave or extension of leave referred to above
  • applicant is able to provide evidence to establish their relationship with their partner broke down during the probationary period as a result of domestic violence
  • applicant does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974 if the application was made before 13 December 2012 – if the application was made after 13 December 2012, the Home Office caseworker must still check the general grounds for refusal do not apply

Part 6 of Appendix Armed Forces:

This applies to persons  granted leave to enter or remain as a partner (but not a fiancé(e) or proposed civil partner) of a member of HM Forces under Part 7 of the Immigration Rules (Paragraph 276AD) or Appendix Armed Forces – where the sponsor is a foreign or Commonwealth citizen the sponsor must have at least 4 years’ reckonable service.

Applicants who were granted limited leave as the partner of a serving or discharged member of HM Forces under paragraph 276AD of the rules or under part 4 of Appendix Armed Forces will be considered under part 6 of Appendix Armed Forces.

A Home Office caseworker  will  need to check the applicant was last:

  • admitted to the UK under paragraph 276AD of the Rules or paragraph 23, 26, 28 or 32 of Appendix Armed Forces
  • granted limited leave to allow access to public funds pending an application for ILR under Appendix Armed Forces (under the destitution domestic violence (DDV) concession)
  • granted under paragraph 40 (a further period of limited leave)
  • that the sponsor is British or has 4 years’ reckonable service at the date of application
  • the applicant does not fall to be refused on grounds of suitability or any of the relevant paragraphs of the general grounds for refusal (but note that limited leave may be granted where the applicant fails to meet the suitability requirements in respect of indefinite leave to remain but not in respect of limited leave to remain)
  • is able to provide evidence to show their relationship with their partner broke down during the probationary period as a result of domestic violence

Section DVILR of Appendix FM:

This applies to persons  issued 30 months (33 for entry clearance) from 9 July 2012  onwards as the partner of a British citizen or person settled in the UK under Appendix FM

Applicants who were granted limited leave as a partner of a British citizen or person settled in the UK under Appendix FM on or after 9 July 2012 will be considered under section DVILR.1.1 of Appendix FM.

A Home Office caseworker will need to check the applicant was last:

  • admitted to the UK for 33 months, or given an extension of stay for 30 months, under paragraph D-ECP.1.1, D-LTRP.1.1, D-LTRP.1.2. or, D-DVILR.1.2. of Appendix FM of the Immigration Rules on or after 9 July 2012, as a partner of a British citizen or person settled in the UK
  • granted limited leave to allow access to public funds pending an application under DVILR (under the destitution domestic violence (DDV) concession)
  • granted under paragraph D-DVILR.1.2 (a further period of limited leave)
  • is able to provide evidence to show their relationship with their partner broke down during the probationary period as a result of domestic violence

Those who cannot apply:

The  domestic  violence provision does not apply to:

  • the spouse, unmarried partner or registered civil partner of a sponsor who has only limited leave to enter or remain in the UK – this includes post-flight partners (where the relationship began after refugee leave was granted) of a person in the UK as a refugee, or partners of a person with humanitarian protection
  • European Economic Area (EEA) nationals exercising treaty rights – however, they can apply under the European provisions.
  • fiancé(e)s or proposed civil partners
  • people seeking asylum in the UK
  • the spouse or civil partner of a foreign or Commonwealth citizen who is or has served in Her Majesty’s (HM) Forces and who has not completed a minimum of 4 years reckonable service

 

OTHER RELEVANT CONSIDERATIONS

The rules are only for people who have been the victim of domestic violence during their probationary period of leave.

The rules are not intended to benefit people:

  • whose relationship broke down because they were the perpetrator of domestic violence
  • where the relationship broke down for reasons other than being a victim of domestic violence

The fact that the relationship broke down due to domestic violence during the very early stages of the probationary period is not an adverse factor in reaching a decision. If an applicant meets the requirements in the Immigration Rules, the Home Office caseworker  must grant  indefinite leave to  remain  regardless of how much of the probationary period is completed.

The Home Office caseworker can accept the relationship was subsisting when domestic violence occurred if evidence is provided that the couple were living at the same address when the incident took place. The fact the couple are still living at the same address when the application is made must not be taken as an indicator the relationship has not broken down, as this could be due to a number of reasons.

The applicant does not need to have knowledge of language and life under the victims of domestic violence rules.

Out of  time applications:

Paragraph 289A, Part 6 of Appendix Armed Forces and section DVILR.1.1 of Appendix FM of the Immigration Rules for indefinite leave to remain (ILR) as a victim of domestic violence do not require a person to have valid leave to remain in the UK. The rules only require a person to have or previously been admitted or granted as a:

  • spouse
  • civil partner
  • un-married partner
  • same-sex partner

If an application is received from a person without valid leave to remain in the UK,  the Home Office caseworker must consider the reason they were out of time and must make a judgement on whether this affects the assessment of the evidence submitted in support of the application.

The Caseworker must consider:

  • the age of evidence being relied upon – this may impact verifying the evidence
  • the applicant has been financially supported
  • when the relationship permanently broke down
  • if there are any official reports, for example from the police that show passports and travel documents were withheld and the police had to retrieve them
  • the time between the breakdown of the relationship and the application

Criminality  requirements:

For applications made after 13 December 2012 under part 8 of the Immigration Rules the Home Office caseworker  must check whether the application falls for refusal  under general grounds for refusal. For guidance on how to consider the criminality requirement for settlement in applications from victims of domestic violence, they  must refer to general grounds for refusal.

For applications under Appendix Armed Forces,  the caseworker  must consider Paragraphs 8 and 9 of Appendix Armed Forces and the relevant paragraphs of the general grounds for refusal.

For applications made under Appendix FM, the caseworker  must consider whether the requirements in paragraph S-ILR suitability indefinite leave to remain (ILR) are met. This applies to applications received after 13 December 2012.

Refused  applications- Grant of limited leave to remain instead of indefinite leave to remain:

Home Office caseworker  should normally refuse indefinite  leave to remain  if any of the requirements of paragraph 289A, Part 6 of Appendix Armed Forces or section DVILR of the rules are not met.

If the applicant under paragraph 289A does not meet the requirements for indefinite leave to remain as a victim of domestic violence only because paragraph 322(1C)(iii) or 322(1C)(iv) applies,  the caseworker  can grant further limited leave to remain for a period of up to 30 months. The caseworker  can grant leave with access to public funds if the applicant is destitute. This applies to applications received after 13 December 2012.

An applicant can be granted an extension under section D-DVILR 1.2 of Appendix FM if:

An applicant does not meet the requirements for indefinite  leave to remain  as a victim of domestic violence only because of:

  • paragraph S-ILR.1.5 – the applicant’s presence in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 12 months, unless a period of seven years have passed since the end of the sentence
  • paragraph S-ILR.1.6 – the applicant has, within the 24 month period before the date of application, been convicted of an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.

In these circumstances  the caseworker  must grant the applicant further limited leave to remain  for a period not exceeding 30 months.

An applicant can be granted an extension under paragraph 41 of Part 6 of Appendix Armed Forces if they fail to meet the suitability requirements in paragraphs 8 or 9 of Appendix Armed Forces in respect of a grant of indefinite leave to remain but not a grant of limited leave to remain. This may be the case where:

  • the applicant’s presence in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment: – for at least 12 months but less than 4 years and more than 10 but less than 15 years has passed since the end of the sentence – for less than 12 months, and a period of 7 years has not yet passed since the end of the sentence
  • the applicant has within the previous 24 months been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal which is recorded on their criminal record

 

Refusal decision and curtailment of leave where domestic violence not proven:

When a refusal is appropriate on an application from a person who still has over one month leave to remain in the UK as a:

  • spouse
  • civil partner
  • same-sex partner
  • unmarried partner
  • whose relationship has broken down is not able to prove their relationship broke down as a result of domestic violence

the Home Office caseworker  must consider curtailment. This is because they now cease to meet the rules under which they were granted leave to enter or remain in the UK

 

Refused  applications- Right of Appeal  or Administrative Review :

An applicant who applied on or after 6 April 2015 will not have a right of appeal.  Instead they may be able to have their decision reviewed under the Administrative Review process.

An applicant who applied before 6 April 2015 will have a right of appeal if they:

  • applied for an extension of leave before their previous leave has run out
  • will not have any leave left as a result of the decision to refuse

An applicant who applied before 6 April 2015 will not have a right of appeal if they have existing leave on the date  the caseworker  refuses the application or did not have any leave on the date they applied.

 

THE VICTIMS OF DOMESTIC VIOLENCE CONCESSION: BEFORE THE SUBSTANTIVE APPLICATION

A person who flees domestic violence and intends to make a claim for settlement (indefinite leave to remain) under paragraph 289A, Part 6 of Appendix Armed Forces or section DVILR of Appendix FM of the Immigration Rules who is:

  • the migrant spouse
  • partner of a person present and settled in the UK
  • partner of a member of HM Forces who is British or has 4 years’ reckonable service

can notify the Home Office if they wish to be considered for limited leave under the DDV concession. This is on the basis that they claim to be destitute.

The Home Office operates this policy outside of the Immigration Rules to allow eligible applicants, who intend to make an application for settlement under the domestic violence rule, to be granted leave outside the rules which permits them to access public funds and vital services. Leave outside the Rules  will mean anyone who is eligible does not have to meet the habitual residence test they would otherwise have to meet with other types of leave under criteria set by the Department of Work and Pensions (DWP)

The Home Office caseworker  must grant under this concession three months limited leave to remain outside the rules with recourse to public funds. This will give the applicant access to temporary accommodation such as a refuge in order to leave their abusive partner and submit a settlement application under the domestic violence rule

Victims of domestic violence  should complete  form Victims of domestic violence (DDV) concession, if they wish to  notify  the Home Office  that  they  require access to public funds (income-related benefits)  in order to find safe accommodation and support  themselves before they  apply for indefinite leave to remain.

This is not an application for any specific benefit. If  a person is  granted leave with access to public funds this does not guarantee  their  eligibility for any specific benefit.  They  will still need to apply to the Department of Work and Pensions (DWP), and will need to meet their entitlement conditions for access to public funds.

An applicant  should only complete the application  form if:

  • they were last admitted to, or were last granted an extension to your stay in the UK as a spouse, civil partner, unmarried or same sex partner of a British citizen or person present, and settled in the UK or of a serving or discharged member of HM Forces who is a British citizen or who has served for at least four years ;
  • their  relationship has broken down due to domestic violence; and
  • they  are destitute and in need of benefits.

The Home Office  will consider whether an applicant  should be granted limited leave to allow them to  access to public funds. They  only need to complete this form if  they  need access to public funds before  they  submit  their application for indefinite leave to remain. This is not an application for indefinite leave to remain on the basis of domestic violence.

If a person is  granted leave with access to public funds, this will be for a limited time of 3 months only. This is to enable  the person  to apply for access to public funds and it will replace  their  current period of leave to remain.

An applicant  should submit their application for indefinite leave to remain on the basis of domestic violence within this 3 month period. If  they do not submit a further application within 3 months, any leave  the Home Office grant   as a result of this notification will come to an end. This means  the person  will be expected to leave the UK.

Where person qualifies under the concession and  they are granted limited leave, this does not guarantee that  their  application for indefinite leave to remain will be successful.

If a person  qualifies  for leave to remain in the UK for a period of 3 months,  the Home Office  will send  them  a letter giving information about enrolling  their  biometric information. That letter will allow an applicant  to enrol  their  biometric information without having to pay a fee.  If  the applicant has children under 16 who are included in the notification, they will also need to enrol their biometric information, in the presence of a responsible adult.

If  the Home Office  grant a person  a period of leave to remain in the UK with access to public funds,  they  will issue  the person  a biometric residence permit. Where the  application is successful, this leave will supersede the person’s  current leave and cannot be reversed should that person’s circumstances change.

The  completed form  should be  sent to the Home Office by email to:

Domestic.Violence@homeoffice.gsi.gov.uk.

Or post to:

DV Duty Officer

Dept 81

UK Visas & Immigration

The Capital

Level 5

LIVERPOOL

L3 9P

Postal notifications will however  take longer to process. The Home Office caseworker  must confirm receipt of the notification by email where possible. The Home Office aims to process notifications within 5 working days of receipt.

 

THE APPLICATION FOR INDEFINITE LEAVE TO REMAIN : APPLICATION FORM AND FEES

The relevant application form that must be completed in order to submit an application for indefinite leave to remain  as a victim of domestic violence is Form SET(DV).

Currently, the application fee is £2297.00 for a single applicant. If one or more dependants are applying with  the applicant,  the fee increases by £2297 for each dependant applying as shown in a table within the application form.

An  applicant may include their  children under the age of 18 if they are applying as  their dependants, however they must pay the specified fee if they apply separately. Children aged 18 or over may not be included. They must apply individually and pay the specified fee in each case.

The fee does not need to be paid if an applicant is  destitute at the time of making the application. If an applicant is claiming an exemption from  paying the fee because  they  are destitute, they should  tick the relevant box  within the application to  confirm this.

The premium service at  Premium Service Centres is not available for applications on form SET(DV).

As part of  the  application, an applicant is  required to enrol  their  biometric information. They  will be charged an additional handling fee for this service payable to the Post Office Ltd.  They  must pay the fee by cash or debit card when   they  attend Post Office Ltd. to enrol  their  biometrics.  Each dependant included on  the  application must also pay this additional fee when they enrol their biometric information.

Applicants on some immigration routes are exempt from paying an enrolment fee at the Post Office Ltd.  If an applicant is  in one of these categories they  will be informed of this when  the Home Office  send  a biometric notification letter.

An  application may be rejected as invalid if an applicant  do not enrol their  biometrics when requested.

Validity of an application:

Paragraphs 34-34I of the Immigration Rules specify certain requirements with which an application on a form specified for the purpose of the Rules must comply. To make a valid application, an applicant  must:

  • apply on the current version of form SET(DV)
  • pay the specified fee by one of the methods specified in the payment guidance (unless they are destitute)
  • provide photographs of themselves and any children under 18 who are applying with  the applicant  as specified in the application form
  • complete section 8 (Personal History) as required
  • sign the declaration in section 13
  • send the application by prepaid post to the Home Office

If an applicant fails to do any of these things, the application will be invalid and the Home Office  will return it to  the applicant.

An applicant  must  complete every relevant section of the form as required and provide all the documents specified for  the  particular application, including  their  valid passport or (except a PBS applicant) a national identity card. If  they  do not have these (except a PBS applicant), their  most recent national identity card. If they  do not  have either of these,  the applicant  can provide a travel document.  They also need to include the valid passport, national identity card or travel document of any dependants applying with them.  Where an applicant does  not do this,  the Home Office reserve the right to decide  the  application on the basis of the information and documents provided. It is important, therefore, to provide an explanation if an applicant  cannot give  the Home Office  all relevant information or documents when making  the  application.

In addition, to be provided are two identical passport-size photographs of   the applicant with their  full name written on the back of each one. Where relevant,  two identical passport-size photographs of any children under 18 who are applying with  the applicant with their full name written on the back of each one.  The photographs  provided must also comply with the format requirements specified in the separate UK Visas and Immigration photograph guidance.

Documents  provided with the application must be originals. Copies of any kind are not acceptable unless there are valid reasons for not being able to provide the original document. In such circumstances,  the Home Office may accept a  copy certified by the body or authority which issued the original (for example, a copy of a savings book certified by the building society or bank), or by a notary.

The reasons for not being able to provide the original document must be explained in a covering letter. The Homer Office are unlikely to grant the  application without the original document.

Any documents not in English must be accompanied by a reliable English translation.

Passports or travel documents must be  signed.

If an applicant  needs to contact the Home Office after they  have applied,  or to  send  the Home Office more information about  their application, they can  write to the following address (not the one to which  they  posted  their  application):

Home Office, Liverpool Settlement Casework, PO Box 306, Liverpool, L2 0QN

When contacting the Home Office, an applicant can give the following details in  their correspondence:

  • the applicant’s full name,
  • date of birth and nationality
  • any Recorded or Special Delivery number
  • the date on which the application was posted
  • the Home Office reference number if they have one

 

THE APPLICATION FOR INDEFINITE LEAVE TO REMAIN – FEE EXEMPTION APPLICATION

A person who appears to be destitute will be exempt from paying the application fee for indefinite leave to remain (ILR) as a victim of domestic violence.

If the applicant claims to be destitute they must submit the SET(DV) application form as normal, but will not submit the specified fee. They must provide a letter which says why they are destitute and provide additional evidence to show they:

  • do not have access to enough funds to pay the specified application fee
  • have total and necessary reliance on a third party for essential living costs, such as basic accommodation and food

If a person shows they are totally reliant on third party support,  the Home Office Caseworker must consider them destitute.

Form SET(DV) asks relevant questions so as to enable consideration of whether an applicant is entitled to an exemption from paying  the Home Office application fee:

  • Is the applicant  claiming exemption from paying the application fee because they  are destitute? The question  requires a Yes or No response. If an applicant is claiming exemption from the fee but has  answered “no”,  their  application will be rejected as invalid because destitution is the only ground on which an applicant  may be exempted from paying the fee in an application on form SET(DV).
  • Is the applicant  currently being supported by a refuge or local services? If so, evidence is required to be provided.
  • If not supported by a refugee or local services, the question is whether an applicant  currently pays for  their accommodation ( ie, the place where they  live). If payment is made,  the amount paid is required.
  • A question is asked whether an applicant has savings.
  • An applicant will be asked whether they are working. If yes, the  pay each month after income tax and other deductions will need to be disclosed.
  • The Home Office will want to know if a relative or friend regularly gives an applicant money- if yes, relevant evidence must be provided.
  • If an applicant is receiving public funds, an applicant is required to  indicate which benefit(s) from a list provided within the application form.
  • The Home Office will ask if there is anything else an applicant  wishes to tell them  about their  financial situation Where this is the case, details should be  provided.

 

What is  destitution?

The legislative background of the definition of destitution can be found in Regulation 8 of the Immigration and Nationality (Fees) Regulations 2007.

An applicant does  not need to pay the Home Office application  fee if  they can show that  they  are destitute. A person who claims to be destitute for the purpose of being exempt from the fee must provide evidence to show  that, on the date of making the application, they have:

  1. no access to sufficient funds to pay the specified application fee; and that they are;
  2. totally and necessarily reliant on a third party for the provision of essential living costs, such as basic accommodation and food.

The Applicant  must provide satisfactory evidence if they claim to be destitute.

Unless an applicant  provides satisfactory evidence,  their  claim to be destitute will not be accepted and  their application will be rejected as invalid.

Proving destitution – Documentary evidence  required:

The application form  also asks what sources of financial support an applicant has.  This could be  from employment, savings, benefits, family/friends, any agency, other or none. An applicant will be required to  give details of the financial support they  are receiving and provide documentary evidence to support this, such as pay slips, bank statements, savings books/statements, benefits received, money received from family/friend(s), or a statement from the refuge or local authority assisting  the applicant  including their contact details. An applicant will be required to explain how long they have been receiving  relevant support.  If  an applicant has  ticked None, they are required to  provide information and evidence of how their  meet their essential living costs, such as basic accommodation and food.

An applicant is deemed reliant on third party support if they can provide evidence to show the third party provides them with the means to live day-to-day.  A written statement from the supporting body is needed if the applicant claims they are totally reliant on a third party for essential housing and living costs, such as:

  • a local authority
  • a refuge
  • friends
  • relatives

This statement must confirm:

  • the applicant’s position
  • they are providing housing and living costs support

If an applicant claims they are totally reliant on friends and relatives, they must provide evidence to show they receive this support. The Home Office does not expect that support to extend to paying an application fee. If  the applicant is  receiving support from a third party, e.g family and friends, the applicant  must provide a letter confirming what support arrangements are in place, together with other documents to prove  their inability to pay the application fee.

If they are assessed by a local authority or refuge as destitute, written confirmation of that assessment will be evidence to support the decision to waive the fee.  A signed  letter  or other documents  must be  provided as evidence that an applicant is  destitute e.g. from the local authority or agency supporting  them confirming that they have assessed  the applicant and that for their purposes in providing support to the applicant,  they accept that  the applicant  is destitute at the time of the application and therefore unable to pay the fee.

If a Home Office caseworker  decides the applicant is destitute they  must waive the application fee. The caseworker is however  not required to  write out for further information when they  assess destitution. The  decision must be made based on the evidence the applicant submitted with their application.

The  caseworker  must reject the application on the basis no fee has been paid if the evidence the applicant provides does not support their claim to be destitute. They  must fully explain why the applicant does not appear to be destitute based on the evidence they have provided. Applicants will then be expected to pay the fee or resubmit their application and provide other evidence to prove they are destitute

If an applicant is  not claiming to be destitute,  they  must pay the specified fee.  If an applicant does not, the application will be invalid and will be returned to  the applicant.

Where the applicant   is paying the application fee,  the Home Office will not refund it if  they  refuse the application or if  an applicant  withdraws it.

 

APPLICANT’S STATUS WHILST AN APPLICATION IS BEING CONSIDERED

If an applicant  and any children under 18 apply before the end of  the permitted stay in the UK, the applicant/ their existing immigration status, including any permission to work, will continue until  the application/their application(s)  is/are decided.

 

PROVING DOMESTIC VIOLENCE

The Immigration Rules do not specify documents which must be provided. The Home Office caseworker  must consider each case on a case-by-case basis.

To prove domestic violence has occurred the applicant must submit supporting documents with their application.

Home Office policy guidance Victims of domestic violence sets out the relevant documentary evidence required. Application Form SET(DV)  summaries the relevant evidence  in a shorter format as set out below.

A Home Office caseworker  must take the following types of evidence as proof of domestic violence, they do not need further consideration:

  • a relevant court conviction against the sponsor
  • full details of a relevant police caution issued against the sponsor

Home Office policy guidance states that some evidence may suggest domestic violence has occurred but the alleged perpetrator has not been found guilty by a court or admitted to guilt. Caseworkers are instructed to  treat this evidence with caution and consider it along with all evidence supplied. These include a:

  • non-molestation order
  • letter from the Chair of a multi-agency risk assessment conference (MARAC)

Home Office policy guidance recognises that often victims do not have the official documentary evidence to prove domestic violence. This may be because of an unwillingness or not enough evidence to take the matter to court or to a multi-agency risk assessment conference (MARAC).

Proving Domestic Violence-  what Form SET(DV)  specifically requires:

Form SET(DV) requires   information and documentary evidence to satisfy the Home Office  that an applicant is  a victim of domestic violence.  An applicant  must answer the relevant questions and provide evidence from independent and objective sources. The documents must relate to violence committed against an applicant  by their and/or by his or her family. Where available, the evidence must come from the sources detailed below but the applicant  may also provide evidence from other sources.

Relevant evidence must be provided  as per SET(DV):

  • An injunction, non-molestation order or other protection order (other than an ex-parte or interim order). Where the order refers to any undertakings made in writing by either the applicant  or the person(s) who committed the violence,  this   must be  provided. The Home Office cannot accept an ex-parte or interim order in this section.
  • A relevant court conviction.
  • A relevant police caution. This should include the full name, date of birth and nationality of the person(s) who committed the violence, as well as their address(es) at the time of the incident(s), and now, if different; and the date, time and place of the incident(s) in respect of which the caution was issued or a prosecution is taking place

If an applicant is  not able to provide any of the evidence listed above,  they  should provide as much evidence as possible, of the types of evidence listed  below, If an applicant is  unable to provide any of the listed  evidence, they are required to  give reasons.

  • A medical report from a hospital doctor or GMC registered family practitioner (GP) or doctor employed by Her Majesty’s Armed Forces who has examined the applicant confirming that the injuries are consistent with being a victim of domestic violence. The report must include the doctor’s GMC Registration Number and must provide the date of  the applicant’s  first registration, the dates of visits in which domestic violence was reported, and an extract from the record of these details.
  • An undertaking given to a court that the person(s) who committed the violence will not approach the applicant.
  • A police report confirming that, because of a domestic violence incident, they attended the address at which the incident(s) took place. A copy of the incident log must be provided. It must show the address(es) at which the incident(s) took place.
  • A letter from a social services department confirming its involvement in connection with domestic violence committed against the applicant.
  • A letter of support or a report from a domestic violence support organisation/refuge.
  • If the applicant is  the subject of a multi-agency risk assessment conference (MARAC), evidence from the chair of the MARAC stating that they  have been the victim of domestic violence.

Other documentary evidence  – if an applicant is  unable to provide any evidence as listed above, they should  explain the reason for this and list any other evidence they  are providing.

The application form also requires the following:

  • A statement signed by the applicant  stating whether  they are still living with  their partner and, if the marriage or relationship has broken down, whether domestic violence was the reason for this.
  • A description of the incident(s) of domestic violence against the applicant, including the date(s), time(s), and place(s) of the incident(s).
  • If anyone other than the applicant’s  partner committed domestic violence against  the applicant, their name(s) and relationship to  the applicant  must be provided.
  • Whether the applicant reported the violence or abuse to any agencies, services, other bodies or individuals. If not,  the applicant is required to please explain why.

The  evidence provided by an applicant   may relate to one incident or a number of incidents and must be used to build a case history, in order to make as thorough a decision as possible, when the Home Office caseworker  makes a judgement on whether domestic violence has taken place. They  must thoroughly explain all decisions based on such evidence listed above.

Applicants must provide as much evidence as possible to prove they were the victim of domestic violence. Home Office guidance states that whilst an applicant provides just one piece of evidence from the list above may be able to prove their case, in general an applicant who submits only one piece of evidence would not usually be considered to have proven their case.

Home Office caseworkers are instructed to  treat with caution all witness statements from friends or family and letters from official sources that relay unfounded reports by the applicant but do not confirm the incident. This type of evidence must be verified where possible and treated as additional evidence when the caseworker  builds the case background.

Caseworkers  must be satisfied the evidence provided is genuine.

Counter claims of domestic violence:

The Home Office  may receive counter claims from the alleged perpetrator, in some cases these claims may already be on the Home Office file.  Home Office caseworkers  can consider counter claims as evidence alongside an application. However, they must disregard any counter claim where the applicant is able to produce evidence:

  • of a court conviction
  • of a police caution
  • they are subject of a multi-agency risk assessment conference (MARAC)

If the applicant is relying on other evidence that domestic violence has occurred,  the Caseworker  must consider the counter claims. They  must weigh up the evidence presented by each side and make a judgement as to whether they  are satisfied, on the balance of probabilities, domestic violence has occurred.

Evidence of  relationship with the Partner:

Form SET(DV) also requires the following:

  • The partner’s full name, nationality and date of birth.
  • The last address at which the applicant lived with their partner
  • Clarification of when the relationship broke down.
  • Whether the applicant is living apart from the partner- if so when they started living apart.
  • If an applicant is still living with  their partner, they are required to   explain the reason for this. They should provide any relevant supporting evidence if they  are still with their  partner because there is no alternative accommodation.
  • Clarification if the partner  is a serving or discharged member of Her Majesty’s Forces. If yes, the applicant is  required to provide detailsof their partner’s service such as what is/was the partner’s HM Forces service number and what is/was the applicant’s  partner’s rank in HM Forces. Clarification of whether  the partner is a British citizen and if not when the partner joined the armed forces. Indication of whether the partner is still serving, and if not when they were discharged. In relation to current service, where the partner is  currently posted including the current, country and length of posting.

Only if an applicant  cannot provide  their passport or other documentary evidence that  they  either entered the UK with an entry clearance (visa) or were granted leave to remain as a partner is the following information required:

  • When the applicant married, entered into a civil partnership or started living together in an unmarried or same-sex relationship.
  • Whether the applicant obtained an entry clearance as a partner.
  • When and where were the applicant was  issued with the entry clearance.
  • When the applicant entered the UK.
  • If the applicant entered the UK more than 2 months after they  were issued with the entry clearance,  they are required to  explain the reason(s) for this.
  • If the application as a victim of domestic violence is being made after the end of  the applicant’s leave as a partner,  they are required to  explain the reasons for this.

Evidence of previous cohabitation with  the partner:

The applicant must also provide documentary evidence to show that they and their partner were living together from the time when  the applicant was  granted leave to enter or remain as a partner until such time as  their relationship broke down. The  evidence requested should take the form of at least 5 items of correspondence either addressed to the applicant  jointly or in both their names, or addressed individually to each of  the parties at the same address. Examples of acceptable correspondence include:

  • Bank statement(s)/letter(s)
  • Building society saving(s) book(s)/letter(s)
  • tax bill(s) or statement(s)
  • Water rates bill(s) or statement(s)
  • Electricity bill(s) or statement(s)
  • Letter(s) or other document(s) from government departments or agencies, for example: HM Revenue and Customs, Department for Work and Pensions, DVLA and TV Licensing
  • insurance policy(ies)/letter(s) – Mortgage statement(s)/agreement
  • Tenancy agreement – Telephone bill(s) or statement(s) – Loan offer(s)/agreement(s)
  • Letter(s) or other document(s) from your GP, a hospital or other local health service about medical treatments, appointments, home visits or other medical matters

If an applicant is unable to provide the required documentary evidence to show that they  and their  partner were living together until such time as their  relationship broke down,  they are required to  explain the reasons for this.

 

RELEVANT HOME OFFICE APPLICATION FORMS AND GUIDANCE

 

CONCLUSION

It might seem that without the  required set out above evidence, an application placing reliance upon the domestic violence Rules might not succeed. It is  however not unheard of for the Home Office to grant indefinite leave to remain without any or very little supportive documentary evidence of domestic violence provided by an applicant.  The key to success might be to hone in on the  new definition  for domestic violence referred to above,  obtaining meticulous detail of the incidents of violence and set these out in a written signed   statement  in support  of  the  application.  For example,  where the police do not take further action against a partner in relation to allegations of  physical assault,  it might be possible to sustain an argument that having  regard to the psychological, emotional,  financial or described  sexual abuse  incidents,  that a Home office case worker  should  find  an applicant credible  and grant settlement.  Of course attempts to obtain the relevant documentary  evidence  should be explained but where no evidence  has been obtained  or is not in existence,   reasons must be provided and relevant submissions made nonetheless.

The fact that a Home Office caseworker  might write in requesting that an applicant provide  further documents even though the applicant has already provided all that they can,  does not mean that a detailed response should not be forthcoming. Reliance can also  still be placed upon well prepared supportive statements from relatives or friends- even though  Home Office guidance instructs Caseworkers to approach these with caution.  Any other documentary evidence such as  medical or police  reports from the applicant’s own  home country to show the partner was abusive even prior to the applicant’s arrival in the UK, should be submitted.

It might that   the police have investigated allegations of physical assault but  taken no further action with indications that the  applicant has  provided  a vague  account. The letter from the police to the applicant might also  state that  there is not enough evidence  to refer the case  to the CPS  due to lack of corroborative evidence.  The police may say , “ This  does not mean  that I or other police  officers do not believe what you have told us”.  In these circumstances, it is  worth drawing attention to the  fact that  the burden of proof in criminal cases is ‘beyond reasonable doubt’ but the standard of proof in immigration cases is ‘on the balance of probabilities’.  Submissions can be made that  the applicant  has given the Home Office, via a statement, sufficient detail  indicating a clear account of  domestic violence.

It some instances, it can be  ascertained that there will likely be very little chance of success in relation to submission of an application  for indefinite  leave to remain as a victim of domestic violence.  Where the applicant has,  for example,  a British child with the partner, an FLR(FP) application  placing reliance upon  the immigration rules as a parent or based on exceptional circumstances should be submitted even though  the result will be that  the applicant  obtains leave to remain on the 10year route to settlement.

 

The UK Government’s single power of immigration bail: Keeping immigrants on a tight leash

On 15 January 2018,  the Immigration Act 2016 (Commencement No. 7 and Transitional Provisions) Regulations 2017 No. 1241,  commenced Sections 61(1) and (2) and 66 of the 2016 Act and the majority of the immigration bail provisions set out in Schedule 10 to the 2016 Act.

Schedule 10  replaced the various pre-existing alternatives to detention (temporary admission, temporary release on bail and release on restrictions) by a single power to grant immigration bail.

Following commencement of the provisions in Schedule 10, any person at liberty in the community on the basis of one of the previous alternatives to detention provisions is now to be treated as having been granted immigration bail, subject to the same conditions, under the single bail power.  Accompanying the  new provisions is  new Guidance, Immigration bail.

The fact that a person has been granted immigration bail does not prevent the person’s possible arrest and subsequent detention under one of the relevant  provisions mentioned  below. This allows a person on immigration bail to be detained pending an enforced removal, for example, where the person has been granted bail whilst waiting for a travel document which then becomes available.

 

ELIGIBILITY FOR IMMIGRATION BAIL

Any person detained, or liable to be detained, under any of the following provisions is eligible to be granted immigration bail by the Secretary of State:

  • paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971 (detention by immigration officers of persons liable to examination or removal)
  • paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation)
  • section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State of persons liable to examination or removal)
  • section 36(1) of the UK Borders Act 2007 (detention pending automatic deportation)

A person who is liable to be detained under any of the above provisions can be granted, and remain on, immigration bail even if that person can no longer be lawfully detained (for example, because there is no realistic prospect of the person’s removal taking place within a reasonable time).

A person against whom the Secretary of State is considering making a deportation order under section 5(1) of the Immigration Act 1971 can remain on immigration bail even if that person is no longer liable to be detained.

A person is on immigration bail from when a grant of immigration bail starts to when it ends. These events are defined in paragraphs 1 and 3 of Schedule 10.  A grant of immigration bail starts from the time that is stated on the notice granting it. The notice may state that bail is conditional on certain arrangements being in place, and that it starts once those arrangements have been made.

A grant of immigration bail ends when the person to whom it is granted is:

  • no longer liable to be detained and the Secretary of State is not considering whether to make a deportation order against the person
  • granted leave to enter or remain in the UK
  • detained under one of the provisions mentioned in Eligibility for immigration bail
  • removed from, or otherwise leaves, the UK

 

TRANSITIONAL PROVISIONS

Under paragraph 13 of Schedule 10, regulations for commencing the Schedule treat people who had already been notified of their liability to detention and given restrictions as an alternative to detention (for example temporary admission, temporary release, release on restrictions and bail) as having been granted immigration bail in such circumstances and subject to the same conditions as were previously specified to the person.

This applies to the following:

  • a person on temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971
  • a person released from detention under that paragraph
  • a person liable to detention under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 but released by virtue of a direction of the Secretary
  • a person liable to be detained under paragraph 2(2) or (3) of that Schedule but was not so detained
  • a person released from detention under section 36(3) of the UK Borders Act 2007
  • a person released on bail from detention under any provision of the Immigration Ac

There is no requirement to contact these individuals separately to notify them of their transition onto immigration bail. However, when the person is next contacted they should be informed that they are now on immigration bail.

Below is the recommended wording  as set out in Home Office Guidance for explaining immigration bail to persons who have transitioned from their current restriction regime:

“Following a change in the law, your status in the UK is now described as ‘immigration bail’. Your presence in the UK was previously subject to restrictions or conditions under the Immigration Act 1971. The Immigration Act 2016 has replaced these parts of the Immigration Act 1971. The restrictions on your presence in the UK remain the same.”

A variation of the pre-existing conditions will need to be updated by the Home Office caseworker  and a BAIL 201 form issued to the person.

 

MAKING DETAINEES AWARE OF THEIR  BAIL RIGHTS

Information on immigration bail rights is contained in the reasons for detention form (IS91R or equivalent) issued to every detainee on detention.   The information in the form must be explained to the detainee, by Home Office Caseworkers,  using an interpreter if necessary. Information on immigration bail rights is also included in the monthly progress update to detainees (IS151F or equivalent).

Detainees must also be given BAIL 403 during their induction to detention. This contains information on:

  • when they can apply for immigration bail
  • how to make immigration bail applications to the Secretary of State (using form BAIL 401)
  • how to make immigration bail applications to the First-tier Tribunal (using form B1)
  • when they will be automatically referred for consideration for immigration bail
  • where they can obtain further information

For prisoners, the decision maker will send a bail prison pack and covering letter (BAIL 404) to the relevant prison team. This pack contains the following notices:

  • BAIL 403
  • form B1 • BAIL 401
  • BAIL 306 (if a financial condition is likely to be considered appropriate)

 

CONSIDERING WHETHER TO GRANT  BAIL

In considering whether to grant immigration bail to a person, and which conditions to attach to the immigration bail if granted, the Secretary of State or the First-tier Tribunal must have regard to the following:

  • the likelihood of the person failing to comply with a bail condition
  • whether the person has been convicted of an offence (whether inside or outside the UK)
  • the likelihood of the person committing an offence while on immigration bail
  • the likelihood of the person’s presence in the UK while on immigration bail causing a danger to public health or being a threat to the maintenance of public order
  • whether the person’s detention is necessary in that person’s interest or for the protection of any other person (for example, if a person is awaiting transfer to a mental health hospital)
  • such other matters as the Secretary of State or the First-tier Tribunal consider relevant (for example, the Adults at Risk in immigration detention policy)

 

SECRETARY OF STATE’S IMMIGRATION BAIL

The Secretary of State may consider for a grant of immigration bail a person who is detained – or who is liable to be detained – under one of the provisions mentioned  above in relation to eligibility for bail. The consideration may take place whether or not the person has submitted an application for immigration bail.

Bail without an application form:

In the following circumstances, the relevant Home Office  team can decide to grant bail without an application form, when:

  • a person is first encountered at a port or elsewhere in the UK, Border Force officers must complete an Immigration Bail Risk Assessment form as part of this process
  • a person is detained and a casework team proactively decides that detention is no longer appropriate
  • Criminal Casework decides not to detain a Foreign National Offender (FNO) for deportation action at the end of criminal sentence

Application for bail:

Detained persons must submit their applications for Secretary of State immigration bail using form BAIL 401.  If the decision maker receives an application in another format, it may be rejected and a BAIL 405 notice sent directing the person to the correct form.

Decision makers must make their decisions and send a response to the applicant within 10 working days of the date recorded under ‘date applied’.

If the person the decision make is  considering for a grant of immigration bail is not detained, they  must take into account the requirements set out above  under the heading “Considering whether to grant bail” and, in addition, the following:

  • the length of any likely additional period necessary to eliminate barriers to removal
  • any specific features of the case – such as those set out below – which indicate that detention is necessary
  • the reliability and standing of any Financial Condition Supporters
  • where appropriate, whether the person has a suitable settled address
  • any other factors relevant to the decision to detain
  • in Criminal Casework cases, any licence conditions

Indicators that a person is unlikely to comply with the conditions of immigration bail might include:

  • any history of escaping, or attempting to escape, from legal custody
  • previous breach or breaches of conditions of immigration bail – or its predecessors
  • statement from the person or the person’s Financial Condition Supporter indicating an intention to breach bail
  • the person’s immigration application sponsor, if any, refusing to act as Financial Condition Supporter because the sponsor does not believe the person will comply, even if other Financial Condition Supporters are produced subsequently
  • risk of offending or potential harm to the public, including on the basis of national security, terrorism, criminality
  • previous failed removal attempt owing to the individual’s disruptive behaviour or failure to comply with the documentation process

The above lists are not exhaustive. The decision maker  must assess each case on its individual merits, taking account of the person’s family, social and economic background, health (physical and mental) and immigration history. The decision maker  may still be able to grant immigration bail to a person with an adverse background or history if they produce sufficient and satisfactory Financial Condition Supporters or there are reasons to believe that the person will comply with bail conditions.

Foreign national offenders and financial conditions:

If the decision maker is   considering attaching a financial condition to one or more other conditions of granting bail to an FNO, the following should happen, if relevant:

  • if an application for Secretary of State bail (BAIL 401) is received, the FNO must provide details of possible Financial Conditions Supporters
  • if bail is being considered without an application from the detainee, the decision maker must ask the detainee for possible Financial Condition Supporters in the event of bail being granted
  • if bail is considered appropriate the decision maker must complete the BAIL 407 proposing the grant of bail and set the appropriate financial condition(s) and refer for authorisation
  • if bail is authorised, fully or conditionally, the decision maker must conduct any necessary checks on the Financial Condition Supporters – this must include any additional checks the authoriser may request with the intention to grant bail
  • the decision maker must send the BAIL 301 (Financial Condition Supporter Agreement) to the supporter by email giving 2 working days to sign and return:  if this timescale is unrealistic, for example if no email address is provided, it will be necessary to adjust it to allow for the BAIL 301 to be sent out and returned by post – decision makers may also allow Financial Condition Supporters more than 2 working days to return BAIL 301s sent by email if considered necessary,

Grant or refusal of bail: 

Following receipt of a person’s application for immigration bail, decision makers must decide whether immigration bail should be granted or refused.

If the Secretary of State decides to grant immigration bail, the decision maker must notify the person in writing. The notice (BAIL 201) must include:

  • when the grant of immigration bail begins
  • the bail conditions

Under paragraph 3(8) of Schedule 10, the start of a grant of immigration bail may be specified to be conditional on arrangements stipulated in the notice being in place to ensure that the person is able to comply with the bail conditions. This provision is likely to be most relevant in cases where a grant of immigration bail is subject to

  • a residence condition – while arrangements are made to secure accommodation if it is not already available
  • an electronic monitoring condition – while arrangements are made to install the necessary equipment

In Criminal Casework cases, decision makers should consider any criminal licence conditions fully to ensure any immigration bail conditions do not conflict.

If the Secretary of State refuses to grant immigration bail, the decision maker must notify the person using form BAIL 402 (refusal of Secretary of State Bail Application) and record it on the person’s detention and case progression review form.

There is no limit on the number applications for immigration bail a person can make to the Secretary of State, or when an application can be made. Where a repeat application has been made but there has been no change in the person’s circumstances, a bail application may be refused by cross-referring to the same reasons as the previous application.

 

IMMIGRATION JUDGE OR FIRST TIER  TRIBUNAL BAIL

A person who is detained under one of the provisions mentioned  above in relation to eligibility for bail, can apply to the First-tier Tribunal for a grant of immigration bail.

The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2604/2014) govern the procedures to be followed in relation to bail applications to a judge of the First-tier Tribunal.

The application form for First-tier Tribunal bail (B1) is given to detainees at the point of initial detention. To make an application, the detainee, or their representative, sends the completed form to the First-tier Tribunal directly.

The role of the Home Office in First-tier Tribunal bail is to respond to the bail application by:

  • producing a bail summary (BAIL 505) to justify the Home Office’s case for detaining the individual and the reason(s) why bail should be refused, or what conditions would be considered appropriate should bail be granted
  • being represented by a Presenting Officer (PO) at the bail hearing, if applicable

The Home Office also has a duty to refer certain cases to the Tribunal automatically for consideration.

The Tribunal Procedure Rules require applications for immigration bail to be subject to a hearing. The exception is if a person’s bail application had been refused following a hearing in the preceding 28 days and there has been no material change in the person’s circumstances.

Her Majesty’s Courts and Tribunals Service (HMCTS) is responsible for listing bail hearings and this is, where possible, done within 3 working days of receiving a bail application. HMCTS must provide the Presenting Officers Unit with copies of bail applications as soon as reasonably practicable following receipt.

Detainees should normally attend their bail hearings, in person where practicable but usually by video link.

While it is not mandatory for Financial Condition Supporters to attend the bail hearing, the expectation is that they will attend and absence may well undermine the chances of a successful outcome for the detainee.

All parties are expected to bring any additional evidence that they intend to rely on. For example, Financial Condition Supporters must bring proof of identity and immigration status and would normally be expected to bring bank statements and proof that they can accommodate the detainee (for example, a tenancy agreement).

A First-tier Tribunal judge will grant immigration bail where there is no sufficiently good reason to detain a person and where lesser measures can provide adequate alternative means of control. In deciding whether to grant immigration bail, a First-tier Tribunal judge must have regard to the requirements set out above under the heading   “Considering whether to grant bail”.  A judge may also focus on:

  • reason or reasons why the person has been detained
  • length of detention to date and likely future duration

Additional information on what factors First-tier Tribunal judges normally consider in reaching a decision on bail applications is available in: Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber).

Home Office policy guidance makes it clear that Bail summaries must be full, fair and accurate. The decision maker completing the bail summary must ensure that all relevant issues are covered in the bail summary and must also include:

  • the detainee’s personal details
  • details of the Financial Condition Supporters the detainee has put forward, if any
  • a full immigration history and chronology
  • the reasons for opposing bail, if applicable
  • whether removal directions are set for the detainee to be removed from the UK within 14 days of the bail hearing
  • date of last hearing at which bail was refused, if any
  • the conditions the Home Office wishes to be set in the event that bail is granted
  • a request for the Tribunal to direct management of bail to be transferred to the Secretary of State

If immigration bail is granted by a judge of the First-tier Tribunal it is a matter for the judge to decide on the appropriate bail conditions, having regard to requirements relevant to Conditions of immigration bail and the guidance set out in Guidance on Immigration Bail for Judges of the First-tier Tribunal (Immigration and Asylum Chamber).

Consideration should be given as to whether the case should be transferred to the Secretary of State to manage the bail. If transfer is considered appropriate, the  Presenting Officer(PO) must make oral submissions to the judge requesting this.

If a bail application to the First-tier Tribunal is successful, the Tribunal must notify the detainee in writing and give a copy of the notice to the Secretary of State.

The notice must specify:

  • when the grant of bail starts
  • the bail conditions.

The start of a grant of immigration bail may be specified to be conditional on arrangements stipulated in the notice being in place to ensure that the person is able to comply with the bail conditions. The judge’s clerk will complete and provide the necessary documents to the parties. The clerk is also responsible for notifying the immigration removal centre if the detainee is not present in court.

If a bail application to the First-tier Tribunal is unsuccessful, the Tribunal must notify the detainee in writing and give a copy of the notice to the Secretary of State. The judge’s clerk will complete and provide the necessary documents to the parties.

 

STATUTORY LIMITATIONS ON THE TRIBUNAL’S POWER TO GRANT BAIL

The power of the First-tier Tribunal to grant immigration bail is subject to the following statutory limitations

Detention under paragraph 16(1) of Schedule 2 :

Under paragraph 3(3) of Schedule 10 to the Immigration Act 2016, the First-tier Tribunal must not grant bail to a person detained under paragraph 16(1) of Schedule 2 to the Immigration Act 1971 until the end of a period of 8 days since the person arrived in the UK. This means that the earliest point at which the First-tier Tribunal can grant immigration bail to a person detained under paragraph 16(1) of Schedule 2 to the Immigration Act 2016 is on day 9 of the person’s presence in the UK.

This limitation only applies to people detained under paragraph 16(1) of Schedule 2. It does not extend to those detained under paragraph 16(1A) of the Schedule.

Consent to bail: directions in force for removal within 14 days of bail decision:

Under paragraph 3(4) of Schedule 10, the First-tier Tribunal must not grant bail to a detainee without the consent of the Secretary of State if both of the following apply:

  • directions for the detainee’s removal from the UK are in force (and are not withdrawn)
  • the directions require the detainee to be removed from the UK within 14 days, starting with the date of the decision on whether the person should be granted immigration bail

This means that, if the Presenting Officer provides evidence that removal directions are set for 14 days or fewer away at a bail hearing, the First-tier Tribunal cannot grant immigration bail if the Secretary of State does not consent.

Directions for removal do not have to have been given to or served on the detainee to be in force. Under paragraphs 8-10A or 12-14 of Schedule 2 to the Immigration Act 1971 directions for removal are given to the carrier by which the person is to be removed. This includes removal by way of charter flights. Removal can only take place if directions are properly given in accordance with these paragraphs.

For these purposes, evidence of directions for removal being in force can be demonstrated when any of the following has been served on the detainee and/or the carrier that is required to conduct the removal:

  • IS151D (notice that removal directions have been issued, given to the individual)
  • IS151G (limited notice that removal directions have been issued, given to the individual)
  • IS 83 (directions to remove individual issued to the carrier in port cases)
  • IS 152B (directions to remove individual issued to the carrier in non-port cases)
  • ISE 312 (notice of deportation arrangements)
  • flight manifest (directions given to the carrier for a charter flight)

 

Repeat applications for immigration bail:

Paragraph 12(2) of Schedule 10 requires Tribunal Procedure Rules to secure that if the First-tier Tribunal has decided not to grant a person immigration bail, the Tribunal must dismiss any further application for the person to be granted immigration bail without a hearing if both of the following apply:

  • the application is made within 28 days of the earlier decision
  • the person does not, on the papers, demonstrate to the Tribunal that there has been a material change in the person’s circumstances

 

SECRETARY OF STATE’S AUTOMATIC  REFERRAL FOR CONSIDERATION OF IMMIGRATION BAIL

There is a  legal obligation to refer detainees to the First-tier Tribunal automatically, to be considered for immigration bail.

Paragraph 11 of Schedule 10 imposes a duty on the Secretary of State to arrange a referral to the First-tier Tribunal for a decision on whether to grant immigration bail to a person detained under any of the following:

  • paragraph 16(1), (1A) or 2 of Schedule 2 to the Immigration Act 1971
  • section 62 of the Nationality, Immigration and Asylum Act 2002

The Secretary of State must make the referral to the Tribunal four months after the beginning of the person’s detention (unless the Tribunal has considered a bail application in respect of the person in the interim period) and every 4 months thereafter.

If a person has submitted a bail application himself or herself in the interim period, the four-month period for automatic referral is calculated from the date the Tribunal last considered whether to grant immigration bail to the person.

A reference made by the Secretary of State to the Tribunal, automatically, for consideration of immigration bail is to be treated as a bail application to the Tribunal. If a person withdraws such an application, the four-month period for the next automatic referral is calculated from the date the application is withdrawn.

If a person makes an application for immigration bail to the First-tier Tribunal but the Tribunal is prevented from granting bail because of the Secretary of State has refused consent, that particular consideration of bail by the Tribunal is disregarded in calculating the four-month period for automatic referral.

The duty to arrange consideration of bail before the Tribunal does not apply to those detained pending deportation under paragraph 2(1), (2) or (3) of Schedule 3 to 1971 Act or section 36(1) of the UK Borders Act 2007.

It also does not apply if:

  • section 3(2) of the Special Immigration Appeals Commission Act 1997 (persons detained in the interests of national security) applied to the person
  • the person has given – and has not withdrawn – written notice that he or she does not wish for his or her case to be referred to the Tribunal for consideration for immigration bail in line with the duty

Relevant date for referral :

A referral must be made where 4 calendar months have elapsed since the most recent of the following events, the:

  • start date of the person’s current period in immigration detention
  • First-tier Tribunal last considered whether to grant the person bail
  • person withdrew an application for bail made on their behalf by the Home Office
  • person withdrew notice that they did not wish for the Home Office to refer them to the Tribunal for bail consideration

Automatic referral process :

 Opt in:

If the detainee agrees to opt in to the automatic referral process they will be asked to complete the Tribunal bail application form (B1) but not to sign the form. The Presenting  Officer’s Unit(POU) will update the application date.  Forms B1 and BAIL 502 (Automatic Bail Referral Covering Letter) will be sent to the POU who will forward them to the hearing centre and the case will be dealt with under the standard application process.

If the detainee signs the B1 Tribunal bail application form, the Tribunal may take this as an actual application for bail by the detainee and may not treat it as a referral from the Home Office. In such a case, the BAIL 502 should not be sent; instead the signed B1 should be sent to the POU who will forward to the Tribunal as a normal application for bail

Opt out:

If the detainee wishes to withdraw from the automatic referral process they should complete the BAIL 501 form accordingly and return this to the decision maker.  If the detainee changes their mind they can opt back in to the process using the BAIL 501 form.

No response:

If the detainee refuses to cooperate with any part of the process and no B1 or BAIL 501 form is received within 5 days of their being notified, the decision maker must update CID notes and send an Automatic Referral Covering Letter – no response

(BAIL 503) to the Tribunal requesting a hearing and send the documentation to the POU. The POU will send the BAIL 503 to the hearing centre and the case will be dealt with under the standard application process but without input from the detainee.

Auto-referral and accommodation:

The detainee will need to detail on the application where they plan to live or if they have no fixed accommodation. If they are a failed asylum seeker or have a current asylum claim and wish to apply for support under section 4(2) or section 95 of the Immigration and Asylum Act 1999, they will need to do this themselves.

If the Secretary of State is proposing a residence condition (for example, to avoid a breach of the person’s ECHR Article 3 rights), the decision-making team will need to provide this information on the referral. If the individual will be unable to support themselves, the decision-making team will need to arrange the accommodation.

 

 GENERAL IMMIGRATION BAIL CONDITIONS

The grant of immigration bail to a person must be subject to at least one condition. The conditions imposed must:

  • enable the Home Office to maintain appropriate levels of contact with the individual
  • reduce the risk of non-compliance, including absconding
  • minimise potential delay in the Home Office becoming aware of any noncompliance

Home Office Decision makers may also impose a financial condition but this must be in addition to – and attached to – one or more of the above conditions.  When setting a condition of immigration bail, the Secretary of State must be satisfied that the individual will be able to comply with that condition from the start of a grant of immigration bail.  The number and type of immigration bail conditions to impose will vary depending on the circumstances of the individual case.

Appearance before the Secretary of State  or the First Tier Tribunal:

A condition requiring the person to appear before the Secretary of State or the First-tier Tribunal at a specified time and place. This is for a one-off event and not for a regular reporting condition such as attending travel documentation or other application-related interviews at the Home Office or a place of immigration detention. A condition requiring appearance before the Tribunal at a required time and place would usually be necessary where a person has on-going proceedings before the Tribunal.

Restriction  on working, occupation or studies:

A condition restricting the person’s work, occupation or studies in the UK. If the person being granted immigration bail does not have any leave to enter or remain in the UK, it will be considered appropriate to impose a bail condition restricting work and studies in the majority of cases.   It may also  be appropriate to impose an immigration bail condition that restricts a person’s work, occupation or studies if that person had leave permitting these activities but that leave has been curtailed. Home Office policy guidance also states that it may  be appropriate for European Economic Area citizens who are granted immigration bail pending deportation action. Where dealing with a family group,  Home Office decision makers  may specify that a child may only attend a named school (the one they already attend or will be attending) to ensure a family stays within a particular location.

Residence condition:

A condition about the person’s residence: It will not usually be necessary to impose a residence condition. A residence condition should only usually be imposed where residence at a particular address is necessary to enable a high level of contact or mitigate against a serious risk of noncompliance. This is more likely where the person poses a high risk of harm to the public on the basis of criminality or in cases concerning national security. This does not mean that people granted immigration bail do not need to provide a contact address and they can, for example, be subject to a condition which requires them to keep the Home Office informed of their contact details, including their current place of residence.

Asylum seekers and failed asylum seekers accommodated by the Home Office under section 95, 98 and 4(2) of the Immigration and Asylum Act 1999 do not need to be subject to a residence condition unless there are specific reasons why they must live at a particular address. Where this is the case, decision makers may impose a residence condition specifying that they live at “an address which will be separately notified to you by your accommodation provider”.

Decision makers must not apply a residence condition to a grant of immigration bail if both the following apply:

  • -the individual is disqualified from renting – individuals who require leave to enter or remain but do not have it are disqualified from renting unless they have permission to rent (permission to rent currently only applies if the address is in England)
  • the address in question is ‘private rented property’, that is, accommodation covered by a residential tenancy agreement as defined by section 20 of the Immigration Act 2014 (this means that rent must be being paid for the accommodation, although this rent does not have to be the market rate nor paid by the disqualified person)

Home Office Decision makers must also not apply a residence condition to a grant of immigration bail if the Home Office is serving a civil penalty Referral Notice or Notice of Letting to a Disqualified Person (NLDP) on a landlord at the address in question.

When considering if it is appropriate to set a residence condition, decision makers may also wish to consider any landlord civil penalties or NLDPs served on the landlord of the property in question as relevant factors in reaching a decision.

When considering whether to set a residence condition requiring an individual to live in private rented property, decision makers must consider any case against the Permission to rent criteria which set out where the Home Office will grant permission to rent to migrants who do not have a right to rent. If the person meets one or more of the criteria, they may be granted permission to rent in accordance with the guidance.

Permission to rent will normally be granted to individuals who have been granted bail by an immigration tribunal or the courts, which contains a residence condition and/or electronic monitoring condition.

Reporting to  the Secretary of State  or other person specified:

A condition requiring the person to report to the Secretary of State or other person specified: A reporting condition, if imposed, should normally require a person to report to an immigration reporting centre. The Home Office has 14 immigration reporting centres in the London and South, North, Midlands and Wales, and Scotland and Northern Ireland regions. Decision makers must not set a reporting condition requiring a person to report to a police station if an immigration reporting centre is available. If reporting to a police station is considered essential the frequency will need to be agreed between the Reporting and Offender Management and the police station.

If the case remains unresolved after 3 years and the person has complied with the conditions of their immigration bail, reporting conditions may be lifted (unless removal is imminent), following consultation with the Home Office caseworker). If a person fails to attend a reporting event, the police will report this to the (ICE) team for appropriate action. The decision maker must inform the appropriate police station when a case is completed.

Electronic monitoring condition:

An  electronic monitoring condition: A person may be granted immigration bail subject to an electronic monitoring condition if justified by the circumstances of the case.

An electronic monitoring condition is a condition that requires the bailed person to cooperate with any arrangements the Secretary of State specifies for detecting and recording by electronic means one or more of the following. The bailed person’s:

  • location at specified times, during specified periods of time or while the arrangements are in place
  • presence in a location at specified times, during specified periods of time or while the arrangements are in place
  • absence from a location at specified times, during specified periods of time or while arrangements are in place

The arrangements with which the person must cooperate may include the bailed person:

  • wearing an electronic monitoring device and facilitating arrangements for its detection, which may include installation of electronic monitoring equipment at a specified address
  • making specified use of an electronic monitoring device
  • communicating in a specified manner and at specified times or during specified periods
  • allowing people other than the Secretary of State or the First-tier Tribunal to exercise electronic monitoring functions

The electronic monitoring(EM) period must be no longer than the minimum period necessary to maintain the continued operation of the electronic monitoring system (usually a short period once each month), unless a separate curfew condition is set.

EM is more likely to be appropriate as a condition of bail where a person poses a high risk of harm to the public on the basis of criminality and/or in cases concerning national security.

EM is less likely to be appropriate in any case where a person is granted immigration bail from a position of liberty (for example, on arrival at the border or submission of an in-country application).

EM must not be imposed on a person under the age of 18.

Currently, electronic monitoring cannot be imposed as a condition of bail if a person does not have fixed accommodation. This is because of the use of radio frequency tags where the equipment needs to be set up in a fixed location.

Under current arrangements, EM can only be implemented in practice if accompanied by a curfew requirement. If the First-tier Tribunal grants bail with an EM condition but no curfew condition, it will not be possible to install EM equipment under current arrangements. In this situation, if the First-tier Tribunal has not transferred bail management to the Secretary of State, the decision maker will need to write to the First tier Tribunal to request a variation in conditions to include a curfew requirement, explaining that the electronic condition cannot be implemented without a curfew. If the First-tier Tribunal refuses to impose a curfew, the electronic monitoring  condition cannot be activated while the person remains on First-tier Tribunal bail.

If the First-tier Tribunal has transferred bail management to the Secretary of State, the Home Office decision maker will need to assess whether a curfew is justified on the facts of the case. If it is, the decision maker must give the bailed person an opportunity to make representations about the provisional curfew before bail conditions are varied to include a curfew condition.

However, there will be some cases that, although falling into the above criteria, may not be suitable for an EM condition. Examples of this could include:

  • pregnant women and women who have recently given birth
  • the elderly
  • where there is strong evidence to suggest that an electronic monitoring condition would cause serious harm to the person’s health
  • people whose claim to have been tortured has been accepted by the Home Office or First-tier Tribunal – for these cases alternative arrangements would have to be made

This is not an exhaustive list: decision makers must consider the individual circumstances of each case.

In Foreign National Offender (FNO) cases, including Nexus,  where an FNO applies for immigration bail or the Home Office is considering whether to grant immigration bail, the decision maker must consider if the FNO is a suitable candidate for electronic monitoring as part of their conditions of bail in the event that bail is granted.  Criminal Casework decision makers must always request both an electronic monitoring condition and a curfew condition if the FNO has committed certain offence

Such other immigration  bail condition as seen fit

Under paragraph 2(1)(f) of Schedule 10, a person may be subject to ‘such other conditions as the person granting the immigration bail thinks fit’.

Any such condition must be reasonable and it must be necessary to meet the purpose of the grant of the immigration bail. For example, decision makers may require a person granted immigration bail to notify the Home Office of a change of circumstances, or require them to surrender their passport if there is reason to believe that the person might deface or destroy the document to obstruct return to the country of origin or country from which the person arrived.

Another example is the use of curfews. These may be used to mitigate risk to the public if the person being granted bail poses such a risk. The length of the curfew and time of day to which it applies must be determined on the facts of the individual case and must be proportionate.

 

CURFEWS: IMMIGRATION BAIL CONDITION

Criminal cases and curfews:

In Criminal Casework cases, Home Office decision makers must always request a curfew condition (together with an electronic monitoring condition where radio-frequency tags are used) if a foreign national offender (FNO) has committed one of the following offences:

  • Homicide: murder or attempted murder , manslaughter
  • Sexual offences: any sex offence, including rape or attempted rape
  • Offences against the person: violent crime (including grievous bodily harm, malicious wounding and actual bodily harm)
  • Other serious crime: terrorist offences,  conspiracy (defraud, murder, kidnap),  kidnapping, including attempted kidnapping, armed robbery , arson with intent to endanger life,  any offence where the victim is a child

Additionally, it may also be appropriate to request a curfew condition in cases where the offence is not on the list above if, on the facts of the case, the decision maker considers that the FNO poses a high risk of harm, reoffending or absconding. In such cases, the decision maker must also consider whether the individual meets the criteria for exceptional circumstances to receive Secretary of State support if they do not have accommodation.

In every request, decision makers must clearly identify and fully describe the risk of harm and/or risk re-offending or absconding posed by the FNO. The decision maker’s consideration process must demonstrate why a curfew condition is necessary in the particular circumstances of the case including:

  • the intended aim of the curfew
  • risks of not applying the curfew
  • what the curfew can achieve that cannot be realised by other immigration bail conditions
  • proposed timing and length of curfew, and how these are linked to achieving the intended aim

In cases identified as suitable for a curfew condition, the decision maker must, in the bail summary (BAIL 505) or referral for Secretary of State bail (BAIL 407) do the following:

  • request an EM immigration bail condition
  • state clearly the curfew period or periods sought
  • set out the reasons for requesting the curfew, and the requested length and timing (its aim, risks if curfew is not imposed)

It will then be the decision of the First-tier Tribunal or Strategic Director, as appropriate, to determine if the requested curfew condition is proportionate and justifiable. If it is concluded that the requested curfew condition is not proportionate or justifiable in the circumstances of the case, the request will be refused.

The decision maker must give the person to be granted bail an opportunity to make representations about a provisional curfew before the curfew condition is put in place.

Non-foreign national offenders  and curfews:

It is not usual practice to seek a curfew condition in a non-foreign national offender  case. However, there may be occasions where the individual is considered to be of such risk of absconding and to pose such risk of harm that a curfew condition would be necessary and proportionate. It is also possible for the First-tier Tribunal to impose a curfew condition on its own initiative (that is, where this has not been requested by the Home Office).

Review of curfews:

It is essential that all decision makers ensure that there is regular review of curfew conditions.  All decision makers must review the curfew condition in any case allocated to them:

  • on a quarterly basis
  • when they receive any representations on the matter, including requests to vary the condition, from the individual or a person acting on their behalf
  • whenever information on a breach of the condition is received

Decision makers must use the relevant review pro forma to carry out reviews and must consider:

  • the continued necessity of the curfew – whether a curfew is still necessary or if the circumstances changed sufficiently that a curfew no longer serves its intended purpose
  • the proportionality of the curfew – whether the current curfew periods are still appropriate both in terms of timing and length, whether there is a basis on which to alter the curfew, for example if family circumstances have changed significantly
  • any challenge to the curfew – whether there has been a challenge to the curfew from the individual or legal representatives, whether an argument has been made and how strong this is

The purpose of the review is to ensure that the individual remains suitable for a curfew condition and any curfew continues to be necessary and proportionate in light of the facts at the date the review is undertaken.

If a review is conducted as a result of representations by, or on behalf of, an individual, the decision maker must provide a comprehensive response to the representations within 20 working days of the date on which the representations were received. There is no requirement to share the outcome of the other curfew reviews (that is, any carried out without representations by or on behalf of the individual). However, the outcome of curfew reviews may, as required, be shared with the individual at a future date as part of any response to further challenge or litigation.

 

FINANCIAL CONDITIONS: IMMIGRATION BAIL CONDITION

A financial condition may be attached to a grant of immigration bail. A financial condition is a condition that requires the person granted bail, or another named person (Financial Condition Supporter), to pay a sum of money (payment liability) if the person granted bail fails to comply with one or more of the other condition or conditions attached to the grant of immigration bail.

A financial condition cannot be imposed in isolation. It may be imposed only if it is thought to be an appropriate means of ensuring that the bailed person complies with at least one of the other conditions of immigration bail. For example, a financial condition of £500 for failing to comply with a reporting condition plus a sum of £500 for failing to comply with a condition relating to work.

The decision maker  must specify the following when imposing a financial condition:

  • the sum of money required to be paid (payment liability)
  • when the sum of money is to be paid
  • the form and manner in which it is to be paid

The use of a financial condition to secure compliance with other conditions of immigration bail is flexible. It may be a single sum imposed against one or more individual condition so that the specified sum of money becomes payable if that particular condition is breached, or it may be different sums imposed against different conditions.

A  decision maker  must view the sum of money to be paid as part of a financial condition in relation to the means of the person to be bailed or the Financial Condition Supporter. The decision maker  must set payment liability at a level that will act as a substantial incentive to the person to comply with the relevant other condition or conditions of immigration bail.

The decision maker  must assess each case on its own merits.  They should not normally apply a financial condition in a sum less than £500 to a bail condition. This is because, if this went to debt recovery, the recovery itself would cost more money than the actual debt.

The Financial Condition Supporter:

During a foreign national offender’s induction into immigration detention, a person acting on behalf of the Secretary of State must give them form BAIL 403 and ask for information about possible Financial Condition Supporters in the event of bail being granted.

A Financial Condition Supporter must satisfy all of the following:

  • be aged over 18 and settled in the UK (a person on immigration bail or with limited leave will rarely be acceptable as that person’s own stay may be limited/curtailed)
  • have a personal connection with the person, or be acting on behalf of a reputable organisation which has an interest in the person’s welfare
  • have enough money or disposable assets (clear of existing liabilities) to be able to pay the sum due if the person breaches a relevant immigration bail condition
  • be a homeowner or at least well-established in the place of residence
  • be free of any unspent criminal convictions (see Rehabilitation of Offenders Act guidance) – but see below  on unspent convictions
  • not to have come to adverse notice in connection with other immigration matters, including, in particular, previous immigration bail cases

A Financial Condition Supporter with an unspent conviction may still be suitable – the gravity with which a particular offence is viewed, and the consequences for the suitability of the Financial Condition Supporter, will be a matter for the discretion of the Secretary of State

Investigating the Financial Condition Supporter:

The financial and general standing of all prospective Financial Condition Supporters should be investigated as fully as possible.

The decision maker must give them a BAIL 306 notice setting out what is required when standing as a Financial Condition Supporter. As such, they will be asked to  produce evidence of their identity and financial position.  Home Office  policy guidance states that care should be taken over accepting bank books, statements of account and other similar evidence at face value, as it may be that sums of money have been deposited temporarily to create a false picture of the holder’s means. A record of deposits over a period (minimum of 3 months) is a useful indication of financial status.

All the usual immigration checks must be undertaken by the decision maker.

Immigration Intelligence may be consulted in appropriate cases (for example, where it is suspected that a Financial Condition Supporter may previously have been involved in facilitation or racketeering activities).

Where the Secretary of State is granting immigration bail, a Financial Condition Supporter will need to sign a BAIL 301 notice setting out the other condition or conditions of immigration bail to which the financial condition is attached.

Where the Tribunal is granting immigration bail, the Home Office decision maker must record information on the Financial Condition Supporter checks done and their outcome on the bail summary BAIL 505, including where no opportunity to conduct checks has been given

Financial condition: recovery

A payment liability under a financial condition is to be paid to the Secretary of State if either of the following applies, the:

  • Secretary of State granted the immigration bail
  • First-tier Tribunal granted the immigration bail but has directed that the power to vary the person’s bail conditions is to be exercisable by the Secretary of State

In all other cases, the payment liability is to be paid to the Tribunal.

The person liable for payment must be given the opportunity to make representations regarding the alleged breach.

 

TRAVEL EXPENSES AND  BAIL CONDITIONS

If there are exceptional circumstances for doing so, the Secretary of State may make a payment to a person on immigration bail to cover the person’s cost of travel to comply with a bail condition. An example of exceptional circumstances that may justify exercising the power to pay travel expenses is where the individual is subject to a reporting condition but the Secretary of State is unwilling to vary that condition to move it to a closer location to where the person is living and they are unable to afford the additional expense.

 

ASYLUM CLAIMAINTS AND BAIL

An illegal entrant (including an overstayer and someone determined to have entered using deception) who is discovered may claim asylum before a decision is taken to serve a liability to removal notice (for example a RED.0001). Such a person cannot be removed before their asylum claim is decided or decided and certified. For this reason, the person must be issued with form ILL EN 101 setting out their immigration status and their liability to detention instead of a liability to removal notice.

For Border Force cases, officers must use the IS81 instead of an ILL EN 101. Border Force officers must follow the clandestine guidance in immigration guidance for Border Force.

The person should be issued with a notification of grant or variation of bail form (BAIL 201) with at least one condition set unless detention is appropriate and considered necessary.

An individual who claims asylum in the United Kingdom while they have valid leave to enter or remain in another category cannot be placed on immigration bail. They may be subject to conditions under section 71 of the Nationality, Immigration and Asylum Act 2002 instead. Section 71 allows such a person to be made subject to such conditions as may be placed on a grant of immigration bail. Such persons should be served with a Notice of Restriction to a person who has made an incountry in-time claim for asylum (IS.248).

A person who breaches conditions under section 71 will become liable to detention under paragraph 16 of Schedule 2 to the Immigration Act 1971 and may then be detained under that provision or granted bail under Schedule 10.

 

SECTION 3C LEAVE AND BAIL

A person   may have previously had leave which was cancelled by an immigration decision and that decision has been withdrawn and is being reconsidered.

A person may have leave extended by section 3C of the Immigration Act 1971 while an in-time application is being considered. At the point their application is decided, subject to any appeal rights or right to administrative review, the statutory extension of their leave will cease. They will therefore be a person who is liable to detention under paragraph 16 of Schedule 2 to the Immigration Act 1971.

There are occasions where  the Home Office  withdraw the decision that brought about the end of the statutory extension of the person’s immigration leave. This may be due to representations being made or because the Home Office  agree to reconsider the decision in settling a judicial review. When  the Home Office  withdraw a decision, they  will usually have to remake it and where  they cannot immediately do that the affected person should normally be granted immigration bail.

A Home Office  decision maker  must use form BAIL 209 for granting bail in these circumstances.

When bail is granted in these circumstances, the person should normally be granted bail subject to the same conditions that applied to their previous grant of leave. For example, if the person could previously work, they should normally be granted bail with a condition that allows them to work. Where the previous condition of work specified that they could only work for a specified employer, the condition of bail should recreate that. Where the person could previously study and seeks to resume their studies, they should normally be granted bail with a condition that allows them to study.

In addition, in agreeing to settle litigation the Home Office  may agree to the person being put on certain conditions and where  that have done that decision makers  must reflect that in the conditions that they  set.

Where there was no previous restriction on where the person could live,  the decision  maker  should ensure that the person is permitted to rent.

Where leave is granted following reconsideration of the decision, bail will end.  Where leave is not granted the person remains someone who is liable to detention under paragraph 16 of Schedule 2 to the Immigration Act 1971. Refusal of leave is a material change of circumstances and the decision maker must review the conditions of bail as the previous conditions are unlikely to continue to be appropriate. In particular, it will not usually be appropriate to allow a person to continue to have a condition that allows them to work in these circumstances.

 

VARYING IMMIGRATION BAIL CONDITIONS  AND TRANSFER OF BAIL  MANAGEMENT TO THE SECRETARY OF STATE

Varying conditions of bail:

The power to vary the condition or conditions of immigration bail is in paragraph 6 of Schedule 10. This provides for any of the conditions of immigration bail granted to a person to be amended or removed, or for one or more new conditions from immigration bail conditions: general to be imposed on the person.

The power to vary immigration bail conditions can be exercised by the Secretary of State in either of the following circumstances:

  • the grant of immigration bail was by the Secretary of State
  • the grant of immigration bail was by the First-tier Tribunal but the Tribunal has explicitly directed the power can be exercised by the Secretary of State

The power to vary immigration bail conditions can be exercised by the First-tier Tribunal if the immigration bail was granted by the Tribunal and it has not directed that the power to vary bail conditions can be exercised by the Secretary of State.

If the Secretary of State exercises the power to vary immigration bail conditions, the decision maker must issue a grant/variation of bail form (BAIL 201) setting out the terms of the variation. If there is a financial condition attached to one of more of the varied conditions, the decision maker must notify any Financial Condition Supporter and ask them to sign a new Financial Condition Supporter agreement (BAIL 301).

If the Secretary of State refuses a request to vary immigration bail conditions, the decision maker must issue a notification of refusal of request to vary bail conditions form (BAIL 406).

Where the Home Office applies to the First-tier Tribunal for a variation of bail conditions the:

  • decision maker completes the B3 (Variation of Bail Conditions and Transfer) and sends it to the Presenting Officer’s Unit (POU)
  • POU sends the completed B3 to the Tribunal for consideration
  • Tribunal sends the completed B3 to the bail party requesting a written response

Where the bailed person applies for a variation of bail conditions the:

  • applicant must complete form B2 (Tribunal’s Application for Variation form) and send it to the Tribunal
  • Tribunal notifies POU and requests a response from the Home Office
  • POU contacts decision maker to confirm whether the Home Office agrees or not – the decision maker has 7 days to respond
  • decision maker will then complete the Home Office response to the variation request (BAIL 304) and forward to the POU
  • PO will send the above notice to the Tribunal for consideration, together with any request to transfer management of bail to the Secretary of State.

Where both sides consent to the variation requested, the Tribunal will normally consider the request on the papers. The Tribunal will send the bail decision to the bail party and the decision to vary/to transfer bail to the POU. POU then inform the decision maker of the outcome.

If one side disagrees, the Tribunal will write to the bailed person and the POU, issuing an oral hearing notification. The POU will be notified of the listing and will inform the decision maker. The hearing follows the normal bail process. POU will notify the decision maker of the outcome.

If the First-tier Tribunal exercises, or refuses to exercise, the power to vary immigration bail conditions, the Tribunal must notify the person who is on immigration bail, in writing, and provide a copy of the notice to Secretary of State

Electronic monitoring condition: limitation on variation:

The First-tier Tribunal may not exercise the power to amend an electronic monitoring condition imposed on a person granted immigration bail from detention, or liable to be detained, under

  • paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation)
  • section 36(1) of the UK Borders Act 2007 (detention pending automatic deportation)

Transfer of bail from the Tribunal to the Secretary of State:

In any case where the Tribunal has directed that the Secretary of State can exercise the power to vary bail, the power can no longer be exercised by the Tribunal and the Tribunal cannot consider an application to vary conditions thereafter. The decision whether to direct that the power to vary conditions of bail should be given to the Secretary of State rests with the First-tier Tribunal where the Tribunal grants immigration bail.

The Secretary of State cannot vary any condition of bail if the Tribunal has not so directed and so should consider asking the Tribunal to direct that bail be managed by the Secretary of State:

  • in the bail summary (BAIL 505)
  • at the bail hearing
  • where the Secretary of State contacts the Tribunal, using form B3, seeking to vary the condition or conditions of bail – for example a change to a reporting requirement
  • where the Secretary of State informs the Tribunal, using BAIL 303 (Breach of Bail Conditions Summary), that the individual has failed, is failing, or is likely to fail to comply with a condition of bail

If the Tribunal grants bail with a financial condition but agrees to transfer management of bail to the Secretary of State, the Home Office decision maker will need to inform any Financial Condition Supporter of the appropriate method of payment using form BAIL 305 (Payment information).

If the Tribunal has set a financial condition and has directed that bail can be varied by the Secretary of State, then it is for the Secretary of State to recover any payment liability if the bailed person breaches conditions to which the financial condition is attached.

If the Tribunal does not direct that the Secretary of State manage the case, then the Tribunal keeps complete control, including any decision to vary the conditions, dealing with any breach of conditions and recovering any payment liability under a financial condition.

 

BAIL ADDRESS ACCOMODATION AND SECRETARY OF STATE’S SUPPORT

There may be circumstances where a person is granted immigration bail subject to a residence condition requiring them to live at a specified address, and the person would not be able to support himself or herself at that address without the assistance of the Secretary of State.

Under paragraph 9 of Schedule 10, the Secretary of State may provide, or arrange for the provision of, facilities for the person’s accommodation at that address to enable the bail condition to be met, but only in exceptional circumstances.

The exceptional circumstances are:

SIAC cases –  people granted bail by the Special Immigration Appeals commission (SIAC), where exceptionally strict bail conditions, including a residence condition, are imposed to control the risk posed by the individual

Harm cases  – these are cases involving:

  • people – including Foreign National Offenders (FNOs) – who are granted bail and who are currently assessed by Her Majesty’s Prison and Probation Service (HMPPS) as being at a high or very high risk of causing serious harm to the public
  • FNOs at high risk of harmful reoffending against an individual – for example, offences of domestic burglary, robbery, sexual assaults and violence – who are assessed using the Offender Group Reconviction Scale (OGRS) with a minimum score of 70% where that person has nowhere suitable to live in accordance with their probation licence and/or multi-agency public protection arrangements (MAPPA), for a limited period, or otherwise at the discretion of the Home Secretary in the interest of public protection.

Accommodation support is provided for a limited period only, whilst the supported person makes arrangements either to leave the UK or to move to alternative accommodation. This period is expected to be 3-4 months, unless there are exceptional circumstances to justify continuing it, for example:

  • European Convention on Human Rights – article 3 cases
  • public protection issues
  • the person is compliant with the returns process and is likely to be returned within a reasonable timescale

Right to Rent 

People who have been granted immigration bail by the Tribunal subject to a residence condition and/or electronic monitoring condition are exempt from Right to Rent requirements. These people therefore have the option to secure accommodation at their own expense.

Provision of accommodation foreign national offenders

In the case of foreign national offenders (FNOs) still serving prison sentences, Criminal Casework decision makers will work with Offender Managers to prepare a release plan. This will consider, if the subject were to be granted immigration bail either on or after their custodial end date the following:

  • whether they will need Home Office supported accommodation
  • what the accommodation requirements might be
  • whether the individual can support themselves in the accommodation
  • whether they meet the exceptional circumstances criteria

Where a person applies for bail to the Tribunal and the Home Office considers that a residence condition is necessary were bail to be granted, the decision maker must note this in the bail summary , along with information as to the type of accommodation required and the reasons why this is necessary.

Foreign National  Offenders  granted bail whilst still under prison licence will need to have their proposed bail address approved by HMPPS (or devolved equivalents in Scotland and Northern Ireland). The agreed timeframe for HMPPS to consider an address is approximately 9 weeks. The police and other related partners may also have an interest in approving addresses for those who are not under licence.

Foreign  national offenders  receiving support because they meet the harm criteria will require Level 3 accommodation (Complex Bail Dispersal Accommodation). For vulnerable persons who are not foreign national offenders, the suitable accommodation level will vary according to the individual’s needs.

Where there may be a delay in securing appropriate accommodation for a person who is being provided with Home Office assistance, paragraph 3(8) of Schedule 10 provides that the commencement of a grant of bail may be specified to be conditional on arrangements specified in the grant of bail notice being in place to ensure that the person is able to comply with the bail conditions.

Where a person requests bail accommodation but the decision maker does not consider they fit the criteria above, the request must be rejected using the appropriate response in the Refusal to Provide Accommodation form (BAIL 203).

 

ADMINSTRATIVE PENALTIES :NON COMPLIANCE WITH IMMIGRATION BAIL

Breach of a bail condition: Secretary of State:

A person may breach one or more conditions of bail. This could, for example, be by working where this is prohibited or by failing to attend a reporting event at the time and date specified.

Where there is no financial condition and the Secretary of State intends to take action in response to the breach, by varying bail conditions, detaining, arresting for the criminal offence, the individual must be notified in writing of the alleged breach using form BAIL 204.

The BAIL 204 gives the individual the opportunity to make representations against whether a breach occurred or to provide a reasonable excuse for the breach. The individual has 10 working days to respond. Any representations a person makes about a breach of bail conditions will not affect the person’s case progression, including detention and removal – the entire breach process runs parallel to case progression.

The BAIL 204 notice must also be served if the breach is likely to result in the refusal of leave under the Immigration Rules or if the current bail conditions prohibit work but the individual submits evidence of employment as part of their application for leave.

If the individual does not provide any information in response to the BAIL 204 notice, or the decision maker concludes that breach action is necessary having considered the information provided, the decision maker may:

  • vary the conditions of the person’s immigration bail
  • arrange administrative arrest for breach of immigration bail, if appropriate 

Breach of a bail condition: Tribunal :

If a person on Tribunal bail breaches any condition of bail, the Home Office must notify the First-tier Tribunal. Where the Home Office decision maker receives notification of a breach they must complete and send both of the following:

  • Breach of Bail Conditions Summary (BAIL 303)
  • Variation of Bail Conditions and Transfer Request (B3)

to the Presenting Officers Unit (POU). The Home Office will also request transfer of bail to the Secretary of State unless the breach involves a financial condition.

The POU notifies the Tribunal by sending the BAIL 303 and B3, and, if applicable, the Tribunal will list the hearing and notify parties of the hearing date. The Presenting Officer (PO) will attend the hearing, where the bailee and any Financial Condition Supporter will be given the opportunity to respond to the breach allegation. The PO will notify the decision maker of the hearing outcome.

Recovery of payment under financial condition:

If a person fails to comply with a condition of bail to which a financial condition is attached, the relevant sum specified under the financial condition will become payable by the bailed person and/or the Financial Condition Supporter.

Any sum specified in the financial condition does not become payable unless the Secretary of State or First-tier Tribunal, as relevant, gives the person liable to make the payment an opportunity to provide reasons for not being required to pay the sum of money.

Where the person is granted bail by the Secretary of State, or where the Tribunal has directed that the Secretary of State has power to vary conditions of bail, the decision maker must serve a BAIL 208 on any person who is liable for the payment (either the bailed person or any Financial Condition Supporter) informing the recipients of the alleged breach of condition or conditions so that representations may be made in writing to the Home Office. The person liable to make the payment has 28 days to submit representations against payment and the Home Office must then respond within 10 working days of the date of receipt.

If the Home Office accepts the representations made against payment liability, the individual and the Financial Condition Supporter will be notified in writing that no further action is being taken at this time.

If the Home Office does not accept the representations made against payment liability or no representation is received, then financial recovery action will begin.

Initiating financial recovery action:

In any case where the decision maker decides to seek recovery of payment liability under a financial condition, the decision maker must

  • vary one or more conditions of the person’s continuing immigration bail
  • send any Financial Condition Supporter a new BAIL.301 to sign and return
  • issue a new BAIL 201 to the bailed person

This is necessary to ensure that the parties are aware that:

  • the bailed person remains subject to bail conditions even though a breach process is ongoing
  • any further breach or breaches may result in new penalties

To initiate financial recovery action, the decision maker must complete BAIL 307 and refer it to the Compliance Monitoring and Workflow Team (CMWT) within Criminal Casework. CMWT will then update the Civil Penalty Compliance Team (CPCT) spreadsheet.

In Criminal Casework cases, it will not be necessary for Criminal Casework decision makers to complete and refer the BAIL 307 as instructed above. CMWT will initiate the financial recovery action for Criminal Casework following a suspected breach.

Once CMWT updates the CPCT spreadsheet, CPCT will issue form BAIL 302 (Penalty Notice) to the individual and/or Financial Condition Supporter. The Financial Condition Supporter is given 10 working days to make the payment in accordance with the information provided in the BAIL 201 (notification of grant/variation of immigration bail), the BAIL 301 (Financial Condition Supporter agreement), or the BAIL 305 (payment information) forms. Where no payment is received within the appropriate timescale, then the payment liability may be recovered.

The payment recovery is then managed by Home Office Shared Services within a 60-day three-letter process. If payment is still not received, the debt is then transferred to the Home Office Debt Management Team where it is allocated to debt recovery agents via the Debt Market Integrator. Enforcement action may be taken if no payment is received.

In England and Wales, a payment liability under a financial condition is recoverable as if it were payable under an order of the county court in England and Wales.

In Scotland, a payment liability under a financial condition may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court or any sheriffdom in Scotland.

In Northern Ireland, a payment liability under a financial condition is recoverable as if it were payable under an order of a county court in Northern Ireland.

Administrative arrest   and search and arrest with warrant

The power of an immigration officer or a constable to arrest a person on immigration bail, without warrant, is in paragraph 10 of Schedule 10 to the Immigration Act 2010. This provides for an immigration officer or a constable to arrest a person on immigration bail if the immigration officer or constable has reasonable grounds for:

  • believing that the person is likely to fail to comply with a bail condition
  • suspecting that the person is failing, or has failed, to comply with a bail condition

If an appropriate judicial officer is satisfied that there are reasonable grounds for believing that a person liable to be arrested for breach of immigration bail is to be found on any premises, the judicial officer may issue a warrant. The warrant would be one authorising any immigration officer or constable to enter, by reasonable force if necessary, the premises named in the warrant in order to search for and arrest the person.

For this purpose, an appropriate judicial officer means, in relation to:

  • England and Wales, a justice of peace
  • Scotland, the sheriff or a justice of peace
  • Northern Ireland, a lay magistrate

Action following arrest:

A person arrested under paragraph 10 for breach of immigration bail must, as soon as is practicable after arrest, be brought before the relevant authority, that is:

  • Secretary of State, if the grant of immigration bail was by the Secretary of State or the Tribunal has directed that the power to vary the person’s immigration bail conditions is exercisable by the Secretary of State
  • First-tier Tribunal in all other cases

Until such time as the person is brought before the relevant authority, the person may be detained under the authority of the Secretary of State.

Where the arrested person had been granted bail by the First-tier Tribunal, the decision maker must also follow the process for notifying the Tribunal of the suspected breach.

Once the person is brought before the relevant authority, the relevant authority will decide whether the arrested person has broken or is likely to break any of the immigration bail conditions. If the answer is yes, the relevant authority must do one of the following:

  • direct the detention of the person under a provision mentioned in Eligibility for immigration bail under which the person is liable to be detained
  • grant the person immigration bail subject to the same or different conditions, which must comply with the requirements set out in Conditions of immigration bail

However, if the relevant authority decides that the arrested person has not broken, and is not likely to break any of the immigration bail conditions, the relevant authority must grant the person immigration bail subject to the same conditions that applied prior to the person’s arrest. A grant of bail in this situation must comply with the requirements set out in Conditions of immigration bail and it does not prevent a subsequent exercise of the power to vary the conditions of the immigration bail.

Non-compliance with immigration bail: criminal penalties

Under section 24(1)(h) of the Immigration Act 1971, a person on immigration bail, within the meaning of Schedule 10 to the Immigration Act 2016, who breaches a bail condition within the meaning of that Schedule, without reasonable excuse, commits a criminal offence. Such a person is liable to prosecution, and if convicted, may be subject to a fine and/or up to 6 months’ imprisonment

 

 

 

 

 

 

 

 

 

 

 

 

 

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