Resisting Deportation: Being a father to British or settled children simply not enough reiterates Court of Appeal

deportedThe Court of Appeal  is clearly at pains  to ensure that both tiers of the Tribunal get the law right  when  considering appeals in relation to foreign national criminals.  As acknowledged in the recent case of The Secretary of State for the Home Department v AJ (Zimbabwe) [2016] EWCA Civ 1012, There has been a plethora of cases which have come to this court concerning the application of article 8 to foreign criminals and in particular seeking to clarify the scope of the residual “exceptional circumstances” concept. The principles of law are well established and not in dispute in these appeals and therefore I will do no more than summarise the effect of the leading authorities”.


Apart from reiterating the  relevant principles, the Court of Appeal also  emphasized that the general framework of Strasbourg law as established in cases such as Maslov cannot simply be slavishly applied  as this  fails to view the Article 8 assessment through the lens of the Immigration Rules and will cause Tribunals to go astray, as  occurred in AJ (Zimbabwe).

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A  readily accessible and detailed  Manual which  manoeuvres  through the processes  in relation to how and when  certain persons  may be encountered by the Home Office via  home office  enforcement visits, raids, through to absconder processes, search and seizure powers of the Home office, arrest and restraint  powers of the Home Office,  the types of Home Office interviews conducted upon  encounter, encountering of adults at risk, how the  Home Office  gather information and much more.  A simple click on each heading within the Manual will take you to the  relevant section of interest.



A Judicial Awakening:Extended Family Members Should Never Have Been Allowed to Have Appeal Rights


Very recently, having regard to the case of Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC),  the Upper Tribunal  has apparently  suddenly  awakened to  the conclusion  that there is no statutory right of appeal against a decision of the Secretary of State not to grant a residence card to a person claiming to be an Extended Family Member. The Upper Tribunal’s  judgment runs to 88 paragraphs but makes no easy nor enjoyable  reading.  It would  have been hoped that for a decision  very most likely  to  be  read by  potential  applicants, most without  legal  knowledge nor familiarity  with   complex terminology,  the Upper Tribunal could have sought to  produce  a much more simplified and  non- meandering judgement. For meander they did, in order to  justify their conclusions.


For a party that strongly sided with the Appellant on the issue of the Tribunal’s jurisdiction during proceedings in Sala, the Home Office have wasted no time in swiftly publishing amended guidance to reflect that judgement. The policy guidance, Extended family members of European Economic Area (EEA) nationals – v3.0 was published on 22 September 2016 to state that for relatives and durable partners, an application from an extended family member for residency documentation such as a residence card, upon refusal does not attract a right of appeal, as it is not an “EEA decision’ as defined in regulation 2 of the 2006 EEA regulations.


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