Monthly Archives: April 2017

Whether it is unreasonable to expect a British Citizen Child to leave the UK: Divergent approach from the Upper Tribunal and Court of Appeal

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The Court of Appeal’s decision in Secretary of State for the Home Department v VM (Jamaica) [2017]  EWCA Civ 255  was published on 11 April 2017.  Among other matters, the appeal concerned the effect of the EU rights of children who are British citizens in relation to the proposed deportation of a foreign criminal.

 

The Upper Tribunal’s decision of SF and others (Guidance, post–2014 Act) Albania [2017] UKUT 00120(IAC) was published on 22 March 2017. The issue was whether because of the nationality of the youngest child( a British citizen),  it would be unreasonable to expect that child to leave the United Kingdom with his other  family members who  had no leave to remain in the UK.

 

Considered together, these two cases make very interesting reading, however it might be that in light of the decision in VM, the Upper Tribunal may soon  need to  undertake some “housekeeping duties”  in relation to their previous decisions.

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Clearly unfounded claims and the two stage reasoning process: Section 94 Certification policy updated following FR & KL 2016

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On 12 April 2017, the Home Office’s  Section 94 Certification Policy Guidance was updated  in order to, “provide further clarification of when to certify a human rights claim and to reflect the need to give reasoning when certifying a claim as set out in FR & KL (2016) v SSHD EWC CIV”.(Certification of protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims).

 

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“Very compelling circumstances, over and above”: Court of Appeal says analysis of section 117C(6) in Rhuppiah is correct and should be followed

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The issues in NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 (11 April 2017)  concerned the construction or application of section 117C(6) of the Nationality, Immigration and Asylum Act 2002  which provides that 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 the exceptions contained in section 117C(4)-(5).

 

It appears from the nature of the submissions put forward on behalf of the Appellants, that among other matters, the concern was that Section 117C (6) must not be applied as if it contained some abstract statutory formula and that in effect Tribunal Judges must be left to perform  the well-established and well understood  task of determining whether there is a breach of Article 8, instead of substituting a statutory test for that question.

 

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Overreaching Court of Appeal Judgement: Of Foreign national criminals, Fresh claims, FTT’s jurisdiction, EU rights of British children and Article 8

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The Court of Appeal has been overly ambitious. It has sought to undertake a complex and extensive considerations of various points of law on procedural and substantive issues   in a   single judgement. Simply put, too many issues have been raised and considered- however on the facts, perhaps that is exactly what was needed. The outcome however is that retaining the reader’s attention through to the end of the judgement might not be feasible.

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Know The Procedure: Brand New Home Office Guidance on Validity and Rejection of Leave to Remain Applications

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The Specified Forms and Applications Home Office policy guidance has been replaced in its entirety  by the Applications for leave to remain: validation, variation and withdrawal, guidance published on 6 April 2017. The new guidance describes how home office caseworkers decide whether an application for leave to remain in the UK is valid, and what to do if it is not. It also describes how an applicant can vary and withdraw an application and how to calculate the date of application.

 

My previous blog article based on the previous policy guidance :

 

https://ukimmigrationjusticewatch.com/2015/11/04/home-office-applications-the-very-things-that-are-likely-to-get-an-application-rejected-as-invalid-by-the-home-office/

 

must now be viewed as modified to some extent by the new governing guidance.

 

An application for leave to remain in the UK is valid when the requirements of Paragraph 34 of the Immigration Rules are met, or where one of the exceptions set out in paragraph 34 apply. The requirements must be met by each applicant:-if the main applicant meets the validation requirements, but a dependent on the same application does not, the main applicant’s application is valid, and the dependant’s application can be rejected as invalid.

 

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