The Court of Appeal’s decision in Secretary of State for the Home Department v VM (Jamaica)  EWCA Civ 255was 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  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.
The issues in NE-A (Nigeria) v Secretary of State for the Home Department  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.
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.
The Specified Forms and ApplicationsHome 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 :
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.