Article 8 Private life claims: Positive value contribution to community must be very significant for a claim to succeed

Several issues arose in Thakrar (Cart JR, Art 8, Value to Community) [2018] UKUT 336 (IAC) (19 September 2018), one of them being whether the Claimant’s UK resident family as “ clear and overwhelming net contributors to the UK economy”, should be a relevant factor to be taken into account and carry weight in the Claimant’s Article 8 claim.

The peculiarity relating to the core part of this case lay not in any fact that the Claimant herself had contributed in any way to the UK community but simply that the circumstances were that her British son’s business employed 40 persons with a turnover of around £950,000. The argument advanced on her behalf was that the public interest in her removal was diminished as there was no reason in principle why the contribution made by the family to society and to the economy should not be factored into the balancing exercise in terms of proportionality since it constituted a very distinct value to the community.

Contribution to the community may have some relevance if it forms part of the private life forged by a claimant whilst here. The contribution may throw light on the private life of a claimant, ie the value of the claimant’s various activities to the community in the UK. The main element in the public interest will normally consist of the need to maintain a firm policy of immigration control. On one side of the balance is the legitimate aim in pursuit of which removal is to be effected. On the other side of the balance, weighing against removal, is the individual’s right to respect for private life. The issue therefore, where someone is of great value to the community in the UK, is the strength of the public interest in his removal and whether the contribution is a  factor which reduces the importance of maintaining firm immigration control in his  individual case. Is the loss of such public benefit capable of being a relevant consideration when assessing the public interest side of proportionality under Article 8?

Taking cue from the caselaw considered by the Administrative Court in Thakrar, the following examples were noted as having been raised in relation to claimants who had sought to advance claims based on their contribution to the community:

  • An applicant who had been part of an Indian folk music group. The Sikh community benefited from his playing at festivals where the applicant was a major attraction capable of attracting audiences of several thousands.
  • An applicant who had established a business in the UK that employed a number of people.
  • A person liable to removal who had  been carrying on business in partnership. His removal could ruin the partnership business.
  • A person liable to removal but was an essential and irreplaceable worker for a company engaged in a successful export business. His removal could seriously impair the business.
  • A person liable to removal who is a social worker upon whom a particular local community has come to depend. His removal could deprive the local community of his services which will be difficult to replace.
  • A person liable to removal who is an indispensable member of a team engaged in scientific research of public importance. His removal could put at risk the benefit which the public will enjoy if the research were successful.
  • An applicant’s work and cultural activities
  • A writer
  • A poet and performer
  • Educational progress in the UK
  • Applicant’s value to the local community in connection with his work for a Refugees and Asylum Seekers Support Group, and other organisations, as well as organising a community football tournament for young people. The applicant helped the Welsh Refugee Council and was said by the chairman of the local mosque to be a highly valued member of “our community”. The local police diversity officer also referred to the applicant’s “assistance and guidance whilst helping the Muslim community”.
  • An applicant who had made a significant contribution through his acting to the community in general and to disabled people in society.

 

Summary Background

The Claimant, a citizen of Kenya born in July 1948 and a widow, last entered the UK in July 2008 on a family visit. She had her son in the UK who she lived with every other week: he had no partner or child. She also had her daughter living in the UK, whom she spent most of the week living with. Her daughter had two children, aged 12 and 16. On the week she spent with the daughter she helped her by assisting with the children and cooking including fetching the children from school when she could. All the Claimant’s relatives were British citizens or settled in the UK.

Following her arrival in the UK, she overstayed her leave to remain however following other failed claims, she subsequently submitted a leave to remain application which was refused in a decision dated 5 April 2016. Upon appeal, the First Tribunal dismissed her human rights claim. Her applications for permission to appeal were refused by both tiers of the Tribunal. The Claimant then sought a judicial review of the Upper Tribunal ‘s refusal of permission to appeal.

The Administrative Court granted her permission to appeal and proceeded to hear her claim. The Claimant’s “Cart” judicial review involved determining whether the Upper Tribunal arguably erred in law in rejecting the grounds which accompanied the application for permission to appeal to it against the First-tier Tribunal’s decision and, if so, whether the second appeal criteria was met.

 

Other grounds upon which the challenge failed:

The following arguments were raised before the Administrative Court however failed to lift off the ground:

  • The Claimant as the victim of crime in Kenya- It was rejected by the Administrative Court that the First-tier Tribunal Judge could be criticised for not taking into account the fact that the Claimant had twice been the victim of crime, whilst in Kenya during 2008. The criticism was not only found to be spurious but was also considered to be indicative of a lack of candour on the part of the Claimant and her family. The First-tier Tribunal Judge was not told about the previous appeal hearings, involving the Claimant.
  • The Claimant’s grandchildrenThe First-tier Tribunal Judge was noted to have been criticised for failing to make a finding about evidence regarding significant religious and cultural inputs made by the Claimant to the lives of her two grandchildren. The Court concluded that there was no evidence before the First-tier Tribunal Judge to begin to show that the grandchildren would be deprived of access to relevant religious instruction or that they would suffer any material degradation in their sense of cultural identity, were the Claimant to return to Kenya. It was considered that the First-tier Tribunal Judge had rightly noted that the grandchildren lived with their parents. The Claimant only stayed in the house only on alternate weeks. If she were removed to Kenya, the children would continue to live with their parents.
  • Obstacles to integration- The First Tier Tribunal Judge was entitled to find that there would not be very significant obstacles to the Claimant’s integration in Kenya. The judge gave adequate reasons for that finding. He did not overlook any material evidence in this regard.
  • The claimant’s health- The issue of very significant obstacles to integration in Kenya was closely entwined with that of the claimant’s physical and mental health. The evidence put forward regarding the Claimant’s alleged mental health difficulties was entirely historic in nature.
  • Recourse to the NHS- The Claimant was observed to have criticised the judge’s finding, which stated that “even although I was satisfied that at the moment the appellant’s health needs are met privately, in the reasonably settled order of these things, that may well not be the case in the future”. The Administrative Court concluded the criticism of the judge, even if made out, could not be said in any way to be material. It was quite evident from the Judge’s decision that the outcome would have been the same, even on the basis that the Claimant would continue to seek private medical attention, should this be necessary.

 

Focus on the value to the community arguments- The significance of the family’s financial means:

The main argument advanced on the Claimant’s behalf was that in striking the proportionality balance under Article 8(2), the First-tier Tribunal Judge should have had regard to the fact that the Claimant’s son was running a substantial business, employing 40 people, with a turnover of £950,000 a year, and was, as such, an overwhelming net contributor to the UK economy.

Having considered several caselaw, the Administrative Court concluded as follows:

  • Before coming to the conclusion that submissions regarding the positive contribution made to the United Kingdom by an individual fall to be taken into account, as diminishing the importance to be given to immigration controls, a judge must not only be satisfied that the contribution in question directly relates to those controls. He or she must also be satisfied that the contribution is “very significant”. In practice, this is likely to arise only where the matter is one over which there can be no real disagreement.
  • The Court stated without in any way intending to be prescriptive, that it is likely that one touchstone for distinguishing between instances that lie, respectively, exclusively in the policy realm and in the area of Article 8, is whether the removal of the person concerned will lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it.
  • If judicial restraint is not properly maintained in this area, there is a danger that the public’s perception of human rights law will be adversely affected.
  • The Court considered that the following example was useful: “Let us assume a judge is faced with two human rights appeals in respect of individuals whose situations are entirely the same, save for the fact that one is a bus driver and the other a brain surgeon. The judge might have his or her own view as to which occupation is of more value to the United Kingdom. But that view, alone, should not lead the judge to treat them differently under Article 8. Were the judge to do so, he or she would be seriously trespassing upon the respondent’s policy realm”.
  • It must be emphasised that UE (Nigeria) and Others v Secretary of State for the Home Department [2010] EWCA Civ 975 is binding authority that, in an appropriate case, the weight to be given to the importance of maintaining immigration control can be diminished by reason of the effect that the removal of the Claimant from the United Kingdom would have upon the community.
  • Having regard to the Claimant’s case, the Court considered that there was no prospect of her son abandoning his business, and the employees who work in it, if she were to be removed to Kenya. It was observed that what the Tribunal was being asked to do could be distilled into the proposition that someone whose family makes a substantial contribution to this country’s economy ought thereby to be subject to a less stringent set of immigration controls than a person whose family does not make such a contribution. Not only was this, in its own terms, an extremely unattractive proposition. It was one which, if allowed to succeed, would inflict grave damage on human rights law. It would introduce an entirely unjustified distinction between the rich, and everyone else. It would also lead to calls for other forms of contribution to be so recognised.
  • It is the case that wealth is a factor that can directly impact on a person’s ability to secure leave to enter or remain under the Immigration Rules. Examples are to be found in the rules relating to entrepreneurs, investors and retired persons of independent means. The fact that the Secretary of State’s immigration policies in some respects favour those who will not be a burden on public funds, if admitted to or allowed to remain in the United Kingdom, or might encourage the wealthy to come to this country, does not mean a person’s wealth thereby becomes a factor which, in the context of Article 8, generally diminishes the importance to be given to be given to the system of rules that the Secretary of State has chosen to frame, pursuant to his functions under the Immigration Acts.
  • In the present case, the First-tier Tribunal Judge’s findings were that the Claimant, if returned to Kenya, could be financially supported by her United Kingdom family. It was clear that the family would have the requisite financial means to buy care services for the Claimant in Kenya.
  • In dismissing the claim, the Court found that in all the circumstances, the First-tier Tribunal Judge was entitled to conclude that removal of the Claimant from the United Kingdom would not violate the United Kingdom’s responsibilities under Article 8 of the ECHR, whether to the Claimant or anybody else.

 

Conclusion

The door is clearly open to argue on appeal the value a person makes to the community in an Article 8 private life claim, however the  judgment is littered with words of caution to Tribunal Judges to exercise judicial restraint.

Arguments as regards a claimant’s contributions are most relevant when arguing the exceptional circumstances aspect of a case. Effective letters of support need to be provided attesting to the claimant’s value to the community. Such letters should indicate not only the claimant’s value to the community, but also refer to how difficult it would be to replace him.

 

 

Doubling of the Immigration Health Surcharge: Paying through the nose to obtain a UK visa

Apparently, what migrants are currently paying to the UK Government in order to have their entry clearance or leave to remain applications processed is simply not enough: they need to pay more and quickly.

On 11 October 2018, the Minister of State for Immigration, Caroline Stokes had this to say regarding the Immigration Health Surcharge (IHS):

“The IHS is currently set at £200 per annum for most temporary migrant categories, with a discounted rate of £150 per annum for students and the youth mobility category. These rates have not changed since the IHS was introduced. In February, the Government announced its intention to double the IHS. ….Today we have laid before Parliament in accordance with section 38 of the Immigration Act 2014, ‘The Immigration (Health Charge) (Amendment) Order 2018’. The Order, which is subject to the affirmative procedure, seeks to double the IHS to £400 per annum. Students, as well as those on the Youth Mobility Scheme, will continue to receive a discounted rate of £300……These changes do not affect permanent residents, who are not required to pay the IHS. Certain vulnerable groups such as asylum seekers and modern slavery victims are exempt from paying the IHS. Short-term migrants (including those on visitor visas) and those without permission to be in the UK are generally charged for secondary care treatment by the NHS at the point of access”. https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2018-10-11/HCWS995/

There was no public consultation on these changes, however the Home Office had previously announced as far back as 5 February 2018 that it planned to double the level of the charge. The changes are expected to kick in sometime in December 2018.

 

So, what is the Immigration Health Charge?

The Immigration Health Charge is payable by non-EEA nationals who enter the UK for more than six months in a temporary capacity or who apply to extend their stay in the UK, subject to certain exemptions listed in Schedule 2 to the Principal Order.

Those who pay the immigration health charge can access NHS services free of charge (subject to those charges UK residents must pay, such as for prescriptions and dental treatment in England).

The charge is currently set at £200 per annum for most temporary migrant categories, with a discounted rate of £150 per annum for students and the youth mobility category. These rates have not changed since the charge was introduced.

The Immigration Health Charge was introduced on 6 April 2015 by the Principal Order. The Immigration (Health Charge) Order 2015 (“the Principal Order”) was made under section 38 of the Immigration Act 2014. It requires a person who applies for entry clearance to the United Kingdom, for a limited period, or for limited leave to remain in the United Kingdom, to pay an immigration health charge.

There are a number of exemptions from the requirement to pay the charge, which are set out in Schedule 2 to the Order.

The Principal Order was amended by the Immigration (Health Charge) (Amendment) Order 2016, which amended the amount of the charge to £150 in respect of applications for entry clearance as a Tier 5 (Youth Mobility Scheme Applicant) and removed the exemption in Schedule 2 for nationals of Australia or New Zealand. It was further amended by the Immigration (Health Charge) (Amendment) Order 2017 to remove the exemption from the charge available for Intra-Company Transfer applicants and their dependants, and to provide an explicit exemption from the surcharge for all victims of modern slavery (not just human trafficking).

 

Effect of  the draft  Immigration (Health Charge) (Amendment) Order 2018:

Amendment of Schedule 1 to the Principal Order will be as follows:

“ (a)in the entry “application for entry clearance or leave to remain as a student, in accordance with the immigration rules”, for “£150” substitute “£300”;

(b)in the entry “application for entry clearance or leave to remain as the dependant of a student, in accordance with the immigration rules”, for “£150” substitute “£300”;

(c)in the entry “application for entry clearance as a Tier 5 (Youth Mobility Scheme) Temporary Migrant in accordance with the immigration rules”, for “£150” substitute “£300”;

(d)in the entry “all other applications for entry clearance or leave to remain”, for “£200” substitute “£400”.

https://www.legislation.gov.uk/ukdsi/2018/9780111172995/article/3

 

How badly will applicants be hit?

Example 1:

For Partners, such as foreign spouses living outside the UK applying for entry clearance in order to join their British partners in the UK, currently the amount of the charge payable per person is £600.00 on submission of the visa entry clearance application. This is in addition to the entry clearance application fee which for now stands at £1523.00.

With the expected increase to the surcharge, an applicant will need to pay up to £1200.00 towards the charge on application, totalling £2723. 00 with the entry clearance application fee included.

Example 2:

For those in the UK applying for leave to remain, for example under the 7year rule, the charge currently is £500.00 per applicant. The associated Home office application fee per applicant for now is £1033.00.

With the increase to the surcharge, an applicant will need to pay up to £1000.00 towards the charge, totalling £2033.00 with the Home Office fee included.

Example 3:

The new charge combined with the Home Office application fees, will see a family unit of two parents and two young dependant children applying under the 7year rule needing to source a total of £8132,00.

 

How is payment made?

Where an applicant applies for a visa online, they pay the surcharge as part of the application.

If they apply for a visa through a premium service centre, they pay the surcharge when they book an appointment.

Where the applicant applies for a visa by post, they must pay the surcharge online before they send their application. They need to include their IHS reference number on the application form.

In order to avoid invalidation and rejection of an application, if an applicant does not pay the charge when they should, they will receive notification and must pay the surcharge within:

  • 10 working days if they inside the UK
  • 7 working days if they outside the UK

 

Fee Waiver applications :

The best course of action  to adopt in the face of  such  exorbitant  fee rises is to take advantage of the Home Office Policy Guidance on fee waivers in conjunction with the new changes which are to be shortly effected.

The recent Statement of changes to the Immigration Rules: HC 1534, 11 October 2018 (web accessible), introduce other changes however relevantly for now, the changes also support the operation of a new application process in UKVI by amending the Rules on the requirements for a valid application.

The accompanying Explanatory memorandum HC 1534, 11 October 2018 (web accessible) states as follows:

“Application process

7.8 Changes to the Immigration Rules are required in order to permit UKVI’s transformed application process. The ambition is that most applicants will apply online, with assisted digital support where necessary. A process will also remain for receiving applications on paper for routes where there is no online application form. The Rules changes set out the requirements for making a valid application under the new application process in relation to the applicant making an appointment to attend in person to enrol their biometrics and submitting the required documents in support of their application.

Fee waiver

7.9 The changes will also protect the position of applicants seeking a fee waiver as part of an online application for leave to remain.

7.10 Where an application for leave to remain is made online, an applicant who wishes to apply for a fee waiver as part of that application will have to submit that fee waiver request before the application for leave, and this will be considered first. The applicant will be notified of a decision on the request for a fee waiver, and will have 10 working days from the date they receive this notification to submit an application for leave. If the application is made in time, i.e. within 10 working days, the date of application will be the date the fee waiver request was submitted. This is important because it protects an applicant’s continuing leave whilst they make their application for further leave. If the fee waiver request is granted, the applicant will be able to submit an application for leave without an accompanying application fee. If the fee waiver request is refused, the applicant may still submit an application accompanied by the relevant fee.

7.11 If an applicant does not submit an application for leave within 10 working days, their application will normally be rejected.

11 Guidance 11.1 Guidance relating to these Rules changes will be updated and placed on the GOV.UK website”.

New Guidance policy on validity of applications and fee waiver applications should follow the changes and at that point, the process of how best to utilize the new application process to advantage will become more apparent once that guidance has been published. For now however, in order to prepare for and apply for a fee waiver of both the surcharge and home office application fees, applicants should continue to have regard to current Guidance, Fee waiver: Human Rights-based and other specified applications, published on 30 August 2017 and the relevant application form, Appendix 1: request for fee waiver.

 

 

 

Liability to administrative removal, RED Notices, removal windows and injunctions: Your frequently asked questions answered

The following heads of consideration are raised in detail below:

 

  • Liability to non- EEA Administrative Removal

  • Notice of liability to Administrative Removal- RED Notices

  • Judicial Review

  • Notices of removal

  • Removal- the Notice Periods

  • Deferral of Notice Periods

  • Deferral of Removal

  • Injunctions

  • Rule 39 Indications from the European Court of Human Rights

  • Relevant Home Office policy Guidance

 

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