The things that tell you that despite being referred to as “Customers” by the Home Office, Applicants are treated no more than cash machines during the application process

Online, the Home Office refer to applicants as “Customers” and state they provide a “Service” to such applicants during the application process:

“The service we offer

Our service standard processing times for standard applications (6 months or 8 weeks depending on application type) will start when we receive your application.

…………………..

 Our customer charter sets out the service UK Visas and Immigration aims to provide its customers and what it expects from them”www.gov.uk/government/organisations/uk-visas-and-immigration/about-our-services

The published Customer Service Commitment states:

“We aim to be a customer-focused organisation, offering a high-quality service, making it clear what you can expect from us and what your responsibilities are in return.

What you can expect us to do

You can expect us to:

  • make our application processes clear and simple
  • respond to your enquiries in full
  • make a correct decision based on policy and law, understanding your individual circumstances
  • explain our decision clearly and, where appropriate, help you understand what to do next
  • have a simple to use complaints process that puts things right if we make a mistake
  • treat you with respect and be sensitive to your situation
  • keep your personal information, and anything you tell us, safe and secure
  • seek your feedback to continually improve our service”.

www.gov.uk/government/publications/customer-service-commitments-uk-visas-and-immigration/uk-visas-and-immigration-customer-commitments

The above professed commitments are nothing but mere lip service.

In practice, applicants are not treated as actual Customers by the Home Office. Neither is a service provided to them. This is despite an applicant having paid substantial Home Office application fees for the “service”.

Indicators that an applying individual is not a customer of the Home Office and no actual service is being provided to them

That in practice applicants are not “Customers” nor receive a “Service” from the Home Office during the application process, but are a good source for the siphoning of money for the government, is evident from the following:

  • When on top of exorbitant Home Office application fees, Applicants are expected(and have been conditioned) to pay between £71.50 to £138.00 or more to book a standard biometrics enrolment appointment. This is despite the Government publishing on 2 November 2018 in relation to the newly introduced application process, Free appointments will be available for everyone, however, customers will also have the option to purchase added value services such as same day appointments and On Demand services” – gov.uk/government/news/new-uk-visa-and-citizenship-application-services-centres-open
  • When Applicants are fleeced twice for the same process, ie paying twice for enrolling biometrics. A £19.20 biometrics enrolment fee is automatically added to the Home Office application fees payable on submission of the online application form. Subsequently however, for Applicants who have already self-uploaded supportive documents and requiring no other additional add-on services, they expected to pay an additional fee referred to above to book an appointment solely to have biometrics enrolled.
  • When an Applicant pays £2408.20 for an indefinite leave to remain application but is required to pay an additional £1560 for the Immigration Health Surcharge if the indefinite leave to remain application is refused but limited leave to remain is granted instead. For example, an applicant applies in April 2021 for ILR based on the 10year lawful long residence Rule, however in September 2021 that application is refused but since the Applicant has a British citizen child or a child aged at last 7years residing in the UK at the date of application, limited leave to remain is likely to be granted instead. In such circumstances, the Applicant will pay out a total of £3968.20 to the Home Office in the space of 5months. The £1560 is required to be paid to the Home Office within 10working days from the date of the refusal of the ILR application, otherwise the deemed limited leave to remain application will be rejected as invalid. If the application is rejected as invalid the applicant becomes an overstayer.  See Paragraph 276A04 of the Immigration Rules in this regard and the circumstances in which the Home Office will treat the application for indefinite leave to remain as an application for limited leave to remain.
  • When the Home Office deduct a £25 administrative fee from the overall application fees paid when an application is rejected as invalid.
  • When a mere human rights limited leave to remain application (£ 2612.20 total per applicant) costs more to process than a SET(LR) or SET(O) or FLR(DL) indefinite leave to remain application (£2408.20 total per applicant). Why can’t the limited leave application also be charged at £2408.20?
  • When an Applicant completes and submits a private life human rights online application form in less than an hour, requiring only to upload a few documents, yet an eye watering £2612. 20 is required to be paid before the online form can go through for submission.
  • When an Applicant on the 10year route to settlement is expected (based on current fees of £2612.20 per applicant) to pay a minimum of £10,448.80 over the years before they are eligible to apply for indefinite leave to remain. If such an applicant has a dependant Partner and they have children later on requiring to be added on in future extension applications during that 10year period, then a fortune from that household to the Home Office will be payable during the 10years.
  • When in order to receive an expedited decision within 5working days via the ‘priority service’, it costs £500 in addition to the application fee. To receive a decision by the end of the next working day through the ‘super priority service’, it costs £800 in addition to the application fee. The standard Home Office application fees payable are already exorbitant as it is. The higher additional fees that apply to receive a faster decision only go to show that applicants are being treated as ATM’s by the Home Office. For applicants of little means needing to travel urgently, perhaps due to family illness abroad, and only able to make provision for the standard application fees, there is no hope of receiving a faster decision within a week.
  • When from submission of an application to decision-making several many months later, no contact at all is received from the Home Office in the interim period. Such a practice is clearly contrary to the Home Office’s own published guidance: “If there is a problem with your application or if it is complex, we will write to explain why it will not be decided within the normal standard. We will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard. The letter will explain what will happen next”gov.uk/government/organisations/uk-visas-and-immigration/about-our-services
  • When the Home Office Complaints procedure usually yields little that resembles a “customer-focused” approach.
  • When the Home Office play hide and seek with their contact email addresses. A Home Office email address may be in use one week but not the other. When contact is made if a relevant email address is in sight, either no response at all is received from the Home Office or a response is only received following numerous chaser correspondence. So far for human rights applications, the following email addresses have recently in September 2021 yielded some responses from the Home Office: ssc-fhru@homeoffice.gov.uk or fhr14@homeoffice.gov.uk
  • When FLR(FP), FLR(DL), FLR (FM), SET(LR) Applicants (and others) do not receive acknowledgement letters following submission of their applications. Due to the online application process introduced in November 2018, the Home Office no longer issue individual letters acknowledging receipt of pending applications. A consequence of this for Applicants whose employers still insist on seeing a Home Office acknowledgment letter whilst declining to conduct a right to work check on the employee, is termination of employment.   That an appropriately worded acknowledgment letter/email is relevant and important for each applicant is evident from the contents of the email  set out below received from the Home Office on 10 September 2021 after several urgently phrased  chaser emails when an Applicant was about to have her employment terminated:   “Thank you for your email.  We apologise for the late response. Please note that this mailbox is for internal use only. Your email has been forwarded to the relevant department who have advised the following: I can confirm that your client Mrs….. had valid leave in the UK and they made a new application in time. Your client is covered by Section 3C Leave under the same conditions as their previous visa whist your current application is under consideration. Employers can make checks of your immigration status using the link below. https://www.gov.uk/check-job-applicant-right-to-work . Their reference with the UKVI is 1212-0001-000-0000 and 20000000. This relates to the current application that they have open. If you have any further enquiries, please contact our enquiry services. Full details of how to contact UKVI by phone or e-mail, from both inside and outside the UK, can be found at https://www.gov.uk/contact-ukvi-inside-outside-uk.   Any enquiries already made to the above team will be responded to within 15 working days of receipt. Please ensure you follow the correct procedure advised above as further emails to this inbox may not be read and may be deleted without a response”.

Conclusion

When applicants enquire why the Home Office do not respond to correspondence or why the delay in decision making in their case is  growing increasingly alarming despite having paid so much  to the Home Office for processing their applications, it sometimes is tempting to state the obvious: “Unfortunately, you are not and will likely never be treated as a true  “customer” by the Home Office during the processing of your application. Ignore the fact that you have just paid significant fees to the Home Office. The Home Office is a different sort of creature in comparison to other UK government departments. Do not expect a” service” from the Home Office. To the Home Office you are an immigrant (not a customer) who has made an application for leave to remain, to be responded to only when the Home Office are ready to do so or when they can no longer logically sustain the current wall of silence. Be rest assured however that I will diligently continue to pursue the progress of your case including submitting a complaint as agreed with a view to extracting a decision from the Home Office. You may however in the meantime also consider approaching your MP so that they may make separate representations on your behalf in relation to the unreasonable delay in making a decision in your case”.

Reference is  also made to previous blog posts as regards the poor “service” provided by the Home Office, including how immigrants are siphoned dry by substantial Home Office application fees:

 

 

 

 

Overstaying visitor parents: Requirements of Adult Dependent Rules a powerful factor in Article 8 proportionality assessment

“When people from overseas choose to make a life in the UK they are not entitled to expect that they will later be able to bring their parents to join them. The Government has decided as a matter of considered policy that that right should generally be restricted to cases satisfying the strict criteria set out in the sections denoted EC-DR and ILR-DR under Appendix FM to the Immigration Rules; and in Britcits this Court has found that policy to be legitimate. The Appellant did not apply under those rules, no doubt because she could not on the evidence have satisfied their requirements. That is not in itself conclusive that the refusal of leave to remain would be proportionate; but, as Carr LJ explains, it is highly material, and like her I can see no error of law in the Judge’s evaluation.

I should say that the Appellant has not assisted her cause by overstaying for almost two years between the expiry of her visitor’s visa in July 2015 and her making of the present application….”,  as per Lord Justice Underhill Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021)

On the basis of Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021), parents  or other dependant adult relatives viewed as  having sought to circumvent the  demanding entry clearance Adult Dependent Relative route by coming as  visitors to the UK, overstaying and then applying for leave to remain outside the Immigration Rules, are unlikely to succeed in their Article 8 family life claims.

 

BACKGROUND

The appellant, a 66-year-old widow of Pakistan nationality, had been a frequent visitor to the UK from September 2007 and last entered the UK in June 2014 on a visitor’s visa.

She had a son and two daughters, in the UK all of whom are residents in the UK and are British citizen.  The appellant visited her children in the UK, spending only 12 months in Pakistan after 2011 and the rest of her time in the UK.

On 14 July 2017 the appellant made an application for leave to remain on the basis of her family and private life in the UK on the basis that it was unreasonable to expect her to leave the UK on account of her circumstances. She was living with her son and financially dependent on her children, in particular her son. The children were all financially independent and supported her with private healthcare insurance and accommodation in the UK. She would not be relying on public funds or NHS services. Her daughter, was also very dependent on the appellant for childcare for her young son, the appellant’s grandson. The appellant suffered from arthritis and high blood pressure. Her application was refused by decision dated 11 January 2018.

Both the First Tier Tribunal and Upper Tribunal dismissed her appeal against the refusal decision.

 

COURT OF APPEAL’S SUMMARY OF PRINCIPLES RELATING TO FAMILY LIFE IN THE CASE OF ADULTS

As regards the Court of Appeal’s summary of the relevant principles relating to family life in the case of adults, the following flows from their judgement:

“43.As set out above, the appellant’s application for leave so far as relevant to this appeal was not made under either of the above routes, but rather outside the Immigration Rules on the basis of Article 8 which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

44.The relevant principles relating to family life in the case of adults have been explored in a line of well-known authorities including Kugathas; Singh v ECO New Delhi [2004] EWCA Civ 1075 (“Singh 1”); ZB (Pakistan) v SSHD [2009] EWCA Civ 834 (“ZB”); Singh v SSHD [2015] EWCA Civ 630 (“Singh 2”); Britcits; AU v SSHD [2020] EWCA Civ 338 (“AU”). The position can be summarised as follows.

45.Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.

46.However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.

47.The ultimate question has been described as being whether or not this is a case of “effective, real or committed support” (see AU at [40]) or whether there is “the real existence in practice of close personal ties” (see Singh 1 at [20]).

48.Assuming that family life is established and Article 8 thus engaged, the relevant question (when dealing with the application of Article 8 to the removal of non-settled migrants who have developed a family life with someone while residing unlawfully in the host state) can be put in one of two ways, one positive and one negative:

  1. i) Whether or not the applicant’s right to respect for his/her family life under Article 8 imposes on the host country an obligation to permit him/her to continue to reside there (a positive obligation); or
  2. ii) Whether or not removal would be a disproportionate interference (a negative obligation).

As was remarked in Ali v Secretary of State for the Home Department [2016] UKSC 60[2016] 1 WLR 4799 (by Lord Reed at [32]), however, the mode of analysis is unlikely in practice to make any difference to the outcome. One is essentially asking the same question and considerations of onus of proof are unlikely to be important where the relevant facts have been established. Ultimately, whether the case is considered to concern a positive or negative obligation, the question is whether a fair balance between the relevant competing interests has been struck.

49.A central consideration when assessing the proportionality of the removal of non-settled migrants from a contracting state in which they have family life is whether the family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be “precarious”. In such cases, it is likely only to be in exceptional circumstances the removal of the non-national family member will constitute a violation of Article 8 (see Agyarko at [49] approving Jeunesse (at [108]))

50.What was meant by “exceptional circumstances” was made clear at [54] to [60] in Agyarko, namely circumstances in which a refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate. This is to be assessed in the context of a proportionality exercise which gives appropriate weight to the policy in the Immigration Rules, considers all factors relevant to the specific case in question, and ultimately assesses whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the Article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.

………………..

52.Thus, in considering the question of proportionality, the courts must, albeit at a general level, take the SSHD’s policy (as reflected in the Immigration Rules) into account and give it considerable weight, alongside a consideration of the relevant facts of the case in question”.

 

Court of Appeal’s conclusion on whether a family life existed between the Appellant and her adult children

In finding that a family life existed between the Appellant and her adult children in the UK, the Court reasoned as follows:

  • The First Tier Tribunal Judge (FTT Judge)’s conclusion that family life did not exist was unsustainable as a matter of principle.
  • That family life existed was apparent on the basis of the FTT Judge’s own findings of fact, with which there was no need to interfere for this purpose.
  • In reaching his conclusion that the appellant had not established family life for the purpose of Article 8, the FTT Judge appeared to have been influenced by his view that, were the appellant to be in Pakistan, her children could still provide for her, house her, pay for carers, check that she had taken her medication and “in effect either directly or indirectly do all of the things they currently do”. The Court of Appeal however concluded that put the cart before the horse: the question of whether or not arrangements would be the same or similar in Pakistan, whilst potentially relevant to the question of proportionality, was immaterial to the question of whether or not family life in the UK existed in the first place.
  • Further, whilst the FTT Judge recognised the practical support provided by her children, he appeared to have failed to take proper account of additional key features, in particular: the fact that the appellant had co-habited with her son (and younger daughter) in the UK since 2014. This was not necessarily sufficient to establish family life of itself but it was certainly a very powerful factor; the fact that the appellant’s children provided not just practical and financial support but also emotional support in circumstances where the appellant, already widowed, had recently lost her family home in Pakistan to fire; the fact that the appellant provided support to her daughter and care for her grandson.
  • These were all matters which, at least cumulatively, went beyond the existence of normal emotional ties; they provided clear grounds for a finding that the appellant’s children provided their mother with real and effective support and that she in turn had a real dependency on them. Thus, the FTT Judge was wrong to hold that family life did not exist, and the Upper Tribunal Judge, who was clearly troubled by that finding, was wrong to uphold the FTT Judge’s decision to this effect.
  • The Court of Appeal indicated that to this extent, they would allow the appeal.

 

APPLICABLITY OF THE ADULT DEPENDANT RULES

The Court of Appeal set out the requirements of the Entry Clearance Adult Dependant Relative Rules (ADR ECR):

“37.The ADR ECR came into force on 9 July 2012 as part of changes to the Family Migration Rules. They provide for the granting of entry clearance as an ADR. To meet the eligibility requirements for entry clearance as an ADR all of the requirements in E-ECDR.2.1 to 3.2 must be met (see E-ECDR.1.1). Those requirements so far as material are as follows:

“Relationship requirements

2.1 The applicant must be the-

(a) parent aged 18 years or over;…

of a person (“the sponsor”) who is in the UK.

2.3 The sponsor must at the date of application be-

(a) aged 18 years or over; and

(b) (i) a British citizen in the UK; or

(ii) present and settled in the UK;…

2.4 The applicant…must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

2.5 The applicant…must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

Financial requirements

3.1 The applicant must provide evidence that they can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds.

3.2 If the applicant’s sponsor is a British citizen or settled in the UK, the applicant must provide an undertaking signed by the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted indefinite leave to enter.”

38.If the applicant meets the requirements for entry clearance as an ADR of a British Citizen or person settled in the UK they will be granted indefinite leave to enter; if not, the application will be refused (see D-ECDR.1.1 and D-ECDR.1.3)”.

 

Following that the Court summarised relevant principles:

39.These rules were considered in Britcits upon a judicial review challenge to their lawfulness. The claimant charity contended, amongst other things, that the rules were incompatible with Article 8. The claim failed. As for Article 8, it was held i) that family life engaging Article 8 did not exist in every case where a UK sponsor wanted to bring an elderly parent to the UK in order to look after him/her; ii) that the new rules would not result in a disproportionate outcome in virtually all cases where Article 8 was engaged; and iii) that significant weight was to be given to the prior consultation, parliamentary debate and approval of the policy and objectives of the new rules (see [72] to [80], [82], [83], [86] to [88] and [90])

40.At [58] Sir Terence Etherton MR identified the policy behind the ADR ECR as follows:

“…It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their own country; and, secondly, to ensure that those ADRs whose needs can only reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances once settled here.”

41.The test now imposed for entry as an ADR has rightly been described as “rigorous and demanding” (see Ribeli (at [43]).

42.The Immigration Rules also provide a route by which an ADR may apply for indefinite leave to remain as an ADR (see Section E-ILRDR of Appendix FM) under which an applicant must, amongst other things, meet all of the requirements of Section E-ILRDR (see E-ILRDR.1.1). Those requirements include that the applicant must be in the UK with valid leave to remain as an ADR and provide evidence of non-recourse to public funds (see E-ILRDR.1.2 and 1.4)”.

 

Court of Appeal’s approach to Article 8 proportionality considerations on the Appellant’s claim:

The Court considered as follows:

  • The flaw in the appellant’s approach was to ignore the fact that the FTT Judge’s consideration of proportionality proceeded (necessarily) on the express premise that he was wrong in his conclusion on family life and that, contrary to his earlier finding, family life existed.
  • His approach or conclusion on proportionality was not flawed.
  • The FTT Judge considered and identified the law accurately-he stated correctly that the issue was ultimately one of proportionality in all the circumstances.
  • The FTT Judge had read the evidence founding the existence of family life and relating to the appellant’s circumstances in the UK, including as to her health, dependence on her children, relationship with her grandson and pastimes. He also heard and saw the appellant and two of her children give evidence; he set out and assessed the reliability of that evidence carefully. He was also aware of the death of the appellant’s husband, the loss of the family home in a fire, and the appellant’s broader family circumstances in Pakistan. There was no reason to think that these were not all matters that he properly weighed in the balance when considering proportionality.
  • At the same time, he was aware that the appellant was an educated person who could even now live independently in Pakistan where she had grown up, married, had children and spent all of her married life (and beyond). She would be financially supported and provided with accommodation by her children were she to return; she could also receive practical and emotional support from them (even if only from a distance). She had no significant health issues.
  • Further, as the authorities referred to make clear, the FTT Judge was entitled to place considerable weight on the fact that the appellant’s relevant family life (that is to say, her family life in the UK) was established at a time when her status here was precarious. She never had indefinite leave to remain in the UK (see Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58[2018] 1 WLR 5536at [44]), and from 23 July 2015 onwards had no right whatsoever to remain. The FTT Judge was entitled to conclude that a refusal to allow the appellant to remain would not result in unjustifiably harsh consequences for her and that, accordingly, exceptional circumstances had not been established.
  • Whilst the grandson’s interests fell to be considered, it is clear that they were not seen by the parties as being of material significance in the context of the proportionality exercise overall. Without underplaying the potential importance of a grandparental relationship, the facts here were far removed from those in Jeunessefor example, where the three children involved were the children of the applicant who was their “primary and constant carer”. The FTT Judge’s approach reflected the appellant’s apparent position before him as to the weight to be attached to the grandson’s interests in the balancing exercise to be carried out.

 

Relevance of the Adult Dependent Relatives Rules to the Article 8 proportionality assessment in the Appellant’s claim:

The Court of Appeal concluded that:

  • The FTT Judge was self-evidently aware of the relevant context, namely that the appellant had not pursued an application under the ADR ECR and was applying outside the Immigration Rules under Article 8.
  • It was common ground that whether or not the appellant would have qualified for entry under the ADR ECR was not determinative of the question of whether or not the refusal decision was compatible with Article 8. However, the fact that the Secretary of State, in the discharge of her statutory duty to regulate immigration, has set out a clear policy, reflected in the ADR ECR, as to the requirements to be met by ADRs seeking to settle in the UK will be a powerful factor in any Article 8 assessment of proportionality. This proposition is clearly established on the authorities (for example in Agyarko (at [47])
  • Whilst those representing the appellant were not in a position formally to concede the position, it could not realistically be suggested that the appellant would have met the requirements in 2.4 and 2.5 of the ADR ECR. Her physical condition came nowhere near the threshold (of requiring long-term personal care to perform everyday tasks) and she could obtain the required level of care in Pakistan. The fact that the appellant may not burden the UK taxpayer’s purse because she could access private healthcare in the UK was no answer to the Secretary of State’s position, in the sense that she would still not meet the relationship requirements of the ADR ECR. In any event, the appellant’s reliance on the fact that her children were wealthy was at odds with the second limb of the Secretary of State’s policy as identified in Britcitsat [58], which is to avoid disparity between ADRs depending on their wealth.
  • The ADR ECR, reflecting the Secretary of State’s policy as approved by Parliament and upheld as lawful in Britcits, provide the conventional pathway for entry to the UK as an ADR. Whether deliberately or otherwise, the appellant circumvented that route by coming as a visitor to the UK, overstaying and then applying for leave to remain outside the Immigration Rules. She presented the Secretary of State with the sort of “fait accompli” referred to by Lord Reed in Agyarko at [54]: “…. the Convention is not intended to undermine [a state’s right to control the entry of non-nationals into its territory and their residence there] by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting it with a fait accompli. On the contrary, “where confronted with a fait accompli the removal of the non-nationals family member by the authorities would be incompatible with article 8 only in exceptional circumstances”: Jeunesse, para. 114.”
  • In these circumstances, the FTT Judge’s finding on proportionality was fully justified. Indeed, taking the strength of the family life at its highest on the facts, there was really only ever one realistic answer on the question of proportionality, namely that the refusal decision was not incompatible with the appellant’s right to respect for her family life under Article 8.
  • This was a case where the appellant will be cared for in Pakistan by one or more of her children (who will move to live with her), were she to have to return to Pakistan. The appellant acknowledged that one or more of them would return to live with her and each child stated that he/she would do so (albeit reluctantly). Ribeliconfirms that the willingness of a child to return abroad with the parent can be an important factor in favour of refusal of leave to remain. However, unlike the position in Ribeli, there has been no finding here that it would be reasonable for one or more of the appellant’s children to return to join her in Pakistan (even if, as a matter of fact, they would be prepared to do so). In these circumstances, the Court did not lay any material weight on what would in any event be only an additional factor in favour of an already justified refusal.

The Court of Appeal therefore rejected the challenge to the FTT Judge’s conclusion on proportionality and upheld the Upper Tribunal Judge’s dismissal of the appeal against it.

 

Is it possible to rely on evidence of illegal working using someone else’s identity as proof of 20years continuous residence in the UK?

An applicant may have accrued periods of a combination of both lawful and unlawful residence  in the UK for the requisite 20years yet face a dilemma in seeking to evidence continuity of residence in circumstances where during the relevant period, he has documentation from the HMRC or employer that shows he has  worked in the UK illegally using someone else’s  identity.

How has the Tribunal approached such circumstances in which an applicant has on application and appeal relied upon such evidence of working illegally in the UK over a prolonged period of time?

In Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376 (IAC) the Upper Tribunal considered such an appeal.

Summary background and use of false identity to work in the UK:

The appellant, a national of Bangladesh claimed that he arrived in the UK as a visitor in 1994.

Whilst in the UK, he applied for asylum in 1996: the claim did not succeed and the appellant exhausted his rights of appeal in 1997. He then applied for indefinite leave to remain in 2009 however the application was refused with no right of appeal. An application of 2014 for leave to remain was unsuccessful.

By further submissions dated 8 September 2016, the appellant sought leave to remain on human rights (article 8) grounds, relying upon his having been present in the UK for over 20 years.

The following had occurred as noted by the Home Office in applications the appellant had submitted:

  • He had been encountered by immigration officers at his place of work in 1996
  • He had worked in various restaurants having falsely adopted the identity of a British citizen, ‘Rezaul Karim’, who was born in 1976. In securing employment, he used Mr. Karim’s National Insurance number.
  • The Home Office observed that previously submitted tax documents were not in the appellant’s name and that the NI number relied upon belonged to another person.
  • In support of his further submissions submitted in 2016, by letter of 5 December 2017, the appellant confirmed that he had been residing with his uncle in Wales since 1995 and relied upon documentation in his false identity to establish that he had been employed since 1997 and thereafter secured access to the NHS.

Basis of Home Office refusal decision – 20years continuous residence not evidenced and suitability criteria not met:

The appellant’s application under the 20year long residence Rule was refused by the Secretary of State by decision dated 14 December 2017 on the following basis:

  • The Home Office accepted that the appellant entered the United Kingdom on 18 December 1994 and that he remained in the UK until 1997. It was however noted that no satisfactory evidence had been provided confirming that the appellant had resided in the UK after the conclusion of his appeal in 1997 and his application for settlement in 2009.
  • It was decided that the appellant was unable to provide evidence of continuous residence between those years and concluded that he failed to meet the requirements of paragraph 276ADE(1)(iii) of the Rules.
  • Further, it was observed as to suitability that when the appellant applied for indefinite leave to remain on 29 July 2009, he submitted documents which were verified as not being genuine, namely eleven P60 forms dated from 1998 to 2009. The HM Revenue & Customs confirmed that the documents submitted did not match their records and that the NI number used was not issued in the appellant’s name.
  • Consequently, the appellant was found to have failed to meet the suitability requirements for leave to remain under paragraphs S-LTR.1.6. and S-LTR.4.2. of Appendix FM.

Relevant Suitability Criteria under the Immigration Rules:

Section S-LTR of Appendix FM details the suitability requirements to be met in a leave to remain application made by those seeking to remain in the United Kingdom. An applicant can be refused limited leave to remain on grounds of suitability if relevant paragraphs  of  S-LTR apply.

Paragraph S-LTR.1.6. provides for a mandatory refusal stating that an applicant will be refused limited leave to remain on grounds of suitability where the following applies:

‘S-LTR.1.6.  The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.’

Paragraph S-LTR.4.2. provides for a discretionary refusal and states an applicant may be refused on grounds of suitability if:

‘S-LTR.4.2. The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter, leave to remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application or claim was successful)”.

Dismissal of the appeal by the First Tier Tribunal Judge:

The Judge concluded as follows:

  • The appellant had not simply used the alias of Rezaul Karim in order to obtain work but also to access NHS services, visiting his GP on a regular basis since 2001 and having been referred on several occasions for hospital investigations.
  • The appellant had engaged in sustained deceit over the course of more than a decade.
  • The Judge concluded that the documents relied upon arising from employment, such as the P60s, possessed an innate character as documents containing false representations.
  • It was determined that the appellant’s personal history including character, conduct and employment history made it undesirable to allow him to remain in the UK and so his application fell for refusal under both the mandatory suitability ground established paragraph S-LTR.1.6. and the discretionary ground of paragraph S-LTR.4.2.
  • Consequently, the Judge found that the appellant did not meet the suitability requirements of the Rules and so could not meet the requirements for leave to remain on the grounds of private life in the UK set out in paragraph 276ADE.

Upper Tribunal concludes paragraph S-LTR.1.6. inapplicable:

The Upper Tribunal noted that in respect of the appellant’s employment and tax documents the Secretary of State’s decision of 26 June 2014 stated:

‘14. … The earliest record of your client in the United Kingdom is when he was encountered working without authority and claimed asylum on 19 January 1996, however, satisfactory evidence has not yet been provided to show that he has lived continuously in the United Kingdom since that date. Tax documents have previously been provided, however, as stated in previous refusal letters, the P60s are not in your client’s name and HMRC confirmed that the National Insurance number is that of a British citizen born in 1976”.

The Home Office decision of 14 December 2017, in relation to considerations of suitability under Appendix FM and as to paragraph S-LTR.1.6. stated:

‘For the reasons given below, your application falls for refusal on the grounds of suitability in Section S-LTR under paragraphs 276ADE(1)(I) of the Immigration Rules because:

When you applied for indefinite leave to remain on 29 July 2009 you submitted a number of documents which were verified as not being genuine. HM Revenue & Customs confirmed that the eleven P60 forms dated 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008 and 2009 submitted with that application did not match their records and that the National Insurance number used was not issued to anyone by your name.

Given the above your presence in the UK is not conducive to the public good as your conduct and character make it undesirable to grant leave to remain. You therefore fail to meet the requirements for leave to remain because paragraph S-LTR.1.6. of Appendix FM of the Immigration Rules applies.’

The Upper Tribunal reasoned as follows in deciding that the Secretary of State was not entitled to refuse the appellant’s application on suitability grounds under paragraph S-LTR.1.6:

  • The Upper Tribunal was satisfied that the context of the introduction of paragraph S-LTR.4.2. was to give authority to the Secretary of State to refuse an application on grounds of suitability if false representations have been submitted, or there has been a failure to disclose materials facts, in a previous immigration application.
  • The insertion of paragraph S-LTR.4.2. was to address a failure of the suitability requirements previously established under Section S-LTR in not permitting the Secretary of State to adversely rely upon the previous use of false representations and related concerns.
  • In such circumstances, the Upper Tribunal was satisfied that the scope of paragraph S-LTR.1.6. was not sufficiently wide to capture the use of false representations in an application for leave to remain before the Secretary of State or in a previous application for leave to enter or remain.
  • The Upper Tribunal concluded paragraph S-LTR.1.6., a mandatory ground of refusal, does not cover the use of false representations or a failure to disclose material facts in an application for leave to remain or in a previous application for immigration status.
  • Consequently, it was decided that the First Tier Tribunal Judge materially erred in law in finding that the Secretary of State could refuse the appellant’s application on suitability grounds under paragraph S-LTR.1.6. of Appendix FM.

Upper Tribunal concludes first clause of paragraph S-LTR.4.2 inapplicable:

In relation to paragraph S-LTR.4.2, the Upper Tribunal stated that two separate basis upon which the Secretary of State may exercise discretion to refuse an application for leave to remain can be summarised as:

  • the use of false representations or a failure to disclose any material fact in a previous application and
  • the use of false representations in order to obtain a document required to support such an application.

Consequent to their independent nature, the Upper Tribunal was satisfied that reliance upon one or both of the elements must be specifically pleaded and reasoned by the Secretary of State in her decision letter, or if upon becoming aware of further information the Secretary of State seeks to exercise her discretion during the course of the subsequent appeal process it should be by means of an addendum decision providing reasons with an appellant being given sufficient time to counter the serious nature of the underlying allegation as to conduct.

It was noted that by her decision of 14 December 2017, the Secretary of State relied upon the first independent clause of paragraph S-LTR.4.2. concerned with the applicant having made false representations in a previous application for leave to remain or a variation of leave, or in a previous human rights claim

In reaching the conclusion that there were no false representations made on the appellant’s behalf in his application, the Upper Tribunal reasoned as follows:

“82. In this matter the appellant has consistently informed the respondent that whilst he dishonestly assumed an identity and a NI number to secure employment, and used the identity as a British citizen to secure access to the NHS, he was open and honest to the respondent as to the employment and tax documents accompanying the application having been secured through the use of the false identity. We consider it important that the P60 forms, genuinely issued but the product of dishonesty as to identity, were peripheral to the application for leave to remain on long residence grounds. Their purpose was to demonstrate long residence, but it was not a requirement of the relevant rule that the appellant provide P60s. They were relied upon by the appellant to establish his long residence, a task they were capable of satisfying, and not to establish that the appellant was the person named upon them. Nor did the documents establish that the appellant enjoyed a right to work lawfully in this country or to meet any financial requirement established by any relevant paragraph of the Rules. The false representation in this matter was in providing various employers with a dishonesty assumed identity and NI number to secure employment. The employment and tax documents were produced consequent to the appellant having secured employment in his false identity. Having openly informed the respondent from the outset as to his actions, there were no false representations made on the appellant’s behalf in his application that he was a British citizen called Rezaul Karim who was born in 1976, possessed a particular NI number, was lawfully entitled to work and through the course of lawful employment had earned the sums detailed by the eleven P60 forms.

83.Upon considering [17] of the decision we are satisfied that the Judge materially erred in adopting the broader interpretation of the first independent clause of paragraph S-LTR.4.2. Whilst observing that the appellant had openly declared that he assumed the identity of Mr. Karim to secure employment, the Judge considered the innate characteristic of the documents are containing ‘false representations’ through the deliberate dishonesty employed to secure them. Such an approach uncoupled the requirement that the false representation be made ‘in a previous application’ and instead broadened the use of a false representation to the securing of any document used in the previous application, even if there were clear and adequate admissions to the respondent from the outset as to the circumstances in which the documents were obtained.

84. We conclude that paragraph S-LTR.4.2. is disjunctive with two independent clauses. The respondent is consequently obliged to plead and reason her exercise of discretion to refuse an application for leave to remain based on one or both of those clauses. By her decision of 14 December 2017, the respondent only relied upon the first clause. The natural meaning of the first clause requires that the false representation or the failure to disclose any material fact must have been made in support of a previous application and not be peripheral to that application. The reliance upon employment and tax documents, openly confirmed to have been secured through the long-time use of a false identity, was peripheral to the previous application for leave to remain on private life grounds under paragraph 276ADE(1)(iii) and also peripheral to the earlier application for ILR on long residence grounds. The Judge therefore materially erred in finding that the suitability requirement established by the first clause of paragraph S-LTR.4.2. was applicable to the appellant”.

Upper Tribunal concludes second clause of paragraph S-LTR.4.2 also in applicable:

The Upper Tribunal also concluded that Secretary of State could not, on any view, meet the requirements of the second clause on the facts of the case.

The Upper Tribunal stated that the use of false representations is clearly linked to the obtaining ‘from the Secretary of State or a third party a document required to support such an application or claim’. In principle, the deception should relate to the act of obtaining the document for the purposes of supporting an application or claim to remain in the United Kingdom. This is consistent with the use of the words ‘required to support’ which confirms a compulsory element to the use of the document(s) within the application or claim process. It was noted that such compulsion is identified by the relevant Rules or guidance.

The Upper Tribunal concluded:

“88. We therefore conclude that the use of the words ‘required to support’ in the second clause of paragraph S-LTR.4.2. confirms a compulsory element to the use of document(s) within the application or claim process, and the obtaining of the document(s) must be for the purposes of the immigration application or claim.

89. We observe that the appellant has relied upon documents arising from his employment, such as the P60s, in long residence and article 8 (private life) applications alone and not, for example, in an application where he was required to establish his earnings. He always confirmed by means of his applications that the documents were secured with the adoption of another person’s identity. The false representation was to his employer(s), namely that he was a British citizen called Rezaul Karim who was born in 1976, possessed a certain NI number and was lawfully permitted to work. Such false representations were not made to obtain a document for the purpose of supporting an application for leave to remain in the United Kingdom. The documents were solely generated consequent to the appellant having secured employment. We are satisfied that upon a natural reading of the second clause the securing of the employment documents relied upon by the appellant in this matter were not secured through false representations to support an application for leave to remain. In any event we observe that such employment and tax documents are not required for an application for leave to remain under paragraph 276ADE(1)(iii). Consequently, even taking the respondent’s case at her highest under the second clause of paragraph S-LTR.4.2. she could not succeed”.

Conclusion

The Upper Tribunal found that the appellant did not fall to be refused under the suitability requirements detailed at paragraph 276ADE(1)(i). The Upper Tribunal was satisfied that the appellant had been continuously present in the UK for a period of over 20 years. The appellant met the requirements of paragraph 276ADE(1)(iii) and the Upper Tribunal allowed his appeal on Article 8 private life human rights grounds.

To an applicant, the ultimate question in practice is whether the Upper Tribunal’s conclusion in allowing the appeal in Mahmood means that any applicant who has been working in the UK for a prolonged period of time using someone else’s identity and national insurance can succeed in an application under the long residence rules by reliance on documentary evidence of illegal working as proof of residence?

Maybe. Maybe not. It all dependants on the facts of each case and also whether the Secretary of State after Mahmood has now developed a strategy intended to limit the effects of that judgement.

In any case,  several individual considerations will be in issue.

Home Office application forms require clarification whether an applicant is working.  Even where the applicant is working illegally at the date of application, the answer is Yes. If the applicant is no longer working at the date of the application, then the answer is No.

Faced with no other documentary evidence to show length of residence in the UK for the past 20years, an applicant may seriously need to consider that rather than continue to remain in the UK for an indeterminate period undocumented or liable to removal, they may have no other choice but  to submit evidence of prolonged illegal working in the UK in their long residence application.

 

 

 

 

 

 

New Home Office Note on medical treatment and healthcare in Zimbabwe: basis for a fresh medical condition human rights claim?

Many undocumented Zimbabweans within the past decade or so have had claims based on their medical condition(s) refused by the Home Office and dismissed by the Tribunal with reference to the very high threshold test expounded by the House of Lords in the case of N [2005] UKHL 31.

Whilst considerations depend on the circumstances of each case, it might be that in appropriate cases, a fresh human rights claim can now be made to the Home Office, more so where that past negative Tribunal or Home Office decision was made prior to publication of AM(Zimbabwe) by the Supreme Court.

In Paposhvili v Belgium [2017] Imm AR 867, the European Court of Human Rights (ECtHR) clarified its previous approach in N v UK (2008) 47 EHRR 39. The ECtHR shifted the boundary of Article 3 protection from those who were about to die in the removing state to those who would face a serious, rapid and irreversible decline in their health leading to intense suffering and/or a significant reduction in their life expectancy either because of the absence of treatment or inaccessibility of treatment in the country of return.

A year ago, on 29 April 2020 the Supreme Court in AM (Zimbabwe) [2020] UKSC 17, affirmed the Article 3 medical threshold as that held in Paposhvili v Belgium [2017] Imm AR 867 and provided the Supreme Court’s interpretative steer which is now the test to follow when considering medical claims (placing reliance on Article 3 of the ECH).

WHAT THE HOME OFFICE NOTE STATES GENERALLY IN RELATION TO HEALTHCARE IN ZIMBABWE

The new Home Office Note, Country Policy and Information Note Zimbabwe: Medical treatment and healthcare Version 2.0 April 2021  clarifies the following amongst other issues in relation to the health care system in Zimbabwe:

  • Health facilities have widespread shortages of basic medicines such as painkillers and contraceptives. Zimbabweans seeking healthcare are generally required to bring their own drugs, syringes, bandages, and water, and to pay for their treatment in US dollars
  • Most of Zimbabwe’s political and economic elite travel to South Africa or other destinations abroad to access private medical care.
  • The Foreign, Commonwealth and Development Office (FCDO) travel advice for UK nationals in Zimbabwe, updated on 3 February 2021, noted: ‘The provision and quality of health care is variable and can be especially poor outside of the major cities. There’s a shortage of drugs and trained medical staff in hospitals, making it difficult for hospitals to treat certain illnesses including accidents and trauma cases. The shortage of fuel has reduced emergency response capabilities.
  • Zimbabwe has an acute shortage of human resources for health (HRH).
  • The Universal Health Care Partnership (UHCP) Zimbabwe country profile stated: ‘Zimbabwe’s health system, guided by the Health Service Act, is frail due to hyperinflation and political instability. Low access to health care, high teenage fertility, a double burden of communicable and non-communicable diseases, as well as natural and human-made disasters (including frequent disease outbreaks, acute public health emergencies and other health-related humanitarian disasters) impact the population’s well-being.
  • The FCDO travel advice for UK nationals in Zimbabwe, updated 3 February 2021, noted: ‘Private clinics will not treat patients until they pay and often require large amounts of cash before they will admit even emergency cases. An increasing number of businesses in Zimbabwe will only accept US dollars in cash, rather than credit or debit cards. This includes some medical providers. Even if payment is available some of the best hospitals are often too full to admit patients. Medical costs, particularly for evacuation, can be high.’
  • Mental health] Facilities exist. Yet, missing pieces in the mental health system prevent the vast majority of Zimbabwe from accessing proper mental health care. The main missing pieces are funding and resources, creating a host of issues such as the inability to implement most of the Mental Health Act, poor staffing, drug shortages, and overcrowded hospitals and prisons.
  • Patients who can access mental health care do not have medications to treat their illnesses. Due to drug shortages, many psychiatrists prescribe all patients—regardless of their disorder—the same out-dated, unspecific drug, often rife with side effects.
  • The USSD 2020 Human Rights Report observed: ‘Persons with mental disabilities also experienced inadequate medical care and a lack of health services”

WHAT THE HOME OFFICE NOTE STATES IN RELATION TO AVAILABLITY OF HIV TREAMENT

The Home Office April 2021 Note states that MedCOI reported that the following ARV drugs, used in the treatment of HIV/AIDS, are available in Zimbabwe:

  • darunavir (available from Harare Central Hospital [public] in July 2020)
  • emtricitabine (available from the Harare Central Hospital [public] in December 2019)
  • tenofovir alafenamide (available from the Harare Central Hospital [public] in December 2019 but subject to supply problems)
  • ritonavir (available from the Harare Central Hospital [public] in February 2020)
  • cobicistat (available from the Harare Central Hospital [public] and the Avenues Clinic [private] in Harare in July 2020)
  • dolutegravir (available from the Harare Central Hospital [public] in July 2020)
  • rezolsta (available from the Harare Central Hospital [public] in July 2020)
  • abacavir (available from the Avenues Clinic [private] in Harare in June 2020 but subject to supply problems)
  • atazanavir (available from the Avenues Clinic [private] in Harare in June 2020 but subject to supply problems)
  • lamivudine (available from the Avenues Clinic [private] in Harare in June 2020 but subject to supply problems)
  • epzicom (available from the Avenues Clinic [private] in Harare in June 2020 but subject to supply problems)
  • atazanavir + ritonavir (available from the Avenues Clinic [private] in Harare and the Harare Central Hospital [public] in June 2020 but subject to supply problems)
  • elvitegravir (available from the Avenues Clinic [private] in Harare and the Harare Central Hospital [public] in November 2019 but subject to supply problems)
  • genvoya(available from the Avenues Clinic [private] in Harare and the Harare Central Hospital [public] in November 2019 but subject to supply problems)
  • descovy (available from the Trinity Pharmacy [private] in Harare in February 2020)

Annex A of the Home Office Note contains the following further List of available medication according to MedCOI:

  • abacavir (subject to supply problems in June 2020), amlodipine, atazanavir (subject to supply problems in June 2020), atazanavir + ritonavir (subject to supply problems in June 2020)
  • carboplatin, citalopram (subject to supply problems in May 2020), cobicistat darunavir , dolutegravir
  • emtricitabine, elvitegravir (subject to supply problems in November 2019), enalapril, entecavir (subject to supply problems in June 2020), epzicom (subject to supply problems in June 2020), escitalopram
  • fluorouracil, fluoxetine110, fluvoxamine, folinic acid
  • genvoya(subject to supply problems in November 2019)
  • amivudine (subject to supply problems in June 2020), levothyroxine (subject to supply problems in November 2019) lidocaine, liothyronine sodium (subject to supply problems in November 2019)
  • morphine
  • oxaliplatin
  • paclitaxel, paroxetine
  • ramipril, rezolsta, ritonavir
  • sertraline
  • enofovir alafenamide (subject to supply problems in June 2020), temofovir disoproxil (subject to supply problems in June 2020)

 HOW THE HOME OFFICE APPROACH MEDICAL CONDITION CLAIMS

Via their Home Office Policy Guidance, Medical claims under Articles 3 and 8 of the European Convention on Human Rights (ECHR) Version 8.0, 19 October 2020, the Home Office maintain the position that, “The threshold in Article 3 medical cases is very high, as set out in the UK Supreme Court case of AM (Zimbabwe) [2020] UKSC 17………”

In AM(Zimbabwe), the  Supreme Court held that the test is a demanding one {23 and 32]:

“23.  Its new focus on the existence and accessibility of appropriate treatment in the receiving state led the Grand Chamber in the Paposhvili case to make significant pronouncements about the procedural requirements of article 3 in that regard. It held

(a)    in para 186 that it was for applicants to adduce before the returning state evidence “capable of demonstrating that there are substantial grounds for believing” that, if removed, they would be exposed to a real risk of subjection to treatment contrary to article 3;

……………….

 32.The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements. Yet observations on them may even now be made with reasonable confidence. The basic principle is that, if you allege a breach of your rights, it is for you to establish it. But “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic (2008) 47 EHRR 3, para 179. It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle. The threshold, set out in para 23(a) above, is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated. It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department [2019] UKUT 397 (IAC). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal”.

In order for an applicant to establish that there would be a breach of Article 3 on medical grounds if they were removed from the UK, they must show that there are substantial grounds for believing that:

They would face a real risk of being exposed to either:

  • a serious, rapid and irreversible decline in their state of health resulting in intense suffering, or
  • a significant reduction in life expectancy – (‘significant’ means ‘substantial’) and whether a reduction in life expectancy is substantial will depend on the facts of the case

The serious, rapid and irreversible decline in health leading to intense suffering and/or the significant reduction in life expectancy must be as a result of either:

  • the absence of appropriate treatment in the receiving country, or
  • the lack of access to such treatment

An applicant should produce evidence of all of the following:

  • their medical condition
  • their current treatment for their medical condition
  • the likely suitability of any alternate treatment for their medical condition
  • the effect that an inability to obtain effective treatment would have on their health

The applicant must produce evidence to show that on the face of it there is an infringement of their rights which, if it wasn’t challenged, would establish a breach of Article 3 on medical grounds.

It is for the applicant to adduce evidence about their medical condition; current treatment; the likely suitability of any other treatment; and the effect of their inability to access it.

The applicant must provide documented evidence of their medical condition, from a qualified and certified medical practitioner with responsibility for their care (and with any relevant specialist qualification), with:

  • specific details of their condition
  • the treatment being provided
  • the prognosis if treatment is sustained
  • the likely effects of withdrawal of treatment and the likely suitability of any alternate treatment for their medical condition.

The Home Office must investigate any serious doubts about whether an applicant can be safely removed from the UK without breaching Article 3 on medical grounds. This is supposed to be done on a case by case basis, using evidence about the availability and accessibility of treatment in the receiving state to decide:

  • whether the care and treatment which is generally available in the receiving state is in practice sufficient to prevent a breach of Article 3, and
  • whether care and treatment is accessible, taking into consideration:

-cost

-the existence of a family/support network, and

-geographical location

After the Home Office considerations, if serious doubts persist, the UK needs to obtain individual assurances from the receiving state that appropriate treatment would be available and accessible to the applicant. Individual assurances need only be sought where serious doubts remain about whether they can be safely removed from the UK without breaching Article 3 on medical grounds.

FRESH HUMAN RIGHTS CLAIM BASED ON MEDICAL CONDITION

The Home Office Note paints a poor picture of the state of the health care system in Zimbabwe, however reliance should not be placed upon this Note alone to support a medical condition human rights claim.

For example in relation to HIV treatment, there have over the years running to this year, been frequent reported shortages of ARV drugs in Zimbabwe, an issue affecting availability of treatment.  Apart from stating against the relevant medication, “ available…. subject to supply problems”, the Home Office Note does not delve to any clarificatory extent into these persistent problematic issues and as such detailed independent research needs to be undertaken.

Overall, consideration should be had to the following when preparing and submitting a fresh medical condition human rights claim:

  • Careful regard to past Home Office/Tribunal decisions: Where there have been previous proceedings especially an appeal in the Tribunal, the starting point should be to consider the basis upon which the past human rights claim failed and then take matters forward from there.
  • Application package: A carefully prepared application package needs to be submitted in support of the initial claim or fresh claim to include the documentation referred to below.
  • Applicant’s statement: The Home Office will be expected to undertake consideration of a range of factors based on the individual facts of each case. An applicant should prepare a statement in support of the application addressing the requisite applicable factors as per the circumstances of their case.
  • Medical Report: As above, a medical report will need to be obtained. Requisite questions need to be posed to the Consultant preparing the report so that an effective medical report may be produced. General records of GP attendances/summaries etc are not adequate on their own but can, where relevant, supplement the especially prepared medical report.
  • Country expert Report: Where treatment is available in the court of return, the Home Office will need to consider if it is also accessible to the applicant in terms of costs and location (in relation to where they live) in the country of return, and what support they would have from family and friends.  Where having regard to the research and considerations undertaken by the applicant, funding permitting, a respected country expert may be instructed  to prepare a report addressing potentially problematic issues.
  • Written representations and outcome of research: Whether medical treatment and care is accessible will involve consideration, in the round, of the cost of treatment from the state, from domestic and international non – governmental organisations as well as assistance in obtaining treatment from state and private healthcare providers; support from family or friends in providing care and paying for treatment, and the applicant’s own ability to afford treatment. In assessing if treatment is accessible the Home Office also need to consider any physical obstacles that the applicant may need to overcome to obtain treatment. For instance, the applicant may live in a rural part of the country with limited transport options but have to travel to the only hospital that offers the relevant treatment in a city, hundreds of miles away. In order to address these issues, written representations in support of the application should address matters and the outcome of conducted research should be included with the application package.

 

 

Undocumented Zimbabwean left in legal limbo by the Home Office? You may be eligible to apply for leave to remain

 

Due to the instability which prevailed in Zimbabwe, there was for a good number of years no enforced removals from the UK to that country, resulting in many affected Zimbabwean nationals accruing lengthy residence in the UK, whilst subject to temporary admission.

Such affected persons, whilst here for substantial periods, do not yet fulfil the requirements of the 20year Rule but are still required to report regularly, with some experiencing harsh conditions, unable to work or access medical treatment.

Caselaw has potential impact upon such undocumented  Zimbabwean nationals who have been left in legal limbo by the Home Office over a significant period of time.

If the answer to the following questions is yes, you may be in a position to start considering  advancing an appropriate case for a grant of leave to remain:

  • have you been in the United Kingdom for a substantial number of years?
  • were you previously on Temporary Admission during your stay in the UK?
  • are you now subject to Immigration Bail?
  • have you been reporting to the Home Office?

The previous UK policy of non- removals to Zimbabwe is just one aspect for consideration: there are several other factors which apply depending on the circumstances of each case.

Where you wish to discuss your potential eligibility to apply for leave to remain, call or email Alice Muzira of AurexLegal Solicitors:

  • Telephone: 07940772506
  • Email: alice.muzira@aurexlegal.co.uk

Home Office delays: FLR(FP) applications not subject to a service standard due to COVID-19 pandemic “severe disruption” says the Home Office

“I don’t understand……..why is my application taking over 8months to be decided, the Home Office only took 5months to decide the last one?”, so asks an applicant in exasperation, clearly fed-up with the delay in receiving a decision from the Home Office.

Home Office customer service standards for processing applications from those applying to remain on a temporary basis is stated to be 8weeks. Customers applying in the UK for indefinite leave to remain or no time limit (NTL) should expect to have their applications decided within 6months.

Home Office service standard processing times for standard applications (6 months or 8 weeks depending on application type) will start when they receive an application.

Relevant published information also makes it clear: “If there is a problem with your application or if it is complex, we will write to explain why it will not be decided within the normal standard. We will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard. The letter will explain what will happen next”.

Immigration practitioners have ready access to this information and so to do applicants, however with reference to FLR(FP) applications in particular, it is a myth that the Home Office periodically contact applicants with progress updates. Nor do they write in to even acknowledge receipt of a submitted application apart from enabling receipt of a vague general automated email  received upon submission of an online application.

Applicants are simply left to wallow, month following month of deafening silence with chaser correspondence from applicants being largely ignored.

This was the state of affairs for one such applicant until the following response was received a month after an emailed complaint to the Home Office:

“Thank you for your email of 16 February 2021 where you have raised a complaint about the delay in making a decision on your client, Mrs …………’s, application for Further Leave to Remain (FLR).

I am sorry for any frustration, but I am unable to uphold your complaint as the delay has not been down to any maladministration on the part of the business. It will hopefully be helpful if I explain further.

FLR(FP) applications are not presently subject to a service standard. This is due to their potential complexity, relying as they tend to on human rights claims.

All applications are subject to enquiries with other government departments and international organisations to ensure that the statutory requirements have been satisfied, and I would add that the extent and length of time taken to complete these enquiries varies according to the particular circumstance of each application. I am afraid that we are therefore unable to provide a timescale for completion. I would also point out that the COVID-19 pandemic has caused severe disruption to our services, and this has led to further delays which have been down to circumstances beyond our control.

What I can confirm is that Mrs ……..’s current application was submitted prior to her previous grant of leave expiring, and so her application is therefore ‘in time’ and is covered by 3C leave. This means that the conditions of this previous grant of leave will be extended until a decision is made on her current outstanding application. Further guidance on 3C leave can be found here: https://www.gov.uk/government/publications/3c-and-3d-leave.

I appreciate that your client may be disappointed that I have been unable to provide a timescale for a decision, but I hope that my response has helped to explain the position.

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Substantial fees are required by the Home Office before FLR(FP) applications can be considered (£2612.20 per applicant). The Home Office state there are “severe disruptions” caused by the Covid-19 pandemic. In such circumstances, in the absence of relevant clarifications to this effect on their website, the Home Office should be emailing each and every “customer” so affected instead of maintaining a wall of silence, until provoked into responding.   The current standard  automated confirmation emails received on submission of an online application could contain this information so that applicants are on notice from the beginning that there might be some delays to progression of their applications and that standard service times do not currently apply.

There are most likely much more categories of applicants, including asylum claimants, who have and will see  delays in progression and decision making.

In some cases, the Home Office are also granting leave to remain whilst also indicating within grant letters, that due to the Covid-19 pandemic, passports will be retained until such time as it is possible to return them.

Briefly, in relation to addressing issues, of course a review of such a response as above from the Complaints Unit can be sought however an applicant may also consider approaching their local MP so that MP representations may be made on their behalf, with such action possibly eliciting a decision.

Depending on the circumstances of a case and upon whether an applicant so instructs/wishes, a  PAP letter before claim/action can be sent to the Home Office as a starting point in seeking to challenge by way of judicial review, a delay in decision-making as unlawful.

Before commencement of actual judicial review proceedings, an immigration practitioner should however ensure they are well-versed with the principles and reasoning emanating from the well-known line of cases which have considered issues of maladministration, unlawful delays and damages.