Updated Home Office Covid-19 Guidance confirms a visitor or applicants with leave of up to 6 months can switch into a family or private life route

Prior to today’s updated Guidance, a blog post of much earlier today enquired whether Home Office Covid- 19 Guidance as published on 29 May 2020, permits visiting partners of British citizens to switch into the family life partner route: https://ukimmigrationjusticewatch.com/2020/06/08/by-passing-entry-clearance-requirements-does-home-office-covid-19-guidance-permit-visiting-partners-of-british-citizens-to-switch-into-the-family-life-partner-route/

The conclusion within the blog post, despite what is provided for in Appendix FM and usual accompanying Guidance, was that a visitor should be able to switch into the family life route on the following basis:

“On its face, if it is to be argued that  a visitor currently in the UK can rely on the published Home Office Covid-19 Guidance so as to switch  and submit a leave to remain application under the family life Rules, this appears in direct contradiction to existing Rules, other  “usual” Guidance  and caselaw as set out above.

It is important to note however that the new Covid-19 Switching Guidance is a temporary measure, a concession,  in response to the current pandemic, likely intended to only allow such switching applications to be submitted within a period of defined duration. To that extent, where temporary Guidance is brought expressly into existence by the Government to cater for a certain event or circumstances, then the current Covid-19 Guidance is not inconsistent with the Immigration Rules.

………………

In the absence of  any category application routes being set out, the Covid-19 Advice expressly disapplies or waives the requirement to return broad and apply for entry clearance. It should be capable of reliance  for example by visitors intending to submit a leave to remain application on the family life partner route…….. What would be the point of refusing such an application for  leave to remain on the basis the applicant should return abroad and apply for entry clearance where they  cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19)?”

The blog post concludes by suggesting on how best to proceed with an application under the family life route as a visitor.

The Home Office have today, 8 June 2020, updated their Covid-19 Guidance to confirm that up to 31 July 2020,  applicants in the UK as a visitor or with leave of up to 6 months can switch into a family or private life route:- Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents

The updated Guidance should therefore be read as published in context as follows:

“If you’re applying to stay in the UK long-term

You can apply from the UK to switch to a long-term UK visa until 31 July 2020 if your leave expires between 24 January 2020 and 31 July 2020. This includes applications where you would usually need to apply for a visa from your home country.

You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.

This includes those whose leave has already been extended to 31 July 2

You can apply online. The terms of your leave will remain the same until your application is decided.

……………………….

If you’re applying to enter the UK or remain on the basis of family or private life

There are temporary concessions in place if you’re unable to meet the requirements of the family Immigration Rules to enter or remain in the UK due to the coronavirus outbreak. Up to 31 July, applicants in the UK as a visitor or with leave of up to 6 months can switch into a family or private life route provided the requirements of the Immigration Rules are otherwise met. See If you’re applying to stay in the UK long-term.

If you’re unable to travel back to the UK due to coronavirus travel restrictions and your leave has expired, a short break in continuous residence will be overlooked. You are expected to make your next application as soon as possible.

………………………………”

The switching concession as updated temporarily takes the sting out of the recently published Upper Tribunal decision in  Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020)

The effect of Younas  has been considered in a recent blog post: https://ukimmigrationjusticewatch.com/2020/06/02/chikwamba-and-zambrano-cases-real-practical-effect-of-younas-is-erosion-and-dilution-of-provisions-underpinning-family-life-claims/

Younas recently concluded in relation to paragraph EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK), that as the appellant had leave as a visitor when she submitted  her application in 2016 and that leave continued by operation of section 3C of the Immigration Act 1971, she therefore did not satisfy the Immigration Rules, Appendix FM because she did not meet the eligibility immigration status requirement at E-LTRP.2.1.

Having regard to the updated Home Office Guidance, it appears that had Younas applied for leave to remain as a partner whilst holding a visitor visa relying on the Home office Covid-19 switching Concession, she would likely have been granted leave to remain by the Home Office in the first instance. The adverse credibility findings and inconsistencies that emerged in Younas seem to have largely come about during the course of oral evidence before an unyielding Upper Tribunal Panel following a Home Office refusal decision.

In essence, the current position is that those like Younas who sought to apply for leave to remain on the family life route pre Covid-19, whilst holding a visitor visa, are unlikely, having regard to the decision in the Upper Tribunal, to succeed under the Immigration Rules Appendix FM – unless the claim succeeds on exceptional circumstances outside the Rules.

Conversely, a visitor who arrived in the UK  two months ago, can on the basis of the concession, switch into the  family route and not have it held against them as contrary to their previously stated intention to return abroad at the end of their visit.

Without further clarificatory Guidance on the concession, it currently appears that a visitor can seek to purposively arrive in the UK before 31 July 2020, intently focused on relying on the published Guidance and then apply to switch into the family life route. The concession is welcome, however without further Guidance to cater for the gap, the Home Office appear to have left it wide open for new visitor arrivals, especially non -visa nationals, to legally circumvent the requirement to obtain  prior entry clearance as a partner of a British citizen or parent of a British citizen child and so legitimately apply for leave to remain whilst in the UK.

By-passing entry clearance requirements: Does Home Office Covid-19 Guidance permit visiting partners of British citizens to switch into the family life partner route?

Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents , https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents,  is stated to provides advice for visa customers and applicants in the UK, visa customers outside of the UK and British nationals overseas who need to apply for a passport affected by travel restrictions associated with coronavirus.

For those persons in the UK, the Advice/Guidance provides that if their  leave expires between 24 January 2020 and 31 July 2020, their visa will be extended to 31 July 2020  if  they cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19).

Although the Guidance also advises that affected persons are expected to take all reasonable steps to leave the UK before 31 July 2020 where it is possible to do so, relevantly, the current publication also states:

“If you’re applying to stay in the UK long-term

You can apply from the UK to switch to a long-term UK visa until 31 July 2020 if your leave expires between 24 January 2020 and 31 July 2020. This includes applications where you would usually need to apply for a visa from your home country.

You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.

This includes those whose leave has already been extended to 31 July 2020.

You can apply online. The terms of your leave will remain the same until your application is decided”.

The Guidance in this regards is very brief and provides no clarification of the types of applicants or categories of the Rules in relation to which reliance can be placed so that leave to remain applications can be submitted.

The Guidance however is in writing, in English and published as within the public domain for all to see and read.  

Is it therefore possible to do exactly what it says to do on the tin – for example, follow what is said in that Guidance for a visiting spouse or unmarried partner of a British citizen resident in the UK and apply to switch from visitor status to the family life partner  route?

The prohibition on visitors applying for leave to remain under the family life route

Both the Immigration Rules Appendix FM, relevant main  Guidance and caselaw make it clear that a visitor cannot meet the requirements of the family Immigration Rules for leave to remain in the UK.  The immigration status requirements of the Rules for Partner applications contain this prohibition.

The Immigration Rules Appendix FM provide:

“Immigration status requirements

E-LTRP.2.1. The applicant must not be in the UK-

(a) as a visitor; or

(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

……………”

Home Office Guidance, Family life (as a partner or parent), private life and exceptional circumstances, Version 8.0,2 June 2020 currently provides:

Immigration status requirements

To meet the eligibility requirements for leave to remain, the applicant must not be in the UK:

• as a visitor

• with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé, fiancée or a proposed civil partner, or was granted pending the outcome of family court or divorce proceedings

EX.1. does not apply when an applicant is in the UK with such leave

Where the applicant is in the UK as visiting friends or on holiday on a standard visit visa, it means that they have undertaken leave the UK before their visa expires. In all cases, visa or non-visa nationals have satisfied the entry clearance officer or immigration officer that they will do so, or have used eGates to enter the UK on presumption of compliance with the conditions of their stay. Those wishing to come to the UK to settle here as a partner or parent should apply for entry clearance under the family Immigration Rules. In view of that, a visitor cannot meet the requirements of the family Immigration Rules to remain in the UK.

Where an application is made by a visitor to remain, it is only where there are exceptional circumstances, that a person here as a visitor can remain on the basis of their family or private life on a 10-year route.

…………………….”

In seeking to cement the requirements of the Rules, the Upper Tribunal in  Younas (section 117B (6) (b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) (24 March 2020) found as a fact that:

“61.The appellant travelled to the UK from the United Arab Emirates in May 2016 (whilst pregnant with the child of her British citizen partner) as a visitor. Their relationship was subsisting at the time. The appellant claims that her intention was to return to the United Arab Emirates and it is only because of difficulties with the pregnancy, and then with her child’s health, that she did not do so. However, she did not adduce any medical evidence to support her claim to have been unable to return to the United Arab Emirates either whilst pregnant or shortly after the child was born. Nor has she explained why she did not return to Dubai prior to her United Arab Emirates residency visa expiring in order to avoid a situation where her only option, other than to remain in the UK, would be to return to Pakistan, where she claims she would be without any support or accommodation. We have no doubt, and find as a fact, that the appellant entered the UK with the intention of giving birth and remaining with her partner permanently. We also find that she had this intention when she completed the 2016 application form in which she stated she only wished to remain in the UK for a further six months”.

Younas also found in relation to paragraph EX.1(b) of Appendix FM (insurmountable obstacles to family life with a partner continuing outside the UK):

“72. ……. It is not sufficient, in order to satisfy the requirements of Appendix FM, that a partner of a UK citizen is able to show that there would be “insurmountable obstacles” to the relationship continuing outside the UK. It is also necessary to satisfy certain of the eligibility requirements specified in paragraph E – LTRP, including that the applicant must not be in the UK as a visitor (E-LTRP.2.1). The appellant had leave as a visitor when she submitted the 2016 application and that leave continued – and continues – by operation of section 3C of the Immigration Act 1971. She therefore does not satisfy the Rules because she does not meet the eligibility immigration status requirement at E-LTRP.2.1”.

What also proved fatal to her appeal, is the Upper Tribunal’s conclusion in Younas that the public interest required her removal because:

“98. We have found that the appellant (a) entered the UK as a visitor even though her real intention was to remain in the UK with her partner; and (b) remained in the UK despite stating in the 2016 application that she would leave after 6 months. We agree with Mr Lindsay that, in the light of this immigration history, the public interest in the appellant’s removal from the UK is strong; and the strength of that public interest is not significantly diminished because she will be able to re-enter the UK. The integrity of, and the public’s confidence in, the UK’s immigration system is undermined if a person is able to circumvent it, as the appellant has attempted to do by entering the UK as a visitor with the intention of remaining permanently. Requiring the appellant, in these circumstances, to leave the UK in order to make a valid entry clearance application as a partner, far from being merely a disruptive formality, serves the important public interest of the maintenance of effective immigration controls”.

The Court of Appeal also concluded in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109:

“41.The FtT allowed PG’s appeal on the basis that she qualified for leave to remain under paragraph EX.1(b). That was a clear error of law because PG was a visitor. PG did not meet the requirements of E-LTRP.2.1. Her status was precarious. While in the UK as a visitor, with a visa of less than five months, she began a relationship with the man who became her husband only days after she arrived and they were married one month later. The only decision that was relevant is accordingly an article 8 consideration outside the Rules which was not undertaken by the FtT”.

On its face, if it is to be argued that  a visitor currently in the UK can rely on the published Home Office Covid-19 Guidance so as switch  and submit a leave to remain application under the family life Rules, this appears in direct contradiction to existing Rules, other  “usual” Guidance  and caselaw as set out above.

It is important to note however that the new Covid-19 Switching Guidance is a temporary measure, a concession,  in response to the current pandemic, likely intended to only allow such switching applications to be submitted within a period of defined duration. To that extent, where temporary  Guidance is brought expressly into existence by the Government to cater for a certain event or circumstances, then the current Covid-19 Guidance is not inconsistent with the Immigration Rules.

Covid- 19  switching Guidance effect  –  express waiver or concession

The new Guidance does not, for example, state that visitors can now  apply to switch into the family life partner route without the need to return abroad and apply for entry clearance.

As above, the Guidance is brief,  however it can be stated that its intent is clear enough- to permit applicants who would normally be required to apply for entry clearance to switch into long term routes without leaving the UK.  Without such a conclusion, then the switching advice is redundant, illusory,  it might as well not be there.  

In the absence of  any catergory application routes being set out, the Covid-19 Advice expressly disapplies or waives the requirement to return broad and apply for entry clearance. It should be capable of reliance  for example by visitors intending to submit a leave to remain application on the family life partner route.

The entry clearance application that a returning visitor with a qualifying partner would need to make abroad is by reference to the Immigration Rules, Appendix FM.

The family life route is for those seeking to enter or remain in the UK on the basis of their family life with a person who:

  • is a British Citizen
  • is settled in the UK, or
  • is in the UK with limited leave as a refugee or person granted humanitarian protection (and the applicant cannot seek leave to enter or remain in the UK as their family member under Part 11 of the Immigration Rules).

GEN.1.2 of Appendix FM provides that “partner” means:

  • the applicant’s spouse;
  • the applicant’s civil partner;
  • the applicant’s fiancé(e) or proposed civil partner; or
  • a person who has been living together with the applicant in a relationship akin to a marriage or civil partnership for at least two years prior to the date of application

Section EC-P.1.1. of Appendix FM provides the requirements to be met for entry clearance as a partner.

Section S-EC sets out the suitability requirements for an entry clearance application as a partner.

Section E-ECP.1.1. states that the eligibility requirements for entry clearance as a partner  requires all of the requirements in paragraphs E-ECP.2.1. to 4.2. to be met:

  • Relationship eligibility requirements
  • Financial eligibility requirements
  • English language eligibility requirement

Relevantly, as the Covid-19 Advice appears to disapply the requirement to return broad and apply for entry clearance, a visiting Partner should be able submit an application for  leave to remain as the partner of a qualifying  Sponsor, switching into the family life route.

Section R-LTRP.1.1. sets out the requirements to be met for limited leave to remain as a partner.

Section S-LTR.1.1. lists the suitability requirements for limited leave to remain as a partner.

Section E-LTRP.1.1. states that to qualify for limited leave to remain as a partner, all of the eligibility requirements of paragraphs E-LTRP.1.2. to 4.2. must be met:

  • Relationship eligibility requirements
  • Immigration status eligibility requirements***
  • Financial eligibility requirements
  • English language requirement

In relation to visitors, as regards the immigration status requirement, it is SectionE-LTRP.2.1.  that provides that an  applicant must not be in the UK as a visitor or with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings.

Visitors would normally be required to return abroad and submit an application for entry clearance under the relevant Rule, however as from 24 March 2020, following the Home Office published Covid -19 Guidance, it has been expressly clarified by the Home Office that:

  • until 31 July 2020, if a person’s leave expires between 24 January 2020 and 31 July 2020, such a person  can apply from within the UK to switch to a long-term UK visa and this includes applications where a person would usually need to apply for a visa from their home country.

The Guidance provides that if a person has already had their visa extended to 31 May 2020 ( by reference to earlier published Covid -19 Guidance) their visa will be extended automatically to 31 July 2020.

A visitor holding such extended leave, should on the basis of the Home Office Guidance be in a position to specifically rely on that advice( printing it out on the date of submission of the  online application)  and making representations including providing supportive evidence to show that the requirements of the relevant Immigration Rules are met – https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-se-family-members-specified-evidence

What would be the point of refusing such an application for  leave to remain on the basis the applicant should return abroad and apply for entry clearance where they  cannot leave the UK because of travel restrictions or self-isolation related to coronavirus (COVID-19)?

Moreover, it was only on 29 May 2020 that the Covid -19 Guidance clarified:

“Some UK Visa Application Centres (VACs) are resuming services, where local restrictions allow. For updates to the status of VACs in your country, contact:

Ongoing global restrictions mean some UKVI services will remain closed. Contact your local VAC to find out the latest status. Where services are resuming, existing customers will be contacted”.

On- line application form FLR(FM) is used by those applying  to extend their stay in the UK as the partner or dependent child of someone who is settled in the UK or who is a refugee or under humanitarian protection. In  the absence of any other newly published application form, apart from Form FLR(FP), this seems the most relevant and appropriate form for use on switching into the family life route.

To enable online submission of the application form, fees of £2052.20 to be paid online will  be collected per applicant, broken down currently as follows:

  • Home Office application fee- £1033.00
  • Immigration Health Surcharge- £1000.00
  • Biometric enrolment fee- £19.20

Section 3C leave whilst the leave to remain application is pending

If a visitor were to timely  and validly apply for leave to remain as a partner, relying on the Home Office Covid-19 Switching Advice, they would obtain the benefit of Section 3C leave pending a decision on the application or connected timely submitted appeal.

The Upper Tribunal in Younas concluded at paragraph 72: “The appellant had leave as a visitor when she submitted the 2016 application and that leave continued – and continues – by operation of section 3C of the Immigration Act 1971. She therefore does not satisfy the Rules because she does not meet the eligibility immigration status requirement at E-LTRP.2.1.”

The current Covid-19 Guidance set out above concludes by stating: “You can apply online. The terms of your leave will remain the same until your application is decided”.

If still viewed as holding visitor leave prior to the  expiry of the automatic extension until  31 July 2020, a visitor who therefore applies validly for leave to remain before that visitor visa expires, continues to hold the status of a visitor until a decision on the application is made by the Home Office. The applicant will not be viewed as an overstayer whilst the leave to remain application is under consideration in these circumstances.

5year or 10year route to settlement?

The route to settlement (5-year or 10-year) an applicant can qualify for, depends on whether all, some or no eligibility requirements are met.

All eligibility requirements must be met for a partner to qualify for entry clearance or leave to remain on the 5-year route.

Otherwise to qualify for entry clearance or leave to remain on a 10-year route:

• an applicant must meet all eligibility requirements, and rely on other sources of income to meet the financial eligibility requirement because there are exceptional circumstances in accordance with GEN.3.1. of Appendix FM

• an applicant must meet some and qualify for an exception to the other requirements because EX.1.(a) or (b) of Appendix FM applies

• an applicant meets some or no eligibility requirements but there are exceptional circumstances in accordance with paragraph GEN.3.2. of Appendix FM

The Home Office can be asked to consider the leave application on the basis that although the applicant is without the requisite entry clearance( which has been waived) and is a visitor  who has placed reliance upon  the Home Office Covid -19 Advice, having regard to the submitted representations and evidence:

  • Leave should be granted on the basis that all the eligibility requirements of the Immigration Rules for a partner have been met- leading to a grant on the 5year route to settlement; alternatively
  • Leave should be granted where all the eligibility requirements of the Immigration Rules for a partner  have not been met, leading to grant of leave on the 10year route to settlement.

Possible issues

The Secretary of State could consider a leave to remain application under the family life partner route from a person currently holding leave as a visitor relying on the Covid-19  Switching Guidance and grant leave to remain, as requested, as a partner.

Alternatively, the result of such an application could be a refusal of leave on the basis that the published Covid-19 Switching Advice does not have the effect sought by the applicant i.e that visitors can apply in-country on the family life route under Appendix FM  without returning abroad and applying for entry clearance. The Secretary of State could also add on that no exceptional circumstances have been identified justifying a grant of leave to remain outside the Rules on Article 8 grounds. 

A refusal decision should generate an in -country right of appeal to the Tribunal ( unless the claim is certified as clearly unfounded under Section 94 of the 2002 Act, providing for an out -of -country right of appeal).

A visitor in the UK whose leave has been extended to 31 July 2020, may have:

  • contemplated remaining in the UK beyond their leave for whatever reason( thereby remaining here illegally as an overstayer, which is a criminal offence)
  • intended to apply for leave to remain under Appendix FM whatever the outcome, whether or not the Covid -19 Advice caters for their position

It is such persons who could most likely consider taking advantage of the Home Office switching Guidance and apply timely for leave to remain as a partner, seeking to switch into the settlement route.

Where a visitor considers that the current Covid-19 switching Advice will not cover them for the purposes of a leave  to remain application as a partner under the Rules, then consideration should be given to leaving the UK by 31 July 2020(or by any further published extension date)  so as to make the relevant entry clearance application and avoid becoming an overstayer.

The potential to switch relying upon the Covid-19 Guidance not only impacts visitors wishing to apply for leave as Partners under the Rules  but also visitors  seeking to apply for leave to remain as a Parent under Appendix FM. Visiting parents of  the following:

  • a child who is a British Citizen or settled in the UK; or
  • a child that has lived in the UK continuously for at least the 7 years immediately preceding the date of application

are not eligible for leave to remain under Appendix FM because the immigrations status requirements apply to them as well:

Immigration status requirement

E-LTRPT.3.1. The applicant must not be in the UK-

(a) as a visitor; or

(b) with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;

…………………”

The Home Office should be publishing fuller and detailed Guidance to cater specifically for  switching applications by those whose leave has been extended to 31 July 2020.  What category of applicants are affected and so able to apply to switch? Is there to be a specific type of application form for use? The current circumstances leave room for some degree  of speculation  and therefore  not conducive to the need to give certain and clear advice.  For now however, what the Covid-19 Guidance on switching translates to is a concession or temporary policy by the Government, allowing those individuals who would normally be required to leave the UK and apply for entry clearance from abroad,  to apply in – country to extend their leave in the UK on a long term route.  

Paposhvili approach: expanded interpretation of Article 3 by Supreme Court in Zimbabwean HIV medical condition case

Following the decision of the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 (29 April 2020), it is of course now time for the Secretary of State to cease the barely concealed pretence of nearly 4years: a pretence that  the decision of the Grand Chamber of the European Court of Human Rights (“the ECtHR”) in Paposhvili v Belgium [2017] Imm AR 867 is a legal aberration.

The perfected art of standard refusal decisions that deliberately neglect to factor in the relevance and effect of Paposhvili in medical condition cases should now be a thing of the past.

The maintenance and publication of Home Office Guidance (Human rights claims on medical grounds, currently dated 20 May 2014) for Home Office decision- makers, which refuses to acknowledge the very existence of  Paposhvili, should be seen no more.

The glaring reality has always been that Paposhvili is a judgement to be reckoned with. This, the Secretary of State has been refusing to accept.

Many an appeal has been allowed by the First Tier Tribunal since Paposhvili was published( December 2016), only to be  overturned by the Upper Tribunal on appeal by the Secretary of State placing reliance on the case of “N”.

Just as much as the Secretary of State has remained smugly and fairly confident for well over a decade that the case of “N” was here to stay, so too must there be a constant reminder  of the new legal heavyweight in town.

For an appeal that has been acknowledged to raise “the most controversial questions which the law of human rights can generate”, the judgement of the Supreme Court is with a good measure of relief, welcomingly short, short enough to retain an interest sufficient enough to enable a full read of the decision.  

Rising however beyond the current legal high and to be expected all matters considered following AM(Zimbabwe), will be the usual lengthy exposition from the Upper Tribunal or nudge in from the Court of Appeal, hopefully  not with a view to watering down the practical effect of Paposhvili but with a view to bravely and permanently throwing off the remnants of all and any remaining invisible shackles that the case of “N” had bound the lower courts in for nearly two decades.

The cases of D and N – setting  of the high threshold test in Article 3 in medical condition cases

In brief, the applicant in the D v United Kingdom (1997) 24 EHRR 423 was about to die of AIDS; and the essence of the decision was not the absence of treatment on St Kitts but the inhumanity of, in effect, pulling a man off his deathbed.

N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] UKHL 31, [2005] 2 AC 296, related to a claimant who had been diagnosed with HIV and Lady Hale concluded as follows in the House of Lords:

“69. In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.”

The appellant in the N case in the House of Lords then became the applicant in the N case in the ECtHR – N v United Kingdom (2008) 47 EHRR 39 and again she relied on article 3.

By a majority, her application was rejected. The Grand Chamber observed that, since the judgment in the D case 11 years previously, the court had never held that removal of an alien would violate the article on grounds of ill-health;  that in the D case the applicant had appeared to be close to death and that a reduction in life expectancy in the event of removal had never in itself been held to amount to a violation of article 3; that, although there might be “other very exceptional cases in which the humanitarian considerations are equally compelling”, the high threshold for violation set in the D case should be maintained; and  much as Lord Brown had suggested, that an obligation to provide free and unlimited treatment for a serious condition, if of a standard unmet in the applicant’s country of origin, would place too great a burden on contracting states.

Paposhvili and the” new criterion

Following analysis of the decision in the D case and of its own decision in the N case, the Grand Chamber in Paposhvili expressed the view in para 182 that the approach hitherto adopted should be “clarified”.  The  Grand Chamber proceeded as follows:

“183.  The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v The United Kingdom (para 43) which may raise an issue under article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness”.

What did AM ask the Supreme Court to do?

AM, a Zimbabwean foreign national criminal subject to deportation and living with HIV, relied on Article 3 of the Convention which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

At his appeal hearing before the Tribunal, AM relied on a report from a nurse as well as a report from a consultant physician in the same clinic who had been treating him for four years. The consultant reported that the treatment of AM with Eviplera was continuing satisfactorily and further clarified: “However, there is no cure for HIV at present. It is vital for individuals on antiretroviral therapy to be maintained on lifelong HIV treatment. Should this gentleman stop his treatment or be denied access to his treatment, his HIV viral load will rise, his CD4 count will decrease and he will be at risk of developing opportunistic infections, opportunistic cancers and premature death. It is vital for individuals living with HIV to maintain regular specialist follow up, and access to effective antiretroviral therapy.”

During his hearing before the First Tier Tribunal, reliance was placed upon a country information report referable to Zimbabwe which stated that the list of ART medications available there did not include Eviplera, which AM was taking, which had not given rise to significant side-effects and had enabled his CD4 blood count to increase and his HIV viral load to become undetectable.

AM argued if that he was deported to Zimbabwe, he would be unable to access the medication in the UK which prevents his relapse into full-blown AIDS.

AM sought an expanded interpretation of Article 3 in the context of a situation such as his own  and asked the Supreme Court to depart from the decision in N  by reference to the judgment in the Paposhvili case and to remit his application for rehearing by reference to Article 3

How did the Supreme Court approach AM’s appeal?

The Supreme Court  began by observing in reference to the  exposition at paragraph 183 of Paposhvilli  that it was hard to think that it was encompassed by the reference in the N case to “other very exceptional cases” because any application of the criterion in the quoted passage would be likely to have led to a contrary conclusion in the N case itself.

As regards addressing the words “although not at imminent risk of dying” in the first long sentence of paragraph 183 in Paposhvili, the  Supreme Court stated that the words refer to the imminent risk of death in the returning state. The Supreme Court concluded that the Grand Chamber was thereby explaining that, in cases of resistance to return by reference to ill-health, article 3 might extend to a situation other than that exemplified by  D case, in which there was an imminent risk of death in the returning state.

(a)Procedural requirements in Article 3:

Summarizing on the effect of Paposhvili, the Supreme Court in AM(Zimbabwe) stated as follows [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;

(b)    in para 187 that, where such evidence was adduced in support of an application under article 3, it was for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state;

(c)    in para 189 that the returning state had to “verify on a case-by-case basis” whether the care generally available in the receiving state was in practice sufficient to prevent the applicant’s exposure to treatment contrary to article 3;

(d)  in para 190 that the returning state also had to consider the accessibility of the treatment to the particular applicant, including by reference to its cost if any, to the existence of a family network and to its geographical location; and

(e)  in para 191 that if, following examination of the relevant information, serious doubts continued to surround the impact of removal, the returning state had to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant”.

The Supreme Court noted that it was the failure of Belgium to discharge the suggested procedural obligations which precipitated the Grand Chamber’s conclusion in the Paposhvili case that deportation of the applicant to Georgia would have violated his rights under article 3. The Court observed  that it seemed that the Grand Chamber treated the doctor’s evidence as “capable of demonstrating that there [were] substantial grounds for believing” that deportation would expose him to a real risk of treatment contrary to article 3. Belgium’s procedural obligations were therefore engaged but not discharged.

(b)Criticism of the Court of Appeal’s approach in AM(Zimbabwe):

The Supreme Court noted the following  regarding  the decision of the Court of Appeal in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64:

  • the Court of Appeal’s view, that the decision in Paposhvili reflected only a “very modest” extension of the protection against return given by article 3 in cases of ill-health.
  • that the Court of Appeal fastened in para 39(iv) upon the Grand Chamber’s questionable choice of language that the previous approach to such cases needed only to be “clarified”.
  • that the Court of Appeal buttressed its restrictive view of the effect of the decision by claiming in para 39(ii) that the Grand Chamber had noted that there had been no violation of article 3 in the N case and in para 40 that the Grand Chamber had “plainly regarded that case as rightly decided”.

The Supreme Court was however at pains to point out that a careful reader of paragraphs 178 to 183 of the judgment in the Paposhvili case might find it hard to agree with the Court of Appeal in this respect. Although the Grand Chamber noted that it had been held in the N case there had been no violation of article 3, there was however no express agreement on its part with that conclusion and, subject to the precise meaning of the new criterion in para 183 of the judgment, its application to the facts of the N case would suggest a violation.

The Supreme Court further observed that the Court of Appeal interpreted the new criterion in para 183 of the judgment in the Paposhvili case, at para 38 as follows:

“This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (ie to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (ie likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”

The Supreme Court concluded that there was validity as to the advanced criticism of the Court of Appeal’s interpretation of the new criterion.

In its first sentence the reference by the Grand Chamber to “a significant reduction in life expectancy” was interpreted as “death within a short time”. But then, in the second sentence, the interpretation developed into the “imminence … of … death”; and this was achieved by attributing the words “rapid … decline” to life expectancy when, as written, they apply only to “intense suffering”.  The Supreme Court concluded that the result was that in two sentences a significant reduction in life expectancy had become translated as the imminence of death and this was too much of a leap.

(c)Meaning of “significant” reduction in life expectancy in para 183 of Paposhvili:

In the Supreme Court’s view, the word “significant” in context meant substantial.

Were a reduction in life expectancy to be less than substantial, it would not attain the minimum level of severity which article 3 requires.

A reduction in life expectancy to death in the near future is more likely to be significant than any other reduction.

(d)It is for the claimant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated:

The Supreme Court emphasized the the Grand Chamber’s pronouncements in Paposhvili about the procedural requirements of article 3, could on no view be regarded as mere clarification of what the court had previously said.

Pending the giving of judgement in Savran in the Grand Chamber, the Supreme Court made the following observations regarding the procedural requirements:

  • The basic principle is that, if a claimant alleges a breach of their rights, it is for the claimant 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 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.
  • Irrespective of the perhaps unnecessary complexity of the test, it must not be imagined that it represents an undemanding threshold for an applicant to cross.
  • 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.
  • Sales LJ was correct in the Court of Appeal 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).
  • The arrangements in the UK are such that the decision 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

(e)Challenge or counter by the Secretary of State to the adduced evidence:

The Supreme Court proceeded to state as follows:

In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it in the manner helpfully outlined in the judgment in the Paposhvili case at paras 187 to 191 and summarised at para 23(b) to (e) above by the Supreme Court in AM(Zimbabwe).

The premise behind the guidance is that, while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state.

Paragraph 187 of Paposhvili provides that, where such evidence is adduced in support of an application under article 3, it  is for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state- the Supreme Court noted that “any” doubts in paragraph 187 of Paposhvili means any serious doubts – for proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention.

(f)Departure from the case of “N”- adoption of wider interpretation in Article 3:

The Supreme Court in AM(Zimbabwe) expressly departs from N at paragraph 34 of its judgement:

“This court is not actively invited to decline to adopt the exposition of the effect of article 3 in relation to claims to resist return by reference to ill-health which the Grand Chamber conducted in the Paposhvili case. Although the Secretary of State commends the Court of Appeal’s unduly narrow interpretation of the Grand Chamber’s exposition, she makes no active submission that, in the event of a wider interpretation, we should decline to adopt it. Our refusal to follow a decision of the ECtHR, particularly of its Grand Chamber, is no longer regarded as, in effect, always inappropriate. But it remains, for well-rehearsed reasons, inappropriate save in highly unusual circumstances such as were considered in R (Hallam) and R (Nealon) v Secretary of State for Justice (JUSTICE intervening) [2019] UKSC 2, [2020] AC 279. In any event, however, there is no question of our refusing to follow the decision in the Paposhvili case. For it was 15 years ago, in the N case cited at para 2 above, that the House of Lords expressed concern that the restriction of article 3 to early death only when in prospect in the returning state appeared illogical: see para 17 above. In the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should today depart”.

(g)Remittal of the appeal to the Upper Tribunal for up-to-date evidence properly directed to the Grand Chamber’s substantive and procedural requirements:

The Supreme Court noted that from the evidence submitted by the appellant to the First-tier Tribunal in support of his claim under article 8, the Secretary of State extracted the two medical reports  provided and she contended that they failed to cross the threshold required to be crossed by applicants pursuant to para 186 of the decision in  Paposhvili. In the light of its erroneous opinion that the decision in the Paposhvili case required evidence of a real risk that either intense suffering or death would be imminent in the receiving state, it was therefore not difficult for the Court of Appeal to conclude, that the two medical reports were insufficient to cross that threshold.

The Supreme Court proceeded to state that apart from the fact that the Court of Appeal’s conclusion about the insufficiency of the reports was flawed, it was inappropriate to extract the medical reports from the other evidence submitted in furtherance of the claim under article 8 and to ask whether they crossed the threshold now required of an applicant under article 3 pursuant to the decision in the Paposhvili case.

It was noted that the reports did not address that requirement, which did not exist when they were written as they were both written more than five years ago.

In the Court’s view, they could not address the argument presented to it by the appellant, and strongly disputed by the Secretary of State, namely that, upon application of the Supreme Court’s wider interpretation of the Grand Chamber’s decision, the reports sufficed to cross the requisite threshold.

The proper course was to allow the appeal and to remit the appellant’s proposed claim under article 3 to be heard, on up-to-date evidence properly directed to the Grand Chamber’s substantive and procedural requirements, by the Upper Tribunal.

What next?

A reported decision of either the Upper Tribunal or Court of Appeal will soon “ breakdown” what they believe the Supreme Court really meant when it departed from “N”.

The Secretary of State will in turn, at some point of her choosing, also set out in published Guidance what she believes the Supreme Court was driving at.

The decision of the Supreme Court is fairly short however an unenviable task of some magnitude has been left to the lower courts. There is an expectation that the lower court do what the Supreme Court felt unable to do, ie complete an application of the Supreme Court’s  wider interpretation of Paposhvili, following consideration of up -to- date evidence and reports directed to the Grand Chamber’s substantive and procedural requirements and to ask whether that evidence crosses the threshold now required of an applicant under article 3 pursuant to the decision in the Paposhvili case.

The issues will not be readily resolved easily nor neatly.  Just as the area of deportation since 2012 has been a rife area of a game of ping-pong between the Upper Tribunal and Court of Appeal, so too can  it be expected that quite a bit of litigation will arise in this area and dominate the legal scenario for some time to come.

Meanwhile, for claimants as a matter of advancement of claims, its full steam ahead.

Following the Supreme Court decision and its departure from “N”,  as per the rallying conclusion in a previous blog post of nearly 3years ago, Paposhvili and HIV/AIDS: First Tier Tribunal Judge allows Article 3 medical condition appeal by a Malawian claimant: “From the above, it is therefore possible  for an Appellant to advance an Article 3 medical condition appeal  placing reliance upon Paposhvili and succeed. Whilst the First Tier Tribunal considers matters on the same ground( medical conditions cases)  applying the Paposhvili approach, surely  the Home Office  cannot continue much longer  doing so from another angle ie the “N” approach”.

The stringent “unduly harsh test” in deportation cases applies even if the qualifying child is a British citizen

Deportation is a complex area of law.  Having full regard to recent judgments of the Upper Tribunal and higher courts serves as a useful reminder of the relevant principles, drawing attention to the latest key cases.

Although Patel (British citizen child – deportation) [2020] UKUT 45 (IAC) (29 January 2020) makes no easy reading, with the summary Headnote itself equally convoluted, not to mention paragraph 65  of the decision, which is quite difficult to follow, the decision is useful for its up-to-date reiteration of principles arising out of well- known caselaw.

Brief Background

The appeal concerned an Indian national, previously granted indefinite leave to remain in the UK in November 2013.  

He was a foreign criminal by virtue of the fact that on 26 January 2016 he was convicted of three counts of conspiring to conceal/disguise/convert/transfer/remove criminal property and one count of proceeds of crime money laundering – failure to disclose in regulated sector.

On 20 February 2017 he was sentenced to three years and six months’ imprisonment. The Appellant’s wife, also originally from India became naturalised as British citizen as did their son born in April 2013.

The relevant law

The legal requirements applicable to the Appellant’s case were those set out in section 117C of the Nationality, Immigration and Asylum Act 2002 and the broadly corresponding provisions of the Immigration Rules at paragraphs 398, 399 and 399A.

The requirements of paragraph 399(a)(ii) (a) and (b) are conjunctive.

The ‘unduly harsh’ requirement is  in two parts, dealing firstly with the 399(a)(ii)(a) limb, which focuses on whether “it would be unduly harsh for the child to live in the country to which the person is to be deported”.  Section 117C(5) of the 2002 Act imposes the same requirements.

The second limb of paragraph 399((a)(ii), is whether “it would be unduly harsh for the child to remain in the UK without the person who is to be deported”.

In KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53, Lord Carnwath stated at paragraph 5 that: “It is unnecessary to refer in detail to the Changes to the Immigration Rules made at the same time (paragraphs 398-399), since it is not argued that any differences are material to the issues before us. It is to be noted however that the question whether “the effect” of C’s deportation would be “unduly harsh” (section 117C(5)) is broken down into two parts in paragraph 399

As per CI (Nigeria) v The Secretary of State for the Home Department [2019] EWCA Civ 2027, Leggatt LJstated at paragraph 20: “Paragraphs 398-399A … are in very similar terms to section 117C(3)-(6) of the 2002 Act.”

The issues in the appeal

The  First Tier Tribunal Judge dismissed the Appellant’s appeal  on the basis there was a strong public interest in the Appellant’s removal and the effect of his deportation will not be unduly harsh on either his child or his wife, nor did the particulars of his private and family life amount to very compelling circumstances. 

The judge concluded that it would not be unduly harsh for the Appellant’s wife either to relocate to India or (if she chose) to remain in the UK with her son if the Appellant were deported.  As regards the Appellant’s child, the Judge found that even though it was in his best interests to be with both parents in the UK, it would not be unduly harsh for the child to relocate to India nor unduly harsh for him to remain in the UK.

Upon the appeal reaching the Upper Tribunal, it was noted that the Appellant conceded that he was not able to show that there were very compelling circumstances over and above those set out in paragraphs 399A and 399.

The Upper Tribunal also observed that grounds for permission to appeal raised no challenge to the judge’s finding that the wife could relocate without it being unduly harsh nor to the judge’s finding that it would not be unduly harsh for her to remain in the UK without her partner. Hence paragraph 399(b) (ii) and (iii) were not engaged.

With reference to section 117C(3)-(5) of the 2002 Act, the First Tier Tribunal Judge noted that,  the Appellant, having arrived in the UK in 2008, had not lawfully been in the UK for most of his life and therefore  he could not meet Exception 1. 

Accordingly, the Upper Tribunal stated that the  Appellant’s case hinged entirely on whether he could show that the judge materially erred in law in concluding that he did not meet the requirements of paragraph 399(a)(ii) (a)-(b) of the Immigration Rules and section 117C(5)  of the 2002 Act.

Recent caselaw considered

The Appellant’s Arguments

The appellants grounds were noted to fall into two main components, it being submitted that :

  • that the judge applied an unduly stringent approach to the public interest, as evidenced by her reference to there being “a strong public interest in the Appellant’s removal”. It was submitted that the Supreme Court in Hesham Ali [2016] UKSC 60 had made clear, that whilst great weight ought to be applied to the public interest in deportation, that weight was not a fixity.
  • that the judge’s treatment of the best interests of the child failed to take into account in assessing the ‘unduly harsh’ requirements that the son was a British citizen. The judge had failed to take into account that for the child to relocate to India would entail the loss of his rights as a British citizen, including his right to a British education and to grow up knowing what it means to be British and to establish social connections with other British citizen children in his formative years. The judge’s finding that it would not be unduly harsh for the child to relocate to India paid no attention to his British citizenship.  Given his mother’s unequivocal statement that she would have to go with her husband should he be deported, a statement supported by the medical evidence of her ongoing depression, that finding was material. It was highlighted that the judge accepted that: the appellant and his wife would not be able to afford a private education for their son on return to India, which would mean he would be taught in Gujarati, which he did not speak; that the son suffered from infantile scoliosis and required yearly checkups; and that the child’s school and friendship networks were “sources of happiness and stability” for the child that would be fractured by the move.  It was argued that at no point in this assessment did the judge treat “the British child’s best interests as a primary consideration”.

Upper Tribunal’s observations

  • In both section 117C(5)  of the 2002 Act and paragraph 399(a)(ii), what judicial decision-makers are being required to assess is a hypothetical question – whether going or staying ‘would’ be unduly harsh. They are not being asked to undertake a predictive factual analysis as to whether such a child would in fact go or stay.
  • The general position in international law, the rights that nationals possess are not rights to a particular quality of enjoyment of those rights.
  • In this case the Upper Tribunal was concerned throughout with British nationality in the form of British citizenship only, not with any other type of British nationality
  • Considering Article 8 jurisprudence generally, it is clear that nationality (in the form of British citizenship) is a relevant consideration both in the deportation/removal and the immigration context.

Taking stock of the relevant Strasbourg jurisprudence on Article 8, the Upper Tribunal derived that:

  • Article 8 cannot be considered to impose on a State a general obligation to respect immigrants’ choice of the country of their matrimonial residence and to authorise family reunion in its territory;
  • a relevant factor that must be taken into account is the nationalities of the various persons concerned. The Upper Tribunal could not find any support in this jurisprudence for extending this to include a principle that having a British citizen child furnishes powerful reasons for finding that the effect of the deportation of a parent on the child would be unduly harsh. What weight is to be given to citizenship appears to be left as a matter for each Contracting State’s “margin of appreciation”.
  • in order to establish the scope of the State’s obligations, the facts of the case must be considered. The Upper Tribunal observed that in this regard the Strasbourg jurisprudence reflected their own initial observations on the significance of nationality at the level of abstract principle, in particular that the rights and benefits that attach to nationality will depend heavily on the particular circumstances

Possession of British citizenship by the child does not mean that the person is exempted from the unduly harsh requirements

Applying the above analysis to the specific context of the unduly harsh requirements, the principal conclusions drawn from the Upper Tribunal’s analysis were twofold.

  • First, because the unduly harsh requirements are derivable from Article 8 jurisprudence, nationality (in the form of British citizenship) is a relevant factor when assessing whether the ‘unduly harsh’ requirements of section 117C(5) are met. However, it is not necessarily a weighty factor; all depends on the facts.
  • Second, in respect of the issue of whether it would be unduly harsh for a British citizen child to remain in the UK without one of his parents, it seemed integral to the framework set out in section 117C of the Act and paragraph 399(a)(ii) of the Rules that the possession of British citizenship by a child with whom a person (P) has a genuine and subsisting parental relationship does not mean that P is exempted from the unduly harsh requirements. Even though the child may be British, it has to be unduly harsh both for him or her to leave with P or to stay without P; not just harsh. Thus, some substantial interference with the rights and expectations that come with being British is possible, without the position becoming one of undue harshness to the child.

Akinyemi inapplicable

 It was observed that it was the appellant’s contention  that the judge’s assessment of the unduly harsh requirements of paragraph 399 was vitiated by applying more stringent consideration of the public interest than the statute specifies or requires. In summary, it was being argued that the judge (i) wrongly allowed public interest considerations to intrude into her unduly harsh assessment; and (ii) overstated the strength of the public interest.

The Upper Tribunal did not accept that the judge’s use of the term ’strong public interest’ somehow intruded into her unduly harsh assessment, nor was it accepted that the judge overstated the public interest. 

The Upper Tribunal concluded that the guidance given in Hesham Ali (as reconfirmed in Akinyemi) could not avail the appellant since it was expressly accepted that he could not succeed on the basis of “very compelling circumstances’ over and above those set out in paragraphs 399 and 399A. The analysis conducted of the public interest in Hesham Ali was in the context of cases where it was argued that there were very compelling circumstances. In any event, the asserted low risk of re-offending, cited on behalf of the Appellant could not on the facts of the case rationally cause the strength of the public interest to be reduced to any material extent.

The child’s British’s citizenship and unduly harsh test applied to the case

  • The Upper Tribunal not consider it fatal the mere lack of mention by the judge of the child’s British nationality in the context of assessing whether it would be unduly harsh for the child to live in India, since she had identified this as a relevant factor in the context of her best interests of the child assessment which she stated was her “starting point”. The judge had referred to the British citizenship of the child as one of four factors that led her to conclude that it was in the child’s best interests to be with both parents and to remain in the UK
  • Although the judge did not refer to the child’s British citizenship when assessing the issue of whether it would be unduly harsh to expect him to leave the UK, she was clearly cognisant of the relative advantages and disadvantages that flowed from that status and clearly understood that if the child departed he would not enjoy the rights and benefits he does presently. 
  • The Judge considered the child’s circumstances substantively. She specifically addressed the issue of education taking into account, inter alia, that the appellant and his wife would not be able to afford a private education for their son on return to India, which would mean he would be taught in Gujarati, which he did not speak. She also addressed the issue of medical treatment taking into account that  the son suffered from infantile scoliosis and required yearly check-ups. She also took into account that the child’s school and friendship networks were “sources of happiness and stability” for the child that would be fractured by the move.  It was within the range of reasonable responses for her to conclude that the disadvantages and hardships involved were not unduly harsh.
  • The Upper Tribunal noted that that the higher courts had confirmed many times that the threshold denoted by the ‘unduly harsh’ criterion is a high one: KO (Nigeria) at [23] (“One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation a parent”).
  • Whilst there was no reference to the significance of the child’s British citizenship, it was clearly part of the background accepted by the judge that in the UK the child was actually enjoying the rights and benefits of British nationality and that these would not be threatened or diminished by his father’s departure.
  • The grounds raised no challenge to the judge’s findings that it would not be unduly harsh for the Appellant’s wife to remain in the UK. Nor did the grounds raise any challenge to the judge’s assessment of the ability of the Appellant’s wife to care for the child in the UK.  In the context of the child remaining in the UK with his mother, it was plain that the child was in the UK enjoying in substance the rights and benefits of British citizenship. Hence any failure to address the child’s British nationality in this limb of the ‘unduly harsh’ test could not amount to a legal error since it was a premise of any such assessment that the child was enjoying such rights and benefits.

Zimbabwean Returnees: What you need to know about the current Emergency Travel Document application process

The Country Returns Guide contains Home Office guidance on the documents required and processes for returning those subject to removal to their country of origin.

Country returns guide: February 2020, currently provides as follows in relation to the ETD application process for Zimbabwean returnees:

“All ETD applications should be submitted to the Returns Logistics Team 1.

A mandatory face to face interview will then be arranged through RL Country Liaison and Documentation team 1. This will be through interview schemes at IRC’s, Reporting Centres and prisons. Interview outcomes will be notified via CID.   

Only voluntary cases can be interviewed at the High Commission in London. In such cases the ETD application should be signed by the subject and submitted direct to the HC. RL team 1 will arrange an interview”.

In relation to intended returnees who will be made to face Zimbabwean Embassy officials, where an expired Zimbabwean passport already lies on the Home Office file, ETD’s are likely to be issued fairly quickly.  This much is evident from the outcome of disclosed Home Office Minutes/Case Notes following  Subject Access Requests.

In one instance, a subject attended at Becket House for a nationality interview on 11 December 2019, was met by an Embassy Official and by 17 December 2019, an ETD Agreement had been received from Zimbabwe House.

Returnees have had the following recorded on their Home office files on receipt of  an agreement to issue a travel document:

“ETD Agreement received 17/12/2019.

Confirmed Name:

Confirmed DOB:       

PLEASE NOTE: Returns Logistics Team 1 will send out communications to the business once Removal Directions can be set. PPT quality  photos required. 

When  Removal Directions can be set, please inform Returns Logistics team 9 giving 10 clear working day notice.

Regional spreadsheet updated & will be disseminated tomorrow”.                                                                                                                                                                   

Invitation letter to Nationality Interview

Invitation letters from the Home Office in relation to nationality interviews, will run along the following lines:

You are requested to attend and interview at Becket House Reporting Centre, 1st Floor, St Thomas Street, London, PE6 0E2, on 15 March 2020 at 3.00pm.

You must attend with any dependants such as your husband/wife, dependant children or dependant adults. You should contact  the headmaster/mistress of your children’s school to notify them of the children’s requirement to attend this interview; this should enable the absence  to be recorded  as an authorised period of absence.

The interview is required to collate and verify  personal data about you and your family. You are required to bring with you any documents which can confirm yours and your family’s nationality such as:

  • National Passports(old/expired ones or new ones)
  • Birth Certificate ( UK ones for UK born children/spouse and any from your country of origin)
  • National Identity Cards
  • Military Service Cards
  • Military Service Cards/completion Certificates( from your country of origin)
  • Driving licenses ( from your country of origin ( expired or current)
  • Educational certificates, and
  • Letters from family in your home country

If you are unable to attend the appointment for any reason such as sickness, you should contact this office immediately, as failure to do so my affect any outstanding claim you may have with the Home Office.

Please bring this letter with you together with the documents detailed above and any other documentation you have received from the Home Office”.

As is known, mandatory face to face interviews are being carried out, without any prior notice given that Zimbabwean Embassy officials will be present.

Prior to the nationality interview taking place, Home Office Minutes/Case Notes will usually have recorded as follows:

“Criminal Casework Review

ETD IS THE CURRENT BARRIER TO REMOVAL

Returns to Zimbabwe are starting to resume. Foreign National Offender to be considered for future interview scheme.

Currently appeal rights exhausted, holds original expired passport.

Compliant with reporting

Zimbabwe ETD Interview Scheme

This case has been included on the Interview Scheme taking place at Becket House on 11/12/2019”

Following the nationality interview, all that the  Home Office Minute/Case Notes will record is the following:

“ZWE ETD Interview Scheme

Subject was interviewed by ZWE official at Beckett House RC on 11/12/2019.

CID will be updated when an outcome is received”.

No written record of that interview, or what was asked by the Embassy official and the returnee’s responses will be volunteered by the Home Office within the disclosed Subject Access Request outcome.

ETD Application Checklist

The Home Office appear to have an ETD document Checklists and that from Criminal Casework  Leeds is to the following effect:

  • Detention status? Released- – Subject reports every month on the 20th  at Becket House.
  • Current case status? Subject has been issued with a notice of Deportation order, and  his appeal was refused in 2017.
  • Have you checked to see if there are any outstanding applications/barriers to removal?
  • New photographs included and uploaded to CID? If not taken within last 6/12months  please
  • Has CID been checked to confirm whether a travel document is held or has previously been requested?
  • Has CID been checked for landing card  details?
  • Have all files been checked for Foreign National Offender’s original/copy of passport or evidence of identity or nationality?
  • Have CRS checks been done & included  where relevant?
  • Have the Foreign National’s fingerprints been taken?
  • If applicable, have the pre-verification checks been carried out through the RLO & are the results attached?
  • Has a negative immigration decision been served?
  • Have you confirmed that there is no evidence on file to indicate the Foreign National Offender has a fear of return to their own country, which has not been considered?
  • Have you confirmed  there is no ( implied) mention of asylum in ETD application?***
  • Have the correct travel document forms been completed?
  • Do the biodata  & other relevant forms state the correct Home Office reference, name, nationality, aliases, place and date of birth, last address in the country of origin, passport details?
  • Have all details been checked & verified  on internet, ie schools, hospitals etc?
  • Have you provided any other country specific nationality forms?
  • Do we have supporting evidence of identity/ nationality for the Foreign National Offender, ie passport, birth certificate, ID card?
  • Have files of family members been obtained and checked?
  • Do we have any supporting evidence for family of identity/nationality passport, birth certificate, ID card?
  • Has any supporting evidence been translated?
  • Have the minimum requirements for travel document as per nationality been completed?
  • Submission letter completed  correctly?
  • Country Guidance printed and attached to checklist?
  • Does the application need sending to Returns Logistics or mission?
  • Does the Foreign National Offender need an interview?

Note, the question: Have you confirmed there is no ( implied) mention of asylum in ETD application?

The Home Office will of course  indicate in the Checklist that there is no such mention however the underlying issue, self-evidently, even in the absence of documentation or information within the disclosed file, will be whether it is possible  to mount a fresh claim for asylum  on the basis that by her own actions, the Secretary of  State, in inviting  an official from the Zimbabwean Embassy to an interview  at the Home Office, might have brought an applicant to the direct adverse  attention  of the Zimbabwean authorities.

Submission letter to the Zimbabwean Embassy

The Home Office will need to send the submission letter to the Embassy with the ETD application and such letters are written as below:

Returns Logistics ( RL)

Immigration Enforcement

15th Floor, Lunar House

40 Wellesley Road

Croydon

CR9 2BY

Tel: +44(0) 208 196 0151

Zimbabwe House

429 Strand

London

WC2R 0JR

Application for a travel document- Non detained

Applicant’s Name: Ms Salllle Alllle

Date of Birth:00/00/1900

Our Reference: A0000000

The above named does not have/qualify for leave to enter or remain in the United Kingdom, does not hold a valid travel document and authority to remove them from the United Kingdom has been granted.

 Please find enclosed a travel document application. I would be grateful if you would issue a travel document as soon as possible so that the Home Office can arrange removal.

Should you require any further information, the contact details and telephone number for the Returns Logistics unit are at the top of this letter. Please do not hesitate to contact us.

Yours Faithfully,

Country Manager

Country Returns, Operations and Strategy

Bio Data Information

The Bio Data Information contains responses to the following questions:

  • Home Office reference number
  • Port Reference Number
  • Family name
  • Nationality
  • Other names
  • Male or Female
  • Date of birth
  • Place of birth
  • Nationality
  • Last known address in country of origin: Telephone number
  • Passport number
  • Issuing Government or Authority
  • Place of Issue
  • Date of Issue
  • Valid until
  • Mother’s name
  • Place of birth
  • Mother’s maiden name
  • Nationality
  • Address
  • Father’s name
  • Place of birth
  • Date of birth
  • Mother’s maiden name
  • Nationality
  • Address
  • Last employer in country  of origin
  • Address
  • Date of employment
  • Schools attended in country of origin
  • Name and address of family doctor
  • Name and address of place of worship
  • Name and address of local police stations
  • Name and address of local hospitals

Documents Submitted to Zimbabwe House

As per  the Country returns guide: February 2020,  the following minimum requirements in relation to an application for an ETD are:

  • submission letter
  • bio-data form
  • 4 photographs of passport standard, cut to size
  • supporting evidence, if available
  • full UK birth certificate must be provided for children born in the UK  
  • all supporting evidence accompanying an travel document must be translated into English
  • Fee £80. To be submitted to RL team 1, 15th Floor Lunar House

The Home Office will submit the ETD application to the Zimbabwean Embassy with the above mentioned submission letter.

Home Office Minutes/Case Notes will usually record as follows in this regards:

“ETD pack checked contains submission letter, interview letter, photos, bio data, copy of passport”.

Subject Access Request: absence of relevant disclosure

The online subject access request form requires clarification of the purpose for which  disclosure is required.  

A suggested format to be improved upon, may state the purpose as below:

“To ascertain whether Home Office actions  have placed the Applicant at risk and/or breached his confidentiality. All communication to and from the Home Office and the Zimbabwean Embassy authorities in relation to this Applicant. All interview records and Minutes/Case Notes as regards the meeting of 11 December 2019 between the Applicant and Zimbabwean Embassy Officials. Minutes/Notes/communication between the Embassy and Home Office & between Home Office staff  after 11 December 2019 are also required”.

As above, the Home Office will likely not volunteer disclosure of an interview record or Minute/Case Notes in relation to the face to face interview with the Embassy official. Apart from the submission letter to the Embassy, neither will they likely offer any other documentary communication  that may exist between the Home Office and  the Zimbabwean Embassy before or after the nationality  interview. The ETD Agreement received will also likely not be disclosed.

Instead the Home Office may respond as follows:

 “Unfortunately, there were no records of the minutes of and after the meeting of 11 December 2019 with the Zimbabwean Embassy on our file”.

In  the absence of the requested documentation and information, it is not apparent how such a  response can be  relied upon to sustain a position that  there has been no mention(implied) to the Zimbabwean Embassy of an asylum or other breach during the travel document application process.

If not satisfied with the response to the Subject Access Request, consider writing to the following address within 3months, expressing dissatisfaction with the response:

Customer Service Team

Subject Access Request Unit

UKVI, 11th Floor

Lunar House

40 Wellesley Road

Croydon, CR9 2BY                                                            

Additionally, consider sending a complaint to the Home Office Complaints Unit.

Where relevant disclosure is still not forthcoming, send a letter before claim setting out reasons why judicial review action is appropriate in the circumstances.

Automatic/Blanket Zambrano refusals: FTT Judge finds amended Zambrano Guidance an inaccurate reflection of the 2016 EEA Regulations

Following the Supreme Court Judgement in Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019), Home Office Policy Guidance, Derivative rights of residence, published on 2nd May 2019 should no longer continue  in existence in the public domain in its current form.

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