Inbuilt obstacles and mechanisms that the Home Office use to defeat, deny and deter immigration claims

On the surface, all that is required to enable preparation and submission of a successful application to the Home Office is self-evident.  After all, the application forms themselves are free and readily accessible (postal or on-line, as relevant). These applications forms indicate what documents are required to support an application. Additionally, voluminous Home Office guidance policy is transparently available for leisurely perusal in advance of submitting an application. With all this in sight, in some categories, it seems there  isn’t even any need to consult a legal practitioner prior to submission of an application.

There are however in-built laws, policies and procedures in the assessment process of immigration applications, such that a seemingly straightforward application may end up falling foul of these provisions.

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

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

 

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

 

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

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

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

 

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

The issues in NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 (11 April 2017)  concerned the construction or application of section 117C(6) of the Nationality, Immigration and Asylum Act 2002  which provides that in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are “very compelling circumstances”, over and above those described in the exceptions contained in section 117C(4)-(5).

 

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

 

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