What has changed?

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
16 March 2016

In the last year there have been some judgements in Immigration Law, Asylum Law, Practice/Procedure which deserve our attention. Here are some I wish to share with you.

1. The first case was Mehmood which concerned the application of the doctrine of substantive legitimate expectations in the context of a statutory appeal against the Secretary of State’s refusal to grant the appellant indefinite leave to remain. The appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department in November 2013 to refuse the application of a Pakistani national for indefinite leave to remain in the capacity of a Tier 2 Migrant. The appeal to the First Tier Tribunal was refused and the permission to appeal to the Upper Tribunal was confined to a single issue, namely whether the decision is unlawful as frustrating a substantive legitimate expectation generated in a written communication on behalf of the Secretary of State.

Lying at the heart of this appeal is an exchange of electronic communications between the appellant’s solicitors and the UK Border Agency in September 2011. The migrant was assigned COS with an expiry date of 26th April 2014 but his application for further leave to remain has been approved with the expiry date of 27th April 2013. The solicitors queried that, and the response was that the client got an extension for the period of time it needed to take him to the total stay in the UK of five years, where he would be eligible to apply for indefinite leave to remain. Ie., for the total of five years. However, the application for indefinite leave to remain was refused because the Secretary of State argued the appellant had no leave to remain in the UK between 2nd August 2010 and 7th September 2011, a total of 400 days. Therefore, he has not spent a continuous period of five years lawfully in the United Kingdom and the application for indefinite leave to remain was refused. This was the sole reason for refusing the application.

The appellant’s argument was that the communication of 10th October 2011 by the UKBA raised the appellant’s legitimate expectation that he would later, at the appropriate time, secure indefinite leave to remain. The appellant did not make the case that he is eligible for the grant of indefinite leave to remain under the Immigration Rules. Indeed the unexpressed premise of his case is that he does not satisfy the requirements of the Rules. Rather, he is driven to rely on a principle, or a doctrine of public law, in order to make good his case. This doctrine of legitimate expectation is the response of the Common Law to failure by public authorities to honour promises and assurance made to citizens. Its central tenants are fairness and abuse of power. These two basic ingredients of what the law has come to recognise as a substantive legitimate expectation are satisfied where there is an unambiguous promise or assurance by a public official and to which the affected citizen responded. The current thought on the subject is that in order for there to be a legitimate expectation the promise has to be a specific undertaking directed at a particular individual or group.

In this case the application of this test raises the question of whether the Secretary of State represented or promised, that upon the expiry of the authorised period of leave on 27th April 2013, the appellant would be granted indefinite leave to remain. The Judge considered that the UKBA communication fell short of satisfying this requirement. In other words it just stated the rationale underlying the grant of leave to remain to the appellant. There was no suggestion that this was other than a correct exposition of the Rules and related policy guidance operative when the statement was made.

Crucially the statement said nothing about continuous residence explicitly. In addition the UKBA communication was not made in a vacuum. Rather, the context included the relevant provisions of the Immigration Rules and therefore the Judge considered that the communications could not be construed as conveying that the continuous residence requirements of the Rules would, in the appellant’s particular case, be waived or relaxed. It contains no unambiguous or unqualified promise or assurance to this effect. Therefore the appeal was dismissed.

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The next case which came to our attention was about entry clearance officers and procedural fairness namely the case of R (Mushtag) –v- ECO Islamabad, Pakistan [2015].

The applicant, a national of Pakistan challenged the decision by an entry clearance officer of Islamabad dated 11th April 2014, where his application for a visa to come to the UK as a student was refused.

The applicant applied for an entry clearance to study accountancy and in refusing his application the Home Office applied paragraph 245ZV of the Immigration Rules. The entry clearance officer identified a total of five factors which he considered adverse to the genuineness of the applicant’s entry clearance application.

1. That he did not disclose any real idea how his qualification would help him to achieve his aim.
2. That he failed to articulate a specific personal reason for his plans
3. That his answer with regard to the facilities in question focused on the teaching which would be provided, and the opportunity provided in the event of failing an examination; In other words he wasn’t aware of other facilities available at the college
4. The next factor was that he had demonstrated no concrete knowledge of London and
5. The fifth and final factor reckoned to be adverse to the genuine nature of the applicant’s application was the proposed financing of his studies in London.

It follows from the analysis above that the decision making process culminating in the refusal of the application was manifestly unfair and the Judge considered that there were serial breaches of the hallowed maxim “audi altrim batrem.” In other words no person shall be condemned punished or have any property or legal right compromised by a Court of Law without having heard that person. To hear the other side. Based on that ground, permission to judicially review was granted.

The further ground on which permission to apply for Judicial Review was granted was that the decision of the entry clearance officer was arguably vitiated on the basis that it was not compatible with caseworker guidance, as published on 4th December 2013. Under this guidance an application should not be refused unless the applicant had a chance to respond to the questions at the interview, unless some exceptions applied. None of the exceptions applied in this case. This guidance also asked the ECO to consider each application “in the round”, in other words to take into account the issue of the CAS and to have regard to matters such as the person’s post study plans, their financial circumstances, and whether they have a credible income source to finance the entirety of the course fees and maintenance. The ECO is also specifically required to take into account that the applicant has satisfied the maintenance requirement and will be prepared to make a considerable investment in gaining a qualification from the UK. Finally, the guidance stipulates that any adverse genuineness assessment might be based on the balance of probabilities. On balance the Judge concluded that the entry clearance officer did not fail to comply with any of the further aspects of the guidance.

Therefore, the conclusion and observations of this case for us is that fairness in an interview will often require the interviewer to invite the applicant to clarify or expand an answer or probe a response. This simple mechanism will illuminate the true assessment of whether or not an adverse decision needs to be made and will assist the Courts in the assessment of whether any decision was right or wrong. We agree with the Judge who said that “The nationals of impoverished and deprived countries who have invested large sums of money and whose admission to the United Kingdom is lawful, if they satisfy the requirements of the relevant legal rules, are deserving of no less.”

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The third case concerned a visit visa in the case of Adjei (Visit visa Article 8) [2015].

The first question to be addressed in this appeal was whether in an application for an entry clearance as a visitor human rights grounds are available and whether Article 8 the right to private and family life is engaged at all? If it is not then the Tribunal will have no jurisdiction to embark on the assessment of the decision of an entry clearance officer under the Rules. The case concerned a citizen of Ghana who applied for entry clearance so that she could visit her father, step mother and step siblings who live in London.

The whole case was really about whether or not a claim under Article 8 was engaged. That was particularly important because primary legislation makes it clear that there is no longer a right of appeal before a Tribunal against an adverse decision by an entry clearance officer in a visit visa case except on human rights or race relations grounds

She explained that she has lived as part of the family unit before they moved to the UK in 1994 and remained in Ghana because she was over the age of 18 when the family relocated. It was anticipated that she would not be able to secure entry clearance for settlement.

The application was refused in November 2013 because the entry clearance officer was not satisfied that she was a genuine visitor and intended to leave the UK at the end of the visit. Recognising that she could bring her appeal only upon the ground that refusal infringed her rights protected by Article 8 it was the basis upon which she put her case to the First Tier Tribunal. She maintained that the entry clearance officer’s decision was in breach of her human rights. The Judge had regard to an earlier visit and the fact that she complied previously with the terms of the entry clearance granted to her; That she had family ties and employment in Ghana and that she had arranged for her mother who lives in Ghana to care for her two month old child while she was away. The Judge said that there was no reason to doubt her employer who granted her unpaid leave to visit her family and that her employment remained available to her. On that evidence before the Tribunal the appeal was allowed.

The Home Office appealed this decision and it was concluded that the protection of Article 8 did not extend to links between adult siblings living apart for a long period of time where they were not dependent upon each other. It was established in other cases that there must be more than a normal emotional tie between adult relatives or family life to exist for the purpose of article 8 arguments. Therefore it was concluded by the Upper Tribunal that the circumstances of this claimant and her relatives in the United Kingdom do not give rise to family life for the purpose of Article 8 of the ECHR and so the grounds of appeal advanced before the Tribunal were not arguable and the Upper Tribunal held the decision of the entry clearance officer and substituted a fresh decision to dismiss her appeal against the refusal to grant her entry clearance as a visitor. It was concluded that the Judge of the First Tier Tribunal who allowed the appeal made an error of law and the decision had to be set aside.

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In the next case, (on the application of Patel) –v- SSHD [2015] we have learned that section 3C(iv) of the Immigration Act 1971 prohibits an application for leave to remain that is made on the same day as, and even if said to be simultaneous with, the applicant’s withdrawal of his appeal before the First Tier Tribunal.

The applicant was a national of India and the Upper Tribunal granted her permission to challenge a decision of the respondent by which the respondent, the Secretary of State, rejected her application on 2nd July 2013 for leave to remain as a Tier 4 student on the basis that section 3C(iv) of the Immigration Act 1971 precluded her from making the application whilst her leave was extended under section 3C because she had an appeal pending.

In other words you cannot make an application when the only leave you have is because you have an outstanding appeal before the First Tier Tribunal. The applicant in this case argued that she withdrew her appeal and simultaneously made her application for leave and therefore her application was not precluded by section 3C(iv) but her claim was dismissed.