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News & Views Monday 17th February to Sunday 23rd February 2020

 

Second Appeals Test in Immigration Law

The Second Appeals Test was introduced by s.13(6) of the Tribunals, Courts and Enforcement Act 2007. It sets a higher threshold for challenging certain kinds of decisions made by the Upper Tribunal to the Court of Appeal. The purpose of the test is to emphasise the specialist function of the Upper Tribunal.

When Does the Second Appeals Test Apply?
As stated above, the Second Appeals test applies to appeals from the Upper Tribunal to the Court of Appeal. At this stage, your case will have been heard by the First-tier Tribunal and the Upper Tribunal. For this reason, the heightened test applies: not only must your case have a realistic prospect of success, it must also ‘raise an important point of principle or practice’. Alternatively, there must be ‘some other compelling reason’ for the Court of Appeal to hear your case.

The Second Appeals test also applies in Cart type judicial reviews. This is where permission to appeal has been refused by the Upper Tribunal, and you wish to challenge that decision. There is no right of appeal against a refusal of permission to appeal (it is an “excluded decision” under s.13(8)(c) of the Tribunals, Courts and Enforcement Act 2007). The only way to challenge the refusal is to apply for permission to judicially review the Upper Tribunal’s decision before the Administrative Court (High Court).

Read more: Robin Pickard, Richmond Chambers, https://is.gd/Qy3cYr



What is “Persecution” Under the Refugee Convention?

In order to fall within the definition of a refugee for the purposes of the Convention, a person must show a well founded fear of ‘persecution’ for reasons of race, religion, nationality, political opinion or membership of a particular social group. The UNHCR Handbook notes at paragraph 51 that there is ‘no universally accepted definition of “persecution” and various attempts to formulate such a definition have met with little success’. Persecution has been defined in general terms in R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7, where Nolan J adopted the two dictionary definitions of the word: ‘to pursue, hunt, drive’ and ‘to pursue with malignancy or injurious action; especially to oppress for holding a heretical opinion or belief’. This post will examine the legal parameters of persecution.

Discrimination and Persecution:  Acts of persecution are defined within Article 9 of the Council Directive 2004/83/EC as acts which are ‘sufficiently serious’ to constitute a ‘severe violation of basic human rights’. This can be either in their ‘nature or repetition’ or through an ‘accumulation of various measures’. Basic human rights are defined here as those which are  non-derogable (so important that they cannot be compromised under any circumstances) under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. These are Article 2 (right to life), Article 3 (prohibition of torture), Article 4 (prohibition of slavery) and Article 7 (no punishment without law). 

Read more: Caspar Latham, Richmond Chambers, https://is.gd/G6EW2d



Terrorism Suspects Are Still Entitled to Immigration Bail

In O3 v Secretary of State for the Home Department [2019] SN/147/2018, the Special Immigration Appeals Commission has confirmed that, just like regular immigration detainees, those facing deportation on national security grounds are entitled to a presumption of bail. In deciding whether to grant bail to such detainees, the Commission must balance that presumption with the national security risk assessment by the Security Service and decide if the Commission can impose conditions to address the risk.

Detained Pending Deportation as Security Risk
O3 is accused of being “ISIL-aligned” and faces deportation on national security grounds. He was detained and served with a deportation order in November 2017. This followed claims by the government that his computer and phones – seized by police during a search – contained a significant quantity of “extremist material”, including ISIL propaganda videos and iconography. O3 has appealed the deportation order and his substantive hearing before the Commission is scheduled for June 2020. The bail application sought his release pending that hearing.

Read more: Freemovement, https://is.gd/KVkcIQ



Surinder Singh Route Still Requires Genuine Residence

The Court of Appeal has confirmed that in order to benefit from the Surinder Singh principle, the family involved must have genuinely resided in another EU country and have created or fortified their family life there. In Kaur & Ors v Secretary of State for the Home Department [2020] EWCA Civ 98 it rejected the argument that, as a result of the Court of Justice decision in C-202/13 McCarthy No.2, anyone with a residence card from another member state is entitled to have their family come and live with them in the United Kingdom.

The facts of this case are not attractive. Mr Singh and Mrs Kaur had previously been married but divorced in 2004. The following year Mr Singh married a Polish national, obtained residence rights in the UK and became a British citizen in 2012. In 2013 he divorced his Polish wife and re-married Mrs Kaur. The couple went to live in Bulgaria with their children for 19 days in 2017 and Mr Singh obtained a residence permit. Then the family returned to the UK.

Read more: Freemovement, https://is.gd/Ms3KDP







Residence Requirements for Partners

Unlike most visa routes, partner visas do not have any specific residence requirements or prescribed limits on the number of days of absences from the UK.  However, despite the absence of a residence requirement for partners, there are some factors to be aware of to ensure that applications for further leave to remain and indefinite leave to remain will be successful. Partner applications require the applicant and their partner to hold the intention to ‘live together permanently in the UK’.

Paragraph 6 of the Immigration Rules defines this as: ‘an intention to live together, evidenced by a clear commitment from both parties that they will live together permanently in the UK immediately following the outcome of the application in question or as soon as circumstances permit thereafter.’ In each application for further leave to remain as a partner, the applicant must provide evidence that he or she has lived together with their partner in the UK since the last grant of leave as a partner. Both the applicant and sponsor must be physically present in the UK when an application for further leave is submitted.
Both the applicant and their partner are permitted to be absent from the UK for limited periods of time. These absences must be for ‘good reasons’ and these reasons must be consistent with an intention to live together permanently in the UK. The Home Office guidance  states that good reasons for absences could include holidays or time spent overseas in connection with work, training or study.  This is not an exhaustive list and absences for other reasons should be explained, with evidence. 

Read more: Zarina Rahman, Richmond Chambers, https://is.gd/FqexHu


Impact of Family Separation on Child Refugees In the UK

“The UK’s rules on the rights of child refugees to sponsor visas for close family to join them are more restrictive than any country in the European Union. These provisions are set out in the Immigration Rules which define refugees, outline procedures and identify who is eligible to enter the UK, including as the family member of a refugee or person with Humanitarian Protection. They can only be changed through parliamentary procedure, although changes are proposed by the UK Government and are usually passed without debate.

As there is no immigration rule to allow for children to make refugee family reunion applications, any child who wants to try has to make an application outside of the rules. The authors are aware of a small number of children who have done this; applications are usually refused but some are successful on appeal.

The rules contain a legal anomaly: they recognise the right of an adult to be reunited with their immediate family but deny that right to a child. It is hard to fathom how an unaccompanied child can study, make friends, and move on with their lives in the UK when they are thousands of miles from their immediate family and maybe unsure of their loved ones’ safety. There is a certain callousness in allowing adult refugees to bring their children to the UK but to leave child refugees alone”.

Read more: Alexandra Pease, Richmond Chambers, https://is.gd/WCTN8z



Can Spouses of British Citizens Naturalise After Just Three Years’ Residence in the UK?

For those forced to make successive, increasingly-expensive applications just to remain in the country that they have made their home, naturalising as a British citizen is often the final rung of a very tall ladder. Like all ladders, the key to successfully climbing beyond the clutches of the Home Office lies in carefully following pre-determined steps — which is why getting the timing of the citizenship application wrong can be nothing short of catastrophic.

Why might it be a problem to apply for citizenship too early?
In most cases, applying to naturalise too early “only” means losing the hefty Home Office fee of £1,330; the person’s immigration status remains unaffected. Where the person lodges a citizenship application before obtaining indefinite leave to remain, however, they might very well become an overstayer. This is a common enough mistake that Free Movement has recently covered it not once but twice.

Among the would-be citizens most at risk of applying to naturalise too early are those married to British citizens. This is because for applicants in the spouse route to settlement, the qualifying period for citizenship (three years) is shorter than the qualifying period for indefinite leave to remain (five years).

Read more: Freemovement, https://is.gd/dV92vI



World Failing to Provide Children With a Healthy Life and A Climate Fit For Their Future

No single country is adequately protecting children’s health, their environment and their futures, finds a landmark report released Wednesday 13th February 2020,by a Commission of over 40 child and adolescent health experts from around the world. The Commission was convened by the World Health Organization (WHO), UNICEF and The Lancet. The report, A Future for the World’s Children?, finds that the health and future of every child and adolescent worldwide is under immediate threat from ecological degradation, climate change and exploitative marketing practices that push heavily processed fast food, sugary drinks, alcohol and tobacco at children.
“Despite improvements in child and adolescent health over the past 20 years, progress has stalled, and is set to reverse,” said former Prime Minister of New Zealand and Co-Chair of the Commission, Helen Clark. “It has been estimated that around 250 million children under five years old in low- and middle-income countries are at risk of not reaching their developmental potential, based on proxy measures of stunting and poverty. But of even greater concern, every child worldwide now faces existential threats from climate change and commercial pressures. Countries need to overhaul their approach to child and adolescent health, to ensure that we not only look after our children today but protect the world they will inherit in the future,” she added.
According to the report, while the poorest countries need to do more to support their children’s ability to live healthy lives, excessive carbon emissions – disproportionately from wealthier countries – threaten the future of all children. If global warming exceeds 4°C by the year 2100 in line with current projections, this would lead to devastating health consequences for children, due to rising ocean levels, heatwaves, proliferation of diseases like malaria and dengue, and malnutrition.

Read more: World Health Organization, https://is.gd/OpP3Jm