News & Views Monday 9th December to Sunday 15th December 2019


Santa Won’t be Able to Deliver Presents to the UK After Brexit?

With Christmas, and Brexit, fast approaching, it is a good time to consider how Brexit could affect Santa’s annual task of delivering presents to the children in the UK. Santa lives in Lapland, in Finland, so we can presume he is a Finnish and therefore an EU citizen. At the moment he enjoys freedom of movement throughout the EU. He can come to the UK to visit for up to 3 months, and to deliver services as a self-employed person for an unlimited period of time.

The UK will not leave the EU until 31 January 2020 at the earliest, so Christmas 2019 will be no problem. Santa’s elves can continue making presents in his workshop in Lapland, safe in the knowledge that there will be no customs or immigration barriers preventing delivery of those presents to the UK. At the moment Santa does not need a visa to come to the UK to work; he is not subject to immigration control and can enter at any time (and by any means) without breaking the law. He is required to remain economically active if he wishes to stay for longer than 3 months, and may be required to leave if he is not working or self-sufficient, however he cannot be forced to comply with any additional requirements over and above these prerequisites of EU free movement law.

Christmas 2020 is a little less certain. In the event of a no-deal Brexit on 31 January 2020, Santa wishing to come to the UK after that date will be subject to immigration control.

Read more: McGill & Co Solicitors,

Recommendation to Make Guardianship for Migrant Children More Effective

The Committee of Ministers has adopted a Recommendation to member States on effective guardianship for unaccompanied and separated children in the context of migration.

Migration puts children, especially unaccompanied or separated from their parents, in a very vulnerable position. Children are forced to flee or migrate from their homes for various reasons: to escape from conflict, violence, for the purpose of family reunification, as a result of changes in the environment that affect their lives, or the search for better economic, social or cultural conditions. Such a journey increases the risk of violating their fundamental rights and freedoms.

This Recommendation seeks to ensure that unaccompanied and separated children’s rights and their best interests are respected in line with international and European standards. It also seeks to ensure that guardianship is effectively provided and is appropriate to the rights and specific needs of the children concerned.

Some essential principles and implementing guidelines target both decision-makers and practitioners working to secure the protection, reception, care and wellbeing of unaccompanied and separated children through guardianship.

Read more: European Council of Ministers,

Continuing Conflicts That Create Refugees - December 2019

Deteriorated Situations: Burkina Faso, Mali, Democratic, Republic of Congo, Somalia, Somaliland, Korean Peninsula, Sri Lanka, Georgia, Tajikistan, Bolivia, Nicaragua, Syria, Iran, Iraq, Algeria

Conflict Risk Alerts: Burkina Faso, Guinea-Bissau, Iraq

Global Overview: In November, security forces in both Iraq and Iran brutally suppressed mass protests, with over 100 killed in both places; Iraq's political instability could lead to more violence in coming weeks. In Syria, fighting escalated between Russian-backed government forces and rebels in the north west, and the standoff between Algeria's authorities and protesters intensified as demonstrators turned up their calls to cancel December's presidential polls.

Violence against civilians surged in DR Congo's east and Guinea-Bissau's run-off elections in a few weeks' time could spark unrest. In Burkina Faso and Mali, jihadists inflicted heavy losses on security forces and civilians, while in Tajikistan suspected ISIS militants reportedly attacked a border post in the south. In Asia, the victory of Gotabaya Rajapaksa in Sri Lanka's presidential polls sparked fears of ethnic polarisation and repression.

Political confrontation heightened in Somaliland, Somalia's Galmudug state, Georgia and Nicaragua; and Bolivia's crisis worsened, with security forces cracking down on protesters. Tensions rose on the Korean peninsula after an apparent resumption of North Korean missile launches. On a positive note, Bosnia named a prime minister after a thirteen-months hiatus. Chad's government and a community defence group in the north signed a peace deal, and Yemen's government entered a power-sharing agreement with separatists to end hostilities in the south.

Seven Year Rule - Rules Again – Children Save Parents from Deportation  

1. The first appellant is a citizen of Nigeria who entered the UK on 15 September 2007 with leave to enter as a student. The second appellant, his wife, entered the UK on 24 August 2011 with their two children. The oldest child was three years old and the youngest was two years old on arrival in the UK.

2. On 22 February 2018 the appellants applied for leave to remain on human rights grounds. At the date of the application both children had lived in the UK for a continuous period of six years and six months. The respondent refused the application in a decision dated 06 July 2018 on the ground that the appellants did not satisfy the family and private life requirements contained in the immigration rules and there were no other exceptional circumstances to justify a grant of leave to remain on human rights grounds.

3. First-tier Tribunal Judge N.M.K. Lawrence ("the judge") dismissed the appeal in a decision promulgated on 03 April 2019. At the date of the hearing on 15 March 2019 the oldest child was 11 years old and the youngest child was 10 years old. By that time the children had been resident in the UK for a continuous period of around seven years and seven months. The judge concluded that none of the appellants met the private or family life requirements of the immigration rules. In assessing whether the first and second appellants met the requirements of section 117B(6) of the Nationality, Immigration and Asylum Act 2002 ("the NIAA 2002") the judge accepted that both children were 'qualifying children' because they had been continuously resident for a period of at least seven years. There was no dispute that the first and second appellants had a genuine and subsisting parental relationship with the children. However, the judge concluded that it would be reasonable to expect the children to leave the UK with their parents.

4. The appellants appealed the First-tier Tribunal decision on the following grounds:

(i) Failure to make clear findings relating to best interests of the children

Despite citing numerous cases on the issue, the judge failed to make any clear findings as to where the best interests of the two children lay. Having failed to make any clear findings relating to the best interests of the children the judge lacked a proper starting point for consideration of the separate question of whether it was reasonable to expect the children to leave the UK for the purpose of section 117B(6) NIAA 2002.

(ii) Confused and contradictory findings relating to the 'reasonableness' test

The judge made confused and contradictory findings before concluding that it would be reasonable to expect the children to leave the UK. At [24] the judge said: "On the evidence before me, on balance, I do not find it is not unreasonable to expect the third and fourth appellant from leaving the UK with their parents and returning to Nigeria. (sic)" The finding itself is confused and the double negatives had the opposite effect to the one apparently intended by the judge.

(iii) Failure to give appropriate weight to the children's length of residence

The judge made further confused and contradictory findings in relation to the test set out in MA (Pakistan) v SSHD [2016] EWCA Civ 705. At [13] he correctly identified the finding of the Court of Appeal that 'significant weight' must be accorded to the fact that a child had been continuously resident for a period of seven years. When he came to make his findings, the judge confused the test in the following way at [24]: "On the evidence I find that the third and fourth appellants have put down some roots. However, I do not find that there are 'strong reasons' (MA (Pakistan)), at this stage in their lives, it would be detrimental to their development to leave and to return to Nigeria. (sic)" This finding appeared to require the appellants to show 'strong reasons' why it would be detrimental for them to return to Nigeria and failed to give correct weight to the children's length of residence.

(iv) Error of law in requiring some form of detriment or welfare concern before it would be unreasonable to expect the children to leave the UK

The third and fourth points dovetail with one another. It is argued that the judge erred at [10], [16] and [22] in requiring detriment or welfare concerns to be shown in relation to the 'reasonableness' test. Although the welfare of the children might be relevant to the assessment of whether it is reasonable to expect a child to leave the UK, the assessment under Article 8 is an evaluative assessment and not solely a welfare assessment. Whether it is reasonable to expect the child to leave the UK is a holistic assessment taking into account all relevant issues including the ties that the children were likely to have developed in the UK. There is no strict requirement for the appellants to show safeguarding concerns.

27. We conclude that removal in consequence of the decision is unlawful under section 6 of the Human Rights Act 1998.


The First-tier Tribunal decision involved the making of an error on a point of law

The decision is remade and the appeal is allowed on human rights grounds

Read the full judgement:

Asylum Research Consultancy Country of Information Update Vol. 207
This document provides an update of UK Country Guidance case law, UK Home Office publications and developments in refugee producing countries (focusing on those which generate the most asylum seekers in the UK) between 26 November and 9 December 2019.

Download the full document:

High Court Hears Challenge to Systemic Delays in Child Asylum Claims

Statistics show that applications by unaccompanied children have routinely taken well in excess of a year to determine, and in many cases two years or more. On average they are taking much longer than adult claims despite their higher prioritisation.  The Home Office imposed a ‘hold’ on determining asylum claims by children recovered from the Calais Migrant Camp under “Operation Purnia” during 2017/18, but without communicating that to applicants.

The claimant is an asylum seeker whose asylum application was delayed by the Home Office for nearly two years. The delays caused him serious distress and uncertainty at a critical time of life, and made his access to further education more difficult.  The Home Office granted him asylum in response to the judicial review and accepted that the delay in his case had been unlawful (now withdrawn).  However, the High Court gave permission for the claim to proceed to a full hearing in light of the broader systemic issues that it raises.

Coram Children’s Legal Centre, the Refugee Council, the Law Centres Network, Asylum Aid and the Migrant and Refugee Children’s Legal Unit at Islington Law Centre all provided evidence of the large number of young people who were facing substantial delays in their asylum applications and the serious distress this caused them. The claim was greatly assisted by research carried out by Elder Rahimi solicitors with the assistance of the Strategic Legal Fund for Vulnerable Young Migrants.

Read more: Deighton Pierce Glyn,

What are ‘Insurmountable Obstacles’ To Family Life?

What happens when an applicant for leave to remain in the UK as the partner of a British or settled person does not meet all of the requirements of the immigration rules? They may still be able to acquire leave to remain on the basis of their right to private and family life under Article 8 of the European Convention on Human Rights.  This will be possible if they are able to show that they would face ‘insurmountable obstacles to family life continuing outside the UK with that partner’ as outlined in EX.1.(b) of the Immigration Rules.

As indicated by the wording, this is a strict test. In contrast to the more generous wording used by the European Court of Human Rights, such as ‘un obstacle majeur’ or a ‘major impediment’, the word ‘insurmountable’ necessarily indicates a very high threshold. In Agyarko, it was held that this test, though strict, was compatible with Article 8, and that, in addition, ‘the rules are not a summary of European court’s case law, but a statement of the Secretary of State’s policy’. However, the strictness of the test is mitigated by a realistic and practical approach which will be sensitive to the facts of each case.

What are ‘insurmountable obstacles’?
Paragraph EX.2 of the immigration rules provides a starting point in defining ‘insurmountable obstacles’ as the ‘very significant difficulties which would be faced by the applicant or their partner…which could not be overcome, or would entail very serious hardship for the applicant or their partner’. This definition of ‘insurmountable obstacles’ provides for two types of situation elaborated on by the Home Office Guidance in this area.

Read more; Caspar Latham,

If Your Marriage Breaks Down While You Are in the UK With a Spouse Visa?

If you are in the UK as a dependant on a spouse or partner visa and your marriage or relationship breaks down, your immigration status will be affected. Dealing with a relationship breakup can be stressful enough, but add in an immigration dimension and it can quickly become overwhelming. We’ve put together this blog to try and answer some of the most common questions that we get asked about this.

Do I need to tell the Home Office?
Yes. The onus is on you to inform the Home Office about the change in your circumstances. The Home Office wants you to write to a specific department, known as the Marriage Curtailment Team, at the earliest opportunity, explaining what has happened. We strongly advise that you take legal advice before doing this however, because once you have notified the Home Office, you will very likely be informed you that you must either quickly make a new visa application, or else leave the UK.

Can I remain in the UK myself?
You do not have an automatic right to remain in the UK if your relationship breaks down while you are on a spouse visa. You will need to check if you are eligible for a visa on any other basis and if so, make a new visa application. Subject to eligibility criteria, you may apply:

Read more: McGill & Co,

Home Office Pay £100k to Mentally Ill Man Unlawfully Detained For 838 Days

The Home Office has been ordered by the High Court to pay out £100,000 in damages to a mentally ill man who was unlawfully held in detention for more than two years. The Iranian man, who suffers from bipolar affective disorder with psychotic symptoms and post-traumatic stress disorder, and presents as "highly vulnerable", received no treatment for his serious mental illness during two periods in detention totalling 838 days in three years. Instead, the Home Office used segregation as a means to manage his disturbed behaviour, in breach of the government’s duties under equality legislation. The man, known only as AKE for legal reasons, was offered no assistance for his medical conditions or to secure his release until a volunteer from an immigration detainee support group intervened.

When he was finally released from immigration detention, AKE was not provided with safe accommodation or support for his mental health. He was later arrested by police under emergency protection powers and sectioned in hospital under the Mental Health Act 1983, the court heard. On discharge from hospital, the Home Office imposed bail conditions on him even though they had no lawful power to do so, and he continued to lack mental capacity to understand and comply with them, according to his lawyers.

Read more: May Bulman, Independent,

Removal From the UK Unlawful if Person Has British Citizenship

(1) If, on appeal, an issue arises as to whether the removal of a person (P) from the United Kingdom would be unlawful because P is a British citizen, the tribunal deciding the appeal must make a finding on P's citizenship; just as the tribunal must do so where the consideration of the public interest question in Part 5A of the Nationality, Immigration and Asylum Act 2002 involves finding whether another person falls within the definition of a "qualifying child" or "qualifying partner" by reason of being a British citizen.

(2) The fact that P might, in the past, have had a good case to be registered as a British citizen has no material bearing on the striking of the proportionality balance under Article 8(2) of the ECHR. The key factor is not whether P had a good chance of becoming a British citizen, on application, at some previous time but is, rather, the nature and extent of P's life in the United Kingdom.

(3) If P is prevented by regulation 37 of the Immigration (European Economic Area) Regulations 2016 from initiating an appeal under those Regulations whilst P is in the United Kingdom, it would defeat the legislative purpose in enacting regulation 37 if P were able, through the medium of a human rights appeal brought within the United Kingdom, to advance the very challenge to the decision taken under the Regulations, which Parliament has ordained can be initiated only from abroad.

(4) In considering the public interest question in Part 5A of the 2002 Act, if P is an EEA national (or family member of an EEA national) who has no basis under the 2016 Regulations or EU law for being in the United Kingdom, P requires leave to enter or remain under the Immigration Act 1971. If P does not have such leave, P will be in the United Kingdom unlawfully for the purpose of section 117B(4) of the 2002 Act during the period in question and, likewise, will not be lawfully resident during that period for the purpose of section 117C(4)(a).

(5) The modest degree of flexibility contained in section 117A(2) of the 2002 Act, recognised by the Supreme Court in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, means that, depending on the facts, P may nevertheless fall to be treated as lawfully in the United Kingdom for the purpose of those provisions, during the time that P was an EU child in the United Kingdom; as in the present case, where P was under the control of his parents; was able to attend school and college without questions being asked as to P's status; and where no action was taken or even contemplated by the respondent in respect of P or his EU mother.