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
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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
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