Update | Immigration: procedure, rights of dependents

There have been numerous and significant Immigration Rule changes since July. It is extremely important that the current Rules are checked and complied with and the transitional provisions taken into account. Some of the Rules changes are as a result of significant caselaw: R (on the application of Alvi) v SSHD [2012] UKSC 33 which held that a requirement in guidance or a code of practice which would, if not met by the claimant, lead to an application for entry clearance or leave to remain to be refused was a 'Rule' within the meaning of s3(2) Immigration Act 1971 and should therefore be laid before Parliament; and R (on the application of Munir and others) v SSHD [2012] UKSC 32 which held that statements by the SSHD as to her policy for the grant ?of concessionary leave to enter or remain did not amount to statements as to the practice to be followed such that they amounted to a Rule within the meaning of the 1971 Act and did not therefore have to be laid before Parliament.

Other Rule changes are indicative of a new approach by the SSHD to family members in particular and should be read carefully to ensure that the necessary requirements are met.

Procedural and jurisdictional issues

Alongside the Rules changes there have been a number of recent cases that have considered procedural and jurisdictional matters.

SG (Iraq) v SSHD [2012] EWCA Civ 940 gave guidance on whether there should be a stay in proceedings in circumstances where relevant country guidance determinations by the Upper Tribunal were the subject of a pending appeal. The judgment sets out the legislative framework and the relevant Practice Directions. Paragraphs 42 to 50 discuss the relevance and authority of Country Guidance decisions and confirm the principle that decision makers and Tribunals are required to take Country Guidance determinations into account and to follow them unless very strong grounds supported by cogent evidence justify their not doing so. Such determinations remain authoritative unless and until it is set aside on appeal or replaced by subsequent Country Guidance determination (paragraph 67).

Paragraphs 68 to 71 set out the principles to be considered when deciding whether a stay should be granted:

'68. The filing of an application for permission to appeal a Country Guidance determination of the Upper Tribunal (Immigration and Asylum Chamber) cannot, of itself, justify the Court granting an injunction staying the removal of anyone whose removal is justified by that determination. However, if the judge considers that the evidence relied upon by the claimant may satisfy the test to which I refer below, it may be appropriate to grant a stay pending the decision of the Court of Appeal on the application for permission to appeal. In such a case, it may well be appropriate for the judge to suggest that the Court of Appeal expedite its consideration of the application for permission to appeal.

69. Whether the grant by the Court of Appeal of permission to appeal a Country Guidance determination justifies a stay in the cases of those seeking to challenge removal directions where the decision to remove them relies or is justified by that determination must depend on the facts and the evidence relied upon by the claimant. The facts will include the content of the determination and the reasons given for the grant of permission to appeal.

70. If the evidence relied upon was considered by the Tribunal, it is unlikely that a stay will be appropriate unless the reasons given for the grant of permission to appeal cast substantial doubt on the reliability of the findings of the Tribunal.

71. In relation to evidence other than that considered by the Tribunal'¦.. The Court should not stay removal pending the decision of the Court of Appeal unless the claimant has adduced a clear and coherent body of evidence that the findings of the Tribunal were in error.'

Adedoyin v SSHD [2012] EWCA Civ 939 also considered the role of the Court of Appeal in relation to the Upper Tribunal, permission having been granted to consider 'how critically should the Court of Appeal consider the decision of the Upper Tribunal allowing an appeal against the First-tier Tribunal'. On the facts of the case however it was clear that the First-tier Tribunal decision was unsustainable and therefore little more than general principles were enunciated, although these are of importance in determining whether application should be made to the Court ?of Appeal:

'29. This was not a case in which the determination of the First Tier Tribunal could sensibly have been sustained, and in consequence we did not hear argument on the question of principle raised by the Master of the Rolls. However, I consider that certain propositions can be stated. The appeal to this Court is against the determination of the Upper Tribunal. It is only if that determination contains an error of law that this Court can allow an appeal from it. If the Upper Tribunal has properly directed itself as to its approach to the determination of the First Tier Tribunal, and has arrived at a conclusion that was open to it, the determination of the Upper Tribunal contains no material error of law, even if this Court might have been more (or less) generous in its approach to the determination of the First Tier Tribunal. Secondly, in such a case, it is difficult to see how the second appeal test could be satisfied.'

Alam and Others v SSHD [2012] EWCA Civ 960 overturned Shahzad (s85A: commencement) 2012 UKUT 81 (IAC) and held that in appeals under the Tier 4 points based system, the exclusion of new evidence (section 85A Nationality Immigration and Asylum Act 2002) applied to all appeals after the date that section 85A was brought into force (23 May 2012). The court accepted that there may be anomalies and inconsistencies but that the section was clear and unambiguous.

Deportation and dependents

And of course Europe continues to loom large, producing a wealth of determinations both from the Upper Tribunal and the Luxembourg court. Issues of deportation of EU citizens continue to raise matters of some complexity. In JO (Qualified person '“ hospital order '“ effect) Slovakia [2012] UKUT 00237 (IAC) a UT panel of Lord Justice McFarlane and UT Judge Warr held that an EEA national does not cease to be a qualified person as a result of being detained in hospital pursuant to an order of the court under the Mental Health Act, having not been convicted of any criminal offence.

In Onuekwere (imprisonment '“ residence) [2012] UKUT 269 (IAC) the Upper Tribunal made a reference to the CJEU for preliminary ruling on two questions: In what circumstances if any will a period of imprisonment constitute legal residence for the purposes of the acquisition of a permanent right of residence under Article 16 of the Citizen's Directive; and if a period of imprisonment does not qualify as legal residence, is a person who has served a period of imprisonment permitted to aggregate periods of residence before and after his imprisonment for the purpose of calculating the period of five years to establish permanent right of residence under the Directive.

The outcome of this referral will have considerable consequences for EU citizens and their liability to deportation, particularly given the expressed views of the SSHD on the desirability of the deportation of 'foreign criminals' and the need in appeals involving EU citizens to establish their length of residence in order to determine the proper test to be applied.

In Ewulo (effect of family permit '“OFM) [2012] UKUT 00238 (IAC) a panel of Mr Justice Blake and UT Judge Dawson found that where a family permit has been issued by an ECO after inquiry pursuant to regulation 12 of the Immigration (European Economic Area) Regulations 2006 and is used to enter the UK, a subsequent application for a residence card is to be determined under regulation 7(3) of the Regulations. Where the validity of the family permit is not contested by the SSHD and the permit has not been revoked the issue is whether there has been a material change of circumstances since arrival with the consequence that the OFM no longer qualifies as an extended family member.

The CJEU's ruling in SSHD v Rahman, Islam and Rahman (5 September 2012, Case C-83/11) considered directive 2004/38/EC and the right of citizens of the Union and their family members to move and reside freely within the territory of the member states '“ article 3(2); and the obligation to facilitate in accordance with national legislation, entry and residence for any other family members who are dependants of a Union Citizen. The questions referred were:

'(1) Does Article 3(2) of [Directive 2004/38] require a Member State to make legislative provision to facilitate entry to and/or residence in a Member State to the class of other family members who are not nationals of the European Union who can meet the requirements of Article 10(2) [of that directive]?

(2) Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of [Directive 2004/38] in the event that he cannot comply with any requirements imposed by national legislative provisions?

(3) Is the class of other family members referred to in Article 3(2) and Article 10(2) of [Directive 2004/38] limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host State?

(4) Must any dependency referred to in Article 3(2) of [Directive 2004/38] on which the other family member relies to secure entry to the host State be dependency that existed shortly before the Union citizen moved to the host State?

(5) Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of [Directive 2004/38] by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non-national to be admitted to or continue to reside in its territory?

(6) Must the dependency on which the other family member relies in order to be admitted to the Member State continue for a period or indefinitely in the host State for a residence card to be issued or renewed pursuant to Article 10 of [Directive 2004/38] and if so how should such dependency be demonstrated?'

In answering these questions the court stressed that Directive 2004/38 does not oblige member states to grant every application for entry or residence; there is a distinction between a union citizen's family as defined in Article 2(2) and other family members as defined in Article 3(2) whose entry and residence has only to be facilitated. Individuals must therefore be provided with the opportunity to obtain a decision which is founded upon extensive examination of their circumstances and, if refused, provided with reasons for such refusal.

Member States have a wide discretion when selecting the criteria upon which they determine such applications but such criteria must be consistent with the word 'facilitate'. It is for the national Tribunal to determine whether the applicants were dependants of the Union citizen in the country from which they, the applicants, have come at the time they submitted the application to come.The Court drew attention to recital 6 in the Directive's preamble which states that the objective is to 'maintain the unity of the family in a broader sense by facilitating entry and residence for persons who are not family members under Article 2(2) but nevertheless maintain close and stable family ties on account of specific factual circumstances such as economic dependence, being a member of the household or serious health grounds.

There is thus a very detailed factual matrix to be identified and proved where other family members (Article 3(2)) are seeking entry or residence. It is simply insufficient to assert economic dependency and contact without adequate evidence to sustain such assertions.