Update: immigration and asylum

Since the beginning of the year there have been a large number of reported immigration-related cases: 75 by the Asylum and Immigration Tribunal (AIT) and over 70 by the Court of Appeal. Although a significant number of these are 'immigration', revisiting areas of the Rules that have not been considered for many years, there remain a substantial number of country guidance cases '“ 14 since the beginning of 2007. The AIT website www.ait.gov.uk has an up-to-date searchable case law section which should be looked at regularly.

Immigration rule changes

Since the beginning of 2007 there have been four Immigration Rules changes:

• HC130 amended the Rules to take account of the accession of Bulgaria and Romania to the EU on 1 January 2007;
• HC398, which came into effect on 2 April 2007, requires those subject to immigration control in a category leading to settlement to demonstrate sufficient knowledge of the English language and knowledge of life in the UK before settlement can be granted.
• Cm 7074, which came into effect on 19 April 2007, introduced changes for short-term students (now student visitors), specific rules for child visitors, an extension of the 'no switching' rules, the introduction of an English language criterion for ministers of religion, and the introduction of mandatory entry clearance for those seeking to come to the UK as students.
• Cm 7075, which came into effect on 1 May 2007, renames the Science and Engineering Graduates Scheme, as the International Graduate Scheme and broadens the eligibility criteria. It also amends the eligibility criteria for the Fresh Talent: Working in Scotland Scheme.

On 3 April 2007 the Immigration and Nationality Department ceased to exist and was replaced by the Border and Immigration Agency, an executive agency of the Home Office. Asylum cases are now, in principle, managed by an 'individual case owner from start to finish'.

Asylum '“ children

On 25 June 2007, the Home Office announced a child safety strategy subsequent to a consultation process begun in February. The children's commissioner had responded on 31 May 2007. On 24 May, Immigration Law Practitioners' Association (ILPA) published a research report on age disputes and age assessment in the asylum and asylum support processes.

Copies are available from ILPA website at www.ilpa.org.uk/publications

Significant conclusions drawn include a continuing and profound cause for concern at the reliability of age assessment techniques including bone, dental and anthropometric assessments, that Home Office policy to give the benefit of the doubt was not followed, that child sensitive processes including interviewing and the provision of good quality legal representation were essential, that age disputes should be resolved at the start of the asylum application process.

The case of R(A) v Liverpool City Council [2007]EWHC1477(admin) considered reports by a dental expert and paediatrician in connection with age assessment, drawing conclusions on the need for a holistic assessment of the applicant as well as making pertinent points about the need for impartiality on the part of experts.

Particular social group

SSHD v K, Fornah v SSHD [2006]UKHL46 considered the definition of particular social group within the meaning of Article 1(A)(2) of the Refugee Convention and provides detailed analysis of the proper interpretation, which follows United Nations High Commissioner for Refugees guidelines, determines female genital mutilation (FGM) as treatment amounting to persecution within the meaning of the Convention, considers gender related persecution and holds that where a family member is persecuted for a non-Convention reason, persecution of other family members can be regarded as persecution for a convention reason. AIT cases confirm that although women at risk of FGM are a particular social group, each case must be considered on its facts in the light of relevant country material and that internal relocation may be reasonable (SK (FGM-ethic groups) Liberia CG [2007] UKAIT 00001, FK (risk and relocation) Kenya CG [2007] UKAIT 00041), FM (FGM) Sudan CG [2007] UKAIT 00060).

Removal to a third country

The court granted a declaration that the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 Sch.3 para.3, which requires the removal of asylum seekers from the UK to specific named countries where it was deemed that they would not be at risk of refoulement, was incompatible with the European Convention on Human Rights 1950 Art.3 because it operated to prevent the SSHD from investigating a potential breach of Art.3. (Nasseri v SSHD [2007] EWHC 1548).

Human rights

The ever present issue of Article 8 of the European Convention on Human Rights (ECHR) continued to be highly visible in applications, decisions and determinations. SSHD v Huang, Kashmiri v SSHD [2007 ]UKHL11 confirmed the five step approach set out in Razgar [2004] UKHL 27:

• Will the proposed removal be an interference by a public authority with the applicant's right to respect for his private or family life?
• If so will such interference have consequences of such gravity as potentially to engage the operation of Article 8?
• If so is such interference in accordance with the law?
• If so is such interference necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
• If so is such interference proportionate to the legitimate public end sought to be achieved?

Once it is established that Article 8 is engaged the AIT has the authority to reach its own independent decision of proportionality; the question is whether the interference complained of is proportionate to the legitimate aim to be achieved. The House of Lords states that if family life cannot reasonably be expected to be enjoyed elsewhere the question is whether, taking into account all the considerations weighing in favour of refusal, the refusal of leave prejudices the family life of the appellant sufficiently seriously to amount to a breach. In considering this account must be taken on the severity and consequences of the interference caused.

This has continued to be explained and amplified by the AIT: In an in-country appeal the relevant date for assessment of the facts is the date of the hearing but the assessment has to be in the round, taking account of past, present and future circumstances. (MM (Article 8 '“ family life '“ dependency) Zambia [2007] UKAIT 00040).

'Even when an individual's circumstances fall squarely within the rationale of a relevant immigration rule or policy and so accord with its spirit albeit not its letter, a 'near miss' does not of itself mean that an expulsion decision constitutes a disproportionate interference with an appellant's right to respect for private and/or family life'. The loss of a right of appeal does not amount to a particular disbenefit unless there are practical demonstrable disadvantages. (KL (Article 8-Lekstaka-delay-near-misses) Serbia & Montenegro [2007] UKAIT 00044).

The risk of suicide and the availability of drugs in so far as Article 8 was engaged was considered by KR v SSHD [2007] EWCA Civ 514. It reiterated the need for the tribunal to undertake a rounded appraisal of risk. In this particular case it was held that the appellant had not established that there was a real risk of committing suicide if he were returned to Iraq and he had not therefore established the claimed interference with his Article 8(1) right to respect for his private life.

Immigration (European Economic Area) Regulations

The Immigration (EEA )Regulations have resulted in numerous determinations on their interpretation for family and extended family members as well as the effect of the regulations on individuals if their relationship/marriage has broken down. In particular:

Direct descendants include grandchildren and remoter issue. (PG and VG (EEA; 'direct descendants' includes grandchildren) Portugal [2007] UKAIT 00019).

An adoption requires an intention to adopt: mistakenly treating a child as one's own does not amount to adoption. Children not related to the sponsor, and not the subject of adoption, are not his 'direct descendants' for the purposes of the Immigration (European Economic Area) Regulations 2006 or the underlying Directive FK & MK (EEA Regulations: descendants; meaning) [2007] UKAIT 38.

The Citizens Directive does not confer a right of admission or residence on relatives of EU citizens and spouses save for family members as defined in Article 2.2 ('direct descendants/ascendants'). It is up to each member state to determine by national legislation which other relatives to admit. (AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048. Confirmed by AK (Citizens' Directive; AP and FP applied) Sri Lanka [2007] UKAIT 00074).

There is no absolute right of residence for a person who is not himself a national of a member state who is married to a UK national. Even if the UK national has exercised treaty rights by working in another member state before returning to the UK, the UK national's movement unaccompanied by the spouse does not confer a right of residence on the spouse. (GC (Citizens Directive: UK national's spouse) China [2007] UKAIT 00056).

The Tribunal has discretion to review the exercise of the SSHD's discretion when considering 'extended family members' and is not restricted to whether the decision was lawful. (FD (EEA discretion: basis of appeal) Algeria [2007] UKAIT 00049).

The 'status of 'dependent' family member is a factual situation characterised by the fact that material support for that family member is provided by the community national who has exercised his right of free movement or by his spouse '.

''Dependant on them' means that members of the family of a community national established in another member state. . . need the material support of that community national or his or her spouse in order to meet their essential needs in the state of origin of those family members'. (Case C '“ 1/05 Jia v Migrationsverket, not yet reported).

A residence permit or document issued to a family member does not constitute leave to remain so an application for leave to remain which requires an extant leave to remain cannot succeed if the persons entitlement to be in the UK depends solely on him being a family member and that relationship has ceased to exist (TB (EEA National: leave to remain) [2007] UKAIT 20).

Maintenance and dependent children

The maintenance requirement in applications for entry clearance by dependant children/relatives, spouses or partners raises other issues. Maintenance must be adequate. The requirement of adequacy is an objective test and the level of income support and other benefits that would be available to a family is the yardstick by which adequacy is measured; it is the minimum required. Income support is a 'gateway' to other benefits, for example free school meals and this is a factor that is taken into account. The fact that a sponsor has been able to save and send money is not necessarily evidence that the benefits received by the sponsor will be adequate to support the appellant; the provision of such funds for the benefit of the appellant could result in the level of income of the sponsor rendered inadequate. Where a sponsor has disabilities the enhanced benefits payable, for example disability living allowance have been awarded because of necessity and are not treated as available to dependants coming from abroad. (KA and others (Adequacy of maintenance) Pakistan [2006] UKAIT 00065 and MK (Adequacy of maintenance '“ disabled sponsor) Somalia [2007] UKAIT 00028).

In R v SSHD Arman Ali [2000] ImmAR 134 held that there was nothing in the rules that prevented long-term third party support being taken into account to satisfy the requirements of the rules. The rule (281(v)) in force now is in the same terms as then.

AK & Others (long-term, third party support) Bangladesh [2006]UKAIT 00069 held that the availability of short-term third party support may be satisfied comparatively easily by satisfactory evidence of the genuineness of intent and the present existence of sufficient surplus funds. A long-term commitment to third party funding, especially to someone who is neither an ascending or descending relative requires detailed evidence and enquiry and thorough assessment.

AM (third party support not permitted R281(v))Ethiopia [2007]UKAIT 00058, which reflects the current approach of the AIT, states that third party support is not permitted under paragraph 281(v) of the rules and that Arman Ali should no longer be followed.

In NA (Bangladesh) & Ors v ECO [2007] EWCA Civ 128, the Court of Appeal considered that it was appropriate to consider the resources of the family as a whole although this was in the context of sole responsibility for a dependant child; the issue of financial support was referred to, but left open. AM 58 did not refer to this judgment.

VS (Para 317(iii) '“ no third party support) Sri Lanka [2007] UKAIT 00069 held that third party support is not permitted under paragraph 317(iii)(dependant relative) of the immigration rules. Where a sponsor is wholly dependent upon public funds and sends to the relative outside the UK money he has received from a third party he is a mere conduit for that money. That does not create a dependency on the sponsor within the rules.

Marriage

SSHD Baiai and Trzinska & Ors; Baiai and Trzcinska v SSHD, JCWI intervening [2007] EWCA Civ 478 considered the scheme introduced by s19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and the Immigration (Procedure for Marriage) Regulations 2005 that prevented anyone without valid leave to enter or remain in the UK exceeding six months from obtaining a Certificate of Approval to enable them to marry, subject to various exclusions. The Court of Appeal held that Article 12 of the ECHR was absolute and could not be lightly interfered with although it did not confer a right to marry in a particular country; although a policy of inhibiting marriages of convenience could be seen as not undermining Article 12, a scheme to control marriage must, to be proportionate, involve proper investigation of each individual case. The present scheme was declared unlawful as being inconsistent with Article 12.