Family Immigration

In MW (Liberia) v Secretary of State  (20 December 2007) the Court of Appeal issued its judgment on the question of whether children seeking entry to the UK to join their parents can succeed in their applications for entry clearance if they are to be supported and accommodated by their parents with the financial assistance of others (“third parties”).  

The Asylum and Immigration Tribunal has held that for persons seeking admission to the United Kingdom as the family member of an EEA national possession of an EEA family permit is not a necessary requirement of the Immigration (European Economic Area) Regulations 2006.

In June, we expressed concern that some courts were seeking to reintroduce the “truly exceptional” test in relation to claims under Article 8 of the European Convention on Human Rights (ECHR). In a welcome decision, AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801, the Court of Appeal has expressed concerns about “continuing controversy” about how the immigration courts should now deal with Article 8 claims and has set down clear guidance for the interpretation of the House of Lords’ judgment in Huang.

UKvisas, the joint Home Office and Foreign and Commonwealth Office service dealing with applications for visas to come to the UK, has published the Report of the Independent Investigation: Breach of Data Security in the VFS Online UK Visa Application Facility, Operated Through VFS Websites in India, Nigeria and Russia. Linda Costelloe Baker, the Independent Monitor for entry clearance cases without right of appeal, was the Independent Investigator. 

The House of Lords in the UK parliament is continuing its scrutiny of the proposals for new immigration legislation in the UK, the UK Borders Bill.

Much of the debate in the Grand Committee of the House of Lords has been about proposals that people given leave to enter (a visa) or remain in the UK should carry a biometric identity document. The UK currently does not have a system of identity cards for nationals, although it has passed a law, the Identity Cards Act 2006, that would allow it to introduce such a system in the future.

The UK Home Office is consulting on proposals radically to ‘simply’ UK immigration law. The consultation paper includes a discussion of the Points-Based system being introduced for those coming to work or undertake economic activity in the UK.

In NM (“leading an independent life”) Zimbabwe [2007] UKAIT 00051, the Asylum and Immigration Tribunal (AIT) considered the meaning of ‘leading an independent life’, within the provisions of paragraph 197 of the UK Immigration Rules.  This rule sets out the circumstances in which dependent relatives of people who are not settled (i.e. do not indefinite leave to remain, ILR) in the UK, for example the dependent relatives of work permit holders or people in the UK under the Highly Skilled Migrants Programme (HSMP) are permitted to remain with their relatives in the UK. 

Gherson and Co. recently acted for an applicant in a successful appeal against refusal of a residence card as an extended family member of a European Economic Area (EEA) national. Alan Briddock was counsel in the case, instructed by Kathryn Bradbury of Gherson and Co.

As part of the effort to enable and enforce the principle of free movement throughout the EEA for workers who are nationals of the EEA, European Community Law requires workers to have the right to be joined in the UK by their family members and ‘beneficiaries’. The term beneficiaries encompasses, as in this case, partners and same sex partners in a ‘durable relationship’ with the worker. The meaning of this phrase causes many disputes but was not at issue in the instant case. A Residence Card is issued to beneficiaries as confirmation of their rights to reside in the UK under European Community Law.

Ms *, who is not herself an EEA national, applied to the Home Office on the basis of her same sex partnership with an EEA national for a Residence Card as confirmation of her right to residence under European Community Law. The Home Office refused, stating as their only reason that, even if the applicant was in a durable same sex relationship for the purpose of the Immigration (EEA) Regulations 2006, it did not ‘appear appropriate’ to issue her a Residence card given that she did not at the time of the application have valid leave to remain in the United Kingdom. 

It appears that this response was the result of an instruction to caseworkers which was intended to have blanket application: this was confirmed by a Home Office representative in another case (unreported, March 2007) .

Whilst, under the Immigration (EEA) Regulations 2006 the Home Office has discretion to issue a Residence Card if, in all circumstances, it appears appropriate to do so, unlawful residence in the UK is not specifically provided for as a permitted basis for refusal. However, the Home Office is under a duty, under the Immigration (EEA) Regulations 2006, to undertake an ‘extensive examination of the personal circumstances of the applicant’ and, if the applicant is refused, to give reasons justifying the refusal unless this is contrary to the interests of national security’.

Ms * appealed. Important among the facts of her case were that she had made every effort to remedy her situation, including seeking help from three Members of Parliament (MPs), but had been let down, including by previous representatives.

At her appeal the Home Office did not dispute that she was in a durable relationship. Ms * had entered the UK as a student. While she still had leave to be in the UK, she applied for Indefinite Leave to Remain (ILR). When that was refused she had lodged an appeal. Although she had been in touch with her previous representatives at the time when her appeal was heard, she had not been made aware of her appeal hearing and had not therefore attended it.

The immigration judge accepted that she had made every effort to obtain from her then legal representatives and the Home Office further information regarding the progress and outcome of her application and the then state of her leave to remain in the United Kingdom. He accepted that once she obtained proper legal advice and representation, she found out what had happened to that application and then made her present application. The judge felt it significant that her representatives made the Home Office aware of her history of making every effort to find out her immigration status and resolve it, in time for the Home Office to make its decision.

The immigration judge found that there was no evidence to suggest that the Home Office considered or otherwise took into account the various issues raised by Ms * about her immigration history in the United Kingdom, or her personal circumstances more generally.

The immigration judge concluded that the Secretary of State for the Home Office had

‘failed to demonstrate giving reasons for his refusal, any or any extensive examination of the appellant’s personal circumstances before refusing her application. To merely assert that the appellant had no valid leave to remain in the UK at the time of her application and to fail to provide particulars or any or any other issue considered by him, does not, in my judgement, meet the requirements of, among others, Regulations 8, 17, 20 and 21 of the Immigration (European Economic Area) Regulations, 2006.’

In response to increasing pressure that the Border and Immigration Agency (BIA) be made subject to the duty in section 11 of the Children Act 2004 to have regard to safeguarding and the promotion of the welfare of children in carrying out their functions, the UK government have proposed a compromise as an amendment to the UK Borders Bill currently before the UK House of Lords and in a Grand Committee there from 2 July 2007.

Many agencies, including the police and the prison service, are subject to the ‘section 11’ duty to safeguard and promote the welfare of children, but the Border and Immigration Agency (BIA) has always maintained that it could not do its job if it were made subject to the duty. 

The UK government’s proposed compromise is as follows:

‘Children
(1) The Secretary of State shall issue a code of practice designed to ensure that
in exercising functions in the United Kingdom the Border and Immigration
Agency takes appropriate steps to ensure that while children are in the
United Kingdom they are safe from harm.
(2) The Agency shall have regard to the code in the exercise of its functions.
(3) The code shall come into force in accordance with provision made by order
of the Secretary of State; and an order:
        (a) shall be made by statutory instrument, and
        (b) shall be subject to annulment in pursuance of a resolution of either
House of Parliament.
(4) The Secretary of State shall from time to time review and, if necessary,
revise the code; and subsection (3) applies to a revision as to the original
code.
(5) In this section
        (a) ‘the Border and Immigration Agency’ means
                (i) immigration officers, and
                (ii) other officials of the Secretary of State, and the Secretary of
State, in respect of functions relating to immigration, asylum or nationality, and
        (b) ‘child’ means an individual who is less than 18 years old.’

It seems unlikely that the proposed compromise, which imposes no clear duties, will satisfy the government’s critics, who in the UK House of Commons included the spokesperson for the opposition Conservative party on the UK Borders Bill, Damien Green MP. Mr Green proposed an amendment that would have made the Border and Immigration Agency (BIA) subject to the section 11 duty and, when the government rejected his proposal, forced the matter to a vote.  The government won the vote, but not by a large majority.

The question being asked is, if the code does not amount to a duty to 'have regard to' the safeguarding and promotion of the welfare of children, then what does it do?  What would be in a Code of Practice that did not enjoin upon the BIA an obligation to 'have regard' to whether its action would affect the safety and welfare of a child?

The Asylum and Immigration Tribunal (AIT) has decided in AM (3rd party support not permitted R281 (v)) Ethiopia [2007] UKAIT 00058 that applicants for entry clearance (a visa) cannot rely upon third party support to satisfy the maintenance requirements of the Immigration Rules unless the Rules expressly state that they may do so. The AIT also considered the House of Lords’ judgment on Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private and family life, in Huang and Kashmiri and concluded that it made no difference to the outcome of any human rights claims based upon an alleged breach of the right to respect for family and private life.