Immigration Barristers' Blog

The Upper Tribunal has issued guidance to representatives concerning appeals to the Upper Tribunal based upon the alleged misconduct of an Immigration Judge.

The key points of guidance may be summarised as follows:

• A party alleging misconduct by a judge needs to prove it;
• Parties and their representatives need to ensure that the evidence is collected while memories are fresh;
• Permission to call evidence before the Upper Tribunal may be refused where, in circumstances where a party has not acted promptly to prepare and disclose evidence, it would be unfair to the other party, or not in the interests of justice.

Paragraphs 12, 14 and 15 of the Upper Tribunal’s determination are worth quoting in full:

12.The Tribunal treats allegations made about the conduct of judges with the greatest seriousness. It goes without saying that if grounds of appeal, such as those raised in the present case, are made out, they are very likely to cause a determination to be set aside. But it is not sufficient to make the allegations: they must be substantiated in fact, and in a way that is in itself fair to all interests, including those of the respondent and of justice generally.

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14. This is not an appropriate way to conduct civil litigation and it is a particularly inappropriate way to attempt to establish grounds of appeal relating to the alleged misconduct or inappropriate conduct of a judge, which, as Ms Hulse reminds us, is a matter of importance going beyond the outcome of an individual case. Allegations of that sort always need to be supported by evidence. The evidence needs to be served on the respondent and filed with the Tribunal in good time, so that it can be properly considered. It may be appropriate for this Tribunal to seek comments from the Judge. The Secretary of State will need to consider whether to call the Presenting Officer as a witness if she considers that the allegations are groundless. None of this can be done if the evidence is not made available well in advance of the hearing.

15. Directions may be given, but they should not be necessary. Solicitors who allege that a judge has behaved improperly should know that they need to support the allegation with evidence, and should be prompt in bringing the evidence to the attention of the Tribunal and the respondent. They are likely to want to seek an early hearing of the matter, before memories fade. They are likely to ensure that any prospective witnesses make a note at the earliest possible opportunity. A contested trial of fact about what happened at a previous hearing may be necessary, but it can in some cases be avoided if all parties and the Tribunal are made aware of the strength of the case if it is a strong one. Conversely, failure to prosecute the case, failure to serve evidence, and reliance upon a witness who did not make a note in preference to a witness who did, may well indicate that a case is not strong.

In this case, the Court of Appeal discussed whether or not there is a 'near miss principle' in Article 8 cases.

People refused leave to remain in the country due to not meeting the requirements of the Immigration Rules often argue on appeal that their removal would breach their human right to respect for private life. Since 2010, an increasingly common argument has been that if someone nearly meets the requirements of the Rules but has fallen just short, it would be disproportionate to remove them, and so a breach of Article 8. This approach can be very useful, for example, for appellants under the Points Based System whose bank accounts fell a few pence below the required balance for a short time.

In Miah, the Court of Appeal stated that there is no near miss principle, and that the previous case law that suggested there was is not binding because the statements in question weren't part of the ratio decidendi - the reasons why the case was decided the way that it was. At first glance, this appears to be bad news for appellants who nearly meet the Immigration Rules but still fall just short. However, a careful reading indicates that the consequences are not actually as far reaching as that.

To understand the implications of Miah, it is essential to appreciate what Article 8 involves. To win under this Article, an appellant must show that removing them from the UK would be disproportionate to the Home Secretary's aim in removing them. Apart from in cases about the deportation of criminals, the aim will almost always be the economic wellbeing of the country through the maintenance of effective immigration control. In simple terms, assessing proportionality is a balancing act; the court must decide how much weight is to be placed on the Home Secretary's aim, and how much weight is to be placed on the reasons cited for not removing the appellant. If the appellant's reasons carry more weight, then removing them would be disproportionate and would breach Article 8.

In Miah, the main appellant fell just short of meeting the Immigration Rules; it was therefore a 'near miss' case. He argued that the near miss meant that less weight should be placed upon the Home Secretary's aim of immigration control. The Court of Appeal rejected this argument and in doing so said that there is no 'near miss' principle.

However, this does not mean that a near miss can never be relevant to an Article 8 case. As explained above, there are two sides to the proportionality balancing act - the Home Secretary's aim and the appellant's interests. The Court of Appeal discussed the first of these, but not the second. It is therefore still possible to argue that, even if a near miss does not reduce the weight to be attached to immigration control, it may increase the weight to be attached to the interests of the appellant. This may seem just a case of semantics, but it is in fact a very important distinction in practice. All things being equal, someone who complies with some of the Rules that the Home Office wants them to comply with surely has a better claim to stay in the UK than someone who complies with none of them.

A package of measures designed to drive forward radical reforms to the immigration system and ensure the UK attracts only the brightest and best migrants has been laid in Parliament.

A new minimum pay requirement of £35,000 for skilled temporary workers wishing to apply for settlement will mean that only those who make the biggest contribution to the UK economy will be able to stay here permanently. The income requirement will take effect in April 2016.

The annual limit for the Tier 1 exceptional talent route - designed to meet the needs of exceptionally talented leaders in the fields of science, humanities, engineering and the arts - will remain the same for the next two years, at 1,000 visas.

There will be a number of changes to the student entry route, which will take effect on 6th April, including:

• the closure of the post-study work route,
• the introduction of a five-year time limit for study at bachelors and masters degree level, to ensure the student route serves its proper role as a means of temporary entry to the UK, not of achieving permanent settlement here;
• limiting the time students are allowed to spend on work placements, to crack down on those who come to the UK to work, rather than study; and
• offering the brightest and best university graduates who have a compelling business idea the chance to stay on through our graduate entrepreneur scheme.

When reforms to the student visa system have been fully implemented, the government estimates that there will be around 70,000 fewer student visa grants a year and around 20,000 fewer visas issued to dependants.

Other Immigration Rules changes laid before Parliament include provisions to:

• provide for mandatory, rather than discretionary, curtailment of leave to remain in the UK when a migrant fails to start or withdraws from their job or study course;
• reform the overseas domestic worker routes, as announced by the Home Secretary last month; and
• allow certain professionals, artists, entertainers and sports-people to carry out paid activities in the UK for up to one month, also as announced last month.

This case gives some hope to work permit holders who might otherwise be caught out by the Home Office's sudden introduction of a new requirement to be paid a certain salary in order to secure indefinite leave to remain.

Until 6 April 2011, you could be granted indefinite leave to remain if you had spent 5 years in the UK with leave as a work permit holder and your employer confirmed that they still needed you for the job. However, out of the blue, the Home Office amended the Immigration Rules to say that you must be paid at or above the 'appropriate rate' for the job as set out in the Codes of Practice for Tier 2 of the Points Based System. This has caused and will cause problems for a lot of people, who have been allowed to live and work in the UK for several years and are likely to have no control over the salary that their employer pays them.

In Philipson (ILR - not PBS: evidence) India [2012] UKUT 39 (IAC) the Upper Tribunal questioned whether the Tier 2 Codes of Practice could apply to someone who had never had or needed a Certificate of Sponsorship under Tier 2. It was also suggested that it could be a breach of human rights under Article 8 to refuse someone leave to remain based on their salary being too low when they had spent 5 years here in the expectation that they would be able to reside permanently.

The particular appellant in Philipson actually met the requirements of the Immigration Rules in any case; she was paid at the 'appropriate rate' so her appeal was allowed on this basis. That means that the Tribunal's comments about the change in the Rules are what is called 'obiter'; they are not strictly binding on the Home Office or the First Tier Tribunal. However, they are strongly worded and provide hope that the courts will treat other people applying for indefinite leave as work permit holders favourably.

The easiest way for a work permit holder to succeed in an application for indefinite leave to remain will still be to negotiate a pay rise with their employer so that they are being paid at the 'appropriate rate' at least in the last pay period before they apply. However, if this is not possible then there is a strong legal case that can be advanced to the Home Office, and to the Tribunal on appeal if necessary, that to refuse the application would be unlawful for the reasons suggested in Philipson. There is also an argument, arising from the judgment of the Court of Appeal in Secretary of State for the Home Department v. Pankina [2010] EWCA Civ 719 that the Home Office cannot rely on a substantive requirement - here, the requirement to be paid at a specific rate - if that is imposed by a document outside the Immigration Rules that has not been considered by Parliament.

If this issue is likely to affect you then you are strongly advised to seek legal advice and assistance in preparing your application in order to minimise the risk of a refusal, and in arguing your case in front of an Immigration Judge if you do receive one.

The UK Border Agency has made some amendments to the list of approved English language tests for applications made under Tiers 1, 2 and 4 of the points-based system and for spouse or partner applications.

The amendments include:

• The City & Guilds test scores now show 'pass' and there is a separate English language test for spouse/partner applications.
• For City & Guilds tests the documents required for a migrants application have been amended.
• ETS have changed the way that the scores for their TOEFL ibt (internet based test) map against the Common European Framework of Reference (CEFR).
• The ETS TOEFL ibt (internet based test) now includes scores for spouse and partner applications.
• There is a change to the web address for the TOEIC (The test of English for international communication) English language test.
• Cambridge ESOL (English for speakers of other languages) have amended the title of one of their tests from 'International Legal English Certificate' to 'Cambridge English Legal'.
• For Cambridge ESOL tests the minimum grade requirements are clearer.
• Trinity College tests now have a 2 year expiry date.

When applications are made in an immigration category that requires a demonstration of English language ability, applicants must show that they have passed an appropriate test on the list.

A report issued by Maggie Atkinson, Children's Commissioner for England, has revealed that an agreement in existence between the UK and France regarding the treatment of unaccompanied children entering the country was in conflict with the UK Border Agency's (UKBA) duty to safeguard children and promote their welfare.

It also uncovered excessive periods of detention prior to release into local authority care due to the number and length of immigration interviews undertaken at the point of arrival.

The 'Landing in Dover' report results from an investigation by the Office of the Children's Commissioner (OCC) into the treatment of unaccompanied children asylum seekers when they first arrive in the UK. It has already led to changes in the way UKBA treats children seeking asylum.

The 'Gentleman's Agreement' enabled unaccompanied children to be sent back to France within 24 hours if they did not immediately ask for asylum. This resulted in a significant failure of child protection. Just over 1,700 unaccompanied children that entered the country in 2010 sought asylum, whilst a number of those returned to France under the Gentleman's Agreement may have been trafficked for exploitation. Investigations by OCC have found children seeking asylum include those escaping war zones and persecution. They are often hungry, ill, exhausted and distressed when they first arrive.

Once the Children's Commissioner brought the Agreement to the attention of Rob Whiteman, UKBA's new Chief Executive, he ended the practice in respect of children immediately.   

Other recommendations in the report which aim to improve the immigration process for children include:

• Using face to face interpreters and stopping the use of telephone interpreters for interviews other than for gathering basic details about the child's identity.
• Exploring ways in which the police can gather bio-data such as finger prints on UKBA's behalf when they are the first agency to encounter children who have just entered. This would enable them to arrange for the child to go directly into local authority care rather than to the immigration office for processing.
• Ensuring that when immigration interviews do take place that the child has had the chance to gain support from a legal representative and that their representative is able to accompany them, along with a Responsible Adult, to the interviews.

A lecturer at Glasgow Caledonian University is to undertake a study into the public’s attitude towards the problem of human trafficking – and how consumers’ spending habits contribute towards it.

Acording to Dr Kiril Sharapov, there is a widespread misconception that human trafficking is only associated with the illegal sex trade, where people are forced into prostitution after being trafficked across borders.

He believes a growing demand for cheap goods and services, and lack of public awareness of trafficking, obscure our concern for the welfare of the migrant workers involved.

Such demand and lack of awareness fuel the exploitation of migrant workers, many of whom work in a wide variety of everyday situations, including care homes, hotels, and construction.

“Trafficking is not just the issue of badly controlled borders, or economic migrants or criminals,” said Dr Sharapov. “It should be looked at from the perspective of why people are smuggled and trafficked here – there is a demand for cheap and exploitable labour. The rising costs of energy and raw materials and the continuing economic downturn are having a direct impact on the price of consumer goods.”

“This creates downward pressure on wages and an increasing demand for cheap labour that can be easily intimidated, for example by physical violence, threats of deportation or to the security of family back home, and exploited.”

Dr Sharapov’s work will focus on the UK (where people are trafficked to), Ukraine (where people are trafficked from) and Hungary (where people are trafficked through).

He will be based at Central European University in Budapest for the duration of his two-year study, which it is hoped will lead to policy changes relating to human trafficking at national as well as international level.

Recent research by the National Institute for Economic and Social Research (NIESR) into the impact of immigration on the UK labour market has revealed that increased immigration was not associated with increases in claims for Jobseekers Allowance.

Existing research on the labour market impact of immigration to the UK has generally found little or no impact on average, with at most a generally modest impact on the less skilled. This paper adds to that evidence by using a more comprehensive and reliable data source, and updates the analysis to include the recent recession.

The paper presents initial results on the impact of migration inflows on the claimant count rate using previously unused data on National Insurance number (NINo) registrations of foreign nationals, which researchers regard as superior in a number of respects to data on migrants from the Labour Force Survey (LFS).

In contrast to the LFS, which is a sample survey of the entire population at a point in time, NINo registrations to overseas nationals are complete administrative data on new migrant inflows, largely for employment purposes, giving reliable estimates at much smaller geographies than is possible with the LFS.

The research found no association between migrant inflows and claimant unemployment. In addition, researchers tested for whether the impact of migration on claimant unemployment varies according to the state of the economic cycle, and found no evidence of a greater negative impact during periods of low growth or the recent recession.

UN Secretary-General, Ban Ki-moon, has published a message for International Migrants Day, which was observed on 18th December.

In his message he said:

“Migration affects all countries — and so do myths and misperceptions about its impact. There are many false assumptions surrounding migration.

One such myth is that migrants are a burden. In reality, migrants make vast contributions to host countries. As workers, they bring skills. As entrepreneurs, they create jobs. As investors, they bring capital. In advanced and emerging economies, they play an indispensable role in agriculture, tourism and domestic work.  Migrants often care for the youngest and oldest members of society.

People view irregular migration as a crime. Many think migrants who lack proper documents are a danger to society and should be detained, or that all women who migrate to take up low-skilled jobs have been trafficked. These and other unfounded beliefs lead to the adoption of migration policies that are irrelevant at best, or even dangerous.

States have the sovereign prerogative to manage their borders. But, they also have the duty to abide by their international legal obligations. Under international human rights law, all persons, without discrimination and regardless of nationality or legal status, are entitled to enjoy fundamental human rights. No migrant should be sent back to a place where he or she will be tortured. Every migrant woman should have access to health care, including reproductive health care. Every migrant child should be able to go to school.

Human rights are not a matter of charity, nor are they a reward for obeying immigration rules. Human rights are the inalienable entitlement of every person, including the world’s 214 million international migrants, as well as their family members.

Forty-five countries have ratified the International Convention on the Rights of All Migrant Workers and Members of their Families. I call on all others to join this important treaty as a concrete affirmation of their commitment to protect and promote the human rights of all migrants on their territories.

When their rights are violated, when they are marginalized and excluded, migrants will be unable to contribute either economically or socially to the societies they have left behind or those they enter. However, when supported by the right policies and human rights protections, migration can be a force for good for individuals, as well as for countries of origin, transit and destination.

Let us give meaning to International Migrants Day by taking constructive steps to leverage this global phenomenon into a force for progress.”

Prime Minister David Cameron has set out proposals to tighten the immigration system in Britain. The plans include asking the public to report those they suspect of being illegal immigrants.

FRONTEX, the EU border control agency set up in 2004, is to appoint an inspector to ensure that EU border checks respect human rights, under changes to its mandate adopted by the European Parliament.