Elderly and other dependent relatives

6
Mar

Home Office – digital applications

Head of Family and Human Rights Casework Operations

Phil Boyd, currently the Head of Family and Human Rights Casework Operations at the Home Office, confirmed that the digital (online) applications for leave to remain as the partner of a person present and settled in the UK or in the UK with refugee leave or humanitarian protection and for leave to remain on the basis of their private life have been launched.

The digital forms have the advantage of being more convenient for applicants. It should be also noted that the paper forms for family routes such as the FLR(FP) and FLR(M) are still available and have not been archived yet.

The digital forms can be accessed in the following link:

https://visas-immigration.service.gov.uk/product/family-routes

14
Jul

Private and family life Article 8 of the ECHR

Wambua v Secretary of State for the Home Department [2016] CSIH 42 (Article 8 of the ECHR)

This is an application for permission to appeal against a decision of the Immigration and Asylum Chamber of the Upper Tribunal. The applicant is Thomas Wambua (citizen of Kenya). He entered UK in August 2007 and currently resides in Perth. Mr Wambua has a daughter who was born in 2011 in Scotland. The mother of the daughter is a citizen of Czech Republic and accordingly is also a citizen of the Czech Republic. The applicant and the mother of the daughter lived together but eventually separated and the mother of the daughter has now married another man. The daughter lives with her mother and her mother’s husband and has good contact with the applicant.

The applicant applied for leave to remain in September 2014, which was refused. He appealed on grounds that his removal from the UK would interfere with his private life and family life under Article 8 of the ECHR. In August 2015 the First Tier Tribunal granted a permission to appeal to the Upper Tribunal bearing in mind the fact that if the applicant was removed from the UK, his regular direct contact with his daughter would not continue. The appeal was refused and the application for permission to appeal the decision of the Upper Tribunal was refused as well in November 2015.

The proposed grounds of appeal were as follows:

  1. The Upper Tribunal erred as to the citizen status of the applicant’s daughter and the mother of the daughter in finding their immigration statuses to be “precarious rather than assured”.
  2. The Upper Tribunal erred in its assessment attaching less than primary EU status to the child and failing to have regard to the applicant’s best interest in retaining direct contact when considering proportionality.
  3. The Upper Tribunal erred in its assessment of proportionality by balancing the effects on the child against the need to maintain the Rules.
  4. The Upper Tribunal erred in its assessment of proportionality by treating the need to maintain effective immigration control more significant than the best interests of the child.
  5. The Upper Tribunal erred in questioning the negative question as to whether there would be any negative effect on the child if she saw less of her father rather than positive effect what is in the child’s best interests.
  6. The Upper Tribunal has failed to take into account the applicant’s daughters right to regular direct contact with her father.

In order to grant a permission, the court is required to apply what was described in case Eba v Advocate General [2012] and Nigeria v Secretary of State for the Home Department [2014] as requiring the identification of an error which “cries out for correction”. An arguable material error in law is not enough the appeal must also raise an important point of principle or there must be some other compelling reason.

The applicant argues that the best interests of his daughter had not been correctly assessed at any stage. The immigration authorities have a duty to ensure that immigration functions are discharged safeguarding and promoting the welfare of children who are in the United Kingdom.

Before the permission to appeal is granted, the following points must be satisfied:

  1. The relevant proposed ground of appeal is stated in clear and specific terms
  2. That it is on point of law
  3. That it arises from a decision made by the Upper Tribunal
  4. That it is arguable with real prospects of success
  5. That it meets one or other of the legs of the second appeals test

The decision made by the Upper Tribunal was on the question raised whether First Tier Tribunal had given insufficient consideration to the best interest of the child. The proposed argument is of point of law that the Upper Tribunal was bound to have regard to the child’s right to “the greatest extent possible” and subsequently failed to do so. The Upper Tribunal was encouraged to make its decision by reference to best interests in assessing proportionality.

While the ground 4 point is no doubt a point of law, it is a point of law in the abstract, it does not arise from the particular decision of the Upper Tribunal which the applicant wishes to bring under appeal. This court therefore does not have jurisdiction in respect of an appeal presented under the ground 4. Accordingly, the permission to appeal the decision of the Upper Tribunal is refused.

The Judge in the Upper Tribunal acknowledged that the appellant’s child’s right of regular contact with her father was not taken into account. Furthermore, the mere fact that this point was not included in the appeal before the Tribunal is not of itself a basis on which to refuse permission as cited in the case R v Immigration Appeal Tribunal and Bulale v Secretary of State for the Home Department.

In this particular case the outcome reached by the Upper Tribunal was on the issue raised from the four grounds of appeal from the First Tier Tribunal summarized by the grant of permission whether the First Tier Tribunal had given insufficient consideration to the best interest of the appellant’s daughter. The crucial point of law is that the Upper Tribunal was bound take into account the appellant’s daughter’s right Article 24(3) ‘to the greatest extent possible’ and subsequently failed to do so.

Conclusion

As pointed out, the Upper Tribunal was not asked to take into account any Article 24(3) right. Instead it was encouraged to make the decision by reference in considering the assessment of proportionality. In the application for leave these considerations are specifically distinguished from the Article 24(3) right consideration. The approach the Upper Tribunal should have adopted is radically different from that which had been contended when the appeal was argued before the Upper Tribunal and by reference to which the Upper Tribunal made the decision. There is nothing in the Upper Tribunal’s reasoning about Article 24(3). The ground 4 point undoubtedly is a point of law, it is a point of law without concrete existence, it does not arise from the particular decision of the Upper Tribunal which the applicant wishes to appeal. Therefore, the Upper Tribunal does not have jurisdiction in regards of an appeal put forward under ground 4. Subsequently, the permission to appeal the decision of the Upper Tribunal is refused.

4
Jul

Adult dependent relative rule – BritCits judgment

BritCits v Secretary of State for the Home Department

The case was held in the High Court of Justice (Queens Bench Division) on the 19th April 2016 between the Claimant (BritCits) and the Defendant (Secretary of State for the Home Department). The Judge Mr Justice Mitting: Section 1(4) of the Immigration Act 1971 provides that the rules laid down by the Secretary of State in regards to the practice to be followed for regulating the entry into and stay in the United Kingdom shall include provision for admission to individuals coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom.

Lord Dyson in R (Munir) v Secretary of State for the Home Department [2012] stated: “Until 9 July 2012 Rule 317 of the Immigration Rules identified categories of persons eligible (parents, grandparents aged 65 and over or older and younger adults in exceptional circumstances) who were financially dependent on relatives settled in the United Kingdom. Furthermore, parents and grandparents aged 65 or over had to rely financially on their relative settled in the United Kingdom and not their relative in their home country. The rule also required that the adult dependent relative would be supported with no help of public funds in the United Kingdom.”

From 9 July 2012, the right to apply for indefinite leave to remain has been abolished. The right to apply for indefinite leave to enter is now contained in section E-ECDR 2.1 to 2.5 of Appendix FM to the new rules.  They provide:

E-ECDR.2.1. The applicant must be the-

(a) parent aged 18 years or over;

(b) grandparent;

(c) brother or sister aged 18 years or over; or 

(d) son or daughter aged 18 years or over,

of a person (‘the sponsor’) who is in the UK.

E-ECDR.2.3. The sponsor must at the date of application be-

(a) aged 18 years or over; and 

(b) (i) a British Citizen in the UK; or (ii) present and settled in the UK; or  (iii) in the UK with refugee leave or humanitarian protection. 

E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

it is not available and there is no person in that country who can reasonably provide it;

or it is not affordable.

This particular case concerns sponsors (British citizens) and their parents who reside abroad and are at least to some extent financially dependent on their British citizen sponsor. Sections E-ECDR 3.1 and 3.2 contain financial requirements. The applicant must be adequately supported and accommodated by the British sponsor without dependency to public funds and that a British citizen sponsor will provide a written undertaking to that effect for five years.

In this particular case the claimants are a United Kingdom charity which represents the interests of sponsors as well as applicants affected by the “Adult Dependent Relative” sections of the new regulations and to campaign to revoke or alter these rules. The claimants argue that sections E-ECDR 2.4 and 2.5 are not lawful on one or all overlapping grounds:

1)      They are outwith the rule making power section 1.4 of the 1971 Act. They are arbitrary and not reasonable;

2)      They are incompatible with Article 8 of the European Convention on Human Rights (right to a private and family life);

Declarations to this effect and an order quashing the relevant sections are sought in the case of the third ground under section 8(1) of the Human Rights Act 1998.

The first ground is that the rules are not within the rule-making power, meaning they are ‘ultra vires’. The test is not of concern, however the Judge as a matter of law must decide what the aim of the statute is. If the Immigration rules does not reflect the objective of the statute, the Judge must point that out and grant a relief. The aim or objective of the statute has been identified by Lord Dyson in R (Munir) v Secretary of State for the Home Department at paragraph 26“… the Act was intended to define the power to control immigration and say how it was to be exercised.”

The second ground of challenge is that the new rule is not reasonable.  This challenge is not and cannot be based on Wednesbury unreasonableness, because the Immigration rules acquire their authority from the Parliament and received Parliamentary support and therefore a narrower test is applied, see Kruse v Johnson [1898] 2 QB 91.

The final ground of challenge is Article 8. Lord Bingham defined family life in case Huang v Secretary of State for the Home Department [2007] 2 AC 167. The new Immigration rule certainly would affect family life of many elderly parents of individuals settled in the UK and also affect the family life of those British citizens of their spouses and children. The crucial issue under Article 8 is whether the interference is justified meaning whether it is proportionate. Therefore, it can be argued that the proportionality of the rule should be judged and not only its application to the facts.

 

Conclusion

The Judge Mitting however stated: “.. If it has independent weight, it must itself be lawful and so, of necessity, proportionate. Free of authority, therefore, I would not have hesitated to consider the lawfulness on the ground of proportionality of the rule and, if I had found it to be disproportionate and so unlawful, to declare it so.  However, I believe that I am bound by authority to do otherwise.”. the Judge relied on the case MM (Lebanon) v SSHD [2015] 1 WLR 1073 which suggested that a rule could be struck down but on the other hand that rules did not guarantee compliance with Article of the Convention. Judge Mitting dismissed the claim for Judicial Review and gave permission to appeal the decision.

23
Oct

Biometric Residence Permit (BRP) new rules

From this year, entry clearance applicants will be issued a Biometric Residence Permit, which must usually be collected within 10 days of arrival in the United Kingdom.

Applicants affected

Individuals applying for Naturalisation as a British Citizen, an EEA Residence Card and EEA Permanent Residence must also now have their biometrics taken. The biometrics will be used to issue a biometric card as a form of UK visa.

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