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AZ (rule 57(iv):“external student” – overseas degree) Pakistan [2010] UKAIT 00001
This case dealt with the correct interpretation of Immigration rule 57 (iv). Rule 6 defines ‘external student’ as: “a student studying for a degree from a UK degree awarding body without any requirement to attend the UK degree awarding body’s premises or a UK Listed Body’s premises for lectures and tutorials”
The appellant in this case was seeking entry to study at a college in the UK however; the degree was to be awarded by a University in the United States. The entry clearance officer (ECO) decided in its decision that the college did not meet the definition as the UK based college would not be awarding the degree and the appellant would not be enrolled as an external student. Chapter 3 of the Immigration Directorates’ Instructions dealing with external students stated that “It does not apply to those external students at a private education institution in the UK who are studying for a degree awarded by an overseas university”. The Tribunal reversed the decision in YS India and held that, for the purposes of the Immigration Rules, 'external student' is a term of art, embracing a smaller class of students than all those studying externally for something.
IK (Immigration Rules – construction – purpose) Pakistan [2010] UKAIT 00002
This case involved the appellant, a Pakistani national who arrived in the UK as a student. He applied to extend his leave to remain on several occasions and was granted leave under the International Graduate Scheme (IGS). He subsequently applied to vary his leave to remain under Tier 1 (post study work). The application was refused on the basis that the appellant did not have the necessary funds in his account (£800) at all material times. The application therefore failed under paragraph 245Z. The Tribunal held that the Immigration Rules have no over-arching purpose. Reference was made to paragraph 245V of the Immigration Rules, which states that the purpose of the Tier 1 (post-study work) migrant route is “to encourage international graduates who have studied in the UK to stay on and do skilled or highly-skilled work”. The Tribunal held that “paragraph 245V can in no way be regarded as entitling decision makers, including this Tribunal, to rewrite specific requirements of the Rules, which are on their face sufficiently plain.”
BT (Article 8-Post Study Work) Kenya (2010) UKUT 162 (IAC)
Upper Tribunal overturn the decision by Immigration Judge to permit on Art 8 grounds an appeal where the claimant’s points based application was refused solely for failing to meet the £800 for three months requirement. It was held that:
“In the context of a Post Study Work appeal based on the right to respect for private life, the balancing of all relevant factors of significance cannot be confined to consideration of the appellant’s ability to self-maintain and the potential to misunderstand requirements of the Immigration Rules and corresponding Policy Guidance.”
SL (Certificate of Entitlement-holds a passport) Malaysia [2010] UKUT 164 (IAC)
In relation to certificate of entitlements, an individual who has lost or cannot produce a passport is deemed not to “hold” a passport.
FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC)
When asked a direct question and answered untruthfully, there is both false representation and a non-disclosure. It is not therefore open to an Appellant who replies untruthfully to a direct question to say the matter provided was not material.
US and MV (PBS-applicants from same family) Malaysia [2010] UKUT 167 (IAC)
No basis for the SSHD to treat an application of a valid nature as invalidated by the presence in the same envelope of an invalid application by a member of the same family.
AM and SS (PBS-Tier 1-joint accounts) Pakistan [2010] UKUT 169 (IAC)
It was held that a joint account bearing the name of the applicant meets evidential the requirements of para’s 93-96 of Tier 1 Guidance meaning additional evidence of ownership of the funds is not necessary. The Tribunal held that:
“Provided the money is in the account, it does not appear to matter who it belongs to. It may, for example, have been borrowed simply for the purpose of having bank statements meeting the requirements of the Guidance. The Immigration Judge's comments are obviously sensible. His mistake was to apply common sense to the interpretation of the points-based scheme."
The Tribunal confirmed that evidence which, had it been produced with the initial application, would have satisfied the requirements, can be adduced and admitted as evidence at the hearing stating:
"evidence produced at the hearing of an appeal which, if it had been produced with the application would have allowed the application to succeed, is admissible in an in-country appeal under the provisions of s. 85(4) of the Nationality, Immigration and Asylum Act 2002, as explained in NA and Others (Tier 1 post-study work – funds) [2009] UKAIT 00025."
GS (Article 15 (c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044:
Hundreds of Afghans in the UK face deportation as the judgement in the above country guidance case rules that Afghanistan is not in a state of war. Three senior Judges ruled that
‘There is not in Afghanistan such a high level of indiscriminate violence that substantial grounds exist for believing that a civilian would, solely by being present there, face a real risk which threatens the civilian’s liffe or person, such as to entitle that person to the grant of humanitarian protection, pursuant to article 15 (c) of the Qualification Directive’.
The judges continued to state:
"Nobody is suggesting that the situation in Afghanistan is anything but a very long way short of ideal but... the numbers of civilians killed by indiscriminate violence turns out to be a great deal less than might otherwise have been expected."
The judgement effectively means that although there are casualties, the figures are not high enough to yield protection pursuant to the Directive. The earlier country guidance case of GS (Existence of internal armed conflict) Afghanistan CG [2009] UKAIT 00010 is no longer to be relied upon.
23/10/09
Immigration _ Immigration Rules_ Whether requirement of self-sufficiency discriminating against disabled_ Indefinite Leave to Remain as the spouse of a person who is present and settled in the United Kingdom _ Paragraph 281(v) of the Immigration Rules:
AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634 (01 July 2009)
The Court of Appeal held that the requirement of paragraph 281(v) of HC 395 (the maintenance requirement) for a disabled British citizen did not amount to disporportionate discrimination against disabled sponsors under art 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Date: 24/08/2009
Immigration _ Article 8 _ Indefinite Leave to Remain as the parent of a person who is present and settled in the United Kingdom _ Paragraph 317 and 322(7) of the Immigration Rules:
ZB (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 834 (30 July 2009)
The Court of Appeal emphasises the importance of Article 8, in particular where the focus is on the parent.
Lord Justice Aikens said:
“I accept that, when considering family life for Article 8 purposes, where a court or tribunal is analysing the relationship of a parent and adult children, something more than normal emotional ties between them has to be shown. But where, as here, the focus is on the parent, the issue must be: how dependent is the older relative on the younger ones in the UK and does that dependency create something more than the normal emotional ties? Although this court is not finding facts, it is indisputable that the appellant is an insulin dependent diabetic who needs to be cared for and who is either wholly or largely financially dependent on her family in the UK.”
Date: 01/08/2009
Home Office Policy regarding Enforcement action for nationals from active war zones like Iraq
In the recent case between the Secretary of State for the Home Department v HH (Iraq) [2009] EWCA Civ 727 14 July 2009which involved an Iraqi national facing deportation, the Court of Appeal made important findings relevant not only to Iraqis but nationals from other active war zones.
The Home Office policy on enforcement action was found in the Operational Enforcement Manual and provided that:
“Enforcement action should not be taken against nationals who originate from countries which are currently active war zones”
This policy was not intended to grant individuals leave to remain but rather, to suspend removal including the commencement of removal action i.e. the taking of enforcement action.
In the case of HH, the Home Office made a deportation order against HH despite this policy. HH appealed against the decision and prior to the hearing, the Home Office withdrew their policy upon which HH relied. It was held that regardless of the policy being withdrawn, the decision to deport was made at the time the policy was in force and therefore, for the purposes of the hearing, was relevant. It was found that the failure to take the policy into account rendered the decision to deport unlawful.
The policy was in place until 14 January 2008 and has been withdrawn meaning that Tribunals are no longer able to rule upon whether individuals originate from an active war zone and whether they should not be removed as a result.
Some of the possible consequences for asylum seekers following on from HH are as follows:
- Decisions to deport or to make administrative removal directions regarding Iraqis during the period in which it might be said that the country was an “active war zone” are not in accordance with the law
-The commencement of enforcement action which usually ‘stops the clock’ for the purposes of long residence for example, do not apply to people originating from active war zones
-The failure of the Home Office to disclose the fact that the policy existed in the first place may render previous detentions as unlawful as it can be said that, there was no real expectation of removal.
Date: 01/08/2009
Immigration_ Deportation_Proportionality_Article 8 of the ECHR_ Paragraph 364of the Immigration Rules:
DS (India) v Secretary of State for the Home Department [2009] EWCA Civ 544 (12 June 2009)
An earlier AIT appeal determination held:
"Although removal would be an interference with the private and family life of Ms [K] and of [the boy] that would engage the protection of article 8(1)…it would be lawful and necessary….. In Short removal is proportionate and the requirements of paragraph 364 of HC 395 add nothing."
The Court of Appeal held that the Tribunal had not erred in law.
Lord Justice Rix said:
"The public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question from the chance to re-offend in this country: it extends to deterring and preventing serious crime generally and to upholding public abhorrence of such offending."
Date: 12/07/2009
Permission to work - Fresh claims
The Court of Appeal finds in R (MM (Burma) and another) v Secretary of State for the Home Department ; R (DT (Eritrea)) v Same; [2009] EWCA Civ 442; [2009] WLR (D) 166 , that a person whose asylum claim had been finally determined in country against him and who made a subsequent claim for asylum in country came within the scope of Council Directive 2003/9/EC of 27 January.
A similar principle was held in ZO (Somalia) & Anor, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 442 (20 May 2009) and the earlier case of Tekle v Secretary of State for the Home Department [2008] EWHC 3064 (Admin) (11 December 2008) in which the High court found that the present policy (blanket denial) of refusing permission to work to asylum seekers whose fresh claims are pending consideration is unlawful.
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