When is Family Life Between Adults Established?

By Mark Symes

The Immigration Rules on private and family life give little scope for consideration of applications to remain in the United Kingdom because of a relationship with an adult relative upon whom one is emotionally dependent, be they a sibling, parent or more remote family member. However, the pre-existing case law is still relevant, given decisions of the Tribunal such as MF (Article 8 – new rules) Nigeria [2012] UKUT 00393(IAC) which demonstrate the need to determine whether a decision is in compliance with a person’s human rights under section 6 of the Human Rights  Act 1998, by reference to the judicial understanding of Article 8 ECHR as built up on the case law that pre-dated the introduction of Appendix FM and Immigration Rule 276ADE.

The decision of the Strasbourg Court in Advic v UK (1995) 20 EHRR CD 125 is sometimes cited for the proposition that the normal emotional ties between a parent and an adult son or daughter will not, without more, be enough to constitute family life: Kugathas [2003] EWCA Civ 31. However, there is more to this proposition than may first meet the eye.

As shown by the useful review of the authorities in Ghising (family life – adults – Gurkha policy) [2012] UKUT 00160, the Advic summary does not necessarily comprehend every case which might be advanced, and should not be used to justify a failure to engage with the actual evidence. In Kaya v Germany (Application no 31753/02) the ECtHR held that a young adult who had lived with his parents until he was sent to prison in 1999 still enjoyed family life with them on his deportation in 2001, as he had kept in touch with his family through visits and letters; in Boughanemi v France (1996) 22 EHRR 228 the ECtHR held that the deportation of a 34 year old man was an interference with his family life with his parents and siblings although he no longer lived with them. All this led Buxton LJ to emphasise in MT (Zimbabwe) v Secretary of State for the Home Department [2007] EWCA Civ 455 at [11] that Advic, “whilst stressing the need for an element of dependency over and above the normal between that of a parent or parent figure and adult child, also stresses that everything depends on the circumstances of each case”; a point that had already been made by Wall LJ in Senthuran v Secretary of State for the Home Department [2004] EWCA Civ 950 who emphasised that “each case is fact-sensitive”, rejecting the proposition that Advic is authority for the proposition that Article 8 of the Human Rights Convention can never be engaged when the family life it is sought to establish is that between adult siblings living together. It is unsurprising, then, that the ECtHR in AA v United Kingdom (Application no 8000/08) found on 20 September 2011 that “An examination of the Court’s case-law would tend to suggest that the applicant, a young adult of 24 years old, who resides with his mother and has not yet founded a family of his own, can be regarded as having ‘family life’.”

The limits of the law

Taimour Lay reviews Borderline Justice: The fight for refugee and migrant rights, a new book by former Garden Court barrister Frances Webber.

Immigration has for so long been captured by the cynical myth-making of the right that any call for a world of ‘no borders’ faces summary dismissal as utopian and detached from public opinion. Even more cautious manifestos for a freer and more humane regime are today cast well outside the political mainstream.

Immigration rules are bad for the National Health

By Jo Wilding

The Government’s relentless drive to cut immigration figures is causing a shortage of doctors and leaving the NHS with staffing gaps.

BMA director of professional activities Vivienne Nathanson gave evidence to the All-Party Parliamentary Group (APPG) on Migration that she knew of doctors who had left the UK to care for their parents because, under the new family migration rules introduced in July 2012, they were unable to bring aging parents to the UK and care for them here.

She noted that the NHS has always been heavily reliant on overseas doctors and that they had been actively recruited, with certain areas of the country, such as the Welsh valleys, being particularly dependent on doctors from abroad.

The new rules have set the criteria for dependence so high that it is extremely difficult for an elderly relative to qualify. Significantly for doctors, if the UK sponsor earns a reasonable salary, it is deemed that they can afford to pay for care in their parent’s home country. The closeness of a relationship, the importance of family, the fact that the parent will place no burden at all on public funds are of no value under the new rules.

In the first period of almost four months from 9 July 2012 when the new rule was introduced to 31 October 2012, just one elderly dependant relative visa was granted.

This only compounds a problem reported in April 2012 in the Derbyshire Telegraph about medical staffing shortages caused by the Government’s cap on skilled migrant workers introduced after the general election in 2010.

It noted that the tighter controls on recruiting trainee doctors from outside Europe had left Royal Derby Hospital’s casualty department short of four trainee doctors, with three vacancies in its team of twelve senior A&E doctors because of a nationwide shortage.

As a consequence, patients were waiting longer for treatment, with 7,370 occasions over the previous year when patients had waited longer than the Government target time of four hours for treatment, missing the Department of Health’s 95% mark.

The irony of headline-grabbing Government immigration caps causing the missing of Government health targets appears to be lost on the Government in question. In the meantime, public health is suffering and the problem will only get worse.

Good News for Applicants under the Post Study Work Route

By Mark Symes

Until April 2012, one way in which a migrant to the United Kingdom could extend their stay here was the Tier 1 – Post Study Work route, which was intended to be a bridge from education to highly skilled or skilled work. It closed on 6 April 2012, but transitional provisions were put in place such that persons who applied by 5 April 2012 could have their applications considered under the provisions then in place (in contrast to the normal situation in immigration applications, where they are assessed against the Rules in force at the date that a decision is made). Amongst the requirements are that the Applicant “has been awarded” certain qualifications such as a UK recognised bachelor or postgraduate degree or certificate in education, so long as the application was made within 12 months of obtaining the eligible award. Migrants rushed to apply in the closing days of this route’s existence, and in due course their cases received decisions from UKBA. One recurring feature amongst the applicants was that the application was made, necessarily in order to beat the date for the closure of the route, before the final confirmation of an award, often because there was an external body which was responsible for formally awarding the qualification. The UKBA stance appears to have been, in general, to refuse such applications where the qualification post-dated the making of the application, even when the evidence was sent on before the application was finally decided.

In Khatel the Upper Tribunal finds that where UKBA are notified of the award of the qualification prior to the making of the decision, a positive decision should be made, so long as the qualification was obtained within 12 months of the application date (which will generally be the case given that applications were often made in spring 2012 with a final award at the end of the academic year in summer 2012).

Fairness in the Points Based System: Post Decision Evidence, “Continuing Applications” and Evidential Flexibility

By Mark Symes

Many applicants for further leave to remain under the Points Based System (PBS) have found their applications refused because evidence that might have been readily available to them had they understood the extent of the requirements for a particular route was not supplied when the application was made. There might be difficulties in simply reapplying, beyond the high cost of many applications: they may not have maintained the requisite level of funds by minimum monthly bank balances to show maintenance under the unyielding requirements of the PBS, for example, and since late 2012 a further application might fall foul of the rule against overstaying for more than 28 days. So an appeal might be the only option. In years past this would have been an effective remedy, for they could have made good such flaws by providing missing documents before the application was decided. However, since the entry into force of section 85A of the Nationality Immigration and Asylum Act 2002 in May 2011, the material that can be considered on appeal is seriously limited: in so far as the grounds involve the immigration rules and general accordance with the law, the only evidence that an Immigration Judge may take into account is that which was submitted in support of, and at the time of making, the application to which the immigration decision related. An important recent decision of the Upper Tribunal, Khatel, gives an interpretation of this provision that will benefit many Appellants: because following Court of Appeal authority in AQ (Pakistan), it can be seen that an application is an ongoing process that extends up to the time that a decision is made on an application.

Another possible solution to the strictures of the PBS is the “evidential flexibility” policy operated by UKBA, which permits caseworkers to contact applicants regarding missing documents with a view to correcting errors in an application. One exposition of this came in a letter of 19^th May 2011 addressed by UKBA to persons described as “Joint Education Task Force Members”, and it stated that “While we are confident [that the Points Based System] is accessible and understandable, we also recognise that there will always be potential for human error.  UK Border Agency Case Workers employ a measure of flexibility when considering PBS applications … a validation stage is being trialled … whereby applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected.” In a later version of the policy (which itself indicated that the dispensation had existed in various forms since August 2009) it was said that “where there is uncertainty as to whether necessary evidence exists the benefit of the doubt should be given to the applicant and the evidence should be requested”.

In Rodriguez we find the Upper Tribunal, faced with an appeal where the application had been refused because an imperfect set of bank statements had been provided (running for less than 28 days and showing inadequate balances), declaring the immigration decision to be unlawful because of the failure of the UKBA caseworker to apply the policy, which would have required the migrant to be contacted before their application was finally refused, to give them an opportunity to make good these defects.

Private life under the Immigration Rules

By Mark Symes

The Immigration Rules brought into effect in July 2012 to address questions including family migration and long residence have had a very significant impact on the work of the immigration practitioner. When we look at Immigration Rule 276ADE addressing private life, we find that it contains a series of potential routes: where the migrant has lived here for more than twenty years, the grant of leave to remain is relatively straightforward, as is the case where a child has lived here for more than seven years, and there is even special provision for those between the ages of eighteen and twenty-five where they have lived here for half their life and it would be unreasonable to expect them to leave the country. But where there is long residence of an adult, aged over twenty-five, falling short of twenty years (discounting any period of imprisonment), then there is particular provision, under Rule 276ADE(vi), if the Applicant shows that they have “lived continuously in the UK for less than 20 years but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”, subject to certain requirements as to their character and conduct.  

Put another way, it may be possible for such an application to succeed where an adult migrant has spent some significant time in this country and severed their foreign ties. It is possible to imagine cases where, for example, they have formed many friendships here and been an integral part of their local community and not retained ties abroad in a location where, after all, they have not been present for many years. Where they have been here for a short period in circumstances where they had lived surrounded by their own community or family before travelling, their case will not be viable; but for mature adults who have set out to establish a life in a new country, and who have not kept in touch with their relatives abroad, the route appears highly promising. It is not clear whether Rule 276ADE additionally requires that an applicant establish private life with which removal would be disproportionate: on the one hand, the rule does refer to “private life” in its heading and introductory passage; on the other, the general structure of the new Rules appears to be to exhaustively specify the precise criteria which are to be affirmatively satisfied.

Another area that deserves reflection is where there is a family unit with at least one child, where the child has clocked up the relevant seven years of residence, but the other family members have not established any of the longer periods of stay, and themselves have social, cultural or family links abroad. Here the child appears to have an application under the Rules that brooks no refusal (particularly given that the wrongdoing of adults cannot readily be imputed to a child’s suitability for leave): so what impact does this have on the claim of the rest of the family? The fact that the Rules themselves provide for a child to stay here would, some would argue, count very heavily in any human rights balancing exercise regarding the rest of the family’s claim to remain on Article 8 grounds.

Doubtless the Tribunal will pronounce upon issues such as these before too long. In the meantime, practitioners will want to ensure that they use Rule 276ADE to its maximum potential.

Reconsidering Flawed Decisions: What Rules Apply?

By Mark Symes 

It is often said that immigration decisions are to be made on the basis of the facts, law and rules prevailing at the date of the UKBA decision. However, is this always the case? This is an important issue, given the length of time over which immigration applications and expulsion decisions may fall to be considered. For example, the abolition of immigration rule 395C on 13 February 2012 was a significant development, ending an era in which various relevant factors for and against an overstaying migrant’s removal would be balanced, and introducing the immigration rule 353B regime with its “exceptional circumstances” test focussing on a narrower range of considerations.

A case in point is one where a migrant receives an adverse decision which transpires to be imperfect, because of a failure to consider all relevant factors, such as the best interests of the child, or, where the decision is to expel, failing to consider immigration rule 395C during that provision’s currency. If challenged, either on appeal or during judicial review proceedings, the decision may be identified as defective, and set aside. Is it open in such cases for UKBA to simply reply that the law has now changed, such that there is no requirement to take any heed of the older legal framework, notwithstanding that it was extant when the defective decision was made?

A series of cases in the public law context suggests that strict adherence to the current rules might be unjustified. In Bibi v Newham LBC Schiemann LJ ruled, in the legitimate expectation context, that the disappointment occasioned by breach of promise should not be dismissed lightly: the Court might order a reconsideration, where insufficient attention had been paid to this factor. Later, Laws LJ stated in Abdi v Secretary of State for the Home Department that one requirement of good administration was that government should deal fairly and straightforwardly with the public: thus past promises and practices should be honoured unless there was a legitimate and proportionate public interest consideration which justified disappointing someone. And by the time of Rashid, it was clearly recognised in English public law that decision making flawed by conspicuous unfairness might well require some amelioration of the general principle that decisions be taken strictly in accordance with the prevailing law at the time. Most recently this line of authority has been applied in Mohammed,  where the Administrative Court judge finds that, given the importance of rectifying historic injustices in the context of ongoing decision making, it was appropriate to order that UKBA, on a reconsideration of the case, takes account of, not only the present immigration rule relating to expulsion (353B) but also the one that was extant when the last decision on the case was made (395C): and this was the case even where there was no conspicuous unfairness, but simply an unlawful decision.

So legal representatives should take care to ensure that all features of the decision making history are properly taken into account on a reconsideration.