This blog is moving

GardenCourtChambers-1The Garden Court Immigration Blog is being merged with the Free Movement blog. We will soon be importing posts from the Garden Court blog into Free Movement then closing down the Garden Court blog.

Old posts will continue to be available on Free Movement, tagged with Garden Court Chambers and also entered into a Garden Court Chambers category, so that you can easily find them in future. Free Movement is fully searchable so you will also be able to find old Garden Court content alongside relevant Free Movement content.

If there are any favourite posts on this blog that you would like to save for easy access, now would be a good time to print or copy and paste the relevant content.

Thanks for reading and we hope you find the new home comfortable. We will be aiming to keep you updated more frequently over at Free Movement and to continue providing useful practice tips and exploring interesting legal questions.

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The ‘Go Home’ Campaign – A Public Meeting

On Wednesday evening, a group of activists, lawyers and campaigners gathered in East London to discuss the Government’s ‘Go Home’ campaign and to demonstrate their solidarity with immigrant and refugee communities. The event was attended by Garden Court’s Marketing Assistant, Amy Carrington.

On Wednesday evening, a group of activists, lawyers and campaigners gathered in Stratford for a public meeting on the Government’s ‘Go Home’ campaign. The event was one in a series of meetings, organised by the Migrants’ Rights Network, which aims to demonstrate support of and solidarity with migrant and refugee communities across London, as well as galvanising support for potential future campaigns.

The catalyst for this series of workshops was the pilot scheme, run by the Government from 22 July, during which vans with the words ‘Go Home or Face Arrest’ were driven around six London boroughs in a week-long campaign. The boroughs were chosen because each one had either a particularly low or particularly high level of voluntary return amongst migrants. The evening included discussions about reactions to the ‘Go Home’ campaign, the proliferation of immigration spot checks and campaigning tips for concerned organisations and individuals. Continue reading

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Third Country Removals to France and the Charter of Fundamental Rights

By Raza Halim

Toufique Hossain (Duncan Lewis) and I are running two cases in the Administrative Court challenging decisions to certify asylum claims and removal to France under the Dublin II Regulation. The Claimants in both cases are Non-Arab Darfuri Sudanese nationals, which augments their claims further still for reasons set out below.

Both cases argue that removal to France would give rise to a real risk of a breach of the Claimants’ fundamental rights to asylum (Art. 18) and to an effective remedy (Art. 47) under the Charter of Fundamental Rights and Freedoms.

The claims rely upon the Strasbourg court’s decision in I.M. v France ECHR 043 (2012), where the applicant in that case had had his case determined within the ‘priority procedure’, or in more familiar terms, the detained fast track, in France. The Strasbourg court in I.M. held that the absence of an effective suspensive remedy following refusal by the French authorities of an asylum claim made within the priority procedure and prior to a determination of that claim by the first-instance court, amounted to a violation of Article 13 taken together with Article 3 ECHR where the applicant had not had an effective remedy in practice by which to assert his complaint under Article 3 of the Convention. It was held to be no answer to the absence of such a remedy that the applicant had recourse to Rule 39 of the Rules of the ECtHR to prevent removal.

The Strasbourg court also provided comment on the applicant having been adversely affected by the conditions in which he had had to prepare his claim and the inadequate legal and linguistic assistance provided, as well as the short deadlines imposed and the practical and procedural difficulties in producing evidence for applicants within the priority procedure. Interviews prior to decision-making were brief despite the complexity of the issues involved and where the applicant was making an asylum claim for the first time. To that end the Court outlined what Art. 13 demanded in a removal setting in order that an effective remedy is to be deemed available.

In both cases, the Secretary of State in written and oral submissions has sought to rely upon the line of authorities culminating in the CJEU’s decision in NS v United Kingdom (C-411/10) and the ECtHR’s judgment in M.S.S. v Belgium and Greece (30696/09)). She has also sought to argue that I.M. was a case restricted to its own facts and that in any event, redress was to be sought in France by making any such complaint against that country by way of an application to Strasbourg.

The strength of these claims is augmented by the profile of the claimants, who are both Non-Arab Darfuris from Sudan. Domestic country guidance authority governing returns to Sudan in AA (Non-Arab Darfuris – relocation) Sudan CG [2009] UKAIT 00056 is exceptionally stark and unqualified in its finding that “All non-Arab Darfuris are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan.”

It is being argued in these claims that where there exists evidence that Non-Arab Darfuri Sudanese nationals (either accepted as such by the French authorities or not yet finally determined by the French Courts because of the effect of removal action) are being removed by the French authorities to Sudan, any removal by the United Kingdom of these Claimants to France would potentially amount to refoulement for the purposes of the 1951 Convention Relating to the Status of Refugees, where Article 33 can be breached indirectly as well as directly (see Adan in the House of Lords).

Both claims have now been granted permission by the Administrative Court on the papers and following an oral hearing respectively, the latter having previously been adjudged to have been totally without merit, and both requiring at one stage paper and telephone applications for injunctive relief. The claims are listed for trial in October 2013.

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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’.”

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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.

BorderlineJusticeImmigration 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. Continue reading

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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.

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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).

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