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Lawyer Lamin Darboe speaking Gambian Association Coventry Event

By Lamin Darboe (Gambian legal Expert Explain)

UDERSTANDING OUR RIGHTS AND DUTIES UNDER UK IMMIGRATION LAWS

(The speech was delivered at the Gambia Association Coventry annual Independent celebration Lecture)

The Immigration Act 2014

 

  • The Immigration Act has a profound impact on the lives of undocumented migrants.
  • A person renting private property will need to provide their immigration status to their landlord or agent.
  • The ethnic minority community will feel the effects of the enhanced in-country control as employers, Universities, College, Landlords, Marriage Registrars, Banks, Building Societies, Doctors and the DVLA will attempt to implement their legal duties under the Act.
  • Any person opening a Bank Account will need to provide their immigration status and their identity.
  • The Notice period for all marriages in the UK will be extended from 15 days to 28 days

 

The impact of the Immigration Act 2014

For the lawyers the effects of the Act are profound.

 

  • The Government predicted 67% fall in immigration appeals this will be counter balanced with the increase in applications for Judicial Review
  • The most changes from a Lawyer’s perspective wrought by the Immigration Act 2014 are to the appeal rights and removal powers. These changes were brought in at the same time

 

The new appeals regime and removal powers are in 3 Stages:

 

 

  • Foreign criminals as defined under the definition of the amended Sec 117D (2) of the Nationality Immigration, Asylum Act 2002 in relation to Section19 of the Immigration Act 2014, and Tier 4 applications (including family members liable for deportation) made on or after 20 0ctober 2014.
  • Tier 1, 2 and 5 applications (including family members) made on or after 2 March 2015
  • Against any decision on or after 6 April 2015 but, other than the above exceptions, not where the application was made prior to 6 April 2015, unless the decision on or after 6 April 2015t includes an asylum or rights decision.

 

Note: the third stage removed the traditional full rights of appeal; the system of Administrative Review under the Immigration Rules was expanded.

The existing Judicial Reviews applications:

 

  • In these cases an applicant seeks a new removal decision that would trigger a right of appeal, however, the applicant cannot succeed because the Immigration Rules are not satisfied, but if the facts are strong might succeed on a right of appeal to an Independent Judge.

 

Note:  

 

  • Under the new regime there is no “removal decision”- only a general power to remove, any decision to remove does not generate a right of appeal only a human rights claim does that.

 

The way forward:

 

  • Withdraw the JR and make a new human rights claim. For as long the Upper Tribunal determination in Waqar remains good law.
  • The new claim should address the “fresh test claim” at Paragraph 353 of the  Immigration Rules and the new NHS Surcharge will apply.

 

Enforcement and Removal

Section 1 – New Removal Power repeals and replaces Section 10 of 1999 Act completely abolishing the distinction between overstayers and illegal entrants, removing the need for separate removal directions to enforce removal and streamlining removal powers for family members.

Effects of the new powers:

 

 

  • A person with no leave will be easily removed from the  UK with no further Notice or legal step being required
  • S 10(6) – if any such Notice is served on any family member it invalidates any such leave they previously possessed.

 

The New Power applies to:

 

  • People who make applications to the Home Office for leave to remain in the UK
  • People who have not made an application, but where the Home Office receives (information from a Sponsor) that leads to the person’s leave being curtailed or revoked and
  • People unlawfully in the UK who are encountered by Immigration Officers

 

Note: the new power confers the right to remove – no piece of paper is needed before removal is effected as seen in Chapter 60 of the Home Office’s Enforcement Guidance and Instructions.

 

  • The Home Office’s view that there is no legal need to give advance warning of removal under the new Sec.10 power. However, this is contrary to the case of R ( on the application of Medical Justice) v Secretary of State for the Home Department [2011] EWCA CIV 1710, the Court of Appeal upheld the High Court’s decision that “no notice” removals were unlawful.

To whom does the new removal power apply?

 

  • When fully brought into effect, the new removal power applies to any person

who ‘requires leave to enter or remain in the United Kingdom but does not

have it’: s.10(1).

  • The power also applies to a member of family of the person facing removal: s.10(2).

 

  • Member of family is fairly widely defined to include partner, parent,

adult dependent relative or child or child living in the same household where

the person facing removal has care of the child: s.10(3).

 

  • The member of the family must either have leave to enter or remain on the

basis of family life with the person facing removal or, in the opinion of the

Secretary of State or Immigration Officer, if making an application for leave

would not be granted leave in his or her own right but would be granted

leave on the basis of family life with the person facing removal if the person

facing removal themselves had leave: s.10(4).

 

 

  • The removal power does not apply if the family member is a British citizen or

 

has an enforceable EU right to reside: s.10(5).

 

Those most relevant parts of the new s.10 are as follows: The new section 10 considerably simplifies the removal process.

Sec 10 Removal of persons unlawfully in the United Kingdom

 

(1) A person may be removed from the United Kingdom under the authority

of the Secretary of State or an immigration officer if the person requires leave

to enter or remain in the United Kingdom but does not have it.

(2) Where a person (“P”) is liable to be or has been removed from the United

Kingdom under subsection (1), a member of P’s family who meets the

following three conditions may also be removed from the United Kingdom

under the authority of the Secretary of State or an immigration officer,

provided that the Secretary of State or immigration officer has given the

family member written notice of the intention to remove him or her.

(3) The first condition is that the family member is—

(a) P’s partner,

(b) P’s child, or a child living in the same household as P in circumstances

where P has care of the child,

(c) in a case where P is a child, P’s parent, or

(d) an adult dependent relative of P.

(4) The second condition is that—

(a) in a case where the family member has leave to enter or remain in the

United Kingdom, that leave was granted on the basis of his or her family

life with P;

(b) in a case where the family member does not have leave to enter or

remain in the United Kingdom, in the opinion of the Secretary of State or

immigration officer the family member—

(i) would not, on making an application for such leave, be granted leave

in his or her own right, but

(ii) would be granted leave on the basis of his or her family life with P, if

P had leave to enter or remain.

(5) The third condition is that the family member is neither a British citizen,

nor is he or she entitled to enter or remain in the United Kingdom by virtue of

an enforceable EU right or of any provision made under section 2(2) of the

European Communities Act 1972.

(6) A notice given to a family member under subsection (2) invalidates any

leave to enter or remain in the United Kingdom previously given to the family

member.

(7) For the purposes of removing a person from the United Kingdom under

subsection (1) or (2), the Secretary of State or an immigration officer may

give any such direction for the removal of the person as may be given under

paragraphs 8 to 10 of Schedule 2 to the 1971 Act.

(11) In this section “child” means a person who is under the age of 18.

 

Section 2: Grace period

 

  • Inserts a new s.78A into 2002 Act to provide protection from removal where

a child is to be removed and a parent or person with care of the child or a

person in the child’s household is also to be removed. Came into force 14

July 2014.

The Grace Period

 

  • The new provision provides for a 28 day grace period from exhaustion of

 

appeal rights in which actual removal is forbidden for the child and for the

adult where ‘if, as a result, no relevant parent or carer would remain in the

United Kingdom’.

  • Preparatory steps towards removal such as the setting of

removal directions or making of a deportation order are not prohibited.

 

Section 3: Independent Family Returns Panel

 

 

  • Inserts a new s.54A into the 2009 Act immediately before s.55 to provide statutory footing for the Independent Family Returns Panel (‘the panel’).Came into force 14 July 2014.

 

  • The panel must be consulted by the Secretary of State ‘on how best to safeguard and promote the welfare of the children of the family’:

(a) in each family returns case and

(b) in each case where the Secretary of State proposes to detain a family

in pre-departure accommodation, on the suitability of so doing, having

particular regard to the need to safeguard and promote the welfare of the

children of the family.

A ‘family returns case’ is defined are defined as cases where removal of a

child is going to take place along with removal of a person who:

(i) is a parent of the child or has care of the child, and

(ii) is living in a household in the United Kingdom with the child

 

  • There is no duty on the Secretary of State to abide by any recommendations,

only to consult. Recommendations or comments could therefore be disregarded by the Secretary of State, although that would obviously call into question whether the Secretary of State was abiding by the duty imposed by s.55 of the 2009 Act and reiterated by s.71 of this Act, which provides: For the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any other person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children).

 

Section 3C and extension of leave

 

 

  • Section 3C of the Immigration Act 1971 is amended to reflect the

 

replacement of appeals with administrative review. The new version reads as

follows, with the new provisions underlined:

3C Continuation of leave pending variation decision

(1) This section applies if—

(a) a person who has limited leave to enter or remain in the United

Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been

decided.

(2) The leave is extended by virtue of this section during any period when—

(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and

Immigration Act 2002 could be brought, while the appellant is in the

United Kingdom against the decision on the application for variation

(ignoring any possibility of an appeal out of time with permission),

(c) an appeal under that section against that decision, brought while the

appellant is in the United Kingdom,] 3 is pending (within the meaning of

section 104 of that Act), or

(d) an administrative review of the decision on the application for variation

(i) could be sought, or

(ii) is pending.

(3) Leave extended by virtue of this section shall lapse if the applicant leaves

the United Kingdom.

(4) A person may not make an application for variation of his leave to enter or

remain in the United Kingdom while that leave is extended by virtue of this

section.

(5) But subsection (4) does not prevent the variation of the application

mentioned in subsection (1)(a).

(6) The Secretary of State may make regulations determining when an

application is decided for the purposes of this section; and the regulations–

(a) may make provision by reference to receipt of a notice,

(b) may provide for a notice to be treated as having been received in

specified circumstances,

(c) may make different provision for different purposes or circumstances,

(d) shall be made by statutory instrument, and

(e) shall be subject to annulment in pursuance of a resolution of either

House of Parliament.

(7) In this section—

“administrative review” means a review conducted under the immigration

rules;

the question of whether an administrative review is pending is to be

determined in accordance with the immigration rules.

Section 3D of the 1971 Act on continuation of leave in the event of

revocation of leave is similarly amended

 

Choice of remedy

 

A person who applies for immigration status within the UK and is refused now faces a confusing array of remedies such as:

 

 

  • Appeal on human rights or refugee grounds, which include a review of the general lawfulness of the decision as well as its proportionality

 

 

 

  • Administrative review, which has the benefit of extending leave under Section 3C but which is limited only to certain eligible decisions and certain case working errors or

 

 

 

  • An application for Judicial Review, which is limited to a review of the lawfulness of the decision not its merits and crucially, is only available if no other remedy is adequate

 

 

Section 7: Immigration Bail

 

Restricts the right to apply for bail by amending Schedule 2 of the

Immigration Act 1971 and requiring amendments to the Tribunal

Procedure Rules. Came into force 14 July 2014.

 

Firstly, release on bail without the consent of the Secretary of State is not permitted where:

(a) directions for the removal of the person from the United Kingdom are for          the time being in force, and

(b) the directions require the person to be removed from the United Kingdom    within the period of 14 days starting with the date of the decision on whether the person should be released on bail.

  • As the law stood before the Immigration Act 2014 it would have been unusual for a judge to grant bail in such circumstances, so this change is unlikely to affect many detainees.
  • A Home Office policy on when consent to release from detention will or will not be granted:

Criminal casework: bail applications, action before and during a bail hearing or decision. The policy suggests that consent should normally be granted:

 

  • The consideration of consent will be highly fact specific and must be based on the circumstances of the individual case, including if detention remains lawful. In considering consent, significant weight should be given to the decision of the presiding judge on bail.
  • The power should only be exercised in exceptional circumstances, where for example, it is considered that the judge has not correctly weighed the high risk of absconding in coming to the decision to grant bail, or given enough weight to the public protection risk (if appropriate). This is not an exhaustive list of reasons why consent may be refused.

 

Secondly, a new provision is inserted requiring repeat tribunal bail applications to be automatically dismissed without a hearing if made within 28 days:

 

  • Tribunal Procedure Rules must secure that, where the First-tier Tribunal has decided not to release a person on bail under paragraph 22, the Tribunal is required to dismiss without a hearing any further application by the person for release on bail (whether under paragraph 22 or otherwise)that is made during the period of 28 days starting with the date of the Tribunal’s decision, unless the person demonstrates to the Tribunal that there has been a material change in circumstances.

 

 

  • As can be seen, there is provision for an applicant for bail to seek to convince the tribunal that there has been a change in circumstances. However, that will need to be done in writing in the application as otherwise there will be no oral or video link hearing.
  • The 28 day period is most likely to affect individuals representing themselves in bail applications and will no doubt reduce what judges may misguidedly consider to be ‘nuisance’ applications. For long term detainees suffering from apparent Home Office inertia and inaction, the 28 day period will no doubt become a threshold for making a further bail application to test whether too long has become long enough. When the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 were introduced on 20 October 2014, they included provision to implement the 28 day rule at paragraph 39 as follows:

(3) Where an application for release on bail is received by the Tribunal within 28 days after a Tribunal decision made at a hearing under paragraph (1) not to release the bail party on bail, the Tribunal—

(a) must determine whether the bail party has demonstrated that there

has been a material change in circumstances since the decision;

(b) if the Tribunal so determines, must apply paragraph (1);

(c) otherwise, must dismiss the application without a hearing.

 

In conclusion, these competing rights and duties are so complex even for the everyday lawyer that it is mandatory under the SRA rules for Solicitors to maintain their competency in practice to undertake Annual CPD of sixteen hours.

It is therefore imperative and prudent for non lawyers to get quality legal advice assist to sail through these complicated and dynamic field of law.

My advice is get help when you are confronted with immigration issues rather than struggling to do it yourself.

 

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