Hello. It's been, um, Anwar here on Welcome back to this Webinar Siris on Article eight Recent developments in immigration cases So hopefully you've made it through parts 123 You've had a description off the legal background to the key UK Supreme Court cases that we have been discussing on. Ask late. We've looked at Keough, Nigeria, dealing with qualifying Children or settled Children on. We've also looked at rip ear, which mainly concerns precarious immigration status and private life claims. So we had family life and private life in this series. In this final parts part, for what we're going to be looking at is slightly different. It's a quick look, really, at the secretary of State's policies, not content to set down its rules in one place in the immigration rules. The sector of state, of course, has spawned a number off policy documents that accompany the immigration rules, provide interpretations and guidance to caseworkers. Now the status off these policies is somewhat ambiguous. Because they are not the immigration rules, they cannot substitute the rules themselves. And although they can provide guidance to caseworkers, that does not mean that a court will use them as an aid to interpreting the immigration rules, so they have a slight sort of limbo status. I think I tend to go to my immigration appeals or when I'm drafting representations concerning an application, I will tend to include the relevant Immigration Directorate instructions or the guidance to caseworkers, partly because I think it's it may not be law in and off itself. But it nevertheless reflects some of the default assumptions or viewpoints that the secretary of state has chosen to take and has chosen to publish. So, of course, published guidance should be followed. Although it's not a rule, it should be forward unless there's a good reason to depart from it. And therefore, I think if there are elements of the guidance that help your clients, it's important to know what they are to keep track of any changes to the guidance on ensure that you use the guidance to inform the decision makers decision Now, another point to make is that in the upper tribunal, there has bean some authority on this. Now put the citation into, uh, your reference sheet that where, in a piece of guidance, the secretary of state has said that a particular set of facts should lead to a particular outcome, then they should follow it on, and a tribunal should take that into account and apply that policy guidance. Now that's only an upper tribunal authority. But I think so far there's been no sort of afterthought source or developments in that case in terms of appeals to the court of Appeal. So that's the guidance that we've got from the upper tribunal. And I think if we can use policy documents produced by the secretary of state's, then why not? So with that in mind, there are two documents that are relevant now. Both were amended on the 19th of December 2018 on both deal with family migration, So the first document is Appendix FM 1.0, family life brackets as a partner or parent, close brackets and private life coal on 10 year roots. Version 2.0, you want that? Good On the second is family migration. Appendix FM, section 1.0 A. Family life brackets as a partner or parent brackets. Five year roots, Andi. Exceptional circumstances for 10 year roots. Version one point out so bitter mouthful but basically the secretary of state has created these documents to provide guidance for the 10 year routes and also for the for five year roots. The 10 year roots being where a person cannot satisfy the provision specific provisions in Appendix FM but is relying upon exceptional circumstances or bringing their case outside of the immigration rules under Article eight and then another set of guidance for five year old cases. I e. Cases where a person can satisfy the requirements of Appendix FM, Let's say, as a partner or as a parent of a child relevant child on that they are on a five year route to settlement so that these years refer to the number of years required to become eligible for indefinite leave to remain. Now let's start with helpful stuff so paid 68 off the 10 year route. Guidance states that, and it's in the context of discussion about the seven year rules away. You've got a settled child and where the question is whether or not it's reasonable to expect that child to leave the UK what Page 68 says is, and I've quoted it in full. In short, it says that the starting point is that section state would normally expect a qualifying child, so it would not normally expect to qualifying child to leave the UK So that's a positive starting point for those bringing seven year old cases. I would use that reference in applications in grounds of appeal in the tribunal to demonstrate that the sexual states default position is we don't require Children who are settled Children to leave the UK. Unfortunately, the guidance goes on to elaborate a bit mawr about the circumstances in which a secular state would consider it reasonable for a child to leave the UK and sets out a very wide range of such circumstances. But just sticking with Page 68 for the moment. What it also says is that this reflects the fact that Children who have been in the UK for more than seven years will tend to have set down roots roots in the UK and settled here. That is just the natural order of events. And that, of course, reflects up a tribunal case law on this, which is still relevant. I think in the case of a Z me more yard again, I will add the citation to the reference sheet so that you've got clear a reference to that case and the set of factors that it lists there in terms of Children settling in to life in the UK But then we take a slightly different direction. It paid 69 unfortunately, that the approach that the Home Office has taken is that they've looked at Karen Nigeria, and they've seen the fact that the UK Supreme Court is against them on the main point, which is that you can't just use parents misconduct to win a seven year rule case and to demonstrate that it's reasonable to expect the child to leave the UK You got to do more than that you got to. Either you've got to overall show that it's not reasonable for them to expects. That is not unreasonable to expect them to leave the UK What the home office of rather craftily done in this 10 year old policy is to say, Well, here are the circumstances in which we think it would be reasonable to expect a child to leave the UK, and then they've listed quite a lot off different circumstances. So let's have a quick look at that. It may be reasonable for a qualifying child to leave the UK with the parent or primary care aware, For example, the parent or parents or child are a citizen of the country of origin and so are able to enjoy the full rights of being a citizen in that country. So citizenship matters to reasonable this. They then gone, gone on to refer Teoh, where there is nothing in the country specific information including, as contained in the relevant country information reports, which suggest that relocation would be unreasonable. And this is sort of couched in somewhat asylum type language, bringing to mind the the Gene Uzi test, the requirement that it should be reasonable to expect on asylum applicant to be to relocate themselves away from the relevant threat to their safety or to their life. So this is an interesting innovation in the policy. Andi, I'm I'm yet to see this being raised in the tribunal or in a court, but I can see it being relied upon. Um, and you might have to find find yourself getting into debates about the country specific information in immigration cases rather than in asylum cases, so this could be worth keeping an eye on, then the next bullet point says the parent or parents off or child, have existing family social cultural ties with the country. And if there are wider family or relationships with friends or community overseas, that can provide support, and then it lists a range of different ways in which those persons can support it shows the decision maker must consider the extent to which the child is dependent on or requires support from wider family members in the UK in important areas of his or her life, on how a transition to similar support overseas would affect them again. Flagging up that the investigation into reasonableness should look at the circumstances off family support both in the UK and in the country of origin. How those two things interact. Could the UK support continue? Andi? Could that be combined with the support of relevant relatives overseas, then also refers to a person who has extended family or a network or friends inthe e country should be able to rely on them for support to help reintegrate there. So this seems to be making assumptions about what can be expected of extended family members in supporting Children. It doesn't really take the sexual state much further because it will always be facts dependent. But there we go there, seeking to invoke extended family networks as a way off, making it reasonable to expect Children to leave the UK It also refers to parent or parents or a child who have lived in or visited the country before, for periods of more than a few weeks. Should be able to adapt, or the parent or parents would be able to support the child in adapting to life in the country. This is a bit curious because it's making pretty sweeping assumptions about Children's ability to adapt assumptions, which the Court of Appeal in previous cases have reminded the secretary of state not to make. And the language of the guidance just doesn't seem right. It does not seem sufficiently flexible on seems to be based, As I said on assumption. Then, it says, the decision maker must consider any evidence of exposure to on the level of understanding off the cultural norms off the country. That's fair enough. That is often a factor to discuss in seven year old cases. And then it says, For example, a period of time spent living amongst a deer spore er from the country may give a child an awareness off the culture off the country. The parents or child can speak, read and write in a language of that country, or likely to achieve this within a reasonable period of time. Fluency is not required. An ability to communicate competently with sympathetic interlocutors would normally suffice. So looking at the extent to which the child could blend into the country off origin again, no major surprises there baps and underlying sense of assumption that away they need is, I quote, an ability to communicate competently with sympathetic interlocutors. How do you measure that? How is that defined? Well, it's a pretty woolly phrase, isn't it? Sympathetic interlocutors. But that's it. I mean, that these are the types of arguments which you're going to be facing in future when the secretary state is a bit on the back foot following Ko Nigeria, but is never less keen to establish that it is reasonable to expect a child to leave the UK on the other two bullet points I should mention, it says removal would not give rise to a significant risk to the child's health. Well, it's not every case in which that factor will arise. And then it says there are knows other specific factors raised by or on behalf of the child, so reminding the secretary state that it needs to actually consider the case presented to it by the child and or the child's family. So beware of those factors. Take those into account. If it helps have a look at my seven year rule, webinar Siri's, because in that I do go through some practical tips on each of these types of topics on language, on education, on family ties and so on. Andi, I give you a few ideas on on the types of evidence you might want to gather the types of considerations that you need to bear in mind to get ready to rebut the arguments that the secretary state is likely to make under those headings and to ultimately win your seven year rule case, which is the idea. A further point to note is that I think that this guidance has got something badly wrong. I think it's got something badly wrong relating to the seven year old rule. Andi, it is this a number of different points in the 10 year route. A family migration guidance 19th of December 2018. It refers to, um, the exception under the seven year rule as being not engaged. I e. Not applying two cases where Children, due to their circumstances, won't in practice. Leave the UK So remember Section 117 b subsection six requires us to consider whether it is reasonable or not to expect the qualifying child to leave the UK. What the Home Office is saying is that well, ah, it's not in every case that the child will leave the UK is it because in some cases, there might be a British citizen parent who works be relocating to wherever it happens to be to follow the departing spouse. Or there might be, let's say, separated parents in which the primary carer has indefinitely to remain. But there is another parent who does not have any least remain, and who is seeking to rely upon the seven year old to establish leave to remain well in those circumstances, the Home Office will tend to argue the child can stay here with the parent. With ill are Andi, the parent who doesn't have leave can leave. Be aware of this because I've come across it on a number of occasions in the tribunal. I've been on the receiving end of submissions to the effect that well, Mr Manuel has learned arguments. Ah, about the seven year rule, or ALS very well and good. But they don't apply here because we because the Home Office is not saying that the child should leave because they've got another parent. They've got circumstances, which means they don't have to leave. How do we deal with this? Well, the fortunate answer is that the upper tribunal has dealt with this point and has decided that the Home Office is wrong. In fact, it specifically decided that the previous version off the Home Office Family Migration guidance, which also took this approach, was wrong in law. Why have the Home Office not yet amended their guidance since they amended on the 19th of December 2018 and could have taken the opportunity to do so to reflect the law and to reflect the upper tribunal's decision? In the case of S. R. I put the four citation in the reference sheet S R. And that's a case from 2018. Well, it's unfortunately have that they haven't done this. I can't explain why, but the main point is that they are wrong in law because the upper tribunal has decided. But if you look at the wording off the seven year old in Section 117 B six, or also in paragraph 276 80 one, Roman four the language off off those provisions is whether it's reasonable to expect the child to leave the UK It doesn't say whether the child will, in fact, to leave the UK it requires on hypothetical question to be asked. So it's about expectation not, in actual fact, the child leaving the UK It might be a slightly artifice, artificial question to ask. In some cases where it's obvious the child won't leave. But that is the artificial question that Section 117 beer and the seven year rule requires decision makers to ask. So make sure you've got s are toe hand. The next time you do is ah ah reasonable in this case, a seven year old case s so that you can rebut the arguments of the Secretary of State on that point and do continue telling the secretary of state, Andi immigration judges and courts and tribunals that the secretary states 19th of December 2018. 10 year roots family migration guidance is wrong on this point because they are quite clearly wrong and not in step with the actual law. The other point to note is that where you have a fall back position that relies upon exceptional circumstances outside of the immigration rules in an immigration appeal and the exceptional circumstances. Guidance, for some reason is not contained in the 10 year rule family in the 10 year route at family migration guidance. It's actually contained in the five year route, guidance and the five year route. Guidance says no great surprises here that the case law makes clear that where the applicant does not meet the requirements of the rules and has established their family life in precarious circumstances. E g. When they have limited leave to enter or remain in the UK, something very compelling is required to outweigh the public interest in refusal. Now that's a fairly common line taken by the Home office. Is it correct? I'm not so sure. In fact, have a look at the case of Trebor 1 2017 again off but the citation in the reference sheet because in that case, the the upper tribunal decided that in cases that don't involve criminality that do involve family migration on which do not satisfy the immigration rules, the question is whether there are compelling circumstances to justify the grant of leave outside of the rules. It's not whether there are very compelling circumstances now. They're maybe not such a great distinction between compelling circumstances and very compelling circumstances. But the point in Trebor one was that compelling circumstances is not such a high threshold. Certainly when compared two cases under the deportation provision which do require very compelling circumstances in particular cases. So it's worth just reading these the home SEC homosexuals guidance with a cautious and sceptical I, as I'm sure you'll do anyway. But on those on those several points. Actually, I do think that sadly, the 19th of December 2018 guidance, which is supposed to reflect the current position, supposed to take into account K in Nigeria, rip ear and so on does not in fact reflect the law on several aspect of Article eight. So take it with a pinch of salt. Use parts of it that are helpful to your clients, particularly the discussion about it normally being not reasonable to expect a child to leave the UK if they are qualifying child and so on, but also argue against those provisions that are wrong, please. So that brings us the end off a part four of this Webinar Siri's. I'm delighted that you've gotten this far through. Ah, hope it hasn't been too traumatic, and I hope it's given you a few interesting pointers on your journey through Article eight. But remember, there is always discretion. Discretion can work for you. It can work against you, but no absolute rules. If you find yourself making a submission, making an argument, advising a client in an absolute way, just check yourself for a moment and remind yourself that hang on. Second, this is Article eight here. It's unruly, and we need to be cautious about approaching each case on its own facts and ensuring that judges on decision makers have ALS, the material that they need to inform them about how to strike this really somewhat subjective balance between the individual's rights on the public interest off immigration control. Thanks so much again. I'm Benham. Anwar's they mentioned. Andi, please do feel free to check out some of my other courses on data Law and my other materials. Many thanks and take care.
Webinar
Notes
Part 1 
1119 Users
20 Courses
46 Reviews
