Month: November 2020

Migrants who wish to work and study in the UK must apply under the PBS. The main provisions of the PBS are now found is specific appendices of the IR. As the PBS is subject to frequent change, it is important when giving advice in relation to the PBS to refer to the most up to date version of the rules, and the relevant schedules, which are found at https://www.gov.uk/government/collections/immigration-rules.

Each type of application has different conditions, entitlements and entry requirements for migrants wishing to work in the UK.

The Tier system previously included students and workers, but is now restricted to Entrepreneurs and Investors. These are still called ‘Tier 1’ categories, though in actuality there are no longer any other meaningful Tiers.

Previously:

• Tier 2 related to skilled workers with a job offer and a sponsor. The main current provisions relating to workers are discussed below.
• Tier 3 related to low skilled workers to fill temporary shortages in the labour market.
• Tier 4 related to students.
• Tier 5 related to certain types of temporary worker ‘whose entry helps to satisfy cultural, charitable, religious or international objectives’.

Under Appendix V of the Immigration Rules (‘IR’) there are a number of different categories of visitors; the standard visitor; visitor for marriage or civil partner; visitor for permitted paid engagements and transit visitors. We will be dealing primarily with the standard visitor category.

Appendix V was introduced to the IR in April 2015 (replacing the old Part 2 of the IR), and amended on 1 December 2020. All references in this section are to the current Appendix V. The structure of Appendix V is similar to the structure of Appendix FM, IR; you will consider Appendix FM in Chapter 5.

For a standard visitor, the following are relevant to whether an application is successful:

• General requirements (‘entry requirements’ and ‘validity requirements’ – Parts V1 & V2).
• Suitability Requirements (Part V3).
• Eligibility requirements (Part V4), which can be further divided into:
  • General eligibility requirements (V4.1);
  • Genuine visitor requirement (V4.2 and V4.3);
  • Prohibited activities and payment requirements (V4.4).

General Requirements

Entry requirements for visitors (Part V1)

Many visitors can apply for leave to enter at the port of their arrival. Their application can be considered by an Immigration Officer then and there.

Other visitors, however, must apply for entry clearance before arriving in the UK. They are:

• Visa nationals. (This simply means ‘nationals of countries listed in Appendix VN’ – it includes 111 countries, though there are some exceptions, e.g. for diplomats.)
• Persons seeking a visit visa in order to marry in the UK. (NB this means marrying in the UK and then leaving the UK; persons wishing to marry in the UK and then remain in the UK should seek a fiancé visa.)
• Persons seeking to visit for longer than 6 months (e.g. some academic visitors).

All of these types of visitor must obtain entry clearance (often called a ‘visa’ – though the term is frequently used for any type of leave to remain) before they arrive in the UK. If they do not, and simply apply at the port or arrival, their application will be refused (V1.2).

A non visa national may apply for a visit visa, but is not required to unless they are visiting the UK to marry or to stay in excess of 6 months.

Application Procedure (Part V2)

A non visa national, who does not require a visa, simply needs to apply for leave to enter at the UK border. An immigration officer will assess the application and determine if the suitability and eligibility requirements are satisfied.

Where a visit visa/entry clearance is required is must be obtained prior to travelling to the UK, an on-line application is usually required, with a fee, supporting evidence, a valid travel document and biometric data.

Suitability Requirements (Part V3)

Generally all visitors are subject to the suitability requirements. Essentially the applicant must not fall foul of the suitability requirements as this will lead to the application being refused. Part V3 cross-refers to Part 9 IR, which sets out the types of behaviour which can lead to refusal. These are quite wide-ranging. Some are mandatory – that is, the officer must refuse an application if they apply. Others are discretionary – that is, the officer may refuse an application if they apply.

Examples of grounds for mandatory refusal include:

• Where the applicant is subject to an exclusion order or deportation order (9.2);
• Where the applicant’s presence in the UK is ‘not conducive to the public good’ (9.3);
• Where the applicant has relevant criminal convictions (9.4).

Examples of grounds for mandatory refusal include:

• Where the applicant has been involved in a sham marriage (9.6);
• Where false representations have been made (9.7);
• Where the applicant fails to provide information when reasonably required to do so (9.9);
• Where the applicant has unpaid debts to the NHS (9.11) or unpaid litigation costs awarded to the Home Office (9.12).

Eligibility requirements (Part V4)

A standard visitor must satisfy all of the following requirements:

1. A genuine intention to visit (V4.2). This requires that the applicant will leave the UK at the end of their visit, does not intend to live for extended periods in the UK through frequent or successive visits and is genuinely seeking entry for a purpose permitted by the visitor route. The permitted purposes are set out in Appendix Visitor: Permitted Activities. For example for a standard visitor this will include coming to visit family or for a holiday.
2. The applicant must have sufficient funds to cover all reasonable costs in relation to their visit without working or accessing public funds. This includes the costs of the return or onward journey. There is no set level of funds required for an applicant to show this. A visitor’s travel, maintenance and accommodation may be provided by a third party where the decision maker is satisfied that there is a genuine personal or professional relationship between the visitor and third party. Further the third party must not be in breach of the immigration laws at the time of the decision or when the visitor enters the UK. The third party may be asked to provide a writing undertaking confirming this (V4.3).
3. The applicant must not intend to work in the UK (V4.4). There are some limited exceptions, set out in Appendix Visitor: Permitted Activities. For example a visitor may undertake incidental volunteering for no more than 30 days for a charity registered with the Charity Commission, or an expert witness may visit the UK to give evidence in a UK court.
4. The applicant must not receive payment from a UK source for any activities undertaken in the UK. Again, there are some limited exceptions, set out in Appendix Visitor: Permitted Activities.
5. The applicant must not intend to study in the UK, except where permitted by Appendix Visitor: Permitted Activities. Requirements include that the institution must be accredited, and that it must not be a state funded school or academy.
6. The applicant must not intend to receive medical treatment other than private medical treatment or to donate an organ (the visitor must satisfy the additional requirements for these categories of visit, under V7 or V8).
7. The applicant must not intend to marry or form a civil partnership except where they have a visit visa endorsed for marriage or civil partnership (V12).

If the application is successful the applicant will be granted a period of leave of up to 6 months (for most standard visitors), with conditions of no recourse to public funds, no study and no work (subject to the permitted activities set out in Appendix PA etc).

Extension of stay as a visitor (Part V15)

The maximum period allowed for a standard visitor is six months (V17). If a person is granted a visitor visa of less than six months they may be able to apply to extend that period up to the six-month maximum. A standard visitor for private medical treatment may be granted a further extension of stay as a visitor for 6 months, provided it is for private medical treatment.

Cancellation & curtailment (Part 9)

Leave granted to a person can be cancelled, or curtailed, in certain circumstances, set out in Part 9 IR. Examples includes where false representations or false documents were provided (whether or not material to the application, and whether or not to the applicant’s knowledge); or material facts were not disclosed in relation to the application. Leave can also be cancelled or curtailed where the visitor ceases to satisfy the requirements of the visitor rules or has breached any conditions of their leave.

The interpretation of the Immigration Rules and the evidence required

The UK Visas and Immigration (‘UKVI’) on-line guidance sets out the kind of documents that should be produced in respect of an application seeking leaving to enter as a visitor. The decision maker must

• if you are employed, a letter from your employer granting leave of absence from your job for a specified period – the letter should also say how long you have been employed by that employer, in what job(s), and when you are expected back at work;
• if you are self-employed, evidence of your business activities and financial standing;
• evidence of any property you own in your home country;
• if you are a student, a letter from your school or college stating the course you are on, its start and finish dates, and the dates of the holiday period when you intend to visit the UK;
• evidence of any family or social ties and responsibilities to return to;
• evidence of any firm travel plans you have made;
• bank statements going back over a period of several months; and
• evidence of savings available to you.

Article 8 differs from Article 3 in that it is a qualified right, and thus the first part of the Article must be balanced against the competing interests in the second part of the Article. This is the proportionality exercise.

The test of proportionality has been examined by the courts and for some time the Tribunal adopted the view of Lord Bingham in R v SSHD ex parte Razgar [2004] UKHL 27 (‘Razgar’) that a case had to be found to be ‘truly exceptional’ in order to succeed. However this test was held to be incorrect by the House of Lords in Huang and Kashmiri v SSHD [2007] UKHL 11 (‘Huang and Kashmiri’).

Examples of cases involving Article 8 will most commonly arise in the context of family relationships but it should be noted that it also encompasses the area of physical and mental integrity e.g. where a person’s physical or mental integrity will be seriously affected in circumstances that fall short of a breach of Article 3 (see Bensaid v UK (2001) 33 EHRR 10; Razgar).

Who is a family member under Article 8?

The Convention itself does not provide a clear definition of the family, or family life, and definitions have instead developed through case law. As such they have altered dynamically over time and with changing societal perceptions of the nature of ‘family.’

Family life can include various relationships and may be diverse (see Marckx v Belgium [1979] 2 EHRR 330; Singh v ECO New Delhi [2004] EWCA (Civ) 1075).

Children and parents are presumed to share a family life, as held in Ginger Lebbink v Netherlands (2004) 2 FLR 463.

Spouses and partners are presumed to share a family life, as held in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. There is no specific period of cohabitation required for a family life to exist.

Whose rights must be considered?

In the balancing exercise, a decision maker must give appropriate weight to the rights of all persons affected, not only the applicant. For example, if the applicant is not British, but has a British spouse and children, their Article 8 rights would also be interfered with by a refusal, so they should also be considered. The House of Lords said as much in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39.

The range of people whose rights should be considered may be broadly construed. For example, an applicant may be relying on a relationship with a British spouse. That spouse, however, may have children from a previous relationship, whose rights also need to be considered; and they may have contact with their other parent, whose rights might also therefore carry weight.

The best interests of children

The Supreme Court, in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011), considered the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the UK.

Lady Hale’s leading Judgment concluded that the interests of children in a case should be given significant weight (although this could be outweighed by other considerations, such as serious criminal behaviour by a parent).

Where a child has spent significant time in the UK, they will have formed their own private lives here, through immersion in the culture, education, and other ties. It is therefore sometimes possible to argue that even if a parent has no other basis to remain in the UK, it would now be disproportionate to remove the child, and therefore the parent should be allowed to remain with the child.

This raises the question of how long a child must live in the UK to establish their own private life such that they should normally be removed. In Azimi-Moayed and others (decisions affecting children; onward appeals) v. the Secretary of State for the Home Department [2013] UKUT 00197(IAC), the Upper Tribunal took the view that:

• A child who has accrued seven years’ worth of private life in the UK should benefit from the protection of Article 8 ECHR; but
• The first three years of life should not be taken to count towards this period, because at that age – essentially before nursery – the child is not building their own private life outside their own family.

The possibility of seeking entry clearance

In a number of cases, applications have been made by overstayers. In most applications under the Immigration Rules, there is a requirement that an applicant inside the UK have valid leave when the application is made. Additionally, the Rules prohibit ‘switching’ from a visit visa to most other forms of leave. Applications may be refused on this basis even if the applicant meets all of the other requirements of the Rules.

The Home Office’s position is that a person in this situation should not ‘jump the queue’ by being granted leave inside the UK. Instead, they should return to their country of origin and make an entry clearance application – thus ‘joining’ the queue.

However, the courts have taken a slightly different view, and have repeatedly said that each case must be looked at on its own facts, and that there will be situations where an exception should be made and a person should not be compelled to leave the UK solely to make an application to return (see Chikwamba (FC) v Secretary of State for the Home Department [2008] UKHL 40 and subsequent cases).

Matters to be taken into account will include the likely length of separation of a family – particularly if there are children involved. They will not generally include the family’s financial circumstances, or the expense of travelling and of making a new application; however, financial issues may bear on the length of separation, so could be arguable on that basis.

In some cases, the fact that a person will be able to re-enter the UK means that there will be no public interest at all in his or her removal. In Parveen v Secretary of State for the Home Department [2018] EWCA Civ 932, the appellant had entered the country lawfully and genuinely on a spouse visa and had remained married to her husband and resident in the UK ever since but had not, thirteen years earlier, made an application for leave. Underhill LJ observed at paragraph 28:

‘It is hard to see how it could be right to insist on the empty but disruptive formality of leaving the country in order to correct a venial administrative error made thirteen years previously.’

More recently in Younas (section 117B (6) (b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC), the Upper Tribunal addressed the matter again.

In this case the appellant, a national of Pakistan, had come to the UK on a visit visa, and had an infant child with her British partner. The child was therefore also British. The partner also had two teenage British children from a previous relationship. The appellant applied to vary her leave in order to remain in the United Kingdom with her partner and child.

The Home Office conceded that there were insurmountable obstacles to the couple living in Pakistan, but argued that it would not be disproportionate for the appellant to return there for a limited period to make an entry clearance application.

The appellant argued that she could not do so because the couple could not meet the income threshold (which the Tribunal rejected).

The Tribunal set out its proportionality consideration thus:

‘102. We apply the considerations in section 117B as follows:

a. Section 117B(1) of the Nationality, Immigration and Asylum Act 2002 provides that the maintenance of effective immigration controls is in the public interest. For the reasons we have set out above, this factor weighs heavily in favour of removal.

…

104. Weighing on the appellant’s side of the balance sheet is that:

a. The appellant’s daughter will be separated from her father (and the appellant from her partner) for up to 9 months. This is a substantial period of time, particularly for the daughter.

b. It is in the best interests of the appellant’s daughter to remain in the UK with both parents rather than temporarily reside in Pakistan with just the appellant.

c. The appellant will face some challenges setting herself up and organising her life in Pakistan, given that she has not lived there previously.

105. Weighing on the other side of the balance sheet is that even though the appellant’s removal will be followed by her re-entry, there is, for the reasons explained above, nonetheless a strong public interest in her being required to leave the UK in order to comply with the requirement to obtain valid entry clearance as a partner.

106. Balancing the factors weighing for and against the appellant, we reach the firm conclusion that her removal, in order to make an entry clearance application from Pakistan, is proportionate.’

In other words, in the particular circumstances of the case, the Tribunal found that the maintenance of immigration control outweighed other considerations.

The possibility of continuing one’s family life outside the UK

Where an Article 8 application based on family life, made within the UK, is refused, the Home Office may argue that the family can continue their family life overseas.
In these circumstances, the applicant will need to consider whether there are any factors which would render that option unreasonable.
– Is one of the family members ineligible to live in the applicant’s country of origin? This is unusual, but possible, depending on that country’s immigration laws.
– Does the spouse need medical treatment? This would not be an Article 3 case, as discussed above: the spouse would be settled in the UK and therefore entitled to receive treatment in the UK.
– Are there significant cultural differences? This is potentially more controversial, but in Amrollahi v Denmark (Application no. 56811/00) 11 October 2002 the European Court of Human Rights took into account the potential difficulty of a Danish woman adjusting to life in Iran.

Article 3 is an absolute right. This means that it is engaged absolutely once the threshold of torture, inhuman or degrading treatment is reached. Whether Article 3 is or will be breached is clearly a question of fact on the particular circumstances of the case.

What is this threshold?

Ireland v UK (1978) 2 EHRR 25 – the treatment/punishment complained of “must attain a minimum level of severity”. The threshold is relative and will depend on the “sex, age and state of health” of the victim.

• Torture: deliberate inhuman treatment causing very serious and cruel suffering.
• Inhuman treatment: treatment that causes intense physical and mental suffering.
• Degrading treatment: treatment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her physical or moral resistance.

Where might a breach of Article 3 arise?

• • In circumstances abroad e.g. connected to an asylum claim, where a person will be denied healthcare treatment/drugs.
  • In circumstances connected with the removal of an individual.
  • In the UK – policies on destitution/support etc.

Asylum/protection: There is an obvious link between Article 3 ECHR and the protection issues raised by the Refugee Convention.

In circumstances where a person does not qualify under the Refugee Convention definition – e.g. they do not fall squarely into one of the five reasons (race, religion, nationality, social group, political opinion) for persecution (see Chapter 6 for further details) – they may nevertheless be at risk of torture or inhuman or degrading treatment in their country of origin for other reasons. Returning them to that country may expose them to torture, inhuman or degrading treatment and evidence of this will need to be shown to justify a grant of leave. The UKVI may grant Humanitarian Protection if serious risk to life or person arising from the death penalty, unlawful killing (Article 2) or torture or inhuman or degrading treatment or punishment (Article 3) is shown.

It should be noted that the ECHR does not have the same limitation clauses as the Refugee Convention excluding persons from protection and this area is the subject of considerable change and debate in the context of terrorist suspects.

Medical treatment abroad: It is argued in some cases that a difference in medical treatment between the UK and the country to which a person is to be removed will cause suffering or death and that removal would therefore breach that person’s human rights. There has been a considerable body of case law on this area, though the courts have virtually eliminated the possibility of arguing medical treatment cases on the basis of Article 3. See the case of N v SSHD [2005]. The UKVI operates a policy in respect of such cases, which would allow a grant of Discretionary Leave in very exceptional circumstances. The threshold for such cases is extremely high and this is confirmed by the case law.

Circumstances connected with removal: it may be argued that the act of removal of a person may expose them to a breach of Article 3 for example if they are suffering from mental health difficulties or they are at risk of committing suicide.

Destitution: There has also been case law on the issue of denying asylum seekers support in circumstances where they are destitute thus exposing them to a breach of Article 3.

Examples of cases in an immigration/asylum context:

Aydin v Turkey [1998] 25 EHRR 251 – the ECtHR found that rape amounted to torture.

Chahal v UK [1996] 23 EHRR 413 – inability to remove person in relation to whom there may be an Article 3 breach despite no other protection being granted (see recent discussion regarding “suspected international terrorists” and whether they can be returned to countries where there may be a breach of Article 3).

N v SSHD [2005] UKHL 31 – lack of medical treatment in country of origin – now very restrictive interpretation.

R v SSHD ex parte Limbuela and others [2004] EWCA Civ 540, UKHL 3/11/05 – destitution in UK due to lack of support for some asylum seekers.

Introduction

In practical terms, human rights are immensely important in immigration and asylum proceedings. Human rights arguments can be raised as part of an application to enter or remain in the UK and to contest an argument by the UKVI that a person should leave / be removed or deported from the UK.

When considering an application, the UKVI as a public authority should have regard to human rights considerations; and an appeal can be mounted against a negative decision on human rights grounds.

Most commonly in an immigration application or appeal, a person might argue that:

• to return them to their country of origin would expose them to torture or inhuman / degrading treatment there; or
• to remove them from the UK would interfere disproportionately with their right to a private and family life.

There may also be arguments regarding the interference with human rights of the process of removal itself – i.e. that it would be inhuman / degrading. Additionally, the authorities may be accused of breaching human rights within this jurisdiction; for example by detaining someone for an unjustifiably long period, or by denying basic support under the National Asylum Support Service.

The immigration courts will also consider human rights arguments in immigration and asylum appeals and it is possible to mount an appeal on the grounds that a person’s rights under the ECHR will be breached. Similarly the higher courts (High Court, Court of Appeal and Supreme Court) may give consideration to human rights arguments commonly as part of judicial review cases in an immigration or asylum context.

Case law

Judgments relevant to decisions where human rights have been raised can come from various courts; most importantly:

• • Determinations of the Upper Tribunal (Asylum and Immigration Chamber), which reports selected decisions on statutory immigration appeals;
  • Judgments of the Tribunal on applications for Judicial Review;
  • Judgements of the Court of Appeal, on appeal from the Tribunal;
  • Judgments of the Supreme Court, on appeal from the Court of Appeal;
  • Judgments and decisions of the European Court of Human Rights.

Introduction

The HRA 1998 came into force on 2 October 2000. Its aim was to give effect in domestic law to certain rights and freedoms set out in the European Convention on Human Rights. The HRA 1998 does not incorporate the Convention into domestic law, rather it sets up mechanisms by which rights can be taken account of so that there can be use of those rights in domestic law rather than going to the court in Strasbourg.

There are two distinct mechanisms in the HRA 1998:

1. the requirement to interpret legislation in accordance with the Convention;
2. that it is unlawful for public authorities to act in a way which is incompatible with the Convention.

Sections of the Human Rights Act 1998 which may be of particular importance in immigration/asylum proceedings

Section 2 – A court or tribunal determining a question, which has arisen in connection with a Convention right, must take into account any:

• judgments etc of European Court of Human Rights;
• opinions of the Commission;
• decisions of the Commission;
• decisions of the Committee of Ministers.

(The Commission was abolished in 1998 but its decisions and opinions prior to that may be referred to.)

Section 3 -“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.

Section 4 – Declarations of incompatibility (i.e. where legislation is found to be incompatible with the Convention): the matter will return to Parliament (due to parliamentary sovereignty) – either to amend the Act with a remedial order or take other remedial steps. If Parliament fails to act, the appropriate remedy would be to apply to Strasbourg (for example A and others v SSHD [2004] UKHL 56).

Section 6 – makes it unlawful for a public authority to act in a way incompatible with the Convention unless they are prevented from doing so by statute.

What is a public authority?

This includes the courts/tribunals and any person certain of whose functions are functions of a public nature.

In an immigration context the UKVI and the immigration courts are included.

Section 7 – applies to section 6 challenges. A claim can only be brought by a ‘victim’, so a victim is defined as a party who is directly affected. Proceedings can be issued in an appropriate court under the HRA or the party can rely on existing proceedings e.g. human rights arguments may be relied on immigration/asylum proceedings. Section 7(5): limitation period – if alleging breach by public authority i.e. s. 6 challenges: one year from act complained of, but need to consider the issue in relation to any other time limit e.g. an asylum appeal time limit or if judicial review the appropriate time limit (maximum 3 months).

Section 8 – the court may grant such relief/remedy within its powers as it considers just and appropriate. The courts must give effect to Convention rights through existing powers and mechanisms available (no new remedies created). Therefore only courts that can already award damages/ compensation will do so and only if necessary for “just satisfaction”.

The Court was set up as one of the mechanisms for operation of the Convention and is located in Strasbourg. Information regarding the operation of the court can be obtained at www.echr.coe.int.

Structure of the rights and their interpretation by the ECHR

The rights can be broken down into those that are:

• Absolute – without qualification e.g. Article 3.
• Limited – on their face e.g. Article 5.
• Qualified by reference to competing public interests e.g. Article 8.

Some general principles in interpreting the Convention Articles:

The rule of law/interference in accordance with the law:

There should be no interference with a protected right unless the citizen knows in advance the basis for the interference because it is set out in an ascertainable law.

There must be an ascertainable legal regime governing the interference in question (see for example Sunday Times v UK (1979) 2 EHRR 245:

“Firstly the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct”).

Legitimate Aims:

Any interference by a public authority with a qualified Convention right must be directed towards an identified legitimate aim. However the Convention provides reasons for restricting rights e.g. Article 8 – legitimate aims set out in second part of the Article – “the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” (see for example Handyside v UK (1976) 1 EHRR 737).

In an immigration context see the case of Razgar (2004) UKHL 27 (‘Razgar’.) It is now generally accepted that ‘maintenance of proper immigration control’, although not a legitimate aim in itself, is in accordance with the legitimate aims set out in Article 8.

Proportionality:

Is the interference with a Convention right “necessary in a democratic society”? Limitation from a non-absolute right must be justified in the sense of being “proportionate to the legitimate aim pursued”. However even if the state action is in pursuance of a legitimate aim, this will not justify violation if the means to secure it are shown to be excessive. In an immigration context see Razgar.