News

“RIGHT TO RENT” scheme found discriminatory on the 1st of March 2019

 

On the 1st of February 2016 the Government introduced the “Right to Rent” scheme. Given its function, it was arguably misnamed as its purpose was not to provide Tenants with “rights” to rent but to limit it. The scheme requires landlords to check prospective tenants leave to remain in the UK. Failure to do so could lead to prosecution, fine or even imprisonment. From its inception the scheme was criticised by many as a way of passing the responsibility of immigration checks to landlords with the view to promoting a “hostile environment” against illegal immigrants. Critics of the scheme have repeatedly argued that the scheme does not work and only results to discrimination. The High Court affirmed this in the case of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) that the government’s Right to Rent scheme causes racial discrimination in breach of the European Convention on Human Rights. The Judge was clear and arguably damning of the scheme, stating:

 

“In my judgment, the answer to this issue lies in the findings I have already made in relation to causation. It is my view that the Scheme introduced by the Government does not merely provide the occasion or opportunity for private landlords to discriminate but causes them to do so where otherwise they would not. The State has imposed a scheme of sanctions and penalties for landlords who contravene their obligations and, as demonstrated, landlords have reacted in a logical and wholly predictable way. The safeguards used by the Government to avoid discrimination, namely online guidance, telephone advice and codes of conduct and practice, have proved ineffective. In my judgment, in those circumstances, the Government cannot wash its hands of responsibility for the discrimination which is taking place by asserting that such discrimination is carried out by landlords acting contrary to the intention of the Scheme.

 

… I have come to the firm conclusion that the Defendant [the Government] has failed to justify the Scheme, indeed it has not come close to doing so. On the basis that the first question for the court to decide is whether Parliament’s policy, accorded all due respect, is manifestly without reasonable foundation, I so find. On that basis, there is no balancing of competing interests to be performed.

 

However, even if I am wrong about that, I would conclude that, in the circumstances of this case, Parliament’s policy has been outweighed by its potential for race discrimination. As I have found, the measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect…”

 

The Government have said that it will appeal the Decision so the scheme in its current form remains. It is disappointing that despite considerable evidence provided by JCWI and others that the scheme is discriminatory, the Government has failed to acknowledge this. They appear to adopt a “the end justifies the means” approach in that as long as a hostile environment can continue against illegal immigrants, any by-product of the scheme such as discrimination is an acceptable consequence.

 

Most will accept that Immigration control is crucial for any country. The Government is tasked with ensuring that an effective immigration system is in place. The Government’s power to introduce such laws must however be tempered with checks and balances and the High Court in this case has examined the effect of the scheme with reference to considerable evidence and has concluded that the “Right to Rent” scheme is discriminatory. It is baffling that the Government petulantly insists in its continuance of the scheme. It is akin to the controversial “Certificate of Approval” process that previously required couples to obtain permission to marry from the Home Office. That scheme was in force for years despite a finding by the House of Lords judgment in Baiai (30th July 2008), that it was discriminatory. The Government finally abandoned the scheme on the 9th of May 2011, three years after the Court’s Decision against the scheme.  I hope that the Government will not take as long to abolish the “Right to Rent” scheme which is clearly untenable in its continuance. 

FILIPINOS REMARRYING IN THE UK

A common misconception is that Filipinos in the UK cannot divorce if married in the Philippines. This is wrong, but you need to distinguish between the validity of divorce in the UK and the Philippines. Picture this, Mario and Petra married in the Philippines, where they both lived. Petra left for the UK and now lives here. Unfortunately, the relationship has broken down and Petra wants to end the marriage. Both Mario and Petra are Philippine nationals. She also wishes to remarry in the UK. Petra now asks:

 

Can she divorce Mario, and will the divorce be valid in the UK? If so, can she remarry in the UK?

 

Petra is now living in the UK. English law requires that she is “habitually resident or domiciled” in the UK. This means that she must consider the UK as her residence and this is regardless of her immigration status. Factors that point to residence include the length of time she has been living in the UK.  This means that Petra can petition for divorce and this will be valid in the UK.

 

A valid divorce means that Petra can properly remarry in the UK. However, their (divorce and marriage) validity may well be different in the Philippines.

 

The validity of Petra’s divorce in the Philippines will depend on Philippine law. Her divorce is not recognised in the Philippines and the only way to dissolve her marriage there is by way of an annulment. It also follows that Petra and Mario are still married in the Philippines. This certainly produces a strange and contradictory position as Petra’s divorce and remarriage is valid in the UK but not in the Philippines. The reason for this is the incompatibility between English and Philippine Family law.

 

If Petra is planning to remarry in the UK, the good news is that her subsequent marriage is valid here and has the full force of English law. It is important that you do not fall foul of either jurisdiction as it is crucial in ensuring the validity of the second marriage. For example, if Petra wants to apply for a visa to remain in the UK or if she were to leave the UK to apply from the Philippines and return as a spouse. In this case, she will need to provide evidence that her second marriage is valid. Incidentally, an application for a spouse visa even if made from abroad will invite the application of English Immigration law. This means that an Immigration officer is required to recognise Petra’s divorce and subsequent marriage in the UK.

 

The incompatibility between the two legal systems can also impact on division of assets, custody of children and even criminal law. So, the moral of the story is, obtain advise before embarking on divorce and remarriage.

 

BRITISH CITIZENSHIP – WHAT IS GOOD CHARACTER?

In the past two years, there has been a vast increase in applications for Naturalisation as many people are concerned about Brexit and their rights to remain in the United Kingdom once the United Kingdom has left the European Union.  In this article, we will look at the requirements for Naturalisation, not only for those who are impacted by Brexit but also for any applicant who wishes to become a British Citizen.

 

The requirements for Naturalisation can be found in the British Nationality Act 1981.  All applicants are required to show that they are of full age and that they have capacity.  The former can be proven by providing the original passport of the applicant.  In terms of proving capacity, the Home Office have defined this in the Nationality Policy: Naturalisation as a British citizen by discretion which provides that:

 

the majority of applicants will meet this requirement and therefore you must always consider an application from the position that the requirement is met unless there is something to suggest otherwise, such as a report from a Referee or doctor.”

 

Applicants are also required to show that they meet the knowledge of life and language in the United Kingdom requirement.  All applicants are required to complete the Life in the UK test to show that they have sufficient knowledge of life in the United Kingdom.  The language requirement can be satisfied if the applicant has achieved an English language certificate at the prescribed level, issued by an approved college.  Alternatively, those with a degree that was taught in English will also meet this requirement (provided the Degree is deemed to be at the prescribed academic level); the requirement will also be met by those from English speaking countries which are recognised as such by the Home Office.  The language requirement is the same for Indefinite Leave to Remain applications so many applicants would have already met this requirement before they apply for Naturalisation.  EEA nationals are not required to satisfy the English language requirement and Life in the UK test when submitting their application for Permanent Residence status and they may therefore need to take steps to meet this requirement before proceeding with their Naturalisation application. Most English language certificates are only valid for two years; if this period has already lapsed, applicants could be required to undertake a new test.

 

There is also a requirement that applicants must illustrate that in the event of being granted Naturalisation, they intend to make the United Kingdom “his home or principal home”.  We have increasingly seen applications being refused on the basis that applicants have incorrectly stated that they wish to make a different country their home once they have been granted Naturalisation.  It is vital that applicants state on the application form that they wish to make the United Kingdom their home as failure to do so will result in a refusal of their application. 

 

The residence requirement for Naturalisation is often the most problematic for applicants. Applicants are required to show that they have spent five continuous years in the United Kingdom and that one of those years was after obtaining settlement.  They must also declare any absences from the UK and there is a limit on how many days can be spent outside the UK during the five years qualifying period. 

 

Finally, applicants are also required to demonstrate that they are of good character.  The good character requirement gives the Home Office a wide discretion to refuse applications where the applicant is deemed not to be of good character.  This can be for any number of reasons but most commonly criminality, financial impropriety or breach of the immigration laws.

 

Good character itself is not defined by Statute.  The Home Office published the Good Character requirement Guidance on 14 January 2019.  The guidance applies to all applicants who are applying for British citizenship over the age of 10 years.

 

A very common problem is where an applicant was previously an overstayer, but his/her leave was subsequently regularised and eventually he/she obtained settled status. The Home Office’s policy on illegal entry and overstaying was expanded in 2014, where it was confirmed that any periods of overstaying occurred in the 10 years period prior to the Naturalisation application would be taken into consideration with regard to good character.  This remains to be the case.  The new guidance does however refer to Article 31 of the Refugee Convention which requires States not to impose penalties on refugees on account of their illegal entry or unauthorised presence in the country provided that they present themselves without any delay to the authorities and have shown good cause for their illegal entry or presence.

 

Applicants should also be aware that NHS debts over £500 and unpaid Home Office litigation debts amount to evidence of bad character.  This provisions already exist in the Immigration Rules as reasons to refuse a visa, but they are now also mirrored in the citizenship guidance.

 

The good character guidance has been extended over the years and many factors including police cautions, NHS debt and Home Office litigation will be taken into consideration.  The new guidance provides some clarity on the circumstances, but it has not by any means simplified the rules.  Applicants need to be cautious when making their application to ensure that they make full and frank disclosures to the Home Office and when necessary, representations should be made to provide an explanation for any possible implications of bad character.

Paddington Bear applies for a visa

I have always been a fan of Paddington Bear. What’s not to love. He’s a resourceful, hardworking and loving bear, but how would the most loveable immigrant bear fare with an application for leave to remain in the UK?

 

Paddington, you will remember, arrived in the UK and despite initial reluctance on part of the Brown family, became an integral part of their household. Later, his Aunt Lucy joins him, and they live happily ever after with the Browns, or so we hope.  But what happens to Paddington and Aunt Lucy if they are required to apply for leave to remain? Afterall, we were not told about their immigration status in the UK and sadly there are no amnesty programmes, yet, for bears. Let’s set the scene, Paddington arrived in the UK when he was 6 years old. He was joined by Aunt Lucy when he was 10 and since then they have been living in the UK. Paddington is now 14 years old, having lived in the UK for 7 years. Aunt Lucy has been looking after Paddington since her arrival and has herself been living in the UK for 4 years. They continue to live with the Browns.

 

Paddington and Aunt Lucy should consider an application under the Immigration Rules Appendix FM: family members. EX.1(a). which provides that:

 

“(i) the applicant has a genuine and subsisting parental relationship with a child who-

(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

(bb) is in the UK;

(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and

(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK.”

 

To qualify Aunt Lucy will need to show that she has a parental relationship with Paddington. The fact that she is his aunt rather than his parent does not preclude her from having a “parental relationship” with Paddington. The meaning of Parental relationship has not been defined by statute but under caselaw:

 

“It is not necessary for an individual to have “parental responsibility” in law for there to exist a parental relationship…..whether a person who is not a biological parent is in a “parental relationship” with a child for the purposes of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 depends on the individual circumstances and whether the role that individual plays establishes he or she has “stepped into the shoes” of a parent.”

 

R (on the application of RK) v Secretary of State for the Home Department (s.117B(6); “parental relationship” (IJR) [2016] UKUT 31 (IAC)

 

The next consideration is Paddington’s circumstances; he is clearly under 18 years, is in the UK and has been living here continuously for 7 years preceding their application. The Home Office is further required to consider Paddington’s interests as “primary consideration”. Unfortunately, satisfaction of the above requirements is not enough.

 

The most difficult aspect of our loveable bear’s application is the issue of whether “it would not be reasonable to expect the child (bear) to leave the UK”. Appendix FM EX1(a) (ii) as noted above has been the subject of considerable caselaw. The Home Office’s definition of “reasonable” is akin to the story of Paddington in that it is often, in my experience, unrealistic. It is therefore crucial that Paddington submits good evidence of his integration in the UK. This can be school reports and statements from the Browns. In some cases, a Psychologist or an Independent Social Worker’s report may be helpful. It is equally important to provide evidence of the likely harm Paddington will be subject to if returned to Peru. Reports on the stability of the country, treatment of children and its education system will likely be relevant. It is for Paddington to provide evidence and persuade the Home office of his case, so he must prepare it well. Evidence and legal representations should complement each other; apply the law to the facts.

 

With any luck, Paddington and Aunt Lucy will be granted leave to remain in the UK, leaving them to live happily ever after or at least until they are next required to extend their leave to remain which should be before their leave expires in 30 months’ time. 

 

I would like to give credit for the idea of the above to Free Movement (www.freemovement.org.uk) where it explored Paddington in the context of Asylum and hostile environment in immigration.  

How to win Immigration Appeals

 

There have been substantial changes to appeal procedure and law in the last decade. Today Immigration Law is more challenging than ever; what is the secret to a successful appeal? The answer? Preparation, Preparation, Preparation.

 

The process starts with good appeal grounds which should refer to relevant law. All too often, I come across grounds that appear only to plead to the good graces of the Tribunal, this will not work. Judges are required to apply the law and no matter how sympathetic the Judge may be to your case, they are bound by legal doctrine. Apply the law to your facts. The grounds need not be long, but they must be relevant. Remember quantity does not mean quality.

 

For the hearing itself, start with a good statement. Remember that the Judge will not know your case and will be dealing with numerous cases on the day. A generic statement will at best be unhelpful. Always provide a chronology of dates as this will put into context the history of your case. This is particularly important when your case involves lengthy residence in the UK, where many events have taken place such as the birth of children.

 

Your bundle for the hearing should be indexed and paginated with the core documents such as statements taking prime position. If you are including foreign documents, these must be translated. Always bring the original documents with you but they do not need to be included in the bundle you send to the Tribunal. Do not forget to send a copy of your bundle to the Home Office’s Presenting Officer’s Unit. If you need an interpreter, you must inform the Tribunal as soon as you can, preferably when you lodge your appeal. It is good practice to call them a week before your hearing to check that they have arranged for an interpreter.

 

On the day of the hearing, your witnesses should bring their original IDs such as passports in case the Tribunal requires confirmation of their identity. Be prepared to wait as there is no allocated time other than that your hearing will be listed for the morning or afternoon session. Beware that if you are raising a “new matter” the Home Office is required to consent to the new matter’s consideration on the day. If they do not, then the matter will be adjourned or heard without the new matter. My experience is that the Home Office increasingly object to “new factors” even where they do not amount to new matters. Do not readily accept the Home Office’s contention that the new factor is a new matter – be prepared to argue against this.

 

A difficult and seemingly impossible case can be won. By the same token, a straightforward case can be lost because of lack of preparation. A very recent case I dealt with proves this. The case relates to a same sex couple both without leave to remain. The Tribunal Judge held that their removal will violate their Human Rights in that they will not be able purse their relationship. On the 28th of August 2018, both received their grant of leave. As I have said, preparation, preparation, preparation.

 

EEA Permanent Residence

There have been no changes to the rights or status of EU nationals in the UK following the referendum on whether the UK should remain within the EU. Having triggered Article 50, the UK Government will introduce changes to Law and Policy, but it will be some time until any changes are implemented. We will advise you on any upcoming changes once these have been introduced.

You are eligible to apply for a Permanent Residence Card once you have lived in the UK for over 5 years. You would need to show that you are a ‘qualified person’ during the 5 year period. You would be considered as a qualified person if you are, working, studying, self-employed or self-sufficient.

You would be required to provide documentary evidence to the Home Office to prove that you are a qualified person for the entire 5 years period. Any periods where you were a student or self-sufficient, you would also need to show that you had comprehensive sickness insurance. This is a mandatory requirement and your application would be refused if you fail to provide evidence of your comprehensive sickness cover.

Your immediate family and dependants are also able to apply for permanent residence at the same time as you subject to meeting all the requirements. Evidence would need to be provided of the relationship. If your family members or dependants wish to apply separately or without you, they would still need to show that you have been a qualified person for the 5 years period.

 

British Citizenship

 

Once you have been granted Permanent Residence in the UK, you may apply for British Citizenship. This is a separate application and a different process. If you have completed over 6 years in the UK already, you may apply for Citizenship immediately after obtaining Permanent Residence. If you have not yet completed 6 years, you will be required to wait one year after obtaining Permanent Residence.

In order to satisfy the requirements for British Citizenship, you will be required to show that you meet the residency requirements as well as the Knowledge of English Language and Life in the UK requirement.

Once you have been granted British Citizenship, you are then eligible to apply for a British Passport.

If you would like to know more or need our help, please contact our offices.

Government Turnaround on Immigration Appeal Fee Increases

The government have done a full turnaround on the fee increases introduced on the 10th October 2016 to First-tier Tribunal Appeal fees. All fees with immediate effect are to return to their previous rate.

The increase meant that the fee for an oral appeal increased from £140 to £800 and an appeal on the papers which had been £80 was £490.

Refunds are to be given automatically to those who paid the increased fees and it is expected that the Upper Tribunal Appeal fee increases will either not take place or the fee increase will be reduced.

New legislation will need to be prepared in order to bring the change into force officially but for now the Tribunal is using the Lord Chancellor’s discretionary power to remit the fees.

It is expected that when new legislation is provided that there may be some increases of a less drastic nature. However, for now the old fees apply again while the broader fee exemptions introduced will continue to apply meaning that more people may be eligible for fee exemptions.

English Language Requirement for Partners and Parents

The Government has introduced a new English language requirement to take effect from 1 May 2017 for applicants applying for further leave in the UK as a partner or parent, after completing 30 months here on a 5-year route to settlement under Appendix FM. A new English language requirement at level A2 of the Common European Framework of Reference for Languages is being introduced for non-EEA partners and parents.

The changes to the law will affect only those applicants wishing to extend their stay in the UK after 2.5 years and also those applying for settlement. All applicants whose leave is due to expire on or after 1 May 2017 must produce an A2 English language test certificate from an approved college. A list of approved college can be found at Appendix O of the Immigration Rules. Failure to produce a valid English language certificate or to provide a certificate from a college that is not approved will result in applications being refused by the Home Office.

For further information, please contact our offices.

Immigration and Asylum Tribunal Fees to Increase Significantly

The Government recently announced their intention to make major increases to Tribunal Fees to take effect as soon as possible.

Despite significant opposition to the increases when the new fees were circulated for consultation the Government has decided to press ahead with the fee increases. Therefore from Monday, 10th October 2016 fees at the First-tier and Upper Tribunals will be increasing as follows:

 

Appeal Type

Current Fee

New Fee

First-tier Tribunal (FTT)

Application for decision on papers

£80

£490

Application for oral hearing

£140

£800

Application to the FTT for permission to appeal to Upper Tribunal

Nil

£455

Upper Tribunal (UT)

  

Application to UT for permission to appeal to the UT

Nil

£350

Appeal Hearing

Nil

£510

 

There will be limited exemptions to the fees including those who received a Home Office fee waiver when making their initial application, those who qualify for legal aid or asylum support and those appealing against a decision to deprive citizenship. For the vast majority the full fee will be required and only in exceptional circumstances will a fee remission or reduction be granted by the Lord Chancellor. Where appeals are successful litigants can recover their Tribunal Fees.

Strict time limits will continue to apply and it is expected that in many cases this will deter litigants from appealing and make them more likely to pursue a fresh application rather than an appeal, even where the appeal stands a very good chance of success, particularly in the case of EU Migrants.

Although this is likely to reduce the workload of the Tribunals it is unimaginable that this will not have grave and very harmful consequences to the justice and fairness of the Immigration system in the UK.