OTS Solicitors’ Immigration Case Round-Up: Jul – Dec 2016

As 2016 draws to a close, we take a look at some of the most important cases decided in the latter half of 2016 and what they mean for migrants in the UK.

Deportation cases decided by the Supreme Court

Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] All ER (D) 93 (Nov) (16 November 2016)

In this deportation appeal, the appellant had two British children with whom he had not had direct contact for a significant length of time. The Supreme Court unanimously dismissed his appeal, despite the best arguments from his Immigration solicitors, finding that the children had no relationship with the appellant. Lord Kerr said that where a decision is taken about the deportation of a foreign criminal who has children residing in the UK, separate consideration of their best interests is required, especially if they do not converge with those of the parent to be deported and particularly in the case of a child with dual ethnic background. Lady Hale added:

‘…it is quite correct to say that children must be recognised as rights-holders in their own right and not just as adjuncts to other people’s rights. But that does not mean that their rights are inevitably a passport to another person’s rights.’

You can read more about this case here.

Ali v Secretary of State for the Home Department [2016] All ER (D) 90 (Nov) (16 November 2016)

The appellant was a failed Iraqi Asylum seeker with Class A drug convictions. He was in a long-term relationship with his British fiancée and had two children with whom he had no contact. The Supreme Court dismissed the appellant’s Immigration appeal against the Court of Appeal’s decision to remit the appeal to the Upper Tribunal, however Lord Kerr dissented. The judgments analyse the interaction between the deportation rules and the Home Office’s duty to consider Article 8 of the European Convention on Human Rights.

The Supreme Court held that the Home Office’s decision-making process is not governed by the Immigration Rules, but should nevertheless involve their consideration. It must make its own assessment of the proportionality of deportation, on the basis of its own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, it must not disregard the decision under appeal.

Where the Secretary of State for the Home Department has adopted a policy in relation to the assessment of proportionality, set out in the Immigration Rules and endorsed by Parliament, it should give considerable weight to that policy. Lord Wilson endorsed the balance sheet approach to decision making. Dissenting Lord Kerr concluded that the application of the Immigration Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under Article 8 in a particular case.

You can read more about this case here.

Immigration Appeals

Sheidu (Further submissions; appealable decision) [2016] UKUT 412 (IAC) (7 September 2016)

A Vice-Presidential panel of the Upper Tribunal (Immigration and Asylum Chamber) found that if the Secretary of State for the Home Department makes a decision that is one of those specified in section 82(1) of the Nationality, Immigration and Asylum Act 2002, it carries a right of appeal even if the intention was not to treat the submissions as a fresh claim.

Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) (19 August 2016)

Dropping a jurisprudential bomb shell, a Vice-Presidential panel of the Upper Tribunal (Immigration and Asylum Chamber) found that there is no statutory right of appeal against the decision of the Secretary of State for the Home Department not to grant an EU Residence Card to a person claiming to be an extended family member as it did not concern a person’s entitlement to be issued with an EU Residence Card.

In this case, the appellant, who was a citizen of Albania entered the UK illegally and sometime later applied for a residence card as the extended family member of an EEA national. He was in a durable relationship with a Slovak Republic national.

It was accepted by the Judge that the appellant and his partner were indeed in a durable relationship.

What concerned the Tribunal was whether the appellant indeed had a right of appeal under the EEA Regulations 2006.

The Tribunal’s view was that although a European national is entitled to be joined by their family members in the United Kingdom, there was no such “entitlement” for extended family members. Their right was simply a right to be, “considered for an exercise of discretion”.

Following this decision, it is best practice for your Immigration lawyer to make a Human Rights application at the same time as an application for permanent residence to ensure the right to appeal is preserved.

Sponsor Licence cases

R (on the application of Raj and Knoll Ltd) v The Secretary of State for the Home Department [2016] All ER (D) 90 (Jul), [2016] EWCA Civ 770 (19 July 2016)

The claimant sought judicial review of the Secretary of State's decisions to revoke its Tier 2 Sponsor Licence and to maintain that revocation. The Administrative Court, in dismissing the application, held that the Secretary of State had been justified in concluding that the claimant's response to her request for information addressing identified issues had been deficient and why the presaged revocation of licence would go ahead. Further, her decision had not been irrational, and given the litany and seriousness of the claimant's various breaches, immediate termination of the Tier 2 Sponsor Licence was acceptable.

OTS Solicitors is one of the most respected immigration law firms in London. Our immigration team would be happy to talk to you about your immigration law questions and problems.

By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today.

If you wish to discuss any of the points raised in this blog, please phone our London office on 0203 959 9123.