Louise

Update on Appendix FM of the Immigration Rules

http://www.guardian.co.uk/law/2012/jul/18/supreme-court-immigration-rules

I have had many client’s asking me about the recent changes in the Immigration Rules, and so I thought that you may find this article worth a read.

As many of you will be aware there have been major changes in the Immigration Rules, the most major one being that a sponsor must have a minimum income of £18,600.00 to bring their partner to the UK. This income rises for every child that they wish to bring to the UK along with their partner.

For many legal professionals we cannot get our heads around how this is in line with Article 8 of the European Convention of Human Rights, which protects a person’s right to a family and private life. It will be very interesting to see how the new Immigration Rules are interpreted by the Courts and Tribunals in the coming months.

Please keep checking our website and blog for more information.

Illegal Immigrant granted leave to remain in UK as he has a pet cat

Last month Theresa May claimed that Article 8 of the European Convention of Human Rights had saved a man from deportation due to the fact that he had a cat. This angered many; it angered the public who were led to believe that an immigrant can remain in the UK solely for the reason that they have a pet, and it angered many lawyers and Politicians who claim that Teresa May’s comments have been misleading and is a complete misconception.

So – is it true?

The answer is no! It is getting increasingly clear that Theresa May has it in for Article 8 ECHR, and she is trying to get the public behind her. However, it is true to say, that she has completely misquoted this case and has completely misled the public. I urge you not to listen to these ridiculous statements.

Theresa May had stated that Article 8 should be reformed as it had allowed one immigrant to remain in the UK as he had argued that removing him from his cat would be distressing for himself and for the pet. This was clearly quoted to cause anger amongst the public.

However the true story is that the individual in question had been in a settled relationship with his partner for 5 years. The cat was mentioned in evidence to assist in proving the relationship to be genuine and that the couple had made some form of commitment to one another. The solicitor of the individual confirmed it to be ‘one detail among many’. And so Theresa May has taken this completely out of context to fabricate a story which assists in her own political goals.

The case actually won on appeal as the Home Office had not followed their own rules relating to unmarried couples, and so the final decision was not at all based upon the relationship with the pet cat. I would suggest that Theresa May does her homework on Human Rights Law before slating it. How can she want reform for a law that she does not even fully understand?

I believe that Article 8 of the European Convention of Human Rights protects a vital right – the right to a family and private life. It has successfully allowed families to remain together and protects children in that their family cannot so easily be torn apart. I do not accept that it is in need of reform.

What are your views on this story?

Legal Aid Reforms

The North East Strategic Migration Partnership are meeting in Newcastle today in order to discuss the Government’s proposals for cutting the legal aid budget in relation to immigration matters.

At present legal aid is available for all asylum and immigration matters when the client is unable to afford to pay for legal advice. The Government are planning to cut access to legal aid for all immigration matters which are not asylum related, obviously leaving a large amount of individuals with no access to free legal advice.

The Legal Aid, Sentencing and Punishment of Offenders Bill is currently being passed through Parliament and it aims to reduce the legal aid bill by £350 million. The Government have received 5000 responses to the proposals to date, the vast majority of which have strongly opposed the suggested reforms.

If the bill is passed it will see an end to legal aid in relation to the following:

–         Family Reunion Applications

–         Deportation cases

–         Applications made under Article 8 ECHR

–         Visa applications

–         Trafficking and domestic violence cases

I strongly believe that cutting legal aid in relation to immigration matters will leave a huge number of individuals vulnerable, and confused as to how to resolve their immigration status. Most worryingly people who are granted refugee status (ie the Government accept that they will face persecution in their home country) will be unable to access legal aid to bring their family to the UK under the Family Reunion rules. This could have a detrimental and heart breaking effect on individuals who have fled to the UK to escape torture, repression and persecution. They need their family to assist them in integrating into life in the UK, and to cope with the ordeals of their past, but to remove legal aid will only place a barrier between these individuals and their families.

I also believe that removal of legal aid to immigration cases will inevitably lead to an increase in the number of individuals in the UK with unresolved immigration status. If they can’t afford to obtain legal advice then they are less likely to make themselves known to the authorities. It will cause more people to continue living in the UK illegally without ever trying to resolve their status.

I believe that it is not in the interests of justice to remove legal aid from immigration matters. These matters are life changing for the individuals involved, and they should not be prevented from accessing justice simply because they cannot afford it. Britain is a country which is known to protect individuals, and defend their rights, and removing legal aid for immigration matters completely goes against this. Immigration law in the UK is complex and confusing, and access to legal advice is necessary. I therefore do not support the Government’s proposed changes in relation to legal aid reform to immigration matters.

What do you think about the Government’s proposals?

Should Human Rights Laws Protect Criminals?

I recently read an interesting in the Guardian which informed me that a Nigerian fraudster has been allowed to remain in the UK under human rights laws. The UK Border Agency had tried to deport the individual but, on appeal, it was decided that he should be allowed to remain in the UK as removal would interfere with his right to a family and private life under Article 8 ECHR.

The case involved an individual who had committed fraud and conned the Government out of thousands of pounds using false benefits claims. The UK Border Agency were attempting to deport following his prison sentence, and the matter was taken to appeal. This individual had overstayed on his visa in 1996 and the UK Border Agency made the decision to remove him from the UK but took no action to enforce the decision. He was therefore granted indefinite leave to remain in 2002 and he now has a six year old son with legal residence in the UK. The Guardian article argued that the case highlighted how Article 8 can be used to overturn the Government effort to throw foreign crooks out of the UK.

This case has obviously got many people talking about human rights laws, and whether they have been taken too far to protect individuals who do not deserve protection. There are, as always two sides to the argument.

On one side many people would argue that any foreign national with a criminal conviction should be removed from the UK, and that human rights law should not protect them. In fact David Cameron, Theresa May and many other MP’s are campaigning to reform human rights law, in particular Article 8. They state that Article 8 should not be used as a bar for deporting serious criminals. And many people would agree with this.

However the issue, as with all immigration matters in the UK, is not black and white. The courts must balance a person’s rights against the rights of the public as a whole. For instance there are cases when a criminal may have children to support, in some cases the children are British citizens. We then enter a mine field of children’s rights. The child has the right to live with, have contact with, and be supported by their parents. When a Judge has to decide whether to separate a parent from a child who has a right to be in the UK then they will almost always allow the parent to remain.

I am of the opinion that human rights law in the UK is something that we should be extremely proud of. There are many countries in the world that have absolutely no respect for human rights. We do not want to take a step backwards when we are such a shining example to many other countries.

To me the Guardian have also failed to highlight the failings of the UK Immigration System. They state that a decision was made to remove this individual in 1996, yet no action was taken to enforce removal. Due to the delay in dealing with his case he built up residence in the UK and was granted indefinite leave to remain. This surely highlights a major failing of the current system, in that the Government should have dealt with this matter when they made a decision in 1996.

What do you think of these issues? It would be interesting to hear what you think about human rights law in the UK and whether you feel they are too protective.

Celebrating the 60th Anniversary of the Refugee Convention

UNHCR Article

Please click on the above to read the full Article from UNHCR.

As you will note yesterday marked the 60th Anniversary of the 1951 Convention Relating to the Status of Refugees (the 1951 Convention). For those of you that don’t know, the 1951 Convention was adopted on the 28th July 1951 to resolve the refugee problem in Europe after World War Two. It provides a clear definition of who will be regarded as a refugee – a person with a well founded fear of being persecuted for reasons of race, religion, nationality, member of a particular social group or political opinion. The treaty is still followed today.

UNHCR state that the Convention has helped millions of people restart their lives in the last 60 years, and that it has survived, adapted and endured through many challenging times. It provides the essential framework for the protection of people fleeing persecution.

Whilst conducting research to write this blog I came across the following quote and it got me thinking:

“The situation has changed beyond recognition since the Refugee Convention was signed 60 years ago. There is now widespread abuse. Over half of all applicants in the UK only claim when detected. Nearly two thirds (60%) of all cases decided in the last five years were rejected after a long and expensive legal process but less than half of them are being removed. Those, like ourselves, who are serious about genuine refugees must be equally serious about removing asylum seekers who turn out to be bogus if public support for the system is to be sustained.”

Sir Andrew Green, Chairman of Migration Watch UK.

I do not know whether the statistics quoted are correct but it got me thinking about whether the 1951 Convention could be viewed as out of date and in need of updating. I am aware of the importance of protecting refugees world wide, but you have to admit that Sir Green has a point; the situation globally for refugees has changed dramatically since 1951.

The Convention was drafted sixty years ago. Some may argue that it is not equipped to deal with the challenges of today. For example, is the 1951 Convention flexible enough to deal with gender based persecution?  Is it suitable to deal with the world of terrorism and organised crime which simply did not exist at the time of its creation?

Many would also argue that Human Rights law has developed drastically in recent years, and the European Convention of Human Rights would prevent a person being removed from the UK if their life would be at risk. The 1951 Convention could be classed as redundent if Human Rights law prevent s person being removed from the UK anyway. Does the European Convention of Human Rights arguably not provide protection to people fleeing their country in fear of persecution?

Refugee law and Human Rights law are complex areas, and perhaps they both need to be considered side by side when assessing as to whether a person is at risk. The 1951 Convention does provide a legal framework for the protection of refugees which many do consider essential. But there may be an argument that it is in need of updating to suit modern times.

It would be interesting to hear your comments on this area. Do you agree with Sir Green, and think that the process for dealing with refugees in the UK needs to be changed?

Silent Amnesty for Asylum Seekers

(http://www.guardian.co.uk/politics/2011/jun/02/immigration-minister-denies-asylum-amnesty?INTCMP=ILCNETTXT3487)

Click here to read article

I have recently read the above article regarding the supposed ‘silent amnesty’ for asylum seekers who made their initial asylum claim prior to March 2007. I guess you have all read an article in the paper, or heard a story on the news about this ‘amnesty’. The media have been keen to report heavily on the matter as immigration remains a hot topic in the news, the political world and the country in general.

What bothers me about the way in which these matters are reported is that Politicians use immigration facts and statistics simply to get one up on each other, and the media jump on board to publish stories which are not entirely accurate, as they know that immigration and asylum are topics which the public, one way or another, are passionate about.

Having worked in the Immigration field for a number of years I am certainly up to date with developments in the law, and I know that there has been no ‘amnesty’ for asylum seekers, despite what the papers are saying. On review of the article in the Guardian it is contradictory. The writer speaks of an ‘amnesty’ but later states that just over 161,000 asylum seekers have been granted leave to remain. This figure makes up 40% of all claims; how can 40% be classed as an amnesty?

I am experienced in working with cases involving asylum seekers who made applications prior to March 2007, and there has been no amnesty. The UK Border Agency consider each case individually, and on the basis of the individual’s circumstances. I am aware of applicants that have been refused and, indeed, removed from the UK following an asylum application. Therefore I do disagree with the claim that there is a ‘silent amnesty’ for asylum seekers. I don’t like to think that the newspapers are giving the public the wrong impression about asylum seekers and immigrants simply to side with political parties and sell more copies.

The article also makes reference to the fact that the UK Border Agency will complete the clearing of the backlog of asylum cases by the July 2011 deadline. This has not happened. The UK Border Agency team, the Case Resolution Directorate, was set up to deal with the backlog of applications but has now closed. A new team, the Case Assurance and Audit Unit, has now been set up to deal with the remaining cases. I would therefore argue that the UK Border Agency has not met its goal of clearing the backlog of cases, and many asylum seekers, who have been waiting several years for a decision, will continue to wait.

What do you think of the hot topic of immigration? Would an amnesty be a good or a bad idea? And do you have any thoughts on the role of the media in determining the public’s opinion on immigrants in the UK.