Immigration Update 6 October 2019

There have been a number of important developments this week with respect to immigration law. The immigration rule changes came into effect on 1 October 2019 and the most significant change is the expansion of the Tier 2 shortage occupation list (SOL), to which a number of new job roles will be added to tackle skills shortages in the UK.

There have also been important case law developments this week. A link to all material can be accessed by clicking on the case name, guidance, or news title below.

Case Law:

GM (Sri Lanka) v SSHD [2019] EWCA Civ 1630

Court of Appeal hands down judgment today in GM (Sri Lanka) v SSHDallowing Article 8 ECHR appeal. Chambers’ Zainul Jafferji and Arif Rehman acted for the Appellant, instructed by Fred Kibuuka at the Tamil Welfare Association (Newham). Of particular note was the rare exercise of powers by the CoA under the Tribunals, Courts and Enforcement Act 2007 resulting in the appeal being allowed outright and remitted to the SSHD to reconsider her decision, rather than being remitted to the UT.

The Court commented that it was “at a loss to understand why” the SSHD did not “pragmatically” agree to “revisit the position of the Appellant.” It considered that the material change in circumstances meant “that in this appeal we must consider to what extent the decision we take reflects the most up to date position.”

This raised a “point of principle”– “When a court is required to address an issue relating to fundamental norms or human rights that Court must ensure that any order that it takes is also compliant with such rights.”

“It follows that if an appellate court finds that a lower court or tribunal acted lawfully by reference to the evidence before it but that based upon the facts now known to the appeal court to uphold the decision would violate fundamental norms then the appellate court must ensure that the decision it takes is compliant with the law.”

A detailed write up from Mr Zainul Jafferji will be posted shortly.

Bajratari v Secretary of State for the Home Department [2019] EUECJ C-302/18

(Reference for a preliminary ruling — Citizenship of the Union — Directive 2004/38/EC — Right of residence of a third-country national who is a direct relative in the ascending line of Union citizen minors — Article 7(1)(b) — Condition of sufficient resources — Resources formed by income from employment occupied without a residence card and work permit)

Re directive 2003/109/EC https://easo.europa.eu/sites/default/files/public/Longtermresidency-EN.pdf).

Reference: request for a preliminary ruling concerns the interpretation of Article 5(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).

Facts: On 26 July 2007, X, who declared that he is a Cameroonian national, submitted an application for a student visa to the Belgian Embassy in Yaoundé (Cameroon). He obtained the visa and his right of residence in Belgium was renewed annually until 15 January 2016. On 19 January 2016, a residence permit was granted at X’s request, on the ground that he was in possession of a work permit. That residence permit was valid until 14 January 2017.

On 27 December 2016, X applied for long-term resident status. In support of that application, he produced inter alia, as evidence of stable, regular and sufficient means of subsistence, employment contracts, a tax assessment notice and pay slips in his brother’s name. In addition, X provided a document signed by his brother, in which the latter undertook to ensure that ‘the person concerned has, “for himself and for his dependent family members, stable and regular means of subsistence which are sufficient to maintain himself and the members of his family to avoid becoming a burden for the State” in accordance with Article 15a of the [Law on foreign nationals]’.

The State rejected that application by decision of 5 April 2017. With regard to stable, regular and sufficient means of subsistence within the meaning of Article 15a of the Law on foreign nationals, the decision was worded as follows:

‘The person concerned does not have his own resources. It appears that he has not been engaged in gainful employment since 31 May 2016, and that he does not currently have any resources. He is currently relying on his brother’s resources. The person concerned must establish that he has sufficient means of subsistence for himself so as not to become a burden on the Belgian State.’

Judgement:

By its questions, which it is appropriate to consider together, the referring court seeks to ascertain, in essence, whether Article 5(1)(a) of Directive 2003/109 must be interpreted as meaning that the concept of ‘resources’, which is referred to in that provision, concerns only the ‘own resources’ of the applicant for long-term resident status or whether this concept also covers the resources made available to that applicant by a third party and, if so, whether a commitment of cost bearing entered into by that third party is sufficient to provide proof that the applicant has stable, regular and sufficient resources within the meaning of that provision. (24)

…

It is apparent from Article 5(1)(a) of Directive 2003/109 that Member States are to evaluate the resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions prior to the application for long-term resident status. In addition, contrary to Article 7(1)(b) of Directive 2004/38, Article 5(1)(a) of Directive 2003/109 requires that the resources referred to therein be not only ‘sufficient’ but also ‘stable’ and ‘regular’. (36)

…

It follows from the examination of the wording, objective and context of Article 5(1)(a) of Directive 2003/109, in the light, inter alia, of the comparable provisions of Directives 2004/38 and 2003/86, that the origin of the resources referred to in that provision is not a decisive criterion for the Member State concerned for the purpose of ascertaining whether they are stable, regular and sufficient. (41)

…

Resources from a third party or a member of the applicant’s family are therefore not excluded by Article 5(1)(a) of Directive 2003/109, provided that they are stable, regular and sufficient. In that regard, in a situation such as that at issue in the main proceedings, the legally binding nature of a commitment of cost bearing by a third party or a member of the applicant’s family may be an important factor to be taken into account. It is also permissible for the competent authorities of the Member States to take into account, inter alia, the family relationship between the applicant for long-term residence and the member or members of the family prepared to bear his costs. Similarly, the nature and permanence of the resources of the member or members of the applicant’s family may be relevant factors to that effect. (43)

In the light of the foregoing considerations, the answer to the questions referred is that Article 5(1)(a) of Directive 2003/109 must be interpreted as meaning that the concept of ‘resources’ referred to in that provision does not concern solely the ‘own resources’ of the applicant for long-term resident status, but may also cover the resources made available to that applicant by a third party provided that, in the light of the individual circumstances of the applicant concerned, they are considered to be stable, regular and sufficient. (44)

On those grounds, the Court (Third Chamber) hereby rules:

Article 5(1)(a) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents must be interpreted as meaning that the concept of ‘resources’ referred to in that provision does not concern solely the ‘own resources’ of the applicant for long-term resident status, but may also cover the resources made available to that applicant by a third party provided that, in the light of the individual circumstances of the applicant concerned, they are considered to be stable, regular and sufficient.

Savran v. Denmark (Application no. 57467/15)

ECtHR judgement rules that removal cannot take place until the Member State was sure “effective” mental health treatment would be received in the country of nationality. Removal without such assurances would breach Article 3.

A (A Child: Female Genital Mutilation: Asylum) [2019] EWHC 2475 (Fam)

“It follows that clauses 2 and 3 in the order made on 1 October 2018, which sought to injunct the Secretary of State in the exercise of her powers with respect to immigration and asylum, must be discharged. They will be replaced with a request to the Secretary of State to restrain enforcement of the immigration decisions in this case until the conclusion of the FGMA application and thereafter to re-consider the immigration determination in the light of any risk assessment undertaken by the family court.”

Update to the immigration rules and guidance:

Immigration Rules changes take effect as of 1 October 2019 and 6 October 2019 respectively. Updated guidance has been published putting these changes into effect. Please find these below.

The changes were originally announced on 9 September 2019. The most significant change is the expansion of the Tier 2 shortage occupation list (SOL), to which a number of new job roles will be added to tackle skills shortages in the UK.

1. Indefinite leave to remain: calculating continuous period in UK
   • adds the exemption for Tier 2 (General) applicants in PhD occupations who have conducted research overseas
   • adds minor clarifications and corrections
2. Points-based system: Tier 1 (Exceptional Talent)
3. Tier 1 (Investor) of the Points Based System – Policy Guidance
4. Start-up and Innovator visa endorsing bodies
5. New guidance on respecting children’s rights in return policies and practices published by UNICEF, IOM, ECRE and others:
   • When does the question of return of children arise and how are their best interests considered?
   • Developing the best-interests procedure for the identification of durable solution.
   • Implementation of a return decision in the best interests of the child.
   • Children’s data. Use of personal data of children in return procedures.
   • Ageing out. Protection needs do not end on a child’s 18th birthday.

News:

1. High Court to hear legal challenge over interviewing of failed asylum seekers by Zimbabwean government officials.
2. Nearly all Home Office misconduct inquiries relate to immigration :
   • In 626 internal investigations in three years, 210 allegations were substantiated
   • Areas of investigation by the PSU include allegations of crimes such as assault, sexual assault, racism, theft, fraud, harassment or “any behaviour likely to bring the Home Office into disrepute”.
3. Newly announced ‘points based’ immigration system would make migration to UK harder, say experts:
   • MAC will also review salary thresholds for a future immigration system. It is expected to report back to the government with its results on salary thresholds and propositions on how to implement a PBS by January 2020. However, last month a widespread CIPD survey found most employers were unaware the government had released proposals for a future migration system and had yet to undertake any preparatory work for its implementation.
   • “It is legitimate for employers to have some degree of confusion over this because there is a level of confusion for those of us who study these issues as we don’t have sturdy ground ourselves,” McNeil said. “We have heard a lot about an Australian-style PBS, but we are several months away from the Migration Advisory Committee (MAC) review of how a PBS will work in the UK.”