Topical changes in Immigration Law.

 

Appeals

The appeals provisions are further curtailed under section 63 of the immigration Act 2016. These provisions  came into  force  on 1st December 2016. Section 63 deal with " remove first and appeal later". There is therfore more incentive for the SSHD to certify Human rights  claims that do not contain an asylum or other protective  element as clearly unfounded and thus without merit . All this is part of the Government's plan to make the UK a less attractive country to settle for migrants of various categories  and asylum seekers

Certification has thus the effect of preventing an appeal from being presented in the UK courts and tribunals, so that an  appeal may only be brought from outside the UK. It can however be challenged at the Upper tribunal ( UT),  by permission to apply for a judicial review of the decsion to certify. Any further application  will be to the Court of Appeal on a point of law and only if the UT or failing  that the Court of Appeal grant permission. Therfore in cases  that have been certified,  there  will be no further oral application for permision to reconsider the decision on ther papers  to the UT under The Tribunal Procedure  ( Upper Tribunal) Rules 2008, rule 30 ( 4) ( a).

There is also now a power to cancel section 3 leave. Section 3C of the immigration Act 1971 deals with continuation  of leave to remain on the same basis and in accordance  with the same conditions  as the applicant had before the visa expired, provided that such application  for an extension  or a variation  of leave to remain, was made prior to the expiry of that previous leave. If an applicant  has failed to comply with the conditions of his/ her leave or has used deception in seeking leave to remain,   then section 3 leave can be cancelled under section 62 of the 2016 Act.

The Government has said that before they consider  to certify a claim they will look into  human rights  concerns and   the best interest of the  child provision. The Supreme Court will consider  in February 2017  the question   of whether out of country  appeals under the current " deport first and appeal later", provisions, meet the requirement  of procedural fairness under article  8 of the  ECHR folllowing  the case of R ( Kiarie) v SSHD ( 2015) EWCA Civ 1020.

Tenancies and illegal working

The new residential tenancy provisions under sections 39-41 came into force on 1st December 2016. These now include the criminal offence of leasing premises to a person disqualified from renting and the new powers of eviction.The provision has already  been brought into  force for the purpose  of the Government making subordinate regulations  and it has laid draft regulations  under these  and under separate  provisions on current bank accounts.

The restrictions on illegal working for taxi drivers and the provisions on illegal working closure notices and compliance  orders both came into  force on 1st December 2016.

Command of English language generally

Some provsiosn came into force  in November 2016. For example  the duty on public authorities  to ensure that public sector workers in customer facing  roles within the  UK have a command of spoken English ( or in Wales, Welsh or English) sufficient to enable  effective performance  of their role came into  force  as from 21st November 2016.

immigration Rules changes

The statement of changes in immigration Rules was published on 3rd November 2016.The 28 day grace period for the consideration of applications   for further leave to remain  where a client has overstayed has  been abolised for applications  made on or after 24th November  2016, and more restrivitve provsions put in  place so that the period of time is now reduced to 14 days.

The rules bring in the first phase of changes to Tier 2 ( general) and Tier 2 ( inter- compnay Transfers), of the PBS system following the Migration Advisory Committee review.

Europe

The immigration ( European Economic Area) Regulations 2016 ( SI 2016/1052) have been laid before parliament . These replace the Immigraion ( European Economic Area) Reguations 2006 ( SI 2006/1003) achieving a much needed consolidation. It appears that the prospect of Brexit has pursuaded  the Home office that it can break EU law with inpunity.

The debate continues as to the right of EEA nationals in the UK post Brexit with increasing attention being given in the debate to the question of sector based quotas, with or without preferentail access for EU nationals.

Tribunal fees

The tribunal appeal fees were  substantially increased  recently only to return to their previous levels prior to  the increase due to pressure from various  groups such as ILPA.

Calais

The Calais camp ( commonly  known as " the jungle"), was  cleared in an operation  that began on 21st October  2016. The UK and French Governments  had failed  to make provisions to move all unaccompained children  from the camp, let alone bring them to the UK, before the clearance  started and children watched as  the camp burned, some sleeping  rough  for a few nights. Practical support came from  volunteers. The UN Committee on the Rights of the child issued a strongly worded statement, although  not unitl 2nd November  2016, in saying that " the best interest of the child have been completely disregarded." Children have now been bused to various temporary centres elsewhere in  France, to await transfer to the UK under the provision of the Dublin iii regualtion, which  create obligations  to reunite  them with Family members and provisions  whjch give powers to transfer them when  to do so would be in their best interests.

 Dr Bernard Andonian Consultant Solicitor.

 

 

 

 

 

 

 

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