Today (29/06/2023), the Court of Appeal reversed the High Court decision in AAA v Secretary of State for the Home Department (SSHD) on 19th December 2023 where it was held that removal of asylum seekers to Rwanda was lawful.

 

In today’s ruling, the Court of Appeal confirmed that any removals of asylum seekers to Rwanda is unlawful.

 

Background

 

On 14^th April 2022, the UK government announced that they have an agreement with the Republic of Rwanda, whereby asylum seekers will be sent to the Rwanda for processing. The UK published the Memorandum of Understanding highlighting the agreement.

 

This decision has been a cause for huge controversy and outrage. We had concerns as to whether such removals would breach an asylum seekers fundamental right under the European Convention of Human Rights, and whether the UK would be breaching their international obligations under the Refugee Convention.

 

AAA v Secretary of State for the Home Department (SSHD)

 

Many were eagerly awaiting the decision in AAA v Secretary of State for the Home Department (SSHD) on 19^th December 2023, where the Court made a judgement as to whether expulsion of asylum seekers to Rwanda to process their asylum claims was deemed lawful.

 

This case concerned the legality of removal of 11 claimants. During the hearing a large number of grounds and arguments was presented before the court against the government plans to remove asylum seekers to Rwanda.

 

The court did not agree and found that Rwanda was sufficiently safe country and the inadmissibility and removal notification process undertaken by the Home Office in identifying and removing asylum seekers to Rwanda was found to be sufficiently fair.

 

In our previous article on this topic, we commented that the findings in AAA v Secretary of State for the Home Department (SSHD) that Rwanda is a safe country, and that the admissibility process is procedurally fair, will have a huge impact on asylum seekers in the future. Of course, we also stated that this would be the case unless those findings were successfully challenged on appeal or on the basis of fresh evidence.

Fortunately, the decision made by the High Court was appealed to the Court of Appeal.

 

Court of Appeal

 

Lord Burnett, the Lord Chief Justice, told the court that two of the three judges concluded that deficiencies in the asylum system in Rwanda meant there was a “real risk” that asylum seekers could be returned to their home country – and then face persecution or other inhumane treatment there. He said the two judges found that: “In that sense Rwanda is not a ‘safe third country”.

 

Lord Burnett was the only dissenting voice, with the Master of the Rolls, Sir Geoffrey Vos, and Lord Justice Underhill finding that Rwanda was not a safe third country. Lord Burnett went on to emphasise that the decision by the Court of Appeal was not political, and that “The court’s concern is only whether the policy complies with the law as laid down by Parliament”.

 

All other grounds, other than Rwanda’s status as a safe third country were dismissed by the Court of Appeal.

 

Our comments

 

This is a much-welcomed decision by the Court of Appeal. We were unable to see how the UK could meet their obligations in dealing with asylum claims overseas.

 

The Prime Minister has revealed the government’s intention to appeal to the Supreme Court, stating “I strongly believe the Rwandan government has provided the assurances necessary to ensure there is no real risk that asylum-seekers relocated under the Rwanda policy would be wrongly returned to third countries – something that the Lord Chief Justice agrees with”. However, in order to appeal to the Supreme Court, the government will need permission from the Court of Appeal. We must all wait to see if they do so.

 

Of course, the nuclear option would be for the government to withdraw the UK from the European Convention on Human Rights, something they have previously ruled out.

 

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By Victor Falcon Mmegwa

 

Recently, the Home Secretary, Suella Braverman MP, confirmed in a letter to the Chair of the Home Affairs Select Committee that the Home Office have suggested the use of certification under section 94B of the Nationality, Immigration and Asylum Act 2002 from 5 June 2023. This means that any appeal against the refusal of a human rights claim can only be made or continued while the person is outside the UK. It also means that the person can be removed before their appeal is heard.

 

A human rights claim can only be certified under section 94B if the person seeking any appeal from outside the UK would not be unlawful under section 6 of the Human Rights Act 1998. This would mean that the person being removed from the UK must not face a real risk of serious and irreversible harm before the appeal process is exhausted. However, in the case of Kiarie and Byndloss [2017] UKSC 42, it was considered that it would be a breach of section 6 Human Rights Act 1998 to certify human rights claims where the claimant wished to give oral evidence in their appeal, but were not able to do so from outside the UK.

 

The Home Secretary stated in her letter that in order to comply with the judgment in Kiarie and Byndloss, any appeal from outside the UK following a section 94B certification will require facilities for any person to give evidence should they wish. This includes a room which is sufficiently private and has sufficient internet speeds to support high quality video calls for the necessary duration of the hearing.

 

The Foreign, Commonwealth & Development Office will confirm that the authorities in the countries from where video evidence is going to be given will have no objections to the use of a video link by their citizens or residents to provide evidence. Furthermore, they will ensure that the local law in that country does not prohibit it. The Home Secretary also stated that the Home Office is looking to initially focus on appeals of foreign national offenders and will only use section 94B certification where relevant assurances have been provided to the Foreign, Commonwealth & Development Office and where the necessary facilities are in place.

 

The Home Office have given their caseworkers instructions that they should not certify a claim where it is not possible for the claimant to give evidence at their appeal by video link. Following Kiarie and Byndloss, use of section 94B was paused while steps were taken to put in place measures to allow for video link facilities that would enable people to give evidence from overseas at their appeal. This means that a video link facility is available but also that the country has given consent for evidence to be given via a video link. The Home Office caseworkers are advised to check with the Overseas Video Team to confirm whether or not a video link can be arranged for the appeal and whether consent for the use of a video link has been agreed by the country. If the use of a video link is not possible then certification under section 94B will not be appropriate.

 

Our comments

 

In our opinion, the judgment of Kiarie and Byndloss does protect the person’s Article 6 of Human Rights Act 1998 with regards to ‘Right to a fair trial’. However, with the measures of giving evidence via video link, I am not convinced that that this will achieve a ‘Right to a fair trial’ under Article 6 of Human Rights Act 1998.

 

We believe that the primary reason to re-commences ‘deport now, appeal later’ is to deter unfounded claims. This is done by preventing appeals that cannot succeed, where protection and human rights claims are clearly unfounded. Enabling any person to be removed once a decision is made and certified.

 

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In June 2022, the UK Government proposed a Bill of Rights which was intended to replace the Human Rights Act 1998. The Human Rights Act affords us all with fundamental rights and freedoms by enshrining the rights contained in the European Convention on Human Rights (ECHR).

 

The introduction of the Bill of Rights would have been to repeal the Human Rights Act 1998 and therefore render that any breaches of the ECHR would no longer be enforceable in the UK. However, the government have now announced that this piece of legislation will no longer be going ahead.

 

What were the proposed changes in the Bill of Rights legislation?

 

The intention to replace this with the Bill of Rights can only be viewed as a measure to substantially decrease the number of human rights claims being considered by the UK Courts. This can be seen in the form of some of the following proposed changes:

 

• prohibiting courts from finding a public body owes a positive obligation.
• removing the duty of courts to consider how the European Court on Human Rights (ECtHR) has interpreted a right.
• introducing a new permission stage, requiring claimants to prove they have (or would) suffer significant disadvantage as a result of a breach of their rights before they can take their claim to court.
• higher threshold for challenges to deportation for foreign national offenders based on the right to private and family life.

 

Our comments

 

One would think that the Bill of Rights’ purpose should be to strengthen the fundamental rights that we all enjoy, thanks to the Human Rights Act, and the substantial case law developed over the years. Instead, it appeared the purpose of this was to limit and restrict.

 

The proposal received widespread criticism, with a number of organizations calling for the plans to be scrapped. Today, the government has announced that they will no longer proceed with the Bill of Rights. The Justice Secretary Alex Chalk has confirmed that after ‘having carefully considered the Government’s legislative program in the round’ they will no longer be proceeding with his predecessor, Dominic Raab’s proposed Bill of Rights.

 

The decision was inevitable, and we welcome confirmation that such plans have been scrapped. The Human Rights Act affords all with protection and long may it continue.

 

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This article serves as a guide for an indefinite leave to remain application, otherwise known as 10 year lawful residence. Contact us today for help with your application.

 

What is indefinite leave to remain on the basis of 10 years lawful residence?

 

Indefinite leave to remain allows you to settle in the UK if you have been in the UK legally for 10 continuous years (known as long residence). Indefinite leave to remain is also sometimes called settlement. You can use it to apply for British citizenship.

 

This guide will briefly explain the general requirements that must be met to apply for the spouse visa. All requirements must be strictly met, otherwise the application will be refused.

 

What are the requirements?

 

In order to qualify for indefinite leave to remain, you must satisfy a number of requirements which are as follows:

 

• You must have permission to stay (leave to remain).
• You must have been in the UK legally for 10 years without gaps (continuous residence).
• If you are aged 18 to 65 years old, you must pass the Life in the UK Test. You must also speak and understand English to the required level.

 

Knowledge of language

 

You can prove your knowledge of the English language by having a recognised English test qualification from an approved test centre. You must have an English for Speakers of Other Languages (ESOL) qualification at B1, B2, C1 or C2 level.

 

You can also prove this if you have an academic degree taught or researched in English. If your degree is from a UK university, you only need your degree certificate. If your degree is not from a UK university, you will need a copy of your degree certificate and an Academic Qualification Level Statement (AQUALS) from Ecctis confirming the degree is equivalent to a UK qualification.

 

You do not need to prove your knowledge of English if you are a citizen of one of the countries below:

 

Antigua and Barbuda	Canada	New Zealand
Australia	Dominica	St Kitts and Nevis
the Bahamas	Grenada	St Lucia
Barbados	Guyana	St Vincent and the Grenadines
Belize	Jamaica	Trinidad and Tobago
the British overseas territories	Malta	USA

 

 

You also do not need to prove your knowledge of English if you are aged 65 or over or unable to because of a long-term physical or mental condition. However, you must provide a completed exemption form from a doctor confirming your physical or mental condition.

 

If you do not meet this requirement, you can apply to extend your leave to remain (extend your stay). You do not need to wait until your current visa expires but you must be in the UK to apply.

 

Continuous residence

 

Continuous residence is time you have spent in the UK without gaps. You can leave the UK during the continuous residence for up to 184 days at a time, and 548 days in total.

 

You cannot count time spent in the UK on a Visitor visa, a visitor without a visa, on a Short-term study visa, on a Seasonal Worker visa, on immigration bail or in a prison, young offender institution or secure hospital. You also cannot count time spent in Ireland, the Isle of Man or Channel Islands.

 

If you have exceeded absences of over 548 days in the 10 year period, then absences may be waived if you can show that there were serious and compelling reasons.

 

What documents must you provide?

 

You will need to provide a current passport or other valid travel ID, your biometric residence permit (BRP) if you have one and all the passports you have held during your time in the UK. You will need to provide a certified translation of any documents that are not in English or Welsh.

 

You may also need to provide additional documents depending on your circumstances.

 

What is the process?

 

You must apply online for indefinite leave to remain.

 

When you apply, you will be asked to make an appointment at a UK Visa and Citizenship Application Services (UKVCAS) service point to provide your biometric information. You will also need to submit your supporting documents. You can upload them into the online service or have them scanned at your UKVCAS appointment. Any children aged 6 and over who are applying on your application must also provide biometric information.

 

You must not travel outside the UK, Ireland, the Channel Islands or the Isle of Man until you get a decision. Otherwise, your application will be withdrawn.

 

You can submit your application as soon as you meet all the eligibility requirements. You do not need to wait until your current visa expires but you must be in the UK to apply.

 

How long does it take?

 

It will take up to 6 months from your application date to know whether your application has been successful if you use the standard service.

 

You can pay an extra £800 for the super priority service where you will get a decision by the end of the next working day after providing your biometric information if your appointment is on a weekday or 2 working days after providing your biometric information if your appointment is at the weekend.

 

There is a number of reasons why an application can be delayed, but most commonly it will be failure to provide all the required documentation and/or the need to attend an in-person interview.

 

To help avoid such potential delays, please contact us to assist with your visa application so that avoidable delays and/or refusals can be dealt with at the application stage.

 

What are the fees?

 

The fee depends on what you are applying for.

 

What you are applying for	Fee
Indefinite leave to remain	£2404
Extend your stay	£1048

 

There is no fee for having your biometric information taken.

 

What about family members?

 

Your family members (dependants) can apply separately if they are eligible for indefinite leave to remain with long residence. A dependant is your partner or child.

 

If your dependants are not eligible to apply separately and your application for settlement is successful, they can apply to remain in the UK as the partner of a settled person or remain in the UK as the child of a settled person.

 

Your children may have to leave the UK of they are not eligible to apply separately and are over 18.

 

Indefinite leave to remain – granted

 

Once you are granted indefinite leave to remain, you can do the following:

• Work
• Run a business
• Study
• Use public services such as healthcare and schools
• Apply for public funds and pensions
• Apply for citizenship usually after a minimum of 12 months

 

At Lisa’s Law, we regularly assist in applying for Indefinite Leave to remain applications. We will advise and represent you throughout the process. Contact us to start your application today.

 

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By Yang Peng

 

Today’s article looks at a recent case involving an unpublished Home Office policy which caused individuals to be unlawfully detained over NHS debts.

 

Keep reading to learn why the High Court decided the policy was unlawful and our thoughts on the case.

 

Background

 

MXK and SXB are two mothers who had unpaid NHS bills while having leave to remain as parents. On separate and multiple occasions throughout 2021 and 2022, they were stopped, detained, and questioned about their NHS debts when re-entering the UK with their children.

 

If an applicant who applies for entry clearance, permission to enter or permission to stay has failed to pay NHS charges which are at least £500 and fall under the National Health Service (Charges to Overseas Visitors) Regulations 2015, SI 2015/238, this becomes a discretionary ground for refusal of entry clearance or leave to remain in the UK. Additionally, the debt is recorded as a “warning marker” within a database shared with government departments and public authorities for potential relevance.

 

Consequently, individuals who are subject to a warning markers may undergo border stops. This includes the practice of detaining and examining individuals with leave to remain in the UK regarding their NHS debt. Regrettably, the policy that permits their detention was not published and, as a result, did not undergo any scrutiny.

 

There was great anticipation for the decision in the case of R (oao MXK and others) v Secretary of State for the Home Department (SSHD) on 26 May 2023. This case saw the Court make a judgement as to whether the unpublished policy of the SSHD regarding the use of examination and detention powers outlined in Schedule 2 of the Immigration Act 1971 (IA 1971) was deemed lawful.

 

R (oao MXK and others) v Secretary of State for the Home Department (SSHD)

 

This case concerned the legality of numerous examples of the detention of individuals re-entering the UK due to NHS debt. During the hearing, a large number of grounds and arguments was presented before the court held that MXK, SXB and their children were held by officers without justification and that the policy was unlawful.

 

The court found that there was no compelling reason for non-publication of the relevant policy. The Home Secretary was in breach of her duty under section 149 of the Equality Act 2010 (EqA 2010) to have ‘due regard’ for the need to eliminate discrimination. There was a clear absence of any evidence about consideration of whether such practice could be justified, in particular, given its disproportionate impact on women.

 

 

The court held the following in relation to some of the arguments presented by claimants:

 

• the policy document failed to inform the Border Force staff that the only basis for cancelling leave in connection with an NHS debt is where the person has made false representations or failed to disclose relevant facts on a previous application for leave.
• there was no evidence of any individual being asked questions relevant to whether they have made false representations or failed to disclose relevant facts in previous applications for leave.
• there was no evidence that Border Force staff were aware that the only lawful purpose for examination in such cases is to determine grounds for cancellation, or that examinations were directed towards that purpose.
• although the claimants were initially lawfully detained, their detention became unlawful as it was then conducted for a purpose not specified in IA 1971, Sch 2, paras 2 or 2A.
• the policy was misleading as it failed to specify the sole purposes for examining and detaining a person with limited leave in relation to an NHS debt, creating the impression of broader permitted purposes.
• The policy being unpublished further contributes to its unlawfulness.
• there was no evidence to show that the Home Secretary or any official had ever considered the equality impacts of using examination and detention powers outlined in IA 1971, Schedule 2.

 

The above is a summary of the court’s judgement on some of the many grounds presented. The above means that individuals subject to a warning marker due to NHS debt may undergo a border stop but should not be detained or prevented from re-entering the UK when possessing a valid grant of leave. It is crucial to note that NHS debt alone is not a sufficient reason to prevent an individual’s re-entry to the UK.

 

The policy has now been withdrawn and reportedly rewritten. However, throughout the entirety of the case, the Secretary of State did not concede the policy (or any future policies) should have been published to avoid harmful and disruptive errors resulting from a lack of oversight and scrutiny.

 

Our comments

 

The findings in R (oao MXK and others) v SSHD shows that the Home Secretary’s unpublished policy and practice on the use of the examination and detention powers in Schedule 2 to the Immigration Act 1971 in relation to those with limited leave to remain with outstanding NHS debts is unlawful.

 

The judgment provides guidance on the grounds for cancelling leave in connection with an NHS debt and clarifies that any examination in relation to NHS debt must be directed towards establishing such grounds.  once the claimants have shown that they were detained, it is for the Home Secretary to show that there was lawful justification for the detention.

 

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Following on from our article in April where we discussed whether the Home Office have recently become more open to visitor visa applications made from Fujian province in China, we have been successful in another case from the region.

 

You can read the previous article here.

 

Our clients were Chinese nationals living in Fujian who wished to visit their son and grandchildren in the UK who they had not seen for several years. The husband worked as a freelance carpenter who was now retired and his wife did not work.

 

Our clients had savings which they received due to the demolition of their house. However, they were unable to provide evidence of where they received this money from. They were unable to write their travel plans once in the UK and needed assistance with this.

 

Previously, these applications were typically refused by the Home Office. The Home Office generally believed all those that apply would overstay in the UK once they are here and had no intention to comply with their visa.

 

How did we ensure a successful application?

 

Our application was successful due to us showing the following:

 

1. We showed that our clients were genuine visitors. Although not typical practice, we drafted the clients travel plan in English and submitted this to the Home Office.

 

2. The evidence proving the relationship between our clients and son.

 

3. We showed that our clients were receiving a pension in China and that they owned a house, and therefore giving them every reason to return to China. We provided a house certificate from the local council to evidence this.

 

4. We showed that our clients’ son could accommodate and financially support our clients for the full duration of the trip. We did this by provided bank statements and payslips.

 

5. Evidence of ties in China. We obtained a fully translated copy of their Hukou document.

 

The application took just three weeks to process after being submitted, and we are pleased that our clients will now be spending the UK summer months with their son and his family.

 

For further details on visit visas please see our useful guide which can be found here.

 

Should you wish to bring your family to the UK for a visit or wish to visit the UK for business purposes then please do not hesitate to contact us! We would be delighted to help you.

 

 

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A skilled worker visa allows a person to come to the UK and work for an employer. The visa also allows a skilled worker to bring their dependents to the UK with them.

 

A skilled worker visa can be issued for up to 5 years. After 5 years of holding a skilled worker visa, it is possible to apply for indefinite leave to remain which means that you can permanently stay in the UK without restrictions.

 

The Daily Mail has reported that the Home Office may be considering introducing changes to the settlement route. They have reported that the Home Office are considering changing the requirement by extending the criteria for continued residence from 5 years to 8 years before being granted indefinite leave to remain.

 

The Daily Mail reports that the reasons for this is to bring the UK’s settlement requirements closer to other countries.

 

Other purported changes include ensuring applicants applying for indefinite leave to remain must be conviction-free for 10 years, removing the exemption of over 65’s taking a Life in the UK test, and providing an English language qualification at the B1 level.

 

Our comments

 

The above has not been reported by the Home Office and therefore we believe it is a speculative article by the Daily Mail. If the Home Office were to introduce such changes, we believe it would undoubtedly lead to the UK being unattractive to many who wish to pursue a career abroad. At a time when the UK is teetering on the brink of recession, it is not in the interest of the UK government to add such restrictive measures to the skilled worker visa.

 

Presently, the 5-year settlement route is an attractive option for people coming from overseas. Any changes may lead to a sharp decline in applicants should the Home Office introduce such measures.

 

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