25 responses

1. The immigration status of a witness is a legitimate question and should be asked of *all* witnesses (to prevent racial profiling). Indeed, we routinely include it in the witness statement. We also tell witnesses to bring their identity documents to court- sometimes copies are already in the bundle.

   As for whether it is “unduly harsh” to expect British Citizen children to relocate to Jamaica, I suspect the Home Office are going to find it is- once the issue is before a court.

   1. I don’t see why a person’s immigration status is relevant in most cases. Why would their status affect their answers to questions? A witness wouldn’t be asked in criminal or other civil proceedings. Judges (and immigration lawyers) only ask because we are used to intruding into people’s lives to that degree and some have come to associate immigration status with truthfulness or credibility.

   2. Would you ask a witness in criminal proceedings if they have a criminal record?
      Might it be a relevant question in a personal injury case to ask if the witness has ever had a similar accident?
      Etc, etc

   3. Er, no, one would not.

   4. I have seen witnesses in criminal proceedings cross-examined about their criminal record. I suppose you would say it should not be done routinely- it depends on the witness.

      In immigration matters the witness is quite often the family member of the appellant who is sponsoring the application. Their immigration status is of direct relevance to the application. Why would it not be a legitimate question?

2. Thank you very much Colin for your brilliant reply.

   1. Immigration Judges ask many irrelevant questions: “what is your immigration status?” is really quite a benign irrelevancy, if it is irrelevant (and often it is of direct relevance). I think this falls into the category of things that we can’t change (Serenity Prayer) and therefore should simply prepare for.

3. This issue is strictly ‘ethnicist’ rather than racist. Nevertheless its significance is if anything even more alarming. What thome Home office is now arguing is that if someone is of non-indigenous cultural descent, and if they display any on going degree of alternative ethnicity, including having parents of non-European ethncity, then their rights of abode can be legitimately over-ridden, even if they are UK citizens.

   One can see why: they have failed to fulfil their duty to engage in the implementation of Government’s policy community cohesion.

   But is that a statutory offence which can over-ride citizenship?

   UKIP may think so: but is this now the policy of HMG?

   1. I think it is more likely that it is simply a question of individual caseworkers struggling with the “Unduly harsh” requirement, which makes no sense at all (since it involves more than insurmountable obstacles). The caseworker could have argued that it would not be unduly harsh to separate these British citizen children from the applicant. Still contestable, but more likely to succeed in court than the ridiculous proposition put forward.

      As for the second example, the test is whether or not it would be reasonable to require the family to live together outside the UK. Whether or not the applicant’s family would be able to integrate in the proposed country for the family to live is directly relevant to that test, and of course, if there was evidence that suggested they would not be able to integrate, the applicant’s representative would argue it: so why be surprised when the Home Office argues evidence that (however superficially) suggests they would be able to integrate?

4. I do not see it as a negative question. Someone who has a visa (of almost any sort) has an established history of compliance with and respect for Immigration control, and the Home Office can be bound by their previous implicit acceptance of the person’s credibility for the purposes of Immigration.

   1. I suppose there is a difference between the information being provided in a witness statement because it is relevant to the case and the IJ simply randomly asking (say) an expert witness because they happen to look “foreign”.

   2. I respectfully still disagree. I don’t see immigration status as being intrinsically relevant to truthfulness or value as a witness. And of course many people with status will have breached immigration control at some point (it is all too easy), so having status does not even intrinsically suggest reliability. It is a question that is simply asked because it can be asked and because the person who asks associates reliability with immigration status and the reverse.

   3. Colin, are you saying that the immigration status of a witness is *never* relevant?

   4. No. It might be relevant where the person is sponsoring and their status is therefore one of the issues to determine whether the appeal can succeed under the Immigration Rules. It may be relevant to establishing the nationality of a child or the human rights balancing exercise (more weight is given to the rights of British citizens). It should not routinely be asked as a matter of course though and should not be considered relevant to establishing a person’s “right” to give evidence that is considered credible. Witnesses find it offensive, and rightly so in my view.

   5. Ah, yes I agree with that… and I was thinking of such witnesses when I said it should be asked of “all witnesses” (that is, the judge shouldn’t assume, e.g. that the sponsor is British just because they look of Anglo-Saxon ethnicity). Immigration status is not a credibility litmus test.

5. I have to agree with Colin on this.

   I have found increasingly offensive language being used. For example one client married to a British citizen was told by a Judge in a determination that his wife could join him in Afghanistan because she was of Pakistani ethnic origin and would not therefore stand out in Afghanistan.

   In a bail case the PO said it was inappropriate for an 8 year old daughter to share a bedroom with her father and mother, as a temporary measure while alternative accommodation was arranged for the eldest daughter and her husband. The PO said that such things did not happen in the UK.

   The first incident resulted in grounds to the Upper Tribunal who are distinctly uninterested in the complaint.

   The nature of the ‘immigration’ debate has become so poisonous now that such submissions are now common place as the system becomes more tolerant of overt racism.

6. Indeed, I don’t quarrel with the theory that there is endemic racism and xenophobia in the system or that immigration judges and home office officials have inappropriate attitudes. I merely think that asking a witness “what is your immigration status?” can be a legitimate line of enquiry in certain circumstances, and that providing that information in advance is a reasonable thing for appellant’s representatives to do.

7. But assuming that a British citizen who came to the UK and naturalised as a child should go ‘home’ to a country they haven’t lived in for decades is outrageous.

8. It’s important because it goes beyond immigration and smacks of the idea that there are degrees of Britishness that are directly tied to ethnicity and race. It’s not just naturalised British people who are told to “go home”, after all…

9. Is this a new thing? As far as I can recall decision letters have always engaged with the reasonableness of an applcant’s family relocating to the applicant’s home country.

   It’s part of the assessment required under appendix FM & article 8.

   It’s not tremendously well written but the fact that a spouse has familial and/or cultural ties to the proposed country of removal has a bearing on the reasonableness of family life continuing abroad.

   I’d be surprised if there wasn’t also a paragraph saying that as a British citizen it was up to them whether they actually went or not.

   I’m not sure that this really represents explicitly racist reasoning.

   1. It would be quite an achievement if the reasoning were actually explicitly racist. The facts as described are not conclusive. People of Anglo-Saxon ethnic origin can be “born in Karachi” after all. And the immigration officials also apply the immigration rules to Australians, as the right-wing press sometimes find out to their horror.

10. I also believe it is not necessary in each case. The other day, the IJ at YH asked my Ghanian British, how he became British, and the witness said, ” Naturalisation”, she then went on to ask him, how he qualified for Naturalisation?? Surely, this was a visit appeal case, and the sponsor had his British passport in court, which was not challenged by the HOPO, why did the IJ go on and on about his citizenship?? In my submission, I told IJ that she had made the sponsor feel ” less British”, by referring him several times to his original status!!!

    1. That’s a particularly appalling example – it has no relevance and is simple intrusion.

11. if that is the case is there hope for the rest of us