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Cases arriving on luggage carousel
Some cases… By Robert S. Donovan

The legal luggage carousel of the tribunal’s reporting committee has deposited a large batch of new cases in the arrivals hall of BAILII.

Some of these cases are interesting, others perhaps a little less so. The more interesting include a couple of cases on the availability of funds in Tier 4 of the Points Based System, the first domestic judicial comment on Zambrano, from El Presidente himself (full post possibly to follow on that case), an interesting analysis of the use of savings to ‘top up’ income for the purposes of maintenance and accommodation and actual and perceived lesbians in Jamaica. I’ll list them in reverse order (earliest first) with BAILII links and official headnotes copied into this post.

Ejifugha (Tier 4 – funds – credit) Nigeria [2011] UKUT 00244 (IAC)

The requirement in paragraph 11 of Appendix C of the Statement of Changes in the Immigration Rules HC 395 (as amended) is that the funds be “available”. It is unhelpful to try to paraphrase that. 

Funds required by paragraph 11 of Appendix C can take the form of a credit card limit.

Rana (PBS – Appendix C – overdraft facility) India [2011] UKUT 00245 (IAC)

Proof of the requisite funds for ‘Maintenance’ under the Points Based System is retrospective.  For example, a student must show that the funds were available for a continuous period of 28 days before the application for entry clearance or leave to remain was made.  If, throughout that period, an overdraft facility could have been used to withdraw the requisite funds, there is nothing in principle or in the Rules to prevent that from demonstrating that the requisite funds were available. PO (points based scheme: maintenance: loans) Nigeria [2009] UKAIT 47, which takes the opposite view, was decided pre-Pankina on the basis of the Policy Guidance.

Ali (s. 76 – “liable to deportation”) Pakistan [2011] UKUT 00250 (IAC)

The phrase “liable to deportation” in s 3(5) of the Immigration Act 1971 includes, in the case of a person within s 3(5)(a), the notion of the Secretary of State’s deeming deportation to be conducive to the public good.  The provision of s 32(4) of the UK Borders Act 2007, that a person subject to automatic deportation is a person whose deportation is conducive to the public good, is not identical.  Such a person is “liable to deportation” within the meaning of s3(5), so becoming a person whose leave may be revoked under s 76(1) of the Nationality, Immigration and Asylum Act 2002, only if the Secretary of State has deemed his deportation to be conducive to the public good.

Jahangara Begum and others (maintenance – savings) Bangladesh [2011] UKUT 00246 (IAC)

Where the likely income of a family falls below the level of adequacy as established in the case of KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065 the shortfall can be met where there are sufficient savings. The assessment of the appropriate level of savings is not an arbitrary calculation and the proper reference is to the length of the initial visa. If an appellant is able to meet the requirements of adequacy for the period of the initial visa, and there is no reason to believe that he will not be able to meet the maintenance requirements in the longer term, then he is entitled to entry clearance.

Khan and Tabassum (CCOL: Postgraduate certificates) Bangladesh [2011] UKUT 00249 (IAC)

(1)  Those who assert they were awarded postgraduate certificates in business management (and  IT) by Cambridge College of Learning, after completing relevant courses there, will have to surmount the important and obvious problem that, if such certificate courses had been run and examined by CCOL, and certificates awarded to successful candidates, the witnesses who gave evidence to the Tribunal in NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 and who were found credible, would have said so.  There was no credible evidence before the AIT in that case to suggest that any postgraduate courses in business management or IT were taught and examined by CCOL. It follows that, whilst the evidence in each case must be individually assessed, NA and Others is indicative of there being no such thing as a genuinely issued CCOL postgraduate certificate in those subjects and it is therefore necessary for a claimant seeking to rely on such a certificate to adduce cogent evidence in support.

(2)  For the correct way to approach the use of the determination in NA and Others, see paragraphs 32 to 40 of the Upper Tribunal’s determination in TR(CCOL cases) Pakistan [2011] UKUT 33 (IAC).

Omotunde (best interests – Zambrano applied – Razgar) Nigeria [2011] UKUT 00247 (IAC)

1. When applying the judgment of the Court of Justice of the European Union in Ruiz Zambrano (European citizenship) [2011] EUECJ Case C-34/09 OJ 2011 C130/2 and that of the Supreme Court in ZH (Tanzania) [2011] UKSC 4[2011] 2 WLR 148, in relation to the proposed administrative removal or deportation of one or both of his non-national parents, the welfare of a child, particularly a child who is a British citizen, is a primary consideration.

2. National courts must engage with the question whether removal of a particular parent will ‘deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’.

3. Where there are strong public interest reasons to expel a non-national parent, any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality. There is no substantial difference between the human rights based assessment of proportionality of any interference considered by Lady Hale in ZH (Tanzania) and the approach required by Community law.

4. In this particular context, the Article 8 assessment questions set out in Razgar [2004] UKHL 27 should be tailored as follows, placing the assessment of necessity where it most appropriately belongs in the final question dependent on the outcome of proportionality and a fair balance, rather than as part of the identification of the legitimate aim:

1.  Is there family life enjoyed between the appellant and a minor child that requires respect in the context of immigration decision making?

2.  Would deportation of the parent interfere with the enjoyment of that family life?

3.  Is such an interference in accordance with the law?

4.  Is such an interference in pursuit of a legitimate aim?

5.  Is deportation necessary, proportionate and a fair balance between the rights to respect for the family life of the appellant and the child and the particular public interest in question?

SW (lesbians – HJ and HT applied) Jamaica CG [2011] UKUT 00251 (IAC)

(1) Jamaica is a deeply homophobic society.  There is a high level of violence, and where a real risk of persecution or serious harm is established, the Jamaicans state offers lesbians no sufficiency of protection.

(2) Lesbianism (actual or perceived) brings a risk of violence, up to and including ‘corrective’ rape and murder. 

(3) Not all lesbians are at risk.  Those who are naturally discreet, have children and/or are willing to present a heterosexual narrative for family or societal reasons may live as discreet lesbians without persecutory risk, provided that they are not doing so out of fear.

(4) Single women with no male partner or children risk being perceived as lesbian, whether or not that is the case, unless they present a heterosexual narrative and behave with discretion. 

(5) Because the risks arise from perceived as well as actual lesbian sexual orientation, internal relocation does not enhance safety.  Newcomers in rural communities will be the subject of speculative conclusions, derived both by asking them questions and by observing their lifestyle and unless they can show a heterosexual narrative, they risk being identified as lesbians. Perceived lesbians also risk social exclusion (loss of employment or being driven from their homes).

(6) A manly appearance is a risk factor, as is rejection of suitors if a woman does not have a husband, boyfriend or child, or an obvious and credible explanation for their absence.   

(7) In general, younger women who are not yet settled may be at less risk; the risk increases with age.  Women are expected to become sexually active early and remain so into their sixties, unless there is an obvious reason why they do not currently have a partner, for example, recent widowhood.

(8) Members of the social elite may be better protected because they are able to live in gated communities where their activities are not the subject of public scrutiny. Social elite members are usually from known families, wealthy, lighter skinned and better educated; often they are high-ranking professional people.

Singini (para 319C – switching to dependant category) Malawi [2011] UKUT 00248 (IAC)

Where an application for entry clearance or leave to enter or remain in the United Kingdom is made before 3 March 2010 and has not been determined before that date, it will be decided in accordance with the Immigration Rules in force on 2 March 2010, rather than the Statement of Changes in Immigration Rules [HC 367] which came into operation on 3 March 2010.  Paragraph 319C(i) of the Immigration Rules, which came into operation on the latter date, is a freestanding subparagraph, divorced from but following upon subparagraph (h) and is to be construed accordingly. It follows that where the dates set out above apply, a person who was last granted leave to remain as a student will not be able to switch from the student category to that of a dependant of a student unless he is applying for leave as the dependant of a person who has been granted, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory under paragraph 245ZQ(b)(ii).

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8 Responses

  1. “3. Where there are strong public interest reasons to expel a non-national parent, any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality.”

    It will be interesting to see if the converse is true, ie. if – the right of residence for the parent is absolute where there are no public interest reasons.

    “2. National courts must engage with the question whether removal of a particular parent will ‘deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’.”

    I am struggling to think of an example, and am not sure where the judge is going with this. Following Zambrano, the UKBA should not be trying to deport parent(s) of British children, so what scenario is being suggested that “nation courts must engage” ?
    I would hope that its ONLY about parents “where there are strong public interest reasons”.

  2. (full post possibly to follow on that case)

    A full post on Zambrano and Omotunde (best interests – Zambrano applied – Razgar) Nigeria [2011] UKUT 00247(IAC) would indeed be interesting.

    Looking at paragpraphs 31 and 32, it would seem to me, though a layman, that the statement “We doubt whether there is a substantial difference between the human rights based assessment of proportionality of any interference considered by Lady Hale in ZH (Tanzania) and the approach required by Community law.” does not go far enough.

    Zambrano gives the foreign parents of a citizen a right of residence when the conditions (dependency and genuine enjoyment of the substance of the rights attaching to the status of EU citizen) are fulfilled. If those are fulfilled it is not a matter of proportionality but a right of residence. Therefore if those conditions are fulfilled then the tests of ZH (Tanzania) do not apply. In this particular case the appellant’s appeal was allowed anyway.

    The question is what tests apply where there is a public policy/public security interest in not granting. I suspect, this being a matter in which EU law is (now) involved that those would by analogy be the tests provided in directive 2004/38 so as to provide EU-wide consistency and to prevent member states effectively adding conditions to ECJ Zambrano referenced in national law and policy. But this is just a layman’s thought and legal opinion and any further cases would be of interest.

    1. Paragraph 32
      “The Court of Justice did not have to consider how Article 20 would be applied if there were strong public interest reasons to expel a non-national parent. We would conclude (subject to any further guidance from the CJEU or the Court of Appeal) that any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality”

      Does that mean, right of residence is absolute where there is no strong public interest reasons to expel a non-national parent. and also should that right of residence result to a discretionary leave in the UK? Discretion when there is a clear right?

    2. leonex4t5
      After reading the announcement that UKBA is considering the ECJ Zambrano & McCarthy cases, I’ve also been thinking through what would need to change.

      “Discretion when there is a clear right?” – I have had the same thought, along with whether the UKBA will deal under a new HC395 application, or an EU application, or the DLR route as it is the closet rule for the scenario but hits the above inconsistency. Obviously a refusal would have to carry a right of appeal as well, even if the parent has no leave to remain, another inconsistency that the DLR route has.

      “Does that mean, right of residence is absolute?” – I made the same point below. I kinda hoped people sometimes might read my comments :( .

      The fact we have the same thoughts on the matter should mean UKBA staff should agree as well. The thing I am struggling with is the period required before PR or ILR is granted. I would chicken out and say 5 years on the basis that it would be the same whichever policy comes out. However the “Rights of access to children” route under HC395 only has one year.

    3. Mr T, Zambrano can’t fall under immigration rule… and i am quite surprised that most people don’t see zambrano as an absolute right for parents. i refer to:
      Article 24 Charter Function of Right of European Union:
      The rights of the child
      1. Children shall have the right to such protection and care as is necessary for their well-being.
      They may express their views freely. Such views shall be taken into consideration on matters which
      concern them in accordance with their age and maturity.
      2. In all actions relating to children, whether taken by public authorities or private institutions, the
      child’s best interests must be a primary consideration.
      3. Every child shall have the right to maintain on a regular basis a personal relationship and direct
      contact with both his or her parents, unless that is contrary to his or her interests.

      in light of 3. member state cannot remove one parent(NonEU) and say the child can live with the other parent(EU) because clearly will undermine the substance of being EU, one of which is the about Article 24.

      so therefore the right can ONLY be limited to a strong public interest reason to deport.

    4. In light of 3, in Omotunde the judge was highly critical of the HOPOs argument of contact being by phone and e-mail. I can’t believe HOPOs were still using that argument.

      “Zambrano can’t fall under immigration rule.” – Any chance of your reasoning behind the statement. I hear UKBA is accepting EU applications under Zambrano, but presumably aren’t processing them yet (within 6 months limit).
      I thought Mutly’s last paragraph on the issue was good reasoning, but was not conclusive.

    5. i said that it can’t be under immigration rule because, there is a requirement for a valid leave before an applicant cant extend their leave in the uk under immigration rule. and just like mutly said, “to prevent member states effectively adding conditions to ECJ Zambrano referenced in national law and policy”. putting zambrano under the immigration rule will definately have conditions of public fund, valid leave at time of application etc.

  3. The question of “dependency” is also not defined. It would be hard to argue a lack of dependency where the applicant parent and child live together. The same would appear to apply where the child already has an established relationship with the applicant parent and they have regular contact. Then there’s the question of financial dependency where the applicant parent pays maintenance which may cease if they were to leave the country. For the right of residence to be absolute this issue also needs to be clarified and therefore it may require more court cases before applicants can know that with any certainty, at least if the HO adopts a restrictive definition to try to justify refusals which then need to be overturned on appeal.