Chapti & Ors, R (on the application of) v Secretary of State for the Home Department & Ors (Rev 1) [2011]

16th December 2011

English requirement for spouses

Paragraph 281 of the Immigration Rules - The courts found that the requirement for a spouse to meeet the english language test amounted to a legitimate and proportionate interference for the purpose of Art 8(2) ECHR. The exemptions to the rule based on nationality are not direct discrimination based on nationality for the purpose of Art 14 when read with Art 8. Nor does it amount to contravention of the right to marry protected by Art 12 ECHR.

Ahmed 10 year ban case (general grounds of refusal – material non-disclosure) Pakistan [2011] UKUT 351 (IAC)

Paragraph 320(7A) of the Immigration Rules states that there will be up to a ten year ban imposed on your return to the UK if wrong or incorrect representations were made, or false documents had been submitted whether or not the applicant was aware of it.

This rule has been drafted so that applicants face a lengthy ban. In many instances most will clearly see past a dishonest act as opposed to an act borne out of error or omission for e.g if an application is submitted with a document that can not be verified but is believed to be bona fide fall into this category. If any party like an employer has inserted in correct dates an applicant may find themselve facing this lengthy ban. If a prents ic coming to visit thier child in the UK and omits a refusal will fall within thiis lengthy ban.

In conclusion, the courts have confirmed that there must be an element of dishonesty, (similar to the suggestion of the Court of Appeal in AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773) which makes the application result much more subjective. This is an example of the common law assisting in the fair application of a poorly drafted rule.

Bhanushali (re-using same CAS: new rules) India [2011] UKUT 411 (IAC) (05 October 2011)

is Upper Tribunal case was heard on 9th September 2011 at Field House. The facts of the case are as follows:

The claimant is an Indian national who arrived in the UK on 15th July 2009 as a student. His visa was valid until 19thj February 2011. Before the expiry of his leave, the claimant applied for a variation of leave to remain under the Tier 4 general student category of the points based system. His application was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD) on 4th April 2011. The claimant appealed against the decision to the First Tier Tribunal where his appeal was allowed. The SSHD applied for permission to appeal which was granted in July 2011.

Reasons for refusal by the SSHD

The SSHD refused the claimants application on the basis that the CAS Letter (confirmation of acceptance for studies) was not valid and therefore, he had not been awarded the 30 points under Appendix A of the Immigration Rules as required. The SSHD argued that the CAS reference number had already been used with the claimant's previous application and a new CAS was required for each fresh application submitted. Reference was made to Paragraph 245ZX of the Immigration Rules which stipulates that if the requirements are not met under the rule, then the application will be refused. The requirements are that the applicant has a minimum of 30 points under paragraphs 113 to 120 of Appendix A. The requirements consist of attributes which includes the CAS letter for which a total of 30 points can be awarded. The criterion as to whether the CAS letter is valid is also considered in the rules.

First Tier Tribunal determination

The claimant gave evidence to the immigration judge that he had been informed by his college that he could use the same CAS reference with his new application and that he followed that advice. He subsequently did try to obtain a new CAS but could not as the college did not have any left on their system. An explanation was sent to the SSHD in this respect. The claimant was on his ACCA course at the time. The immigration judge appeared to accept that the claimant could not meet the requirements as he did not have a fresh CAS number however; she allowed the appeal on the basis that the claimant was a genuine student on a genuine course. She made reference to the judgement in the case of Pankina v SSHD [2010] EWCA Civ 719; [2010] Imm AR 689 interpreting the case to mean that she was free to make a any decision that would in her view, achieve a fair result. The immigration judge should have considered the Rules at the date of the decision in order to decide whether the claimant met the requirements. Her approach was not consistent with the judgement in Pankina and therefore, there was a clear error of law in her decision.

Conclusion

The argument for the claimant was that his CAS had been issued on 16th December 2010 and was not more than 6 months before the application was made in compliance with the rules. There was no suggestion throughout the case that the other requirements of the paragraph were not satisfied. A Statement of Changes in the Immigration Rules (HC 908) was laid before Parliament on 31st March 2011 however; these changes took effect only from 21st April 2011. It was held that any application made before this date should be considered with rules in force prior to 20 April 2011. The official who considered the claimants case on 4th April 2011, made reference to HC 908 which was not applicable to the claimant. That was an incorrect application of HC 908 and therefore, the initial decision was set aside as it contained an error of law (suggesting that the claimant did not qualify under the Immigration Rules but allowing the appeal on the basis that it would be unfair to refuse it). The Upper Tribunal re made the decision by allowing the claimants appeal under the Immigration Rules.

They concluded as follows:

(1) In the fast-changing world of the points-based system, it is important (a) to ascertain the precise basis on which an application has been refused; (b) to identify the relevant provisions of the Immigration Rules; and (c) to check the relevant commencement provisions.

(2) Thus, where an applicant had been refused for not having a valid Confirmation of Acceptance for Studies, because the reference number for that Confirmation had already been used, the Immigration Judge should have ascertained what the Immigration Rules required in that regard, in the circumstances of the applicant's case. Had she done so, she would have seen that the reason for the refusal was unsound, having regard to the commencement provisions of HC 908.

(3) Pankina and others [2010] EWCA Civ 719; [2010] Imm AR 689 is not authority for any general proposition that the requirements of the Immigration Rules are to be disregarded, merely because an Immigration Judge considers that their application to a particular person would be "unfair".

T (entry clearance - s.55 BCIA 2009) Jamaica [2011] UKUT 483

Section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to children who are outside the United Kingdom. Where there are reasons to believe that a child's welfare may be jeopardised by exclusion from the United Kingdom.

Article 8 ECHR, "exclusion undesirable" should all be taken into account by the Entry Clearance Officer at first instance and the judge on appeal.

Wusa (para 159A(ii): Connection) Nigeria [2011] UKUT 482

The requirement of a connection between employer and employee in paragraph 159A(ii) of the Immigration Rules, when it applies, is a requirement of a connection going beyond that of employment.