The office talk last week was about the case of Kishver (Pakistan) v Home Secretary. This case involves a visitor appealing against a decision to refuse further leave to remain in the UK and demonstrates the ability of the Home Office to drag out making decisions over a period of years.

Ms Kishver, a Pakistani national, entered the UK on 12 September 2004 on a visit visa valid until 1 March 2005. On 24 January 2005 she submitted an application for further leave to remain and on 11 March 2005 submitted a further application.

The Home Office decision refusing the application was made on 19 March 2009 and this stated that there was no right of appeal. This did not stop the Ms Kishver lodging a notice of appeal and at the hearing on 8 October 2009 the appeal was dismissed which led to the appeal being heard in the Upper Tribunal.

The appeal had to resolve two matters. First was whether Ms Kishver actually had a right of appeal and second how the Secretary of State had treated the application.

Examination of the facts established that Ms Kishver’s initial application was submitted on the incorrect form and under legislation in place at the time the Secretary of State could have invoked procedure to invalidate the application by notifying Ms Kishver of the error in her application. This was not done and the Immigration Judge made it clear that in these circumstances it was open for the Secretary of State to treat the application as valid. Further, although the refusal letter made clear the position that the January 2005 application was invalid, subsequent actions of the Secretary of State had been reliant on the application being validly made. He states:

It was not open to the Secretary of State to ‘concede’ the right of appeal.  What the Secretary of State has done at various stages in this litigation is to treat the application as a valid application.  That was itself a valid executive decision by the Secretary of State or an officer of hers and we think it would be entirely inappropriate for that decision now to be reversed.

We therefore decide that it is not open to the Secretary of State to withdraw the decision, effectively made long ago, that the application of 21 January 2005 was a valid application.

Having established that there was a valid right of appeal the Immigration Judge turned to the second issue of how the application had been treated by the Immigration Judge. As the application was submitted while Ms Kishver had valid leave the Secretary of State was obliged to consider the question of her being removed from the UK when refusing the application and by failing to do so the decision was not in accordance with the law. Accordingly the appeal was allowed with the direction that the Secretary of State would now need “to remake all relevant decision in this case”.

The European Court of Human Rights (ECHR) in Strasbourg witnessed a rare occurrence this week, where an applicant who won his appeal against their state, and whom was dissatisfied with the subsequent actions of the state, returned to Strasbourg and won a further appeal.

This landmark decision demonstrates the importance placed upon Article 8 of the European Convention of Human Rights, which in turn prompts member states to carefully consider those applying for spouse visas and visas for family dependents.

This particular case involved Emre, a Turkish national residing in Switzerland since the age of six. He decided to rack up a few convictions for a range of offences when he hit his late teens and continued to do so until he was an adult. A few assaults and robberies later, the Swiss courts decided to cart him back to Turkey indefinitely. He also was banned on re-entry, so he essentially could never come back to Switzerland.

This prompted Emre to lodge a complaint to the ECHR, and cited Article 8 of the European Convention of Human Rights: the right to a private and family life. The court found that a fair balance had not been struck in enforcing an indefinite ban with respect to Emre’s human rights. Accordingly, the Swiss authorities reconsidered its decision, determining that an indefinite ban was indeed too long, and that a ten year ban would be a better alternative. Emre disagreed. He went back to Strasbourg (where the European Court of Human Rights is situated), and argued that this was a fresh violation of his Article 8 rights, and, in conjunction, that the Swiss authorities had violated Article 46 of the European Convention on Human Rights in failing to comply with the ECHR’s previous judgement. The ECHR, once again, found force in Emre’s arguments, determining that the Swiss court had failed to fully apply the considerations of the ECHR in its first judgement, and that, in any event, a 10 year ban remained disproportionate in relation to Emre’s Article 8 rights.

The results of this second appeal make it a landmark case because not only has an attempt to appeal a second time rarely happened, but, in doing so, Emre actually won. Strasbourg decided that the ten year ban was not the better alternative to an indefinite ban, and that this was not the type of reconsideration that was suggested in the first judgement. What the first judgement had in mind was an annulment of the ban completely. Even if there was a ban, it should have been shorter. Ten years was considered to be too large a chunk of a person’s life to fetter the individual’s private and family rights.

The controversy surrounds Article 46, which does give member states the liberty to decide how they interpret the Court’s judgements. This is especially so in situations like these where the first appeal judgement did not give a specific suggestion and instead directed the Swiss courts to reconsider. The Swiss believed the 10 year ban to be sufficient, but the courts in Strasbourg disagreed. This is an interesting, but rare case. What it does demonstrate, however, is the way that the violation of Article 8 is not taken lightly by the ECHR. This case may hit a nerve with Home Secretary Theresa May who is passionate about deporting convicted immigrants back to their own countries. Article 8 has been the bane of her wishes to do so, so it is interesting to see the European courts strike down the Swiss courts in an attempt to reassert the importance of the right to a private and family life.

The controversial Quila case (R (on the application of Quila and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant); R (on the application of Bibi and another) (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2011] UKSC 45) was resolved this morning when the Supreme Court dismissed the Home Office’s appeal against the Court of Appeal judgement. The Home Office hoped they would be able to increase the spouse visa age from 18 to 21 but both the Court of Appeal and the Supreme Court decided against this. The increase in the age was an attempt to help reduce forced marriages but the Supreme Court believed this to be a breach of human rights by invoking Article 8 of the European Convention of Human Rights.

The case stems from two cases; Mr Diego Quila and Shakira Bibi. Mr Quila married a British citizen.  He himself is a Chilean national. When he applied for a spouse visa at the age of 18, the age restriction to 21 had not been enforced so the rule was still 18 for both sponsor and their spouse, and Mr Quila’s wife (the sponsor) was only 17 at the time. By the time his wife had turned 18, the age restriction had been increased to 21 and the Home Office rejected the application for the spouse visa. Ms Bibi, on the other hand, is a Pakistani national and hoped to be with her British husband, Mohammed in the UK. Their application was rejected on the grounds that they were both under 21.

Both Mr Quila and Ms Bibi successfully appealed at the Court of Appeal, and the Home Office appealed this decision and were today rejected by the Supreme Court. The invocation of Article 8 will no doubt hit a nerve with Theresa May, who has been a keen advocator of replacing the Human Rights Act, which enshrines Article 8, with a British Bill of Rights. The Article protects the right to family life, which has been a nuisance to the government’s plans to cut immigration. This is, however, good news for those that hope to bring their spouse to the UK. The government’s logic in increasing the age requirement was due to most forced marriages occuring to those under the age of 18. This logic was considered to be understandable by the Supreme Court, but considered the age requirement increase too strong a rule that was not specific enough to targeting forced marriages, and affected the right to family life for many other couples. Perhaps the Home Office should consider other options to achieve this aim.

Student visas. Spouse and partner visas. Family visas. If you are planning to apply for any of these, keep on reading. The Conservative Party has plans for you. Our favourite minister, Damian Green, powdered his face, cleared his throat and took the centre stage on the third day of the eventful Conservative Party conference. His speech on immigration reiterated a lot of potential policy that we already know about but a couple of new plans were unveiled. I say plans, mainly because when Damian says he’s going to do it, consider it done.

He started off the speech with the student visa route of immigration, mentioning that he will stop students from coming and staying after their study has been completed; “no more hanging around for years” he says, “no longer will we tolerate the abuse of student visas” he says. And you can bet your bottom dollar they won’t. He also proposed that colleges need to make their own checks to their students. This may create a bit of controversy with colleges and universities as they will understandably think that although the government feels a sense of urgency to cut migration “by the tens of thousands” they are educational institutions and not the UKBA.

Mr Green then went onto talk about the family visa. He mentioned the usual plan – to be tougher on sham and forced marriages, introduce language tests for spouses, require sponsors to demonstrate that they can support their spouses and, finally, asserted that the two year rule to demonstrate a genuine relationship will most certainly be increased to five years.

As if that tough talk wasn’t tough enough, Damian then mentions that there will be a “Border Police Command” to protect the UK’s borders and stop illegal immigration. This is (I assume) the UK government’s new police force that deals solely with making sure net migration is reduced. Or they could just be Damian’s bodyguards (see photo). Additionally, he lightly mentions “I was in Nigeria last week” (no biggie) and he has made a new deal with the Nigerian government to extradite Nigerian prisoners from the UK to Nigerian prisons to serve their sentences there.

Home Secretary Theresa May hopped onto the stage as Damian hopped off, and delivered an even tougher message about the Human Rights Act, declaring that “it needs to go”. She gave a few examples of the abuse of Article 8 and how one immigrant used his cat to justify his stay in the UK, which the media, in its relentless lust to annex ‘gate’ on to any parliamentary controversy, saw the creation of ‘Catgate’. The reference to the Watergate scandal comes after it was alleged that May had actually been misinformed with her seemingly unlikely example. Ken Clarke, Justice Secretary and fellow Conservative Party member, stirred-up discontent in the Tory ranks in disagreeing, waging that his colleague had proffered an incorrect example as the cat was only mentioned once in the case. Either way, Theresa May really does not like Article 8, nor the Human Rights Act. She ended the speech with a veiled retort to Nick Clegg, saying that no matter what, the Act will be scrapped. Clegg recently emphasised that the Human Rights Act “is here to stay”. Let the games…begin!

He does not have British citizenship, nor does he have entry clearance, in fact he is an illegal immigrant (or as the UKBA’s US counterpart calls it, an illegal alien…oh, the irony!). Is it a non-EEA citizen? Is it a Russian spy? No, it’s Doctor Who.

He told me not to show off but I’m the Doctor’s new companion (and this time it’s definitely not platonic) and we’re filling out his visa application at the UKBA. I thought I’d update you guys before we get back on the TARDIS and go to the 17th century. Why? To make sure the Ottoman Empire doesn’t stop at Vienna.

Now, the UKBA guidelines seem a bit too…conventional for the Doctor, and we tried to look at every angle we could apply. I mean, he has always had a soft spot for the UK, what with his love of tweed and bowties so we have to make sure the application is fruitful. In the end we settled on the three likeliest routes that would succeed. These were the results:

• Asylum Seeker: according to the 1951 United Nations Convention Relating to the Status of Refugees, you cannot go back to your home country for fear of persecution. So what happens when your home country, nay, home planet is destroyed but you are still fearing persecution? Gallifrey no longer exists, and the Doctor is the last of his kind. This means that there are Daleks and Cybermen out hunting for him. I think we need clarity on this. Damien- get to work please.
• Points Based System-Tier 1 Exceptional Talent: this visa if for those who are internationally recognised superstars and world leaders in their talents especially in the fields of science and the arts. Now I don’t know about arts, but the Doctor has a doctorate in medicine and cheese making. Oh, sorry, did I forget he’s a Time Lord? I think travelling through space and time is exceptional enough. Forget passing the basic level of English, he can also speak over 5 billion languages, including baby. As for internationally recognised, how about recognised throughout the universe? He knew Shakespeare, Churchill, Van Gogh, Sinatra and Newton on a personal level too! Seeking a sound reference should prove a cinch. Also, does a knighthood count? If the UKBA doesn’t accept his application, we can put it down to the UKBA’s exceptional talent of administrative errors.
• Spouse Visa: perhaps he could marry his companions and apply through a spouse visa? The only problem with this is that most of his companionships have not been that romantic and the UKBA is cracking down on sham marriages so it would be necessary that he is in a genuinely loving relationship, has been with them for 2 years and has evidence to prove this. If he asks for my hand in marriage I will of course say yes, we can take a photo in front of the Eiffel Tower in the year 1926 and I think that should be a sufficient enough time for the UKBA to know we’ve been together for a while? You call it ‘misleading’, we call it time travelling.

There are a few things that might affect his application though…these are:

• Housing- the TARDIS seems like a police telephone box from England. It does look cramped and of course, any UKBA official would reject his application from the outside but if they just step inside, obviously, they’d know it’s bigger on the inside and more than acceptable conditions of housing.
• Regeneration- as we all know, the Doctor regenerates every now and again and it makes him look different. Would he need a new visa application each time?
• Dependent- luckily most of his dependents are, or have been British citizens but what happens when his exceptional talent visa runs out? Perhaps switch routes and apply for a spouse visa by marrying a British citizen? See above.
• No recourse to public funds- I don’t know where the Doctor gets his money. Does he even pay for anything? The UKBA will need proof that he will not need to depend on public funds and I don’t know how we’re going to show it. He doesn’t even have a bank account!
• Leaving the UK for more than 6 months- If he, by some miracle, gets Leave to Remain then he can’t leave the UK for more than 2 years and come back as his Leave to Remain will be invalid. We all know he leaves the country, world, even the galaxy for centuries at a time so it might be tricky. I guess if no one notices it should be fine?
• No previous breach of the immigration rules- okay so the Doctor has ‘apparated’ (a Harry Potter reference: fear not, the bespectacled one is in our sights) on to our shores on numerous occasions without UKBA permission and proceeded to work, but he did so for reasons of safeguarding national security and quality family television, so perhaps Theresa May can cut him some slack in this regard.

I’ll submit the application forms over the weekend and hope that the Home Office is in a good mood. In the meantime the Doctor would like to say that he thinks the UKBA and the Home Office have no idea that 300 different types of aliens (and not the good kind like him) have been getting past the border and creating havoc and they have no idea thanks to his guileful ways. He also has a suspicion that Damien Green is an undercover Dalek but he isn’t sure. Probably has to inspect him with the screwdriver. Until then, we’re off to the Sultan’s harem to have a royal knees-up. It’s Friday night in 1692 Constantinople after all.

I know it’s all very apocalyptic but can we all just look away from the economic collapse of the European Union and focus on all the excellent legal work that they’re doing? Yes? Great! The European Courts of Justice passed a judgment way back when in March this year, (Zambrano v ONEm Case C-34/0) in which a Colombian couple were granted Belgian citizenship as their children, who were Belgian nationals, had no independent means of support. The Colombian couple were given the right to reside and work in Belgium as they were the sole carers of the children.

This ground breaking judgement took the UKBA some time to react to, and although nobody held their breath on a positive response, the reaction has somewhat surprised many. The reluctance in the tone of the announcement is quite obvious, but essentially the UKBA interpreted the Zambrano judgement to mean that it applies to third country nationals who are depended on by British national children, and also third country nationals who are depended on by British national adults. The UKBA has also pointed out that they do not mean financial dependency. Those who fit this broad description can apply for a Certificate of Application effective immediately, and have their applications accepted or rejected once clear regulations have been put into motion. If there are those that are facing removal and their application is applicable to the Zambrano case then they can have their removal suspended until the regulations come into effect.

I had a chat with Gemma Hyslop, one of our immigration lawyers at Mulberry Finch, about this recent announcement and she agreed that although this is encouraging, it still raises some concerns: “given the UKBA’s recent track record, this is quite a generous judgement. There will however no doubt be further wrangling where the UKBA will limit their obligations so it will be interesting to see the regulations when they come out”.

The details in today’s announcement were as broad as can be. This could mean that perhaps it will stay broad in order to allow the Courts as much power in the decision making process as possible. The definition of “dependency” will be the biggest problem- how will it be interpreted? As well as this, how does this announcement relate to the government’s plans to limit Article 8 of the European Convention of Human Rights? After all, the right to family life will somehow cross over with the Zambrano case. Exciting times ahead, and although we at MF are not expecting rainbows and fireworks from the UKBA once these regulations are unveiled, we do appreciate that this must have been a huge sacrifice for them. Well done guys, really, well done.

“Please note that the above post contains a summary of a case report made publically available online through official reporting sources. Accordingly, the summary does not constitute an opinion of Mulberry Finch, and  serves only to provide the relevant details from the case in question.”

A recent case saw the Court of Appeal stating that Article 8 of the UN Convention doesn’t need to be relied upon to the extent that it is, as the Immigration Rules trump the Convention articles. If there is ever a conflict with the Immigration Rules and Article 8, the Court decided that the Rules take precedence.

The case that resulted in this reiteration saw a man seeking indefinite leave to remain to stay with his son who is settled in the UK. He was not granted ILR as he failed to meet paragraph 319 of the Immigration Rules. He appealed this using Article 8 and it was rejected on the grounds that the Rules clearly stated that his application was unsuccessful and Article 8 was irrelevant. This was a swift decision and demonstrates the increased intolerance for Article 8 claims at the Court of Appeal or Upper Tribunals.

It will be interesting to see how far this attempt at downplaying the UNHCR goes, but for now the small changes seem to signal that the battle has only just begun.