In November 2016, the government withdrew the 500% increase in immigration tribunal fees. Refunds are being issued to those who paid the higher fees of £800.00 for an oral hearing and £490.00 for paper based hearings. Fees are now to be applied at the previous levels of £140.00 for an oral hearing and £80.00 for a paper based hearing.

CERTIFICATION OF NON-DEPORTATION CASES

In December 2016, the ‘Remove First Appeal Later’ procedure was extended to non-deportation cases. This means that appeals may only be brought from outside the UK and be challenged by way of Judicial Review. However, these cases must meet two criterias as follows:

• The applicant must have no existing leave at the time the human rights claim was submitted;
• The applicant does not rely on a relationship with a British national family member.

The certification applies to human rights claims that do not involve protection or asylum issues.

SECTION 3C LEAVE

The Secretary of State now has the power to cancel an applicant’s leave that has been extended by operation of law where an applicant appeals an immigration decision within the UK and appeal is accepted as an in-time appeal. This power is exercisable where an applicant uses deception in seeking Leave to Remain or has failed to comply with previous condition of leave.

RESIDENTIAL TENANCIES

It is now a criminal offence for a landlord to rent a property to someone disqualified from renting by virtue of their immigration status in the UK. There is also now a new power of eviction.

ILLEGAL WORKING

There are now restrictions for taxi drivers, illegal working closure notices and compliance orders which are currently in force.

PUBLIC SECTOR WORKERS

There is now a duty on public authorities to ensure public sector workers in a customer facing role in the UK have command of spoken English.

OVERSTAYERS

Effective 24 November 2016 the 28-day grace period for consideration of applications where an individual has overstayed their leave in the UK has been abolished. The immigration rules now provide for current overstaying to be disregarded in a limited number of circumstances but otherwise overstaying will be a ground for refusal.

Overstaying will be disregarded in the following two circumstances:

• Where the applicant has a good reason beyond their control why the application could not be made in time. This is however conditional on the applicant submitting the application within 14 days of the expiry of leave;
• Overstaying is to be disregarded where the applicant previously made an in-time application and the current application is made within 14 days of expiry of leave. The leave which the applicant holds can either be section 3C leave (extension following an in-time immigration appeal) upon the expiry of the time limit for administrative review or appeal or the expiry of time limit following the withdrawn or conclusion of an appeal.

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This raises the question as to whether it is lawful for the Home Secretary to deprive Shamima Begum of her British citizenship, if by doing so she were to be made stateless.

Under section 40 of the British Nationality Act 1981 the Secretary of State may make an order to deprive a person of citizenship status if satisfied that it is conducive to the public good. If such a person were to be made stateless as a result of the order then the Secretary also has to consider whether there are reasonable grounds for believing that they are able to become a national of a country outside the UK.

In Shamima Begum’s case, it has been widely reported that she is also of Bangladeshi descent and may therefore be able to acquire citizenship of that country. This is of course subject to the nationality laws of Bangladesh.

What is perhaps certain is that there will be an appeal against the Home Secretary’s decision, the outcome of which will be widely anticipated and scrutinised. The citizenship rights of her new born son will also be of primary consideration.

Stay informed and visit our immigration law page to find out more.

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A ‘westernised’ family of five who escaped Iraq in 2006 have successfully won an appeal against the denial of leave on the terms that they would face ‘a real risk of persecution because they are atheists’.

Gaenor Bruce, Upper Tribunal Judge, stated: ‘They do not wish to adhere to conservative Islamic norms because they fundamentally do not agree with them. They should not be expected to do so simply in order to remain safe.’

Bruce highlighted that the Refugee Convention does not issue ‘a protected and unfettered right to enjoy one’s life in the way that one would like: there is no human right to listen to a particular kind of music, drink alcohol or to wear jeans’. Nonetheless, it can provide protection ‘where the modifications required of the claimants amount to suppressions of the inalienable rights afforded to them by international law’, she added.

Westernisation can additionally allow an individual to protection in circumstances where they have been residing in the UK for a lengthy period of time, or if they are unacquainted with the mainstream culture in their country of origin, as there is a chance that their ‘modified behaviour will slip’.

The tribunal were informed that the family, who were all ‘nominally’ Muslim, but have not been practising, formerly lived in an wealthy area of Baghdad, in which their atheism was ‘simply never an issue’.

Bruce however commented, that ‘the Iraq of 2021 is very different from the Iraq that they left’ and alluded to expert evidence proposing that ‘today religion permeates the public space’ and that atheists ‘often keep their views secret’ for worry of harassment, attack or possibly murder.

‘In that context an individual does not have to sell books, or shout on a street corner, to proclaim that he is not a Muslim: his lack of faith is apparent in his everyday actions,’ Bruce noted.

‘[The father] will be regarded with curiosity if he permits his daughters to go out unchaperoned; that curiosity will rise to suspicion if he is never seen at mosque; suspicion would quickly escalate to hostility if the family fail to observe the fasts in Ramadhan or to don black during Muharram; that hostility could, at any time, give rise to persecution if, for instance, the women insist on remaining unveiled or the family’s attitudes lead to them being identified as particularly wealthy.’

She further stated: ‘Although evidence about fashion, or entertainment preferences, appears at first glance to consist of little more than an appeal to pluralism, and thus lying entirely outwith the protection framework, that evidence must be carefully assessed.

‘First, to determine whether the lifestyle choices of the claimant are in fact an expression of  beliefs prohibited or disapproved of in his country of origin. Second, whether there is a real risk of that claimant failing to effectively mask his “western” identity and thus exposing himself to harm.’

The human rights claims of the parents and their youngest child were formerly permitted by consent, as the Home Office acknowledged it would not be appropriate to expect their young child to leave the UK, which led to the acceptance of their two other children’s human rights appeals.

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