The Immigration Minister Mr Damian Green has made a rather long-winded speech on the government’s plans to reform the immigration rules in order to achieve a “sustainable” immigration policy for Britain.

The full text of the minister’s speech is available here. On an initial reading the operative part of the speech seems to be Mr Green’s expressly stated desire to “break the link between temporary routes and permanent settlement”. Yet from an economic standpoint it would be far better to do something about the half-a-million illegal entrants who are present in the UK instead.

The government has systemically been engaging in misrepresenting statistical information in relation to the number of students who come to the UK and then “abuse” the system to settle here. The JCWI has completely rubbished the government’s claims. For them eight facts must be considered in relation to the student consultation. The JCWI’s blog entry on the matter is available here.

According to Mr Green:

We estimate that around 23,000 people who were granted settlement in 2009 initially came to the UK on a study visa (around 13 per cent of the settlement grants that year). The Home Office’s report ‘The Migrant Journey’ also showed that more than one-fifth of students who were granted visas in 2004 were still here in 2009.

However, the the Institute for Public Policy Research’s (IPPR) report from last December directly contradicts  Mr Green’s claims. The full report of the IPPR can beviewed here. For the IPPR the statistics in connection to the “migrant journey” were quite different because:

Home Office research published in September showed that of the 186,500 students granted visas in 2004, 80 per cent had left the UK by 2009 while only 3 per cent had gained settlement rights. This means that the impact of cuts to student numbers on total net migration will be highly unpredictable – a sharp decrease in student visas issued would reduce immigration (and thus net immigration) in the short term but would also reduce emigration in the medium term, which would push net immigration up again.

Like the JCWI, the IPPR did not consider student immigration to pose a threat to immigration control in the UK. And, in fact, both the JCWI and the IPPR have expressly stated that if anything student immigration is a massive asset to the UK’s ailing economy. The IPPR also suggested that European immigration was the real culprit when the question of draining the UK’s resources was concerned. The IPPR’s advice to the government was that:

There is also a real risk that the public will become disillusioned with the government’s promises to reduce net migration levels if numbers don’t fall. As Labour found, once a reputation for competence on migration is lost, it is very hard to regain – 2011 may see the Coalition government learn this lesson the hard way.

Mr Green’s speech has also revealed that the government has envisaged curtailing the length of the Post Study Work visa from 2 years to 1 year. Ostensibly, this might appear to be a clever solution but from a foreign student’s perspective 1 year is a very short period of time to try to get a job in the UK.

With Tier 1 (General) now closed, Mr Green has also stated that it is the government’s objective to facilitate the inclusion of post study workers into Tier 2 (General). The only question which arises out of this statement is whether such a claim can be accorded any credibility at all? (Especially given that the government has lost a judicial review on the PBS last December.)

How can Mr Green even dream of speaking about securing the futures of international graduates by allowing them access to Tier 2 (General) visas? After all that the UKBA has done since 19 July 2010 to prevaricate switching into this visa category from the Post Study Work route, Mr Green really has no right to make such claims; and he should not create any false expectations. A responsible government would accept that in a globalised world system economic requirements dictate the free movement of labour and goods from beyond the present politically correct European frontiers which Britain reluctantly accepts.

While one Brenda (in Yarl’s Wood) awaits deportation from the UK to a certain death in Uganda, another Brenda in the Supreme Court of the United Kingdom (Baroness Hale of Richmond of course) has made some particularly telling observations regarding the status of children in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4.

The case exhibits that a mother with an atrocious immigration history can be allowed to stay in the UK on grounds which arise because of her child’s British citizenship (who could not be subjected to a deportation order).

Yet the child would have to leave the UK with her mother (who was the primary carer) as the child would find it impossible to stay in the UK on their own.

The Court found that to banish British children to another country because of the perverse immigration history of a parent is incompatible with the obligations of the UK under the United Nations Convention on the Rights of the Child which create a duty for the Secretary of State under section 55 of the Borders, Citizenship and Immigration Act 2009. The UKSC took the opportunity to harmonise existing western common law jurisprudence in ZH (Tanzania)and, as in the case of HJ (Iran), the Australian jurisdiction featured quite significantly in the Baroness Hale’s speech.

This appeal was unanimously allowed by the Supreme Court which required that while making the proportionality assessment under article 8 of the ECHR, children’s interests must remain paramount and must be a primary consideration. A child’s “best interests” were connected to the well-being and welfare of the child. In considering these interests and whether it was reasonable to expect the child to live in another country, it was imperative to ascertain the child’s own views.

In the context of the appeal, at paragraph 13, Lady Hale summed up the SSHD’s position as:

The Secretary of State now concedes that it would be disproportionate to remove the mother in the particular facts of this case. But she is understandably concerned about the general principles which the Border Agency and appellate authorities should apply.

Lady Hale also stipulated at paragraph 37 that:

But the immigration authorities must be prepared at least to consider hearing directly from a child who wishes to express a view and is old enough to do so. While their interests may be the same as their parents’ this should not be taken for granted in every case. As the Committee on the Rights of the Child said, in General Comment No 12 (2009) on the Right of the Child to be Heard, at para 36:

“in many cases . . . there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child’s views are transmitted correctly to the decision-maker by the representative.”

Children can sometimes surprise one.

At paragraph 46 Lord Kerr agreed with Baroness Hale and stated that:

It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.”

R (on the application of SK (Zimbabwe)) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) was heard by the UKSC on 10 February 2010 on appeal from the Court of Appeal.

In this case where the SSHD was the Respondent the core issue before the UKSC was whether a person is unlawfully detained by reason of the Secretary of State’s failure to carry out regular reviews of their detention.

The simple facts of this case are that the Appellant (SK) is a Zimbabwean national who was detained by the SSHD while his deportation, on the basis that he was an unlawful overstayer who was likely to abscond, is pending. SK sought judicial review of his detention alleging that it was unlawful in light of a failure to carry out regular reviews. SK, who entered  the UK as a visitor in 2002, has been in the United Kingdom without leave since 30 April 2004.

On 9 December 2005 he was convicted on two counts of common assault and one count of sexual assault on a female, and on 24 January 2006 he was sentenced to twelve months’ imprisonment and ordered to be registered as a sex offender for five years. The sentencing judge made no recommendation for deportation pursuant to section 6 of the Immigration Act 1971.

On 7 March 2006 the SSHD decided to make a deportation order against SK. On 8 March 2006, the next day, SK became entitled to be released from custody as regards his criminal sentence, but from that date on he was in detention at the direction of the Secretary of State pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971.

Prior to the Court of Appeal’s decision on 6 November 2008, on 25 January 2008 in the High Court Munby J had ruled that SK’s (i) detention during periods as specified was unlawful; (ii) claim for mandatory order requiring discharge from detention stood dismissed; (iii) claim for damages would be stayed pending appeal. Munby J granted permission to appeal to both SK and the SSHD. SK had advanced his case on the Detention Centre Rules 2001 which were to be read conjunctively with Chapter 38 of the Manual on Detention.

In the Court of Appeal on 6 November 2008 Laws, Keene and Longmore LJJ allowed the SSHD’s appeal against Munby’s declaration that SK’s detention was unlawful. For Munby J the review of SK’s detention was a condition precedent to its legality. Accordingly, he ruled that:

“39. So, following the 28 day review on 6 April 2006, there should have been monthly reviews in each of the remaining 9 months in 2006, in each of the 12 months in 2007 and, finally, on 6 January 2008. Leaving on one side the reviews which should have taken place between 10 and 30 March 2006, there should therefore, in all, have been 22 monthly reviews, the first on 6 April 2006 and the most recent on 6 January 2008. In accordance with paragraph 38.8 of the [Manual], the first two of these (April and May 2006) could be carried out by an HEO. The next two (June and July 2006) should have been carried out by an SEO/HMI, the next four (August – November 2006) by the Assistant Director/Grade 7, the next three (December 2006 – February 2007) by the Deputy Director and the most recent eleven (March 2007 – January 2008) by the Director.

“40. The disgraceful fact is that in the whole period from 9 March 2006 to the hearing on 18 January 2008 there were only ten reviews, only six of which (those in January, May, July, August and October 2007 and in January 2008) were conducted by an official at the correct level of seniority. Even worse, the first review did not take place until late January 2007. So there was no review at all during the first ten months of SK’s detention!”

Critical to the extreme of the SSHD and the Home Office Munby J also said that:

“49. So SK has had only four of the 22 reviews to which he was entitled. And on top of this, with the sole exception of the ‘Monthly Progress Report to Detainees’ dated 24 May 2007, every ‘Monthly Progress Report to Detainees’ sent to SK seems to have pre-dated the actual decision. The casual mendacity of a system under which the written reasons for detention required by rule 9(1) of the Detention Centre Rules 2001 to be sent to detainees are dated and signed by junior officials before the decisions have in fact been taken is concerning. To be specific, and by way of example (there are too many others): the ‘Monthly Progress Report’ which SK received dated 15 August 2007 would plainly have conveyed to him that his continuing detention had been reviewed and approved by the Director on or shortly before 15 August 2007. In fact, as we know, the actual decision was not taken until 30 August 2007. So the document SK received was wholly misleading.

“50. Thus the allegation made on behalf of the Secretary of State, not just in the letter of 9 November 2007 but persisted in as recently as in the detailed grounds of defence dated 14 December 2007, that SK’s detention has been ‘regularly reviewed’ is at best tendentious. How such an assertion could be made in the light of what Mr Goodman correctly characterises as the Secretary of State’s blatant failure to follow her own policy in relation to review I do not begin to understand…”

Munby J was very critical of the machinery of the state and its failure to comply with institutional standards which itself recognised as necessary for a democratic society to exist. But despite all that Munby J found wrong with the SSHD’s behaviour the Court of Appeal remained unsatisfied with the approach taken by the judge.

The Court of Appeal took the view that the Detention Centre Rules 2001, which were made under various provisions in the Immigration and Asylum Act 1999, namely sections 148(3), 149(6), 152(2) and (3), 153 and 166(3) and certain parts of Schedules to that Act did not curtail the SSHD’s power to detain a person indefinitely while their deportation was pending under schedule 3 paragraph 2(2) of the Immigration Act 1971.

The Court of Appeal’s reasoning on this point stemmed from the observation that SK’s detention was not authorised under section 34 of the Police and Criminal Evidence Act 1984 and the Roberts case. Their Lordships held that despite grave breaches of rule 9 of the 2009 Rules and Chapter 38 of the Manual SK’s detention pending deportation under the Immigration Act 1971 was lawful.

In the Court of Appeal, Laws LJ (at [25]) took the view that:

“Munby J was in my judgment wrong to hold, as I understand him to have done at paragraph 68 of his judgment, that such compliance was “a necessary prerequisite to the continuing legality of the detention”. Breach of the Rules or Manual might attract other remedies in public law: indeed on the judge’s findings I should have thought that the claimant would be entitled to a declaration that the Secretary of State had unlawfully failed to comply with both. However that has not been sought, and even if it had been its availability would not of itself turn a paragraph 2(2) detention into a false imprisonment.”

As stated above SK’s appeal to the UKSC was heard in February 2010 by Lord Hope of Craighead, Lord Rodger of Earlsferry, Lady Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Kerr of Tonaghmore and their written opinions on the matters set out above are eagerly awaited by the legal fraternity. However, it remains to be seen when the hand down date of the Supreme Court’s judgment will be. The Court will, no doubt, hand down its eagerly awaited ruling sometime soon in the new year.

We have now officially entered a very grim period in modern British history which is beginning to mirror the horrors and discrimination which the British authorities imposed on the “citizens of the United Kingdom and the Colonies” by way of the Special Quota Voucher Scheme (SQVS).

This sounds like a strong thing to say but nowadays the government is using high-handed tactics similar to its actions in the dark days of the 1970s and 1980s when it obscured everything in order to get away with its manifestly illegal behaviour.

So far the present coalition government has shown almost no respect for the courts’ rulings in relation to its retrograde immigration policies. But the losses in the courts will begin to mount and ultimately the government will collapse under the weight of judgments such as this one, this one and this one.

The latest problem lies in the UKBA’s inability in providing precise numbers in relation to the number of CoS which will be available to sponsors until April 2011 when a final cap will be introduced. The latest news on the matter provided by the UKBA which is available here provides a conflicting account of exactly how many CoS will be assignable until April 2011 when the “permanent cap” sets in. At the moment in the second substantive paragraph in the link the number of CoS is set at 10,382 in bold and in the fifth substantive paragraph the interim limit is set at 10,832. Such mistakes are typical of a dysfunctional bureaucracy which the UKBA (and the Home Office) has come to typify.

The latter figure of 10,832 is in fact correct and it is the one in the immigration minister’s latest statement. But why the UKBA is unable to get things right is slightly astonishing.

In any event the statement of changes in the immigration rules the government is using to limit the CoS has not been laid before Parliament for a 40-day period which is mandatory under section 3(2) of the 1971 Act.

Instead, the statement was laid before Parliament on 15 July 2010 and it entered into force on 19 July 2010 and therefore the statement is 36 days short of the Parliamentary procedure which the Court of Appeal affirmed in Pankina. Sedley LJ has given the home secretary the Pankina blues forever because as he rightly said that the SSHD is not above the law and any significant changes in the rules must be spelt out by her in the rules.

Indulging further in its illegality and intensifying the existing confusion, chaos and entropy the UKBA has stated that:

Tier 1 (General) overseas will not reopen for applications. Tier 1 (General) in the UK will remain open until 5 April 2011. There will be transitional arrangements beyond 6 April 2011 for some applicants who are already in the UK, and we will announce details of these in due course.

The agency has issued the following statement on behalf of the immigration minister and the home secretary:

Following a court judgement on Friday, the government has also set a limit until 5 April 2011 on the number of certificates of sponsorship that are available to licensed Tier 2 sponsors under Tier 2 (General). The level of the limit will be 10,832, and the changes will take place immediately.

The above changes are set out in a new statement of changes to the immigration rules (HC 698).

The government has already started to whip up its rhetoric by talking tough in the face of its defeat in the High Court yesterday. Immigration Minister Damian Green has said that the “judgment will have no impact on the permanent limit on non-European workers the government will introduce next April.”

He added that “This ruling is about process, not policy – the policy of having a limit has not been found to be unlawful.

“The court’s ruling rests on a technicality. We will set this right in the next few days to ensure we can continue to operate an interim limit.”

Despite what he says the fact is that all initial and additional applications for CoS under the new regime for allocation should be granted immediately as the mechanism (“the process”) which delayed the allocation process was unlawful.

The present unlawful regime for CoS allocation which is maintained by the UKBA is further undermined by the fact that under the post 19 July 2010 system only A ranked sponsors can receive a CoS if they can justify it. Under the Labour government things were radically different as an A ranked sponsor could sponsor migrants who were unable to show funds and maintenance whereas a B ranked sponsor could only sponsor migrants who exhibited evidence of funds and maintenance.

After the cap the position has been that both A and B ranked sponsors have their CoS limit set to zero. The difference is that A ranked sponsors are able to apply under the allocation criteria using this form whereas B ranked sponsors cannot (they must pay the UKBA £600 so that the agency can teach them how to raise their rating to an A rated sponsor). But thankfully all this was repudiated yesterday.

It remains to be seen what allowances the UKBA will make for all the post 19 July 2010 CoS assignment applications made by B rated sponsors. It will only be logical if all of these are assigned. Equally, those A rated sponsors who are awaiting the assignment of an initial or additional CoS should also have their applications granted immediately.

By using its unlawful methods the government has caused the UK economy and businesses a great deal of difficulty and financial loss. Surely it would only be just if everyone wronged by the “interim limit” was given a visa immediately. Equally those applicants who no longer want a visa but applied for one and had it refused should have their fees refunded.

Our advice to Mr Green would be not to set himself up by suggesting openly that it was the “process” which was unlawful and not the “policy” as it might well be the case that the next judicial review of the cap will be of the “policy” and not the “process”.

In its earlier judgment - in WL (Congo) and KM (Jamaica) [2010] EWCA Civ 111 – the Court of Appeal took the view that if a person’s detention was potentially lawfully authorised, then in that event their “detention was not unlawful by reason of the adoption and application of [a] hidden unlawful policy.” The UKSC will be particularly interested in the approach taken by the Court of Appeal in relation to the legality of the detention of individuals which is grounded in unpublished state policies.

The SSHD was, between April 2006 and 9 September 2008, bound by a published policy under which immigration detention pending deportation warranted a presumption which favoured the release of foreign national prisoners (FNP) prior to removal. Controversially, in monumental dereliction of her duties the SSHD failed to act in accordance of her published policy and she reversed the presumption favouring the release of FNPs by using what she has described as her “unpublished policy”.

Both WL and KM are black men and have quite adverse criminal antecedents. Both appellants argue their cases on well established constitutional principles. Firstly, it is argued by them that there is no precedent which justifies their detention. This, of course, repudiates the English system of common law under which unlawful detention without precedent or regulatory policy is forbidden. Moreover, they also argue that the SSHD’s “unpublished” policy is incompatible with Article 5 of the Convention.

Palpably the SSHD does not share this view and considers the appellants’ detention to be justified as WL and KM were convicted criminals.

The UKSC’s awaited decision will have much wider public law implications than the immigration context in which it is set. The appellants will be making claims for exemplary damages because KM was in detention for a year-and-a-half (he had a Class A drug conviction and was convicted of 14 robberies) and WL was in detention for four-and-half years (he had convictions for actual and grievous bodily harm). The appeal will allow the apex court to issue clear guidelines about the “unpublished” detention policies used by the SSHD.

Immigration officers acting under the Immigration Act 1971 enjoy much wider powers of arrest and detention than those accorded to the police under the Police and Criminal Evidence Act 1984.

From 10 January 2011, English language students who want to pursue  English language courses will be able to apply for a student visitor visa to stay in the UK for up to 11 months. This new extended student visitor visa product will only be available to overseas applicants.

The new visa will be for “English only” students and other students wishing to study in the UK for longer than 6 months will have to apply under Tier 4 of the PBS.

The extended student visitor route has the same requirements, entitlements and restrictions as those for the current student visitor route. The student visitor route prohibits students from working, taking a work placement, bringing dependants, extending their stay or switching into other courses at the end of their stay.

The fee for an extended student visitor visa is set to be the same as for a student visitor visa.

Lord Justice Sullivan and Mr Justice Burton stated in the High Court that the moment no lawful limits are in place for Tier 1 (General) and Tier 2 (General) visa applications from overseas. The decision totally rubbishes the government’s immigration policy and the limits it set, in October and November 2010 for example, are all unlawful.

The ruling was a landmark victory for the JCWI and ECCA both of whom had pursued judicial review proceedings against the home secretary on the issue of the immigration cap.

The government introduced its interim cap on visas for Tier 1 (General) highly-skilled migrants and the number of CoS which would be assigned to for Tier 2 (General) skilled workers following its election victory in May 2010.

It is expected that the government intends to introduce a permanent limit on non-EU workers in April 2011. New categories under the rules are also expected to be introduced early next year.

The JCWI’s barrister Richard Drabble QC, argued at the High Court in London that the Home Secretary acted ultra vires her powers by introducing changes to the immigration rules after her party’s ascent to power.

Lord Justice Sullivan said that “[t]he secretary of state made no secret of her intentions” and that:

There can be no doubt that she was attempting to side-step provisions for Parliamentary scrutiny set up under provisions of the 1971 Immigration Act, and her attempt was for that reason unlawful

Sullivan LJ also explained that:

In my judgment no interim limits were lawfully published or specified by the secretary of state for either Tier 1 or Tier 2… and there is not, and never has been, a limit on the number of applicants who may be admitted either under Tier 1 or the number of certificates of sponsorship that should be issued to Tier 2 sponsors.

Mrs May, the home secretary, introduced her illegal immigration cap to keep the Tory party’s electoral promise. The pledge was a crucial allurement in determining the outcome of the 2010 general election and white voters concerned about immigration threw their lot in with the Tories because of it. Since then, contrary to their election manifesto, the Liberal Democrats have followed in the footsteps of the white voters by favouring the cap.

Immigration Minister Damian Green stated: “I am disappointed with today’s verdict. We will study the judgment and will appeal it, if we have grounds.” Mr Green should note that the High Court’s decision was not a “verdict”. Verdicts are pronounced by juries in crown courts (or criminal courts) and in JR applications there are no verdicts. But since he, like his boss the SSHD, is guilty of being quite oblivious to the law the Court’s decision must have felt like a verdict.

A new version of application form EEA4 has been published by the UKBA. The form can be used by non-European Economic Area (EEA) nationals to apply for permanent residence in the UK if they qualify as family members of an EEA national.

The form has been revised following a request from the Parliamentary and Health Ombudsman that ‘Section 6 – documents and photographs’  needed clarification. The form now accurately reflects all of the documentation required to support an application for a permanent residence card.

European casework instructions to be followed by the agency are available here.  TheImmigration (European Economic Area) Regulations 2006 and the Free Movements Directive define the framework behind the EEA4 form.

The agency requires that the new EE4 form (version 11/2010) should be used for all applications made on or after 30 November 2010.

The Upper Tribunal’s recent decision on European family member rights in relation to the Directive is VN (EEA rights – dependency) Macedonia [2010] UKUT 380 (IAC).