Immigration update

The Immigration, Asylum and Nationality Act 2006 received Royal Assent on 31 March 2006 and broadly covers two main planks of reform: to enable the development of a points based system for those seeking entry to the UK to work; and the change or removal of appeal rights. Only some sections of the Act have been brought into force (including deprivation of citizenship, cancellation of leave and removal) and only some of the sections relating to reduction of appeal rights have been implemented '“ restriction on appeal rights for those who have sought entry but have entry clearance, limiting appeals against deportation in national security cases. The points-based system for work is not yet implemented and the anticipated time scale appears to have slipped, with no current implementation date announced.

Immigration (EEA) Regulations 2006

The Immigration (European Economic Area) Regulations 2006 came into force on 30 April 2006 and implement Directive 2004/38/EC. The Directive brings together and incorporates the various principles relating to free movement and residence rights, including definitions of worker, self-employed and self-sufficient persons. The Regulations cover free movement of EEA nationals and their family members both in to and within the EEA.They apply to all applications or appeals whether made before or after 30 April. The documents issued that confirm residence are now known as residence certificates (for EU citizens) and residence cards for non-EU family members.

There are a number of significant changes to the previous Regulations:

• There is an initial three-month right of residence for all EU citizens (including family members irrespective of nationality) irrespective of purpose.
• There are increased rights of residence for family members in the event of breakdown of the family relationship.
• There are increased permanent rights of residence after five years' legal residence.
• There is increased protection against expulsion for EU citizens and their families.
• Family members now include civil partnerships, durable relationships and carers.

The Regulations are to be interpreted having specific regard to the Directive itself, particularly where there may be ambiguity or where the Directive may be interpreted more generously than the regulations appear to permit. In particular, it may be that the Regulations seek to restrict the movement of non-EU national family members, where the family member has not already exercised a right of free movement and residence by moving from one member state to another, for example, where the family member has not yet gained access to the territory of the EU. It may be that, in those circumstances, the non-EU national has to comply with domestic immigration law prior to moving between member states. This could be particularly relevant for dependant adults in the UK, where the Immigration Rules set a high test for dependency and could result in family members being excluded. A number of cases are currently progressing through the Asylum and Immigration Tribunal in relation to this, arising particularly following the acquisition of an EU citizenship by a refugee.

EEA and deportation

An EEA national who has a permanent right of residence in the UK can be removed only on 'serious grounds of public policy or public security'; if the EEA national is under the age of 18 or has resided in the UK for more than ten years, he can be removed only on 'imperative grounds of public security'. It is unlikely that these phrases cover the ordinary risk to society arising from the commission of further offences by a convicted criminal. That is the risk that has in the past been met by removal decisions based on grounds of 'public policy' '“ removal now must be not only because there is a risk that the individual will commit further offences but the harm must now constitute serious grounds of public policy for his removal. Where the individual is a minor or a long-term resident the ground for removal must now be both qualitatively and quantitatively more serious.

Deportation generally

Paragraph 364 of HC395 (as amended) was amended by HC1337 on 20 July 2006, to the effect that there is now a presumption that where a person is liable to deportation then the public interest requires it and it will only be in exceptional circumstances that the public interest is outweighed. The effect of this change, which takes effect in all appeals where the decision to deport was served after 20 July, is that it is likely that nearly all convictions that resulted in a prison sentence could lead to individuals who currently have indefinite leave to remain being liable to deportation. The 'check list 'of factors to be taken into account has been deleted, although the Secretary of State for the Home Department (SSHD) is still enjoined to consider all relevant factors.

Article 8 and proportionality

Issues around proportionality continue to exercise the Tribunal and the higher courts with regularity. Significantly, human rights issues can now only be argued at appeal where removal is imminent. Even where the Home Office has considered human rights in the decision letter and where human rights grounds have formed part of the appeal, the Tribunal will not consider them unless the appeal is an appeal against removal or removal is imminent (JM [2006] UKAIT 00009). Leave to appeal to the Court of Appeal has been granted.

Marriage and civil partnership

A marriage and civil partnership must not only exist formally, but it must be subsisting. This requires an assessment of the relationship between the parties and a decision in the broadest sense (GA [2006 ]UKAIT 00046).

Individuals who wish to marry while in the UK are, generally, required to obtain a Certificate of Approval by submitting an application to the Home Office. Interim guidance has been issued by the Home Office and is available on their website; the guidance may change following an anticipated judgment in the court of appeal.

Visits

Appeals against refusal of visit visas remain restricted and it is likely that they will become further restricted in the future. Importantly, in order to have an appeal against refusal of issue of entry clearance, there must be an intention to visit the relative in the UK, not just that there is a relative within the particular category in the UK '“ see RK [2006] UKAIT 00045.

Domestic violence

There is provision in the Immigration Rules for individuals whose relationship has broken down because of domestic violence to be granted leave to remain. The Immigration Directorate Instructions appear prescriptive in the evidence that has to be produced but JL [2006] UKAIT 00058 held that the assessment of the evidence produced to 'prove' that domestic violence has occurred is not restricted to the evidence stated by the SSHD required: the issue of whether domestic violence has occurred is to be determined according to all of the evidence produced.

Work restrictions

Nationals of countries who joined the EU in May 2004 (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) were subject to registration requirements for the first 12 months of employment, unlike nationals of other EU countries. The scheme, which results in limited access for family members and access to benefits, continues and there is no indication when it will cease.

For the sector-based schemes '“ fish, meat and mushroom processing: a total quota of 1,840 permits has been announced to cover the period to 31 December 2006 at which time the current indication is that the scheme will cease to operate.