The new Immigration Act 2014 promised much, indeed in my last post, I have commented on the benefits it offers to those with viable article 8 claims, and as a direct access immigration barrister I have had some good successes as a result of this new piece of legislation.
However I have noticed a worrying increase in the number of applications refused and certified as clearly unfounded under s.94 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Whereas before I had noticed that the Secretary of State would only certify the most hopeless of article 8 claims, i.e. private life claim based upon 3 years residence in the UK, I have now seen refusals where there is evidence of extensive private and family life, indeed in one case the Home Office certified the Human Rights claim as clearly unfounded on the basis that the relationship was not genuine having just accepted that the family are entitled to marry having carried out an investigation under s.48 – 50 of the Immigration Act 2014 (I will be finishing a separate blog on this particularly nasty piece of litigation over the next day or so).
The hope I would offer is that the test for overcoming such certification, draconian as it is in denying the individual an in country right of appeal, is a very low one.
It is my view that the best course of action is to avoid or to try to avoid the Secretary of State from certifying the claim in the first place and this comes back, as I have talked about in the past, to preparation, preparation and preparation. A well prepared application will be supported by not only detailed representations – pointing out to the decision maker that they should not fall into the making of an unlawful decision – but also detailed evidence. This should prevent any such refusals and if the odd one slips through it will be easier to challenge on judicial review.
This might sound like common sense, but it seems that a number of clients and some representatives consider that all that needs to be completed is the relevant form – I can understand this as the forms often run to 60 plus pages and are extremely complicated. However, I cannot stress this enough, in my view the application form only provides the bare minimum of information required. For example it is almost impossible to be able to make out a proper paragraph 276ADE private life claim in any of the boxes on the form. There is also inadequate space to set out the reasons under paragraph EX.1 why someone could not return home. There is also no space or realistic space for any “exceptional circumstances” to be put in.
The purpose of this blog is to put those out there who are either thinking of making an application or have an outstanding application but without having had a decision, on notice that they should ensure that there is sufficient information relating to the relationship and supporting documentation. I am still getting refusals and referrals where the application does not contain any photos of the couple together, or just one or two. In today’s disbelieving age I would suggest using social media to your advantage, if you have a Facebook account, then print out the photos of you with your partner or friends if its a private life case, the photos are dated and often have the place. I recall winning a case on the back of the Facebook pages, there were not a great deal of them but they covered a number of years and different situations, were date stamped and clearly showed the couple aging and with differing friends. My rule is that you cannot put in too much information to show the relationship. I have won appeals where people have printed out 2 years worth of Whats app messages. Its the depth of the evidence that counts, indeed some clients seem surprised that their texts or emails to each other can help. They can and they should be included as if the Secretary of State does make the mistake of certifying the claim as clearly unfounded the Upper Tribunal are likely to set aside the certificate and if the case has been properly prepared then there are excellent prospects of recovering costs as well.
If you or a loved one would like to discuss anything arising out of this blog or have any immigration query please do not hesitate to contact me or one of my assistants and we will be glad to arrange an appointment of you to come in and see me. Please please do not worry in silence or until after the refusal. Any immigration case is best dealt with at the initial stage rather than later on after, say a refusal or when the individual is facing removal.
Paul Turner is a highly regarded direct access immigration barrister and is the head of Imperium Chambers, Grays Inn Buildings, Grays Inn, he also practises from Mansfield Chambers, the Chambers of Michael Mansfield QC, 5 Chancery Lane, London, WC2A 1LG and a door tenant at 39 Park Square Leeds LS1 2NU and is licensed by the Bar Council to provide advice and representation directly to the public.