There is not or certainly doesn’t seem to be any substantive change to Policy , it being more focused on the realisation of rights which infact exist.

The most important critism is in respect of the failure of the UK to recognise that non EU family members who hold a valid residence card issued by one EU country is permitted to travel together with EU citizens without an entry visa. The UK currently require the non EU national to comply with domestic Immigration Rules to travel to the UK. The Commission will no longer accept the UK’s departure from the Directive.

The second important issue concerns healthcare. The UK currently look for private health care insurance as an additional requirement, This is a breach of the Directive says the Commission and the UK is seized to resolve this head of complaint.

We will continue to watch this space….

The Upper Tribunal has recently reported a decision concerning the UK Border Agency’s treatment of postal applications and in particular payment administration.

Eagle eyed readers will spot that the appellant in this judgement was in fact assisted by ourselves in challenging the UKBA, both at the First Tier Tribunal and subsequently the Upper Tribunal.

www.bailii.org/uk/cases/UKUT/IAC/2012/00113_ukut_iac_2012_kb_nepal.html

The Upper Tribunal’s decision, after a hearing before the President of the Upper Tribunal (Immigration and Asylum Chamber) Mr Justice Blake and Senior Immigration Judge MacLeman, is fairly far reaching.

Currently UKBA, for the majority of postal applications under the various provisions of the Immigration rules, will simply return an application as invalid if there are any issues with the fee payable. The difficulty is that the regulations that govern immigration application fees would only render an application invalid if the applicant fails to provide all necessary information to take the fee (in the case of debit/ credit card payments). UKBA’s current processing approach appears to admit of no possibility that an applicant would give all necessary authority to debit their card but that the fee would be unable to be taken for a reason outside the applicant’s control. Reasons why this could happen would sensibly include error on their side, or perhaps with the 3rd party contractor (ATOS) who administrates their systems.

None of this would be a problem, or indeed of much note, except for the UKBA’s frequent action of returning an application after the applicants current leave has expired. The first application made is considered not valid and therefore any future application would be doomed to fall ‘out of time’. As anyone with even a cursory understanding of UK immigration law knows, it is imperative that any application to extend permission to remain in the UK is made before the expiry of the persons current leave. To have leave when you apply is not only a requirement of most of the immigration rules, but also generally a prerequisite for an appeal against any decision not to extend leave.

Ultimately therefore UKBA’s choice to return applications in this way can have fairly devastating effects for applicants. The system seems unfair. Certainly it would be perverse if an applicant were to lose the right to reside in the UK because of a processing error at UKBA.

The Upper Tribunal agreed and has made several recommendations that may affect how UKBA will process payments in future. In addition the Upper Tribunal has placed the onus of proof in respect of payment issues on UKBA. This means that when UKBA simply assert that there was a problem and an applicant disputes the fault lay with them, UKBA will have the duty to prove this.

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/fees-spring-2012.pdf

20 January 2012 —-The Upper Tribunal’s determination of the in Naved (Student – fairness – notice of points)[2012] UKUT 14 (IAC) focuses on the effects of section 85A of the Nationality Immigration and Asylum Act 2002, which was brought into force in May of 2011, but the Tribunal’s recognition that its jurisdiction entitles it to allow an appeal against any decision taken by the UKBA on the basis of straightforward unfairness seems to indicate the arrival of a new era in decision making by the First and Upper Tier Tribunal.

Section 85A has always been controversial. Effectively it prevents the Tribunal from taking into account, in any appeal against a PBS decision , any evidence relevant to that decision unless it was sent to the UKBA at the time of the initial application.
However, tides are shifting and the Upper Tribunal is resolving this matter by reference to its developing case law regarding “unfairness”.

Since the Tribunal had a “public law” jurisdiction (- it was permitted under section 84 (1) (e) of the Nationality Immigration and Asylum Act 2002 to allow appeals where the decision was “not in accordance with the law”) the Tribunal could and should allow appeals in such circumstances – See Thakur (PBS decision – common law fairness) Bangladesh[2011] UKUT 00151 (IAC) and latterly in Patel (revocation of sponsor licence – fairness) India [2011] UKUT 211 .

In Naved the Tribunal noted that both of its decisions in Patel and in Thakur had been brought to the attention of the Court of Appeal in the case of Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320. Quoting Lord Justice Aitken’s remarks in that case the Tribunal said:

“The Court of Appeal has accordingly confirmed our appellate jurisdiction to conclude that a particular decision is unfair, and so not in accordance with the law ”

The recent Upper Tribunal determination of T (s.55 BCIA 2009 – entry clearance) Jamaica [2011] UKUT 00483 (IAC) holds that section 55 does not apply to children who are outside of the UK. This is only the latest in a slew of determinations dealing with the complexities of this issue, an excellent case law round up of which by Free Movement can be found here.

The principle of primacy of consideration laid down by Lady Hale in ZH is becoming finely nuanced, and the determinative quality of the principle will depend on the factual matrix of each particular case. The sheer volume of judgements dealing with this issue perhaps illustrate how fact sensitive it is. However it is, and no doubt will continue to be, fascinating to see the principle and it’s development interact with Article 8 proportionality considerations, along of course with the ever changing requirements of the Immigration Rules.

CDS (PBS: “available”: Article Eight) Brazil [2010] UKUT 00305 (IAC) is an important tribunal case that held (amongst other things) that a Tier 4 Student applicant could rely on funds from willing 3rd parties.

The critical issue was that whilst UKBA may have liked to be more restrictive, the rules were not drafted as such, merely stating that an applicant had to have funds ‘available’.

UKBA’s response to losing? Change the rules! In March 2011, Statement of Changes HC908 changed the rules to be more restrictive.

This trend is fairly common. Rules are drafted, challenges or attempts to clarify are brought to the tribunal, a case comes out and then the rules are changed. The PBS system rules in particular have become an utterly confusing mess.

This incremental alteration is probably not in anyone’s interest. Each change brings its own problems of interpretation, and what you are left with is an ever shifting position, with important and well reasoned cases almost out of date by the time they are promulgated.

UKBA has announced that if a visa is to be issued , you will have a start date that will cover you for the whole Olympic and Paralympic Games period although the announcement does state that the visa will normally be valid for the usual 6 month duration.
See UKBA web link for further details.

http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2011/december/70-olympics-visas

This new policy reflects the government’s view that users of the appeals system, who can afford to pay, should contribute to the system’s cost. Fees of £80 for a paper consideration and £140 for an oral hearing will be applied to appeals against decisions taken on or after 19 December 2011.

A new online payment facility will be available shortly. This will allow applicants to make an appeal and payment online for decisions dated from 19 December 2011. Appellants must be able to pay using a MasterCard or a Visa credit or debit card or be submitting an appeal which does not require a fee to be paid. Appellants can ask another person to pay the fee on their behalf using their payment card details, with their permission. For more information about submitting appeals online please see the Ministry of Justice website.