This blog post looks at the landmark UK Supreme Court decision in R (on the application of Kiarie and Byndloss) v Secretary of State for the Home Department  UKSC 42 on out-of-country rights of appeal.
Is it lawful to detain a ‘foreign criminal’ under immigration powers to keep them in the UK to face confiscation proceedings? No, according to the High Court in R (Ibori) v Secretary of State for the Home Department  EWHC 1207 (Admin).
It’s an anxious, exciting time of year for many parents and carers applying for primary school places at mainstream schools, (me included!).
While everyone hopes for the best, the reality is that not all families will be offered what they were hoping for, at least initially. Minds will soon be swimming with talk of published admission numbers, oversubscription criteria and waiting lists.
Parents unhappy with a refusal decision from their preferred maintained primary school can appeal to an independent panel that is convened by the local authority and made up of volunteers from the local community (at least one of whom may have a background in education) plus a legally-qualified clerk who is independent from the local authority and the school.
I’ve been a clerk at a number of these appeal hearings. It’s generally quite an informal and user-friendly experience. You probably won’t need a lawyer representing you at the hearing, but you may want to make yourself familiar with law in this area (including the local authority’s admissions criteria, which vary depending on the authority) and discuss your situation with someone experienced before writing your grounds of appeal and presenting your case.
The key guidance documents from the Department for Education are:
A few pointers for anyone considering an appeal where the oversubscription criteria have been applied:
- Read the refusal letter/s carefully as this should explain the reasons for the decision and explain how the appeal process works. You have 20 school days from the date that you were notified of the decision to lodge an appeal.
- In all cases, the panel must consider first whether the admissions criteria comply with the legislation  and whether they were correctly applied to the child. An appeal may be allowed at this stage where the criteria are not correctly applied if, but for the error, the child would have been offered a place and the admission of a further child would not prejudice the provision of efficient education or efficient use of resources.
- There are very strict legal limits on class-sizes in Reception, Years 1 and 2 (also called ‘infant class-size’ limits). These years must not have classes with more than 30 pupils unless there are exceptional circumstances.  If the criteria are lawful, have been correctly applied and the relevant year group in the School is full, an appeal will only succeed where the refusal decision was not one that a reasonable admission authority would have made in the circumstances of the case. This is a very demanding test. It requires parents to show that the decision was absurd when compared with the admissions criteria and that no reasonable decision-maker would have refused to offer a place.
- Outside of ‘infant classes’ (so for Years 3 to 6), the test is much broader and involves 2 stages. First, Second, and alternatively, an appeal may be allowed where the prejudice to the school caused by admitting a further child into the relevant year group is balanced against the case for the child to be admitted to the school. Parents should identify their reasons for preferring the school and why the child’s interests can only be met by that school. The convenience of the school run for working or single parents won’t generally be sufficient because the main focus should be on the child’s interests, not the social circumstances of the parents.
If you’d like to book a consultation to discuss your circumstances / appeal, get in touch with me for more information, including fees.
 Part 3 of the School Standards and Framework Act 1998.
 See the School Admissions (Infant Class Sizes) (England) Regulations 2012.
Using data supplied by the gov.uk website, below are several graphs illustrating the main changes in fees for visa, citizenship and other applications made in the UK and from overseas. The new fees apply from 6 April 2017.
For access the full data set, go here.
The overwhelming trend is upwards, with rises in fees across the board for many of the more common applications. In the bar charts below, the old fees from 2016 are in blue, the new fees from 6 April 2017 are in red. The dot graphs show percentage increases. Many of the rises amount to 20 to 25% increases on already eye-watering fees for most individuals and their families.
- Indefinite leave to remain applications made in country will cost £2,297 (up 23% from £1,875 in 2016);
- Leave to remain – ‘other’ applications will cost £993 (up 22% from £811 in 2016)
- Settlement applications for ‘other dependent relatives’ made outside the UK will cost £3,250 (up 21% from £2,676 in 2016).
There’s been no change in the fees for EEA residence documents, life in the UK test and administrative reviews, among others.
Changes to some standard visa / applications:
Increases to Optional Premium rates:
The year-on-year rises are normally brought in around mid-March but were slightly delayed this year. The steep upward trend from 2016 continues.
Here’s hoping that there will be a proportionate increase in efficiency and competent decision-making…
Increase in fees ≠ increase in quality of Home Office decisions. https://t.co/vULo1h8RZL
— Lawrence Youssefian (@LYoussefian) April 3, 2017
Our recent event on the Rights of the Child proved very popular among a variety of firms, NGOs and legal organisations. Watch and share 3 presentations from barristers at the 36 Group below.
To download the presentations, click on the Linkedin SlideShare icons below, follow the link, then click the Download button.
1. Calais, Dunkirk and Dubs: recent litigation for refugee children, by Ubah Dirie
2. Voice of the child: including children’s views in best interest assessments, by Kate Grieve
3. Disrupting the Rules: child rights in the UK Supreme Court, by Ben Amunwa
Tweets from the event
— Ben Amunwa (@benamunwa) March 29, 2017
— Karen Deirdre Reid (@KarenDReid) March 29, 2017
— Kate M Grieve (@KMGrieve) March 29, 2017
Also see my thank you message on Linkedin.
The growing number of persons on the receiving end of the government’s “deport now, appeal later” scheme may face some difficult choices. A person whose claim has been “certified” under the power in section 94B of the Nationality Immigration and Asylum Act 2002 cannot bring an appeal against a decision to deport or remove them so long as they remain in the UK.
The right of appeal can only be exercised from abroad (hence the phrase, “deport now, appeal later”).
Claimants whose claims have been certified under s. 94B will often require urgent advice on whether they should:
- bring a judicial review claim arguing that the Home Office certification was unlawful;
- lodge an appeal in the forlorn hope that the Tribunal accepts it as valid; or
- make a ‘fresh claim’ based on new evidence or information that was not provided to the Home Office when the certificate was issued.
The Upper Tribunal has recently given its views on this common trilemma in the case of R (on the application of Ayache) v The Secretary of State for the Home Department (paragraph 353 and s94B relationship)  UKUT 00122 (IAC). Although the issues had been resolved by consent, the dispute caught the Tribunal’s interest and it made a determination anyway having called for submissions on various legal points.
The upshot is that where a claimant seeks to rely on fresh information that was not before the decision maker at the time of the s. 94B certification decision, they should make a fresh claim (option 3 above).
It is inappropriate to use judicial reviews to challenge a decision on the basis of post-decision evidence. That’s despite the fact that the Home Office is routinely allowed to withdraw and re-make decisions and thereby shift the goal-posts during the life of any given judicial review claim – a practice that has been criticised but is so far regarded as fair play.
In the words of UT Judge Coker (at §§ 18 to 20):
18. Although paragraph 353 does not refer in terms to certification, a s94B certificate is plainly a decision on a human rights claim albeit a claim regarding temporary removal as oppose to removal for a more lengthy period if a statutory appeal is unsuccessful. In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant’s Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim.
19. The duty imposed upon the Tribunal by s6 HRA is not infringed by it not reviewing post decision evidence which is said to do what the pre-decision evidence failed to achieve, namely establishing that removal would bring about an impermissible infringement of rights protected by Article 8. That is because the nature of the task being performed by the Tribunal is the exercise of a supervisory jurisdiction in respect of an historic decision. If there is more to be said by an applicant, then the machinery of paragraph 353 provides for it to be considered by the respondent. If the applicant is correct that the post decision evidence demonstrates that temporary removal would infringe protected Article 8 rights, that infringement does not flow from the decision of the Tribunal that the decision under challenge in the proceedings before it was, at the time it was taken, a lawful one.
20. It therefore follows that paragraph 353 Immigration Rules provides the appropriate remedy where further information and evidence is sought to be placed before the respondent, rather than such material being considered in judicial review proceedings.
Pausing there, if a “deport now, appeal later” certificate is a refusal of human rights claim (as the Upper Tribunal says at § 18 above), does it then give rise to freestanding in-country right of appeal?
I don’t know the answer, but I think that in light of recent case law (particularly the decision of Vice President Ockleton of the UT in Sheidu (Further submissions; appealable decision)  UKUT 000412 (IAC), this is a valid question.
*Picture if you will a cycle of appeals (against “deport now, appeal later” decisions) and certifications (against those very appeals) extending into hall of mirrors style perpetuity…*
If that’s an absurd result, it’s one which has been arguably encoded into sections 82 and 92 of the 2002 Act as amended by Parliamentary draftfolk.
It may be said that this interpretation would undermine the whole purpose of the changes introduced by the appeal provisions in the Immigration Act 2014.
But it wouldn’t be the first time that the piecemeal and chaotic changes to the UK’s immigration law resulted in bizarre or unintended consequences.
In Bretby Hall Management Company Limited v Christopher Pratt  UKUT 70 (LC), a dispute arose over the reasonableness of the service charges imposed by the freehold landlord over the years and whether the landlord complied with its duty to consult over certain charges.
Also in dispute was a large bill related to Bretby Hall’s legal fees (totalling £11,100) racked up in a previous dispute with Mr and Mrs Pratt. Although that dispute never reached court, it still cost the landlord to respond to it.
At the First-tier Tribunal, the landlord relied on a general clause in the lease that allowed it to recover via the service charge:
All other expenses (if any) incurred by the Manager in and about the maintenance and proper and convenient management and running of the development including … any legal or other costs reasonably and properly incurred by the Manager and otherwise not recovered in taking or defending proceedings (including any arbitration) arising out of any lease of any part of the Development…
The landlord argued that this clause was wide enough to cover threatened as well as actual legal proceedings and duly claimed the full legal bill for the previous dispute.
Mr Pratt argued that the legal fees fell within the Tribunal’s power to exclude costs in section 20C of the Landlord and Tenant Act 1985 and / or that the costs were unreasonable under section 19 of the same Act. The Tribunal agreed with Mr Pratt and allowed the landlord nothing. But in doing so it had misunderstood the nature of the landlord’s claim.
The Upper Tribunal granted the landlord’s appeal. It recalled the guidance on the construction of contracts given by Lord Neuberger in the UK Supreme Court case of Arnold v Britton  AC 1619:
When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd  AC 1101, para 14. And it does so by focusing on the meaning of the relevant words… in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions. (§ 15 of Arnold)
Taking all this to the facts in the case, the UT concluded that the relevant clause in the lease was wide enough to cover the costs of defending threatened legal actions. The tenant was unable to rely on section 20C of the 1985 Act to disallow the costs because that section only shields a tenant where proceedings are actually brought and where the costs that the landlord seeks to recover relate to those proceedings.
The case was sent back to the First-tier Tribunal to decide on what sums were ‘reasonable’ for the landlord to clawback, (as required in section 19 of the 1985 Act). The Tribunal refused to make an order
Bretby represents a stark health warning to tenants in leasehold properties that a legal disputes with the landlord can backfire with the unintended consequence of increasing service charges, particularly where the lease gives the landlord a general right to recover costs of defending intended legal action. Landlords and property managers should review the terms of their lease with care in order to assess how far the costs of dealing with any legal dispute can be recovered via the service charge (as opposed to other mechanisms).
Need help with a leasehold dispute? CONTACT ME using the form below.
The case of AM (Pakistan) v Secretary of State for the Home Department  EWCA Civ 180 involved a family that had two teenage sons who had lived in the UK for over 7 years. No member of the family had permission to reside in the UK. They tried to rely on a concession widely known as the ‘7-year rule’ (now found in the Immigration Rules and primary legislation). For background on the rule, see my previous post.
The Home Office refused the family’s applications and they appealed to the First-tier Tribunal. The Judge dismissed the appeal, finding that the distress of removing the children would not be be “long-lasting or irreversible” and that they could return to an extended family in Pakistan. But the key reason why the children’s claim to remain in the UK was rejected was their parents’ poor immigration history:
Notwithstanding that the children’s best interests were to remain in the UK, the judge held that they should be refused leave to remain which necessarily meant that the other three applicants’ cases had to fail also. The reason was that their parents had shown a blatant disregard to the immigration law, choosing to remain illegally on the expiry of their visas. They did not seek to regularize their status for many years, and even when they did, they remained illegally in the country after their applications had been refused.
When the family appealed to the Upper Tribunal, the UT disagreed and found that the test of whether it was ‘reasonable’ to require the children to leave the UK was an issue to be determined from the perspective of the child alone (as the language of Rules and legislation suggest following the previous case of Treebhawon and others  UKUT 674).
The Secretary of State appealed to the Court of Appeal and won. In a mercifully short judgment, the Court of Appeal confirmed (again) that the ‘reasonableness’ test allows decision-makers to consider the wider public interest of firm immigration control, in harmony with the previous authority of MA (Pakistan) and others v Secretary of State for the Home Department  EWCA Civ 705 (which I’ve blogged about here).
That guidance applies to paragraph 276ADE(1)(iv) of the Rules, even though on the face of it the Rules make no reference whatsoever to public interest factors (see § 22 of the judgment). The Court upheld the decision of the First-tier Tribunal.
But there’s a kink in the reasoning.
This decision, like MA (Pakistan) before it, expresses some reluctance before taking this path. I think that’s because beneath the technicalities, the law is allowing decision-makers to punish children for the sins of their parents, sometimes where there is little or no justification for doing so.
It’s questionable whether the broad definition of ‘reasonableness’ being applied in the Court of Appeal produces outcomes that are likely to respect human rights legislation, in particular, the protected right to family life.
It’s also questionable whether this approach gives effect to the duty to safeguard and promote the welfare of children and does justice to the long line of case law on the weight to be attached to the best interests of children. We’re reminded by the Supreme Court that children must be treated as autonomous rights-holders, not vehicles for other people’s rights.
If the end result is that children are being punished for the sins of their parents, that may put the UK in breach of its international obligations on child rights and respect for the right to family life.
 See paragraph 276ADE(1)(iv) of the Rules and section 117B(6) of the Nationality Immigration and Asylum Act 2002.
Read my FREE table of case law in this area here.
CONTACT ME using the form below if you require advice, help with writing an application or representation on appeal or judicial review.
There’s no sure-fire, scientific way of proving a person’s claimed age.
The search for a single, objective and reliable method has led to controversy over the use of dental x-rays.
Some local authorities, experts (and one ill-informed MP) have been pushing to use them, while the British Dental Association has deplored the practice as ‘inaccurate’ and ‘unethical’ given that the procedure are not medically required. Even the Home Office has expressed doubts.
Recently, Judges in the Court of Appeal have come to a different conclusion. They have ordered certain children refusing to undergo unnecessary dental x-rays to have them done or else have their claims struck out or stayed. Such orders were described by the Upper Tribunal (Immigration and Asylum Chamber) as ‘draconian’.
In R (on the application of ZM and SK) v The London Borough of Croydon (Dental age assessment)  UKUT 559 (IAC), Mr Ockleton, the Vice President of the Upper Tribunal , gave 7 points of guidance on the approach that Tribunals should take to the use of statistical data from dental x-rays and on when it is reasonable for a person to refuse to undergo the procedure.
1. Considerable circumspection must always be deployed in responding to a claim that statistical evidence tends to prove a fact about an individual. Statistics may be more useful to decision-makers at the far ends of the scale (where they may be able to show the plausibility or implausibility of a proposition) than in the middle of the scale where they purport to show the likelihood of the correctness of a plausible proposition.
2. When considering statistical evidence it is always necessary to determine whether the population constituting the database from which the statistics are drawn is sufficiently identical to the population from which the individual is drawn.
3. The fact that all teeth are mature in the sense that all have reached Demirjian stage H is a sign of chronological maturity but is not a reliable indicator of whether an individual is more or less than 18 years old. The use of the Demirjian stages below stage H does appear to be more reliable in the prediction of age, particularly in the lowerteens.
4. None of the three mandibular maturity markers so far identified appears yet to have attained such acceptance in the scientific community that it can be accepted as a reliable pointer to chronological age in the late teens in males.
5. Dental wear is not a guide to chronological age in the absence of data for a population with similar diet and masticatory habits to those of the person under examination.
6. The decision of the Court of Appeal in London Borough of Croydon v Y should not be read as prohibiting a person from refusing to undergo a dental examination. However, (i) the risk inherent in the exposure to x-rays during the taking of the dental panoramic tomograph is not likely to be a reasonable ground for refusing to allow the tomograph to be made, given the advantages stemming from ascertainment of an individual’s true age, and (ii) despite the reservations expressed herein, analysis of a person’s dental maturity may well have something to add to the process of assessing chronological age.
7. It therefore follows that generally speaking the taking of a dental tomograph should be ordered if a party seeks it, and (because of the process of dental maturity) the earlier the tomograph is taken, the more likely it is to be of assistance.
For more discussion on the law in this area, see my earlier post on dental x-rays and children from the Calais camp.
I‘ve cycled around London for over 10 years now.
I used to cycle in all seasons until I had enough of my wheels skidding through ice and snow and pedalling uphill in gale-force winds.
You name it, I’ve probably cycled through it.
These days, fair weather cycling suits me much better.
I’ve cycled even when really I should be driving, what with kids, shopping and related baggage.
It’s a rewarding habit for stubborn personalities with chunky thighs, like me. The exercise and the wonderful, Tron-like thrills can be quite addictive.
In my decade of cycling I’ve (touch wood) never had a serious accident, though I’ve had more near misses than I’d like to mention here.
It’s a potentially lethal pursuit, especially in London. The terrible death toll is unacceptable and all road users should take extra care out there.
I’ve had my chain fall off, my front wheel fall off, suffered a puncture half-way to Brighton and then my poor navigation skills led to me being trapped in the motorways surrounding Gatwick Airport.
But I’ve never in 10 years been sexually harassed while cycling.
I really wish my female friends could say the same. But many of them can’t.
As if it isn’t stressful enough pedalling through congested, smog-laden streets filled with double-decker buses and irate taxi-drivers (let alone doing so in heels or other impractical clothing), many female cyclists endure volumes of misogyny and abuse. And that’s just on their way to work (be it paid or unpaid).
I’ve heard about threats, dangerous abuse and downright creepy behaviour from drivers.
I get the sense that there’s a lot of it out there. Quite how much is impossible to know.
The recent viral video of a woman tearing off a wing-mirror in retaliation for taunts and harassment by a white-van man may or may not be “FAKE NEWS!!!” but the reality is that sexually-motivated abuse is an ugly and persistent feature of our roads and streets.
In London. In 20-flipping-17, folks.
Life’s hard enough without these extra layers of misery added. Urban cycling is emblematic of the multiple challenges women overcome at a disadvantage on a daily basis.
I’ve decided that it’s time to do something positive in response to hatred and sex discrimination and to #BeBoldForChange.
I’m offering some of my time for free to help you address gender inequality. (Exactly how much time depends on the level of demand!)
For the next month, I’m offering a FREE ADVICE SURGERY for anyone who wants to know what their rights are when it comes to gender discrimination.
If you feel you have a gender issue at work or in education, I will give you a FREE initial consultation of 30-minutes at a time that suits you. This can be in person or by video link at various times of the day, at your convenience.
Whether you’re concerned about harassment, dismissal, sexist dress codes and attitudes, maternity issues, unfair pay and promotions or a combination of the above, I’d like to hear from you and discuss your options.
(As you can probably tell, this isn’t a meticulously planned marketing scheme or a contrivance designed to detract from both my own privilege and the efforts of the many excellent and bold women combatting inequality and discrimination in their fields. It’s a modest way of putting my legal services where they matter).
Use the form below to book your free initial consultation or call 0207 421 8000.