MW (Democratic Republic of Congo) v Secretary of State for the Home Department [2011] EWCA Civ 1240

MW (Democratic Republic of Congo) v Secretary of State for the Home Department [2011] EWCA Civ 1240 (Rix, Sullivan and Lewison LJJ)(28 October 2011):

24.   I do not accept Mr. Hall’s submission that, notwithstanding Maslov, the Respondent may lawfully deport a settled migrant such as this Appellant even in the absence of any very serious reasons to justify deportation. Whether the reference to “very serious reasons” in paragraph 75 of Maslov is described as a “rule”, “test” or “threshold”, or simply as the inevitable consequence of the proper application of the Üner criteria to the case of a settled migrant who has spent all or the major part of his childhood and youth in the host country, Maslov does pull the threads together and in so doing makes it clear in paragraph 75 that very serious reasons are required to justify expulsion in such a case. In the absence of very serious reasons the deportation of a settled migrant will not be proportionate under Article 8.

UKBA Independent Chief Inspector Publishes Report On Management Of Foreign National Prisoners

John Vine, Independent Chief Inspector of the UK Border Agency (pictured), has published his report on the UK Border Agency’s management of foreign national prisoners entitled A thematic inspection of how the UK Border Agency manages foreign national prisoners. 

The Executive Summary reads:

1. The UK Border Agency is responsible for deciding, in accordance with the law, whether foreign national prisoners should be deported from the UK. Where deportation is being considered, it also decides whether a person should be detained at the end of their prison sentence or released into the community with a requirement to report to the Agency if deportation has not occurred prior to the end of the prison sentence. This inspection assessed the effectiveness and efficiency of the Agency in managing foreign national prisoners.

2. Between 2007 and 2010, a total of 20,360 foreign national prisoners were deported from the UK. In 2010, 5,235 foreign national prisoners were deported. More than 2,500 (49 per cent) of these left the UK under a Facilitated Returns Scheme, which provided a cost-effective method of deportation. Greater emphasis had been placed on this scheme by the Agency with 19 per cent more foreign national prisoners deported than in 2009. A proportion of these people had been deported prior to the end of their custodial sentence under an Early Removal Scheme with consequent reduction in the cost of detention.

3. There was evidence of some good practice in decision-making with case owners proactively obtaining information from other public service agencies to ensure that decisions reflected all available evidence. However, the Agency had also made decisions to deport before foreign national prisoners had sufficient chance to make representations and, in five cases of our file sample, decisions to deport had been taken without the reasons being provided to the foreign national prisoner.

4. We found a significant disparity between the Agency’s and the courts’ interpretation of whether a foreign national prisoner should be entitled to remain in the UK on human rights grounds. Between March and December 2010, the Agency’s decisions to deport had been overturned in 425 cases by the First-Tier Tribunal – the overwhelming majority on human rights grounds. This contrasted with figures showing 151 foreign national prisoners being granted permission to remain on initial consideration by the Agency. In the 12 months to February 2011, 32 per cent of appeals lodged by foreign national prisoners against deportation had been successful.

5. There were a growing number of people whom the Agency had decided to deport, but had not done so, primarily because of difficulties in enforcing returns to particular countries, including the availability of travel documents. In 52 cases of our file sample (39%) the foreign national prisoner had yet to be deported. In May 2011 there were 3,775 foreign national prisoners in the community who had not been removed at the end of their custodial sentence. There was consistent awareness by staff and managers of the difficulties in obtaining travel documents, but no evidence that the issues and timescales were factored systematically into the handling of each case.

6. The Agency continues to rely on accurate referral of foreign national prisoners from prisons and the courts. Work had taken place to reduce the risks of incorrect referrals although the Agency was still seeking to locate 12 people who had been released directly from court or who had not been referred correctly.

7. By January 2011, over 1,600 foreign national prisoners were detained under immigration powers at the end of their custodial sentence, pending deportation. The average length of detention had increased from 143 days in February 2010 to 190 days in January 2011, and 27 per cent of all foreign national prisoners who were detained after their custodial sentence had been detained for longer than 12 months.

8. The Agency’s policy presumes the release of foreign national prisoners at the end of their sentence subject to an assessment of the risk they pose to the public and the risk of absconding. However, foreign national prisoners had remained in detention in 94 out of 97 cases sampled (97 per cent), where they had completed their sentence and where deportation was being pursued. Release needed to be authorised at senior Board level, in contrast to a decision to detain, which could be taken by lower management.

9. There was genuine fear and reluctance to release, given the potential implications of a foreign national prisoner committing a further offence, but no evidence that a detailed assessment of the risk of reoffending had taken place in each case. There was also a disparity between the number of people released from detention by the Agency and the number released on bail by the courts. Between February 2010 and January 2011, the Agency released 109 foreign national prisoners from detention compared with 1,102 released on bail by the courts.

10. The Agency had increased the amount of contact with foreign national prisoners who were serving their custodial sentence. However, there were no minimum standards for the level of contact that case owners should have, and consequently there were variations in practice. The Agency had not carried out an assessment to determine whether greater contact would be beneficial in terms of timeliness or accuracy of decision-making.

11. The standard of file management varied, with some containing documents arranged in a logical order, while others lacked information explaining actions that had been taken. In 11 of the cases sampled (8 per cent), information relating to people other than the foreign national prisoner was held on file with no explanation as to why this had happened. In addition, there was a risk that data obtained for foreign nationals who had been acquitted of an offence would be retained unlawfully in the absence of a clear retention or destruction policy.

12. The Agency received 144 complaints from foreign national prisoners between February 2010 and January 2011; the overwhelming majority relating to the standard of service provided by the Agency, and 31 of these had been substantiated. There was an inconsistent understanding amongst staff of what constituted a complaint, with the risk that some complaints were not being identified. Senior managers received feedback on the nature of complaints, although we found no evidence of specific operational changes that had occurred as a result.

13. The Agency routinely monitored the number of foreign national prisoners deported, the number detained following completion of their sentence and the length of detention. It had assessed the likely numbers and costs of foreign national prisoners remaining in detention or living in the community, and monitored risks at senior Board level.

14. Staff changes arising from measures to reduce costs were being introduced with a likely short-term drop in the number of deportations as new staff received training.

 The recommendations are as follows:

1. Reduces the number of decisions to deport that are overturned on appeal.

2. Ensures that foreign national prisoners are provided with the reasons why they are being deported at the time the decision is made.

3. Develops clear timescales for obtaining travel documentation in individual cases to ensure that deportation action can be taken more quickly where appropriate.

4. Actively manages all cases where foreign national prisoners have yet to be deported, and considers regularly whether deportation can be enforced or whether a person is entitled to remain in the UK.

5. Ensures that each individual decision to detain or release a foreign national prisoner at the end of their sentence takes full account of the risk of reoffending, in line with published policy and any assessments produced by the National Offender Management Service.

6. Changes the level of authorisation required to release foreign national prisoners at the end of their sentence in line with its policy that presumes release.

7. Analyses whether the frequency and nature of contact between case owners and foreign national prisoners can improve the quality and timeliness of decisions.

8. Ensures that files contain data relevant only to the subject of that file; and ensures the timely destruction of data where a person has been acquitted of an offence.

The full report can be found here.



R (otao BA) v SSHD [2011] EWHC 2748 (Admin)

R (otao BA) v SSHD [2011] EWHC 2748 (Admin) (26 October 2011) (Laing QC)(§239) :

My conclusions are:

a. Despite the various breaches of the Secretary of State’s policy which I have described, the statutory warrant for BA’s detention was not undermined until 21 June 2011, at which point the further detention of BA breached the Hardial Singh principles.

b. He is entitled to damages for false imprisonment, to be assessed, from that date until the date when the Secretary of State released him pursuant to the interim order I made on 7 October 2011.

c. BA’s article 3, alternatively, article 8, rights were breached by his detention between 4 July and 6 August 2011.

Full text of judgement is available here.


New Upper Tribunal Decision

Alam (s 85A – commencement – Article 8) Bangladesh[2011] UKUT 00424 (IAC) (Lane):

(1) Where it applies, s. 85A of the Nationality, Immigration and Asylum Act 2002 precludes certain evidence from being relied on, in order to show compliance with the Immigration Rules.

(2) “Fairness” arguments concerning the application of the transitional provisions regarding s. 85A, in article 3 of the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011, may have a legitimate part to play in a proportionality assessment under Article 8 of the ECHR, when assessing the strength of the State’s interest in maintaining the integrity of the Immigration Rules.

R (otao Davies and another) v The Commissioners for HMRC [2011] UKSC 4

R (otao Davies and another) v The Commissioners for HMRC [2011] UKSC 4 (Lord Hope, Lord Walker, Lord Mance, Lord Clarke, Lord Wilson) (19 October 2011):

In 1999 the Inland Revenue [now known as Her Majesty’s Revenue and Customs, ‘HMRC’] published a booklet known as IR20 and entitled “Residents and Non-Residents – Liability to tax in the United Kingdom”, which offered general guidance on the word “residence” and the phrase “ordinary residence” for the purposes of an individual’s liability for UK income and capital gains tax. IR20 remained operative until 2009.

The Appellants contend that, on its proper construction, IR20 contained a more benevolent interpretation of the circumstances in which an individual becomes non-resident and not ordinarily resident in the UK than did the ordinary law; alternatively that prior to 2005 it was the settled practice of HMRC to adopt such a benevolent interpretation of IR20. Either the construction or the practice gave rise (so they say) to a legitimate expectation that the benevolent interpretation would be applied to determinations of their status for tax purposes and consequently HMRC should not have determined that, during the years relevant to them, they were resident or ordinarily resident in the UK.

The First Appellants, Mr Davies and Mr James, contend that prior to 6 April 2001 they left the UK for the settled purpose of establishing and working full-time for a Belgian company. Although their wives and Mr Davies’ daughters remained resident in the UK and although they returned frequently to the UK, albeit for short periods, they contend that they are entitled to be treated as non-resident and not ordinarily resident in 2001 – 2002 by reference to paragraph 2.9 of IR20 since they had gone abroad for a settled purpose and had remained abroad for at least a whole tax year.

The situation of the Second Appellant, Mr Gaines-Cooper, is different from that of the First Appellants in that it has already been conclusively determined, by reference to the ordinary law, that he was resident and ordinary resident in the UK in the years relevant to him. He contends, however, that his status should instead be determined by reference to paragraphs 2.8 and 2.9 of IR20 or to the alleged settled practice and that, on either basis, he was not resident in the UK from 1993 to 2004 nor ordinarily resident here from 1992 to 2004.

The High Court refused the Appellants permission to apply for judicial review of the determinations by HMRC that they were resident and ordinarily resident in the UK in the relevant years. The Court of Appeal granted them permission but dismissed their substantive applications. The Appellants appeal to the Supreme Court.

The Supreme Court, by a 4-1 majority, dismisses the two appeals on the grounds that the proper construction of IR20 does not support the Appellants’ contentions and that there is insufficient evidence of any settled practice on the part of the HMRC by way of departure from the IR20 guidance. Lord Wilson gives the leading judgment; Lords Hope, Walker and Clarke give short concurring judgments. Lord Mance gives a dissenting judgment.

An individual’s status as being resident and ordinarily resident in the UK largely determines his liability for UK income tax and capital gains tax. In law an individual who has been resident in the UK ceases to be so resident only if he ceases to have a settled or usual abode in the UK per Levene v Inland Revenue Comrs [1928] AC 217 [13 -14]. Section 334 of the Income and Corporation Taxes Act 1988 (now replaced) also provided that an individual would nevertheless be deemed to have remained resident in the UK if he had left the UK for the purpose only of occasional residence abroad [15-17]. At law, an individual needs to effect a ‘distinct break’ in the pattern of his life in the UK in order to become non-resident per Reed v Clark [1986] Ch 1 [18-19]; this mandates a multifactorial evaluation of his circumstances [20]. But an individual’s pursuit of full-time employment abroad is likely to be
sufficient to cause him to cease to be a UK resident and not to be deemed under the statute still to be a UK resident [21].

HMRC issued guidance on residence and ordinary residence in IR20. HMRC accepts that it is bound by whatever might be the proper construction of the guidance and that the guidance gave rise to a legitimate expectation that it would appraise any individual’s case by reference to such guidance even if it failed to reflect the ordinary law [27]. The First Appellants contend that HMRC represented in IR20 that non-residence was achieved if an individual left the UK to take up full-time employment abroad, or left the UK permanently or for at least three years, or went abroad for a settled purpose and remained abroad for at least a whole tax year, provided in each case that any visits to the UK totalled less than six months in any one year and averaged less than 91 days each year [‘the day-count proviso’] [30]. The Second Appellant contends that HMRC thereby represented that it was sufficient for an individual to live abroad for at least three years and to satisfy the daycount proviso, thus eliminating any need for consideration of whether he had effected a distinct break in the pattern of his life in the UK [31].

The majority holds that the proper construction of IR20, when read as a whole, does not support the Appellants’ contentions [45, 64]. Paragraph 2.1 indicated that an individual’s claim to non-residence would generate consideration of various aspects of his life with a view to the identification of its usual location [35].

The heading to paragraphs 2.7 to 2.9 namely ‘Leaving the UK permanently or indefinitely’ required consideration of the quality of his absence from the UK [37]. Paragraph 2.9, which stated that if an individual had gone abroad for a settled purpose, he would be treated as not resident and not ordinarily resident if his absence from the UK had covered at least a whole tax year and he had met the day-count proviso, could not be construed as a freestanding route to non-residence since there was an express link to paragraph 2.8, which required an individual to leave indefinitely [41]. Although its exposition of how to achieve non-residence should have been much clearer, IR20, taken as a whole, informed the ordinarily sophisticated taxpayer that he had to leave the UK permanently, indefinitely or for full-time employment; had to do more than to take up residence abroad; and had to relinquish his ‘usual residence’ in the UK. It also informed him that any subsequent returns to the UK had to be no more than ‘visits’ and that any ‘property’ retained in the UK by him for his use had to be used for the purpose only of such visits rather than as a place of residence [45]. He will have concluded that such requirements in principle demanded, and might well in practice generate, a multifactorial evaluation of his circumstances [45, 64] and, in summary, that he had to make a distinct break [45]. Alternatively, IR20 was so unclear as to communicate nothing to which legal effect might be given [47].

The majority holds that there was insufficient evidence that HMRC had departed from IR20 as a matter of settled practice [58]. Such a contention requires evidence that the practice was so unambiguous, so widespread, so well-established and so well-recognised as to amount to a specific commitment of treatment in accordance with it [49] but the Appellants’ evidence to this effect was far too thin and equivocal [58].

Lord Mance, dissenting, holds that the references to going abroad permanently or living outside the UK for three years or more in paragraphs 2.7 – 2.8 referred to the taxpayer’s intention regarding the duration of his absence rather than the quality of any absence or the nature of any return visits or continuing UK connections [89]. Paragraph 2.9 was designed to assist taxpayers who never intended to leave permanently or indefinitely, but went abroad for a settled purpose to engage in an overseas activity for an extended period of time of lesser duration [89]; or where the taxpayer could subsequently show he had acquired an intention to leave the UK permanently or that his actual absence covered three years from departure [90]. It would be remarkable if there were a requirement for ‘a distinct break’ from life in the UK when no such requirement was clearly expressed [93] and other factors, including the day-count proviso, militated against such a requirement [95; 96].

The full decision is available here.

Government Accepts MAC Recommendations On Shortage Occupations

The government today accepted recommendations from the independent Migration Advisory Committee (MAC) that will see the number of jobs covered by the list drop by 40,000, bringing the total down from 230,000 to 190,000.  The MAC recommended the changes where evidence from a range of industries and sectors showed resident workers are available to fill the vacancies.

Occupations that the MAC recommended be removed from the list include:

  1. secondary education biology teachers;
  2. speech and language therapists;
  3. pharmacists;
  4. orthoptists;
  5. veterinary surgeons; and,
  6. rank and file orchestral musicians.

Added to the list will be:

  1. actuaries;
  2. high integrity pipe welders;
  3. environmental scientists; and,
  4. geochemists

The government has accepted the MAC’s recommended list in full however, rank and file orchestral musicians will not be removed from the list immediately, until further discussions take place with the industry to discuss the resident labour market test.

The revised list will come into effect from 14 November 2011. This means that:

  1. For applications covered by the annual limit, the new list will apply to all applications by Tier 2 sponsors for restricted certificates of Sponsorship made on or after 14 November 2011.
  2. For applications outside the annual limit, the new list will apply to all unrestricted certificates of sponsorship assigned to migrants on or after 14 November 2011

Visitors And NHS Treatment

The UKBA today announced that visitors to the UK who fail to pay off their debts for NHS treatment will soon be denied permission to enter or stay in the UK. Changes to the Immigration Rules were laid in Parliament today. Those subject to immigration control who fail to settle an outstanding bill of £1,000 or more will not be allowed to enter or remain in the UK until the debt is paid off.

New Upper Tribunal Decisions

RK (entitlement to represent: s. 84) Bangladesh [2011] UKUT 00409 (IAC) (Lane):

(1) Section 84(1) of the Immigration and Asylum Act 1999 provides that no person may provide immigration advice or immigration services unless he is a qualified person.

(2) Section 82(2) provides that references to the provision of immigration advice or immigration services are to the provision of such advice or services by a person in the United Kingdom “in the course of a business carried on (whether or not for profit) by him or by another person”.

(3) Rule 48(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 provides that “an appellant … may … be represented by any person not prohibited from representing him by section 84 …”.

4) Accordingly, where a family friend was seeking (otherwise than in the course of a business) to represent the appellant at a hearing, the Immigration Judge had no right to restrict the friend’s involvement to that of a Mackenzie Friend on the basis that he was not legally qualified (see also HH (Sponsor as representative) Serbia [2008]UKAIT 00063).


Kishver and others (“limited leave”: meaning) Pakistan [2011] UKUT 00410 (IAC) (Ockleton and Southern):

“Limited leave” under s. 10(i)(a) of the Immigration and Asylum Act 1999 includes leave under s. 3C of the Immigration Act 1971.


Bhanushali (re-using same CAS: new rules) India [2011] UKUT 00411 (IAC) (Lane):

(1) In the fast-changing world of the points-based system, it is important (a) to ascertain the precise basis on which an application has been refused; (b) to identify the relevant provisions of the Immigration Rules; and (c) to check the relevant commencement provisions.

(2)  Thus, where an applicant had been refused for not having a valid Confirmation of Acceptance for Studies, because the reference number for that Confirmation had already been used, the Immigration Judge should have ascertained what the Immigration Rules required in that regard, in the circumstances of the applicant’s case. Had she done so, she would have seen that the reason for the refusal was unsound, having regard to the commencement provisions of HC 908.

(3)  Pankina and others [2010] EWCA Civ 719; [2010] Imm AR 689 is not authority for any general proposition that the requirements of the Immigration Rules are to be disregarded, merely because an Immigration Judge considers that their application to a particular person would be “unfair”.

Changes To The List Of English Language Tests

The UKBA have today made amendments to the list of approved English language test providers for applications made under Tiers 1, 2 and 4 of the PBS and for spouse or partner applications.

The amendments include:

  1. Three tests awarded by Cambridge ESOL now offer certification at 3 levels of the Common European Framework rather than just 2 levels. The tests include the Cambridge English: Key, Cambridge English: Preliminary and Cambridge English: Business Preliminary.
  2. The Educational Testing Service (ETS) have updated their web address for their test of English for international communication (TOEIC) and test of English as a foreign language (TOEFL)’
  3. Pearson have updated their contact details and clarified that they do not issue paper certificates’
  4. Separate certificate and notification of candidate results sheet are required for speaking part of the City and Guilds English language test’