Media By: Jonathan Metzer
29 May 2018 by Jonathan Metzer
On 24th May 2018 a new scheme to process citizenship applications for the Windrush generation was announced, after the Government’s apologies last month. The Windrush Scheme guidance explains how this will work in detail.
It is notable that applicants who are refused will have no right of appeal against this decision. The chair of the Home Affairs Select Committee, Yvette Cooper MP, has tweeted to express her concern about this.
This author suggests that it is arguable that the denial of a right of appeal is open to legal challenge.
How the scheme works
Citizens of Commonwealth countries who were living in the UK before 1 January 1973, plus their children and certain non-Commonwealth citizens will be assessed and issued with proof of British citizenship if they already are British in law, or will be considered for naturalisation if they are not. Those who do not qualify for British citizenship will be assessed to see if they have the right of abode and those who do not qualify for that will be considered for a permit confirming their right to be in the UK under the no time limit biometric residence permit scheme.
This is all explained in detail in this article on Free Movement.
But what about if the Home Office is not satisfied that an applicant meets the scheme?
The guidance states on p. 13 as follows:
Where a person is determined not to be issued with a document under the Windrush Scheme in accordance with this guidance, the decision will not attract a right of appeal or an administrative review.
So a person who is refused will not be able to appeal to the First-tier Tribunal. They will only be able to challenge the decision by way of judicial review.
The difference between an appeal and a judicial review
Why does this matter? The basic answer is that it is much harder for a claimant to succeed in a judicial review than in an appeal. In an appeal, the judge will make the decision afresh following oral and written evidence. Statistics in March showed that about half of all immigration appeals are successful.
In judicial review, on the other hand, the judge does not step into the shoes of the decision-maker and is tasked instead with evaluating whether the decision was lawful and rational. There is always the possibility that the judge will conclude that whilst the decision is tough, it is still legally watertight. In addition, an applicant must apply for permission before they can get a substantive hearing and an unsuccessful applicant usually pays the Secretary of State’s costs.
So, there is a fair amount riding on the issue of whether a claimant gets an appeal or not.
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27 February 2018 by Jonathan Metzer
One way for an immigrant to gain the right to be in the UK is by making an application under the Immigration Rules. But these applications are relatively expensive and the requirements have become increasingly stringent (e.g. in a case of a partner, the normal minimum income requirement of £18,600 p/a, which was upheld by the Supreme Court).
For as long as the UK remains in the EU, there is also an alternative option – an application under the Immigration (European Economic Area) Regulations. This offers a route for the family of an EU citizen to apply for a UK residence card.
But the law in this area concerning the right of appeal has been on the move. This article will aim to give an update of where we are up to and what is still yet to be decided.
UPDATED following the Advocate General’s opinion in Banger – see end of this post.
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5 February 2018 by Jonathan Metzer
We are delighted to announce the return of the weekly news Round-Up!
Each Monday, Sarah-Jane Ewart, Conor Monighan and Eleanor Leydon will be giving you a bite-sized round-up of legal developments over the last week. These will include summaries of the latest decisions in the courts and discussion of wider issues. We hope these updates will assist in keeping on top of the fast-moving currents in the law in 2018. Don’t go away — these will start next week!
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22 December 2017 by Jonathan Metzer
2017 has been a dramatic year in global politics and no less in the world of human rights law.
It has been a fascinating time to be editor of the UK Human Rights Blog. As just a taster, decisions have ranged across issues of the best interests of a seriously ill child, the conduct of British soldiers in Iraq and whether a transgender father should be allowed access to his children in an ultra-religious community. But there is much, much more.
So pour yourself a large measure of whatever you fancy, unwrap that mince pie waiting for you in the larder, and let me take you by the hand as we embark on a whirlwind tour of 10 of the biggest human rights cases of the year:
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12 December 2017 by Jonathan Metzer
On 5th December 2017, the Divisional Court gave judgment in Power v HM Senior Coroner for Inner London [2017] EWHC 3117 (Admin), directing that an inquest held in 1998 into a road traffic accident following a police chase had been insufficient and a fresh inquest needed to be held.
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1 December 2017 by Jonathan Metzer
On 29th November 2017, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague delivered its judgment on six appeals by Croatian officials and military officers against their convictions for their actions during the Bosnian War of 1992-95.
These crimes, which included grave breaches of the Geneva Conventions and crimes against humanity, arose out of a joint criminal enterprise aimed at creating a Croatian entity in the territory of Bosnia and Herzegovina, known as the ‘Croatian Republic of Herzeg-Bosnia’. This was backed by the government of Franjo Tuđman, President of Croatia at the time.
Following the decision, Slobodan Praljak, one of the appellants, shouted out that he rejected the verdict and drank a vial of poison, dying later that day.
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15 June 2017 by Jonathan Metzer
Image: Flickr.com
R (Kiarie) v Secretary of State for the Home Department; R (Byndloss) v Secretary of State for the Home Department [2017] UKSC 42
In a nutshell
The Government’s flagship scheme to deport foreign criminals first and hear their appeals later was ruled by the Supreme Court to be incompatible with the appellants’ right to respect for their private and family life (reversing the decision below).
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23 November 2016 by Jonathan Metzer
Armes v Nottinghamshire County Council [2016] EWHC 2864 (QB) – read judgment
In a nutshell
The right of a claimant to name the people who abused her prevailed over the rights of the perpetrators and others to private and family life.
The claimant, Natasha Armes, applied to set aside an anonymity order granted at the start of a previous trial to protect the identities of witnesses accused of physically and sexually abusing her in foster care.
Mr Justice Males undertook the balancing exercise between the rights to private and family life under Article 8 of the European Convention on Human Rights and the right to freedom of expression under Article 10.
Freedom of expression won the day. Males J lifted the anonymity order, accepting that since most of the allegations had now been proven anonymity was no longer justified.
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