Sasha Rozansky, Deborah Gellner and Lara ten Caten provide a summary of the latest Home Office statistics and cases on EU law, trafficking and children.
Home Office statistics
The immigration statistics show that in the year ending March 2018, asylum applications decreased by eight per cent (26,547 from main applicants) from the previous year (How many people do we grant asylum or protection to?
, Home Office/National Statistics, 24 May 2018; see also associated asylum data tables
). The highest numbers of applications were from nationals of Iran, Pakistan, Iraq, Sudan and Bangladesh.
At the end of March 2018, 42,352 asylum-seekers were in receipt of support under Immigration and Asylum Act (IAA) 1999 s95, an eight per cent increase on the previous year. The largest nationality groups in receipt of s95 support were nationals of Iraq (5,013), followed by nationals of Pakistan (4,606), Iran (3,829), Nigeria (3,384), and China (3,308) (see table as_17_q). There were 4,333 refused asylum-seekers in receipt of support under IAA 1999 s4 at the end of March 2018.
In the year ending March 2018, 755 asylum applicants had their age disputed (see table as_10_q). In the year ending March 2018, Eritrea was the nationality with the most age disputes (19 per cent; 140 individuals), followed by nationals of Afghanistan (120), Sudan (110), Iraq (93) and Iran (75).
In the year ending March 2018, 26,541 people entered detention, a decrease of eight per cent compared with the previous year (28,978) (How many people are detained or returned?
, Home Office/National Statistics, 24 May 2018). At the end of March 2018, there were 2,400 people in detention, 18 per cent lower than at the end of March 2017 (2,930).
Supreme Court refers question on the meaning of ‘direct descendant’
•SM (Algeria) v Entry Clearance Officer, UK Visa Section1See also page 16.
14 February 2018
An Algerian child was under the legal guardianship of a French married couple, who had adopted her in Algeria under the Islamic ‘kefalah’ system. The guardians lived in the UK, where the husband had a permanent right of residence. They initially lived with the child in Algeria before the husband returned to the UK. The child was refused entry clearance as the adopted child of an EEA national. The question was whether the child was a family member under reg 7 or reg 8 of the Immigration (European Economic Area) Regulations 2006 SI No 1003 (I(EEA) Regs 2006), which transpose Directive 2004/38/EC
(the Citizens Directive) into national law.
The Supreme Court considered that there was nothing in Citizens Directive article 2(2)(c) to suggest that the term ‘direct descendant’ had to be interpreted in accordance with the national law of the host member state: it was an autonomous term in EU law that should be given a uniform interpretation throughout the Union. However, the court was concerned that its interpretation might, in some cases, create opportunities for exploitation, abuse and trafficking, and that an automatic right of entry to ‘kefalah’ children might lead to some of them being placed in homes that would domestically be considered as unsuitable. It therefore decided to refer the following questions to the Court of Justice of the European Union (CJEU):
1Is a child who is in the permanent legal guardianship of an EU citizen or citizens, under ‘kefalah’ or some equivalent arrangement provided for in the law of their country of origin, a ‘direct descendant’ within the meaning of Citizens Directive article 2(2)(c)?
2Can other provisions in the Citizens Directive, particularly articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of, or are at risk of, exploitation, abuse or trafficking?
3Is a member state entitled to inquire, before recognising a child as a direct descendant under article 2(2)(c), into whether the procedures for placing the child in the guardianship or custody of an EEA national were such as to give sufficient consideration to the best interests of that child?
Zambrano test remains one of compulsion
•Patel v Secretary State for the Home Department; Secretary of State for the Home Department v Shah and Bourouisa
13 December 2017
This case was a set of conjoined appeals in which the court considered the question of derivative claims for residence in the UK where the individuals seeking residence cared for British relatives, whether children or adults in need of care.
Mr Shah was a Pakistani national, without leave to remain. He had married a UK national and had a child, for whom he was the primary carer. Both the First-tier Tribunal (FTT) and the Upper Tribunal (UT) found that if Mr Shah were removed from the UK, his wife would follow and the child would therefore be compelled to leave also. He therefore had a derivative right of residence.
Mr Bourouisa was an Algerian national. He was also in the UK without leave to remain, had married a UK national and had a child, for whom he was the primary carer. The FTT and the UT found that if Mr Bourouisa were removed from the UK then the child would be compelled to leave, because it would be unreasonable to expect the wife to give up her job to look after the child. He therefore had a derivative right of residence. The Home Office appealed in both cases.
Mr Patel, an Indian national, had arrived in the UK on a student visa and overstayed to take care of his elderly British parents, who had several health problems including final-stage kidney disease. The UT found that Mr Patel was his father’s primary carer but rejected the assertion that if he were removed, his parents would be compelled to follow him. Mr Patel appealed.
The Court of Appeal considered whether Zambrano
(Ruiz Zambrano v Office national de l’emploi Case C-34/09, 8 March 2011
) had been altered by Chavez-Vilchez and others v Raad van bestuur van de Sociale verzekeringsbank and others Case C-133/15, 10 May 2017
. The court held that the Zambrano
principle had not been altered: the test remained one of compulsion. Rather, Chavez-Vilchez
was a reminder that the principle had to be carefully applied, considering whether or not the EU citizen child or dependant could remain in the UK in practice.
In relation to Mr Shah’s and Mr Bourouisa’s cases, the Court of Appeal held that the mothers could care for the children if their husbands were removed from the UK. Although respect for family life was relevant, it could not enable a tribunal to conclude that a child would be compelled to leave the country. Irwin LJ, giving the lead judgment, emphasised that:
Those who marry a British citizen and have children, without having (or acquiring) leave to remain, do so at the risk that they may be compelled to leave the country, facing the real quandary that arises for these families. The Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents (para 76).
In relation to Mr Patel’s case, the court upheld the UT’s findings that any decision by the parents to follow him to India would be one reached out of choice, not compulsion.
Importantly, the Court of Appeal accepted that in principle Zambrano was not restricted to children. It highlighted, however, that children are in a special position due to the legal enshrinement of the concept of best interests of the children as well as the legal and moral obligation of parents to care for their children. The cases in which caring for an adult dependant may give rise to derivative rights might include: where the family share a rare blood group and blood transfusions/a bone marrow transplant may be required; where a British adult citizen has severe autism, depends on a third-country national relative and it would be intolerable for the identity of the carer to change; or other instances of psychological dependence arising from any well-documented and recognised psychological condition.
Formal decision not required to establish a ‘difference of views’
•Secretary of State for Work and Pensions v Fileccia
24 November 2017
Mr Fileccia was an Italian national who received a retirement pension from France, came to the UK and began caring for a disabled person. He made a claim for carer’s allowance, a non-contributory benefit. The benefit was considered a ‘cash sickness benefit’ under Regulation (EC) No 883/2004
, which coordinates social security systems across the EU.
The work and pensions secretary refused to pay on the basis that France was the competent state to pay the benefits. Mr Fileccia told the FTT (Social Entitlement Chamber) in his written appeal letter that a French official had told him orally that they would not ‘pay a career’s (sic) allowance for a disabled person living in the UK’ (para 7). The FTT decided on paper that he was entitled to carer’s allowance because the UK was the competent member state to pay.
The work and pensions secretary appealed to the UT. When granting permission to appeal, UTJ Jacobs queried whether the case raised issues under article 6(2) of Regulation (EC) No 987/2009
(which lays down the procedure for implementing Regulation (EC) No 883/2004). Article 6(2) provides that where there is a ‘difference of views’ between member states as to who should provide the benefits, the person concerned can claim benefits provisionally from their place of residence or (if their place of residence is not one of the member states concerned) from the institution to which the request was first submitted. UTJ Jacobs went on to determine the appeal, finding that the FTT had erred in law and holding that the work and pensions secretary should investigate Mr Fileccia’s claim and, if he fulfilled the conditions of entitlement, make a provisional award under Regulation 987/2009 article 6(2).
The work and pensions secretary appealed to the Court of Appeal on the basis that there was no ‘difference of views’; the evidence provided by Mr Fileccia was informal hearsay and could not establish that France had decided it was not the competent state; and therefore a formal decision from the French authorities was needed or, at least, Mr Fileccia must be able to point to official documentation in which competence was denied in a clear and unambiguous way.
The Court of Appeal dismissed the appeal. It agreed that there was a difference of views, as expressed by UTJ Jacobs, and gave weight to the fact that he had specialist knowledge and experience as he sat in a specialist chamber in the UT. It noted that the legislative background intended to provide a system that was coordinated, user-friendly and enabled people to access their rights as rapidly as possible. The work and pensions secretary’s approach was contrary to this legislative background because it would require the person seeking the benefits to pursue a formal decision and suffer considerable delay before triggering provisional payment of benefits. It was also incorrect to state that benefits were payable on a provisional basis only if a comparable benefit was payable in the other member state or it could be recouped from the other member state.
Extension of worker registration scheme unlawful
•Secretary of State for Work and Pensions v Gubeladze
7 November 2017
Ms Gubeladze was a Latvian national who arrived in the UK in 2008. She worked for various employers between September 2009 and November 2012, or was otherwise a jobseeker. She had obtained a certificate under the worker registration scheme (WRS) on 20 August 2010. In November 2012, she claimed state pension credit, relying on having obtained the right to permanent residence. This application was refused as the work and pensions secretary considered that she did not have a right of permanent residence as the first part of her employment had not been registered under the WRS and she had therefore not been working lawfully in the UK for the three years required to obtain permanent residence under article 17(1)(a) of the Citizens Directive.
Ms Gubeladze’s appeal was allowed by the UT (Administrative Appeals Chamber) on the ground that article 17(1)(a) referred to actual residence, rather than lawful residence, and so the fact that the employment had not been registered under the WRS for three years did not affect her right to permanent residence. The UT also decided, in the alternative, that the Accession (Immigration and Worker Registration) (Amendment) Regulations 2009 SI No 892, which extended the WRS by two years, were unlawful as they were disproportionate and incompatible with EU law.
The work and pensions secretary appealed. In its decision, the Court of Appeal highlighted the necessity of considering the context in which provisions of EU law occur when interpreting their meaning, as well as the objective being pursued. The court considered that the objective of article 17(1)(a) seemed to concern the length of residence required to obtain permanent residence, and not the type of qualifying residence. Taking these factors into account, and on examination of the case law, in particular the advocate general’s opinion (11 May 2010
) and the CJEU’s decision (7 October 2010
) in Secretary of State for Work and Pensions v Lassal and Child Poverty Action Group (intervening)
Case C-162/09;  All ER (EC) 1169, the natural meaning of the word ‘reside’ in article 17(1)(a) was decided to mean ‘legally reside’. However, the court upheld the UT’s decision that the government had simply not considered whether the extension to the WRS was proportionate having regard to (a) the objective being pursued and (b) the adverse effects on individuals who failed to register in time. The extension to the WRS was therefore disproportionate and incompatible with EU law; the appeal was dismissed.
Comment: During the hearing, Ms Gubeladze argued that even if ‘resided’ in article 17(1)(a) means ‘legally resided’, this word has a wider meaning under I(EEA) Regs 2006 reg 5(2)(c), which were to transpose the Citizens Directive. However, the Court of Appeal did not make a decision on this point.
Rough sleeping is not a misuse of EU rights
•R (Gureckis) v Secretary of State for the Home Department; R (Cielecki) v Secretary of State for the Home Department; R (Perlinski) v Secretary of State for the Home Department
14 December 2017
This case concerned three linked claims for judicial review (see December 2017/January 2018 Legal Action
31). The claims were selected as test cases to consider the lawfulness of a Home Office policy and its application to EEA nationals found rough sleeping in the UK. Each of the claimants had been found rough sleeping and served with a ‘Notice to a person liable to removal’. The policy challenged was contained in the Home Office guidance to immigration officers entitled European Economic Area (EEA) administrative removal
, version 3.0, published 1 February 2017. This set out the circumstances in which rough sleeping would be considered a misuse of EU treaty rights, making the individual liable to removal.
The expression ‘misuse of rights’ is defined under I(EEA) Regs 2016 SI No 1052 reg 26. It occurs where a person: (i) observes the requirements of these regulations in circumstances that do not achieve their purpose (as determined by the Citizens Directive and the EU treaties); and (ii) intends to obtain an advantage by artificial conduct. The Home Office submitted that ‘intentional harmful’ (para 88) rough sleeping was an abuse of rights because it did not achieve the purposes of the free movement provisions, which included social cohesion and integration and the sensitivity of the Citizens Directive to impositions of burdens on the host state. The court found that the Home Office policy appeared to circumvent the protections provided to EU citizens under Citizens Directive article 27, and that this was partly to serve economic ends. Moreover, the rough sleepers were not engaging in an activity that artificially created the conditions required to satisfy the requirements in the I(EEA) Regs 2016. As a result, rough sleeping was not a misuse of the right to freedom of movement and residence, and the Home Office policy was unlawful.
In relation to the question of discrimination, the court accepted that it was open to the home secretary to justify less favourable treatment afforded to non-British citizens. However, given that the court had found that rough sleeping was not capable of amounting to an abuse of rights, the home secretary could not justify the less favourable treatment of EEA nationals on the grounds that they were suspected of an abuse of rights.
The court also agreed with the claimants’ contention that the Home Office operated a blanket policy of verification, which was systematic and therefore unlawful. The claims for judicial review were therefore successful and the Home Office guidance was quashed insofar as it treated rough sleeping as a misuse of EU treaty rights.
Derivative rights and the scope of Zambrano
•LO v Secretary of State for Work and Pensions
9 November 2017
LO, a Spanish national who was separated from her unmarried partner (a UK national), was precluded by order of the Family Court from taking her two very young UK national children out of the UK. As a result, she could not return to her state of nationality, where she could access social assistance available for nationals. Her income support claim had been rejected on the basis that she was a person from abroad so her applicable amount was nil.
The UT found that the children’s rights as EU citizens were not being restricted by the legal inability of the appellant to take them out of the UK. The UT differentiated the position of the appellant from that of a Zambrano
carer, as she was an EU national. The UT also dismissed European Convention on Human Rights
article 8 arguments, stating that she could apply for income-based jobseeker’s allowance even though her children were young. Although UK nationals are not expected to look for work when they have children who are under five years old, the potential unequal treatment of EU nationals in this regard would be justified on the basis that there is a requirement to have sufficient resources as a condition of residence and EU nationals should not become a burden on the social assistance systems of the member states. There was no basis to conclude that the appellant had a right to reside which would have enabled her to claim social assistance. The judge also found that the UK-citizen children would not have a derivative right to reside from their Spanish mother if they returned to Spain with her.
However, the judge noted that if the children’s rights had been restricted, he would have needed to consider whether it would be necessary to recognise a new category of derivative right for the mother on the basis of the ’effective citizenship’ principle in Sanneh v Secretary of State for Work and Pensions  EWCA Civ 49
; June 2015 Legal Action
End-point of support recognised for victims of trafficking
•R (FH, by his litigation friend the Official Solicitor) v Secretary of State for the Home Department2Fiona Couzens, solicitor, Simpson Millar. Fiona can provide the consent order to practitioners upon request.
This case settled in December 2017 (see February 2018 Legal Action
FH was an acutely vulnerable client with schizophrenia and dependence syndrome, who lacked capacity to conduct proceedings. His accommodation and support from the defendant, provided via the National Referral Mechanism (NRM), had been terminated after he had been refused a grant of discretionary leave to remain (DLR). He challenged the refusal of DLR and requested his NRM support to continue pending that challenge and reconsideration and, subsequently, when DLR was granted, pending receipt of his biometric residence permit (BRP). The defendant maintained that he had already had over a year’s worth of accommodation and support through the NRM, and that individuals who have been ‘exited’ from the NRM are not able to re-enter it, there being no policy or provision allowing for this. FH’s case was that this refusal failed to meet his individual needs as per article 11 of the EU Trafficking Directive (Directive 2011/36/EU
), the EU Charter of Fundamental Rights
, and the Council of Europe Convention on Action against Trafficking in Human Beings
It was also argued that the defendant had breached her public law duties and practice as to exercising discretion to provide support to victims at the end of the NRM as confirmed by her in R (Galdikas and others) v Secretary of State for the Home Department and Secretary of State for Work and Pensions  EWHC 942 (Admin)
; December 2016/January 2017 Legal Action
20. Following the issue of proceedings, Elisabeth Laing J ordered interim relief to be provided forthwith to the claimant in the form of £65 per week. The proceedings were settled on the basis that he would continue to receive it until his BRP was issued (he was already in mainstream housing by this stage). The consent order set out a narrative of the case, and that support can be provided to victims who have historically exited the NRM.
No order for costs in settled s17 claim
•R (RL and others) v Croydon LBV3Alison Pickup, barrister and legal director, Public Law Project and Tim Buley, barrister, Landmark Chambers. See also pages 20 and 46.
11 April 2018
RL was a Ghanaian national who had leave to remain in the UK but with no recourse to public funds. She and her three children were being evicted from their accommodation and she approached Croydon for assistance. Croydon commenced a child in need assessment under Children Act (CA) 1989 s17. Croydon was unable to complete the assessment before the family were evicted, it says, because RL was unable to provide all of the information requested.
After the family lost their accommodation, RL’s solicitors sent a judicial review pre-action protocol letter to Croydon challenging the failure to provide accommodation under CA 1989 s17 and asking for a response by the following day. Croydon stated that the assessment would be completed by 22 October, which was within three days. RL’s solicitor sent further chasing letters on 22 and 26 October, and then issued proceedings on 28 October, and obtained interim relief on that day. Croydon subsequently completed the assessment, which concluded that the family should be accommodated. The court later refused permission on the papers and ordered RL to pay Croydon’s costs of preparing the acknowledgement of service. An application for renewal had been made, but before it had been determined, a consent order was agreed between the parties, with written submissions on costs to be submitted to the court. No order for costs was made.
RL appealed the costs decision. The Court of Appeal held that the court below had applied the correct test on whether RL should be awarded her costs: whether the claimants were the successful party; and whether it was tolerably clear that the claimants would have won had the matter not settled (see R (M) v Croydon LBC  EWCA Civ 595
;  1 WLR 2607 and R (Tesfay and others) v Secretary of State for the Home Department  EWCA Civ 415
;  1 WLR 4853). It was held that Croydon’s decision to provide accommodation was not a result of proceedings having been issued by RL, but the result of the completion of the assessment, which the court considered would have happened regardless of the claim being issued. Therefore, the claimants should not be considered to have been successful, since this outcome would have been achieved in any event, the assessment having been commenced before the claim was issued.
Further, in taking account of the decision to refuse permission, and the renewal application, it was not tolerably clear the claimants would have won. Moylan LJ considered that the claimants’ claim was flawed as there is no entitlement to accommodation under CA 1989 s17: the duty owed is to carry out an assessment, and Moylan LJ considered that even if there is an assessed need for accommodation there is no duty to meet this need.
Notwithstanding Croydon’s delay in completing the assessment, Underhill LJ, with Jackson LJ agreeing, stated that the claimants may have been awarded their costs if the court could have decided with ‘sufficient confidence’ (para 75) that (a) Croydon should have completed the assessment before the claim was issued, and (b) it was reasonable for the claimants to issue the claim when they did. However, despite the court finding that (b) was satisfied, (a) was not. The appeal was dismissed.
Comment: Although Moylan LJ considered the extent of the accommodation duty under CA 1989 s17, as this was an appeal on costs, neither party made submissions on this issue. Additionally, Underhill and Jackson LJJ did not agree that this should have been the reason for refusing the appeal. The finding on this duty should therefore not be binding.
Section 17 support and the right to rent
•R (U and U, by their litigation friend and mother, BU) v Milton Keynes Council
29 November 2017
The claimants, aged seven and eight, and their mother were Nigerian nationals who arrived in the UK sometime between 2011 and 2014. They made applications for leave to remain in 2016, which were outstanding, and then sought CA 1989 s17 assistance from the defendant. After two assessments, the defendant found the claimants not to be ‘children in need’, on the basis that there was a lack of complete information regarding the support they had been receiving. There were also factual inconsistencies. Further information was then provided, but the defendant refused to carry out a further assessment. The claimant’s solicitor then drew attention to the fact that even if BU did have sufficient resources to rent, the defendant had failed to consider whether she was entitled to do so, in light of Immigration Act (IA) 2014 s21, and issued proceedings.
The judge found that, with regard to the facts of the case, the decision to refuse to reassess was lawful as was the defendant’s maintaining its position that BU had access to funds. However, the defendant’s submission that BU could obtain hotel accommodation, because it would not be covered by the prohibition in s21, was found to be flawed. Hotels are caught, depending on whether those occupying are doing so ‘as their only or main residence’. Whether hotel accommodation is residential will depend on the circumstances and the explanatory notes to the IA 2014 expand on this. Moving from one hotel to another, to prevent it becoming residential, would not be a suitable arrangement and the defendant ought to have addressed the issue before deciding that BU could use hotel accommodation. Therefore, the failure to take s21 into account did render the continuing refusal to reassess unlawful.
•R (Stewart) v Birmingham City Council
24 January 2017
Mr Stewart and his partner, Jamaican nationals, came to the UK in 2002. Their daughter was born in 2008. As from 2011, they were supported by Birmingham under CA 1989 s17. Mr Stewart had an outstanding appeal against the refusal of his application for leave to remain. In 2016, Birmingham’s social worker noted during home visits some signs of wealth and also found the couple uncooperative with regard to explanations, their support network and disclosure of bank statements. A decision was made to terminate support.
In addition to alleging failure to make sufficient enquiries, the challenge also focused on Birmingham’s failure to take into account the fact that the couple did not have the right to rent under IA 2014 s21. Birmingham’s position was that Mr Stewart, by virtue of his in-country right of appeal, was entitled to rent, subject to verification by the Home Office and therefore wrote to the Home Office. The Home Office’s reply, which is quoted at length, stated that a person with an outstanding appeal ‘will normally be granted permission to rent’ (para 52).
Baker J found that the defendant was entitled to conclude that the family had access to other means of support, given the ‘level of incompatible expenditure’ (paras 75–77). The reluctance to provide full disclosure (referred to by Birmingham as a ‘wall of silence’: see para 80) prevented it from understanding the true nature and extent of the alternative support. The decision that the daughter was no longer a child in need was justified.
The judge acknowledged that Birmingham’s original decision did not refer to the right to rent, but concluded that did not render it unlawful. The Home Office’s letter had since made the position clear. Reference is made to the Home Office guidance, Right to rent: landlords’ penalties
(version 5.0, 1 December 2016), which sets out that individuals themselves, not just prospective landlords, can check whether they have the right to rent. Permission can also be sought where the individual is staying with family or friends who are themselves tenants.
Comment: It is likely that future CA 1989 s17 challenges relying on the right to rent provisions will need detailed evidence as to the claimant’s specific difficulties in obtaining the right and then of obtaining a tenancy.
•Bedford CC v GE (Eritrea)
1 November 2017
Bedford was appealing against the decision of the Administrative Court of 22 May 2015 ( EWHC 1406 (Admin)
; December 2015/January 2016 Legal Action
37). GE had entered the UK in 2011, aged 16. The appellant local authority carried out two age assessments and decided she was over 18. The assessments were found to be flawed, and GE was found to be credible and consistent by Alexandra Marks QC, sitting as a deputy High Court judge. Bedford’s appeal was on the basis that she had erred in her analysis of the evidence, rather than on a point of law. The Court of Appeal dismissed the appeal, fully supporting the High Court judge’s approach to the evidence and findings.
Data sharing for immigration purposes: school census
•R (Against Borders for Children) v Secretary of State for Education
Against Borders for Children (ABC) made an application to challenge the Department for Education’s collection of nationality and country of birth data through the school census, under the Education (Pupil Information) (England) (Miscellaneous Amendments) Regulations 2016 SI No 808, on the grounds that the collection breaches data protection law and could be discriminatory. Permission was refused on 23 March 2018 on the bases that the claim was out of time and that there was an alternative remedy (complaints to the Information Commissioner’s Office). The decision is currently being appealed, permission to appeal is outstanding.
The authors are grateful to the following for contributing to this update: Fiona Couzens of Simpson Millar (
R (FH) v Secretary of State for the Home Department) and Melissa Conway, trainee solicitor at Freshfields Bruckhaus Deringer, seconded to Liberty. This is the second of a two-part article, the first of which appeared in the June 2018 issue of Legal Action.