AS WE begin a new year, let us cast a backward glance and run down the major talking points in UK immigration law in 2010.
At the beginning of the year, a number of changes were introduced to the student visa regime. With effect from February 1, 2010, anyone applying for a visa inside the UK must submit bank statements showing they have held the total amount of maintenance in their account for at least 28 days before the application.
Another major change was the abolition of third party financial support. Students are now required to be sponsored only by a government (the UK or the home country), the British Council or any international organisation, an international company, university or independent school, or their parent or legal guardian (with suitable confirmation of the relationship).
From February 22, 2010, students applying for a visa extension no longer need a physical Visa Letter but must now possess a unique reference number issued by their sponsoring institution called a ‘Confirmation of Acceptance for Study’ or CAS.
On May 11, 2010, the new Tory-led coalition government came to power, with Tory MP Theresa May as the new Secretary for the Home Office, Damien Green, another Tory MP, as the Immigration Minister, and Kenneth Clarke, yet another Tory MP, as the new Lord Chancellor and Secretary for Justice. Kenneth Clarke’s brief includes Prisons and the Legal Aid scheme. Effectively, all the key ministries that directly affect immigration are therefore Tory controlled.
On June 16, 2010, the immigration world was rocked by news that the largest provider of legal advice for asylum seekers and other vulnerable migrants in the UK, the Refugee and Migrant Justice, formerly known as the Refugee Legal Centre, had gone into administration due to the continued squeeze in government funding. I trained at this organisation and acknowledge the great work and representation that the RMJ offered to its many and various clients over the years.
In the same month, the Court of Appeal promulgated the ground-breaking case of Pankina, declaring that the Home Office’s requirement that maintenance funds be present in an applicant’s bank account for the three months preceding the application is not binding. The reason why the Court of Appeal decided that the requirement was not binding was that it was not imposed by the Immigration Rules but by the Points Based System Policy Guidance which is not subject to Parliamentary scrutiny in the same way that the Immigration Rules are.
The Pankina principle was shortly thereafter extended to all the other Tiers, not just the Post Study scheme, in the case of FA and AA (PBS effect of Pankina) Nigeria  UKUT 304 (IAC).
On July 22, 2010, the Home Office then changed the rules to reverse these generous court rulings. On July 23, 2010, the Home Office however issued a concession, in the form of a Policy Guidance to give effect to the Pankina decision. They updated it further on November 22, 2010. The updated version states that all applicants who applied under the Points Based scheme, up to and including July 22, 2010, will benefit from the Pankina ruling. This means that if they held the required funds for only one day at the time of application, and not for three months, they should succeed in having their decisions reviewed.
The updated version confirms that there is no longer a requirement that those applicants should be lawfully resident in the UK in order to have a review. The Home Office have given migrants until June 22, 2011, to take advantage of this concession by writing in and requesting a reconsideration of their cases. Both those who applied from abroad and from within the UK are covered.
In August, two very important cases on Article 8 were promulgated by the Upper Tribunal. The first one was a case called LD (Article 8 best interests of child) Zimbabwe  UKUT 278. It confirmed that with respect to Article 8, the seven-year policy may have been withdrawn but substantial residence of a child is a strong indication that there has to be an assessment of the best interests of the child.
The Court made reference to the UN Convention on the Rights of the Child 1989 which makes it clear that the interests of the child should be a primary consideration in immigration cases. This case has effectively resurrected the seven-year rule. The ‘best interests of the child’ approach has now been authoritatively confirmed in the case of R (on the application of TS) v SSHD  EWHC 2614.
Shortly afterwards, the Upper Tribunal also promulgated the case of CDS (PBS “available” Article Brazil  UKUT 305. It confirms that Article 8 is also applicable in Points Based System cases. The court agreed that whilst people who have been admitted to the UK for a limited period of time have no human right to come to the United Kingdom for education or other purposes of voluntary migration, they are likely to build up relevant connections in the UK, as well as social ties during their stay which may cumulatively amount to a private life that deserves respect especially where the purpose of entry has not yet been completed.
In the same month, the Home Office undertook a fact finding mission to Zimbabwe to gather information on the situation in Zimbabwe since the formation of the Government of National Unity (GNU) back in February 2009. Its 105 pages long report was published on September 21, 2010. The report did not make any conclusions, it just set out the findings and responses of the people that were interviewed. It, however, generally confirmed that Zimbabwe is not yet politically safe and that the political situation may in fact deteriorate even further as we get nearer to the national elections which are planned for 2011. Some sources even confirmed that there is already increasing militarisation of the rural areas.
August 2010 was also the month when the first cohort of refugees to get limited leave to remain in the UK completed their five years in the UK and became due for settlement. The application should be made on SET (Protection Route) form and is free of charge.
Again in August 2010, the UK Supreme Court confirmed after dismissing an appeal made by the Home Office that in cases where a fresh asylum claim has been made and no decision was reached for a year, the asylum seeker obtains a right to work under European law.
Perhaps the biggest development of the year was the UK Court of Appeal’s decision in November 2010 in the case of RT (Zimbabwe) & Ors v SSHD  EWCA Civ 1285 which clarified the current Country Guidance case of RN (Zimbabwe) and confirmed that three things are sufficient for a grant of asylum status to a Zimbabwean.
One: a lengthy absence from Zimbabwe.
Two: having claimed asylum in the UK (which is interpreted as an act of disloyalty to the Mugabe regime) and,
Three: having no adverse credibility findings.
The court in RT (Zimbabwe) extended the reasoning in a case called HJ (Iran) which involved gay asylum seekers and in which the UK Supreme Court stated that gay people should be granted refugee status if going home would result in them being forced to hide their sexuality in order to avoid persecution. The Court said that an individual found to hold genuine political beliefs should not be required to modify their behaviour or deny their beliefs in order to avoid persecution.
Another way of putting this is that an appellant should not be required to pretend that they are loyal to the Mugabe regime, when they are not, in order to avoid persecution. He cannot be expected to lie about his true political beliefs, or lack of them.
In November as well, the coalition government announced that Labour’s plans for the ‘earned citizenship’ scheme would no longer be implemented. Instead, the coalition government would tighten the requirements for permanent settlement in the UK. Details remain sketchy.
From November 29, 2010, any migrant who wants to enter or extend their stay in the UK as the partner of a British citizen or a person settled in the UK will need to show that they can speak and understand English at the appropriate prescribed level.
In December 2010, Nick Clegg, the UK Deputy Prime Minister and leader of the Lib-Dems in the coalition government, announced that the detention of children for immigration purposes in the UK, a practice which he called a “shameful” and “state-sponsored cruelty”, would shortly end.
Also in December 2010, the JCWI won a legal challenge in the High Court against the interim cap on immigration announced by the Coalition government. The court held that the Secretary of State for the Home Department had acted unlawfully in purporting to impose an interim cap on out-of-country Tier 1 (General) applicants and on the number of Certificate of Sponsorships’ (COS) issued to licenced UK employers. Specifically the Secretary of State failed to lay the numerical limits for Tier 1 (General) and for Tier 2 (General) before Parliament as required by the Immigration Act 1971.
In the same month, the Court of Appeal declared unlawful the application of an increased spouse visa age in a case called Quila & Anor v SSHD  EWCA Civ 1482.
In another interesting case which came out in December, the Upper Tribunal ruled, among other things, that parties who appear before an Immigration Judge are entitled to know the identity of the judge who makes a decision in an appeal. The court confirmed that it is a fundamental principle of justice that the public and litigants should know the name of any judge who is deciding or sitting as a judge in a case.
In the case of an appeal determined without a hearing, that means that the determination or decision must identify the judge. If the Duty Judge’s name is absent on the determination, this amounts to a fundamental breach of justice which means the decision is not valid.
These are some of the more interesting developments that took place in 2010. 2011 promises to be even more interesting.
Taffi Nyawanza is the Principal of Genesis Law Associates, a specialist immigration and asylum law firm in Birmingham. He can be contacted on firstname.lastname@example.org or ph. 0121 222 2370 or visit Genesis Law Associates’ website at www.genesislaw.co.uk
Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information