Legal advice is only as good as the facts presented

Legal advice is only as good as the facts presented

• The incestral visa

• The minister of religion visa

• Justice Mungwira and judicial independence

• Taffy Nyawanza: Immigration options for victims of domestic violence

• Taffy Nywanza: Implications of UK asylum decison

• Taffy Nyawanza: The right to family life

• Taffy Nyawanza: New UK changes to managed migration

• Taffy Nyawanza: UK immigration rules on marriage, domestic servants

• Taffy Nyawanza: Switching from work permit to indefinite stay

• Taffy Nyawanza: Immigration and you

• Taffy Nyawanza: Makosi and the real Big Brother

By Taffy Nyawanza

“…In this life, we want nothing but Facts, Sir: nothing but facts.”

So opens ‘Hard Times’, one of Charles Dickens' best loved books. Those immortal words uttered by Gradgrind are true about a critical aspect of the immigration process; instruction-giving.

I will come back to this shortly but first, following on last weeks’ article on ancestral visas, it is pleasing to note that the Home Office has just announced that “the review of Managed Migration routes launched by the Home Secretary on 22
April 2004 found evidence of suspected abuse of the ancestral route from Zimbabweans. This resulted in the suspension and delay of these applications whilst an investigation was ongoing.
The investigation is now at such a stage that consideration of UK ancestry
cases from Zimbabwean nationals can now be resumed".

The resumption of considerations must be a huge relief to quite a few of our affected compatriots. Best wishes to them.

Secondly and again following last week’s article, I received very interesting feedback from a UK-based Zimbabwean academic on the question of whether Zimbabwe is really out of the Commonwealth in spite of suspension from the councils and subsequent withdrawal by Mugabe. The writer pointed out that the Representation of the People Act 1918 provided that only British subjects could register as voters and the term 'British subject' included any person who, at that time, owed allegiance to the Crown, regardless of the Crown territory in which he or she was born. This included Commonwealth citizens. The British Nationality Act 1981, Schedule 3 contains a list of all those countries in the Commonwealth. This includes Zimbabwe. Legislation would be required to amend this list, and in the absence of such amendment, Zimbabweans remain entitled to vote in the UK. He then suggested that similarly, Zimbabweans are still in the Commonwealth for purposes of immigration and that a good lawyer should be able to argue that if Schedule 3 still applies (as it did at the last elections in May 2005), and unless the other Acts dealing with Commonwealth immigrants have been amended, then Zimbabweans remain eligible as Commonwealth citizens for immigration purposes. Hence immigration routes such as the Ancestry and the Working Holidaymaker schemes which allow qualifying Commonwealth citizens to come and work in the UK without the need for a permit would also remain available to Zimbabweans, in-spite of Mugabe’s antics.

As I pointed out last week, there is no indication that Zimbabweans have been, or will be barred from participating in these schemes but the above is a very interesting and persuasive argument which might be usefully deployed if problems do arise. I am indebted to the reader who brought this to my attention.

Moving on, I have this week resisted the temptation to discuss yet again Makosi’s latest tango with the immigration laws. I will instead discuss a much more interesting and engaging legal question that I came across this week, albeit involving a much less well known personality than our Makosi.

Emilia came to the UK as a visitor to live with her brother who is an accountant. At the expiry of her 6 months, and in view of the worsening political climate in Zimbabwe, Emilia decided to make an asylum claim and was subsequently detained in the Oakington fast track facility. This happened prior to the decision by the Home Office to de-list Zimbabwe from the fast-track suitability list.

The Oakington fast-track facility is one of 2 fast-track processes used by the Home Office to detain and process asylum seekers whose claims appear capable of being decided quickly in about 7 to14 days. At the end of that process they are either released on Temporary Admission into the UK if they obtain an in-country right of appeal, or are further detained, usually pending removal to their countries of origin for Out-of-Country appeals.

Emilia was processed, refused but given an in-country right of appeal to the Immigration and Appellate Tribunal (IAT), now called the Asylum and Immigration Tribunal (AIT), and allowed into the UK on Temporary Admission. It was at the appeal stage that a crucial fact that she had not disclosed in her initial instructions to her solicitors emerged. Her brother had become a British citizen prior to her joining him in the UK and more crucially, had worked in Germany on secondment at one stage.

It is important to note that a lot of times, people take for granted information relating to their circumstances which may turn out to be determinative in their claims. Legal advice is only as good as the facts presented.

In this particular case, a British citizen who has worked in a European country attains rights which an ordinary Brit does not have. He, in the words of a famous judge, becomes ‘bathed in the waters of the European Union’ and this confers rights to his family, provided that he did not leave the United Kingdom in order to enable his family member to acquire rights under the Regulations and thereby to evade the application of United Kingdom immigration law.

Developing from there, a European Economic Area (EEA) national exercising Treaty Rights in the UK is entitled to be joined or be accompanied by his family members, regardless of nationality. This is contained in Regulation 10.4 of the EEA Regulations 2000 which says;

The conditions [for the issue of a residence permit to a dependant] are that the person [is a relative of an EEA national or his spouse and]-

1. is dependent on the EEA national or his spouse;
2. is living as part of the EEA national’s household outside the United Kingdom; or
3. was living as part of the EEA national’s household before the EEA national came to the United Kingdom.

From the use of ‘or’, these conditions are clearly alternatives. If either (a), (b), or (c) are fulfilled, a residence permit or document will be issued.

The purpose of the EEA regulations, which formally implements the various EC directives, is to enable EEA nationals to move freely within the EEA without being hindered or discouraged from doing so by the prospect of having their family members barred from joining them in their work stations. EEA nationals are nationals of the twenty-five EU Member States plus Norway, Iceland and Liechtenstein.

The main issues will centre on whether the applicant is a family member in terms of the regulations, whether she is financially dependant on the sponsor to qualify, whether she meets the age requirements, and whether she is not excluded from the UK on public policy, public security or public grounds. As the AIT has repeatedly said, these are questions of fact and degree.

Finally in this context, Rule 225 of the Immigration Rules provides that a person (other than a student) who holds a residence permit or residence document valid for 5 years, and who has remained in the United Kingdom in that capacity for 4 years and continues to do so may apply for permission to remain in the United Kingdom indefinitely.

The lesson from Emilia’s case is that some facts may seem irrelevant but may turn out to be determinative. It is imperative therefore that when you approach an immigration solicitor or approved adviser, you prepare beforehand a written narrative of all your circumstances in order to coherently marshal your thoughts and capture all relevant events. Something somewhere may make all the difference.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.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
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