Biometric residence permits are being introduced for more immigration categories

Here's another update from the UK Border Agency.

"From Wednesday 29 February, all applicants in the UK will need to obtain a biometric residence permit if they are applying to stay here for more than 6 months. This includes applicants for permission to settle here (Known as 'Indefinite Leave to remain').

To obtain a permit, applicants will need to enroll their biometric information (fingerprints and facial image).

If you are applying in the UK on or after this date (whether applying by post, in person or online), you should use the correct application form. Please pay careful attention to the date shown on the cover of the application form.

If you are applying in person at one of our public enquiry offices under our premioum service, and you have booked as appointment on or after 29 February, you must bring the correct form with you to avoid delay".

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New student rules to welcome the brightest and best while tackling abuse

The Immigration Minister Damian Green announced today new rules designed to welcome to the UK the brightest and best brains from around the globe.

The new rules that is expected to come into effect around 6^th April 2012 is meant to tackle abuse of the student visa route and ensure that only the brightest and best students are allowed to stay and work in the UK.

We have been expecting something like this to happen since the Post Study Work route, which currently allows students to work in the UK for 2 years after their studies, is scheduled to be phased out in April 2012.

The new rule is a selective system of sort that will allow only the most talented International graduates to apply to stay in the UK to work.

The new rule, according to the Minister, is designed to “reform the system to deliver immigration to benefit Britain”. He also continued in his statement that “Only those who graduate from a university, and have an offer of a skilled job at a salary of at least £20,000 (or more in some cases) from a reputable employer accredited by the UK Border Agency, will be able to continue living and working in the UK in order to benefit the British economy”.

According to the Immigration Minister, “The rules are part of a radical overhaul of the student visa system, which will:

·         encourage growth - a new Graduate Entrepreneur route will open, with up to 1,000 places for students working on world-class innovative ideas who want to stay and develop them but do not meet the requirements of the Tier 1 (Entrepreneur) route;
·         boost the economy - young entrepreneurs or small company directors will get the chance to stay on in the UK after their studies if they have £50,000 to invest in their business;
·         ensure that students can support themselves - for the first time since 2008, there will be an increase in the amount of money that students and working migrants (and their dependants) must prove they have to support themselves financially during their time in the UK; and
·         tackle abuse - restricting work placements to one-third of the course for international students who are studying below degree level will ensure that those coming to the UK are here to study, not to work (as was often the case in the past). Additionally, the time that can be spent studying at degree level will be restricted to a general limit of 5 years”.

All prospective international students as well as those already in the UK are strongly advised to seek for legal advice before making or submitting any application to the appropriate authorities.

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370,000 migrants on the dole. Really?

Got this piece sent in today that makes an interesting reading. It lends credence to the article I wrote and shared with you on this Blog last week with the headline “Bashing the Immigrants”. Please read on and feel free to send in your comments on it.

“For those of you who’ve awoken to today’s misleading article by the Telegraph entitled ‘370,000 migrants on the dole‘, and the equally bad piece by Chris Grayling, we thought we’d get out a quick post to try to clear up some of the poor reporting around this issue.

1. The DWP report counts British citizens amongst the 370,000 figure. As such the real figure for numbers claiming benefits is likely to be far LOWER (p.3 of the report). Indeed if you read on in the report the suggestion is that the figure could be cut by over a half  (p.11) thus giving a more accurate actual figure of 199,800 i.e. out of the 5 and 1/2 million people claiming benefits that would work out at around 3.2% of total claimants.

2.  The percentage of what is classified as ‘non nationals’ for benefit purposes shows that  migrants actually proportionally claim far  LESS in the way of benefits than UK nationals. The rate for so called UK nationals is 16.6 % and for foreign nationals it’s 6.6 % (see page 4 of the report).

3. The report and statistics are not confined to  ’dole’ benefits’ and instead also cover Disability Living Allowance, Carers Allowance, Bereaved (widow’s benefit), Pension Credit, and others, so that yet further lowers the figure for so called ‘dole claims’.

4. The report shows that there’s a staggering LOW Fraud for benefit claims by ‘foreign nationals’ (p.11) in the region of around 2%.

5. Non- EEA migrants are not generally entitled to ANY non-contribution based benefits, and Brits in the EU have reciprocal entitlements to benefit claims in those countries. Moreover, why shouldn’t migrants who’ve worked and contributed to the UK through taxation on their income be it as salaried or self employed people, claim benefits when they fall upon hard time just like anyone else?

6. Statistics from various  research reports   tend to show that migrants are NET CONTRIBUTORS to the PUBLIC PURSE

7. More generally migrants also bring in a load of other benefits to the UK including the relocation of large companies. Indeed the Migration Advisory Committee previously found extensive evidence from Japanese companies such as Hitachi, Honda and Mitsubishi that if these companies were prevented from recruiting workers from Japan; they would have to scale back their UK operations significantly. On average, for every one Japanese national, these companies employ 73 UK residents.”

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BASHING THE IMMIGRANTS

Immigrants have been bashed by a certain section of the society these days so much to that they have apparently become punch-drunk.

Immigrants are seen by certain people as the devil incarnate to the point that they are quick to blame them for every ills of the society. When the sun fails to shine on time it’s the fault of the Immigrants. When their dog barks continuously, it is the fault of the Immigrants. Even when they went on their usual binge drinking and wakes up with a hangover the next day, yes you’ve guessed it, Immigrants are to blame.

What I find rather confusing is the fact that Immigrants that are meant to supposedly be taking up jobs meant for the lazy work-shy of the society are also being blamed for milking the welfare system. What an oxymoron!

How a set of people who are perceived as taking over most of the jobs meant for the populace are at the same time being accused of choosing not to work and living off the state is beyond logic.

A section of the media ran a headline last week screaming “One British job is lost for every four Immigrants”. It attributed its story to a survey carried out by the Migration Advisory Commission. Yet, in the same report, Migration Advisory Commission confirms what most sensible people had believed all along that Migrants pay more in tax than they use in services.

The following day, the same media ran a story about some graduate suing the government for having ‘the audacity’ to force them to work at Poundland. This is the same type of jobs Immigrants are being accused of taking off British “jobseekers”. Jobs that the “Brits” considered beneath them to take up. Any wonder then that “One British job is lost for every four Immigrants”?

I have read many statements from employers, people that know better concerning the issue of the so-called “One British job (that is being) lost for every four Immigrants” that the reason for this is simply about work ethics.

Immigrants are habitual hardworking people. Their motive is simply to work hard to earn their living in order to take care of their family (home and away). And employers (I believe) rightly recognise this trait in them. I also believe firmly that anyone that travels thousands of miles to a foreign land to earn a living will display similar trait; else their journey will turn out fruitless.

It is a known fact, whether some people believe it or not, that Immigrants do contribute a lot to the economy of this country and it is high time we all wake up to this reality and stop this xenophobia permeating the fabric of our society.

History is littered with facts of how in the 1950s the Government actively encouraged immigration to help rebuild the UK after the 2nd World War.

Britain even invited large numbers of Immigrants from the West Indies and Ireland to help rebuild Britain after the Second World War.

It is also a well known historical fact that Protestant Huguenots from France came to Britain to escape religious persecution in the 16th and 17th Centuries.

A large number of Jewish Migrants also came to the United Kingdom between 1880 and 1910 to escape violence at home.

And in the 1970s, Britain admitted approximately 28,000 of Indian Migrants fleeing war in Uganda and about 22,000 of Refugees from South East Asia.

What I am saying is that Britain is - and has always been - proud of its tradition of providing a safe haven for people fleeing persecution and conflict.

All the people mentioned in the historical facts above are Immigrants. Which begs the question: If Immigrants were good and essential for this country then, why not now?

On the flip side of the coin however, many corporations in this country have outsourced many of their jobs abroad to places like India and the like. These Immigrant bashers don’t seem to see anything wrong with this policy and the attendant loss of revenue in taxes. Yet it is Immigrants who are working and paying taxes into our economy that is being maligned.

The National Institute of Economic and Social Research - a highly respected institute charged with the responsibility of researching into the Economic and Social activities of this country - finds in its research that immigration has little or no effect on unemployment, yet some people still believe the crazy and illogical theory that reducing immigration is the antidote to reducing the inherent high level of unemployment. How bizarre.

If there is one thing this country is known for around the globe, it is its hospitality and tradition of providing a safe haven for people fleeing persecution and conflict. Its ability to embrace peoples of different Race, Culture, Religion, Ethnicity etc. That is why London, for example, is the most cosmopolitan city in the world. It is a shame however, that this is now in danger of being eroded by this new found culture of Immigrant bashing.

I think it is high time that all well-meaning people of this great country rise up to defend the very tradition that this country is known for and put a stop to this Migrant bashing nonsense forever.

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European Court of Justice holds that EU Charter of Fundamental Rights binding on UK

The European Court of Justice delivered a landmark judgement that is bound to set a precedent for the future. Migrants Watch UK is reproducing the judgement hereunder for your attention.

"This briefing provided by Sonal Ghelani
The Migrants' Law Project Doughty Street Chambers
http://www.doughtystreet.co.uk/

The Grand Chamber of the Court of Justice of the European Union (CJEU) has delivered its judgment in the landmark case of Saeedi/NS (C411/10) deciding fundamental questions about Member States' obligations under the EU Charter of Fundamental Rights and whether the Charter binds the UK. 13 Member States intervened along with the European Commission, UNHCR, the Equality and Human Rights Commission, Amnesty International/AIRE. An Irish reference, ME, was joined with NS.

The case concerned a challenge by Mr Saeedi to his transfer to Greece under the Dublin Regulation which enables Member States to transfer asylum seekers to the first EU country they entered. The Court observed that According to [Mr Saeedi], the Greek authorities detained him for four days and, on his release, gave him an order to leave Greece within 30 days. He claims that, when he tried to leave Greece, he was arrested by the police and was expelled to Turkey, where he was detained in appalling conditions for two months. He states that he escaped from his place of detention in Turkey and travelled from that State to the United Kingdom, where he arrived on 12 January 2009 and where, that same day, he lodged an asylum application. (para 35)

Mr. Saeedi challenged his removal to Greece by judicial review relying on the EU Charter of Fundamental Rights.

The Administrative Court accepted that Greece did not comply with EU law and would detain him in bad conditions and/or leave him destitute without offering an effective examination of his asylum claim. However, it considered itself bound by previous UK and Strasbourg caselaw to dismiss the claim. He appealed to the Court of Appeal which referred it to the CJEU due to the difficulty and importance of the case.

The Grand Chamber's ruling was handed down on 21st December 2011 deciding a number of fundamental issues.

No UK 'opt out' from the Charter The UK along with Poland had negotiated a Protocol to the Lisbon Treaty (which made the Charter binding) that then Prime Minister Tony Blair claimed was an opt-out. At the summit which agreed the Lisbon Treaty, the BBC reported: "The four essential things that we in the UK required in order to protect our position have all been obtained," said Tony Blair at the end of his last EU summit as British prime minister. "Those were first of all to make it absolutely clear that the charter on fundamental rights was not going to be justiciable in British courts or alter British law."

EU leaders agree on reform treaty http://news.bbc.co.uk/1/hi/6232540.stm

The Grand Chamber held that "Article 1(1) of Protocol (No 30) ... does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions." It said there was no need to rule on the interpretation of Article 1(2) of the Protocol as that applied only to Title IV of the Charter which was not relevant to the present case.

The safe third country deeming provision is incompatible with EU Charter The Grand Chamber has also held that the controversial safe third country deeming provision in UK primary legislation is incompatible with EU fundamental rights and therefore contrary to EU law. The deeming provision prevented UK courts from declaring unlawful and quashing the removal of asylum seekers to other EU Member States on the basis that defects in other EU states' asylum systems created a real risk of expulsion from the receiving state in violation of the Refugee Convention and EU law. (In Nasseri, the Court of Appeal and House of Lords had reversed the declaration of incompatibility granted by the Administrative Court under the Human Rights Act in relation to the deeming provision.)

UK may not apply conclusive presumption that other Member States respect fundamental rights
The Grand Chamber decided that Member States' duties under the Charter override principles of mutual trust between Member States. Member States were therefore not entitled to apply a conclusive presumption (based on principles of mutual trust between Member States) that other Member States complied with fundamental rights.

The Court observed that: At issue here is the raison d'être of the European Union and the creation of an area of
freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights. (para 83)

It accepted that: as stated by N.S., were Regulation No 343/2003 to require a conclusive presumption of compliance with fundamental rights, it could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States. That would be the case, inter alia, with regard to a provision which laid down that certain States are 'safe countries' with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary... (T)he mere ratification of conventions by a Member State cannot result in the application of a conclusive presumption that that State observes those conventions... In those circumstances, the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable. In the light of those factors, the answer to the questions referred is that European Union law precludes the application of a conclusive presumption that the Member State which [is responsible for examining an asylum claim under the Dublin Regulation] observes the fundamental rights of the European Union. (para 100-105)

Some of the Member States that intervened at the hearing had objected that they were in no position to assess the risk that other Member States would breach fundamental rights but the Court rejected their claim. It held that they could use the same kind of country information as the European Court of Human Rights in order to assess the functioning of the asylum system in the Member State responsible, making it possible to evaluate those risks. (para 91)

It concluded that Article 4 of the Charter (which is equivalent to Article 3, ECHR) precluded the transfer of asylum seekers under the Dublin Regulation where systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision. As the European Court of Human Rights had, since the Court of Appeal made the reference, found that such deficiencies existed in Greece, it was now clear that the UK would violate Article 4 of the Charter if it transferred asylum seekers to Greece and the other articles of the Charter relied upon by Mr Saeedi did not lead to a different answer (paras 112-114)

The Court emphasised that where a Member State such as the UK could not transfer an asylum seeker to the responsible state, here Greece, then it must ensure that it does not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of time. If necessary, it must itself examine the application.

The legal team for N.S. (Mr Saeedi) are Dinah Rose QC, Mark Henderson and Alison Pickup of counsel instructed by Sonal Ghelani of the Migrants' Law Project at Islington Law Centre. Mr Saeedi was previously represented by Roopa Tanna at Refugee and Migrant Justice until it went into administration in June 2010 due to legal aid cuts and then by Sheona York at Immigration Advisory Service Prior until that organisation too went into administration due to legal aid cuts in July 2011.

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EU Charter of Fundamental Rights

* Dignity / * Freedoms / * Equality / * Solidarity / * Citizens' rights / * Justice

Summary

The Charter of Fundamental Rights, a political declaration agreed in 2000 and then in a slightly amended form included in the Constitutional Treaty, was not incorporated in the Treaty of Lisbon but has been by the EU institutions and then referred to in the Lisbon Treaty.

The adoption of the Charter as a legal text represents an important change in the EU's human rights framework but the effects of its adoption may not be as extensive as some have suggested. The United Kingdom and Poland obtained the agreement of the other Member States to a further protocol to the Lisbon Treaty which seeks to restrict the interpretation of the Charter by the European Court of Justice and their domestic courts (this is sometimes mistakenly described as an "opt-out").

This briefing explains the history of the Charter, identifies its key provisions, considers the effects of its adoption and explains the British and Polish additional protocol.

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Third Country Returns

Here's an interesting case about the 'Third Country Returns' between an Immigrant and the Secretary of State.

I find it interesting and thought I should share it with you. Please read on.

"Medhanye, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 3012

Facts

The claimant was an Eritrean national who claimed asylum in the UK. Inquiries by SSHD revealed that the he had previously claimed asylum in Italy. The Italian authorities had accepted, pursuant to the Dublin II Regulation, that they were responsible for dealing with his asylum application.

The claimant was informed in December 2008 that he would be returned to Italy, and in 2009 SSHD certified his human rights claim in relation to return to Italy as ‘clearly unfounded’. The claimant sought permission to challenge SSHD’s maintenance of those decisions in the light of subsequent material that had been submitted in relation to the claim, whilst also seeking a stay pending determination of NS.

The challenge was on two grounds. Firstly, it was asserted that return would violate EU law - specifically Article 1 of the Charter of Fundamental Rights (CFR). Secondly, it was argued on the basis of MSS principles that return would violate Article 3 ECHR because of the conditions encountered on return to Italy.

Held

1. The ECJ has yet to issue judgment in NS on whether CFR applies to decisions under Dublin II, and if so, the nature of the relationship between Article 1 of CFR (right to dignity) and Article 3 ECHR. Permission is therefore granted on this basis, and judgment is stayed pending the ECJ’s judgment;

2. In relation to Article 3 ECHR arguments, the material adduced by the Claimants in relation to ECHR risks was not sufficiently strong to meet the KRS test - KRS states that in the absence of proof to the contrary, there is a presumption that state parties to Dublin II will abide by ECHR obligations.

Analysis

This case has obvious implications for returns by the UK to Italy under Dublin II given this stay of judgment pending a ruling by the ECJ in NS.  As the Court puts it, ‘it is probable that no returns to Italy can be made until the ECJ issues its judgment.’

In relation to Article 1 CFR arguments, the Court seemed skeptical that the ambit of Article 1 could be any wider than Article 3 ECHR. It was also concerned that the ECJ may not even specifically address this discrete point if they adopt the Advocate General’s opinion in NS. At Para 45 the Court states:

'I do not see the basis upon which it could realistically be held that the returnee’s right to “dignity” had nonetheless been infringed. Ex hypothesi, the returnee would have been treated in a manner that was humane, that did not degrade him or her, and that accordingly respected and protected his or her “dignity”. To postulate some form of humane and non-degrading treatment that nonetheless violated a right to “dignity” would both create intolerable uncertainty as to precisely where the line should be drawn, and would also tend to trivialise what the framers of the Charter no doubt intended to enumerate as undisputed and generally recognised “fundamental” rights. No doubt quite a lot of day to day conduct on the part of public authorities affronts, or could be perceived as affronting, an individual’s “dignity” in a broad sense. But to classify such conduct, when it could not properly be regarded as inhumane or degrading within the meaning of Article 3 ECHR, as a violation of a “fundamental” human right would seem to do no more than fortify that school of critics who continue to see force in Bentham’s celebrated aphorism regarding such rights'.

The judgment is also important as it highlights the high evidential burden that will apply in ECHR challenges in cases where return is contemplated to an ECHR contracting state.

When addressing evidence about Italy in this case, the Court emphasizes at Para.24, by reference to MSS, the need for ‘numerous reports from reputable organisations which all agree that there are serious deficiencies in Italian asylum practice.’   It notes:

The Courts have consistently held that evidence of aberrations does not demonstrate that a country is unsafe, so long as it has –

 ”a system which will, if it operates as it usually does, provide the required     standard of protection for the asylum seeker. No country can provide a system which is 100 per cent effective. There are going to be aberrations.” (See R v Home Secretary ex p. Adan (CA) [2009] 3 WLR 1274 at pages 1293-1294).

Following KRS, the existence of such a system is to be presumed. It is for the Claimant to rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory.

The Court also highlights in particular, the weight that will be attached to the views of the UNHCR and the European Commissioner for Human Rights in ECHR challenges of this kind.

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Extension of employment restrictions for Bulgarian and Romanian nationals

Another update was announced by the UK Border Agency on Wednesday 23rd Nov. 2011. Reas on:

Controls to restrict how Bulgarian and Romanian nationals access the UK labour market will be extended until the end of 2013, Immigration Minister Damian Green announced today.

This means Romanian and Bulgarian (EU2) nationals seeking to work in the UK will continue to require permission from the UK Border Agency before they can work in the UK.

The minister said:
'Maintaining these controls will make sure migration benefits the UK and does not adversely impact on our labour market. The government is radically reforming the immigration system, and has already announced an annual limit on work visas and tough new rules for students to ensure net migration is reduced from the hundreds of thousands to the tens of thousands.

'The Migration Advisory Committee has made a clear case for extending the existing restrictions on Bulgarians and Romanians. This government has also made clear that we will always introduce transitional controls on all new EU member states as a matter of course.'

The decision supports the government's commitment to reduce employers' dependence on migrant workers, particularly for lower skilled jobs. This will help the unemployed to find their way back into work and help the domestic workforce to acquire the skills the economy needs.

A report from the independent Migration Advisory Committee (MAC) looked at the impact on the domestic labour market if the transitional controls were removed. It found that lifting the current restrictions could cause more EU2 nationals to come to the UK to work, particularly in lower skilled occupations where there is greater risk of displacement of resident workers and a negative impact on wages.

Permission to work will normally be given only where the worker has a specific job offer and the work is in skilled employment for which the employer has been unable to find a suitably qualified resident worker. There are also quota-based arrangements for lower skilled jobs in the agricultural and food processing sectors which will stay at the same level for 2012 and 2013.

The extension of the restrictions does not affect the position of those who have already been authorised to take employment in the UK.

The Migration Advisory Committee's report into EU2 (Bulgarian and Romanian) nationals was released on 4 November 2011 and can be found under the 'see also' section on the right side of this page.