Balajigari - Out of Country Consent Orders - worth the paper they are written on?

As a direct access immigration barrister who has been heavily involved in doing Tier 1 work and especially paragraph 322(5) cases I thought we had reached the end of the beginning with the HO agreeing to reconsider those people who fell within the Balajigari cohort.

In June I was representing one of the clients, he was in the UK and his case was sorted with a time limit of 8 weeks and costs. He seemed happy - however there was another client, through a solicitor, who asked for submissions, I provided them free of charge as to help others, only to hear no more other than through the grapevine that the application had been settled.

This has always troubled me, more so following Balajigariand the Court of Appeal Consent Orders were the SoS seeks to avoid paying costs.

Today was the case where all the worst nightmares came true. My client had applied while with leave and therefore had clocked up 10 years during the AR process. Upon receipt of the AR notice which says horrible things such as Enforcement Notice, you are liable to a fine or six months inprisonment if you do not leave - so she left, indeed leaving her husband here.

Her case proceeded up through the UT where rather than granting permission a UTJ decided to refuse permission on the basis that the HO would at some point get round any delay claim. This however in my view proves to be direct discrimination under the test I shall set out below and alluded to you yesterday. I explained the matter to the Judge and to be fair the Judge did grasp the unfairness but was at a loss as to how the UT could solve the problem.

The biggest problem is that if an individual leaves the UK as per the enforcement notice and brings and wins a JR then the SoS can quash the decision with the effect by virtue or immigration rule 34 of treating any outstanding application as being withdrawn. There on a strict basis the SoS does not need to reconsider anything as there is no application to reconsider.

If this was not shocking enough look at my analysis as to why the SoS might be acting unlawfully in seeking people to leave the UK, some of whom are detained while returning from holiday with their family's

I consider it to be discriminatory and advanced the arguments below to the UTJ - the UTJ asked for the HO response and indicated that there was an apparent unfairness to those who had complied with UK law and those who had not. And that those who complied should not be in a worse position than those who had not.

The GLD had no real answer other than to say that they had a standard consent order - I had prepared submissions for just this type of case back in July 2019 for solicitors in one of the test cases but did not hear back from them nor did they engage as otherwise I would have sought a further hearing.

The UTJ was perplexed that the HO had not prepared a response or way of ensuring fairness but equally challenged me as to on what basis the SoS could intervene given that this was a "new issue" and related to remedies and not the substantive challenge.

Well firstly, here is why I think that the SoS behaviour or proposed consent order is illegal

I argue or intend to advance an argument under direct discrimination under article 14 with reference to article 8 given that Balajigari v Secretary of State for the Home Dartment [2009] EWCA Civ 673 at paragraph [88 - 91]. The relevant five factors in Clift are arguably made out for the following reasons in respect of those who returned and acted lawfully and those who stayed after their leave expired

In assessing whether or not Article 14 of the ECHR is violated there are five issues which require assessment (R (S) v Chief Constable of South Yorkshire [2004] 1 WLR 2196 at [42]):

1. Do the matters complained about come within the ambit of a right protected by the European Convention on Human Rights?
2. Is there a difference in treatment?
3. Is the differential treatment on a ground prohibited by article 14?
4. Whether the others who are said to be subject to differential treatment are in a truly analogous situation?
5. Is the differential treatment justified? That requires a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Chassagnou v France(1999) 29 EHRR 615 at [91]).

Applying the five stage approach set out above to the situation faced by an Applicant who has left the UK as opposed to have remained without leave.

1. The matters come within the ambit of article 8 as is clear from the case of Balajigari which went further and stated that article 8 was engaged, even if were to be wrong, it is plain within the ambit of article 8;
2. There is a difference in treatment between the Applicant who complied with the terms and laws of the United Kingdom and left when their leave expired and those migrants who remained without leave and prosecuted their judicial reviews;
3. The difference in treatment is based upon whether or not the Applicant remained, in breach of the Immigration Acts / Rules and those such as this Applicant who complied with them;
4. An Applicant is in an analogous position to those whom he seeks to compare himself with, ie that the cases all turned on failed applications for ILR who were refused under paragraph 322(5) on the basis of discrepancies / differences in figures supplied to HMRC / UKVI; and
5. There is no sufficient justification for the differential treatment. It is submitted that it is not proportionate. This is a matter that is addressed above as to the differential treatment meted out to those remained unlawfully and those, like an Applicant who complied with the government’s request that they leave.

Where an alleged violation of article 14 is being considered, it is the issue of whether there is justification for the differential treatment that needs to be considered (rather than whether there is justification for the treatment per se) (e.g. Bank Mellat v Her Majesty's Treasury (No 2)[2014] AC 700 at [27]). As a consequence, the issue in this case is not whether there is justification for seeking to deny an Applicant the benefits afforded to those who remained in the United Kingdom but whether or not there is a justification for the differential treatment meted out / consequential on the Applicant having left the United Kingdom.

1. It is my view therefore that the Secretary of State’s assertion that this matter is academic as was endorsed by the UTJ in refusing permission is unlawful. It is quite clear as was trailed in the renewal grounds that there is an unfairness caused to the Applicant in the proposed disposal of this matter which amounts to direct discrimination.
2. It is further submitted that the Secretary of State has made no provision for Applicants to be put in the same position as those in the Balajigari cohort who have:
3. The right to work;
4. The right to vary an application if the decision is quashed, in a case where an Applicant has remained unlawfully in the UK and the decision is quashed then their s.3C leave is effectively resurrected thus permitting them to vary to SET LR (subject to meeting the relevant provisions of paragraph 276B and length of residence);
5. Absent any certification, unlikely where, but for the allegation of dishonesty an individual would be likely permitted to remain and / or afforded an in country right of appeal;
6. In any appeal it is for the Secretary of State to establish dishonesty to the relevant civil standard, in a judicial review application the burden is on the Applicant to show that any conclusion reached was arguably irrational (or disclosed another public law error);
7. Continued residence in the United Kingdom, which will of itself strengthen any article 8 claim / appeal;
8. Continued access to NHS;
9. Access to education, in cases where an Applicant has dependant children; and
10. If served with a minded to refuse letter which seeks detailed information as to the past immigration history is in a far better place to seek evidence to support any contention of innocence, such as being able to work closely with their lawyers, accountants and any medical professionals. It is plain that an individual, such as the Applicant is unlikely to be in the same position to rebut any allegations of dishonesty raised in a minded to refuse letter if they are thousands of miles away from the UK, their lawyers, accountants and previous medical practitioners.

It seems clear to me that Applicants who had left the UK should not be in a worse situation than those who stayed. This is something I put forward in one of the stayed test cases but heard no more about until being given the opportunity to argue this at short notice.

There is a further and major problem in the Secretary of State's consent order - where it provides that an an application for leave is quashed reconsideration will take place, all well and good if you are in the UK, however the quashing of a decision when the client is out of the country has the effect under the immigration rules by virtue of paragraph 34K be treated as withdrawn. The consequence is obvious. an individual who has left the UK and then agrees to have the decision quashed will not only have no s.3C leave but also no application to reconsider. A further illegality or matter potentially open to challenge.

It seems to me that the proper way forward given that minded to refuse letters are being issued "thick and fast" and apparently delve, in some cases as to what the Applicant was doing during their PSW / IGS visa, that to adequately take advice, respond or vary an Applicant needs to be in the UK for both procedural, legal and practical reasons.

The UTJ gave the HO 7 days to prepare their response or position and for me to provide any power that the UT may possess to avoid this unfairness.

I have been scratching my head as I am now pondering the right way forward. I think that there are a number of possibilities -

1. Ask for the HO to apply the same policy it does to out of country ETS appeals that succeed - ie grant 60 days leave and then count time outside the UK as being within the UK;
2. Ask the HO to apply the same policy prior to any reconsideration - so that Applicants do not fall foul of being outside the country when the quashing order takes place;
3. I am also considering whether the UT has the relevant jurisdiction to hear the cases in respect of remedies - given that one course of action is perhaps to file a claim alongside or part of the JR raising ss.7 and 8 of the Human Rights Act 1998 to bring a claim that the SoS is proposing discriminatory treatment as against sone Balajigari clients on the basis of discrimination under article 14 read in line with article 8 - it matters not that Balajigari did not expressly find that Balajigari did engage article 8 to invoke article 14 merely if it fell within the ambit, which is by its nature wider,

I am going to take soundings on this but I am thinking that the third option is probably best - unless the HO gives an undertaking in respect of 1 and 2 to the UT as part of each and every consent Order - however if the SoS digs in, as she is wont to do, then it might be a case of applying for the matter to be transferred to the High Court where such arguments are in the element. I would potentially seek a declaration that the manner that the SoS is or is proposing to deal with this clients will in effect render them without any worthwhile remedy and have the Court invite the SoS to inform the Court of how it proposes to address this issue.

Anyway enough for me for the moment - two hearings at HX and I will try to fit in a video on this interesting and novel topic - I always had the feeling that these people would miss out, ie the law abiding ones who took the Sos/ at her word and now face considerable difficulties adjusting to a life that many had thought that they had left behind, often as I have mentioned with small children,

Anyone watching my videos on my YouTube channel "theimmigrationbarrister" or following me @paulturnerlaw on twitter, will see how I feel / think about this entire issue and I would ask anyone with any interest in Balajigari, its fall out, TOEIC and immigration in general to watch the videos and please subscribe. Please follow and subscribe and I will deliver updates on changes to immigration law as it happens or to cover cases in more detail such as Balajigari (I have been working with Highly Skilled UK Migrants group for what seems likes years - I can remember standing out in the rain outside Parliament and Whitehall on more than one occasion)