Danielle Cohen, Immigration and Human Rights lawyer — Written evidence (FAM0034)   

 

My name is Danielle Cohen and I am an Immigration and Human Rights lawyer with over 23 years’ experience. I have been a sole practitioner since 2004, when I established my own firm.

 

I have enjoyed much success across a diverse range of immigration and asylum cases, achieving exceptionally high success rates, with a particular expertise for dealing with complex questions of immigration law and evidence.

 

Throughout my career I have made a significant contribution to the promotion, protection and advancement of human rights. I wish to assist the Committee by answering one of the questions included in the call for evidence.

 

-                 Elected as a Council Member of the Law Society in one of the seats reserved for women, 2022;

-                 Shortlisted as the Human Rights Lawyer of the Year in 2018;

-                 Expert Witness for the Home Affairs Select Committee, October 2017;

-                 Responsible for training more than 36 solicitors since her own qualification, making a particular commitment to training and hiring women;

-                 Member of the Women’s Lawyers Division 2018 to 2021;

-                 Member of the Advisory Group to the Judicial Appointment Commission from June 2019 to 2021;

-                 ILPA Trustee October 2017 to October 2019;

-                 Anglia Ruskin University Mentor April 2019 to December 2020;

-                 Regularly approached for commentary on topical immigration issues by media outlets including, BBC, the Financial Times, the Law Society, the Telegraph, among others;

-                 Middle Temple Students Association Black History Month Speaker, October 2018;

-                 Extensive voluntary experience with a range of organisations including Liberty, Refugee Women’s Legal Group, Justice for Women, Rights of Women

-                 Director at the Westminster Women’s Aid (1992 – 1995) and an Advisor at the Hammersmith & Fulham Law Centre (1997 – 1999)

 

Does immigration law apply to every family the same? Do different rules apply to different circumstances?

 

Everyone in the UK has respect for their family life under Article 8 of the European Convention on human rights but a migrant from outside the European Economic Area needs to meet different criteria in order to be able to stay in the UK on the basis of their family life.

 

  1. Under the Immigration Rules in order to enjoy family life you need a family member who is a British citizen or settled in the UK or has refugee status/ humanitarian protection. If they do not and they are here under other migrant routes such as the skilled migrant, then certain categories of family members cannot be sponsored.  Dependents of skilled workers can only be husband/wife, children under 18 or children over the age of 18 if they are already in the UK as dependents when the application for extension is being made.

 

  1. The British family member generally needs to be a partner or a child under the age of 18 but family life will only be recognised between other family members such as parent or adult child if there are more than normal emotional ties. The focus on family life has been too narrow and has sometimes distracted the Home Office and the Tribunal from the real question; which is whether Article 8 which protects private and family life together, is engaged. The leading judgment is the case of Kugathas v SSHD [2003] which concludes that the question of whether the family life exists is a fact sensitive one and there should not be a presumption either way as to whether or not it exists or does not exist between adults. 

 

  1. Different rules apply for different classes of individuals who live in the United Kingdom, ie., under the EU Settlement Scheme and under Appendix FM.  Post-Brexit, EU nationals need to make applications under the EU Settlement Scheme. If an application is refused the Grounds of Appeal in an EU status appeal are provided for in the Immigration (Citizens Rights Appeals) EU Exit Regulations 2020 where Regulation 8 contains two potential Grounds of Appeal.  (1) that the decision breaches the right of the appellant under the withdrawal agreement or (2) that the decision is not in accordance with the immigration Rules. Regulation 9(4) provides that the Tribunal may also consider any matter which it thinks relevant to the substance of the decision appealed against including a matter arising after the date of the decision.  This the Upper Tribunal has confirmed includes human rights grounds. However, this Regulation is subject to Regulation 9(5) which provides that the Tribunal cannot consider a new matter without the Home Office consent. Therefore, in order to succeed in an application for entry clearance under Appendix EU (FP) an applicant must meet the specific requirements of the Rules and Appendix EU or Appendix EU(FP) is intended to and does not give effect to the country’s obligations under Article 8 ECHR. Therefore, consideration of Article 8 forms no part of the decision-making process in relation to such applications. That was confirmed in the case of Batool and Celik.  Thus, applications under these Rules are not human rights claims and therefore consent is required. This is different to applications made under Appendix FM or Appendix Private Life, where article 8 considerations are taken into account.

 

  1. Furthermore, EU couples who are in a durable relationship who could not get married due to the Covid-19 restrictions are not allowed to make applications which recognises their relationship.  Again, in the case of Celik (EU Exit; marriage, human rights) [2002] UKUT00220 IAC the Upper Tribunal has decided that he and anyone else in his position cannot benefit from the EU Settlement Scheme because unmarried couples do not have automatic right under EU free movement laws in the same way that direct family members such as spouses did.  This means that they had to apply for a residence document under the Immigration (EEA) Regulations 2016 or marry before 31st December 2020 when the EU law ceased to apply in the UK. The Covid-19 pandemic caused tremendous problems for couples wanting to marry before 31st December 2020.  The Home Office was urged to provide a concession for those whose marriage had been scheduled prior to Brexit but were postponed due to the pandemic.  However, no such concession was given.  What this means in effect, is that extended family members did not have automatic rights under EU free movement law to remain in the UK post Brexit in the same way that direct family members did.  Extended family members include unmarried partners, relatives who are dependent on EU citizens, members of EU citizen households, and those who require the personal care of an EU citizen on health grounds.  A direct family member is a spouse, a civil partner, a child under the age of 21 or a dependent child over 21 or a dependent parent. Unmarried partners under Appendix FM could make in-country applications at any point in their relationship.

 

  1. EU spouses versus applications under Appendix FM

 

One of several challenges in applying for a UK visa as a spouse of a person who is present and settled in the UK or British are the financial requirements. Appendix FM of the Immigration Rules contains minimum financial requirements to be met and the two challenges are meeting the minimum income which has to be demonstrated with specific documents and adequate accommodation for the family.  If the applicant and sponsor are unable to satisfy any of the categories above, other reliable sources of income can be taken into account. This is a consequence of Court cases which led to a relaxation of the Rules and the introduction of paragraph GEN3.1 of the Immigration Rules which states that it is acceptable to produce evidence of other credible and reliable sources of income if a refusal of the application would be a breach of Article 8 because it could result in unjustifiably harsh consequences for the applicant the partner or relevant child.  The threshold to satisfy in order to benefit from this relaxation of the Rules is very high and it is supported by the case of MM (Lebanon) which is a judgment concerned with an applicant who failed to meet the minimum income rule for entry clearance or leave to remain as a partner or child under Appendix FM.  The Supreme Court in this case upheld the principle of the minimum income rule, however, the Court also held that the Rules and policies used by the Home Office... had to take proper account of the impact on children and consider other possible sources of income and support.  The Home Office defines ‘unjustifiably harsh consequences’ as ones which involve harsh outcomes for the applicants or the family which is not justified by the public interest.  This is a very high threshold which of course does not apply to families who wish to make an application under the EU Settlement Scheme as there is no financial threshold.

 

The decision of MM (Lebanon) leads to the obvious question why not allow all applicants to rely on other sources of income and funding, why only those who are facing refusal or that their refusal will lead to unjustifiably harsh consequences.  Surely if an applicant is financially supported the Home Office should be satisfied that there will be no recourse to public funds and allow the application. The Home Office decided to create two evidential categories which is difficult to justify. 

 

While alternative sources of income are recognised by the Home Office and an applicant is granted entry clearance or leave to remain as a partner or as a parent, they are punished by having to wait twice as long for settlement by entering a 10-year route to settlement as opposed to the five years route to settlement. Nowhere in the decision does the Supreme Court say, that there will be a separate route to settlement but only alternative forms of income that can be used to meet the minimum income requirements. It is possible for those under the 10 years route to subsequently meet the minimum income Rule and enter the five years route to settlement, but that will involve additional costs by paying further application fees.

 

  1. The Home Office has the ability to vary applications for indefinite leave to remain and instead grant extensions of permission to stay and the rationale is that those applying will not be left without immigration status.  That change is welcome because it means that the individuals do not have to pay an application fee or fill in a new form or upload new supporting documents but if a case were considered the requirements for limited leave to remain are met instead of indefinite, they do not issue a formal refusal letter, but rather a letter to pay the IHS and there is no right of appeal or administrative review against the decision of the caseworker.  By not refusing the application the Home Office does not trigger refusal of a human rights claim and therefore no appeal is possible to the Tribunal. The only remedy is the very expensive and hard to satisfy Judicial Review process and it does not seem possible for the applicant to ask the Home Office to refuse the application and to allow them to challenge it in Court.

 

  1. Further category, are the adult dependent relatives, where one could make an entry clearance or in-country application on compelling and compassionate grounds, or insurmountable obstacles to integration in the country of origin. Settled families in the UK have felt that they have less rights to family life because since the 2012 version of the Adult Dependent Rules the Rules have been tightened to the extent that applicants feel that it is not a Rule but rather a ban because relatives have to show that there is no care available in the country of origin.  This is in sharp contrast to the sentiments during the pandemic which were shown to the elderly who suffered from loneliness and isolation and who needed to be shielded and who we were called to help and protect.  The BM, GMC and several other health bodies wrote a joint letter to the Home Secretary in January 2020 with no direct response, asking for a review of the Rules by gathering support from peers and several politicians. The issue was raised in Westminster by the Chair of the Immigration All Party Parliamentary Group Stephen Timms, in November 2021, who reiterated that the economic costs have been misleadingly over stated in the 2016 review and that traditionally elderly parents are looked after at home within their families and there is an inherent unfairness in the expectation that family care can be provided remotely or by multiple trips to the elderly abroad and that there will be no consequences for the British family members in the UK or to the UK economy.  The elderly group are being denied fundamental rights and appeals that follow after refusals are expensive and traumatising involving very long waits.  The refusals often fail to take into account evidence provided especially country evidence and do not refer to the care conditions in the country of origin.  Those elderly who are in the UK and who find post arrival that their medical circumstances have changed can make an in-country application. The legal test to satisfy is different and the leave granted in-country is not indefinite leave to enter, but limited leave to remain on the 10-year route to settlement.

 

 

September 2022