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Employment law – Personnel Today
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Directors held personally liable for exploitative treatment of farm workers
Two company directors have been held personally liable for breaching employment contracts in a series of damning claims made by...
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Caravan park staff not entitled to NMW for night call outs
Workers who were on call during the evening were conducting “time work” and should have received an hourly rate under...
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Half of staff fear Brexit redundancies within a year
Almost half of employees think their employer will make redundancies over the next year, fearing Brexit will result in financial instability.
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R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 189 (IAC)
http://www.bailii.org/uk/cases/UKUT/IAC/2015/189.html
(i) Appendix FM does not include consideration of the question whether it would be disproportionate to expect an individual to return to his home country to make an entry clearance application to re-join family members in the U.K. There may be cases in which there are no insurmountable obstacles to family life being enjoyed outside the U.K. but where temporary separation to enable an individual to make an application for entry clearance may be disproportionate. In all cases, it will be for the individual to place before the Secretary of State evidence that such temporary separation will interfere disproportionately with protected rights. It will not be enough to rely solely upon the case-law concerning Chikwamba v SSHD [2008] UKHL 40.
(ii) Lord Brown was not laying down a legal test when he suggested in Chikwamba that requiring a claimant to make an application for entry clearance would only “comparatively rarely” be proportionate in a case involving children (per Burnett J, as he then was, in R (Kotecha and Das v SSHD [2011] EWHC 2070 (Admin)).
(iii) In an application for leave on the basis of an Article 8 claim, the Secretary of State is not obliged to consider whether an application for entry clearance (if one were to be made) will be successful. Accordingly, her silence on this issue does not mean that it is accepted that the requirements for entry clearance to be granted are satisfied.
(iv) In cases where the Immigration Rules (the “IRs”) do not fully address an Article 8 claim so that it is necessary (pursuant to R (Nagre)) to consider the claim outside the IRs, a failure by the decision maker to consider Article 8 outside the IRs will only render the decision unlawful if the claimant in fact shows that there has been (or, in a permission application, arguably has been) a substantive breach of his or her rights under Article 8.
People may also want to look at this recent decision: R (on the application of Thakral) v The Secretary of State for the Home Department IJR [2015] UKUT 96 (IAC) http://www.bailii.org/uk/cases/UKUT/IAC/2015/96.html