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Employment law – Personnel Today
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Sainsbury’s employee dismissed for Facebook post wins case
A former Sainsbury’s employee was unfairly dismissed after an investigation into whether he had committed an act of gross misconduct...
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From Uber to Deliveroo via Pimlico: The search for clarity on the gig economy
In recent cases it has become apparent that Uber, City Sprint, Deliveroo and Pimlico Plumbers had each created contracts that purported to ensure that their “partners” – the drivers, cyclists and plumbers – were classed as “self employed”
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Fruit industry calls for seasonal permit to avoid post-Brexit labour shortage
The soft fruit industry could be “crushed” by Brexit if it loses access to the thousands of seasonal workers it...
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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