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Gamu Nhengu and her legal options in the UK

By Taffy Nyawanza

THE media circus surrounding X Factor contestant Gamuchirai Nhengu puts a spotlight on a number of issues which are the subject of this short commentary. We do not have the full facts and, therefore, we can only go on what the media have been reporting in a highly fluid situation.

Taffy Nyawanza

Again, we have heard only the Home Office’s side of the story so far. In fact, if the media reports are to be believed, it seems highly unusual that the Home Office have been commenting in some detail on the private circumstances of Gamu’s immigration status. What happened to data protection? What happened to the standard Home Office riposte “we do not comment on individual circumstances?”

Be that as it may, three things catch the eye;

1.That Gamu’s family’s visa applications were refused because the main applicant claimed public funds;

 2.that the family are facing deportation to Zimbabwe, and;

3.that the family’s visa applications have been refused without a right of appeal

On the first point, public funds, commonly referred to as welfare benefits, are exhaustively listed at paragraph 6 of the Immigrations Rules. They are income-based jobseeker’s allowance; income support; child tax credit; working tax credit; a social fund payment; child benefit; housing benefit; council tax benefit; state pension credit; attendance allowance; severe disablement allowance; carer’s allowance; disability living allowance; an allocation of local authority housing; local authority homelessness assistance; health in pregnancy grant; and income-related employment and support allowance.

That is it. If it is not here, it is not public funds.

Public funds, therefore, do not include benefits that are based on National Insurance contributions which are computed from earnings. These include contribution-based jobseeker’s allowance; incapacity benefit; retirement pension; widow’s benefit and bereavement benefit; guardian’s allowance; statutory maternity pay; maternity allowance; and contribution-related employment and support allowance.

For the record, NHS treatment, legal aid funding and education grants are also not public funds.

It follows, therefore, that if Gamu’s family claimed any benefits that are not listed in paragraph 6 of the Immigration Rules, they are off the hook.

However, if they did in fact claim public funds, they fall for a mandatory refusal under the immigration rules. However, a recent case called AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773suggests that mandatory refusal provisions are not intended to catch those who make innocent mistakes. . This is a possible angle for Gamu’s family.

Moving on, it is simply not true that Gamu’s family are facing deportation as the media has been hysterically reporting. They are facing administrative removal. There is an important difference between the two.

Removal is reserved for immigrants who have overstayed or otherwise breached their visa conditions. Deportation is reserved for the more serious cases and is carried out where it is deemed to be for the good of the public. The other main distinction between the two is that where someone is removed, they can apply to return to the UK after one year. If they are deported, they will be barred from returning for 10 years.

With respect to the denial of a right of appeal, unfortunately this happens more often than it should. However, Gamu’s family can still proceed to appeal under the human rights provisions, especially what is called Article 8 which recognises the right to a private and family life.

In a recent case called LD (Article 8 best interests of child) Zimbabwe [2010] UKUT 278, it was confirmed that the courts have a duty to consider the best interests of the child under Article 8 and that this should be a primary consideration in immigration cases.

The case involved a Zimbabwean gentleman whose application for indefinite leave to remain was refused on the basis that he had failed to disclose a number of drink driving convictions on his application.

He had a wife and children in the UK and the court confirmed that the seven year concession may have been withdrawn but substantial residence of a child was a strong indication that there had to be an assessment of the best interests of the child. The Court made reference to the UN Convention on the Rights of the Child 1989 which makes it clear that the interests of the child should be a primary consideration in immigration cases.

The court confirmed that very good reasons would be required for separating a child from a community in which he or she had grown up and lived for most of his or her life. It also said that the general situation in the relevant home country is also relevant, especially if it is known that the conditions there are dire (as they are, for example, in Zimbabwe).

For these reasons, the court confirmed that it would be unreasonable to expect LD’s wife and three children to give up their careers and education in the UK and relocate to Zimbabwe where conditions are dire, even though there might not be direct physical threat to them.

In Gamu’s family’s case of course, there are at least two minor children who face being removed from a community in which they have grown and lived for most of their lives. They are presumably in education and to terminate their studies is arguably unreasonable.

Finally, even if the family do not have a right of appeal following the refusal of their visa applications, there is always the option of a Judicial Review. Judicial review is the main way by which the courts can scrutinise the actions and decisions of the government and other public bodies to ensure that their decisions and actions are lawful. Applications for judicial review are made to the High Court.

Finally, the point has been alluded to elsewhere that being Zimbabweans, Gamu’s family cannot be removed as the UK government has had a policy of not returning Zimbabweans in place since July 14, 2005.

This however, only applies to failed asylum seekers. Non-asylum migrants who have exhausted their appeal rights remain liable for removal. Gamu’s family cannot, therefore, rely on the ‘no removals’ policy unless they actually go down the asylum route.

And so whilst the media continues to sensationalise and give the impression that it’s all over for Gamu and her X-factor dreams, she actually has options. More to the point, she and her family cannot be removed whilst these proceedings are in motion.

Taffi Nyawanza is the principal of Genesis Law Associates, a specialist immigration and asylum law firm in Birmingham. He can be contacted on e-mail tnyawanza@genesislaw.co.uk.

Visit Genesis Law Associates’ website at www.genesislaw.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.