Expired Passport

J Mortoza made this Freedom of Information request to UK Border Agency

UK Border Agency did not have the information requested.

From: J Mortoza

6 August 2010

Dear UK Border Agency,

1)Why does the UKBA have two different polices for those with right
of abode in their passport as opposed to those who have ILR on an
expired passport for work purposes ?

2)Since the certificate of entitlement states "valid for
presentation at a UK port within the validity of the passport"
where is it documented that this should be used to evidence a
persons right to work ?

3)Does a person who has the right of abode lose their right to work
just because their passport has expired ?

Yours faithfully,

A J MORTOZA

Link to this

From: J Mortoza

6 August 2010

Dear UK Border Agency,

I wish to add one more question to the orginal request

4)Why does the UK BA discriminate against those who have the right
of abode against those who have ILR?

5)Which is the more important status, the right of abode or the ILR
?

Yours faithfully,

J Mortoza

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From: Freedom Of Information Team ( IND )
UK Border Agency

9 August 2010

Dear J Mortoza,

Thank you for your below email. These questions will be added to your
earlier request.

Yours sincerely,

Freedom of Information Act Policy Team

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From: Whitehead, Jane

9 August 2010


Attachment JW 09 08 10 Mr Mortoza.doc
147K Download View as HTML


[Subject only] FW: Freedom of Information request - Expired Passport

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From: J Mortoza

9 August 2010

Dear Whitehead, Jane,

Thank you for your reply. With regards to the following statement I
have one more question please

"You asked why does the UKBA discriminates against those who have
the right of abode against those who have ILR? Our position is that
all those who wish to work in the United Kingdom are required to
demonstrate that they have the legal capacity to do so. "

Does a person who has the right of abode have a legal capacity to
work free of immigration control ?

Yours sincerely,

J Mortoza

Link to this

From: J Mortoza

9 August 2010

Dear Whitehead, Jane,

Sorry I had one more question that will help me.

What is the certificate of Entitlement used for ? Where does it
state it should be used to evidence the right to work under what
law or regulation ?

Yours sincerely,

J Mortoza

Link to this

From: J Mortoza

9 August 2010

Dear Whitehead, Jane,

I would like evidence as to where it states a person who has the
right of abode must evidence this in their current passport to show
their legal right to work.

I have not seen any reference of this in either section 15 of the
2006 law nor in regulation 3145. I would like clarification of this
along with what exactly is stated on the certificate and what is
used for ? I see that it states "valid for presentation at a United
Kingdom port within the validity of the passport"

I do not see it has anything to do with work rights of such persons
so would be interested to know exactly which law or regulation
states this and states that this must be in a valid passport.

Your kind corporation in this will be of great help in being able
to see the legal basis for this issue

Yours sincerely,

J Mortoza

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J Mortoza left an annotation ( 9 August 2010)

Quote-marks Regulation 8 of the SI 3145 states that a certificate will cease to have effect if the travel document on which it is affixed to has expired. The certificate states valid for presentation at a United Kingdom Port within the validity of the passport. It does not say it is a work permit or has effect for any other purpose other then being valid for presentation at a UK Port. I have also appended the explanatory notes for the 2006 Act which you can independently download. My question is again where does it state that an expired certificate cannot be used as evidence to prove a persons on going right to work as the effect of a certificate. I am pretty convinced its a travel document not a permit.

Section 15 explantory notes state the following

Page 4 of the IMMIGRATION, ASYLUM AND NATIONALITY ACT 2006 EXPLANATORY NOTES
Section 15: Penalty
37. Section 15 provides that a person is liable to a civil penalty if he employs an
adult subject to immigration control who has not been granted leave to enter or remain
in the United Kingdom or whose leave is invalid, has ceased to have effect (whether by
reason of curtailment, revocation, cancellation, passage of time or otherwise), or is
subject to a condition preventing him from accepting the employment.

Link to this

From: J Mortoza

9 August 2010

Dear UK Border Agency,

Please pass this on to the person who conducts Freedom of
Information reviews and also to the UKBA Judicial review team.

I am writing to request an internal review of UK Border Agency's
handling of my FOI request 'Expired Passport'.

I would appreciate if the Judicial Review team of the UKBA looked
into the legality of this issue as none of the other teams seem to
be up for this job. I cannot see where section 15 of the 2006 law
applies to a person who is not subject to immigration control and
feel this matter should be assessed by the judicial review team of
the UKBA

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ex...

Yours faithfully,

J Mortoza

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J Mortoza left an annotation ( 9 August 2010)

Quote-marks The following notes are appended for judicial unit to look at please

I believe the UKBA's staff have been acting unlawfully by using section 15 of the 2006 immigration act to imply that it is also meant for those who are not subject to immigration control. This is ultra vires and cannot be considered to be legal as it completely disregards the law and to whom it is applicable to.
Regulation 3145 on the Certificate of entitlement to the right of abode item 8 does expire a persons travel document but this cannot be said to expire a persons right who has this right to work by virtue of their right of abode. An expired certificate is still evidences of a persons identity and also their ongoing right to work. To say otherwise will be wholly wrong and inconsistent.
I cannot see a link between regulation 3145 and section 15 of the 2006 act and have repeatedly pointed this out.
In making the expiry of a travel document link to a persons right to work the UKBA have acted irrationally and in an unreasonable manner or what is called the Wednesday Principle.
In accepting expired passports for those who have ILE they have in refusing the same circumstances have followed procedural impropriety when it comes to not accepting the same rule for those who have an ongoing right of abode and be free of immigration control.

Link to this

From: Freedom Of Information Team ( IND )
UK Border Agency

10 August 2010

Dear Mr Mortoza,
The reply to your enquiry was not handled under the Freedom of
Information Act and so a formal review under the Act is not applicable.
We have however; passed your e mail onto the unit concerned and they
will be in touch with you shortly.
Kind regards

UK Border Agency
Freedom of Information Team

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From: J Mortoza

10 August 2010

Dear Freedom Of Information Team ( IND ),

I am not getting the correct legal answers to my query. I would
like the answers to be provided by a legal team of the UKBA such as
the judicial review unit as I feel the organisation has erred and
is acting unlawfully.

Yours sincerely,

J Mortoza

Link to this

From: Devereux, Jonathan

18 August 2010


Attachment JD Review MrMortoza 18 08 10.doc
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Mr Mortoza

Please find attached the outcome of my internal review, as requested in
your email of 09.08.10.

With thanks
Jonathan Devereux - Head of Operational Policy - Nationality, European,
Armed Forces, KOL - 0151 213 1871 - email:
[email address]

<<JD Review MrMortoza 18 08 10.doc>>

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From: Devereux, Jonathan

18 August 2010

Devereux, Jonathan would like to recall the message, "Strictly Confidential - Internal Review ".

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From: Devereux, Jonathan

18 August 2010


Attachment JD Review MrMortoza 18 08 10.doc
151K Download View as HTML


Mr Mortoza

My reply is attached.

With thanks
Jonathan Devereux - Assistant Director - Head of Operational Policy -
Nationality, European, Armed Forces, KOL - 0151 213 1871 - email:
[email address]
<<JD Review MrMortoza 18 08 10.doc>>

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From: J Mortoza

18 August 2010

Dear Mr Devereux, Jonathan,

You state the following as the reasoning about being factually
mislead about different treatments and I do believe the position is
in fact incorrect if I may kindly point this out without upsetting
you.

"
To this end, those with the right of abode are not distinguished or
treated less favourably than any other group and to assert this is
the case is factually misled. It is critical that the immigration
status of the applicant on the date of application is rigorously
assessed so as to ensure only those with valid evidence of a
relevant immigration status are accepted for employment.

In relations to a person who has ILE/ILR status. Such persons may
also be deprerieved of their status for conditions such as not
conducive to security. However such a condition can be placed even
after a certificate has been renewed for such persons and also can
happen to those who renew their right of abode. So I do not accept
that there has not been difference in policy between the two
groups, there has. IN what manner will such a rule be applied to
those who already are in possession of an expired passport
containing and ILR/ILE or for that matter a person who is already
holding a ROA on an unexpired passport for the next 10 years before
the passport expires again.

I am afraid my charge of inconsistent policy being applied is valid
on these counts and you need to kindly have a look at this before
you close me off from the argument I have been stating as there is
a glaring inconsistency and the Wednesday principle does apply.

Finally the UKBA have failed in offering a remedy in providing a
status letter to the effect the person in question has a right of
abode and there are no encumbrances on such a person if one does
not exist

Yours Sincerely

A J MORTOZA

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J Mortoza left an annotation (18 August 2010)

Quote-marks “Two cases, Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719
and English UK v Sectetary of State for the Home Department [2010] EWHC 1726
(Admin), were both handed down in July 2010.
The Court of Appeal observed that rules (such as the Immigration Rules) must be certain
in their content and subject to parliamentary scrutiny. By contrast, policy must be applied
without rigidity and adapted in the interests of fairness and good sense. The court went on
to hold that it is unlawful for criteria affecting individuals' status and entitlements to be
incorporated in a source outside the Immigration Rules, if that source is impermanent or
undetermined and not subject to parliamentary scrutiny each time it is changed
The High Court adopted the reasoning in Pankina to find that whilst it may be permissible
to for an Immigration Rule to refer to policy guidance available for scrutiny by parliament at
the time the rule is made, section 3 (2) of the Immigration Act 1971 requires that any
material or substantive change in the administration of immigration control must be placed
before parliament for consideration.”

Also on the balance of probability the following issue has already been made in appeal court
The following is also true as to the standard of proof required, it was held by the Immigration
Appeal Tribunal in Kessori Khatun (4272) that
"the standard of proof applicable to the right of abode, whether that right be dependent on
citizenship or relationship, is that of the normal balance of probabilities". In other words, a right of
abode is established, or a claim to citizenship made out, if the evidence that it exists
outweighs, however slightly, the evidence that it does not. “
In Kessori Khatun, the Tribunal was concerned with the right of abode, the same standard is
thought to apply to proof of citizenship for other purposes (e.g. for passport/consular protection
purposes, voting etc)

Link to this

J Mortoza left an annotation (18 August 2010)

Quote-marks THE IMMIGR ATION, A S YLUM AND NATIONALITY ACT 2006
Explanatory Notes:
EMPLOYMENT
The provisions:
• create a power for the Secretary of State to apply a civil penalty, determined by a
Code of Practice, to an employer of an adult subject to immi gration control
who
has not been granted leave to enter or remain, whose leave is invalid, has ceased
to have effect (whether by reason of curtailment, revocation, cancellation,
passage of time or otherwise) or whose conditions of entry or stay prevent them
from undertaking the employment. The provisions allow for objection and/or
appeal by the employer against the imposition of a penalty and the amount. An
employer who complies with requirements prescribed in an order of the
Secretary of State is excused from paying a penalty.
• create a new criminal offence of knowingly employing an adult who has not
been granted leave to enter or remain, whose leave is invalid, has ceased to have
effect (whether by reason of curtailment, revocation, cancellation, passage of
time or otherwise) or whose conditions of entry or stay prevent them from
undertaking the employment in question.
• allow the Secretary of State to issue a code of practice to employers on how to
avoid unlawful racial discrimination when applying these provision

Link to this

J Mortoza left an annotation (18 August 2010)

Quote-marks Discrimination can be direct and indirect and I feel the UKBA have directed another to discriminate so both parties are responsible.
I also feel the UKBA have failed in their duty to apply care and consideration how to avoid discrimination.
Finally I believe the UKBA have also used section 15 of the 2006 act incorrectly to apply to a person who has the right of abode and not subject to right of abode on assumption that a order against such a person exists. This order could also exist when someone has a valid passport and it will not cause anything to be done on the employment front.

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From: J Mortoza

18 August 2010

Jonathan Devereux
Head of Nationality and European Operational Policy

18th August 2010

Dear Mr Devereux

First of all I take great exception to the fact while my questions
have not been dealt with I have also been told not to write or
pursue this matter to seek remedy. I think that is wholly unfair
and also is not in the spirit of helping to remedy matters.

As your request of 6 August was treated as a policy enquiry rather
than as a request for information under the Freedom of Information
Act 2000, this is not subject to review by the FOI team. Instead,
it clearly falls to me to undertake the review of your recent
enquiry and associated communications in my capacity as the Head of
Nationality and European Operational Policy. This further explains
why a review will not be conducted by, or in conjunction with, the
UKBA Judicial Review Team as I am best placed to review the
accuracy and content of the advice you have received as the policy
owner.

However, you continue to take issue with the fact that a person
with an expired certificate of entitlement is unable to demonstrate
their ability to work in the United Kingdom by virtue of that
expired certificate. I continue to take issue with the department
because I feel its interpretation of the law to do with civil
liabilities is incorrectly applied and have tried on successive
occasions to draw attention to this matter.

I will again restate that Section 15 of the 2006 law is applicable
to only those who are subject to immigration control. I therefore
urge you to read the explanatory memorandum of the 2006 act where
it is made very clear.

“ The provisions create a power for the Secretary of State to apply
a civil penalty, determined by a Code of Practice, to an employer
of an adult subject to immigration control who has not been granted
leave to enter or remain, whose leave is invalid, has ceased to
have effect (whether by reason of curtailment, revocation,
cancellation, passage of time or otherwise) or whose conditions of
entry or stay prevent them from undertaking the employment.”

The above statement only applies to those who are subject to
immigration control including and not excepting “ceases to have
effect”, “passage of time”, etc. There is no reference here to
those who are not subject to immigration control and I wish to draw
your attention to the whole sentence I the explanatory memorandum.

To infer that regulation 2006 subsection 8 somehow ties to section
15 of the 2006 immigration act is baseless and misleading and I
believe unlawful adpatation.

Further British citizens would not have to undergo this as the
comprehensive guide on page 45 question 11 and the answers states
for purpose of Non EU Passport holders who have the leave to enter
and remain that the situation would be applicable for section 15 of
the 2006 act. This does not apply as a qualified reply to the
question being asked and has been accepted already as being
misleading by the UKBA staff. So I dispute this too.

Finally you state that because a deprivation order under section 2A
of the immigration act 1971 could happen that this is a method of
checking and controlling my rights. This is contrary to section
2(1)(b) which gives me unrestricted right of access and right to
work without permission or control and not be subject to let or
hindrance under the same act. I also disagree with the logic of
this statement since ILE/ILR persons can also be subject to a
deprivation order and yet they can use an expired passport or for
that matter, a person with the right of abode may have a passport
with a life of 10 years and a deprivation order is made 2 years
down the road. Surely when a deprivation order is made it is
subject to due process of law and an appeals tribunal ? So I am
afraid this is an inferred deduction that would not hold any water
in a court of law either.

Your statement “Relying on a certificate that is not inserted into
a valid current passport is not permissible in law. “ is also wrong
as it is not mandatory by law to renew a certificate of entitlement
and this is not stated at all in the regulations. It is not my
permit it is a travel document that evidences my statutory rights.

I should ask you not to close my complaints off so hastily and not
dealing with the specific issues by telling me not to write any
more because until you have satisfied me either in writing that the
law has been correctly interpreted I am open to all sorts of remedy
as a care of duty towards protection of my rights under the race
relations act and the equality act enjoined on a public body to do
so.

I also feel if this process of trying to negotiate with you does
fail then it will lead way to a court claim and be subject to a
judicial review. I have given the staff of the UKBA every
opportunity to set this matter right but it has consistently
decided to take a defensive stand and not look at the law in black
and white and has sought to connect regulation 2006 No 3145 to
Section 15 of the 2006 act incorrectly and implied employers would
be fined if my passport is expired.

This is wholly unacceptable on my part as it infringes my right of
abode, a right that is based on descent and rights that are subject
to the European Convention of Human Rights.

Thanking You,
Yours Sincerely

A J MORTOZA

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From: J Mortoza

18 August 2010

Dear UK Border Agency,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of UK Border Agency's
handling of my FOI request 'Expired Passport'.

My complaint is that despite several attempts to draw attention of
the UKBA misapplying the law they have not only continued to do so
but also have ended up twisting and fitting section 15 of the 2006
act to suit the regulation and not even read the explanatory
memorandum that accompanies the law clearly stating the conditions
apply to those who are subject to immigration control. In telling
me not to correspond any further with this issue they have also
tried to stop me from seeking a remedy to this mistake by trying to
stop me from raising this as many times as required to a public
body if they have erred and continue to err.

I have written a full reply to the letter sent to me today and have
posted it back on site and hope it will be actioned either by the
department concerned or by escalating the complaint over the
department considered to the line management responsible.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ex...

Yours faithfully,

J Mortoza

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From: J Mortoza

18 August 2010

Dear Devereux, Jonathan,

The following statement is also totally wrong !

"This means that any person who claims to be a British citizen, to
have the right of abode or who claims to have indefinite leave to
remain in the UK or another relevant immigration status will be
required to provide valid evidence of that status at the date of
application for employment.

The law and its explanatory notes state the following:-

“ The provisions create a power for the Secretary of State to apply
a civil penalty, determined by a Code of Practice, to an employer
of an adult subject to immigration control who has not been granted
leave to enter or remain, whose leave is invalid, has ceased to
have effect (whether by reason of curtailment, revocation,
cancellation, passage of time or otherwise) or whose conditions of
entry or stay prevent them from undertaking the employment.”

British citizens or those commonwealth citizens who have the right
of abode are not subject to immigration control.

I really think your department and team needs to look at this
section of the law very carefully as I think there appears to be a
very serious problem in understanding the law by your team

Yours sincerely,

J Mortoza

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From: J Mortoza

19 August 2010

Dear Devereux, Jonathan,

There are two recent court cases that have a bearing to my earlier
emails. The Pankina and English UK judgments on 27th of July 2010
states the following:-

The Court of Appeal observed that rules (such as the Immigration
Rules) must be certain in their content and subject to
parliamentary scrutiny. By contrast, policy must be applied without
rigidity and adapted in the interests of fairness and good sense.
The court went on to hold that it is unlawful for criteria
affecting individuals' status and entitlements to be incorporated
in a source outside the Immigration Rules, if that source is
impermanent or undetermined and not subject to parliamentary
scrutiny each time it is changed.

I believe linking regulation 2006 Certificate of Entitlement to the
Right of Abode No 3145 to Section 15 of the 2006 act on civil
penalties for employers fits exactly in the same context as it does
to ILE/ILR. The immigration rules have implemented a policy that is
not fair and with good sense. The criteria of establishing a
penalty is outside of the regulations and it has not met with the
scrutiny of parliament and has been changed accordingly to imply
"risk of" a civil penalty would apply where none would.

Finally in doing this it has in fact resulted in a discriminatory
practice which has led to direct and indirect discrimination of the
2006 Equal rights act and also results in encouraging to
discriminate those the UKBA is charged with a duty to protect and
discourage through policies their possible discrimination.

I believe the policy has directly resulted in discrimination and a
breech of my rights under human rights act and the race relations
acts.

I would therefore like to formally bring charges of discrimination
and discriminatory practice by the UKBA as my human rights have
been compromised under European charter of fundamental rights these
being

Article 1 Human dignity

Article 3 Right to the integrity of the person

Article 5 Prohibition of slavery and forced labour

Article 7 Respect for private and family life

Article 15 Freedom to choose an occupation and right to engage in
work

Article 16 Freedom to conduct a business

Article 21 Non-discrimination

Article 54 Prohibition of abuse of rights

I would now prefer if the UKBA's judicial unit would take over the
handling of this investigation please

I could write to them directly if you like using the required
template from the courts to take this matter up.

Yours sincerely,

J Mortoza

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From: J Mortoza

19 August 2010

Dear UK Border Agency,

Please pass this on to the person who conducts Judicial Review

of work permit.
The issue
4th August 2010 The UKBA on the following url published the
following at
http://www.ukba.homeoffice.gov.uk/siteco...
That the statement on this web page with reference to the right of
abode suggests such persons
right to work has expired and is in fact attempting indirect
control of those who are not subject to
immigration control and can be seen to be an act hindering such
persons from exercising their
human rights to work and live freely.
The details of the action that the defendant is expected to take
Removal of web site statement and make clear such persons who hold
the right of abode rights
such as their right to work is not impaired and that civil
penalties will not apply and to make clear
the expiry of the document may result in expiry of travel not their
rights.
To provide for compensation to the loss of livelihood that this
action has caused the claimant.
The details of any documents that are considered relevant and
necessary
Please refer to page 45 of the comprehensive guide towards
employing illegal workers February
2008 where the question is asked about expired right of abode but
no answer is given thereof in
that section
Explanatory Memorandum of Asylum, Immigration and Nationality Act
2006 and Section 15 of the
2006 Act
Regulation 3145 for Certificate of Entitlement 2006
Section 2(1)(b) of the 1971 Immigration Act
Part 1 of the 1971 Immigration Act
3.2 Procedure of the Law and Policy PDF File on UKBA's own web site
at
http://www.bia.homeoffice.gov.uk/sitecon...

Yours faithfully,

J Mortoza

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From: Freedom Of Information Team ( IND )
UK Border Agency

19 August 2010

Dear Mr Mortoza,
As we have previously explained, your request was not handled under the
Freedom of Information Act and an internal review is not therefore
applicable. You do have the avenue to make a complaint if you are
dissatisfied with the way your enquiry is being handled and the UK
Border Agency website advises how to do this. In the meantime, we will
forward your correspondence to the unit who have previously been
corresponding with you.
Kind regards

UK Border Agency
Freedom of Information

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From: J Mortoza

19 August 2010

Dear Freedom Of Information Team ( IND ),

I would like all correspondences and requests removed from public
review following clarification and confirmation from the Judicial
unit who I shall be asking through solicitors to review before
representation is made.

Thanking you
Yours sincerely,

J Mortoza

Link to this

From: Freedom Of Information Team ( IND )
UK Border Agency

19 August 2010

Dear J Mortoza,

It is not clear from the contents of your below email what action you
require. However, if you are referring to your requests made through the
whatdotheyknow.com website you will need to contact them.

Yours sincerely,
Freedom of information team

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J Mortoza left an annotation (19 August 2010)

Quote-marks THE RIGHT OF ABODE

The right of abode gives a person an unconditional right to be free of immigration control or permission by an immigration officer.

Statement of right of abode in United Kingdom, 1971 Immigration Act as amended by the 2006 Asylum and Immigration Act as stated in section (2):-

General Principles

(1)All those who are in this Act expressed to have the right of abode in the United Kingdom shall
be free to live in, and to come and go into and from, the United Kingdom without let or hindrance
except such as may be required under and in accordance with this Act to enable their right to be
established or as may be otherwise lawfully imposed on any person.

(1) A person is under this Act to have the right of abode in United Kingdom if--
(a) he is a British citizen; or
(b) he is a Commonwealth citizen who

(i) immediately before the commencement of the British Nationality Act 1981 was a
Commonwealth citizen having the right of abode in the United Kingdom by virtue of
section 2(1)(d) or section 2(2) of this Act as then in force; and

(ii)has not ceased to be a Commonwealth citizen in the meanwhile.

2) In relation to Commonwealth citizens who have the right of abode in the UK by virtue of
subsection (1)(b) above, this Act, except this section and section 5(2), shall apply as if
they were British citizens; and in this Act (except as aforesaid) "British citizen" shall be
construed accordingly

Thus we can see the law is very clear and states that a person who has the right of abode must be allowed to come and go without 'Let or hindrance(denoting something that is free to progress)'.
The right of abode certificate states “valid for presentation at a United Kingdom Port within the validity of the passport”. The fact that a passport is out of date does not in itself render it invalid as evidence of nationality and identity and when presented with another new passport reinforces that persons claim and ID.

Immigration regulation 3145 regulation Rule no 8 states
“a certificate of entitlement shall cease to have effect on the expiry of the passport or travel document to which it is affixed”.

It does not state a persons right to work nor does it suggest anything other then the ability to present the certificate for entry at a UK port will have expired if the passport does, however as we see on the operations manual of the UKBA a completely different approach is taken due to cautions under law and policies set as a standard for the UKBA to follow.

The Immigration (Restrictions on Employment) Order 2007 No 3290 published a list of
acceptable documents on a schedule entitled List A states the following

Excuse from paying civil penalty
3.—(1) To the extent provided for by paragraph (2) an employer is excused from paying a
penalty under section 15 of the 2006 Act if —
(a) the employee or prospective employee produces to the employer any of the documents or
combinations of documents described in list A in the Schedule to this Order; and
(b) the employer complies with the requirements set out in article 6 of this order.

LIST A

6.A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom.

There is no mention on the regulation that the passport has to be in date valid. In fact LIST A Documents establish a statutory excuse by an employer which evidences a persons on going right to work.

UKBA POLICY AND LAW DOCUMENT
The immigration law and policy document published on the UKBA states the following which can be seen online at
http://www.bia.homeoffice.gov.uk/sitecon...
It states on Subsection 3.2 of the Section 1 document entitled Chapter 1 Section Right of Abode the following:-
3.2. Procedure
When a passenger presents a valid document as noted at paragraph 3 (above) he should, subject to paragraph 2, be accepted immediately as being exempt from control unless the immigration officer has reason to believe or suspect that the passport has been forged or falsified or was improperly obtained. The fact that a passport is out of date does not in itself render it invalid as evidence of nationality and identity, but this fact may justify the immigration officer in continuing his examination until he is satisfied on these points. Note that it is for the Immigration Officer to prove fraud, not for the passenger to disprove it.

The UKBA simply choose to ignore their own guidance on policy and law. They infer through regulation 3145 Certificate of Entitlement to the Right of Abode Regulation 2006 that the right for a person to work itself is a) subject to immigration control, contrary to the law, and (b) that a travel document meant for travel and presentation at a UK port in itself is a control order over such a persons statutory right.
The result of this is that UKBA in fact have not only hindered my rights not to be subject to let or hindrance according to the law but also have failed in providing a remedy to the situation created by pointing to a regulation that is completely meaningless when it comes to a persons right to work.

COURT OF APPEALS DECISION
Two recent rulings have now show that the UKBA have exceeded their authority and have not announced that they have had a change of heart about ILR statuses but at the same time went on to make a news announcement that right of abode has to be in an valid (In date) passport. They will find the judgement made that they are also in serious error over the right of abode as well as they have inferred and created their own policies and control without any parliamentary approval to prevent a person from exercising their right of abode.
“Two cases, Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719 and English UK v Sectetary of State for the Home Department [2010] EWHC 1726 (Admin), were both handed down in July 2010.

The Court of Appeal observed that rules (such as the Immigration Rules) must be certain in their content and subject to parliamentary scrutiny. By contrast, policy must be applied without rigidity and adapted in the interests of fairness and good sense. The court went on to hold that it is unlawful for criteria affecting individuals' status and entitlements to be incorporated in a source outside the Immigration Rules, if that source is impermanent or undetermined and not subject to parliamentary scrutiny each time it is changed

The High Court adopted the reasoning in Pankina to find that whilst it may be permissible to for an Immigration Rule to refer to policy guidance available for scrutiny by parliament at the time the rule is made, section 3 (2) of the Immigration Act 1971 requires that any material or substantive change in the administration of immigration control must be placed before parliament for consideration.”

The UKBA have produced their own policy without reference to the immigration law and section 15 of the 2006 Act to impose control over those persons they do not have control over under section 2(1)(b) of the immigration act. They have ignored the principles of fairness and good sense and sought to create their own policies over and above the stated aims of the legislations and have in so doing imposed direct and indirect control over such persons and have hindered them from enjoying their rights accorded under the law and the primary legislation itself.

The fact is that they have gone to all kinds of lengths to ignore that they have made an error in law and gone out of their way to actually defend this stance forgetting their other public duty under the race and equalities act to prevent discrimination from not only happening but to make sure their actions do not contribute to such actions specially with my employment rights. Neither the Nationality unit nor the SEHL call centre have actually fixed or remedies the problems with both sides giving different accounts. Finally the actual civil penalties enforcement unit themselves that section 15 of the 2006 act does not apply as it confirmed by reading the accompanying memorandum accompanying the actual 2006 Asylum, Immigration, and Nationality Act. This is also confirmed by the civil penalties enforcement team themselves.

The law states very clearly what is required to evidence an ongoing to work and there I no requirement for this to be in an expired passport. In fact because a person never loses their right of abode it is easy to establish from presentation of such a certificate a persons ongoing statutory right of abode. To use the expiry of the passport to impose control over such persons would be unlawful and a rigid policy that will lead to discrimination against such persons statutory rights.

Proof of the Right of Abode
Under section 3(9) of the 1971 Act, as amended by the Immigration, Asylum and Nationality Act 2006, a person claiming the right of abode in the UK can prove it by presenting either:

a UK passport or an ID Card issued under the Identity Cards Act 2006
describing them as a British citizen; or

a UK passport or an ID Card issued under the Identity Cards Act 2006
describing them as a British subject with the right of abode in the UK; or

a certificate of entitlement to the right of abode.

This legal point is already backed up through a Crown court case

Crown Case Regina V Secretary of State Verdict
The following was stated by Mr Justice Seeley in Regina v Secretary of State for the Home
Department, ex parte Obi; Queen's Bench Division Crown Office List (Mr Justice Sedley) 18 April
1997.

Mr Justice Sedley said that the principal question to be decided was one of pure law: was it for
the Home Secretary to satisfy the court that the applicant was an illegal entrant, or for the
applicant to satisfy the court that he was not?

"Section 33(1) of the Immigration Act 1971 provided that an illegal entrant was a person who
unlawfully entered, sought to enter or had entered the United Kingdom in breach of immigration
laws. A person with the right of abode in the United Kingdom was not an illegal entrant. Section
3(8) of the 1971 Immigration Act provided that it was for a person asserting that he was a British
citizen to prove that he was, and by section 3(9) a person claiming to have the right of abode
should prove it "by means of a United Kingdom passport describing him as a British citizez or a certificate of entitlement.

There is no obligation to apply for either a British passport if travel can be conducted on another passport. Equally there is no obligation to apply for a certificate of entitlement to be placed on a new passport which would incur fees.

In addition the UKBA in treating me in this way and not seeking to remedy the situation have in fact discriminated against me on the basis of my nationality:-

Section 55 2006 Equality Act
Instructing or causing discrimination
(1) It is unlawful for a person to instruct another to unlawfully discriminate.
(2) It is unlawful for a person to cause or attempt to cause another to unlawfully
discriminate.
(3) It is unlawful for a person to induce or attempt to induce another to unlawfully
discriminate.
(4) For the purposes of subsection (3) inducement may be direct or indirect.
(5) In this section a reference to unlawful discrimination is a reference to
discrimination which is unlawful by virtue of any of sections 46 to 52.
Under section 4 of the 1976 Act, and section 6 of the 1997 Order, it is unlawful to discriminate in
employment practices on racial grounds. That means that an employer cannot discriminate
against a potential or existing employee on the following grounds:
• race;
• colour;
• nationality (including citizenship);
• ethnic origin;
• national origin.
Race discrimination may be either direct or indirect.

My complaint is that not only the UKBA acted unlawfully, but they have sought to cover this up by not accepting their mistakes and have gone to various lengths to not help remedy the situation and have caused me even greater harm.

The following is also true as to the standard of proof required, it was held by the Immigration Appeal Tribunal in Kessori Khatun (4272) that

"the standard of proof applicable to the right of abode, whether that right be dependent on citizenship or relationship, is that of the normal balance of probabilities". In other words, a right of abode is established, or a claim to citizenship made out, if the evidence that it exists
outweighs, however slightly, the evidence that it does not. “

In Kessori Khatun, the Tribunal was concerned with the right of abode, the same standard is thought to apply to proof of citizenship for other purposes (e.g. for passport/consular protection purposes, voting etc).

Civil Penalties

One of the most important issues here is that of the effect of civil penalties whether it applies to does not apply to those who have the right of abode. Section 15 is explained as clearly applying to those who are subject to immigration control and it does not apply to those who are not subject to immigration control such as British citizens and Commonwealth citizens who have the right of abode under section 2(1)(b) of the 1971 immigration act. Therefore to infer that having regulation 8 on the statutory instrument no 3145 Certificate of entitlement to the right of abode does not apply to civil penalties in this context at all as it is clear from the explanatory statements that accompany the 2006 Asylum, Immigration, and Nationality Act that this is not meant for those who have an ongoing right of abode and such persons are free of immigration control. A statement wholly compatible to the status itself under the 1971 and 1981 Immigration Acts that creates the status of Par trials. The 1971 act is the primary act for the status which subsequent acts have modified.

THE IMMIGRATION, ASYLUM AND NATIONALITY ACT 2006 Explanatory Notes:

EMPLOYMENT
The provisions:
• create a power for the Secretary of State to apply a civil penalty, determined by a
Code of Practice, to an employer of an adult subject to immigration control who
has not been granted leave to enter or remain, whose leave is invalid, has ceased
to have effect (whether by reason of curtailment, revocation, cancellation,
passage of time or otherwise) or whose conditions of entry or stay prevent them
from undertaking the employment. The provisions allow for objection and/or
appeal by the employer against the imposition of a penalty and the amount. An
employer who complies with requirements prescribed in an order of the
Secretary of State is excused from paying a penalty.
• create a new criminal offence of knowingly employing an adult who has not
been granted leave to enter or remain, whose leave is invalid, has ceased to have
effect (whether by reason of curtailment, revocation, cancellation, passage of
time or otherwise) or whose conditions of entry or stay prevent them from
undertaking the employment in question.
• allow the Secretary of State to issue a code of practice to employers on how to
avoid unlawful racial discrimination when applying these provisions.

SECTION 15 EXPLANTORY NOTES

37. Section 15 provides that a person is liable to a civil penalty if he employs an
adult subject to immigration control who has not been granted leave to enter or remain
in the United Kingdom or whose leave is invalid, has ceased to have effect (whether by
reason of curtailment, revocation, cancellation, passage of time or otherwise), or is
subject to a condition preventing him from accepting the employment. An employer is
excused from paying a penalty if he complies with the requirements of an order made
by the Secretary of State. The excuse does not apply where the employer knew that his
employment of the individual was unlawful. The section describes the matters to be
covered in the penalty notice and sets out the parameters of the requirements which may
be provided for in an order of the Secretary of State. Those are the requirements which,
if complied with, will excuse the employer from paying the penalty.

38. Subsection (1) sets out the circumstances in which an employer may be liable to
a penalty. Subsection (2) provides the Secretary of State's power to impose a penalty.

39. Subsection (3) sets out the circumstances in which an employer is excused from
paying a penalty. Subsection (4) provides that the employer loses the excuse if he knew
at any time during the employment that it was contrary to this section. Subsection (5)
provides that as a matter of law, the onus is on the employer to satisfy the Secretary of
State that he can establish an excuse under subsection (3), rather than on the Secretary
of State to establish this prior to the service of a penalty notice.

40. Subsection (6) sets out the specific matters to be covered in a penalty notice,
including the reason why the Secretary of State thinks the employer is liable, the
amount of the penalty, the date before it should be paid, and other practical points.

41. Subsection (7) sets out the parameters of the requirements which may be placed
on employers by way of an order of the Secretary of State. The requirements, if
complied with, will excuse the employer from paying a penalty. They relate to the
checking, copying and retention of specified documents

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J Mortoza left an annotation (22 August 2010)

Quote-marks In almost every other country of the world, the idea that a person could have a nationality but not a right of abode would be treated as nonsense.

The most fundamental right of a national is to enter, and reside in, the country of his nationality. All other rights and entitlements stem from the right of abode.

We in this country are unique in that British citizens derive their right of abode from an Act of Parliament—the Immigration Act 1971—rather than intrinsically from their nationality.

This is the right that British citizens have and also certain commonwealth citizens have who are descended from a British parent if born before 1983.

It is this right that gives us the right to work and enter and leave the country freely. Nationality by itself does not confer this right!

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J Mortoza left an annotation (22 August 2010)

Quote-marks Human Rights Act

The Human Rights Act 1998 gives further legal effect in the UK to the fundamental rights and freedoms contained in the European Convention on Human Rights. These rights not only impact matters of life and death, they also affect the rights you have in your everyday life: what you can say and do, your beliefs, your right to a fair trial and other similar basic entitlements.

Most rights have limits to ensure that they do not unfairly damage other people's rights. However, certain rights – such as the right not to be tortured – can never be limited by a court or anybody else.

You have the responsibility to respect other people's rights, and they must respect yours.

Your human rights are:

* the right to life
* freedom from torture and degrading treatment
* freedom from slavery and forced labour
* the right to liberty
* the right to a fair trial
* the right not to be punished for something that wasn't a crime when you did it
* the right to respect for private and family life
* freedom of thought, conscience and religion, and freedom to express your beliefs
* freedom of expression
* freedom of assembly and association
* the right to marry and to start a family
* the right not to be discriminated against in respect of these rights and freedoms
* the right to peaceful enjoyment of your property
* the right to an education
* the right to participate in free elections
* the right not to be subjected to the death penalty

If any of these rights and freedoms are breached, you have a right to an effective solution in law, even if the breach was by someone in authority, such as, for example, a police officer.

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J Mortoza left an annotation (22 August 2010)

Quote-marks The UKBA are in breech of the Human Rights Act 1998, The European Convention on Human Rights, The Charter of Fundamental Rights, The Equality Acts, and the Race Relations Act. It has also sought to bring about its own policies which are not in effect under the regulations by improvising its own policy without reference to Parliamentary process.

To cause a breech of a persons right to work is a direct violation of their rights and the UKBA have failed to provide any effective remedy for it which is an expectation under the various legislations.

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J Mortoza left an annotation (23 August 2010)

Quote-marks What rights and duties flow from a passport? In fact rights and duties flow, not from the
passport itself, but from the status of the holder !

(1) Everyone lawfully within the territory of a state shall, within that territory, have the right
to liberty of movement and freedom to choose his residence.
(2) Everyone shall be free to leave any country, including his own.
(3) No restrictions shall be placed on the exercise of these rights other than such as are in
accordance with law and necessary in a democratic society in the interests of national
security or public safety, for the maintenance of order public, for the prevention of crime,
for the protection of health or morals, or for the protection of the rights and freedoms of
others.
(4)The rights and freedoms set forth in paragraph 1 may also be subject, in particular
areas, to restrictions imposed in accordance with law and justified by the public interest in
a democratic society.” Article 2 goes on to state that no one shall be expelled or deprived
of the right to enter the territory of the State of which he is a national.

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J Mortoza left an annotation (23 August 2010)

Quote-marks The Rights of a person flows from a statutory legal status not from the passport of a person

The Human Rights Act 1998 Articles
Article 7 No punishment without law
Article 8 Right to respect for private and family life
Article 14 Prohibition of discrimination
Article 18 Limitation on use of restrictions on rights

European Charter of Fundamental Rights

Article 6 Right to liberty and security
Article 7 Respect for private and family life
Article 15 Freedom to choose an occupation and right to engage in work
Article 16 Freedom to conduct a business
Article 21 Non-discrimination
Article 45 Freedom of movement and of residence
Article 47 Right to an effective remedy and to a fair trial
Article 48 Presumption of innocence and right of defence
Article 54 Prohibition of abuse of rights

Link to this

J Mortoza left an annotation (23 August 2010)

Quote-marks The standard of proof required :-
It was held by the Immigration Appeal Tribunal in Kessori Khatun (4272) that "the standard
of proof applicable to the right of abode, whether that right be dependent on citizenship or
relationship, is that of the normal balance of probabilities". In other words, a right of abode
is established, or a claim to citizenship made out, if the evidence that it exists outweighs,
however slightly, the evidence that it does not. Any requirement that applicants/claimants
produce "conclusive" evidence of their status, or establish their position "beyond doubt",
sets the standard too high and risks censure by the courts if the case were to go to judicial
review. In official correspondence, such words and phrases are therefore best avoided.
Although, in Kessori Khatun, the Tribunal was concerned with the right of abode,
the same standard is thought to apply to proof of citizenship for other purposes
(e.g. for passport/consular protection purposes, voting etc).

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From: J Mortoza

23 August 2010

Dear Freedom Of Information Team ( IND ),

I have added annotations to my original request along with section
of the law, regulations, and legislative explanatory notes along
with case law details which I hope will be forwarded to the
relevant departments concerned

Yours sincerely,

J Mortoza

Link to this

J Mortoza left an annotation ( 6 September 2010)

Quote-marks Proof of the right of abode
Under section 3(9) of the 1971 Act, as amended by the Immigration, Asylum and Nationality Act 2006, a person claiming the right of abode in the UK can prove it by presenting either:

*a UK passport or an ID Card issued under the Identity Cards Act 2006 describing them as a British citizen; or

*a UK passport or an ID Card issued under the Identity Cards Act 2006describing them as a British subject with the right of abode in the UK; or a certificate of entitlement to the right of abode.

The legislation does not state that the certificate has to be in an valid in date passport

The requirement of the burden of proof is met by evidencing the above and is a matter of pure law.

Under law and policy of UKBA the following is stated on Chapter 1: Right of abode Section 3.2 found on the following hyper link on the National Archives

"When a passenger presents a valid document as noted at paragraph 3 (above) he should, subject to paragraph 2, be accepted immediately as being exempt from control unless the immigration officer has reason to believe or suspect that the passport has been forged or falsified or was improperly obtained. The fact that a passport is out of date does not in itself render it invalid as evidence of nationality and identity, but this
fact may justify the immigration officer in continuing his examination until he is satisfied on these points. Note that it is for the Immigration Officer to prove fraud, not
for the passenger to disprove it."

http://www.bia.homeoffice.gov.uk/sitecon...

This clearly shows and states the rules which the North East SEHL has clearly ignored and does make their actions subject to direct and indirect discrimination.

The UKBA are unlawfully imposing control on those persons they are not suppose to under the law subject to immigration control or requirement of permission by using the expiry of a travel document in order to expire the statutory rights of the person a right that is vested in the person and not his/her travel document. Furthermore it is discriminating on the basis of Nationality in differentiating persons who hold the right of abode, ie with British citizens and commonwealth citizens by not using the same standard. According to the immigration act 1971 as amended by the 2006 act the following is stated:-

General principles
(1)All those who are in this Act expressed to have the right of abode in the United Kingdom shall
be free to live in, and to come and go into and from, the United Kingdom without let or hindrance
except such as may be required under and in accordance with this Act to enable their right to be
established or as may be otherwise lawfully imposed on any person.
(1) A person is under this Act to have the right of abode in United Kingdom if--
(a) he is a British citizen; or
(b) he is a Commonwealth citizen who--
(i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and
(ii) has not ceased to be a Commonwealth citizen in the meanwhile.
2) In relation to Commonwealth citizens who have the right of abode in the UK by virtue of subsection (1)(b) above, this Act, except this section and section 5(2), shall apply as if they were British citizens; and in this Act (except as aforesaid) "British citizen" shall be
construed accordingly

It is clear the UKBA are ignoring the law itself and is making up its own policy based on sub section 8 of the SI 3145 without refferal to parliament and making the expiry of a travel document into expiry of a persons rights that they have due to their descent from a British parent automatically! Further the UKBA are misusing section 15 of the 2006 to imply a person who is not subject to immigration control if employed will incur his employers a civil penalty in complete indifference to the law as well as the explanatory memorandum

Section 15.1 of the 2006 Asylum and Immigration Act states:
(1) It is contrary to this section to employ an adult subject to immigration control if

(a) he has not been granted leave to enter or remain
in the United Kingdom, or

(b) his leave to enter or remain in the United Kingdom
(i) is invalid,
(ii) has ceased to have effect (whether by reason of
curtailment, revocation, cancellation,
passage of time or otherwise), or
(iii) is subject to a condition preventing him from
accepting the employment.

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J Mortoza left an annotation ( 7 September 2010)

Quote-marks SI 3145 Rule 8 Does not state a persons right to work will expire. The response that rule 8's "implication" is that it would is unlawful and does not have clear parliamentary approval and therefore is based on deriving policy without the rules for it.

Policy must be applied without rigidity and adapted in the interests of fairness and good sense.

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