Article 8 and Terrorism: Construing Words Sensibly

YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 (10 October 2014)

Earlier in the month, the Court of Appeal (Aikens LJ, Sir Colin Rimer & Sir Stanley Burnton) unanimously allowed an appeal on article 8 ECHR (see para 63) in a case involving a Ugandan man who pleaded guilty to two counts under section 8 (attendance at a place used for terrorist training) of the Terrorism Act 2006 and was therefore sentenced to 3 years and 5 months’ imprisonment. The court dismissed the appeal on article 3 ECHR. But, to reconsider the article 8 issues, the court remitted the matter to a differently constituted Upper Tribunal (UT) so that it may reassess the necessary facts and apply them to the new statutory provisions set out in sections 117A–D in the Nationality, Immigration and Asylum Act 2002 (NIAA) as inserted by section 19 (article 8 of the ECHR: public interest considerations) of the Immigration Act 2014 (the Act) and Statement of Changes to the Immigration Rules of 10 July 2014 (HC 532).

Context

YM, the appellant, arrived in the UK in 1991 with his mother and siblings, when he was aged six and was granted Indefinite Leave to Remain ten years later but unlike his family, British nationality evaded him owing to his criminality which, even as in his early teens, included convictions for robbery and assault occasioning actual bodily harm. Continue reading

Posted in Article 3, Article 8, Deportation, Immigration Act 2014, Immigration Rules, Islam, Terrorism | Tagged , , , | Leave a comment

Immigration Act 2014: Cutover to Appeals Provisions

Apart from kicking off a raft of other twisted provisions, the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711, “the Order”) makes provision for partial commencement of the not so eagerly awaited appeals provisions of the Immigration Act 2014 (“the Act”). To that end, 20 October 2014 was the designated date for legal cutover. Arousing emotions amongst human rights lawyers, like the Act, the Order was instantaneously denounced as a dog’s breakfast. Under section 15 (right of appeal to first-tier tribunal), the Act reduces appeal rights arising from immigration decisions (refusals of entry, refusals to vary leave to enter and remain, decisions to remove and deport etc) enumerated in section 82 (right of appeal: general) of the Nationality, Immigration and Asylum Act 2002 (“NIAA”) and the two further rights of appeal (against decisions to reject an asylum claim or revoke refugee status in certain instances) contained in section 83 (asylum claim: appeal) and section 83A (appeal: variation of limited leave) of the NIAA.

As proudly announced by the Immigration Minister James Brokenshire, following legal cutover to the appeals provisions set out in the Act, criminals are precluded from mounting appeals before deportation unless they face a real risk of serious irreversible harm. Equally, as regards students, new immigration rules have been introduced and provide a system of administrative review enabling casework errors to be corrected expeditiously: these “reforms” will be advantageous Continue reading

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UK Removal System ECHR Compliant

R (FI) v Secretary of State for the Home Department [2014] EWCA Civ 1272 (09 October 2014)

Jimmy Mubenga’s tragic death – caused by asphyxia because he was being manhandled by detention custody officers on an aircraft prior to its departure to Angola – is an unfortunate example of the extreme ways in which foreigners are sometimes treated in the UK. Part VIII of the Immigration and Asylum Act 1999 governs the powers and functions of staff escorting persons in the course of removal and provides the legal basis for the use of force. In this case – in which Serco, G4S, Reliance Secure Task Management and the Secretary of State for Justice intervened – the Court of Appeal (Sir Terence Etherton, Richards & Christopher Clarke LJJ) held that the legislative and administrative system governing the use of control and restraint techniques in relation to immigrants being removed by air from the UK adhered to the Home Secretary’s positive duty to provide reasonable protection against risks to life, health and well-being within the meaning of article 2 and article 3 of the European Convention on Human Rights (ECHR).

Moreover, according to the Court of Appeal, where overseas escort services are supplied under contract by private security firms, the application of control and restraint procedures is in line with the approved techniques set out in the Use of Force Training Manual (the manual). Continue reading

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Adjournments: Fairness is the Supreme Criterion

Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC) (4 September 2014)

As explained in the Best Practice Guide to Asylum and Human Rights Appeals, it is difficult to get adjournments in immigration cases. Most paper applications are refused. That is exactly what happened in this case which concerned a Tier 1 (General) migrant – N – whose application was refused on the basis of his inability to demonstrate that he had been in possession of at least £900 of available funds during a consecutive 90-day period. The First-tier Tribunal (FtT) dismissed the appeal in the absence of both parties. The judge noted that N claimed illness. His solicitors asked for an adjournment – on the ground that they had been unable to obtain instructions and gather evidence of his illness to enable them to prepare properly for the hearing – which was refused on the basis of insufficient information and failure to show good reason why an adjournment was necessary within the meaning of rule 21 (adjournment of appeals) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

The FtT dismissed N’s appeal because he failed to provide any evidence in support of his case despite standard directions. N’s solicitors said that the appeal should be considered on the papers if it was not adjourned. Continue reading

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Guidance on Deportation and Family Proceedings

Mohammed (Family Court proceedings-outcome) [2014] UKUT 419 (IAC) (5 September 2014)

Concerned with the interaction between family and deportation proceedings, this case involved Chalachew Mohammed (C), an Ethiopian national, who appealed the First-tier Tribunal (FtT) panel’s dismissal of his appeal against the Home Secretary’s decision to make an order to deport him as a foreign criminal pursuant to section 32(5) of the UK Borders Act 2007. C claimed asylum in 2005 which was refused. His appeal was dismissed but he remained unlawfully and made human rights representations in 2008. However, by mid-2011, he had committed 22 criminal offences which resulted in convictions for violence and supplying Class A drugs. Subsequent to pleading guilty to burglary charges, C received 30 months’ imprisonment and he was accordingly notified of his liability to deportation and ultimately in late 2012 of the decision ordering his deportation.

The FtT noted that the sentence imposed for the index offence was 2.5 times the threshold for expulsion and the panel was unsatisfied that C’s deportation would breach Article 8 ECHR or section 55 of the Borders, Citizenship and Immigration Act 2009.

C’s threefold grounds of appeal were that: Continue reading

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Only the Civil Standard Applies in Demonstrating Citizenship

BaburBegum v Secretary of State for the Home Department [2014] EWHC 2968 (Admin) (12 September 2014)

This is a noteworthy case, with roots in Pakistan, about the standard of proof to be applied by Her Majesty’s Passport Office (HMPO) with regard to issuing a British passport. The claimant, one Rangis Begum, daughter of Moghul Khan was aggrieved by the refusals of the British High Commission (BHC) in Islamabad in January 2011 and July 2012 – and a subsequent decision of the Overseas Passport Management Unit (OPMU) in May 2013 – to issue her a British passport, to which she claimed entitlement as a British citizen by descent. Born in 1988 in Pakistan, Rangis Begum contended that she was the daughter of Moghul Khan (1940–1989) who was a British citizen at the time of her birth and so if her claim was true then she too was a British citizen under section 2(1) of the British Nationality Act 1981. Although Rangis Begum was not entitled by descent through her mother Shah Jehan Begum, a Pakistani national, in making her case she relied on the fact that her sister Zakia Begum had been issued a British passport by virtue of being Moghul Khan’s daughter.

Rangis Begum argued she had demonstrated in her DNA and documentary evidence that she and Zakia Begum were full sisters who shared the same mother and father. The parties agreed that whilst passports are issued under the Royal Prerogative, in the event that Rangis Begum was really British then there was no basis for refusing her a passport in the exercise of that Prerogative. Rangis Begum accepted that section 3(8) of the Immigration Act 1971 put the onus on her to prove her entitlement to citizenship but an issue arose in relation to the standard of proof to be applied in relation to her passport application. Continue reading

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Upper Tribunal Clarifies Case C-400/12 MG

MG (prison-Article 28(3)(a) of Citizens Directive) Portugal [2014] UKUT 392 (IAC)

This famous case – referred to the Court of Justice of the European Union (CJEU) by the Upper Tribunal (UT) at [2012] UKUT 268 (IAC) – about the citizens’ Directive returned to the UT to be decided in light of the CJEU’s decisions in Case C-400/12, SSHD v MG ECLI:EU:C:2014:9 (see here) and Case C-387/12, Onuekwere v SSHD ECLI:EU:C:2014:13 (see here). The tribunal judges explained that that “the issue of deportation of foreign criminals is of compelling public importance.” But, after taking account of the further evidence that came to light in this case, the UT concluded that MG was entitled to succeed in her appeal even on the basis of the lowest or “baseline” level of protection. So, in deciding MG’s case, the UT did not need to dwell on the parties’ submissions on the actual meaning of the CJEU’s judgment. But given the ruling’s significance, the UT nevertheless felt compelled to say something about those parts of the parties’ submissions that dealt with the meaning of the CJEU’s eventual judgment.

MG and her husband JG (both Portuguese) entered the UK where they had three sons – M, J and L. MG gave up work to have the children. While inactive she was supported by her husband until their separation. Their children were placed in foster care as a result of a report by hospital staff that injuries to L were non-accidental and MG was sentenced to 21 months’ imprisonment for having been convicted on one count of cruelty and three counts of assault by beating L who was aged under 16 years. While in prison MG applied for permanent residence in the UK and the government decided to deport her – on grounds of public policy and public security pursuant to regulation 21 of the Immigration (European Economic Area) Regulations 2006. Continue reading

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