Historic Injustice and Proportionality

Ghising (family life – adults – Gurkha policy) Nepal [2012] UKUT 160 (IAC)

In this case the Upper tribunal said that “the ambit of Article 8 is not circumscribed” and in reducing the importance normally attached to immigration control the historic injustice perpetrated against Gurkhas “must be taken into account when assessing proportionality” (at [120]). However, given the existing framework for granting Gurkha veterans and their family members rights of residence in the UK, the “impact” of historic injustice “is limited”.

Facts

A Nepalese national, the appellant (A), who had been studying in the UK since 2007, applied for leave to remain as the dependant relative of his father (F) who served in The Queen’s Gurkha Engineers. Upon completion of his service, F, who served Her Majesty in an “exemplary” manner for 23 years, could not settle in the UK in 1991/1992 because – unlike other Commonwealth citizens and foreigners serving in the British Army – Gurkhas faced restrictions in doing so. Following the revision of this discrepancy, A’s mother (M) – who presently needs A’s care because she is old/frail – and F were granted settlement rights and they came to the UK in 2009. Things would have been entirely different if F and M had been permitted to settle in the UK two decades earlier because they would have been able to bring their dependant children with them.

Case Preview: DD (Afghanistan) in Supreme Court

DD (Afghanistan) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) UKSC 2011/0003 is the sequel to the Al-Sirri case. The same panel of justices will hear the DD case in the UK Supreme Court for two days, on 16 and 17 May 2012. The hearing will be viewable online here  from 10:30 am.

The Supreme Court will be considering whether – in the absence of evidence of criminal conduct – DD’s membership of an insurgent group, flagrant human rights abuses or terrorism, participation in military activity against the Afghan army and UN mandated NATO forces (or ISAF) amounted to conduct contrary to the purposes and principles of the United Nations within the meaning of Article 1F(c) of the Refugee Convention (Article 12(2)(c) of the Qualification Directive).

Facts

DD, a 36-year old Afghan, came to the UK on 18 January 2007 and claimed asylum upon arrival. He had a history of involvement with Jamiat-e-Islami, the Taliban and Gulbuddin Hekmatyar’s Hizb-e-Islami organisation. DD’s activities in Afghanistan meant that he reported to Kashmir Khan, who was commanded by Hekmatyar. In Kunar province, DD was part of a squad 15 people who were trained by an Afghan and two Arabs: they fought both ISAF and Afghan forces. DD’s older brother YD, who later joined the Taliban, was a reputed Jamiat-e-Islami commander. DD served as YD’s deputy.

Case Preview: Al-Sirri in Supreme Court

The extremely interesting of case of Al-Sirri (FC) (Appellant) v Secretary of State for the Home Department (Respondent) UKSC 2009/0036 will be heard in the UK Supreme Court by Lady Hale and Lords Phillips, Kerr, Dyson and Wilson. The Court will be interpreting the true meaning of the phrase “acts contrary to the purposes and principles of the United Nations” as set out in Article 1F(c) of the 1951 Geneva Convention relating to the Status of Refugees: UNCHR is intervening in the matter. The hearing will be viewable live online here on Monday 14 May 2012 (11 am to 4 pm) and Tuesday 15 May 2012 (10:30 onwards)!   

Background

In March 2009 the Court of Appeal (Sedley, Arden and Longmore LJJ) unanimously allowed Yasser Al-Sirri’s (hereafter “Y”) appeal and remitted it to the Asylum and Immigration Tribunal (as it then was) for redetermination: see Sedley LJ (as he then was) at [61]–[73], read judgment here. Nevertheless, Y wants the Supreme Court to clarify and interpret the exclusion provisions in Article 1F(c)

Dutch charges deemed disproportionate

Commission v Netherlands (Failure of a Member State to fulfil obligations) [2012] EUECJ C-508/10

In this case the Court of Justice of the European Union (Second Chamber) ruled that in granting residence permits to third-country nationals, and to their family members, who were long-term residents, the Kingdom of the Netherlands was not entitled to charge excessive and disproportionate fees. 

The European Commission brought this action because it thought that by charging “high and unfair fees”, the Netherlands failed to live up to its obligations pursuant to Directive 2003/109 and under Article 258 of the Treaty on the Functioning of the European Union. The Hellenic Republic, or Greece, intervened in the proceedings.

Directive 2003/109 obliges Member States to grant long-term resident status to third-country nationals who have lawfully and continuously resided within their territory for five years: such third-country nationals must provide for their dependants without recourse to public funds; they must comply with national integration provisions and provide all the necessary documentary evidence to satisfy national authorities of their status upon which long-term residence permits should be granted.

Falun Gong, Country Guidance and HJ (Iran)

LW (China) v Secretary of State for the Home Department [2012] EWCA Civ 519 (24 April 2012) 

In this case the Court of Appeal (Black, Mummery and Moore Bick LJJ) found that a Chinese asylum seeker’s discreet involvement in Falun Gong did not put him at risk upon his return to China. The Appellant (A) arrived in the UK in 1999 and claimed asylum in 2008. Both the First Tier Tribunal and the Upper Tribunal (UT) dismissed A’s appeal. The Court of Appeal held that the UT had correctly considered the Country of Origin Information Report (COIR) which did not represent a change from the country guidance concerning the Falun Gong in LL (Falun Gong – Convention Reason – Risk) China CG [2005] UKIAT 00122.

Grounds of Appeal

Sullivan LJ granted permission because he found that important principles arose as to whether (1) the country guidance that practitioners of Falun Gong were not normally at risk from Chinese authorities was consistent with the more recent COIR which said that the Chinese state offered sizeable rewards to informants who told on Falun Gong adherents; and (2) A’s attendance at Falun Gong demonstrations as a spectator in China would be discreet and if A was deterred from spectating because of the authorities’ attitude then was this consistent with HJ (Iran) [2010] UKSC 31.

Case Preview: Alvi and Munir in Supreme Court

Writing last week on the Free Movement blog about a significant decision of the Scottish Court of Session, Joe Bryce noted that the details of the Alvi/Munir/Rahman cases were not available on the UK Supreme Court’s website. Likewise, some of the Court of Appeal’s recent judgments, for e.g. see [41] of New London College, [2] of Castro and [7] of Miah, have also anxiously been awaiting the hearing in the UKSC. Joe’s observation did not go unnoticed and the very next day, on 11 April, the details of these cases became available on the Court’s site. A hearing before Lords Hope, Walker, Clarke, Dyson and Wilson is scheduled on Tuesday 24 April 2012. The principles of this country’s “unwritten” constitution will be at stake in the upcoming hearing. Having won on the Pankina or “constitutional ground” in the Divisional Court in 2010, JCWI is intervening in the proceedings. 

Facts

Alvi, Munir and Rahman applied for leave to remain in the UK but their applications were refused.

President Blake blasts postal payments

Basnet (validity of application – respondent) Nepal [2012] UKUT 113 (IAC) (04 April 2012)

A very large number of immigration applications are made in the post. In this important case the Upper Tribunal (President Blake and Judge Macleman) found that in the absence of corrective measures the Secretary of State for the Home Department’s system of processing payments connected to postal applications runs the risk of descending into procedural unfairness. The UT found that if the existing system for processing postal applications is not amended, more decisions stating that the consideration of applications was unfair and not in accordance with the law would follow.

Facts

The appellant (A) and his dependant wife were Nepalis who entered the UK under Tier 4 (General) student route: they made an in-time application to renew their visas (or “leave”) in May 2011. Subsequently, the SSHD corresponded twice with A about the payment of fees.