Fresh Claims and Freedom of Religion

ST v Secretary of State for Home Department [2012] EWHC 988 (Admin) (20 December 2012)

Husayn ibn Alī ibn Abī Ṭālib, or Imam Husayn, was the grandson of the Prophet Muhammed (Peace Be Upon Him). Like the present predicament of much of the Muslim world, great tragedy befell Islam in its nascency. In the year 680 AD, Syria’s ruthless Umayyads – who usurped power to establish Islam’s first dynastic seat in Damascus – murdered Imam Husayn and most of Prophet Muhammed’s family. Outnumbered, Imam Husayn’s small group of followers was initially denied water for many days and then systematically slaughtered: even children as young as six months were not spared. Upon Imam Husayn’s martyrdom – who was beheaded, his head placed upon a spear – his sister Zaynab cried:

O Muhammad! O Muhammad! The angels of Heaven send 
blessings upon you, but this is your Husayn, so humiliated and disgraced, covered with blood and cut into pieces; and, O,
 Muhammad, your daughters are made captives, and your
 butchered family is left for the East Wind to cover with dust?

Strike Three For New Rules: Part 2

Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) (08 February 2013)

SSHD’s Case

It was maintained that paragraph A362, part 13 (deportation), of the rules defeated O’s Article 8 claim and, even though the decision was made more than 2 years ago, that the UT was bound by the new rules. Equally, paragraph 398(c) applied as O was a persistent offender with numerous drugs convictions. Maslov had been “absorbed” by paragraph 398 and the rules reflected the SSHD’s position on where the “proportionality balance lies in any given individual case” [66].

Moreover, paragraph 399(a)’s application meant that CT’s primary care of JT was sufficient and that under paragraph 399(b) O failed to demonstrate that he was “in a subsisting relationship with JD”; the chronology presented was warped; O admitted having lived with CT to enhance his immigration standing and that there were no insurmountable obstacles to JD joining him in Nigeria [67] – [68]. Although O lived in the UK for 20 years, paragraph 399A nonetheless operated to merit his deportation “irrespective of how limited” his ties to Nigeria were “and whether they could be seen to be effective ties” [69]. Moreover, except in exceptional cases, the rules remained “determinative for Article 8 purposes” because they were the SSHD’s perception of where “the balance lies” and so her decision was in accordance with the law – including authoritative case law [70].

Strike Three For New Rules: Part 1

Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) (08 February 2013) 

Nigeria – Africa’s most populous country – is spearheading the campaign against deportation and Ogundimu is the third case in a row where the judiciary has sent a strong signal to Theresa May, the Secretary of State for the Home Department (SSHD), about the “new rules”. Even though, to an extent, the Upper Tribunal (UT) has sugar-coated its critique of the new rules by respecting the government’s desire to codify the right to a private and family life within the Immigration Rules, like Izuazu and MF (Nigeria) the instant case expands the “learning” on Article 8. 

Conversely, the SSHD, whose preference is “to scrap the human rights act”, has not been able to cloak her anger. Vexed, she claims that judges – who have sabotaged politicians’ efforts to deport foreign criminals –  “ignore Parliament’s wishes.” The paradox, of course, is that the SSHD agrees that respect for human rights is “an essential part of any decent legal system”. In this case, the problem for the SSHD was that Ogundimu’s appeal was allowed on the new rules. 

Tribunal Unimpressed With New Rules Again: Part 2

Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) (30 January 2013)

The UT explained that the SSHD “overstates the significance of the rule change” and the effects of this change on Article 8 decision making where judges must decide whether an immigration decision is “in accordance with the law” [47]. The attempted approximation of Statement of changes HC 194 in immigration rules “to a statutory assessment of the balance between competing interests” (like the one the House of Lords considered in Kay [2006] 2 AC 465) relied on by the SSHD in Huang was rejected by the UT for eight reasons: see [49].

(1) Rejection

The reasons for rejection included (i) Lord Bingham’s wisdom that the rules were not produced by “active debate in Parliament” where foreign immigrants needing visas enjoyed representation (ii) primary legislation was produced through a “clause by clause discussion of the measures” and allowed amendments and revision (iii) the negative resolution procedure was a weak form of Parliamentary scrutiny: Stellato [2007] UKHL 5 (iv) the House of Commons is not Parliament  and under the law its resolutions did not suffice as primary legislation: Stockdale v Hansard (1839) 9 A & E 1

Tribunal Unimpressed With New Rules Again: Part 1

Izuazu (Article 8 – new rules) Nigeria [2013] UKUT 45 (IAC) (30 January 2013)

Lately a plethora of immigration decisions have descended upon us. All this sensational case law makes awesome reading. But it is impossible to read it all. One aspect of the emergent case law is the jurisprudential saga surrounding Article 8’s nexus with the “new rules” and last week the Upper Tribunal (“UT”) handed down its second decision on this problematic area of the law. In the instant case, on the Secretary of State for the Home Department’s appeal, the UT decided to reverse an Article 8 ECHR decision made by the First-tier Tribunal (“FTT”). Yet the presidential UT (Blake J, Lord Bannatyne and Judge Storey) took the opportunity to reconfirm that the new rules are not the final word on Article 8.

Despite the particulars of the present case, it is disappointing that many FTT judges – who must adhere to the learning on Article 8 – think that the new rules permit them to omit conducting the customary proportionality assessment and not refer to what the late Lord Bingham said at [17] in Razgar [2004] UKHL 27. Sadly, the words “proportionate” or “proportionality” are being erased from decisions. But hopefully, along with the earlier case of MF (Article 8-new rules) Nigeria [2012] UKUT 00393 (IAC), this case shall change that.

The EU Dimension to Proportionality

Essa, R (On the Application Of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor [2012] EWCA Civ 1718 (21 December 2012)

Deportation is a hugely controversial issue. Unsurprisingly, opinion on it remains utterly polarised. Journalists and lawyers alike have tried to facilitate a better understanding of deportation but it continues to divide British society. For the most part, people’s views remain wedded to their politics. Overwhelmingly, Article 8 (the right to a private and family life), a qualified right, takes centre stage and  remains fundamental in determining whether someone will be deported/expelled. In general, especially in cases involving criminality, uncertainty prevails but one thing is for certain. Cases are all the more interesting where the deportee is a citizen of the European Union because over and above the traditional Article 8 proportionality assessment, the European Union dimension to proportionality is also at play.

New Syria Country Guidance

KB (Failed asylum seekers and forced returnees) Syria CG UKUT 00426 (IAC) (21 December 2012)

Once the beating heart of Arab nationalism, Syria is a country in ruins. After achieving independence in 1946, dozens of constitutions and cabinets came and went in quick succession. In 1949 alone, Syria experienced no less than three coups d’état. Unsurprisingly, even Egypt’s Gamal Abdel Nasser himself – dubbed The Last Arab by the acclaimed Palestinian journalist Saïd Aburish – could do little to control Syria’s internal schisms and thus, Nasser, the father of pan-Arabism, eventually abandoned the United Arab Republic (1958 – 1961) experiment with the Syrians. Yet more instability followed and in 1963 the Arab Socialist Ba’ath Party seized the reins of power in Syria only to be ousted by the Neo Ba’athist movement which, after more infighting and another coup d’état, culminated in the three-decade long ruthless military dictatorship of Hafez al-Assad. After Hafez’s death in 2000, his son Bashar – who trained as a doctor in the UK – succeeded him and has since ruled Syria with an iron fist.