Resilience Rewards Congolese Asylum Seeker

th-5SN, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 1111 (Admin) (24 February 2014)

This decision involves judicial review, asylum seeking, fresh claims, certification and the politically plagued postcolonial country of the Republic of Congo (Congo-Brazzaville). In testing times for judicial review, especially in the field of immigration law, this case demonstrates that resilient people can still win against the odds.

The instant court recalled that this judicial review claim was brought with Moore-Bick LJ’s permission after an oral hearing as regards renewal. HHJ Jeremy Richardson QC prefaced his extempore judgment with the history of the application: prior to permission being granted, Sir Stanley Burnton refused permission on the papers in the Court of Appeal; similarly Wilkie J refused permission on the papers in the Administrative Court and HHJ Langan QC did the same at an oral hearing. Continue reading

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Article 8 is Not a Box Ticking Exercise

Ahmed v Secretary of State for the Home Department [2014] EWHC 300 (Admin) (14 February 2014)

In this case Mr Justice Green held that it is important to avoid a “tick box” mentality in respect of article 8 of the European Convention of Human Rights (ECHR) when considering the exercise of the residual discretion – left open by the immigration rules and the partner and ECHR article 8 guidance of October 2013 – as to whether there were exceptional circumstances justifying a grant of leave to remain. Rather than simply ticking boxes, an overall view needs to be formulated in relation to whether there might be a good arguable case of disproportionality if leave to remain is not granted.

As explained by the court in the very first paragraph, the instant judicial review application concerned spousal rights and it concentrated on:

  • The nature and operation of the so-called two part test for the evaluation of article 8 type considerations within the context of immigration law;
  • Examining the scope of the concepts of “precarious” rights and “insurmountable obstacles”; and
  • Addressing the relevance of “inadvertent errors” on the part of applicants as an article 8 consideration.

Continue reading

Posted in Appendix FM, Article 8, Immigration Rules, Judicial Review, Pakistan, Proportionality, Spouses | Tagged , , , | Leave a comment

Asylum seeking is a world-wide phenomenon

The_UK_Supreme_Court-2EM (Eritrea), R (on the application of) v Secretary of State for the Home Department [2014] UKSC 12 (19 February 2014) 

This case is about so many things; the despotic state of Eritrea, which ranks last in the world for freedom of expression, and the totalitarian theocracy of Iran which the West eyes with extreme suspicion because of its nuclear programme and non-recognition of Israel. In the instant judgment, the Supreme Court held in favour of EH (an Iranian) and three Eritreans (EM, AE and MA) and said that the Court of Appeal had erred in formulating the view that only a systemic breach of the receiving country’s human rights obligations justifies not returning an asylum seeker to that country.

All four appellants had entered the UK via Italy which retained responsibility for dealing with their asylum applications under Council Regulation 343/2003 or Dublin II. EH complained that he was tortured for political reasons in Iran and argued that he would not only be homeless in Italy, but would also be without treatment for severe psychological problems. AE (whose trauma causes her to contemplate suicide at the thought of being returned to destitution in Italy) and MA (whose child Y was lost on the way to the UK and has never been found) were recognised as refugees in Italy and were also repeatedly raped. Continue reading

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Essence Must Always Be Disclosed

th-78ZZ (France) v Secretary of State for the Home Department (No. 2) [2014] EWCA Civ 7 (24 January 2014)

Some disputes are difficult to settle. This case involves a longstanding quarrel about the true interpretation of Directive 2004/38/EC (the directive) in respect of expulsion and disclosure. And things are all the more interesting because of the appellant’s links to terrorism.

In the past, this matter has been reported as [2008] UKSIAC 63/2007, [2011] EWCA Civ 440, and [2013] EUECJ C-300/11: see post on the answer to the question referred by the Court of Appeal (Maurice Kay, Carnwath and Moses LJJ) asking the Court of Justice of the European Union (CJEU) whether it was permissible for the Special Immigration Appeal Commission (SIAC) not to disclose to ZZ (a dual Algerian and French national) the gist of the grounds constituting the basis of the decision refusing him entry (on the basis of public security) to the UK in September 2006. Continue reading

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MG and Onuekwere: Part 2

foreign national prisonerAs stated by the CJEU in para 31 of MG, Onuekwere v Secretary of State for the Home Department [2014] EUECJ C-378/12 is an important judgment. Nnamdi Onuekwere (O), a Nigerian, claimed that he entered the UK as a visitor. Surely enough O got married here in December 1999. He had two children with his Irish wife. As a third-country national (TCN), O was granted a 5-year residence permit as the spouse of a Union citizen. However, he developed a bit of a criminal record.

In 2000, O was sentenced to 9 months’ imprisonment, suspended for 2 years, for having sexual intercourse with a mentally ill patient at the hospital where he worked. He completed the period of suspension without imprisonment. Some years later, in 2003, he was arrested for facilitating another person’s illegal entry into the UK. Continue reading

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MG and Onuekwere: Part 1

Secretary of State for the Home Department v MG [2014] EUECJ C-400/12 (16 January 2014)

Onuekwere v Secretary of State for the Home Department [2014] EUECJ C-378/12 (16 January 2014)

In these punchy judgments, the Court of Justice of the European Union (CJEU) looked at Directive 2004/38/EC (the directive) yet again. In Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC), while imparting guidance last June, an eager presidential Upper Tribunal (UT) had anticipated that these decisions may lead to further guidance that requires the principles we will set out in this decision to be revisited”: para 16.

Overall, guidance or otherwise, this pair of cases is bad news for foreign nationals in prison who face expulsion.

Legal Context

Inquiry was made into whether the method of calculating the 10-year period that (save on imperative grounds of public security) protects Union citizens against expulsion permits periods of imprisonment to be taken into account.  Similarly, the Court also assessed whether periods of imprisonment count towards time for permanent residence. Continue reading

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No More Freewheeling Article 8

Gulshan (Article 8 – new Rules – correct approach) Pakistan [2013] UKUT 640 (IAC) (17 December 2013)

This case is about spouses and relocation. It is also about Karachi which is my hometown and Pakistan’s largest and most dangerous city. The metropolis is where I spent the last few weeks reuniting a British citizen – a victim of forced marriage (as a child) to a much older scion of a rich and powerful economic dynasty – with her children. Of course, this British mother was overjoyed at the sympathy she received in Pakistan. Her cause to be permanently reunited with her children is ongoing and, despite the problems with the country’s post-colonial legal system, from her perspective the Pakistani courts do provide timely relief to those who need it.  

Equally interestingly, in this recent immigration decision about the correct approach to article 8 and the new rules, the respondent Mrs Gulshan (G) was a 60-year old Karachi’ite who got married to her husband in 1975 (he entered as a visitor in early 1992, overstayed and eventually became a British citizen in 2006). On the basis of that relationship, G made an application for leave to remain as the spouse of a person present and settled in the UK. The Upper Tribunal (Mr Justice Cranston and Judge Taylor, para 17) described the “vast” case law on article 8 as burdening judges (who have the difficult job of keeping abreast of the “frequent twists and turns” of the law). Continue reading

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