Joined Cases C-199/12, C-200/12, C-201/12, Minister voor Immigratie en Asiel v X, Y and Z v Minister voor Immigratie en Asiel
The status of homosexuals is an extremely fascinating aspect of asylum and human rights law. Even in the freedom of western society, it is only fairly recently that homosexual, transgender and bisexual individuals have achieved parity – albeit superficially – with heterosexuals. Geography aside, gay people can be found in abundance all over the world and are routinely victimised because of their sexuality. Ultimately we are all human and of course sexual expression is inextricably linked to selfhood.
In these Dutch cases, the Court of Justice of the European Union (CJEU) held that sexual orientation is a fundamental part of identity and people should not have to abandon their sexuality. Similarly, criminal laws specifically targeting homosexuals clearly single them out from the rest of society.
The immigration bill has quite a lot to do with article 8 (right to respect for private and family life and one’s home and correspondence) of the European Convention on Human Rights. It is intended that the bill will speedily make its way through Parliament and become the Immigration Act 2014. Overall, the bill adds new provisions to existing primary legislation. As is well known, the scheme of the bill is such that it impacts upon removals, appeals, access to services and marriage and civil partnerships. That, of course, is a whole lot of article 8 to think about.
Although every part of the proposed legislation is important, if one were to choose a single clause in the bill and dwell on it, this might well be:
14. Article 8 of the ECHR: public interest considerations
Immigration Minister Mark Harper has prefaced the provision by accusing the courts of being “overgenerous” in article 8 cases. For him, Parliament and the public are “fed up” of criminals winning cases. Continue reading
Make no mistake about it. Immigration is the burning issue in the UK’s political arena. In May 2013, in setting out the legislative agenda, Her Majesty had explained that the government will bring forward a bill – ensuring that the UK attracts people who contribute and deters those who do not – that further reforms the immigration system.
Just the other week, the Home Secretary Mrs Theresa May likened the immigration system to a “never-ending game of snakes and ladders”. She simultaneously renewed her pledge to clamp down on the abuse of human rights in immigration appeals. By reducing the grounds of appeals from 17 to 4 the existing number of 70,000 annual appeals against deportation could potentially be halved, she claimed.
Frustrated by characters like Abu Qatada – who on his homeward sojourn asked whether “Crazy May” would be on board? – “Deport foreign criminals first, then hear their appeals”, she said. In her typical style, Theresa May attacked the Human Rights Act 1998 because she believed that Article 8 (the right to a private and family life) of the European Convention on Human Rights was a “free for all” and that the law sided with “the criminals rather than the public.” In its 2015 manifesto for the general election, May’s party wants to include a commitment to scrapping the Human Rights Act. Continue reading
Nnamdi Onuekwere v Secretary of State for the Home Department  EUECJ C-378/12 (03 October 2013)
This post looks at Advocate General Yves Bot’s recent opinion on Directive 2004/38/EC and the right of permanent residence. The opinion “carries no legal weight”. Nevertheless, as is the case with the vast majority of such opinions, it is likely that the Court of Justice of the European Union will adopt it.
Nnamdi Onuekwere (O), a Nigerian, claimed to enter the UK in 1999. His Irish wife and him had two children. O was granted a 5-year residence permit as the spouse of a Union citizen. 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. Approximately 3 years later, in 2003, he was arrested for unlawfully facilitating another person’s entry into the UK. Continue reading
Amin, R (on the application of) v Secretary of State for the Home Department  EWHC 2813 (Admin)
One of the worst things that can happen to any immigration subject is for their application to be declared “invalid”. The consequences of such a predicament are likely to be more debilitating for victims of domestic violence.
The Home Secretary says that she is committed to doing more for victims of domestic violence. But it is difficult to hold her immigration service, or even the tribunals, up to this promise. This case was about whether the defendant (D) Home Office’s refusal to treat the claimant (C) Amin’s application for indefinite leave to remain under rule 289 as valid was lawful. Continue reading
B & Anor, R (on the application of) v Secretary of State for the Home Department  EWHC 2281 (Admin)
Islam is in the news a lot. Muslims consider their faith to be a religion of tolerance but some of its faces are hardly that.
The West’s obsession with Muslims and how terrible we are does not help things either. But given that men enjoy a blanket exemption, I could never understand why some people think that “devout” Muslim women owe an obligation to cover their faces and figures?
In the instant case, the claimants argued that because of the French law (La Loi No 2010-1192) that bans wearing (or forcing someone else to wear) the burka in public, removing a ten-year old asylum seeking Muslim girl (M) and her father (F) from the UK to France to have her refugee status determined there would amount to degrading treatment contrary to Article 3 (anti-torture and degrading treatment) and Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights. Hickinbottom J, however, found no evidence that France intended to degrade M. The court also held that M would not be caused serious distress, and her potential treatment in France did not come close to approaching the high threshold required to engage Article 3 ECHR. Continue reading
Posted in Article 3, Article 8, Article 9, Asylum, Children, ECHR, Judicial Review, UKSC
Tagged Article 8, Asylum, ECHR, European Union, UK Supreme Court
Blackside Ltd, R (on the application of) v Secretary of State for the Home Department  EWHC 2087 (Admin) (23 July 2013)
The UK Border Agency (as it partially continues to call itself) is easily criticised for the way it performs its immigration functions. However, even in the revenue and customs spheres of its work the agency’s tactics in law enforcement have raised a few eyebrows. For example, in the instant case, Edwards-Stuart J held that the agency’s – more precisely the Border Force’s – tendency to give notice under Schedule paragraph 1 of the Customs and Excise Management Act 1979 to owners of seized goods while stating that its communication was not a “Notice of Seizure” was deplorable and had to stop immediately.
The court held that the practice was an attempt to defeat the statutory protection afforded to owners of seized goods by preventing time for making a claim from running from a date later than the date of seizure. In addition to the provisions of the 1979 Act, the court also considered the Excise Goods (Holding, Movement and Duty Point) Regulations 2010 which transpose Council Directive 2008/118/EC – especially Article 21 which addresses the procedure to be followed on a movement of excise goods under suspension of excise duty – into domestic law. Continue reading