EM (Eritrea), R (on the application of) v Secretary of State for the Home Department  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
ZZ (France) v Secretary of State for the Home Department (No. 2)  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  UKSIAC 63/2007,  EWCA Civ 440, and  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
As stated by the CJEU in para 31 of MG, Onuekwere v Secretary of State for the Home Department  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
Secretary of State for the Home Department v MG  EUECJ C-400/12 (16 January 2014)
Onuekwere v Secretary of State for the Home Department  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)  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.
Enquiry 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
Gulshan (Article 8 – new Rules – correct approach) Pakistan  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
Patel & Ors v Secretary of State for the Home Department  UKSC 72 (20 November 2013)
It seems that the controversial jurisprudential saga of impenetrable jungle law has finally been settled. In unanimously dismissing these three appeals, the UK Supreme Court explained that the judiciary “must share some of the blame” (para 1). Lord Carnwath JSC also thought that the statutory language defied conventional analysis, was obscure, pointed in opposite directions and was faulty (para 35). Lord Mance JSC observed that the structure of appeals is about to be “reshaped” by the Immigration Bill and some of the Court’s conclusions will probably become “irrelevant” in the future (para 63).
The appellants were Patel (an Indian), Alam (a Bangladeshi) and Anwar (a Pakistani).
Patel entered the UK as a working holiday-maker with his dependant wife; they had a son in the UK and tried to extend their visas by relying on article 8 ECHR and paragraph 395C of the immigration rules and the First-tier Tribunal dismissed their appeals. Continue reading
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.