Adjournments: Fairness is the Supreme Criterion

Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC) (4 September 2014)

As explained in the Best Practice Guide to Asylum and Human Rights Appeals, it is difficult to get adjournments in immigration cases. Most paper applications are refused. That is exactly what happened in this case which concerned a Tier 1 (General) migrant – N – whose application was refused on the basis of his inability to demonstrate that he had been in possession of at least £900 of available funds during a consecutive 90-day period. The First-tier Tribunal (FtT) dismissed the appeal in the absence of both parties. The judge noted that N claimed illness. His solicitors asked for an adjournment – on the ground that they had been unable to obtain instructions and gather evidence of his illness to enable them to prepare properly for the hearing – which was refused on the basis of insufficient information and failure to show good reason why an adjournment was necessary within the meaning of rule 21 (adjournment of appeals) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

The FtT dismissed N’s appeal because he failed to provide any evidence in support of his case despite standard directions. N’s solicitors said that the appeal should be considered on the papers if it was not adjourned. Continue reading

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Guidance on Deportation and Family Proceedings

Mohammed (Family Court proceedings-outcome) [2014] UKUT 419 (IAC) (5 September 2014)

Concerned with the interaction between family and deportation proceedings, this case involved Chalachew Mohammed (C), an Ethiopian national, who appealed the First-tier Tribunal (FtT) panel’s dismissal of his appeal against the Home Secretary’s decision to make an order to deport him as a foreign criminal pursuant to section 32(5) of the UK Borders Act 2007. C claimed asylum in 2005 which was refused. His appeal was dismissed but he remained unlawfully and made human rights representations in 2008. However, by mid-2011, he had committed 22 criminal offences which resulted in convictions for violence and supplying Class A drugs. Subsequent to pleading guilty to burglary charges, C received 30 months’ imprisonment and he was accordingly notified of his liability to deportation and ultimately in late 2012 of the decision ordering his deportation.

The FtT noted that the sentence imposed for the index offence was 2.5 times the threshold for expulsion and the panel was unsatisfied that C’s deportation would breach Article 8 ECHR or section 55 of the Borders, Citizenship and Immigration Act 2009.

C’s threefold grounds of appeal were that: Continue reading

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Only the Civil Standard Applies in Demonstrating Citizenship

BaburBegum v Secretary of State for the Home Department [2014] EWHC 2968 (Admin) (12 September 2014)

This is a noteworthy case, with roots in Pakistan, about the standard of proof to be applied by Her Majesty’s Passport Office (HMPO) with regard to issuing a British passport. The claimant, one Rangis Begum, daughter of Moghul Khan was aggrieved by the refusals of the British High Commission (BHC) in Islamabad in January 2011 and July 2012 – and a subsequent decision of the Overseas Passport Management Unit (OPMU) in May 2013 – to issue her a British passport, to which she claimed entitlement as a British citizen by descent. Born in 1988 in Pakistan, Rangis Begum contended that she was the daughter of Moghul Khan (1940–1989) who was a British citizen at the time of her birth and so if her claim was true then she too was a British citizen under section 2(1) of the British Nationality Act 1981. Although Rangis Begum was not entitled by descent through her mother Shah Jehan Begum, a Pakistani national, in making her case she relied on the fact that her sister Zakia Begum had been issued a British passport by virtue of being Moghul Khan’s daughter.

Rangis Begum argued she had demonstrated in her DNA and documentary evidence that she and Zakia Begum were full sisters who shared the same mother and father. The parties agreed that whilst passports are issued under the Royal Prerogative, in the event that Rangis Begum was really British then there was no basis for refusing her a passport in the exercise of that Prerogative. Rangis Begum accepted that section 3(8) of the Immigration Act 1971 put the onus on her to prove her entitlement to citizenship but an issue arose in relation to the standard of proof to be applied in relation to her passport application. Continue reading

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Upper Tribunal Clarifies Case C-400/12 MG

MG (prison-Article 28(3)(a) of Citizens Directive) Portugal [2014] UKUT 392 (IAC)

This famous case – referred to the Court of Justice of the European Union (CJEU) by the Upper Tribunal (UT) at [2012] UKUT 268 (IAC) – about the citizens’ Directive returned to the UT to be decided in light of the CJEU’s decisions in Case C-400/12, SSHD v MG ECLI:EU:C:2014:9 (see here) and Case C-387/12, Onuekwere v SSHD ECLI:EU:C:2014:13 (see here). The tribunal judges explained that that “the issue of deportation of foreign criminals is of compelling public importance.” But, after taking account of the further evidence that came to light in this case, the UT concluded that MG was entitled to succeed in her appeal even on the basis of the lowest or “baseline” level of protection. So, in deciding MG’s case, the UT did not need to dwell on the parties’ submissions on the actual meaning of the CJEU’s judgment. But given the ruling’s significance, the UT nevertheless felt compelled to say something about those parts of the parties’ submissions that dealt with the meaning of the CJEU’s eventual judgment.

MG and her husband JG (both Portuguese) entered the UK where they had three sons – M, J and L. MG gave up work to have the children. While inactive she was supported by her husband until their separation. Their children were placed in foster care as a result of a report by hospital staff that injuries to L were non-accidental and MG was sentenced to 21 months’ imprisonment for having been convicted on one count of cruelty and three counts of assault by beating L who was aged under 16 years. While in prison MG applied for permanent residence in the UK and the government decided to deport her – on grounds of public policy and public security pursuant to regulation 21 of the Immigration (European Economic Area) Regulations 2006. Continue reading

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Residential Tenancies Under The Immigration Act 2014

London is famous for its booming property market. Because of buoyant rents and rising property prices people with money find it easy to profit from buying to let residential property in London. Landlords value rent and anyone who is able to pay high rent will find it easy to get accommodation in the metropolis. Agents generally only ask to see a UK bank account and a valid ID, like a provisional driving licence, for money laundering purposes. Other than that property firms know people value their privacy and find nosey agents off-putting. Therefore, operating in a competitive market, landlords and agents do not investigate their customers’ immigration status. Nearly all the provisions of the Immigration Act 2014 (“the Act”, which aims to create a “hostile environment for illegal migrants”) have raised eyebrows. António Guterres, UN High Commissioner for Refugees denounced the legislation as creating a “climate of ethnic profiling”. The requirements regarding renting property (in Part 3 (Access to Services), Chapter 1 (Residential tenancies), sections 20 – 37) will inevitably stifle business in the property market and have also been condemned as a “valuable tool for racist landlords”.

It had been initially reported that the scheme for landlords to verify tenants’ immigration status will run in just one area before 2015 and the Home Office claimed that:

The measures are intended to make it more difficult for illegal migrants to rent property and thus encourage illegal migrants to regularise their stay or leave the UK.

Further to the above, the scheme is in the process of being rolled out and as of 1 December 2014, landlords in Birmingham, Walsall, Sandwell, Dudley and Wolverhampton should carry out right to rent checks for new tenancy agreements to determine whether tenants have the right to rent in the UK.

Continue reading

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Upper Tribunal Gives Judicial Review Warning

Okondu & Anor, R (on the application of) v Secretary of State for the Home Department (wasted costs; SRA referrals; Hamid) IJR [2014] UKUT 377 (IAC) (20 August 2014)

With more than a thousand claims being filed very month, the Upper Tribunal (Green J and UTJ Gill) has given an all out warning to law firms regarding immigration judicial reviews. In light of the UT’s recent jurisdictional acquisition of the bulk of immigration judicial review cases, Green J considered it good timing to “lay down some markers” in order to control – “act in a manner which is commensurate with their duty towards the Tribunal” – the bad behaviour of law firms. The judges are clearly very angry about the poor quality of work that is being submitted in judicial review cases. They are equally concerned about the low level of disclosure. However, despite the shoddy standard of papers that the judges have had sight of, they did not feel that a weak claim should be a reason for someone not to approach a court for a remedy. In the instant proceedings, two Nigerian nationals, otherwise unconnected to each other, Abdussalam and Okondu, were represented by their respective lawyers who did really poorly in making their clients’ cases and they have therefore been named and shamed in this decision so that others take care to avoid a similar fate.

Abdussalam relied on his health to remain in the UK. He had a weak case and was accused by the Home Office of “remaining here to access free medical care” which he could obtain in Nigeria where he had lived for thirty years. The pre-action assertions of his representatives that he would kill himself if removed did not match the expert’s views (who found the risk of suicide to be “low”). The Home Office found this grossly misleading Continue reading

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Experts And Temporary Leave To Remove From Jurisdiction

AB (A Child: Temporary Leave To Remove From Jurisdiction: Expert Evidence) [2014] EWFC 2758 is an important case where an arranged marriage broke down and during the course of private law proceedings the mother wanted to take her six year old child to India, a non-Hague Convention country, for a three-week holiday. The mother, who arrived in the UK by virtue of her marriage, did not wish to return to India for good and provided assurances about coming back to the UK after three-weeks. The court considered an expert report used in another, similar, case, from a dually qualified lawyer in Indian and English law. The expert concluded that the father would have to take lengthy court proceedings in India, and that orders made by the High Court in England would be one of many factors weighed in the balance and the Indian courts would inevitably give independent judgment on merits having regard to the welfare of the child.

The family is Sikh. The father feared that once in India by the mother’s family – her father being a sarpanch (an elected head of a village level statutory institution of local self-government, a panchayat or village government) – could use the son as a bargaining tool in support of an attempt to claim some of his family’s land in India. For him, in the event that the mother wished to go and see her family then he and his parents would very gladly care for their son whilst she makes her trip. Continue reading

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