The speed with which the immigration rules are changed is overwhelming. Inevitably, many things are overlooked. This is an interesting case where the Upper Tribunal (UT) decided that although legitimate, the immigration rules failed to address differences between juvenile and adult offenders. Moreover, the UT explained that it would only remake a decision where the First-tier Tribunal (FTT) had materially erred in law. 

Facts

Aged 7 in 2001, Chris Green (G) entered the UK on a visit visa. Relying on his grandmother, and after making his journey through the appellate structure, G ultimately acquired settlement rights in 2007. But a naughty Jamaican teenager, G landed up in trouble with the law. G’s initial offences related to possessing a bladed instrument/offensive weapon, theft, robbery, attempted robbery and not complying with the terms of a detention and training order (DTO). Ultimately, however, in 2012, G pleaded guilty to 7 offences including acting as a runner in the supply of crack cocaine and heroin. Given that G was aged 16 years at the time of offending (and 17½ when sentenced), the Crown Court sentenced him a DTO for 24 months; subsequently reduced by the Court of Appeal to 18 months. (The DTO can be for a term of 4, 6, 8, 10, 12, 18 or 24 months, half of which is served in detention, the remainder in the community under the supervision of a probation officer, social worker or a member of a Youth Offending Team.)

The Deportation Decision

In light of G’s recidivism, the Secretary of State for the Home Department (SSHD) thought that his offending was persistent, that he was a gang member and thus presented a danger to society and would inevitably re-offend. Arguing that – save in exceptional circumstances – the new rules adequately reflected Article 8’s scope she decided to make a deportation order against G on conducive grounds. Over and above G’s persistent offending, notwithstanding the fact that he spent a greater part of his life in the UK than in Jamaica (10½ out of 17½ years prior to his custodial sentence) reliance was placed on him having ties with Jamaica where his father resided (with whom G’s relationship could be renewed).

First-tier Tribunal

Averring that deportation disproportionately interfered with his private and family life, G – who, wishing to distance himself from criminality, had rehabilitated himself by taking up training courses to enhance his prospects of employment – appealed to the FTT which found in his favour. Following Masih [2012] UKUT 46 (IAC), and applying Maslov [2008] ECHR 546, the FTT considered the sentencing judge’s remarks, G’s age and good behaviour in prison and concluded that he would have no one to turn to in Jamaica and unless he re-offended/re-entered a gang, deportation would be disproportionate.

SSHD’s Appeal

The threefold grounds of appeal alleged that the FTT failed to (1) appreciate Article 8’s new nexus with the immigration rules (2) have regard to the presumption to deport (3) apply the proper test by considering which exceptional circumstances operated to prevent deportation. G’s past gang activity and convictions pointed to the FTT’s failure to absorb the evidence in the case: the FTT overlooked G’s gang connections and let him off easily. The SSHD also reckoned that the FTT wrongly treated G as a settled migrant. G’s counsel did not downplay the seriousness of the situation but rebutted the SSHD’s arguments by identifying his client’s minor role – that of a “foot solider” – in the criminal activity concerned and highlighted the fact that G was a young man who had made amends and had a good chance of rehabilitating himself in the UK.

Upper Tribunal

(1) Immigration Rules: Article 8

Noting that the FTT did not refer to the ECHR or the immigration rules, the UT (at [17] – [18]) nevertheless opined that the FTT was “alive” to both as G’s appeal had been allowed because deportation was evaluated as a disproportionate measure.

The SSHD asserted that in Nagre [2013] EWHC 720 (Admin) Sales J held that the immigration rules and the exceptional circumstances guidance comprehensively addressed Article 8 rights. Observing that the instant case and Nagre were distinguishable, the UT (at [20]) considered that Sales J upheld Izuazu [2013] UKUT 45 (IAC) and endorsed the two-stage approach to Article 8 in MF [2012] UKUT 393 (IAC): Sales J, however, introduced the caveat that save where exceptional circumstances existed the second stage – evaluating Article 8 proportionality – was not always necessary “where the rules and the learning on Article 8 were in harmony”. Thus, in light of Izuazu, MF and Ogundimu [2013] UKUT 60 (IAC) in dealing with post-new rules decisions the tribunal should first consider the immigration rules, make the necessary findings and then move on to decide whether – in light of the established jurisprudence – exceptional circumstances unforeseen by the rules exist or the decision is unlawful and disproportionate to the legitimate aim of controlling immigration.

Noting that although the FTT was conscious of the task at hand it did not determine whether G had “no ties” to Jamaica (and if he did there was a failure in respect of how these weighed in the Article 8 balance), the UT opined (at [23]) that assuming that was a failure it was not grave enough to “effect the overall decision in the case.” The UT was content that the error was immaterial: it did not affect the overall result because the FTT found that G had no ties with Jamaica, the rules did not reflect the principles of Article 8 case law and factors amounting to exceptional circumstances.

G did not have any prospect of being supported in Jamaica or in the U.S. (where his mother lived) and the UT gave weight to the 2007 tribunal decision – emphasising serious and compelling family or other considerations for allowing his appeal – granting G settlement in the UK as his maternal grandmother’s dependant.

In Ogundimu (at [123]), “ties” was construed to involve a “continued connection to life” in the proposed country of deportation. In G’s case, time spent in the UK since acquiring settlement reduced his ties to Jamaica. So the SSHD’s belief that re-establishing contact with G’s estranged father was not the same thing as having ties with him: in any event neither the 2007 or the 2012 tribunals considered resumption of such ties as realistic (at [27]).

Significantly, the UT (at [28]) explained that the immigration rules (part 13, deportation and Article 8, paragraph 398) did not cater to juvenile criminals: as contemplated by the rules, “imprisonment” was excluded in G’s case by section 89 (restriction on imposing imprisonment on persons under 21) of the Powers of Criminal Courts (Sentencing) Act 2000. However, section 38 (interpretation) – subsections (1)(c) and (2)(b) – of the UK Borders Act 2007 treats a term of detention of a young offender as a period of imprisonment. Yet section 33(3) – exception 2 –  of the 2007 Act exempted from automatic deportation persons under the age of 18 at the date of conviction which is why the SSHD took the decision pursuant to paragraph 398(c) which speaks of “persistent offender who shows a particular disregard for the law” but is silent about the offender’s age when the offence was committed.

In comparison, there is clear steer in the Maslov judgment (at [72]) that the age at which the offence was committed will impact the criteria set out by the Grand Chamber, i.e. the (a) nature and seriousness of the offence committed (b) length of stay in the country of expulsion (c) time elapsed since the offence was committed and the concerned person’s conduct during that period and (d) solidity of social, cultural and family ties with the host country and with the country of destination.

In JO (Uganda) [2010] EWCA Civ 10, Richards LJ (at [21]) concurred with Strasbourg and explained that the contracting state would require “very serious reasons” to justify expelling a lawfully settled migrant such as G who had offended as a juvenile and spent most of his life in the host country.

The UT affirmed this in Masih, and despite the contents of the rules, the FTT’s neglect of this approach in G’s case would have amounted to an error of law. Equally, the UT’s jurisprudence – Izuazu and Ogundimu – mean that primary legislation must be followed where the rules do not reflect the law. Since the rules not only failed to consider G’s age when he offended but also did not alert the decision-maker “to the solidity of the ties as opposed to their mere existence” (at [31]), the FTT was right to dwell on G’s age and his weak ties with his father. Likewise, because the rules remained silent on age, the FTT’s conclusion on Article 8 ECHR was appropriate as Nagre required Article 8’s principles to be exceptionally examined in G’s case.

(2) Gang Membership

G’s activity in the “QC gang” was not ignored by the FTT and following the UT’s guidance in Masih the FTT did in fact consider the trial judge’s remarks that the QC gang was not a professional criminal gang: instead, the QC gang was “sad and pathetic” consisting of “the miserably inadequate”. Yet the judge was concerned that young persons like G “must be regarded as being vulnerable and potentially victims themselves”. So, for the trial judge, at best G was “a young man in need of discipline” and the UT (at [33]) was confident that the Court of Appeal (which reduced G’s sentence) did not take a grimmer view of G’s “criminality and prospects.” Noting that the FTT also clarified that were G to return to the QC gang and re-offend he would be deported, the UT added (at [36]) that, despite the absence of sentencing remarks, where relied upon in making a deportation decision, following Bah [2012] UKUT 196 (IAC) the FTT would need to take on board conduct not resulting in a criminal charge or conviction.

Although the sentencing judge did not “aggravate the sentence” inflicted upon G by reference to intelligence material on the QC gang, for the UT (at [37]) “[t]his is not a restraint that would be applicable to a panel in a deportation appeal” and a “continued association with gangs who commit violent conduct would amount to the weighty reasons justifying the expulsion of even a young offender who has spent much of his childhood in the United Kingdom.” But in the instant case, the FTT let it be known that while G was “vulnerable to the inducements of gang life” future relapses to his “former way of life” would entail consequences and so given that there was no error of law the UT was not entitled to re-make the decision because the assigning of weight by a fact finding tribunal “will rarely give rise to an error of law” (at [38]).

(3) Immigration Status: Settled Migrant?

Given that G entered the UK lawfully as a child and was not an immigration offender, the UT emphatically rejected (at [39] – [40]) the idea that G’s immigration status weighed against him in the proportionality balance.

(4) Disposal

The UT ([41] – [43]) dismissed the SSHD’s appeal because, as a 19 year old, G was aware of the consequences of resuming his association with criminality or committing a “significant offence”. Moreover, the only arguable error of law – the FTT’s failure to apply paragraph 399A(b) to G’s case – lacked materiality. In light of the terms of section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the UT was not obliged to re-make the FTT’s decision.

(5) Headnote

• In Nagre v SSHD [2013] EWHC 720 (Admin) the Administrative Court approved the guidance of the Upper Tribunal in Izuazu [2013] UKUT 45 (IAC) in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC).  Sales J added the proviso that it would not always be necessary to move on to the second stage and consider Article 8 proportionality apart from the provisions of the Immigration Rules. Where the rules and the learning on Article 8 were in harmony the answer given by the rules might render further inquiry unnecessary, unless there were exceptional circumstances.  In that case the difference between the rules and the Strasbourg principles was marginal.

• It follows from that case, and the decisions of the UT in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) that judges hearing appeals against decisions made after 9 July 2012 should consider how the Immigration Rules would apply, and make any relevant findings in that context before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the Rules or that the decision is an unlawful one and disproportionate to the legitimate aim.  Pending any further guidance from the Court of Appeal, judges of both chambers should apply the principles set out in Izuazu.

• Paragraph 398 of the Immigration Rules makes no reference to persons who commit crimes as juveniles.  By contrast the decision of the Grand Chamber in Maslov v Austria [2008] ECHR 546 is clear that “when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult”.

• As the Upper Tribunal has explained in Izuazu and Ogundimu, where the Immigration Rules do not reflect the established principles under human rights law it is the law as laid down in primary legislation that must be followed. 

• Adding to what the Tribunal said in Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 46 (IAC), where the course of conduct relied on in the deportation decision includes conduct that has not resulted in a criminal charge or conviction, the Tribunal will need to take that conduct into account despite the absence of sentencing remarks (see Bah (EO (Turkey) – liability to deport) [2012] UKUT 196 (IAC)).

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?

Against this history, it is not surprising that the adherents of Shi’a Islam, and indeed other types of Muslims, equate Imam Husayn’s heroic stand at Karbala (Iraq) – to defend his grandfather’s legacy – against a large Umayyad force as a triumph of good against evil, of light against darkness and so forth. Ultimately, Imam Husayn’s devotees (the Shi’a, literally meaning “party” [of Alī ibn Abī Ṭālib, the Prophet’s cousin and Imam Husayn’s father] in Arabic) became a dominant force within Islam.

But in present day Pakistan, the Shi’a faith is under very serious attack. Like the Christian and Ahmadi minorities, Shi’as are also being killed by religious extremists. Given that Jinnah, Pakistan’s founder, was a Shi’a and bearing in mind that minorities formed the vanguard of the Pakistan Movement, the country’s descent into extremism is extremely disappointing. I would like to condemn the murderous attacks on Pakistan’s Hazara Shi’a community in Balochistan and those in Karachi’s Abbas Town (where, despite a heavy death toll, the terrorists were unable to divide Shi’as and Sunnis living side by side). Moreover, the arson attacks on Lahore’s Christian population of Joseph Colony are utterly deplorable and the Government of Punjab needs to do a lot more to bring the perpetrators to justice.

(1) Fresh Claims

Under Part 12 (Procedure and rights of appeal) of the Immigration Rules, paragraph 353 requires a decision-maker deciding a further asylum or human rights claim to answer the following five questions (i) Is the further claim a human rights or asylum claim?
(ii) Has the claim previously been rejected or withdrawn and any appeal relating to that claim is no longer pending?
 (iii) Is the present claim accepted or rejected? 
(iv) If rejected, is the content of the submission significantly different from the material that had previously been considered? (v) When taken together with the previously considered material, does the present claim create a realistic prospect of success notwithstanding its rejection?

(2) Issue

The issue was whether the Claimant ST’s further representations in May 2009 and January 2011 amounted to fresh asylum claims.

(3) Factual Background

In Pakistan, at age 16, with her parents’ oversight, ST was forced into marriage with the scion of a political family who, in order to avoid permanent scars, skillfully inflicted beatings upon her (even during pregnancy). ST’s husband also threatened to kill her on three occasions because he resented her inability to produce a male heir. To save her own life and that of her daughter, ST initially fled internally within Pakistan. But unconvinced of her safety she decided to seek refuge in Canada – where she believed her asylum application would be dealt with expeditiously (following which her daughter could join her) – and to achieve this she sold her valuables and raised £7,000 to pay an arranger. (For full facts see HHJ Anthony Thornton QC’s judgment at [5] – [21].)

Thus, aiming to claim asylum in Canada, in 2005, ST travelled to Amsterdam’s Schiphol airport via Heathrow but was returned to the UK because the Dutch authorities detected her fake passport. At Heathrow she immediately claimed asylum on the basis of prolonged serious marital abuse and a genuine fear of life-threatening persecution. The Secretary of State for the Home Department (SSHD) refused ST’s asylum claim because she felt that ST’s account lacked credibility and was untrue. Therefore, ST’s removal would not breach Article 2 (right to life), Article 3 (prohibition of torture and of inhuman or degrading treatment) and Article 8 (right to respect for private and family life) of the ECHR; the right of appeal was not exercised (ST blamed her old solicitors for this). After some time in detention, ST was released on bail and chose to abscond. Thereafter, following exposure to Shi’a teachings through her friend’s father Najaf Abbas Shah in whose house she resided, ST, a Sunni, embraced Shi’ism at the Imam Bargah (or mosque) of the Hussainia Islamic Mission in Bradford.

In 2009, ST’s new solicitors made representations for discretionary leave on the basis that she feared persecution if returned to Pakistan by reason of being a woman and she would suffer inhuman and degrading treatment, and possibly death. By a decision dated 10 January 2011, the representations were rejected by the SSHD who felt that the representations made did not amount to a fresh claim under paragraph 353 of the Immigration Rules. ST was detained, she refused to acquiesce in her removal and fresh removal directions were set.

Undeterred, ST instructed new solicitors (in total ST instructed no less than five firms of solicitors) who, in late January 2011, served yet more representations on the SSHD claiming that because she had converted to a different religious faith, ST feared persecution from religious fundamentalists if returned to Pakistan. The representations, which were advanced as a fresh claim based on paragraph 353, were rejected by the SSHD three days later because in her view there was a lack of corroborative evidence in support of the claim and that it did not amount to a fresh claim. Even though the SSHD considered ST’s claim as an imputed Article 9 (freedom of thought, conscience and religion) ECHR claim, the lack of corroborative evidence coupled with the receipt of any threats or incidents of violence arising out of switching religions meant that the claim lacked credibility because Article 9 was not raised in the 2009 representations. Moreover, the 2011 COI report was relied upon to argue that switching sects within Islam did not put ST at risk of blasphemy or apostasy and she could safely relocate within Pakistan and live with other Shi’as/like-minded people. In sum, there was no evidence that she was at risk from, or had a well-founded fear of, persecution from fundamentalist groups and returning ST to Pakistan would not, on the basis of her evidence, breach the UK’s obligations under Article 9 ECHR.

Since neither set of representations were considered to be a fresh claim, no right of appeal was available to the First-tier Tribunal (FTT) and so in early February 2011, ST pursued judicial review on the basis that the guidance in KA and Others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC) – communicated to Strasbourg in August 2012 – was not correctly considered. Permission was subsequently granted as the Court agreed that KA and Others was insufficiently considered and anxious scrutiny was not applied. Importantly, ST’s success in her judicial review application against the SSHD’s rejection of the fresh claims to be set aside in respect of representations made would require the SSHD to reconsider whether or not either set of representations were fresh claims, and if so the SSHD’s rejection of either set of representations made would allow ST to exercise a right of appeal to the FTT.

After spending 10 weeks in detention, ST was granted temporary admission on 19 March 2011. On 25 March 2011, while proselytising Shi’ism, ST knocked on the door of a household which was in touch with her parents. The man who answered told her that her husband had taken her daughter away from her parents. Her invitation to accept Shi’ism was declined, she was abused and called a kāfir (apostate) and informed that her conversion would be reported to her parents. ST’s further representations in January 2011, claimed that because she had become a Shi’a, if returned to Pakistan she feared persecution from religious extremists like the Sipah-e-Sahaba and Lashkar-e-Jangvi groups and other fundamentalist organisations.

(3) HHJ Anthony Thornton QC’s Judgment

Granting ST’s judicial review application, the Court held that the SSHD erred in concluding that ST’s representations based on a fear of persecution if returned to Pakistan did not amount to fresh asylum claims. The SSHD had failed to exercise anxious scrutiny in relation to adverse credibility findings made in the original refusal of asylum whereas the SSHD had been significantly influenced by those findings when incorrectly concluding that the further representations did not substantially differ from the original asylum claim.

Interpretation

The Court noted that in interpreting paragraph 353 its context remained vital. It was not statute but a statement of policy (produced with Parliament’s authority) which served to guide decision-makers as to how the applicable provisions of immigration legislation will be applied. Paragraph 353’s intention is to protect refugees’ human rights by allowing an opportunity to make a second claim “where the basis of that claim has not previously been considered” (at [47]). Paragraph 353 was “clearly not intended to apply” to claims which have had “full access” to the appellate system but the provision applied to claims that have not previously been advanced or have been rejected but have a realistic prospect of success and do not merely delay the inevitable. Since the “general principles are easy to state but are often very difficult to apply” it was necessary to apply the policy “in a sensible, reasonable and sensitive way.” Decision-makers needed to swap places and consider whether an independent immigration judge might take a more favourable view of the same claim after a hearing.

Anxious Scrutiny

Reminding itself that ST’s account and the evidence to support it required to be supported with anxious scrutiny – “to which lip service is often paid but whose content is often not fully appreciated” (at [67]) – the Court summed up (at [71]) the test as:

Requiring the decision-maker in the reasons for the decision and the court in its judgment has taken into account every factor which might tell in favour of the applicant

Ensuring that the fresh claim rejection decision was taken following the exercise of anxious scrutiny there had been no appeal from the initial decision and therefore there had never at any stage a decision in relation to the applicant’s asylum and human rights claims by an independent tribunal

In appropriate circumstances on the fact-specific facts of a particular case taking account of any factor that is known to it or could with reasonable diligence be known to the decision-maker/court even if that factor had not been expressly relied on by the applicant in the original or new claims as part of the exercise of showing anxious scrutiny

HHJ Thornton QC recalled Carnwath LJ’s guidance in YH [2010] EWCA Civ 116, at [24] where the Court highlighted the “very special human context of such cases” and thus decisions needed “to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account.” However, as explained by Lord Hope DPSC in BA (Nigeria) [2009] UKSC 7, a balance needed to be struck and thus in YH, Carnwath LJ was conscious that genuine asylum seeking was not aided by bogus stories.

Sur Place

ST’s second set of further representations relied upon events – her conversion to Shi’ism and missionary preaching – that occurred since her arrival in the UK. The Court observed that although the decision-maker was entitled to assess credibility, “this must be undertaken with particular care since her claim is based on her sur place activities” because it was clear from the authorities that someone whose original asylum claim was found to be implausible “well be truthful in putting forward a sur place claim, particularly where it has arisen some time after the original claim was dismissed” (at [66]).

In other words, ST presented herself in this claim as a proselyte who would be regarded as an apostate by extremists. If those facts were accepted or established, ST was entitled to claim asylum if it was also accepted that she has established a well-founded fear of persecution on her return which cannot reasonably be overcome by her relocating to a different part of Pakistan.

Disposal

Granting ST’s judicial review application, the Court held that the general approach to S’s May 2009 claim was flawed because:

The 2009 Representations

• It did not properly consider whether the claim was fresh because it did not consider whether there were grounds to challenge the adverse credibility findings in the October 2005 decision (at [82]).

• It did not address the further representations in the round when considering whether they amounted to a substantially different claim. Instead, the old parts of the claim were first considered and were found not to be significantly different from the original claim. The decision as to whether the new claim was substantially different should have been taken by considering both the old and new parts together and considering whether the composite claim (see Ravichandran [1996] Imm AR 97) was substantially different from its predecessor (at [83]).

• Erroneously, the decision placed considerable weight on ST’s failure to appeal against the October 2005 decision. However, it was at least arguable that ST had decided not to appeal for good reason, namely because her daughter became very ill (at [85]). (In January 2006, ST informed the SSHD that she was desperate to go home because her daughter was ill and she provided a copy of her daughter’s recent medical certificates to assist the SSHD in attempting to persuade the Pakistan High Commission to issue her with travel documents urgently.)

• The May 2009 decision lacked any anxious scrutiny of the credibility findings within the October 2005 decision, which meant that there was no consideration of whether they should be relied on, and no consideration of whether a judge hearing an appeal would consider them unreliable (at [89]). The decision-makers did not apply the “modest” Rajalingam [1999] FCA 719 (an Australian case, see at [60] – [67]; per Sackville J) test to the evidence or to ST’s vulnerable state (at [86]). Rajalingam was endorsed by the Court of Appeal (Brooke, Sedley and Walker LJJ) in Karanakaran [2000] 3 All ER 449 – the decision-maker must not foreclose reasonable speculation about the chances of the future hypothetical event occurring (see the instant judgment at [64] for the Rajalingam principles adopted by Brooke LJ in Karanakaran at [98]: Sedley LJ had, of course, explained that “[t]he question whether an applicant for asylum is within the protection of 1951 Convention is not a head-to-head litigation issue.”)

• The decision-maker did not consider whether there was any possibility that an immigration judge would take a different view of ST’s further representations, or whether the judge, exercising anxious scrutiny and with the added advantages of an oral hearing, might reach a different and more favourable view of the prospects of success of ST’s new claim (at [94]).

• Accordingly, the rejection of ST’s May 2009 representations could not stand (at [95]).

The 2011 Representations

• The decision to reject ST’s January 2011 claim accepted that the representations made in that claim differed from ST’s earlier two claims, but it gave no further consideration to the previous rejection decisions (at [98]). The decision that ST’s claim was uncorroborated was unwarranted, particularly given the need for anxious scrutiny of potentially corroborating evidence which had not been considered at an oral hearing. The decision-maker did not refer to the adverse credibility findings of the original claim nor to the need to consider the possibility that ST had been telling the truth about her sur place claim even if she had been untruthful in her previous claim. Despite the “lateness” and “opportunism” of ST’s sur place claim, both decisions were Wednesbury unreasonable (at [108]).

• The decision-maker’s findings were a fragile basis for rejecting ST’s new claim in its entirety, and her perception that the claim was untrue was significantly influenced by the adverse credibility findings made against ST in the October 2005 decision (at [102]).

• Further, the decision was not taken after anxious scrutiny of the new representations and the previous decisions. Had that been done, the decision would have taken into account at least some material considerations that it had not (at [104]). Accordingly, the rejection of the January 2011 representations also could not stand (at [105]).

Post-decision Material

Two witness statements made by ST and a letter by her mentor Najaf Shah were not before the decision-maker of the second claim rejection. But the Court explained that since the documents had been placed before it without objection to their admissibility at a hearing in which the judge was conducting an anxious scrutiny of a case which had had no judicial scrutiny previously, the said material “could” and “should” be taken into account (at [107]). HHJ Thornton QC considered that even “without sight of these documents” he would have arrived at the same decision that he did.

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].

“Ties”

When invited to explain itself in light of ZH (Tanzania) and Maslov, the SSHD asserted that “no ties (including social, cultural or family)” in paragraph 399A was construable as a person having “so little connection with that country as to mean that the consequences for them establishing a private life there would be unjustifiably harsh”. Paragraph 399(a)(i)(b) allowed persons to succeed where it was demonstrated that another family member is unable to adequately care for the child and the possibility that separation may not be in the child’s best interest is reflected in the rules. Notwithstanding the public interest in deporting foreign criminals, paragraph 398 permitted potential deportees to demonstrate why the impact of such action “will be unjustifiably harsh”.

O’s case

It was submitted that O’s offending was not escalating and had dissipated; he was not a persistent offender and his deportation was not in the public interest. O’s counsel explained that his chronology was muddled because he was “hopeless with dates”. He consented to being tested for cocaine use and enjoyed a genuine relationship with JD – pregnant with O’s child – whose daughter was a British citizen who had contact with her father. So insurmountable obstacles existed to her moving overseas. O did not have the “ties” envisaged by paragraph 399A(a), he met paragraphs 399(b) and 399A and his appeal could not be defeated.

New Rules: Relevance

The SSHD argued that O’s appeal should be allowed only if he satisfied the new rules as they reflected the public interest. But observing the earlier approach in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC) – that the new rules were inconclusive of Article 8 issues – the UT found that “a human rights claim that should have succeeded in 2010 applying the law and policy then applicable should not be defeated by new provisions that are in many respects considerably more restrictive” [83]. However, the delay was O’s responsibility and his claim was examined in the terms set by reference to the new rules and the law binding upon the UT: the fact that the matter could proceed to the Court of Appeal was also a consideration.

Factual Conclusions

O’s criminal record was atrocious. Selling cannabis to fund a crack cocaine habit was harmful to society [88]. He was even arrested for possession of cannabis (for his personal use) and cautioned after his removal was stayed. His continued use of cannabis needed to be taken into account in determining whether his deportation would be conducive to the public good [86]. On the whole, subject to O’s human rights claim, the SSHD’s conclusion that his deportation was conducive to the public good was appropriate [89]. But since age 6, O had lived in the UK for 19 years and “weighty reasons were required to justify his deportation”. Moreover, he admitted that his cannabis use detracted from remaining offence free [90]. The UT understood his circumstances – which were not made clear to the SSHD and the FTT [91].

New Rules: Application

The UT allowed O’s appeal on the new rules on two bases [126].

Consideration was given as to O’s entitlement to the benefit of paragraphs 399(a), 399(b) or 399A failing which “exceptional circumstances” entitling him to remain required appraisal (paragraph 398). Although O enjoyed a genuine and subsisting relationship with his son JT, O stumbled on a literal application of paragraph 399(a) because CT was “able to care” for JT. Finding the provision “in clear conflict” with SSHD’s duty under the Article 3 UN Convention on the Rights of the Child 1989 to make the child’s welfare and best interest a primary consideration as construed under ZH (Tanzania) [2011] UKSC 4 and section 55 of the Borders, Citizenship and Immigration Act 2009, a “concerned” UT [95] – [96] gave “little weight to this aspect of the rules” by saying:

We doubt whether it is in any child’s best interests to lose the contact and support with a caring and devoted parent simply because someone else can be found to care for them.

To those who regularly read the rules, the decision is a forgone conclusion and in September 2012 Iain Palmer aptly noted that paragraph 399(a) was clearly at odds with section 55 of the Borders, Citizenship and Immigration Act 2009 and/or the Supreme Court’s ruling in ZH (Tanzania).

Turning to paragraph 399(b) the UT accepted that O’s relationship with JD – an “honest and truthful witness” who gave consistent evidence – was genuine and subsisting [97] – [98]. O varied his bail conditions to live with JD (rather than F) and the SSHD made nothing of it [99]. Moreover, the UT [100] – [101] was intrigued by Ms Best (whose evidenced was furnished by the SSHD), the social worker assigned to JD’s daughter TS confirmed that O “has a positive relationship with [TS] and is a supportive partner to [JD].” And furthermore, JD’s pregnancy was confirmed by the NHS and remained unchallenged [112]. So the belief that he lived with JD to fortify his chances to remain was incorrect: the UT [104] accepted that O “has a genuine affection for JD and that he left CT to move back in with JD as a consequence of this affection.” Even O’s admission that his temporary split with JD (accepted as a British citizen by the SSHD) in favour of a family unit with CT, and his British son JT, would enhance his prospects of remaining in the UK did not undermine his case.

Insofar as paragraph 399(b)(ii) and the existence of insurmountable obstacles to family life with JD continuing outside the UK, the SSHD did not consider JD’s daughter TS’s position in the factual matrix. As corroborated by Ms Best, TS – a British/EU citizen – relied on JD for primary care. Under Sanade (British children – Zambrano – Dereci) [2012] UKUT 468, the SSHD accepted that it was unreasonable to expect British citizens enjoying family life to move abroad permanently and Izuazu [2013] UKUT 45 reconfirmed this approach which is consistent with DH (Jamaica) [2012] EWCA Civ 1736 and O, S -v- Maahanmuuttovirasto C -356/11 and 357/11: see posts here and here. Therefore, the UT decided that “TS cannot be required to leave the European Union to join the appellant in Africa”; neither could her mother JD, who had never been to Nigeria, be expected to leave her child especially since there was no one to care for her because “the obstacles to the mother relocating when she has to look after her young child in the United Kingdom are insurmountable, whatever the term means” [113]. O therefore satisfied the requirements of paragraph 399(b)(ii) and he met all of the requirements of paragraph 399(b) of the rules [114].

For certainty’s sake, in light of the fact that O visited Nigeria for 10 days in 2006, the UT considered paragraph 399A. The visit was made for a cousin’s wedding and O stayed in a hotel. F – who was an honest and accurate witness – said that his connections to Nigeria were minimal and, having lived in the UK for 52 years, he was out of touch with people there. For the SSHD, however, the phrase “no ties (social, cultural or family)” meant that even those with minimal links to the country of removal were unable to rely on it.

But Odelola [2009] 1 WLR 1230 and Mahad [2009] UKSC 16 weighed against such a strict construction [120] – [121]. Equally, similar language – “no ties (social, cultural or family)” – was evidenced in rule 276ADE and persons who have “lived in the United Kingdom for less than 20 years” could remain here on the basis of private life [122]. “Ties” require “a continued connection” and nationality of a country was insufficient because it would make paragraph 399A – and no doubt paragraph 276ADE by extension – “entirely meaningless” [123]. The test, moreover, was “exacting” and mandated a “well rounded assessment” beyond ‘social, cultural and family’” circumstances [124]. O was a stranger to Nigeria and given his long residence in the UK the expectation that private life could be established produced “unjustifiably harsh” consequences; F’s limited ties did not help O. Each case was fact specific. Non-exhaustively: time, age, exposure to cultural norms, linguistic ability, family and friends and the quality of relationships mattered [125].

Article 8 Analysis

Plainly, Article 8 was engaged [128]. O had a genuine family life with his son JT and with JD and her daughter TS. But Article 8’s protection is qualified. Proportionate interference to the legitimate aim pursued – preventing crime and disorder is necessary in a democratic society – is allowed under Article 8(2). The public interest weighed in the balancing exercise.

The Court of Appeal – N (Kenya) [2004] EWCA Civ 1094, OH Serbia [2008] EWCA Civ 694 and RU (Bangladesh) [2011] EWCA Civ 651 – had clarified that deporting foreign criminals to deter them from committing serious crimes was appropriate. Equally, deportation orders convey “society’s revulsion at serious crimes” [131]. Yet, under Maslov “weighty reasons” were needed to justify deporting O whose family and private life in the UK was established while he lengthily resided in the UK with indefinite leave to remain. It was unreasonable for O’s family to join him in Nigeria and, indeed, the SSHD accepted this in respect of his son JT [133]. The deportation order would impose a lengthy ban on direct contact between O and his family [134].

Section 55 of the Borders, Citizenship and Immigration Act 2009 meant that the UT had to consider JT and O’s step daughter TS’s welfare as a primary consideration. The social worker – Ms Brown – had stated O’s “loss … would compromise his son’s wellbeing” [135]. Likewise, TS had spent half her life with O: they had a positive relationship and he played “an active role in her care” [136].

Although the UT was concerned about O’s crack cocaine use, JD had been “an honest, straightforward and reliable witness” and her testimony was accepted because – to the best of her knowledge – he was not smoking crack. Equally, O’s “frank admission” to smoking cannabis in the recent past was not synonymous with a renewed crack habit “or that he would commit unrelated offences to support a drug habit” [138]. Overall, interference with O’s private and family life was unjustified and his deportation was not proportionate to the legitimate aim of preventing crime and disorder as necessary in a democratic society [139]. Using crack or dealing drugs or committing similar criminal offences again, however, would yield a different conclusion “notwithstanding his genuine family life with his partner and child.”

Therefore, drawing these threads together, O’s deportation would be unlawful under section 6 of the Human Rights Act 1998 and accordingly not in accordance with the law within the meaning of the Nationality, Asylum and Immigration Act 2002 [140].

Headnote

1. The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of time. Where, in such a case, a judge is minded to grant permission, the preferable course is to provide an opportunity to the respondent to make representations. This might be achieved by listing the permission application for oral hearing.

2. The introduction of the new Immigration Rules (HC 194) does not affect the circumstance that when considering Article 8 of the Human Rights Convention “for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country very serious reasons are required to justify expulsion.” The principles derived from Maslov v Austria [2008] ECHR 546 are still [to] be applied.

3. Paragraph 399(a) of the Immigration Rules conflicts with the Secretary of State’s duties under Article 3 of the UN Convention on the Rights of the Child 1989 and section 55 of the Borders, Citizenship and Immigration Act 2009. Little weight should be attached to this Rule when consideration is being given to the assessment of proportionality under Article 8 of the Human Rights Convention.

4. The natural and ordinary meaning of the word ‘ties’ in paragraph 399A of the Immigration Rules imports a concept involving something more than merely remote or abstract links to the country of proposed deportation or removal. It involves there being a connection to life in that country. Consideration of whether a person has ‘no ties’ to such a country must involve a rounded assessment of all of the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances. 

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. 

“A great admirer of most of the judges in Britain”, the SSHD attacks some judges because they “got it into their heads that the ECHR Article Eight ‘right to family life’ could not be curbed”. By not nodding to the laws “made by the elected representatives of the people in Parliament”, judges are accused of “subverting democracy”. Equally, blame lies with them as they wrongly construe her rules as being produced by virtue of “a weak form of Parliamentary scrutiny”.

Yet despite the similarities, there are interesting differences between the reported Article 8/new rules cases. For example, MF entered the UK illegally. He did not have a child with his wife but came to be her daughter’s “father”: a factor that ultimately weighed in his favour. Likewise, despite their marriage, Uchenna Eucharai Izuazu (who lost in the UT) and Julius Akinola had children from past marriages but they did not have any children from their own marriage. And although MF and Izuazu both fell foul of the criminal law, unlike Ogundimu, neither had a drug habit nor did they enjoy settlement rights in the UK.

Background

Ogundimu (O), the appellant, a twenty-nine year old who entered the UK lawfully at age 6+ acquired settlement rights in 1999. His father (F) had lived in the UK for 50 years. O had “a troubled youth” with more than half a dozen appearances before the juvenile courts. As an adult, his criminal career spiralled out of control and he appeared – for offences relating to drug possession and driving – before the criminal courts more than a dozen times. Ultimately, O was convicted for possession of crack cocaine and intent to supply cannabis; he pleaded guilty but said that he sold cannabis to support his cocaine habit. Unimpressed, owing to his persistent offending, the SSHD decided to deport O and that decision was appealed on the basis of O’s long residence and his relationship with his British child JT (9+ years).

O did not attend the hearing, nor did any witnesses, and (long before the “new rules”) in mid-2010 his appeal was dismissed by a First-tier Tribunal judge and a lay member. O lodged his own grounds of appeal but the FTT refused permission; in the interim, a deportation order was singed in respect of O and in September 2011 he was detained after which he acquired legal representation. Article 8 was relied on to revoke his deportation order. Instead, the human rights claim was certified so as to preclude another in-country appeal to the FTT. Removal directions were set but deferred when judicial review papers were lodged on 23 February 2012, the removal date itself!

Out of Time Appeal

Out of time permission to appeal the FTT’s decision was sought a couple of weeks later and – observing that arguably the “best interests of the child have not been considered properly” – using his wide powers an UT judge granted permission.

The SSHD was unhappy but it was agreed that (i) a judge’s grant of permission to appeal was irrevocable (ii) given O’s circumstances, the legislative architecture – section 104(5) of the Nationality, Immigration and Asylum Act 2002 read with section 82(2)(j) – was such that the judge could grant permission to appeal irrespective of the signed deportation order and (iii) the SSHD’s only remedy against enlargement of time and/or grant of permission was judicial review which she had not pursued.

The UT [12] – [22] still considered it apposite to provide analysis/guidance on the Tribunal Procedure (Upper Tribunal) Rules 2008. O had 7 days following the FTT’s refusal of permission to appeal. Although his application was hopelessly out of time but he had a good reason. Judges had “wide powers” but need to act in accordance to the “overriding objective”. Cases need to be dealt with “fairly and justly”. The public interest is important “in there being finality to litigation”: something “of significant interest of both parties to litigation in immigration appeals” where stringent time limits operated [14]. But because immigration control is costly and logistically hard, strict time limits indicative of exhaustion of appellate rights enable clarity in facilitating enforcement action.

Moreover, extensions of time may turn on the (i) length and reasons for any delay, (ii) the merits of the appeal (iii) the degree of prejudice to the respondent if the application is granted. However, under Boktor & Wanis [2011] UKUT 442 the merits cannot be decisive. In the instant case, O’s grounds of appeal said that he had been wrongly advised to make fresh representations rather than seek permission to appeal the FTT’s clearly erroneous decision.

Following Brooke LJ, Moore-Bick and Wilson LJJ’s approach in YD (Turkey) [2006] EWCA Civ 52 where the Court of Appeal held that “significant injustice” coupled with a “strong case” exceptionally justified granting permission to appeal, the UT saw “no reason” why it should behave any differently [19]. But prolonged delay merited increasingly “powerful” reasons: each case turned on its own facts and “significant delay” includes “any period more than 28 days out of time” [20]. Judges granting permission need to consider the public interest in maintaining effective immigration control and if permission is given in cases involving delay exceeding 28 days, “perhaps” the SSHD should be given a chance to object in an oral hearing on seven days’ clear notice [21].

New Rules

Following the grant of permission to appeal, the SSHD supplied further reasons – based on the new rules – why O should be deported and why such action did not breach Article 8 ECHR. Unsurprisingly, the SSHD’s reasons remained embedded in O’s repeat offending – 30 convictions of which three remained unspent. Pursuant to paragraph 398(c) of the Immigration Rules (part 13, deportation), she concluded that O’s deportation was conducive to the public good as a consequence of his offending. The SSHD considered paragraphs 399(a), 399(b) and 399A and she respectively found that (1) O’s relationship with his British son JT was not genuine/subsisting and although it was unreasonable to expect JT to exit the UK, his mother CT was able to care for him (2) O’s relationship with his British partner JD was not genuine/subsisting and although he had lived in the UK with valid leave, no insurmountable obstacles existed to the couple continuing their family life outside the UK and (3) even though O lived in the UK for 20 years he did not demonstrate that he has ‘no ties’ to Nigeria. Thus, there was nothing exceptional about O’s case.

Error of Law

The UT [31] noted that the FTT misdirected itself and made “a serious error of law” by thinking “that Article 8 was not even engaged”. In O’s case Maslov v Austria [2008] ECHR 546 needed to be applied. In outline, since the age of 6, Maslov – a young Bulgarian (but ethnically Turkish) offender – resided lawfully in Austria but was deported to Bulgaria. He complained to Strasbourg and the Grand Chamber held that a ten-year exclusion order imposed on him, because of lack of ties with Bulgaria and strength of ties with Austria, could not be justified as necessary in a democratic society because the offences he had committed (aged 15) were non-violent. In Maslov, the Court explained that:

74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner,  § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, § 58 in fine). 

75. In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile.

In ZH Tanzania [2011] UKSC 4, Lady Hale JSC [17] highlighted that Maslov “reinforced” Üner v The Netherlands (2007) 45 EHRR 14 and Boultif v Switzerland (2001) 33 EHRR 50. In sum, the following factors were important: (a) nature and gravity of the offence (b) length of the complainant’s residence in the country from which he was to be expelled (c) time elapsed since the commission of the offence (d) complainant’s conduct since that time and (e) strength of his or her social, cultural and family ties with the two countries in issue. Equally, good conduct and the best interests of the child mattered. Unsurprisingly, Maslov has been appended to numerous UT decisions such as MF and Sanade. But the Maslov ruling is not monolithic and remains shrouded in controversy. For example, the Court of Appeal’s decision in D v SSHD [2012] EWCA Civ 39, [32] that “[e]ither an individual’s presence is ‘lawful’ or ‘unlawful’ in immigration terms” has troubled practitioners.

Moreover, private life claims in cases will succeed unless very serious reasons to justify expulsion existed: Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 46 (IAC), see post here, MW (Democratic Republic of Congo) v SSHD [2011] EWCA Civ 1240. Since the FTT remained oblivious to this requirement, suffering from “serious flaws” its decision was “trite law” and could not stand [35] – [36].

Spent Convictions

O complained that in making her case the SSHD relied on his spent convictions. But given the terms of section 7 of the Rehabilitation of Offenders Act 1974 and the case of AA (Spent convictions) Pakistan [2008] UKAIT 00027, the UT was satisfied that justice could not be done without admitting O’s spent convictions – the weight attributed to these, however, was another matter [39] – [40]. O’s entire criminal record was admitted to get a “complete picture” because the SSHD relied on his persistent offending rather than his most recent offence and the spent convictions retained relevance for shedding light on recent offending. A full criminal record disclosing all the details was apposite. A summary did not suffice and the Data Protection Act 1998 could not restrict disclosure [41].

Evidence and Family Life

Addressing several case management issues in an extremely unwieldy situation [42] – [46], the UT was irritated by the SSHD’s failure to comply with its directions “by informing the Tribunal in writing which witnesses would be required for cross-examination” [49]. Further requests for cross-examination based were refused because the SSHD “was in a position, at least a week before the hearing, to be able to properly identify which of those witnesses she wished to cross-examine” [50]. Given that three hearings had already taken place after permission to appeal was granted, “the need for expedition and efficient use of court time was obvious”; failure to cooperate with the UT would have consequences; acceding to the SSHD’s request would merit another adjournment; yet, an allowance was nonetheless made for O and F to be cross-examined.

O said that since his arrival in the UK he returned to Nigeria only once for two weeks. He admitted to making “big mistakes” but said that since JT’s birth he pursued college and made an effort to quit drugs but “slipped up” a few times and was not a habitual cannabis use. Owing to his complex personal life, consisting of more than one partner, he also explained that he “got a few bits mixed up”; “animosity” existed between his past (CT, O’s son JT’s mother) and present (JD, pregnant with O’s child) partners; it is noteworthy O bounced back and forth between the two; he also had another relationship: see [55]. He said that he was clean of cocaine and accepted contradictions about being clean of cannabis – which he had sold to fund his cocaine addiction – in his witness statement. O did not visit CT’s house to meet JT. O met JT at his father or brother’s house who picked up and dropped the child.

JD said that her and O were together for 7 years but they split up and got back together in 2011. JD said that CT was her cousin and that she knew O’s son JT. JD’s own daughter (TS) with another man lived with her and O. JD was unaware of O’s ties to Nigeria.

Moreover, O did not use cocaine anymore and this was reflected in his behaviour as he did not socialise and go out but JD knew that he had been arrested for smoking cannabis.

O’s father (F) confirmed that since arriving in the UK his son had only visited Nigeria once.

Save a 95-year old aunt who lived in the “family village” and some distant relatives, his family no longer lived in Nigeria and that all his siblings had passed away. F confirmed that he had been living in the UK for 52 years and was out of touch with people in Nigeria. F confirmed that O lived with JD.

For more please see 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 (v) as in Huang, judges’ legal duties remained unaltered determining appeals – Parliament had not allowed judges to decide on proportionality on their own (vi) failing on the rules remained the “starting point of the Article 8 inquiry and not its conclusion” – failure on the rules does not equal failure on Article 8 and appellants could succeed “under the law” (vii) broad issues of social policy and individual immigration decisions where private and/or family life were to be respected are significantly different and (viii) Article 8 case law is developing and greater weight should be given to individualised consideration than suggested in Kay.

(2) Unimpressed

Explaining that it was “equally unimpressed” with arguments that subsequent to the arrival of HC 194 and Appendix FM “exceptional circumstances” was the right legal test for judges to apply in determining whether decisions were in accordance with the law, the UT [50] said this:

• Article 8 applied to numerous situations; people seeking entry clearance, irregular entrants and those who entered lawfully and had a reasonable expectation that their future was in the UK all figured in the equation.

• Therefore, “one size does not fit all” and so is impossible to apply one standard, for example whether there are “insurmountable obstacles” to these disparate cases, because the case law indicates that a fact sensitive assessment is necessary. Indeed, prior to the arrival of the new rules, the UT pre-empted this in Sanade; even long before that case, their Lordships’ House disapproved of “exceptional circumstances” as a test and expanded upon why this is so in EB (Kosovo). For the presidential UT, “these observations remain as true after the new rules came into force, as before.”

• Since the new rules were more demanding on applicants – minimum income at significantly higher levels than subsistence, continuous residence for 20 years in private life claims and in certain cases the absence of any ties elsewhere, insurmountable obstacles to cohabitation by spouses etc – more appeals were likely to arise with the “in accordance with the law” limb “as a real issue”.

Moreover, the UT rejected the belief that the new rules matched the standards established by the case law [52]. In particular, like the tribunal in MF, the UT reiterated the discord between the rules and the best interests of minor children by clarifying that, “[t]he more the new rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality.”

In connection with the test of “insurmountable obstacles” – under which R’s claim failed – the UT elucidated that the rejection of an Article 8 claim by virtue of this requirement failed “to comply with principles of the established law” [53].

(3) Strasbourg – ECtHR

In Rodrigues da Silva & Hoogkamer v Netherlands [2006] ECHR 86, [39] it was said that, “Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory.”

Relying on Rodrigues da Silva & Hoogkamer v Netherlands, Nunez v Norway [2011] ECHR 1047 and Antwi v Norway [2012] ECHR 259, the SSHD argued that the “insurmountable obstacles” test was Strasbourg’s choice and preference in respect of removals and transferring family life abroad. The UT did “not read the Strasbourg cases as doing this” and this submission was rejected. Instead, the Strasbourg Court considered exceptionality and insurmountable obstacles as one of several factors in cases where there was unlawful entry or family life was established during a precarious immigration status. So, under the new rules, converting a factor into a minimum requirement for leave to be granted was wrong [56].

Moreover, in Boultif v Switzerland [2001] ECHR 497, Strasbourg made no reference to “insurmountable obstacles”. Instead, the Court [48] focused on the word “difficulties”. Again the presidential UT [57] let it be known that:

• It is thus the degree of difficulty the couple face rather than the “surmountability” of the obstacle that is the focus of judicial assessment but again as a factor rather than a test.

(4) At Home

Equally, it was also obvious from national decisions that in its jurisprudence Strasbourg did not formulate exceptional circumstances or insurmountable obstacles as a test for Article 8’s engagement and that the Court only used such phraseology to arrive at “a decision on proportionality in the particular case” [58]. In any event, the UT cited no less than five authorities – Huang [2007] UKHL 11, EB (Kosovo) [2008] UKHL 41, LM (DRC) [2008] EWCA Civ 325, VW (Uganda) [2009] EWCA Civ 5, JO (Uganda) [2010] EWCA Civ 10 – to make clear that the use of these phrases in an Article 8 immigration context was “erroneous”. Moreover, the SSHD was advised that:

59.  Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding on the Upper Tribunal and will be followed by it.

Rejecting any notion that domestic authorities were at odds with the Strasbourg jurisprudence, the UT also explained that – as an international supervisory institution – the ECtHR applied “minimum standards rather than a uniform approach binding on every contracting state” [60]. Therefore, the principle of subsidiarity allowed contracting states’ institutions (such as domestic courts and tribunals) a margin of appreciation “to conduct a primary examination of the competing considerations”. Underscoring the approach of their Lordships’ House in Daley [2001] UKHL 26 – whether the interference is no more than necessary – as applied in Huang, the UT [61] highlighted the Supreme Court’s endorsement of the same in Quila [2011] UKSC 46, see post here, where Lord Wilson JSC [58] lambasted the SSHD’s efforts to prevent forced marriages as being akin to using a sledgehammer to crack an unidentified nut.

Rather than evaluating cases through the lens of the least intrusive way of achieving the legitimate aim, Strasbourg itself assesses things in light of whether the interference is justifiable because it represents a fair balance of the competing interests. But the UT [63] noted that the international Court has never (1) considered the Daly and Huang Article 8 analysis to be wrong and (2) suggested that it is wrong for the national court to ask whether it is reasonable to expect the couple to relocate to an appellant’s country of origin. Subsidiarity aside, national courts were more “inclusive” than Strasbourg because they have to “apply the Convention through the prism of other legal obligations” such as the value of EU citizenship in relation to measures compelling EU nationals to exit the Union in violation of their residence rights [64]: Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 as applied by the UT in Sanade and by the Court of Appeal in Harrison (Jamaica) [2012] EWCA Civ 1736.

Moreover, under Mansoor [2011] EWHC 832 (Admin) the uniform application of the rules – a method of preserving public safety, economic well being, preventing crime and disorder, protecting health or morals and the rights and freedoms others – is not a legitimate aim in itself warranting interference with Article 8. Hence, failure to meet the requirements for leave under the new rules is not synonymous with the SSHD demonstrating a proportionate and justified interference with Article 8 rights to prevent disorder [65]. Furthermore, the UT agreed with R’s stance that the SSHD’s reliance on jurisprudence embedded in Article 8’s extradition context was unhelpful in the deportation setting because “the legitimate aim of prosecuting criminals pursuant to an extradition agreement is significantly different” [66].

Normally, it was not presumable that the rules were conclusive on Article 8. A fact sensitive inquiry was apposite and “the conclusion under the rules may often have little bearing on the judge’s own assessment of proportionality” [67]. Although the SSHD may choose to grant leave where insurmountable obstacles to relocation exist, judges are unlikely to give weight to this in evaluating proportionality where the obstacles to relocation were significant and it would be unreasonable to expect the rest of the family to relocate elsewhere: nationality, duration of residence, the best interest of the child and other reasons matter in achieving this. “Exceptional circumstances” was incapable of being a legal test in the absence of a presumption that the rules struck a balance between the competing considerations.

Judges’ proportionality assessments allow them to consider the points in domestic and international jurisprudence regardless of whether these are manifested in the rules or not: the case law turned on important details such as criminality, reoffending, dangerousness, lawful admission, duration of residence, nationality and ties to the UK or country of origin [68]. The Strasbourg jurisprudence exacted weighty reasons for expelling a person with long residence from childhood or where steadfast partners in a strong family relationship risked being separated [69]. Conversely, weighty reasons or exceptional factors are needed to supersede the strong grounds for expelling individuals who used deception, fraud, built relationships in precarious circumstances and could not hope to be allowed to remain to continue their family and private life in the host state. Under Harrison (Jamaica) – per Elias LJ [72] to [74] – “exceptional circumstances” is apposite as a device to set the context for the specific decision; the UT’s use of such guidance in evaluation is neither a reference to “a definitive test” nor “otherwise unlawful” [70].

(5) Disposal

Ground 1

While FTT Judge Keane did not consider HC 194 and Appendix FM and R failed on the new rules, his (or “any”) error of law that failed to consider the rules is “immaterial” because the Article 8 assessment “as a matter of law … was satisfactory” [72].

Ground 2

No error of law was made in respect of whether J could reasonably be expected to relocate to Nigeria with R. Appendix FM’s paragraph EX.1.(b)’s language – “insurmountable obstacles” to family life outside the UK – may be a part of the SSHD’s policy but was not imposable on judges in Article 8 decision making [73].

Ground 3

The FTT gave sufficient reasons about why it was unreasonable to expect J to relocate to Nigeria with R. J was British, he was employed in the UK, his daughter studied here, and the SSHD did not allege that the FTT’s was irrational or perverse [74].

Ground 4

The UT accepted the SSHD’s submission that the FTT made a material error of law in relation to whether the decision was in accordance with the law because Judge Keane failed to consider R’s parlous immigration status when she married J and when she was refused admission to the UK. R misused her entry into the UK and failed to depart when she should have. Her relationship with J developed while she was in breach of the terms of her stay and she used bogus paperwork (including a fake settlement visa) to work: “It is unclear why she needed to work if she was a dependant of Mr Akinola’s before her return to Nigeria” [75].

Reasons

Although the UT rejected “a general test of exceptional circumstances” [78], following the ECtHR’s approach in Nunez v Norway the factual matrix in R’s case – that she used deception, did not have minor children with J whose daughter from his past marriage lived in a separate household – was such “that weighty reasons existed to refuse her entry and justify her removal to Nigeria” [77]. Judges making similar decisions were exhorted to follow suit.

Despite the SSHD’s ostensible victory, there was yet more sting in it for her. It was [79] explained that HC 194 Appendix FM’s provisions that applicants for leave on Article 8 grounds must not be in the UK as visitors, with leave for less than six months or with temporary admission are not fatal to an Article 8 claim. Yet in the present case, such requirements pointed to R’s uncertain connections with the UK and “her continuing connections with Nigeria.”

Given the facts of R’s case and J’s dual British and Nigerian Citizenship, his ties to Nigeria, that he married R in that country, the UT [80] concluded that:

The strength of the public interest in removal and the weakness of the right to respect for family life established in these circumstances, was such that any properly self-directed Judgewas bound to conclude that the Secretary of State had justified refusal of admission as a proportionate measure in the interests of prevention of crime and disorder, irrespective of the consequences to claimant and her husband. 

Ultimately, on the facts of the case, in order to enjoy his family life J could follow R abroad because their “indefinite separation” is not “inevitable if she is removed to Nigeria” [82]. So the SSHD’s decision was not unlawful; it was in accordance with the rules, and the applicable policy. It was made in pursuit of a legitimate aim and was proportionate and fair in the circumstances of the instant case and constituted a justified interference with Article 8 rights [85].

Sanade – who succeeded in his appeal; see posts here and here – was distinguishable because prior to falling foul of the criminal law he had not only been granted indefinite leave to remain, but his wife and minor children would be compelled to exit the EU upon his removal [84].

Headnote

Overall the UT summarised its findings as:

1. In cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The Upper Tribunal observation in MF (Article 8-new rules) Nigeria [2012] UKUT 00393 (IAC) to the same effect is endorsed.

2. The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself.

3. There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality.

4. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles.

5. The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can choose between continued residence in the United Kingdom or continued cohabitation abroad.

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.

Background

A Nigerian national and a mother of 5 children whose first marriage broke down, Uchenna Eucharia Izuazu (the respondent or “R”, referred to as the “claimant” by the UT) had a chequered immigration history. R visited the UK where she formed a relationship with Mr Julius Akinola (“J”) and overstayed her entry into the UK (on her multiple entry 5-year visa) by 10 months, then exited briefly but later re-entered to overstay her entry by 2 years. She also used false papers to work in the UK. In 2012, R and J visited Nigeria from where R applied for a spouse’s entry clearance which was refused because of doubts about the genuineness of the relationship and insufficient accommodation. Although the decision was appealed, R arrived in the UK and sought entry as a visitor but she was charged for her false NI number/papers. R pleaded guilty, received 12 weeks’ imprisonment in the magistrates’ court. After serving her sentence, R was transferred to Yarlswood IRC where she claimed asylum, withdrew the claim only to resurrect it later.

First-tier Tribunal

R’s asylum claim was refused and she was unrepresented before Judge Keane. He concluded that R was a credible witness but dismissed her asylum appeal. However, he allowed the appeal under Article 8 ECHR. Judge Keane concluded that R and J had been in a genuine relationship for more than 3 years. Moreover, J had a daughter from his previous marriage who studied in the UK and kept in touch with J who was British and had stable job in the UK. The FTT concluded that R had established family life in the UK because of her relationship to J and that she had a private life by reason of her previous residence and desire to stay on in the UK. Unlike some others of his rank, applying Razgar he posited that the essential question was whether the interference was proportionate and a fair balance between the interests of the community and R and J’s.

The judge acknowledged R’s poor record, but following Lord Bingham’s EB (Kosovo) [2008] UKHL 41 approach he concluded that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal. He also acknowledged that J was born and bred in Nigeria but reckoned that the sacrifice for J to give up 23 years of life in the UK would be too great to follow R overseas and so it was unreasonable to expect him to depart from the UK to continue his family life in Nigeria.

Aggrieved, the Secretary of State for the Home Department (“SSHD”) appealed because she felt that Judge Keane failed to adhere to the “new rules” which – from 9^th July 2012 – purported to consolidate Article 8 ECHR within the Immigration Rules. In her grounds of appeal, the SSHD complained that (i) Appendix FM (Family Members) was not considered (ii) the test under the rules of there being insurmountable obstacles to family life with a partner continuing outside the UK was not applied (iii) sufficient reasons were not given why it was unreasonable to expect J to relocate to Nigeria and (iv) insufficient weight was given to the legitimate aim of safeguarding the economic well being of the UK through effective immigration control and the public interest in removing R.

Upper Tribunal

Given that the UT thought the government’s appeal to be “an issue of considerable public importance as many decisions are being made to which the new rules have potential relevance” [2], the tribunal was dismayed when the SSHD (through Senior HOPO Mr P Nath) made excuses about proceeding with hearing the case because of incomplete papers [5]. In truth, R was no longer unrepresented and Raza Husain QC and Eric Fripp had entered the arena; understandably the SSHD was worried.

Although the SSHD’s application to adjourn the case to a new date was rejected, an hour’s adjournment was allowed but Mr Nath was unable to answer questions posed by the UT and directions were given for the questions to be answered in writing [6]. The UT made clear that it was dissatisfied with the SSHD’s “lack of preparedness” because it was her own appeal on “a profoundly important new issue” which impacted appeals countrywide and the presidential tribunal said that “not for the first time, we conclude that there has been a failure by UKBA of its duty of co-operation with the Tribunal to advance the over-riding objective of fast, fair and efficient adjudication” [8].

The UT asked the SSHD whether the changes in the Immigration Rules made any difference to the existing jurisprudence or “learning” in relation to Article 8? And if the legal tests for evaluation whether immigration decisions unjustifiably interfere with Article 8 have changed how can the rules achieve such a change? Moreover, under Sanade [2012] UKUT 468, see here, did the still government accept that it was unreasonable to expect British citizens enjoying family life to move abroad permanently and if not then why? Furthermore, how is it compatible with Dereci (European citizenship) [2011] EUECJ C-256/11 to require a Union citizen to live outside the EU?

R was asked whether she accepted that if her Article 8 claim failed on the rules but succeeded “under the law”, would consideration under the latter (in light of the new rules) be “exceptional” and if not then why?

The SSHD’s answer to the first question was that, unlike before, the present rules reinstated the exceptional circumstances test impugned by Huang [2007] UKHL 11 as their Lordships’ House examined rules that did not expand upon the UK’s position to Article 8. Insofar as R was concerned, she submitted that authoritative case law arising from the Human Rights Act 1998 was unimpeachable via statements of executive policy like the rules. However, neither view was accepted in full measure. (The answers to the other questions are appended to the UT’s decision.) Although R’s position that the rules were incapable of vacating statutory duties or rescinding authoritative jurisprudence on interpreting that duty was accepted by the UT, the idea that the new rules had no bearing on the Article 8 balance was rejected [30]. As confirmed by the UT in MF (Article 8-new rules), unless struck down for illegality or irrationality, the rules were the rules [31].

Citing Odelola [2009] UKHL 25, the UT [32] explained that the rules are (a) executive not legislative (b) the SSHD’s and not Parliament’s (c) create legal rights and give appellate rights under statute (“that the decision is not in accordance with immigration rules”) and (d) binding upon judges who must apply them in deciding appeals. The UT acknowledged in MF (Article 8-new rules) that the rules have legal effect not because they are law but because the legal structure of immigration appeals allows the rules a mandatory rank and, apart from discretion under them (i.e the rules), disallows judges from exercising a discretion differently from the SSHD.

It was explained that there was “nothing unlawful about” the SSHD publishing guidelines giving effect to Convention obligations. Likewise it was also lawful for aspects of the public interest to be accorded weighty reasons for justifying interference. After all, historically, policies within and outside the rules have been operated to incorporate Article 8 issues [35]. In Huang – where the UT’s President, Blake J (or Nicholas Blake QC, as he then was) acted against the SSHD – the immigrants submitted that all types of human rights claims were not accommodated by the rules but where policy statements existed weight could be given to them.

The SSHD relied on [16] of Lord Bingham’s speech where his Lordship highlighted the need for a robust and fair system of immigration control which was not “unduly porous” and discouraged “fraud, deception and serious breaches of the law”. Equally, his Lordship had also urged deference to the SSHD’s views and the UT followed suit by letting it be known that:

38.     We see no reason why a statement of policy as to when those with no other claim under the Immigration Rules will or will not be admitted or expelled, should not be expressed in the Immigration Rules, and when they are, appropriate weight should be given to it for the reasons given by Lord Bingham.

Drawing an analogy – on its own initiative – for Article 8 purposes from the jurisprudence surrounding Article 5 ECHR (Nadarajah [2003] EWCA Civ 1768, Lumba [2011] UKSC 12), the UT [39] said that while the rules and associated policy statements do not carry the force of the law, they nevertheless form a part of the law in answering the question whether an interference is “in accordance with the law” for rights that are balanced rights under the Convention. Hence, an interference with Article 8 rights that contravenes lawful policy is also “probably” not in accordance with the law so as to justify an interference with Article 8 rights. Like the UT in MF (Article 8-new rules), the instant tribunal, [40] – [41], urged judges to consider (1) whether an appellant can profit from the Article 8 based rules (if so, then the exercise shall stop here as the “appeal can be allowed because the decision is not in accordance with the rules”) and (2) if not then to evaluate Article 8 “applying the criteria established by law.”

In ascertaining proportionality – whether the decision is a justified interference with Article 8 rights – the rules and policy statements have purchase and the question that judges should answer is whether the interference is “a proportionate means of achieving the legitimate aim in question and a fair balance as to the competing interests” [42]. Strasbourg/ECtHR and domestic jurisprudence steer the extent to which the rules reflect human rights considerations, but weight needs to be attached to the particular facts – found by judges – of individual cases [43].

Analysing part 13 (Deportation) of the rules the UT [44] observed that, unless paragraph 399 applied, in relation to family life claims and deportation – where there was persistent or grave offending – paragraph 398 operated to give precedence to the public interest over family life. Paragraph 399 is engaged in cases where a British child is resident in the UK for 7 years and it would be unreasonable to expect him/her to leave the UK and no other family member is able to care for him/her in the UK. Owing to the fact that a child’s best interests are a primary consideration under the law, the UT opined that in an Article 8 context it was hard accord weight to the italicised requirement because “a child’s best interests would normally require the maintenance of a genuine and effective care by both parents rather than a default position of the absence of any family member to care for the child” [44]. Conversely, the residence requirement of 7 years remained a helpful pointer towards the circumstances in which it was reasonable to expect a child, irrespective of nationality, “to have the company of a caring parent” in the UK.

Since the decision in the present case was taken after 9 July 2012, the new rules applied and the UT did not have to “grapple” with the issue of whether the new rules applied retrospectively [45]. Save paragraph A362 (whereby Article 8 claims only prevail in the event the rules are satisfied as at 9 July 2012 irrespective of when an intention to deport was notified/deportation order was served), Appendix FM does not apply to applications made and not decided before 8 July.

However, the UT observed [46], that the rules were silent as to their application to deportation decisions that are made and the appeals determined prior to 9 July but may have to be re-examined later. But it was clear that the new rules were incapable of undermining judicial decisions allowing an appeal on Article 8 grounds taken before they came into effect.

Therefore, public law and human rights principles were offended by “a retrospective deprivation of the benefit of a favourable decision under the law” and there were “compelling reasons” why appellants who won (or should have) appeals before FTT judges prior to the new rules “should not be deprived of … benefit” just because a judge was wrong and a new decision had to be made. On the other hand, fresh Article 8 adjudication after 9 July was naturally inclined to give weight to the SSHD’s policy in the rules.

For more please read Tribunal Unimpressed With New Rules Again: Part 2.

Essa, R (On the Application Of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor

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.   

Background

Daha Essa (or “E”), the appellant, a Dutch national of Somali origin came to the UK in 2001 with his mother and siblings. He received secondary and college education here. E’s criminal career began with handling stolen goods. After receiving a fine for a bail offence, E received a sentence of 5 years’ detention in a young offenders institution for robbery. Subsequently, the Secretary of State for the Home Department (SSHD) decided to make a deportation order against him on conducive grounds under section 3(5)(a) of the Immigration Act 1971 with reference to the Immigration (European Economic Area) Regulations 2006.

Although Maurice Kay LJ did not dwell on the facts of E’s robbery conviction, these can be revisited in the Court of Appeal’s judgment (Hughes LJ, Wilkie J and Sir Geoffery Grigson) in R v Essa [2009] EWCA Crim 43. The robbery occurred on a train between Clapton and Liverpool Street and the victim – Mr Newport – was robbed of his mobile phone, i-Pod and wallet at knifepoint by the only other passenger in the carriage. The robber removed the victim’s driving licence from the wallet, read the address and threatened, “If you grass me up come and find you.” Thereafter, the robber alighted at Bethnal Green and banged on the window – behind which the victim sat terrified – and repeated the threat not to report the matter to the police. This was recorded on CCTV; E was arrested for the offence. During interview, E refused to answer the questions put to him and was subsequently identified as the robber by the victim. At [7] and [12], Hughes LJ observed, “at no stage prior to or during the trial was a defence statement of any kind served”. And although E denied any wrongdoing his Lordship remarked, “it is unsurprising that the Crown asserted that it recognisably was him.”

So in those proceedings, four years ago, E’s case was that there had been a robbery but he was not the robber. Instead E contended that section 11(5) of the Criminal Procedure and Investigations Act 1996 – “faults in disclosure by accused” whereby the Court or any other party may (a) make such comment as appears appropriate and (b) draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned – regarding the effect of the absence of a defence statement, was incompatible with the right to a fair trial under Article 6 of the ECHR. Hughes LJ held that (1) the right to silence was part of the right to a fair trial, as was, even more importantly but distinctly, the right not to incriminate oneself and (2) the significance of section 34 – setting out the effect of accused’s failure to mention facts when questioned or charged – of the Criminal Justice and Public Order Act 1994 was not whether an offender was silent in interview, but whether he placed reliance at trial on something that should have been said in interview. The “acid question” was not whether – relying on his solicitor’s advice – it was reasonable to decline to answer questions, but whether the defendant could reasonably have been expected to say in interview what he said at trial. Dismissing E’s appeal the Court [23] held that in the circumstances of the case, there was “no doubt that section 11(5) is perfectly compatible with the Convention.”

Returning to E’s immigration case, his appeal to the First-tier Tribunal (FTT) was dismissed and the Upper Tribunal (UT) refused E permission to appeal owing to which he applied for judicial review under R (Cart) v UT [2011] 3 WLR 107. Although limited permission was granted, Lang J – in R (Essa) v UT (IAC) & Anor [2012] EWHC 1533 (QB) – dismissed E’s substantive application following which the case made its way into the Court of Appeal.

The Court of Appeal

In the instant case, the Court of Appeal (Maurice Kay, Toulson and Aikens LJJ) allowed E’s appeal and remitted his case to the Upper Tribunal (UT) for it to grant permission to appeal. At first glance, this may seem awry; but in reality it was an extremely enlightened and judicious decision. Maurice Kay LJ described the issue on the appeal as “narrow but important” [5]. E argued that the FTT’s decision was erroneous because it examined proportionality through the lens of Article 8 ECHR without considering the EU dimension. Although E complained that the FTT failed to grasp the “full content” of EU law, his Lordship considered “that the FTT was mindful of both regimes.”

(1) Bulale

The FTT’s decision turned on Bulale v SSHD [2009] 2 WLR 992. In that case, Waller, Buxton and Smith LJJ held that Judge Peter Lane had been right in upholding a decision to deport an EU citizen because his behaviour constituted a genuine and sufficiently serious threat undermining one of the fundamental interests of society (namely protecting members of the public from violent crime) and hence there were serious grounds of public policy for deporting him.

(2) Batista

However in Batista v SSHD [2010] EWCA Civ 896, allowing an EU national’s appeal, Carnwath LJ (as he then was) found that in considering whether the deportation of an EU citizen after a conviction for burglary and grievous bodily harm was proportionate, the offender’s “fragile” prospects of a better life with his girlfriend in the UK compared to his prospects of rehabilitation upon deportation to Portugal could be a relevant consideration for the tribunal. The case, of course, had more to do with the “insurmountable obstacles” test that the tribunal had wrongly applied to Batista by deciding that it was acceptable for him and his family to go and live in Portugal so that people in the UK would be protected from his (potential) criminal behaviour in future.

Largely on his own initiative – as the argument was not canvassed before him in great detail – Carnwath LJ [27, obiter] took the view (Maurice Kay and Black LJJ concurring) that even in relation to those who had committed grave crimes, “common sense” suggested “a degree of shared interest between the EEA countries in helping progress towards a better form of life.” In all, consideration had to be given to Valentin Batista’s relationship with his girlfriend Tamara Deane (with whom he had a son). Whereas doubt loomed over the expectation that he could return to Portugal and remain crime free despite Batista’s siblings’ presence in that country because they may not be able or willing to offer him support. Therefore, there was “no reason in principle why” such points “may not be taken into account in the overall balance of proportionality.” For the sake of completeness – and perhaps to play devil’s advocate – it is worth mentioning that Batista had an atrocious criminal record which reach its climax when he, intoxicated on alcohol and cannabis, broke into a flat while the occupants were sleeping; one wearing a bracelet. When Batista tried to remove the bracelet, the owner awoke and Batista smashed two bottles of wine on his victim’s head!

(3) Tsakouridis

In E’s case, Maurice Kay LJ [7] noted that the FTT did not refer to Batista. His Lordship also observed that in Batista the Court did not refer to Advocate General Bot’s opinion in Land Baden-Würtemberg v Tsakouridis [2011] 2 CMLR 11; a case concerning deportation, EU law, public policy, rights of entry and residence and the supply of drugs by a Greek national resident in Germany. In summary, in Tsakouridis the Court of Justice of the European Union (CJEU, Grand Chamber) held that a person’s absences from the Member State in which he lived could prevent him from enjoying the protection from expulsion afforded by Article 28(3)(a) of Directive 2004/38/EC in the event those absences were found to have undermined his links with the state in question.

Prior to the CJEU’s ruling on 23 November 2010, in [95] of his opinion of 8 June 2010 Bot AG explained that expulsion decisions, following a criminal penalty, against EU citizens “must state precisely” how expulsion “does not prejudice the offender’s rehabilitation.” This approach preserved the individual’s interests and those of “the Union in general.” Prohibitions on re-entry following expulsion from one Member State did not preclude an EU citizen from using his right of freedom of movement in the other Member States and “it is therefore in the general interests that the conditions of his release should be such as to dissuade him from committing crimes and, in any event, not risk pushing him back into offending.”

Moreover, in cases involving expulsion following completion of a criminal punishment, the proportionality test had “a special significance” and “the competent authority” was required “to take account of factors showing that the decision adopted is such as to prevent the risk of reoffending” [94].

(4) Essa: The EU Dimension

Taking the CJEU’s judgment – which was delivered after the FTT’s decision – into account, Maurice Kay LJ clarified “that there is a European dimension which widens consideration beyond the interests of the expelling Member State and those of the foreign criminal” [9]. Reiterating its case-law, the Grand Chamber had, of course, demanded that “a balance must be struck between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned” and “the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which, as the Advocate General observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general” [50]. (Emphasis supplied by Maurice Kay LJ.)

Lang J’s [46] interpretation of Tsakouridis in E’s case – where her Ladyship bore Carnwath LJ’s approach in Batista in mind – was that, when applying regulation 21 (decisions taken on public policy, public security and public health grounds) of the 2006 Regulations, it was incumbent upon decision-makers to consider whether deportation would damage/undermine the likelihood of rehabilitation from offending in the host country and “weigh that risk in the balance when assessing proportionality under regulation 21(5)(a).”

Hence, her Ladyship held that generally “this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country.” For Lang J [53] – [54], despite the FTT’s failure to distinguish between Article 8 and the 2006 Regulations as regards proportionality, the UT’s decision to refuse permission to appeal the FTT’s decision did not comprise an error of law because “the court would be imposing too high a standard of decision-writing on an FTT to find that this amounted to an arguable error of law.”

Maurice Kay LJ agreed [12] with Lang J’s position on Tsakouridis and emphasised that while “the European dimension” was inextricably linked to the proportionality exercise in the deportation of EU citizens. His Lordship explained that the issue at the heart of E’s appeal was “whether the FTT had regard” to “the European dimension” and concluded that “it did not.” But his Lordship remained unsurprised at the FTT’s omission because the SSHD’s case was constructed on Bulale which the FTT relied upon in reaching its conclusion. Maurice Kay LJ wisely observed [13] that the FTT appreciated that its job in relation to regulation 21 and Article 8 “was not coextensive” because not only had the elements constituting regulation 21(6) been listed, the test of “serious grounds of public policy or public security” in connection with deporting EU citizens was also recalled. Yet in ascertaining proportionality, the FTT had “conflated the two instruments.”

The Court of Appeal highlighted that although an Article 8 proportionality exercise was conducted in relation to the evidence in the case, the FTT did not consciously consider “the prospects of rehabilitation as between” the UK and the Netherlands “or an awareness of the interest ‘of the European Union in general’ which would have required a comparison of rehabilitation prospects as indicated by Lang J” [14]. But the Court also made clear that “the omission was quite understandable at the time.”

In the final analysis, Maurice Kay LJ held that:

15. The case for the Secretary of State in this Court is that, even if the FTT did not have the European dimension in mind, in the end it did have regard to the matters relevant to that dimension. In particular, there is a positive passage in the determination about the ability of the appellant “to rebuild his life in Holland” and a degree of scepticism about how responsive he would be to guidance from his siblings in this country once this litigation is at an end. In effect, Mr Hall is submitting that the FTT adventitiously did comply with Tsakouridis, rather as Molière’s M. Jourdain had talked in prose for years without realising it. In my judgment, although this submission is not unarguable, in the end it does not hit its target. Even when benevolently construed, the tribunal cannot be said to have done what Tsakouridis and Lang J required of it. For this reason, I would allow this appeal and remit the case to the UT so that it can grant permission to appeal to itself.

For the SSHD, an emollient feature in the judgment is that Maurice Kay LJ [16] did not think that the CJEU adopted [50] of AG Bot’s opinion where the AG [95] stipulated that primary decision-makers making expulsion decisions should “state precisely in what way that decision does not prejudice the offender’s rehabilitation”. Because such a requirement is “overprescriptive”, his Lordship felt that “the comparative exercise envisaged by Lang J as the usual corollary of Tsakouridis may well be achieved without such a straitjacket.”

People confronted with deportation/expulsion after serving criminal sentences often complain that they are being punished for a second time. There is considerable truth in this claim because people, even “criminals”, can change and deserve a chance at a better life with their loved ones in this country. Similarly, individuals who have served long criminal sentences are generally unafraid of re-entering the UK – in breach of their deportation orders – through Ireland or the other Member States and removing them again and again is a waste of time and money.

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.      

Facts

KB, an Arab from near Tartous, arrived in the UK in the back of a lorry. When arrested by the police in 2009, he claimed to have arrived that very day and – to conceal that he was refused a visit visa in Beirut – said that he was Palestinian. KB then stated that he traversed several countries to reach Italy and then Belgium from where he was smuggled into the UK so that he could work to send money to his poverty stricken family in Syria. The SSHD sought to remove KB but this was not achieved. One year later, in 2010, KB claimed asylum. In his screening interview he said that went from Syria to Lebanon and stayed there for a couple of years and was ultimately smuggled onto a ship which ferried him to an unknown country from where he was put on a lorry which landed up in the UK. (His uncle paid an agent €2000-3000 for this.) Subsequently – twenty days after the screening interview – in the asylum interview, KB produced a Syrian passport which showed that he was refused a visit visa to the UK in 2007.

KB also claimed that he and members of his family had demonstrated against the regime and, fearing retribution, had fled to Lebanon (historically a Syrian client state). But KB also said that he demonstrated because his family members were detained and that prior to fleeing to Lebanon he was not involved with a political party. While in Lebanon, KB claimed to have became involved in political activities against the Assad regime owing to which he felt that he needed to escape from that country as well.

First-tier Tribunal (FTT)

Upon appeal, the FTT – where KB added that in searching for him the regime had descended upon his household and arrested and detained his brothers – remained negative about the credibility of his account. Judge Canavan rejected the account given to her by KB as inconsistent with someone who has a well-founded fear of persecution. But, sensitive to the deteriorating situation in Syria, the judge nevertheless allowed the appeal because she felt that the country guidance in SA & IA (Undocumented Kurds) Syria CG [2009] UKAIT 6 was undermined by the US State Department’s view that there were “numerous reports” that the despotic Syrian regime “routinely arrested dissidents and former citizens with no known political affiliation who tried to return to the country after years or even decades in exile.” In the judge’s mind, all this could only mean that there was a serious possibility or a reasonable degree of likelihood that even a person with no known political affiliations would be ill-treated upon return.

Aggrieved, the Secretary of State for the Home Department (SSHD), appealed because she felt that reliance on ambiguous terms such as “numerous reports” and “routine arrests” alone did not merit departing from SA & IA.

Upper Tribunal (UT)

The UT (Judge McKee) granted permission to appeal because the phrase “former citizens with no known political affiliation” could not apply to KB because he was still a Syrian national. Of course, the Home Office went to town on this point in a subsequent hearing and Judge Moulden decided that the FTT – although correct in its credibility finding – had erred in law by departing from the guidance in SA & IA. Problems arose as KB’s solicitors ended their practice and had to be replaced. The case was adjourned to be heard further on the sole issue of whether, given the FTT’s findings of fact and credibility, KB would be at risk on return. The new solicitors requested more time to get expert evidence. Subsequently, the case was thought to be appropriate for country guidance on Syria and, of course, the SSHD resisted this. But the UT [11] felt that since “the Assad regime could remain in power for a very long time” and given that there had been no country guidance since the turmoil began in March 2011, there was a “clear need for an update on whether the guidance in SA & IA is still to be followed.”

Ultimately, the case was heard in the UT by judges Eshun, McKee and Pitt and KB claimed that he was quite actively involved in demonstrating against the Syrian regime in London. KB also said that his Syrian passport was sent to him from Lebanon by a relative after he travelled to the UK. The UT [14] remained unimpressed with KB’s attempts to bolster his claim by making unconfirmed assertions that he had attended numerous demonstrations against the Syrian regime in London and that his family at home had been detained, ill-treated and harassed: “It is trite that asylum seekers may not be able to provide corroboration of a genuine claim, but when corroborating evidence should be easy to obtain, its absence may well affect credibility.”

Country Guidance

Observing that torture and ill-treatment of Syrians at the regime’s hands was rife, the UT [15] recalled [59] & [60] of SA & IA whereby “a person with an actual or perceived profile of being anti-regime would be at real risk of persecution on return to Syria.”

But the UT’s real task was to discern whether, in light of the present situation in Syria, the guidance in [75] to [89] of SA & IA – whereby failed asylum seekers were not be perceived as being opponents of the regime simply by reason of having claimed asylum abroad and will not as such be at real risk of persecutory ill-treatment on return –was still valid?

Dr Alan George, a leading expert on the Middle East who also featured in SA & IA, gave oral evidence to the UT and provided written reports. Amnesty International submitted a report specifically on KB’s behalf, whereas the SSHD relied mainly on Country of Origin information and the Syria Operational Guidance Notes of 2011 and 2012. Other written submissions were provided by the parties which the UT considered in formulating its view [17].

Observing that like the US and European countries the UK Border Agency (since January 2012) had deferred all escorted removals to Syria, the UT – drawing parallels from the Zimbabwe litigation – remarked that this did not demonstrate “on its own … that Syrian asylum seekers in the United Kingdom must be granted refugee status” [18]. The central question of a real risk of persecution or serious harm or ill-treatment contrary to Article 3 turned on the available evidence [19]. In SA & IA, Dr George thought that people would face mistreatment on return to Syria merely because they were forced returnees and he also opined that Syrians claiming asylum abroad were identified as the regime’s foes and would inevitably be detained and maltreated on return. But in SA & IA judges Batiste and Taylor disagreed on this issue. So in KB’s case, in light of the recent evidence, could the conclusion be different?

From [21] to [31], the UT considered a variety of sources of evidence. These included the report of the Austrian Red Cross and the Danish Immigration Service published in May 2010, unidentified western diplomatic sources, the SSHD’s Operational Guidance Notes for 2011 and 2012 and her most recent Country of Origin Information Report (COIR, August 2012) on Syria.

The Austrian-Danish report contained the views of Human Rights Watch (HRW) in Beirut which considered that it was most likely that failed asylum seekers who were returned to Syria would be detained (albeit not lengthily) and it was highly likely that they would be ill-treated and even tortured during that time. In fact, the security forces decided who would be ill-treated or tortured and if released people were still required to report. Inevitably, all returned failed asylum seekers were automatically detained and interrogated: see [23]. The UT noted [32] that even the SSHD expressly admitted that it was “possible that returnees would be viewed with suspicion” and “that even failed asylum seekers may be at risk of ill-treatment”. So the guidance in [75] to [89] of SA & IA was incompatible with today’s Syria where the “extremely high level of human rights abuses” meant that the brutal regime would do just about anything to keep itself afloat.

Ultimately, the UT allowed KB’s appeal and granted him refugee status and it explained that:

• This country guidance replaces previous guidance in SA & IA (Undocumented Kurds) Syria CG [2009] UKAIT 00006.

• In the context of the extremely high level of human rights abuses currently occurring in Syria, a regime which appears increasingly concerned to crush any sign of resistance, it is likely that a failed asylum seeker or forced returnee would, in general, on arrival face a real risk of arrest and detention and of serious mistreatment during that detention as a result of imputed political opinion. That is sufficient to qualify for refugee protection. The position might be otherwise in the case of someone who, notwithstanding a failed claim for asylum, would still be perceived on return to Syria as a supporter of the Assad regime.  

It is clear that Syrian regime’s demise is just a matter of time. But no one can say for sure when its fall will come?

Alive to the possibilities of what might happen in the months to come, the UT [35] was of the view that the predicament in Syria “may provoke … outside intervention or it may be, as we commented at the outset of this determination that the Assad regime will cling on to power for a long time yet.”

When the present dictatorship in Damascus finally fizzles out, no doubt, yet more mayhem will follow. More Syrians will arrive in the UK to claim asylum. Many of them are likely to be members or supporters of the present regime who will have to be treated fairly and it will be the SSHD and the judiciary’s unenviable job to make sense of it all.

O & S v Maahanmuuttovirasto v L [2012] EUECJ C-356/11 (06 December 2012)

This post analyses the rationale espoused by the CJEU in relation to its ruling which is highlighted in Can Third Country National Stepfathers Derive Rights Of Residence From Union Citizen Children? Part 1.

The CJEU’s Reasoning

(1) EU Law and Union Citizenship

The Court (para 38) observed that the joint position of Finland, Denmark, Germany, Italy, the Netherlands, Poland and the European Commission was that Zambrano related to exceptional situations where national law caused the Union citizen’s enjoyment of substantive rights to be denied. So the instant cases differed significantly in that O and M were neither the biological fathers, nor had custody, of the Union citizen children from whom they tried to derive their rights of residence. Equally, the fact that the Union citizen children’s mothers were permanently resident in Finland and were not compelled to leave Union territory to maintain the family unit was also in conflict with Zambrano. Hence, by that logic, the mothers’ choice to leave Union territory was not construable as an “inevitable consequence of the refusal to grant their spouses a right of residence.”

Germany and Italy also submitted that O and M were not a part of the Union citizens’ nuclear families because they were not the minors’ biological parent(s) and the children were not their dependants. But the Court (para 40) emphasised that despite the workings of national law, O and M relied on family reunification with S and L who were their sponsors and with whom reunification was sought.

Contrary to the German and Italian stance, the CJEU (para 55) considered it noteworthy that although the Zambrano principles applied only in exceptional circumstances, the Court’s case-law did not establish that the said principles were “confined to situations in which there is a blood relationship between the third country national for whom a right of residence is sought and the Union citizen who is a minor from whom that right of residence might be derived.”

Insofar as the Citizens Directive is concerned, the CJEU reiterated that family members could only derive a right of residence from the Union citizen where that citizen had exercised the right of freedom of movement by settling in a Member State other than the Member State of which he is a national: Metock & Ors (Area of Freedom, Security and Justice) [2008] EUECJ C-127/08, Dereci & Ors (European Citizenship) [2011] EUECJ C-256/11. So in the instant cases, because the two Union citizen children had never ultilised the right to freedom of movement and had always resided in Finland, they could not rely on the concept of “beneficiary” within the meaning of Article 3(1) of the Citizens Directive. Thus, the Citizens Directive did not apply to them or their family members (para 42).

Recalling that the right of freedom of movement – with respect to the Finnish children in the instant proceedings – could not “be assimilated to a purely internal situation [a situation which has no factor linking it with any of the situations governed by European Union law]”, the CJEU explained (paras 43 – 44) that these children could still rely on the status of Union citizens accorded to them under Article 20 TFEU “against the Member State of which they are nationals”; thus (para 45), Article 20 TFEU precluded refusing the grant of rights of residence to a Union citizen’s family members where such behaviour denied Union citizens the genuine enjoyment of the substance of the rights conferred by their status (Zambrano, para 42 cited).

Under the CJEU’s case-law, the test for the contravention of the genuine enjoyment of the Union citizen’s rights required that he would not only leave the Member State of his nationality but also the Union altogether. So it was extraordinarily that a third country national, who was the Union citizen’s family member, may not (owing to the impairment of the Union citizen’s enjoyment of his rights) be refused a right of residence. In the instant cases – bearing in mind that the Union citizen children’s mothers possessed permanent residence in Finland and neither the Union citizen children nor the mothers were obliged to leave the Union or the Member State’s territory – this was a question for the national court to decide (paras 49 & 50). In doing so, the national court should consider all the circumstances of the case and decide whether the refusal of the residence permits in the main (Finnish) proceedings leads to the circumvention of the enjoyment of the Union citizens’ right (para 53). Living together with the sponsor is not conclusive in making the decision because in applications for family reunification some family members “may arrive in the Member State concerned separately from the rest of the family” (para 54).

The reality that the Union citizen children relied upon were part of a reconstituted family unit and the sponsors’ custody rights also remained relevant to these cases. Because S and L had sole custody of the Union citizen children, leaving Finland to preserve the family unit would have the consequence of depriving the Union citizen children of contact with their biological fathers, whereas staying on in Finland to maintain contact with the biological fathers of the Union citizen children would have the consequence of undermining the relationship of the non-Union citizen children with their, third country national, biological fathers (para 51).

Citing para 68 of Dereci, the CJEU took the view that economic reasons or the preservation of the family unit on Union territory in relation to a family composed in a manner consistent with the present cases was insufficient “in itself to support the view that the Union citizen would be forced to leave the territory of the Union if such a right of residence were not granted” (para 52).

The Court (para 56) also reiterated Advocate General Bot’s position – in his opinion – about legal, financial or emotional dependency on the third country national who is refused a right of residence; that dependency must be assessed “when examining the question whether, as a result of the refusal of a right of residence, those citizens would be unable to exercise the substance of the rights conferred by their status.” Advocate General Bot (para 42) had, of course, opined that to preserve family life the Union citizens’ mothers were free to choose to remain in or leave Finland and that the latter choice was not imposed by national legislation. Explaining (para 43) that Article 20 TFEU was not in breach in the present cases, Advocate General Bot applied Dereci which restricted the Zambrano principle. In his opinion, he stated:

44. The reasons linked to the departure of the citizen of the Union from its territory are therefore particularly limited in the case-law of the Court. They concern situations in which the Union citizen has no other choice but to follow the person concerned, whose right of residence has been refused, because he is in that person’s care and thus entirely dependent on that person to ensure his maintenance and provide for his own needs.

Ultimately, it is that relationship of dependency which was telling about whether Union citizenship would be imperiled because of the Union citizen’s departure not only from the Member State of their nationality but also the Union as a whole. Since such dependency was not observable on the information available, subject to the national court’s verification, the CJEU held that Article 20 TFEU did not preclude a Member State from granting O and M residence permits on the basis of family reunification (para 58).

If the national court finds that refusing O and M residence permits did not culminate in the denial of the genuine enjoyment of the substance of their stepchildren’s rights as Union citizens, under para 69 of Dereci other criteria such as the right to the protection of family life/fundamental rights were nonetheless at play and required to be addressed in each case (para 59).

(2) Directive 2003/86/EC (“the Directive”) and Family Reunification

The Directive was mentioned in the reference but a question concerning it was not put directly to the CJEU. However, the CJEU could consider rules of EU law which may be of use in ruling on the case pending before it: Alevizos (Taxation) [2007] EUECJ C-392/05. The Directive’s aim is to ascertain the circumstances in which third country nationals resident in the Member States’ territory may exercise a right to family reunification. “Family members”, as defined, do not include family members of a Union citizen. In past case-law (Dereci, para 48), the Court formulated the view that the Directive was not applicable to third country national family members who wished to enter and reside in the Member State concerned to live as a family with Union citizens.

Against that background, in the instant case, S and L were lawfully resident third country nationals in Finland who sought family reunification as sponsors within the meaning of Article 2(c) of the Directive and their third country national children with O and M did not enjoy the status of Union citizens contained in Article 20 TFEU.

In light of the Directive’s aims – to promote family reunification, protect third country nationals (particularly minors) – the CJEU held that the Directive’s scope could not exclude families for reasons connected to their composition where “one of the parents of a minor third country national is also the parent of a Union citizen, born of a previous marriage” (para 69 of Chakroun (Area of Freedom, Security and Justice) [2010] EUECJ C-578/08 cited). Precise and positive obligations, in respect of family reunification, with corresponding clearly defined individual rights were imposed on Member States – which enjoyed no margin of appreciation – under Article 4(1) of the Directive: Parliament v Council (Area of Freedom, Security and Justice) [2006] EUECJ C-540/03, paragraph 60. But Article 7(1)(c) empowered Member States to require the sponsor to furnish evidence of sufficient “stable and regular resources” – to be construed as a function of their nature, regularity, minimum wage, pensions and the number of family members (Chakroun, para 42) – capable of maintaining himself and his family members without burdening the “the social assistance system of the Member State concerned.”

However, the Court elucidated that the resources of the sponsor were relevant but that the sponsor was, if the need exceptionally arose, entitled to claim special assistance to maintain himself (para 72 – 73). So a Member State could not refuse family reunification to a sponsor who proved stable and regular resources but relied on special assistance to meet exceptional, individually determined, essential living costs or income support measures (Chakroun, para 52 cited). Equally, Member States could not rely on Article 7(1)(c) to undermine the Directive’s efficacy. Furthermore, the objectives of the Charter of Fundamental Rights (CFR) were respected by the Directive which adhered to the principles enshrined therein.

Thus, it was necessary that the Directive not only respected Article 7 CFR (mirroring Article 8 ECHR) but also Article 24(2) and (3) of the CFR by virtue of which children were entitled to “to maintain on a regular basis a personal relationship with both parents”: emphasis supplied, Parliament v Council, para 58 and Detiček (Area of Freedom, Security & Justice) [2009] EUECJ C-403/09, para 54 cited. So Article 7(1)(c) of the Directive was not construable as disregarding these fundamental rights contained in the CFR and Member States had to interpret national law consistently with EU law and eschew relying “on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the legal order of the European Union” (para 78): Parliament v Council, para 105 and Detiček, para 34 cited.

Although, in the above context, Articles 7 and 24 could not deprive Member States of their margin of appreciation, the Directive’s provisions in respect of family reunion “must be interpreted and applied in the light of Articles 7 and 24(2) and (3) of the Charter [CFR]”. Therefore, the competent authorities must examine any applications for family reunification taking particular account of “the interests of the children concerned … with a view to promoting family life” and “make a balanced and reasonable assessment of all the interests in play” (paras 80 – 81).

The CJEU’s answers, at para 82, to the questions referred are set out in Part 1.

This pair of cases was referred to the Court of Justice of the European Union (CJEU) by the Korkein hallinto-oikeus – the Finnish Supreme Administrative Court. Although as recalled by recital (17) of Directive 2003/86/EC’s Preamble, the UK is not bound by this legislation on the right to family reunification, these cases nonetheless make very interesting reading because they also involved Article 20 (Citizenship of the Union) of the Treaty on the Functioning of the European Union (TFEU), Directive 2004/38/EC (the Citizens Directive), Article 7 of the Charter of Fundamental Rights (mirroring Article 8 of the ECHR) and Ruiz Zambrano (European Citizenship) [2011] EUECJ C-34/09. In addition to respect for private and family life, these cases also turned on children’s best interests. Centrally, the question which arose was whether a third country national’s right of residence could be derived from the Union citizenship of a child of which he is not the father but the step-father?

Facts

In a nutshell, the facts of the cases can be set out as:

1. S, a Ghanaian permanently resident in Finland had a Finnish child, of whom she had sole custody. She divorced her Finnish husband and married O from Côte d’Ivoire. S studied, took maternity leave, qualified for a trade, and had been gainfully employed. Relying on his marriage to S, O applied for a residence permit. Subsequently, S and O had a child (of Ghanaian nationality). O, S and the two children live together. O worked under a contract and earned an hourly wage. O’s application was refused by the Maahanmuuttovirasto (Finland’s immigration office) because he was not perceived to have a secure means of subsistence; no exception, under Finnish law, was made for an exceptionally serious reason or for the best interests of the child. O’s appeal to the Administrative Court was dismissed. Aggrieved he and S appealed to the Supreme Administrative Court.

2. L, an Algerian, permanently resident in Finland had a child who has dual Finnish and Algerian nationality and has always lived in Finland. She divorced her Finnish spouse (who lives in Finland) and acquired sole custody of their child. Next, L married M (an Algerian asylum seeker who entered lawfully and lived with L) who was later repatriated to Algeria. Subsequently, on the basis of her marriage, L applied to the Maahanmuuttovirasto for M to be granted a residence permit following which the couple’s child was born in Finland. L survives/lives off subsistence support and other benefits but M (whose contact with the his child remains unknown) believed that his linguistic skills would enable him to find work in Finland. But the Maahanmuuttovirasto refused the application because it consideredc that M did not have secure means of income. The decision was annulled by the Administrative Court and the Maahanmuuttovirasto appealed to the Supreme Administrative Court.

The Questions Referred

In either case, the Finnish Supreme Administrative Court considered that the refusal of residence permits to O and M raised questions in respect of the Ruiz Zambrano principles because S and L and their Union citizen children, in their sole custody, may be forced to leave the EU to keep their family lives intact.

Despite some factual differences, in either case the main issue was whether a Member State could refuse to grant residence permits in the event a third country national sought to derive rights of residence based on the citizenship rights enjoyed pursuant to Article 20 TFEU by his wife’s child (over whom he had no custody rights) from a previous marriage, and whether the third country national’s cohabitation with his spouse was relevant.

In the first or S and O’s case, the following questions were referred:

1.      Does Article 20 TFEU preclude a third country national from being refused a residence permit because of lack of means of subsistence in a family situation in which his spouse has custody of a child who is a citizen of the Union and the third country national is not the child’s parent and does not have custody of the child?

2.      If the answer to Question 1 is in the negative, must the effect of Article 20 TFEU be assessed differently if the third country national who does not have a residence permit, his spouse, and the child who is in the custody of the spouse and has Union citizenship live together?’

In the second case or L and M’s case, the differences in the factual matrix in S and O’s case caused the questions to be framed in slightly different terms:

1.      Does Article 20 TFEU preclude a third country national from being refused a residence permit because of lack of means of subsistence in a family situation in which his spouse has custody of a child who is a citizen of the Union and the third country national is not the child’s parent, does not have custody of the child, and does not live with his spouse or with the child?

2.      If the answer to Question 1 is in the negative, must the effect of Article 20 TFEU be assessed differently if the third country national who does not have a residence permit, and does not live in Finland, and his spouse have a child, in their joint custody and living in Finland, who is a third country national?

The reference inquired whether EU citizenship law could be understood as precluding the refusal of a residence permit to a third country national on the ground of family reunification in circumstances that he desires residence with his third country national wife (lawfully resident in the Member State in question – who has had a Union citizen child from a past marriage) and with a third country national child of their own marriage. Equally, clarification was sought as regards whether the Union citizen child’s non-biological father’s – not in custody of the Union citizen child – living together with his wife was capable of affecting the construal of the provisions on Union citizenship.

And the CJEU responded to these questions in the following terms:

Article 20 TFEU must be interpreted as not precluding a Member State from refusing to grant a third country national a residence permit on the basis of family reunification where that national seeks to reside with his spouse, who is also a third country national and resides lawfully in that Member State and is the mother of a child from a previous marriage who is a Union citizen, and with the child of their own marriage, who is also a third country national, provided that such a refusal does not entail, for the Union citizen concerned, the denial of the genuine enjoyment of the substance of the rights conferred by the status of citizen of the Union, that being for the referring court to ascertain.

Applications for residence permits on the basis of family reunification such as those at issue in the main proceedings are covered by Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification. Article 7(1)(c) of that directive must be interpreted as meaning that, while Member States have the faculty of requiring proof that the sponsor has stable and regular resources which are sufficient to maintain himself and the members of his family, that faculty must be exercised in the light of Articles 7 and 24(2) and (3) of the Charter of Fundamental Rights of the European Union, which require the Member States to examine applications for family reunification in the interests of the children concerned and also with a view to promoting family life, and avoiding any undermining of the objective and the effectiveness of that directive. It is for the referring court to ascertain whether the decisions refusing residence permits at issue in the main proceedings were taken in compliance with those requirements.

Please see Part 2 for more.