Death Row Grandmother’s Appeal Dismissed

Sandiford, R (on the application of) v The Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44 (16 July 2014)

This is a must know case for anyone representing British citizens in legal proceedings abroad. Mrs Sandiford (S), a fifty-seven year old Yorkshire grandmother and legal secretary imprisoned in Indonesia for being convicted in December 2012 of trafficking £1.6 million of cocaine from Thailand to the paradise island of Bali, faces death by firing squad. S’s cooperation with Indonesian authorities resulted in four others being convicted but they were lightly sentenced to terms of imprisonment of between only one and six years. She pleaded guilty at trial but said that she was forced to commit her crime because of death threats to her son. The Supreme Court (Lords Mance, Clarke, Sumption, Carnwath & Toulson JJSC) unanimously dismissed S’s appeal and held that the Foreign Secretary’s policy of not providing funding for legal representation to Britons facing capital punishment abroad is indeed lawful.

Context

Collaborating with the Indonesian authorities has not helped S in escaping the death penalty. Despite the prosecutor’s support for a sentence of fifteen years’ imprisonment, the High and Supreme Courts of Indonesia upheld the District Court of Denpasar’s sentence of execution by firing squad. Her only options, the exercise of which requires funding, now are to appeal by the end of August 2014 to the Indonesian Supreme Court to reopen her case and to petition the Indonesian President to spare her life. Continue reading

Posted in Article 2, Article 3, Article 6, ECHR, FCO, Judicial Review | Tagged , , , , | Leave a comment

Court of Appeal Upholds Income Requirements

MM (Lebanon) & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2014] EWCA Civ 985 (11 July 2014)

In an eagerly awaited decision regarding income requirements and sponsoring partners under the overhauled Immigration Rules, the Court of Appeal (Maurice Kay, Aikens & Treacy LJJ) has controversially allowed the government’s appeal against Blake J’s judgment, reported at [2013] EWHC 1900: see here. The income requirements, held lawful by Aikens LJ, stipulate a minimum income of £18,600 per annum and additional requirements of £3,800 for the first child and £2,400 for each child thereafter. Moreover, specified savings of £16,000 are required to fix an income shortfall, and neither the non-European Economic Area partner’s income nor third-party support can be taken into account in calculating the UK partner’s income.)

Background

Three claimant sponsors, “respondents” in the Court of Appeal, none of whom can satisfy the new Immigration Rules of 9th July 2012, challenge the income requirements by way of judicial review. The first claimant, MM, a Lebanese national with refugee status, married a Lebanese woman by proxy. MM lives with his sister, EF, who has discretionary leave to remain resulting from the breakdown of her marriage. AF, her son, an interested party, considers his uncle MM, the first claimant as a father figure. The second claimant, AM, a British citizen of Pakistani origins, married a Pakistani woman who lives in Azad Kashmir. The third claimant, SJ, a British woman of Pakistani origins, married a Pakistani national who lives in Pakistan and works as a civil servant. None of the claimants’ partners have applied for entry clearance under the new rules, albeit AM’s wife has been refused admission as a spouse on three occasions and once as a visitor. Continue reading

Posted in Appendix FM, Article 14, Article 8, Court of Appeal, Human Rights Act, Immigration Rules, s 55 BCIA, Spouses | Tagged , , | 4 Comments

Court of Appeal on Children’s Duty

EV (Philippines) & Ors v Secretary of State for the Home Department (SSHD) [2014] EWCA Civ 874 (26 June 2014)

The Court of Appeal (Jackson, Lewison & Christopher Clarke LJJ) went for overkill in this case about the best interests of the child. Dismissing a Filipino family’s appeal, the court unanimously held that in the family’s appeal against a removal decision, the tribunal had been entitled to find that the need to maintain immigration control outweighed the best interests of the child despite finding that the best interests of the children concerned lay in continuing their education in the UK with both parents also remaining here. Expressing strong disagreement with the judgment, Colin Yeo thought that the court has impeached the established benchmark – i.e. ZH (Tanzania) v SSHD [2011] UKSC 4 – because the judges eerily accorded primary importance to the immigration status of parents and put the welfare of children second.

By doing so, the court found it acceptable to punish children for something they did not do; the approach is controversial because of all the fancy talk about children’s interests being primary. Consisting of mother (EV), father (BV) and three children (KrV, BV & KaV), the family (F) from the Philippines entered the UK on the basis of EV’s status as a work permit holder with the rest as dependants. Christopher Clarke LJ said at paragraph 2 that proceedings arose against a “chequered history”. Continue reading

Posted in Article 8, Children, Court of Appeal, Hale JSC, s 55 BCIA, Tier 2 | Tagged , , , , | 1 Comment

Who is Altaf Bhai?

Altaf Hussain Altaf Hussain, or Altaf Bhai as he is infamously known, used to be a Chicago cabby. But these days he means different things to different people. A British citizen, Mr Hussain leads an ethnically motivated political organisation claiming secular and progressive credentials; namely the notorious Muttahida Quami Movement (MQM). Despite allegations of his party’s wholesale involvement in target killings, extortion and torture, Altaf Hussain was nevertheless granted asylum in the UK for being the MQM’s Quaid-e-Tehreek (leader of the movement). On this score, despite his own British ex-wife and children, legendary all-rounder turned politician Imran Khan – who only last year accused the MQM of murdering his Tehreek-e-Insaf party’s Zahra Shahid Hussain (unrelated to Altaf) – condemns the UK for providing sanctuary to MQM criminals.

But could it be that the MQM’s British backers have finally decided to abandon their anti-Pakistan enterprise? As is well-known, Altaf Hussain was recently arrested for money laundering and then released on bail by British police. Altaf’s arrival into politics stifled the late Benazir Bhutto’s popularity in her home province of Sindh by pitting Karachi’s Urdu speaking population against her Sindhi dominated Pakistan Peoples Party (PPP). Continue reading

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Case Preview: R (Lord Carlile & Ors) v SSHD in Supreme Court

In Khomeinism: Essays on the Islamic Republic Ervand Abrahamian argued that populism, and not fundamentalism, toppled the Shah’s regime. Having visited Iran during the reformist Khatemi era, I can say that back then Iranians did crave democracy but were powerless to change their nation’s Velāyat-e-Faqīh style of government. Over clandestine glasses of Iranian brew, local friends I made explained that Khatemi was powerless to change the culture of state institutions – the police, judiciary, media etc. – and barbaric militias like the Pāsdārān and Basij would fight until the last bullet to maintain the original version of Hokumat-e-Eslami.

This case is about Iran. It also involves article 10 ECHR (freedom of expression) and is now in the process of being decided by the UK Supreme Court. The issue is whether – in ruling that the SSHD’s decision to prohibit Mrs Maryam Rajavi (“R”) from entering the UK was not a disproportionate restriction of the rights of Lord Carlile and other Parliamentarians (“P”, eminent cross-party members of the House of Lords and the House of Commons) to freedom of expression – the courts below erred in law because either: Continue reading

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Case C‑202/13 McCarthy: UK Unilaterally Suspending Free Movement

th-8This is the long-awaited opinion in relation to the reference to the CJEU made in R (McCarthy & Ors) v Secretary of State for the Home Department [2012] EWHC 3368 (Admin). Advocate-General Szpunar’s opinion relates to the scope of the powers granted to the UK by article 1 of Protocol No 20 (on the application of certain aspects of article 26 of the Treaty on the Functioning of the European Union to the UK and to Ireland) and article 35 of the Citizens’ Directive. Issues connected to the UK’s power to control and prevent abuse of its borders lie at the heart of the matter.

For the AG, a third-country national holding a residence card of a family member of a Union citizen issued by a Member State does not need to obtain a visa prior to entering another Member State. It is the first occasion on which the CJEU has been invited to give a preliminary ruling on article 35 (abuse of rights) of the directive and article 1 of the protocol (which redoubles the UK’s longstanding preservation of its control over its own border by not participating in the Schengen acquis whose signatories abolished border checks at the frontiers between them and reinforced controls at external borders). Continue reading

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Deportation Order Terminates ILR

George, R (on the application of) v The Secretary of State for the Home Department (SSHD) [2014] UKSC 28

Theresa May, who has vowed to cleanse the UK of the malaise of criminal foreigners, must be delighted with the Supreme Court’s decision in this case. The court held that revocation of a deportation order does not revive a criminal immigrant’s past indefinite leave to remain (ILR). Rather, the SSHD is free to decide afresh what leave to grant. Fitzroy George (G), a 30-year old from Grenada, entered the UK in 1995 and was granted ILR in 2000. Because of G’s criminality, the SSHD formed the view that his deportation was conducive to the public good. Apart from driving offences, G was convicted of supplying cocaine in 2002, for which he received three years in a Young Offenders’ Institution, and possession with intent to supply heroin and cocaine in 2005, for which he received four years’ imprisonment.

Despite G’s resistance, the SSHD succeeded in making a deportation order against him in 2008. He was notified accordingly but made a further application to revoke the deportation order contending that deporting him would breach his article 8 ECHR rights. (G and his partner from his school days lived apart but he had a relationship with his daughter who saw him frequently and occasionally stayed with him.) Continue reading

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