Welcome To The Jungle

Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 (20 November 2013)

It seems that the controversial jurisprudential saga of impenetrable jungle law has finally been settled. In unanimously dismissing these three appeals, the UK Supreme Court explained that the judiciary “must share some of the blame” (para 1). Lord Carnwath JSC also thought that the statutory language defied conventional analysis, was obscure, pointed in opposite directions and was faulty (para 35). Lord Mance JSC observed that the structure of appeals is about to be “reshaped” by the Immigration Bill and some of the Court’s conclusions will probably become “irrelevant” in the future (para 63).  

Facts

The appellants were Patel (an Indian), Alam (a Bangladeshi) and Anwar (a Pakistani).

Patel entered the UK as a working holiday-maker with his dependant wife; they had a son in the UK and tried to extend their visas by relying on article 8 ECHR and paragraph 395C of the immigration rules and the First-tier Tribunal dismissed their appeals. Continue reading

Posted in Article 8, ECHR, Immigration Rules, Pankina, Removals, UKSC | Tagged , , | 1 Comment

CJEU on the Qualification Directive, Homosexuality and Persecution

Joined Cases C-199/12, C-200/12, C-201/12, Minister voor Immigratie en Asiel v X, Y and Z v Minister voor Immigratie en Asiel

The status of homosexuals is an extremely fascinating aspect of asylum and human rights law. Even in the freedom of western society, it is only fairly recently that homosexual, transgender and bisexual individuals have achieved parity – albeit superficially – with heterosexuals. Geography aside, gay people can be found in abundance all over the world and are routinely victimised because of their sexuality. Ultimately we are all human and of course sexual expression is inextricably linked to selfhood.

In these Dutch cases, the Court of Justice of the European Union (CJEU) held that sexual orientation is a fundamental part of identity and people should not have to abandon their sexuality. Similarly, criminal laws specifically targeting homosexuals clearly single them out from the rest of society.

Continue reading

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Immigration Bill: Article 8 and Public Interest

The immigration bill has quite a lot to do with article 8 (right to respect for private and family life and one’s home and correspondence) of the European Convention on Human Rights. It is intended that the bill will speedily make its way through Parliament and become the Immigration Act 2014. Overall, the bill adds new provisions to existing primary legislation. As is well known, the scheme of the bill is such that it impacts upon removals, appeals, access to services and marriage and civil partnerships. That, of course, is a whole lot of article 8 to think about.

Although every part of the proposed legislation is important, if one were to choose a single clause in the bill and dwell on it, this might well be:

14. Article 8 of the ECHR: public interest considerations

Immigration Minister Mark Harper has prefaced the provision by accusing the courts of being “overgenerous” in article 8 cases. For him, Parliament and the public are “fed up” of criminals winning cases. Continue reading

Posted in Article 8, Automatic Deportation, Cases, Human Rights Act, Immigration Law, Removals | Tagged , , , , | 7 Comments

The Immigration Bill

Immigration Bill Make no mistake about it. Immigration is the burning issue in the UK’s political arena. In May 2013, in setting out the legislative agenda, Her Majesty had explained that the government will bring forward a bill – ensuring that the UK attracts people who contribute and deters those who do not – that further reforms the immigration system.

Just the other week, the Home Secretary Mrs Theresa May likened the immigration system to a “never-ending game of snakes and ladders”. She simultaneously renewed her pledge to clamp down on the abuse of human rights in immigration appeals. By reducing the grounds of appeals from 17 to 4 the existing number of 70,000 annual appeals against deportation could potentially be halved, she claimed.

Frustrated by characters like Abu Qatada – who on his homeward sojourn asked whether “Crazy May” would be on board? – “Deport foreign criminals first, then hear their appeals”, she said. In her typical style, Theresa May attacked the Human Rights Act 1998 because she believed that Article 8 (the right to a private and family life) of the European Convention on Human Rights was a “free for all” and that the law sided with “the criminals rather than the public.” In its 2015 manifesto for the general election, May’s party wants to include a commitment to scrapping the Human Rights Act. Continue reading

Posted in Article 8, Human Rights Act, Immigration Law, Immigration Rules, UKSC | Tagged , , , , | 2 Comments

Citizens’ Directive: Imprisonment and Permanent Residence

Nnamdi Onuekwere v Secretary of State for the Home Department [2013] EUECJ C-378/12 (03 October 2013)

This post looks at Advocate General Yves Bot’s recent opinion on Directive 2004/38/EC and the right of permanent residence. The opinion “carries no legal weight”. Nevertheless, as is the case with the vast majority of such opinions, it is likely that the Court of Justice of the European Union will adopt it.

I. Background

Nnamdi Onuekwere (O), a Nigerian, claimed to enter the UK in 1999. His Irish wife and him had two children. O was granted a 5-year residence permit as the spouse of a Union citizen. In 2000, O was sentenced to 9 months’ imprisonment, suspended for 2 years, for having sexual intercourse with a mentally ill patient at the hospital where he worked. Approximately 3 years later, in 2003, he was arrested for unlawfully facilitating another person’s entry into the UK. Continue reading

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Construing the Rules: High Court to the Rescue

Amin, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 2813 (Admin)

One of the worst things that can happen to any immigration subject is for their application to be declared “invalid”. The consequences of such a predicament are likely to be more debilitating for victims of domestic violence.

The Home Secretary says that she is committed to doing more for victims of domestic violence. But it is difficult to hold her immigration service, or even the tribunals, up to this promise. This case was about whether the defendant (D) Home Office’s refusal to treat the claimant (C) Amin’s application for indefinite leave to remain under rule 289 as valid was lawful. Continue reading

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Vive la France!

B & Anor, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 2281 (Admin)

Islam is in the news a lot. Muslims consider their faith to be a religion of tolerance but some of its faces are hardly that.

The West’s obsession with Muslims and how terrible we are does not help things either. But given that men enjoy a blanket exemption, I could never understand why some people think that “devout” Muslim women owe an obligation to cover their faces and figures?  

In the instant case, the claimants argued that because of the French law (La Loi No 2010-1192) that bans wearing (or forcing someone else to wear) the burka in public, removing a ten-year old asylum seeking Muslim girl (M) and her father (F) from the UK to France to have her refugee status determined there would amount to degrading treatment contrary to Article 3 (anti-torture and degrading treatment) and Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights. Hickinbottom J, however, found no evidence that France intended to degrade M. The court also held that M would not be caused serious distress, and her potential treatment in France did not come close to approaching the high threshold required to engage Article 3 ECHR. Continue reading

Posted in Article 3, Article 8, Article 9, Asylum, Children, ECHR, Judicial Review, UKSC | Tagged , , , , | Leave a comment