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
This 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  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
George, R (on the application of) v The Secretary of State for the Home Department (SSHD)  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
Mohammed v Ministry of Defence & Ors  EWHC 1369 (QB) (02 May 2014)
In the wake of the September 11 attacks, stability in Afghanistan became a priority for world leaders. But before all that happened, America, Britain and Saudi Arabia poured arms and money into Afghanistan through Pakistan to wage a jihad against the Soviet Union. After the Soviets withdrew, the chickens came home to roost and the same jihadis – who transformed into Al Qaeda and the Taliban etc. – decided to have a go at the West and its allies. Since the fall of the Taliban in late 2001, UK forces have been involved in the International Security Assistance Force (ISAF) which operates in Afghanistan with the Afghan Government’s approval under the United Nations Security Council’s mandate.
This case concerned Serdar Mohammed (SM) who was detained in an ISAF raid for being a suspected Taliban commander. Mr Justice Leggatt said that his masterly judgment – exceeding 400 paragraphs – was the bare summary only. SM claimed to be a farmer irrigating his fields near his home in northern Helmand when he was captured. His detention for interrogation beyond 96 hours was authorised by UK ministers; he was interrogated over a further 25 days. Continue reading
Secretary of State for the Home Department (SSHD) v JR (Jamaica), R (on the application of)  EWCA Civ 477 (16 April 2014)
This case tells yet another extraordinary tale of winning against impossible odds. The hearing took place on April Fools’ Day and the Court of Appeal (Kay and Lewison LJJ, Sir Stanley Burnton) unanimously dismissed the SSHD’s appeal. And, of course, instructed by the Lambeth Law Centre, Colin Yeo saved the day for JR. But the court explained at para 17 that this case turned “on its specific and quite unusual facts” and “should not be seen as providing more general succour to others convicted of grave crimes.”
JR is a 29-year old Jamaican homosexual who arrived in the UK at age 15 in December 2000 on a visitor’s visa. Rather than leaving the UK after an extension of his visit visa was refused, within a year of his arrival JR ended up getting involved in a homicide incident. He was convicted and sentenced to serve at least eight years and two months’ imprisonment and recommended for deportation. On appeal, JR’s sentence was reduced to six years and two months and the recommendation to deport him was set aside. Continue reading
SN, R (on the application of) v Secretary of State for the Home Department  EWHC 1111 (Admin) (24 February 2014)
This decision involves judicial review, asylum seeking, fresh claims, certification and the politically plagued postcolonial country of the Republic of Congo (Congo-Brazzaville). In testing times for judicial review, especially in the field of immigration law, this case demonstrates that resilient people can still win against the odds.
The instant court recalled that this judicial review claim was brought with Moore-Bick LJ’s permission after an oral hearing as regards renewal. HHJ Jeremy Richardson QC prefaced his extempore judgment with the history of the application: prior to permission being granted, Sir Stanley Burnton refused permission on the papers in the Court of Appeal; similarly Wilkie J refused permission on the papers in the Administrative Court and HHJ Langan QC did the same at an oral hearing. Continue reading
Ahmed v Secretary of State for the Home Department  EWHC 300 (Admin) (14 February 2014)
In this case Mr Justice Green held that it is important to avoid a “tick box” mentality in respect of article 8 of the European Convention of Human Rights (ECHR) when considering the exercise of the residual discretion – left open by the immigration rules and the partner and ECHR article 8 guidance of October 2013 – as to whether there were exceptional circumstances justifying a grant of leave to remain. Rather than simply ticking boxes, an overall view needs to be formulated in relation to whether there might be a good arguable case of disproportionality if leave to remain is not granted.
As explained by the court in the very first paragraph, the instant judicial review application concerned spousal rights and it concentrated on:
- The nature and operation of the so-called two part test for the evaluation of article 8 type considerations within the context of immigration law;
- Examining the scope of the concepts of “precarious” rights and “insurmountable obstacles”; and
- Addressing the relevance of “inadvertent errors” on the part of applicants as an article 8 consideration.