Government prevails over sexual offender in Court of Appeal

Secretary of State for the Home Department v Starkey [2021] EWCA Civ 421 (26 March 2021)

In the SSHD’s appeal against a decision of the UT overturning a deportation order made in respect of Mr Deon Starkey, the Court of Appeal decided that in determining appeals which turned on whether there were very compelling circumstances within the meaning of section 117C(1) of the Nationality, Immigration and Asylum Act 2002 which meant that a convicted sex offender who was suffering from paranoid schizophrenia should not be deported to South Africa, both tiers of the Tribunal had erred in their consideration of the evidence as to the difficulties that the offender might face in terms of securing work and appropriate medical treatment in South Africa. Mr Starkey suffered from paranoid schizophrenia which was controlled by a drug of last resort, Clozapine. Other drugs had been tried over the years, but had not controlled his symptoms. Those taking Clozapine need regular blood tests to monitor their white-cell count. He was 45 years old. He arrived in the UK a young child aged two, although the Home Office could not verify his arrival from its own records. The evidence suggested that he had been living in the UK since 25 October 1977 and was taken into care in 1982. He stayed in care until he was an adult. He had applied for indefinite leave to remain which was granted in February 2001. Mr Starkey was convicted of two counts of indecent assault on a female under 14, three counts of gross indecency with a child under 16, and one count of rape of a female who was less than 16 years old.

In 1987 he was convicted of three counts of burglary/theft and was given a supervision order for two years. He was sentenced to eight years’ imprisonment and he was required to register on the Sex Offenders Register for life, and banned from working with children for life. He was also kept in detention under immigration powers after the Parole Board authorised his release and a decision was served on him which wrongly stated that he only had an out-of-country right of appeal. He was deported to South Africa in 2017 but was not admitted since his escorts had not brought an emergency travel document which had been issued to him and he was then admitted to the UK for the necessary documents to be obtained. Removal directions were set in 2018 but cancelled when he was admitted to hospital. Earlier on in his life, he had been diagnosed with paranoid schizophrenia after a breakdown. He said that he had serious issues with his mental health over the years. They peaked in about 2009, when he tried to commit suicide. Voices in his head induced him to harm himself. He slashed his wrist once, in front of his mother, was taken to hospital but quickly discharged. The voices got worse, and he again tried to take his own life and he jumped off a bridge into the River Thames. The SSHD wished to deport him and argued that he was 45 years old and could live an independent life in South Africa and reintegrate there as nothing prevented him from doing so.

Terror trio triumphant in citizenship deprivation appeal

In C3, C4 and C7 v SSHD, the Special Immigration Appeals Commission (SIAC) agreed with the point that C3, C4 and C7 had no other nationality other than that of the UK and so the SSHD was not able to deprive them of their British citizenship under section 40(2) of the British Nationality Act 1981. In distinction to R (Begum) v SIAC [2021] UKSC 7, discussed here, the issues in the instant proceedings were not connected to whether the SSHD should have taken the decisions that she did, but instead whether those decisions were legally open to her. C3 was born in the UK in 1990 and was deprived of her British citizenship. Further, both of her parents were born in present day Bangladesh but her father arrived in the UK in 1957 as a Pakistani citizen but got British citizenship and lost his Pakistani citizenship. C3’s mother arrived the UK in 1987 and was issued her first British passport in 1990 and C3 was a British citizen under section 1(1) of the British Nationality Act 1981 as she was born in the UK to a British citizen father. C4 was born in the UK in 1992 and was 27 when deprived of her British citizenship. Her father was also born in present day Bangladesh in 1940 and moved to the UK in 1965 and got settled status but did not acquire British citizenship. Her mother was also born in present day Bangladesh in 1951 and her mother moved to the UK in 1990 and was granted British citizenship in 2002. C7 was born in Bangladesh in 1978 and was a dual British-Bangladesh citizen, he was a British citizen since his father was a British citizen. He was a Bangladeshi citizen owing to his birth there. The trio travelled to Syria to join ISIS/ISIL and were stripped of their British citizenship.

The territory of present day Bangladesh was a part of British India until 14 August 1947 when it became East Pakistan which then later became the sovereign state of Bangladesh on 26 March 1971. Notably three Bangladeshi legal instruments were relevant to these proceedings, first of all the Pakistan Citizenship Act 1951 which was Pakistani legislation written in English and section 5 (citizenship by descent) was important. For example, one of the issues in C3’s case was whether the amendment (in 2009) to acquire Bangladeshi citizenship through matrilineal descent under section 5 was retrospective. Another piece of primary legislation was the Bangladesh Citizenship (Temporary Provisions) Order 1972 (as amended). The Government of Bangladesh exercised the power conferred by article 2B(2) of the 1972 Order by giving an Instruction, SRO No. 69/2008, in the Bangla language and no official version accompanied it (the most authoritative translated version in English was approved in E3 and N3 v SSHD [2019] EWCA Civ 2020). Overall, C3 submitted that she was never a Bangladeshi citizen by descent and that it was irrelevant even if she was as she lost her Bangladeshi citizenship upon turning 21. C4 and C7 made a like submission which rested on three strands supported by expert evidence.

Local authority can apply for EUSS settled status for children in care without court approval

W and Re Z (EU Settled Status for Looked After Children) [2021] EWHC 783 (Fam) (31 March 2021) 

In these proceedings the court was required to determine whether local authorities needed its authorisation to apply for immigration status or passports for children subject to a care order. The issue was whether the local authorities should exercise parental responsibility to make applications under the European Union Settlement Scheme (EUSS). Mr Justice MacDonald held that a local authority is generally entitled to apply for settled status under the EUSS on behalf of a child subject to a care order or placement order pursuant to the parental responsibility conferred on it by section 33(3) of the Children Act 1989 and section 25 (parental responsibility) of the Adoption and Children Act 2002. The local authority did not need to seek the court’s authorisation before making such an application, even where the child’s parents objected or could not be located in order to give consent. The issue arose in the context of the EUSS and its application to four children in the UK. In order for EU nationals to remain in the UK after Brexit, they must apply for settled status under the EUSS before 30 June 2021. Survey results indicated that the total number of looked after children and care leavers eligible to apply under the EUSS was 3300, of which 2080 were the subject of an interim care order, a care order or a placement order. Further, the survey indicated that of those 3300 eligible children and young people, 1520 applications were received. 

Of the 2080 eligible children and young people in respect of whom there was in force an interim care order, a care order or a placement order, 890 had had an application to the EUSS made on their behalf by a local authority. The four children in these proceedings, were all born to Polish parents. The first two children were subject to final care orders, and a placement order was made in respect of one child. Their passports had been lost. The second two children were to be placed with their maternal great cousin under a special guardianship order and the Polish passport office required the written consent of all those with parental responsibility, or a court order replacing such consent, before a passport could be issued for the children. In both cases, the parents refused consent. The court was told that the Home Office is now repeating the survey in order to ascertain what further progress has been made in respect of applications to the EUSS for looked after children and other children with whom local authorities are concerned who are eligible to apply under the EUSS. In the first matter, MacDonald J was concerned with the welfare of PW, born in 2009 and aged 11 and NW, born in 2011 and aged 9. Warwickshire County Council applied for orders under the inherent jurisdiction consenting to the issue by the Polish Embassy of new passports for PW and NW, permitting the local authority to apply for EU settled status under the EUSS for each of the children. In the second case, the court was concerned with the welfare of DZ, born in 2007 and now aged 13 and MZ, born in 2008 and now aged 12. 

Refusal of ILR but grant of leave means no right of appeal

R (M Aleem Mujahid) v First Tier Tribunal (Immigration and Asylum Chamber) [2021] EWCA Civ 449 (31 March 2021)

These proceedings turned on the question where a person who is in the UK makes an application for indefinite leave to remain (ILR) which is to be treated as a “human rights claim” within the meaning of section 113 of the Nationality, Immigration and Asylum Act 2002 and the SSHD decides to refuse ILR but grants the individual limited leave to remain, does she “refuse a human rights claim” within the meaning of section 82(1)(b) of the Act, with the result that the individual has a right of appeal to the FTT. Significantly, the Court of Appeal has held that the Upper Tribunal (President Lane) was right to answer this question in the negative and rightly dismissed Mr Mujahid’s judicial review proceedings, by which he sought to challenge the FTT’s decision that no right of appeal to the FTT existed in the specified circumstances. Mr Mujahid was a Pakistani citizen who arrived in the UK in October 2006 as a student and extended his leave as a Tier 1 (Post-Study) Work Migrant and a Tier 1 (General) Migrant until August 2016. He applied for ILR on the basis of Tier 1 (General) but subsequently varied his application to an ILR application on the basis of 10 years’ long residence. The letter accompanying Mr Mujahid’s application said that he had a wife, adult son and minor daughter resident with him in the UK who were all Pakistani citizens and he claimed to have very strong private and family life in the UK.

In stating all his reasons for wishing to stay in the UK, Mr Mujahid made two statements in the following terms “I accept that where I do not qualify for indefinite leave to remain but fall for a grant of limited leave, my application will be treated as an application for limited leave and I may be asked to pay an immigration health surcharge” and “I accept that, in the event that I do not meet the requirements for indefinite leave, my application may also be considered as an application for limited leave to remain and understand that the Secretary of State will not grant a period of limited leave unless the requirement to pay an immigration health charge … has been met.” The decision-maker responded to the application in February 2018 stating that he did not qualify for ILR but that he would fall to be granted limited leave to remain of 30 months owing to exceptional circumstances if he made a valid application for such leave. The exceptional circumstances justifying the grant of limited leave were stated to be that his daughter had resided in the UK for over seven years. The decision-maker said that the SSHD was now treating his application as an application for limited leave to remain which would be treated as invalid if he failed to pay the immigration health surcharge of £500 within 10 days of the date of the response letter. Once he had paid it, his application would be treated as a valid application for limited leave to remain and he would be granted 30 months limited leave to remain in the UK. Indeed, in March 2019 he received that leave and was advised that he was not entitled to appeal the decision as section 82 did not provide a right of appeal to a person with leave. 

Upper Tribunal: Tanveer Ahmed remains good law

QC (verification of documents; Mibanga duty) [2021] UKUT 33 (IAC) (12 January 2021)

In a panel consisting of President Lane and Vice President Ockelton, the Upper Tribunal has held as to verification of documents that the case of Tanveer Ahmed [2002] UKIAT 00439 remains good law on the correct approach to documents adduced in immigration appeals. Moreover, as regards the duty under Francois Mibanga v SSHD [2005] EWCA Civ 367, the “Mibanga duty”, credibility is not necessarily an essential component of a successful claim to be in need of international protection. Where credibility has a role to play, its relevance to the overall outcome will vary, depending on the nature of the case. The appeal concerned two related issues. The first concerned the circumstances in which the SSHD may have an obligation to make enquiry in order to verify the authenticity and reliability of a document; and the consequences of her not doing so. The second involved the nature of the obligation on judicial fact-finders to consider the evidence before them “in the round”. QC, the appellant was a Chinese citizen born in 1979 who had arrived in the UK in February 2014. He claimed asylum in October 2018, following his arrest. But on 19 March 2019, his protection claim was refused. He advanced two discrete reasons to be in need of international protection before the FTT. His family home had been demolished in 2009 by the Chinese authorities, in order to build a new road. Him and his father were beaten when they sought to resist the acquisition of their property.  

In the FTT, he advanced two discrete reasons to be in need of international protection. He said his family home was demolished in 2009 by the Chinese authorities, in order to build a new road. Him and his father were beaten when they sought to resist the acquisition of their property. His father had a heart attack and died, after which his mother committed suicide. When he sought compensation from the authorities but was beaten by them and his collar bone broken. QC claimed he was living in another area of China in April 2010 where he was introduced to Tibetan Buddhism. He attended public events recounting the cruel treatment and injustice perpetrated by China on the Tibetan people. He said when Chinese authorities raided the premises in which he was living, they arrested his friend but he managed to hide himself. He said that the Chinese authorities were now aware that he is a Tibetan Buddhist but he said he fled China as he feared what might happen to him as a Tibetan Buddhist who supports Tibetan independence. But in his screening interview in October 2018, he did not refer to his involvement with Tibetan Buddhism or support for Tibetan independence. In his witness statement of 25 January 2019, he had stated “I am a Tibetan Buddhist” but failed to answer questions about Tibetan prayer flags, confusing a central Tibetan Buddhism method of meditation with the colours of the Tibetan flag. QC’s papers contained numerous translated documents, including an item which purported to being an arrest warrant issued in March 2014. 

Priti Patel’s pathetic plan to fix the immigration system

The controversial policy statement on the government’s New Plan for Immigration CP 412 (March 2021) claims that “in the year ending September 2019, 62% of UK asylum claims were made by those entering illegally – for example by small boats, lorries or without visas.” Priti Patel introduced her pathetic new plan by glorifying the UK’s “proud history of being open to the world” but reiterated her hard line that the UK has taken back control of its legal immigration system by ending free movement and introducing a new points-based immigration system allowing it to decide who can enter based on the work skills people have to offer, instead of their passport. Patel also said that the new Hong Kong British National (Overseas) route creates a new pathway to citizenship for over five million people. The changes have a threefold objective (i) to increase the fairness and efficacy of the system so that it can better protect and support those in genuine need of asylum, (ii) to deter illegal entry into the UK, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger, and (iii) to remove more easily from the UK those with no right to be here. Patel is arguing that if left unchecked, illegal immigration puts unsustainable pressures on public services and is against the UK’s moral interest, as it means people are put in the hands of ruthless criminals who endanger life by facilitating illegal entry via unsafe means like small boats, refrigerated lorries or sealed shipping containers. 

The new plan is divided into numerous chapters. Chapter one sets out an overview of current system and Chapter two sets out protecting those fleeing persecution, oppression and tyranny. Chapter 3 talks about ending anomalies and delivering fairness in British nationality law. Chapter 4 sets out disrupting criminal networks and reforming the asylum system and chapter 5 speaks about streamlining asylum claims and appeals. Chapter 6 speaks about supporting victims of modern slavery and chapter 7 discusses disrupting criminal networks behind people smuggling and chapter 8 concerns enforcing removals including foreign national offenders. Chapter 9 relates to engagement and consultation. All this makes fantastic headlines for the Home Office which is one of the most inefficient bureaucracies of all time and delivers extremely poor value for money and has a pathetic standard of service which is much worse than a third world country. But the government is keen to stress that its cunning plan will mark a step-change in its posture and will toughen its position against illegal entry and the criminals that enable it. The UK says it will take steps to discourage asylum claims via illegal routes citing Denmark as a positive example. The policy statement is accompanied by an engagement and consultation process that will run for 6 weeks from 24 March 2021 and the consultation ends on 6 May 2021. 

Solicitors named and shamed in another Hamid judgment

R (DVP & Ors) v The Secretary of State for the Home Department [2021] EWHC 606 (Admin) (17 March 2021)

Exercising the R (Hamid) [2012] EWHC 3070 (Admin) jurisdiction, Dame Victoria Sharp PQBD and Tipples J have held that solicitors acting for asylum seekers in relation to their accommodation had significantly abused the urgent applications procedure by not disclosing the information required by Form N463, failing to identify why the application was urgent, purporting to act for residents who had not instructed them, and breaching their duty of candour by failing to disclose that their clients had been transferred out of the accommodation by the time the urgent application was made. The court was considering a reference made under the Hamid jurisdiction by Swift J who had identified significant concerns about the conduct of the claims by Duncan Lewis LLP following an urgent application that had come before him on that day in the Administrative Court, which related to six different claims for judicial review, all of which had been issued in materially identical terms. Dame Victoria Sharp PQBD and Tipples J, the Divisional Court, stressed that Administrative Court often deals with urgent applications which is a very important part of its work in the public interest. A High Court judge is always available to hear applications during court hours in the week, in order to deal only with urgent applications. Cases that need to be dealt with out of normal court hours on an urgent basis, including weekends, public holidays and vacation, are dealt with by the High Court judge on “out of hours” duty.

The Divisional Court identified what is required when an urgent application is made to the Administrative Court, and what actually happened in this case. Thus, they addressed the specific issues to which this case gave rise and their conclusions in respect of them quite shortly. It was apparent that there was a significant abuse of the “urgents” procedures in this case. DVP, CBW, MDE, RAM, ASH and BMS were asylum seekers accommodated at Penally Camp in Pembrokeshire, a former military barracks. The claimants’ solicitors (Duncan Lewis) issued pre-action protocol letters to the SSHD requesting their transfer to other accommodation. On 29 October, five of the claimants were transferred out of the camp. On 6 November, the SSHD replied that the claims were misconceived. But Duncan Lewis made further demands for “all asylum seekers” to be transferred out of the camp, challenging the SSHD’s decision to use the camp as accommodation for asylum seekers. On 18 November, the sixth claimant was transferred out of the camp. Further, the SSHD challenged Duncan Lewis’s standing in relation to the other residents of the camp. On 23 November, Duncan Lewis indicated their intention to issue judicial review proceedings on the basis of the SSHD’s alleged failure to review the accommodation arrangements. They completed a form N463 for urgent applications in respect of all six claims but they failed to disclose that the claimants had been transferred out of the camp.

Procedural fairness: ECO must put suspicions of dishonesty to applicant before refusal says Court of Appeal

R (Wahid) v Entry Clearance Officer [2021] EWCA Civ 346 (25 February 2021) 

Following the approach in Balajigari v SSHD [2019] EWCA Civ 673 (discussed here), the Court of Appeal has held that it is arguable that procedural fairness required the entry clearance officer (ECO) to put suspicions of dishonesty to the entry clearance applicant, one Mr Wahid an advocate of the High Court of Sindh, and that UTJ Frances got it badly wrong by thinking that permission should be refused. In 2009, then 21 years old, Mr Wahid was convicted on his guilty plea entered at the first opportunity to a driving offence. He had permitted a friend to drive his car without a licence or insurance. He received a short driving ban and a fine and penalty, both of which were duly paid. He completed his LLB that year and then made an in-time application for further leave to remain as a student. He studied and completed his LLM in March 2011. He was then granted further leave as a student and was then granted a Tier 1 (PSW) migrant until 4 January 2014. While he was travelling from London to Pakistan in July 2012, security officers at Heathrow Airport found a blunt Spanish butterfly knife on a keychain in his bags which was a prohibited item. Security staff apologised when explaining to Mr Wahid that the police needed to be called as a matter of protocol. He was taken to a police station and interviewed. He was not charged. He said that he was informed that no further action would be taken. 

The police record database suggested that he was, in fact, cautioned for the butterfly knife incident “for possessing dangerous articles on aerodrome”. No written caution, signed or unsigned, (or any copy of such a caution) was submitted in evidence and he left the UK in 2012. In January 2020, Mr Wahid submitted an application for a visitor visa to attend his wife’s graduation ceremony in London. He was asked, amongst other things, whether he had ever had a criminal conviction in the UK or a penalty for any driving offence or “a caution, warning, reprimand or other penalty”. He answered the question by declaring the driving conviction but made no reference to the butterfly knife incident or to any caution. By sending the form he declared its contents to be true to the best of his knowledge and belief. He said that he was wholly unaware of any caution in respect of the butterfly knife incident at the time of his application in 2020. By a decision dated 5 February 2020, the ECO refused the visa application under paragraph V3.6 of Appendix V of the Immigration Rules on the basis that Mr Wahid had made false representations. The ECO said records showed that he also received a police caution on 6 July 2012 for an unrelated incident to that which he declared. The ECO said it is not clear why he would declare details of the motoring offence but not declare a subsequent police caution. The application was hence refused under V3.6 of the Immigration Rules as Mr Wahid clearly intended to conceal his personal circumstances and his previous police caution in the UK. The ECO was satisfied to a high degree of probability that this false representation was not an innocent mistake and constituted an intention to deceive. 

Abduction and asylum: Supreme Court holds child named on parent’s asylum application is protected from refoulement

G v G [2021] UKSC 9 (19 March 2021) 

The Supreme Court has held that a child named as a dependant on her parent’s asylum claim who could objectively be understood to have made a request for international protection had protection from refoulement pending the determination of that application with the result that until then a return order in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 cannot be implemented. The appeal turned on the relationship of the Hague Convention, an international agreement incorporated into UK law which enables the prompt return of a wrongfully abducted child to his or her country of habitual residence, to asylum law. An eight-year-old girl, “G” was born in South Africa where she has been habitually resident all her life. But in March 2020, G’s mother, the appellant, wrongfully removed G from South Africa to England, in breach of G’s father’s rights of custody. G’s father, the respondent, applied for an order under the Hague Convention for her return to South Africa. But the mother opposed his application on the ground, in particular, that there is a grave risk that return would expose G to physical or psychological harm or otherwise put her in an intolerable situation. G’s mother identifies as lesbian, alleging that after coming out and separating from the father her family subjected her to death threats and violence. On her arrival in England, the mother applied for asylum on the basis of her fear of persecution by her family. 

G did not make an asylum application in her own right. However, her mother put her as a dependant on her asylum application. Asylum law is constructed on the principle that the refugee is protected from being returned to the country in which she has a well-founded fear of persecution and the unlawful return of a refugee is known as “refoulement”. The core question in the appeal was whether G was protected from refoulement as a result of being listed as a dependant on her mother’s asylum application, such that she cannot be returned to South Africa pursuant to the Hague Convention proceedings until the asylum application is determined. If so, the point raised the question of how those proceedings and the asylum claim can be coordinated. An asylum claim can take months, if not years, to resolve, and the Hague Convention requires the prompt determination of an application for the return of an abducted child (which means, in this context, within six weeks). There is thus a real risk that by the time the asylum claim has been determined, the relationship between the child and the left-behind parent will be harmed beyond repair. There is also a real risk in cases of this type that the taking parent will seek to achieve that objective by making a sham or tactical asylum claim. All of the articles of the 1980 Hague Convention relevant to this case, save for article 20, were expressly incorporated and given the force of law in England by section 1(2) of and Schedule 1 to the Child Abduction and Custody Act 1985. 

SSHD succeeds against BNO in Court of Appeal

The Secretary of State for the Home Department v Tariq [2021] EWCA Civ 378 (16 March 2021) 

In these proceedings the Court of Appeal held that Helen Mountfield QC, sitting as as a Deputy High Court Judge of the Administrative Court, erred in holding that Mr Tariq had met the requirement in section 4B(2)(c) of the British Nationality Act 1981, thereby entitling him to have British citizenship, because Mr Tariq renounced his Pakistani citizenship through inaction after the relevant day. Proceedings were connected to the SSHD’s decision to refuse Mr Tariq’s application for registration as a British citizen under section 4B of the 1981 Act. Mr Tariq was born in Khanewal, which is in Pakistan’s Punjab province, on 3 January 1989. His parents were Pakistani nationals at the time of his birth and his mother was born in Hong Kong, she was issued a British National (Overseas)(BNO) passport on 10 December 1996 and a further BNO passport on 21April 2008. She became a British citizen. On 9 March 1997, aged eight, Mr Tariq also acquired BNO status and was issued further BNO passports on 26 February 2003, aged 13, and 4 June 2007, aged 18. Mr Tariq was 32 at the time of these proceedings and had been lawfully resident in the UK since the age of 16. He also has a British wife and a British child. On 29 June 2010, aged 21, he applied to register as a British citizen for the first time. His application was refused on 1 September 2010. 

The basis of the refusal was that Mr Tariq held another nationality, i.e. a dual Pakistani-British nationality, which under the provisions of section 4B of the 1981 Act precluded him from acquiring British nationality. The refusal of 1 September 2010 was reconsidered and upheld on 24 September 2010. On 3 March 2014, an application was made to find that Mr Tariq was a “stateless” person. This application was refused on 4 March 2014. Then on 8 September 2016 Mr Tariq reapplied to register as a British citizen under section 4B of the 1981 Act. In support of his application, he produced a letter from the Pakistani Consulate in Birmingham dated the 29 June 2016 which stated that as his mother assumed BNO citizenship and “by default her Pakistani citizenship was cancelled as per the Pakistani Citizenship Act 1951” and attached correspondence from the Pakistani Consulate in Hong Kong SAR dated 22 July 2011 to that effect. The letter of Birmingham Consulate said this about his status “please note that as a corollary his citizenship was also cancelled when he assumed BNO Passport. Therefore he is not entitled to possess a Pakistani travelling document.” On 21 May 2018, Mr Tariq’s second application for British naturalisation was refused on the basis that the requirements under section 4B of the 1981 Act were still not met. This led to judicial review proceedings in which Mr Tariq succeeded at first instance but which he lost in the Court of Appeal. 

Government can retain passport without removing citizenship

R (Xhelilaj) v Secretary of State for the Home Department [2021] EWHC 408 (Admin) (24 February 2021)

Mr Edmir Xhelilaj, a British citizen whose stated place of birth is now in the Republic of North Macedonia, sought judicial review of the SSHD’s refusal to return his British passport to him. The court held that the SSHD was entitled to withhold a person’s British passport where she had shown substantial, well-founded and cogent reasons for challenging whether he had established his true identity. The fact that the SSHD made a decision not to remove his British citizenship did not prevent her from raising the issue of identity as regards his passport and these decisions were distinct and different in nature. Mr Xhelilaj, who was of Albanian ethnicity, had stated that he was born on 20 January 1986 at Sells Tetova in the Socialist Republic of Macedonia, a part of the former Republic of Yugoslavia. He entered the UK on 14 August 2001. In October 2001 he sought asylum. This was refused, but exceptional leave to remain was granted, and on 21 December 2005 he was granted indefinite leave to remain. Later he applied for naturalisation as a British citizen, and this was granted on 1 September 2010. He applied for a British passport on 15 September 2010 and was asked to attend an interview to confirm his identity. On 5 October 2010 a British passport (no 466493570) was issued to him. In 2018, he applied for a passport for his son and provided his own passport in support. 

The SSHD became concerned about Mr Xhelilaj’s identity and thus requested his birth certificate and his solicitors stated that he was born in Macedonia, that he had no birth certificate and that such documentation was unobtainable because of the turmoil caused by civil war. The decision-maker noted extensive travel to Albania by Mr Xhelilaj and a lack of corresponding stamps in his British passport, raising concerns that he might have another passport. The SSHD decided to retain his British passport and notified him that she was considering depriving him of his British citizenship as he obtained it by giving false information. That consideration was delayed and Mr Xhelilaj challenged the delay via judicial review. The matter was resolved by consent when the SSHD decided not to deprive him of his citizenship as his case did not fall within the policy on deprivation and nullity of British citizenship. However, she still refused to return his passport, on the basis that his identity remained in doubt. Mr Xhelilaj submitted that the decision to retain his passport was (a) unreasonable given that the SSHD had not removed his citizenship (b) prevented by issue estoppel owing to of the citizenship decision, and (c) contrary to his rights under article 8 of the ECHR. As held in R v SSFCA ex p Everett [1989] 1 QB 811 and R (XH and AI) v SSHD [2017] EWCA Civ 41, the grant/withdrawal of the passport is an exercise of the Royal Prerogative but the High Court has jurisdiction to review such a decision.

Appendix FM: SSHD cannot push parent into partner route

R (Khattak) v Secretary of State for the Home Department (“eligible to apply” – LTR – “partner”) [2021] UKUT 63 (IAC) (23 February 2021

Granting judicial review, the UT has held that an applicant is “eligible to apply for leave to remain as a partner” within the meaning of paragraph E-LTRPT.2.3 of Appendix FM only if it is readily apparent from the information contained in their visa application and any information available to the SSHD that they meet the autonomous definition of the term “partner” in GEN.1.2. of Appendix FM unless the route under which the application is being made clearly provides for a different meaning of “partner”. The facts of this case were not disputed. Mr Waleed Ahmad Khattak was a Pakistani national who married Aliya Ahmad, a British citizen, in August 2013 and Mr Khattak was granted entry clearance to the UK as her spouse in January 2015, with leave valid until 14 October 2017. He arrived in the UK in January 2015. Ms Ahmad gave birth to their child in October 2015 but their marriage however ended with a divorce on 26 August 2016 and Mr Khattak’s entry clearance was consequently curtailed in November 2016 and expired on 15 January 2017. In December 2016 he applied for leave to remain (LTR) under the 5-year parent route, the requirements of which are set out in Appendix FM of the Immigration Rules. The decision-maker was satisfied that Mr Khattak met the requirements of paragraphs R-LTRPT.1.1 (a), (b) and (c) and, on 10 December 2016, he was granted LTR for a period of 30 months ending on 30 June 2019.

In May 2017 he become involved with Razia Begum, a British citizen, and they began to cohabit in December 2017 and she gave birth to their child on 20 November 2018. On 29 June 2019 the applicant applied for further LTR as a parent of a British citizen child. The application was principally based on his continuing relationship with his eldest child. The decision-maker determined in a decision dated 1 October 2019 that he failed to meet the requirements for a grant of leave under the 10-year partner route under paragraphs R-LTRP.1.1.(d) of Appendix FM because his partner was unmarried and he did not provide 2 years evidence of co-habitation prior to the application. Mr Khattak had failed to meet the requirements of GEN.1.2. of Appendix FM of the Immigration Rules. The decision made no reference to Mr Khattak’s relationship with his eldest child or to the 5-year parent route set out in Appendix FM. After a reconsideration requested by Mr Khattak on 9 October 2019, the decision-maker acknowledged that he had previously been granted LTR under the 5-year parent route to settlement but stated that his circumstances, as detailed in his June 2019 application and supporting documents, had changed.

The new graduate route and beyond

March’s Statement of changes to the Immigration Rules: HC 1248 is the first set of changes to the Immigration Rules for this year. It introduces the highly touted Graduate Route. HC 1248 makes changes to the Skilled Worker Route, the EU Settlement Scheme, the Global Talent Route and also makes numerous other changes that will be implemented from 1 April 2021. The Graduate Route was announced in September 2019 and it is a new route for foreign students who have successfully completed an eligible course as a student at a student sponsor which is a higher education provider with a track record of compliance. It is a reinvention of the Post Study Work visa. The Home Office says that the visa improves the UK’s offer to new foreign students considering to study in the UK, by providing students who successfully complete an eligible two year course (or three years in the case of doctorates) in the UK, during which time they can work or look for work at any skill level. Applications must be made from the UK. applicants must have current permission as a Student or under Tier 4. They must not have previously held permission on the Doctorate Extension Scheme (DES), or the Graduate Route. Notably, except where periods of overstaying can be disregarded in certain limited circumstances as set out in the Immigration Rules, the suitability requirements will apply, and criminality, misconduct, and breaches of immigration law will disqualify someone from being granted permission on the route. 

Applicants must have successfully completed the course of study undertaken during their most recent grant of permission as a Student (which includes permission under Tier 4), and their sponsor must notify the Home Office of this before the application is made. The course needs to result in an award of bachelor’s/postgraduate UK degree, or a professional course requiring study at UK bachelor’s degree level or above, in a reserved activities profession that is regulated by UK law or UK public authority. Changes to a course that are permitted under the Student Route will not disqualify applicants from being granted permission if the qualification gained still meets the qualification requirement. Those with sponsorship to have a role as a Student Union Sabbatical Officer following the completion of an eligible qualification in their most recent grant of permission to study will also be eligible to apply under this route. Study on an eligible course must have happened in the UK for a minimum period which is based on the total length of the course. For the persons who have completed a course lasting 12 months or less, the whole course must have been in the UK. Those on courses lasting longer than 12 months will need to have been granted permission for at least 12 months as a student and have spent that time studying in the UK. If distance learning has occurred outside of the UK as a result of Covid-19, students will be eligible for the route, depending on the start date and the date of their entry to the UK to complete their course. Successful applicants will be permitted to work full time at any skill level.

Failure to provide legal aid advice to immigration detainees in prison is unlawful

R (SM) v Bail for Immigration Detainees [2021] EWHC 418 (Admin) (25 February 2021)

In these proceedings, Swift J held that the failure to give immigration detainees held in prison access to publicly funded legal advice to an extent equivalent to that available under the Detained Duty Advice Scheme (DDAS) to immigration detainees held in an immigration removal centre (IRC) amounted to discrimination within to article 14 of the ECHR. The DDAS was established by the Lord Chancellor in exercise of his powers under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) and the issue was whether the Lord Chancellor had acted unlawfully by failing to make similar provision for those detained under Immigration Act powers who are held in prisons? SM the claimant contended that the lack of provision equivalent to the DDAS for Immigration Act detainees held in prison amounted to unlawful discrimination contrary to article 14 of the ECHR read together with articles 2, 3, 5 and 8. The court was minded to declare that the failure to afford immigration detainees held in prison access to publicly funded legal advice to an extent equivalent to that available under the DDAS to detainees held in IRCs was in breach of ECHR rights. SM was an Afghan national who had entered the UK illegally in April 2008. His claim for asylum was rejected, he was granted discretionary leave to remain in the UK until June 2011. On various occasions since 2012 he was detained under Immigration Act powers and since September 2013 he was convicted of 22 criminal offences. 

SM got leave to remain in the UK in 2014 on human rights grounds until July 2017. Since September 2013 he had been convicted of some 22 criminal offences. He was sentenced to 5 months’17 days’ imprisonment in October 2018. He served that sentence. After being convicted he was served with a decision to deport. He made another claim for asylum and that claim remained live until July 2020 when he withdrew his appeal against the SSHD’s refusal to grant asylum and he completed serving his sentence of imprisonment in January 2019. He was transferred to HMP Leeds where he was detained under Immigration Act powers. By the Standard Civil Contract 2018, made pursuant to powers under section 8 of the LASPO, the Lord Chancellor set out the arrangements for the provision of civil legal services including services relating to immigration detention as regards which the contract established DDAS by which IRC detainees had access to 30 minutes of free legal advice, with the usual financial eligibility requirements for legal aid being waived. The allotted time would generally sufficient to gather information and provide initial advice on any claims and/or bail or applications that might be available. No equivalent provision was made for immigration detainees held in prisons rather than IRCs. Advice under the DDAS is available to any person, both following arrival at an IRC and thereafter if some new matter arises during detention.

Shamima Begum: SSHD strikes back in Supreme Court

R (Begum) v Special Immigration Appeals Commission & Anor [2021] UKSC 7 (26 February 2021) 

Ms Shamima Begum was born and raised in the UK. She was a British citizen at birth and at age 15 she travelled to Syria with two friends and soon afterwards she married an ISIS fighter and is currently detained in poor conditions in the Al-Roj camp run by the Syrian Democratic Forces. She now wishes to return home to the UK to have a fair and effective appeal. She was deprived of her British citizenship on 19 February 2019 because the SSHD believed that her return would present a risk to national security. She applied for leave to enter (LTE) the UK so that she could pursue an appeal against the deprivation decision. The Court of Appeal unanimously held that the only way Ms Begum, can have a fair and effective appeal is to be permitted to come into the UK to pursue her appeal. King, Flaux and Singh LJJ found that fairness and justice must – on the facts of her case – outweigh any national security concerns. But in a twist of fate, the Supreme Court unanimously held in favour of the SSHD and found that the right to a fair hearing does not trump everything else, such as the public’s safety. The court took the view that if a vital public interest makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it. Therefore, her deprivation appeal should be stayed until she can play an effective part in it without compromising the public’s safety. 

As it is not known how long it may be before that is possible, this is not an ideal solution. However, it was the view of the Supreme Court there is no perfect solution to a dilemma of the present kind. Ms Begum held British citizenship at birth under section 1(1) of the British Nationality Act 1981 as her parents were both settled in the UK. SIAC found she also holds Bangladeshi citizenship by descent through her parents by virtue of section 5 of the Bangladesh Citizenship Act 1951. Ms Begum had challenged the LTE decision by an appeal against that refusal insofar as the decision determined a “human rights claim” and by judicial review proceedings challenging the decision on common law grounds. The Court of Appeal considered Ms Begum’s judicial review claim succeeded against SIAC’s decision on article 2 and article 3 of the ECHR. She was deprived of her British citizenship, pursuant to section 40(2) of the 1981 Act, on grounds of conduciveness to the public good. The Supreme Court unanimously allowed the SSHD’s appeals and dismissed Ms Begum’s complaints. Lord Reed (President) gave the sole judgment, with which Lord Hodge, Lady Black, Lord Lloyd-Jones and Lord Sales agreed and her LTE appeal was dismissed, her application for judicial review of the LTE decision was dismissed, and her application for judicial review of SIAC’s preliminary decision in the deprivation appeal was dismissed. Liberty, Justice and the UN Special Rapporteur on Counter-Terrorism intervened in these proceedings.

Court of Appeal: £1,012 citizenship fee for children is unlawful

R (Project for the Registration of Children As British Citizens & Anor) v SSHD [2021] EWCA Civ 193 (18 February 2021) 

The Court of Appeal has held that the SSHD failed to consider the best interests of children under section 55 of the Borders, Citizenship and Immigration Act 2009 while setting the fee for applications to register a child as British citizen at a significantly higher level than the actual administrative cost of processing applications of this nature. Furthermore, David Richards, Singh and Nicola Davies LJJ held that the SSHD could not rely on the contents of Parliamentary debates so as to show compliance with her section 55 duty and such use of Parliamentary material would breach article 9 of the Bill of Rights of 1688 and Parliamentary privilege. Written submissions were received by the court on behalf of the Speaker of the House of Commons and, on behalf of the House of Lords, the Clerk of the Parliaments and the substantive issues concerned the lawfulness of the fee charged to children applying to be registered as British citizens under the British Nationality Act 1981. Under the the Immigration and Nationality (Fees) Regulations 2018, delegated legislation made under the Immigration Act 2014, the fee payable on an application by a child has been fixed since 6 April 2018 at £1,012. The administrative cost of processing an application is £372. Yet the fee is fixed at a level which is designed to produce a rapacious profit of over £640, to be applied in subsidising other parts of the nationality, immigration and asylum system.

No waivers, reductions or exemptions applied in registration cases and the evidence was clear that for a substantial number of children the prescribed fee was unaffordable. The Project for the Registration of Children as British Citizens (“PRCBC”), a charity which supports children to establish their rights to British citizenship, and “O”, a child whose family was in receipt of benefits and assistance for destitution but who was entitled to registration and only had the administrative cost of processing the application (i.e. £372), challenged the SSHD’s refusal to decide O’s application unless the full fee £1,012 was paid. Jay J decided the judicial review claim against the SSHD on the section 55 ground but he nevertheless held that the claim failed on the vires ground. He found no evidence that the government had identified the best interests of children seeking registration, characterised those interests properly and identified that the level of fee created practical difficulties for many. The SSHD appealed Jay J’s decision, see here, that the £1,012 fee for children applying for registration of British citizenship was unlawful. PRCBC and O cross-appealed his decision that the 2018 fees Regulations were not ultra vires as they had submitted that the level of the fee is incompatible with the statutory scheme under the 1981 Act in that it rendered nugatory entitlements to register (sections 1, 3(2) and para 3 of Schedule 2), and was not authorised by the vires-creating power conferred by section 68 of the 2014 Act.

New evidence must satisfy Ladd v Marshall to justify departure from FTT decision on refugee status

R (Al-Siri) v Secretary of State for the Home Department [2021] EWCA Civ 113 (08 February 2021)

The Court of Appeal dismissed the government’s appeal against the judgment of Richard Clayton QC where he had quashed the decision of the SSHD in 2018 that Mr Yasser Al-Sirri did not qualify for the grant of refugee status. Prior to all this the FTT had decided that Mr Al-Sirri was not excluded from the Refugee Convention 1951 under article 1F(c) and that he was a refugee. The FTT’s decision was upheld by the UT in August 2016 after the SSHD’s appeal. On 4 August 2017 the Court of Appeal refused the SSHD permission to appeal but she nonetheless made a decision in 2018 that despite the FTT’s decision there were reasonable grounds for regarding Mr Al-Sirri as a danger to the UK’s security under article 33(2) of the Convention and that he therefore did not qualify for the grant of refugee status and would be granted restricted leave to remain in the UK, for a period of six months, on the grounds that to remove him would breach his rights under article 3 of the ECHR. Notably, the restricted leave was subject to conditions requiring Mr Al-Sirri to report quarterly and to obtain the SSHD’s written consent before changing his residence, entering employment or engaging in business or enrolling on any course of study. He thus argued in judicial review proceedings that the SSHD’s failure to give effect to the FTT’s 2015 determination was unlawful. 

Indeed, there was no fresh evidence and the SSHD had relied upon matters which were available to the FTT or added nothing new. Richard Clayton QC granted judicial review as there were insufficient new facts to justify a departure from the FTT’s ruling. He found that Mr Al-Sirri was entitled to apply for judicial review rather than appealing again to the FTT. The 2018 decision was quashed. Albeit unsuccessfully, the SSHD argued that there was no general principle that any case under article 33(2) should be brought at the same time as resisting a claim to refugee status on any other basis. She also submitted that fresh evidence that would pass the Ladd v Marshall  [1954] 1 WLR 1489 test was unnecessary because it was a fresh assessment of a new issue. The SSHD also complained that Richard Clayton QC accordingly erred in holding that she was not entitled, on the facts of Mr Al-Sirri’s case, to make a decision on article 33(2) of the Convention and paragraph 334 of the Immigration Rules. As a further aspect of the second ground, the SSHD challenged Richard Clayton QC’s decision that Mr Al-Sirri did not have an alternative remedy in the form of a statutory appeal to the FTT, contending that the merits of the SSHD’s decision, on the facts, was properly a matter for determination in that forum. Underhill LJ was of the view, and the SSHD accepted, in oral argument that there was merit in the Court of Appeal determining the substantive point of principle, even if the FTT has jurisdiction.

Court of Appeal: Upper Tribunal must not speculate on facts

Lowe v The Secretary of State for the Home Department [2021] EWCA Civ 62 (25 January 2021) 

Mr Lowe, a Jamaican national, appealed a decision of the UT to reverse the FTT’s decision to allow his appeal against the refusal of his human rights claim by the SSHD. McCombe and Asplin LJJ (Phillips LJ dissenting) held that by reversing the FTT’s decision that Mr Lowe’s deportation to Jamaica fell within Exception 1 set out in section 117C of Part 5A of the Nationality, Immigration and Asylum Act 2002 and para 399A of the Immigration Rules, the UT (UTJ Perkins) had impermissibly made its own assessment of the facts. It was the case that the FTT  had been entitled to assess the individual that he saw in the witness box and to decide, in light of all the information before him, that Mr Lowe would face very significant obstacles to integration in Jamaica. Mr Lowe was born in Jamaica, but he and his parents (who had separated and had other children) had lived in the UK, with indefinite leave to remain, since he was three. In 2017, a few weeks prior to turning eighteen, he pleaded guilty to possession of crack cocaine, with intent to supply, and to possession of a knife in a public place. After receiving credit for his guilty pleas and his previous good character, Mr Lowe was sentenced to a term of imprisonment of 28 months for the drugs offence and the Crown Court judge accounted for mitigation only commenting that “the cards have not fallen well for you”.

The FTTJ determined that there were very substantial obstacles to Mr Lowe’s integration into Jamaica because he did not have family or other connections there. Notably, he had never lived an independent life away from his parents or state institutions and had a lack of financial support in Jamaica. This led the FTTJ to conclude that deportation would be a disproportionate interference when weighed against his family and private life in the UK and thus Exception 1 was met. UTJ Perkins disagreed and decided that the FTT’s decision was irrational. UTJ Perkins indicated that the “very significant obstacles” exception was only met in strong circumstances, which had not been identified in the evidence. The UT said that Mr Lowe had not produced any evidence to demonstrate that he had made any real attempt to find out about accommodation or employment in Jamaica. UTJ Perkins judged that he was not able to “accept that he can be regarded a helpless babe” because he had “sufficient wit … to be part of a drug ring enterprise.” UTJ Perkins also said “in the absence of clear evidence, that a person who has been locked up for whatever is necessary in a sentence of two years and four months, had not learned some street wisdom of a kind that would assist him.” Mr Lowe had “qualifications of sorts” and also spoke “the main local language” and while it was understandable that he did not want to return to Jamaica there was nothing amounting to a “very significant obstacle”.

Procedural fairness fails entrepreneur in Court of Appeal

R (Taj) v The Secretary of State for the Home Department [2021] EWCA Civ 19 (20 January 2021) 

Genuineness of intention is a key part of obtaining a visa to the UK. This appeal related to the closed (in March 2019) Tier 1 (Entrepreneur) Migrant route operated under the points-based system (PBS) of yesterday. This appeal turned on the application of the common law principle of procedural fairness to the PBS for deciding whether a person should be granted leave to remain in the UK as a Tier 1 (Entrepreneur) as set out under Paragraph 245DD of the Immigration Rules. In particular, the appeal concerned the applicability of the fifth and sixth of the famous principles of administrative fairness articulated by the House of Lords in Doody [1994] 1 AC 531 to the PBS which concern the right of a person affected by a decision to make representations to the decision-maker before the decision is taken and the right to know the “gist of the case that he has to answer”. In Doody it had been stated “that fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.” Further, “since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.”

Mr Taj was a citizen of Pakistan who was granted entry to the UK as a Tier 4 (General) Student in December 2009 valid until February 2011 which he renewed until November 2011. Subsequently, he got a Tier 1 (Post-Study) visa until December 2013 and he was then granted leave in the Tier 1 (Entrepreneur) category until February 2017. Later he applied for leave to remain under the Tier 1 (Entrepreneur) category. Consequently, an interview and site visit took place in 2017 at the trading address specified for the business relied upon in his application (T2MC Limited). The address was in Ilford, an estate agent office on the main high street with a conventional windowed shopfront advertising some properties (signed Swiss Estates). The real registered address for T2MC Ltd was Mr Taj’s home address, which was different to the trading address. The application was refused in April 2018. The decision-maker did not consider Mr Taj to be a director of one or more genuine UK businesses, that he had had genuinely invested the money referred to in Table 5 of Appendix A into one or more genuine businesses in the UK, and that he intended to continue operating one or more businesses in the UK and did not plan to take employment other than under the permitted terms. The administrative reviewer upheld the refusal and a judicial review challenge was dismissed by the Upper Tribunal. The Court of Appeal held that it was not procedurally unfair that the PBS for deciding whether a person should be granted leave to remain as an entrepreneur did not require the decision-maker to put the applicant on notice of general concerns as to the genuineness of the business in question.

Upper Tribunal: ‘Historic injustice’ v ‘historical injustice’

Patel (historic injustice: NIAA Part 5A) India [2020] UKUT 351 (IAC) (25 November 2020) 

The Upper Tribunal (Lane J and UTJ Norton-Taylor) has imparted guidance explaining the difference between “historic injustice” and “historical injustice” and it also gave guidance on Part 5A  of the the Nationality, Immigration and Asylum Act 2002 and the weight to be given to the maintenance of effective immigration controls. The UT started its decision by providing dictionary definitions of the terms “historic” (famous or important in history, or potentially so), “historical” (of or concerning history → belonging to or set in the past), and “injustice” (lack of justice, an unjust act or occurrence). The UT said that the fact that the historic injustice injustice exists is uncontroversial and will be generally recognised. It was the UT’s view that cases that may be described as involving historical injustice are where the individual has suffered as a result of the wrongful operation (or non-operation) by the SSHD of her immigration functions. An Indian citizen, Ms Patel came to the UK in 2010 as a student and renewed her leave as a post-study worker and was granted leave until May 2014. In June 2014, she applied for leave to remain outside the Immigration Rules. However, her application was refused on 28 August 2014 and she challenged that refusal by judicial review. In November 2016, her judicial review claim was dismissed on the basis that the matter had, by then, become academic. She wanted to remain in the UK to seek redress against her former employer but that was concluded in January 2015.

Then in 2018, Ms Patel reapplied for leave together with a human rights claim which the SSHD refused in January 2019 and subsequently her family life claim fell away and she became solely reliant on the private life limb of article 8 of the ECHR. The Home Office decision-maker found that Ms Patel had failed to satisfy paragraph 276ADE(1)(vi) of the Immigration Rules and found no exceptional circumstances in her case that would render a refusal of leave a breach of article 8 as a result of unjustifiably harsh consequences for her. The decision-maker rejected that she would be an outcast upon return to India and the current economic situation in India may be poor. The SSHD was satisfied she would not suffer any greater hardship than other people in India. Similarly, the decision-maker was not satisfied that Ms Patel’s contribution to UK charities carried weight and it was also open to her to return to India and assist her local community and charities in that country. The decision-maker observed that she would have been fully aware when developing any such private life that she had no expectation of remaining in the UK indefinitely. Nothing in her case demonstrated that there would be unjustifiably harsh consequences for her if she were to return to India. Upon her appeal against the refusal, FTTJ Bulpitt dismissed her appeal after noting that she claimed to have spent five years fighting against unfair decisions which have had a detrimental effect on her and her ability to cope, were she to have to return to India. While she claimed to be a Londoner at heart, the FTTJ noted that that little further evidence of her private life was adduced.