What is the Meaning of ‘Precarious’ in Section 117B(5) of the NIAA 2002?

Having already heard a string of appeals relating to the meaning of “reasonable” in section 117B(6) and the meaning of “unduly harsh” in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 (as amended), recently in Rhuppiah the Supreme Court further considered the meaning of “precarious” in section 117B(5). In addition to this point of statutory construction, the Justices also examined other issues connected to the weight to be given to (i) private life established at a time when a migrant’s immigration status was precarious when conducting the balancing exercise under article 8 of the ECHR, and (ii) financial independence and proficiency in English when conducting the balancing exercise under article 8. Rhuppiah therefore adds to the gamut of complex issues that have reached the apex court four years after the commencement of the statutory machinery laid down in Part 5A of the 2002 Act, sections 117A to 117D as inserted by section 19 of the Immigration Act 2014 which entered into force on 28 July 2014 and place article 8 and public interest considerations on a statutory footing. Since statute is silent and Parliament has not defined the meaning of “precarious”, Lords Wilson, Carnwath, Hughes, Lloyd-Jones and Lady Black heard rival arguments about the correct construction of the term within the meaning of the Strasbourg jurisprudence. Rhuppiah is Tanzanian. Between 1997 and 2010 she was variously granted of leave to remain as a student but then fell out of status.

Rhuppiah lives and cares for with her friend, one Ms Charles, who has ulcerative colitis. Her brother, sister-in-law and niece also live in the UK. Upon refusal of her application for ILR in 2012, she appealed to the FTT that leave to remain ought to be granted to her under article 8 outside the rules. In light of Part 5A of the 2002 Act, the FTT found that little weight should be given to her private life with Ms Charles and her niece because it was established when her immigration status was precarious. The FTT also held that fluency in English and financial independence were neutral factors in the article 8 balancing exercise because Rhuppiah was in any event financially dependent on Ms Charles and her father for lodging and maintenance respectively. The UT also dismissed her appeal. She then appealed further on the basis that the FTT made threefold errors of law. First of all, it misunderstood that her immigration status had been “precarious”. Second, it incorrectly bound itself by the finding of precariousness by attaching “little weight” to her private life whereas it had discretion under statute to attach greater weight in her case. Third, it wrongly treated her proficiency in English and financial independence as neutral rather than positive factors in her favour. Continue reading

Posted in Article 8, Court of Appeal, ECHR, Immigration Act 2014, Immigration Rules, Precariousness, Proportionality, Public Interest, Settlement, Students, Tier 2, Tribunals, UKSC | Tagged , , , , , , | 1 Comment

Ending the Kumar Arrangements in Judicial Review

R (KA & Anor) v Secretary of State for the Home Department (Ending of Kumar Arrangements) [2018] UKUT 201 (IAC) (13 June 2018)

At times the courts take a lenient approach to governmental ineptitude and judges tend to throw a lifeline to the government when its ship is sinking. Of course, the paradox is that immigration lawyers are routinely targeted for conduct related issues while the judiciary panders to malpractice by the state. Such tendencies only embolden the obnoxious and reckless manner in which the Government Legal Department (GLD) conducts itself in judicial review cases. Oddly, GLD lawyers often think that they are special. In these proceedings, the Upper Tribunal finally intimated the end of the amnesty in Kumar [2014] UKUT 104 (IAC) of automatically allowing the respondent Home Office twice as much time to file an acknowledgement service (AoS) of a judicial review claim, i.e. six weeks rather than the three week period specified in rule 29(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Five years ago in Singh [2013] EWHC 2873 (Admin), the government promised to minimise its demands for extending time and committed itself to taking every little step to ensure compliance with the 21 day time limit specified in Part 54 of the Civil Procedure Rules (CPR) for filing an AoS. But later the Kumar arrangements relieved the government of complying with the deadline and even after this judgment they will continue until 1 January 2019 after which the unfair grace period will cease to apply in respect of any application for permission to bring judicial review proceedings.

The government’s demands for a special status in public law litigation are connected to the implausible excuses made by Daniel Hobbs, an ex- Director of UK Visas and Immigration, who thought “rapid and unprecedented rise in challenges to asylum and immigration decisions … some 69% higher in July 2013 than in July 2012” justified extra time for his underperforming department to perform its legal duties. In the present proceedings, it was argued that the Upper Tribunal possesses no power to allow a party a general dispensation from complying with the rules that govern its own procedure. Thus, albeit in vain, it was argued that the path chosen in Kumar was ultra vires and that there was no scope for such a relief to be granted to the respondent at all. In Bovale [2009] EWCA Civ 171, the Court of Appeal held that the judge below (Collins J) had no power to disapply or vary the CPR, as they applied to challenges brought under section 288 of the Town and Country Planning Act 1990. In such claims, the CPR require a defendant to serve an AoS but the rules do not require either to indicate the grounds of resistance or to serve a defence. Continue reading

Posted in Article 8, Children, Costs, Court of Appeal, ECHR, Immigration Rules, Judges, Judicial Review, Misconduct, Rule of law, Tribunals | Tagged , , , , , | Leave a comment

CJEU Cases and Changes to the EEA Regulations 2016

The Immigration (European Economic Area)(Amendment) Regulations 2018 amend the Immigration (European Economic Area) Regulations 2016 in order to implement the effects of a string of judgments given by the CJEU. The new regulations come into force on 24 July 2018. First of all, in line with the ruling in Gusa (C-442/16, EU:C:2017:1004), regulation 6 of the 2016 Regulations has been amended to provide that EEA nationals who are no longer working in a self-employed capacity retain their status as a self-employed person. In Gusa the CJEU held that article 7(3)(b) of the Citizens’ Directive (2004/38/EC) must be interpreted as meaning that an EU citizen retains the status of a self-employed person for the purposes of article 7(1)(a) where, after having lawfully resided in and worked as a self-employed person in another member state for approximately four years, he has ceased that activity, because of a duly recorded absence of work owing to reasons beyond his control, and has registered as a jobseeker with the relevant employment office of the latter member state. Second, and very importantly, amendments have been made to the 2016 Regulations in order to give effect to the ruling in Lounes (C‑165/16, EU:C:2017:862, see here and here) that under article 21 TFEU a non-EU national is able to benefit from a right of residence in the member state where his EU citizen family member resided before acquiring its nationality in addition to her original nationality.

The conditions governing the grant of the right of residence must not be stricter than those set out in the Directive. Overall, in Lounes, in November 2017, the CJEU embraced AG Bot’s opinion that EU law does not take away with one hand that which it has given with the other. It has taken almost nine months for these changes to trickle down and become incorporated into the domestic UK immigration system. Somewhat ironically, with the UK set to leave the EU on 29 March 2019, the impact of these changes will be ephemeral because the EU Settlement Scheme (see here) will replace the present system by granting settled status and pre-settled status to EU citizens and their non-EU family members. In Lounes the CJEU found that the rights article 21(1) TFEU confers on an EU citizen, including the derived rights enjoyed by her family members, do indeed intend to promote the gradual integration of the EU citizen concerned in the host member state’s society. For article 21(1) TFEU rights  – especially EU citizens’ right to lead a normal family life with their family members in the host member state – to be effective they must provide coverage to citizens who had exercised their freedom of movement Continue reading

Posted in Appendix EU, Article 8, Brexit, Children, Citizens Directive, CJEU, Deportation, European Union, Families, Free Movement, Judicial Review, Permanent Residence, Spouses | Tagged , , , , , , , | 1 Comment

Tier 1 (General): Perspectives on Paragraph 322(5) and ILR

Cases in the Tier 1 (General) category present an outrage because we would not really expect highly skilled migrants to be punished for being honest by paying their taxes. Similarly, we would also not expect migrants who add value to the economy to be penalised by the deployment of those parts of the rulebook which are reserved for people who present a threat to the UK’s national security. But since we live in a society where the government has even resorted to deporting its own citizens we should not be so surprised that it behaves in an oppressive manner towards mere foreigners. Tier 1 (General) used to be a freestanding way for the UK to attract skilled migrants to its shores. Notably, under part 9 (grounds for refusal) of the Immigration Rules, the provision in paragraph 322(5) operates on the basis of “the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security.” No authoritative case law exists on the use of paragraph 322(5) but it has infamously claimed more than a thousand victims. The paradox is that all sorts of professional people are caught up in pretty dreadful predicaments because of the rule’s usage which is indiscriminately being applied in relation to tax discrepancies as little as £1.2 and £1.6.

Take Saleem Dadabhoy for example. An honest businessman who spent many years of his life injecting value into the British economy, he was strangely rewarded for his efforts with a paragraph 322(5) refusal. His forced departure from the UK will lead to the closure of a company worth £1.5 million and will render 20 people unemployed. He also has a sick child from whom he is separated. Despite conceding that his conduct was not dishonest or fraudulent, the Home Office wishes to remove him nonetheless. The official guidance for operating the rules does not envisage that the paragraph 322(5) power should be used to target tax discrepancies at all. After quite a long period of legal uncertainty, in Khan JR/3907/2017 (presently unreported, reporting committee to decide) Spencer J allowed the claim and gave much needed guidance and addressed points such as the drawing of an adverse inference, fact finding and determining the inference of dishonesty, the standard of proof and dishonesty, blaming accountants and shutting one’s eyes, carelessness as opposed to dishonesty, legitimate questions, and disclosure and evidential matters. The full details are still awaited. But as discussed below some of the earlier unreported judicial review claims tell another story. Continue reading

Posted in Appeals, Article 8, Cases, ECHR, False Statements and Misrepresentations, Immigration Rules, Judicial Review, Misconduct, Pakistan, Paragraph 322(5), PBS, Post Study Work, Proportionality, Public Interest, Tier 1, Tribunals | Tagged , , , , , , , , | 1 Comment

Brexit and the EU Settlement Scheme

As if Appendix FM and its sinister siblings were not enough, soon free movement law will interact with the Immigration Rules in the form of Appendix EU so as to implement settled status for EU citizens and their family members. The tactic of using Appendix EU is dubious because, as Lord Hope memorably said in Odelola [2009] UKHL 25, “the status of the immigration rules is rather unusual.” The rules are not subordinate legislation. Instead, they are detailed statements by a minister on how the Crown intends to exercise its executive power to control immigration. Although the rules create legal rights, Parliament’s involvement is not required to change them. Permanent residence under Appendix EU will be conferred in digitalised form through a new streamlined system. Excited legal pundits have praised the ambitious new system because it does not require applicants to give up their passports and also stealthily synchronises and coordinates its activities with HMRC and DWP. Indeed, there are positive signs in the government’s intentions because, as a matter of domestic policy, the UK has decided that the main requirement for eligibility under the EU Settlement Scheme will be continuous residence in the UK.

Therefore those applying under the scheme will not be obliged to demonstrate that they satisfy all the requirements of free movement law, such as having held comprehensive sickness insurance or generally to prove the exercise of specific rights under EU law. However, another aspect of the situation is quite peculiar because Sajid Javid’s foreward in the Statement of Intent is misleading, perhaps deliberately so, because he claims that “securing the rights of citizens has always been our priority in negotiations with the European Union.” In truth, as is well known, the government has been using the 3.3 million EU nationals in the UK as bargaining chips to exert leverage over the EU27 and many questions remain unanswered. Simplicity, speedy service and user-friendliness are the supposed to be the hallmarks of the new system. The government is adamant that since the Home Office already issues seven million passports and three million visas each year, processing millions of further EU applications should be easily achievable and is well within its grasp. Assurances have also been provided that the efficient and futuristic system will minimise the burden on applicants to provide evidence of their residence. Continue reading

Posted in Appendix EU, Appendix FM, Article 8, Automatic Deportation, Brexit, Citizens Directive, CJEU, ECHR, Enhanced Protection, European Union, Free Movement, Immigration Act 2014, Immigration Rules, Permanent Residence, Proportionality, Public Interest, Settlement, Spouses, UKSC | Tagged , , , , , , , , , , , | 1 Comment

Free Movement: Home Office Softens its Stance on Retained Rights of Residence

Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088 (20 April 2018)

In this case the Home Office extraordinarily conceded that for a third country national to retain residence rights in the UK under article 13(2)(a) of the Citizens’ Directive (2004/38/EC) as a former spouse of an EEA national, the EEA spouse must have resided in the UK until the date of commencement of divorce proceedings. However, it is not necessary for the EEA spouse to have resided in the UK until the divorce is granted. Since the concession is significant, it is in the public interest for it to be recorded in a judgment of the Court of Appeal so as to promote uniformity in retained rights cases. Baigazieva was from Kyrgyzstan. She appealed UTJ Bruce’s decision of September 2017 where it was determined that she had not retained a right to reside in the UK as the former spouse of an EEA citizen. Singh LJ explained that the appeal concerned the correct interpretation of regulation 10(5) of the Immigration (European Economic Area) Regulations 2006. The earlier regulations were replaced by the Immigration (European Economic Area) Regulations 2016 but that transition did not impact upon the outcome of the present appeal. Baigazieva’s case was based on article 13(2)(a) of the Directive because prior to the commencement of divorce proceedings her marriage had lasted at least three years including one year in the host member state.

The Home Office took the position that UTJ Bruce erred in thinking that to retain a right of residence it must be demonstrated that the former EEA spouse exercised treaty rights as a qualified person until the divorce itself because it sufficed to show that the former EEA spouse exercised treaty rights until divorce proceedings were initiated. The framework for the retention of residence rights has been addressed in numerous judgments. The Court of Appeal’s reference in NA (Pakistan) [2014] EWCA Civ 995 resulted in the ruling in NA (Pakistan) (C-115/15, ECLI:EU:C:2016:487, see here) where the CJEU took the view that the qualified person EU spouse must reside in the host member state “until the date of the commencement of divorce proceedings” for the non-EU spouse to be in a position to claim retention of residence rights under article 13(2)(c) which concerns victims of abuse. It was not held that it is necessary for the EU spouse to reside in the host member state until the divorce is itself granted (a decree absolute in the present jurisdiction). Despite the official concession, the change has not yet been incorporated into the retained rights guidance (version 3.0) which still insists on a decree absolute as an “end of relationship” document.  Continue reading

Posted in Children, Citizens Directive, CJEU, Court of Appeal, Domestic Violence, European Union, Free Movement, OFMs, Pakistan, Permanent Residence, Spouses | Tagged , , , , , , | 1 Comment

Pakistan and the Child Abduction Convention

Pakistan is notorious for child abduction. The UK has a large and vibrant British-Pakistani community of more than a million people making it the largest Pakistani population in Europe. On 22 December 2016, Pakistan deposited its instrument of accession to the Hague Convention on the Civil Aspects of International Child Abduction 1980. This made Pakistan the 96th Contracting State to the Convention which entered into force for Pakistan on 1 March 2017. Pakistan became the first South Asian and the fourth Muslim country to align itself with the principles of the Convention and on 25 September 2017 the Ministry of Law and Justice took action to ensure that the family courts are in a position to entertain international child abduction cases concerning custody, orders passed by foreign courts and judgments from Contracting States of the Hague Convention. Prior to these developments, judges in the UK and Pakistan had agreed on the UK-Pakistan Protocol on Children Matters 2003 on which I have assisted the UK courts as an independent legal expert on numerous occasions. The Protocol reflects a judicial understanding trying to secure the return of an abducted child to the country of their habitual residence. But since it was entirely non-binding in Pakistani law and was an exclusive UK-Pakistan initiative, it did not really address the problem of child abduction in concrete terms.

The Hague Convention provides a structure to support contracting states, by providing a various civil, non-criminal, legal formalities and procedures for the protection and safe return of abducted children when removed from Convention countries. Once Pakistan’s accession is accepted by the Contracting States, the Convention will enter into force between Pakistan and existing Contracting States. Since the UK is still in the EU, it will have to wait until the EU approves of Pakistan’s accession unless Brexit can present an unexpected boon by expediting the process in which case the British can make their own arrangements with directly with the Pakistanis without being hampered by bureaucracy from Brussels which is unfortunately inhibiting the quick and timely progress of pending children cases in Pakistan. The process of recovering abducted and wrongfully retained children from Pakistan is lengthy and tiresome but the judgments of the superior courts show that the Pakistani judiciary does have a tendency to give custody of the child to the non-Muslim mother with foreign custody rights even when the abducting father resorts to hiding behind Islam to shield his actions. Continue reading

Posted in Child Abduction, Children, Hague Convention, Human Rights, Pakistan, Women | Tagged , , , , , , | Leave a comment