Risk of FGM: A child’s welfare is paramount in the family court

A (A Child) [2020] EWCA Civ 731 (15 June 2020) 

Ryder, King and Hickinbottom LJJ have affirmed the decision of Sir Andrew McFarlane P [2019] EWHC 2475 (Fam) by holding that when a family court considers an application for a female genital mutilation (FGM) protection order under paragraph 1 of Schedule 2 of the Female Genital Mutilation Act 2003 (FGMA 2003) in circumstances where the First-tier Tribunal (Immigration and Asylum Chamber) had already assessed the risk of FGM during an asylum application, the family court has to have regard to all the circumstances and, while a prior assessment of risk might be such a circumstance, the statutory language neither requires nor permits any limitation or assumption in relation to those circumstances. The appeal concerned an important issue regarding the relationship between these two distinct jurisdictions and, in particular, the overlap which it is said may exist when the risk of FGM is assessed for the purposes of a decision in each of those jurisdictions. “A” was an 11 year old girl holding Bahraini citizenship but of Sudanese origin and entered the UK as a visitor with her parents and four older brothers in 2012. Her father then left for Bahrain and is thought to be detained in a military prison there. Her mother claimed asylum but then withdrew her claim but only to make a fresh asylum application on the basis that she was at risk on return because of her conversion from Sunni to Shia Islam and that A was at risk of FGM.

The mother had been subjected to FGM as a child in Sudan and her two sisters died when undergoing the practice but that it continued and her nieces had been subjected to it. She claimed that the father and his extended family were in favour of FGM and wanted A to undergo the practice. Her application was refused and FTTJ Monson found the mother to be an incredible witness and, in respect of A, said that “there are not substantial grounds for believing that there is a real risk of her being subjected to any form of FGM”. Later the FTT and UT refused permission to appeal and she was refused judicial review and became appeal rights exhausted and was served with removal directions. Suffolk County Council, the relevant local authority with safeguarding responsibilities, issued proceedings in the family court for a FGM protection order when it turned out that A’s mother thought they would be refouled from Bahrain to Sudan because of new rules which it was said removed citizenship from nationals who were absent from Bahrain for 5 years. Then HHJ Richards made an order that prohibited A’s mother from leaving England with or in the company of A and prohibited the Home Office from removing, instructing or encouraging any other person to remove A from the jurisdiction. The court also prohibited the Home Office from obtaining a passport or any other travel document for A if one had not already been obtained.

Pakistani with ‘sufficiently reprehensible conduct’ wins ILR

SSHD v MA Khan [2020] UKAITUR HU097412019 (12 March 2020) 

Appeals falling within the dreaded paragraph 322(5) genre are usually quite controversial as Tier 1 (General) migrants were seen as an asset to the UK’s economy but many of them cooked up tax figures to obtain Indefinite Leave to Remain (ILR). The Home Office is adamant not to be perceived as being soft on such persons and is campaigning to cleanse the UK of such undesirable elements. However, the outcome in this appeal came down against the Home Office and the Upper Tribunal (UTJ Hanson) determined that FTTJ Devittie had been right to allow Mr Mohamed Aslim Khan’s appeal against a decision that invoked paragraphs 276B and 322(5) to refuse his ILR application on the basis of long residence owing to tax discrepancies. Mr Aslim Khan was a Pakistani and in his application of 2011 he had relied on earnings of £37,248 including a net profit from self-employment of £24,088 between 6 April 2010 and April 2011. HMRC records for 2010/11 demonstrated a profit of £661. But in a subsequent application in June 2013, Mr Khan submitted on a total income of £37,349 including a net profit of £25,090 between 6 April 2012 and 5 April 2013. He did not declare any self-employment profit to HMRC for this period. His explanation was that he initially declared the correct figures to HMRC and paid his accountant in cash an amount to settle his tax bill. However, the accountant amended the returns incorrectly.  

This was done without his knowledge and resulted in the decision-maker to accuse him of deception. When Mr Khan discovered this problem in July 2014 he immediately tried to contact his accountant but FTTJ Devittie thought that he had not provided a satisfactory explanation for the discrepancies in the figures declared. He said that there was “reliable evidence to establish on a balance of probabilities that the conduct of the appellant was sufficiently reprehensible.” On the other hand, he was “not satisfied taking proper account of all relevant circumstances known about the appellant at the date of decision, that the respondent has established the appellants presence in the UK is undesirable.” The reasons behind this were the appellant’s academic background, his immigration history and since he was engaged in self-employment, the FTT was unpersuaded that there was a likelihood that he would engage in any further deception in the future. His gainful employment as a subject access request consultant meant that he possessed high level skills which enabled him to engage in meaningful and honest economic activity in the UK. He promptly paid his dues to HMRC and had 11 years’ residence in the UK and had no other problems with the law during that time. He had no criminal convictions and developed strong friendships in the UK. Credible evidence also pointed to the fact that he used to do charitable work.

NAO report: Home Office is not delivering value for money

The report on Immigration Enforcement by the National Audit Office (NAO) makes poor reading for the Home Office because it “does not yet have a full understanding of how its activities affect the progress those people take through each part of the system.” The NAO’s key report examined the work of “Immigration Enforcement”, an arm (or directorate) of the Home Office which is supposed to make sure that the UK’s immigration system is not abused and deals with immigration offenders so as to enforce from the UK. It has the vision of reducing the size of the illegal population and the harm it causes. Enforcement requires collaboration within the Home Office’s unwieldy units and with international partners and other areas of government. The Home Office detected 46,900 people trying to enter the UK by clandestine means between November 2018 and October 2019 and it also facilitated a departure of 13,100 persons without leave to remain in the UK from December 2018 to November 2019. Further its Immigration Enforcement directorate disrupted 641 serious and organised crime gangs between April 2019 and February 2020. The report seeks to address whether the Home Office is successfully delivering its stated missions and objectives to support its vision of reducing the size of the illegal population and the harm it causes.

It is split up into three parts addressing (i) the scale of the challenge the Home Office faces in managing and understanding the population without leave to remain in the UK and its response to that challenge, (ii) its performance against its three operational missions and objectives, and (iii) how it manages the end-to-end immigration enforcement system, relating to its fourth mission to make Immigration Enforcement a great place to work. Moreover, the conclusions are based on fieldwork and analysis which were conducted between July and December 2019 and focus on the Home Office’s ongoing and regular approach to managing its operations. The Home Office has the vision of reducing the size of the illegal population and the harm caused, but the NAO found that “its understanding of the scale of these issues is mixed”. The problem is “the Department has not attempted to estimate the total illegal population since 2005, when it believed the number to be around 430,000 people.” Although obtaining exact metrics for a hidden and invisible population is a difficult task, “recent estimates from other organisations suggest there may be more than twice this number.”

Upper Tribunal: An extended family member must demonstrate continuous dependency on the sponsor

Chowdhury (Extended family members: dependency) [2020] UKUT 188 (IAC) (29 April 2020) 

The appellant, Mr Chowdhury, was a Bangladeshi national who tried to enter the UK as a student with entry clearance for three years. Upon interview at immigration control he was discovered to be at an unsuitable standard of English for his intended course and his sponsorship was withdrawn by the admissions officer of London Denning College and his entry clearance was cancelled. His appeal was dismissed and he became an absconder. Five years later he applied for a residence card as the extended family member of an EEA national under regulation 8(2) of the Immigration (European Economic Area) Regulations 2006 by claiming to be an extended family member of one Mr Nashir Ahmed Chowdhury, an EEA national, whose sister was the appellant’s grandmother. The application was refused as the decision-maker was not satisfied with the relationship claimed and evidence provided and then the FTT dismissed his appeal. The sponsor said that he moved to Italy in 1982 and that he continued to provide his sister, with whom the appellant lived, with money whenever he visited Bangladesh, and would send money via friends who were visiting Bangladesh from Italy. The FTT accepted that the appellant was part of the EEA national’s household in Bangladesh until the appellant left Bangladesh, and that the appellant was at that time dependent on the EEA national. The FTT and UT refused permission to appeal. 

The refusal was challenged by judicial review and permission was granted and the refusal quashed and the matter returned to the UT to determine whether the FTT had erred in law materially and to remake the decision. The matter threw up a simple but important issue regarding the interpretation of regulation 8(2) of the 2006 Regulations and in particular, the requirement in regulation 8(2)(c) that the person “continues to be dependent upon” the EEA national or to be a member of his household. Regulation 8(2) of the Immigration (European Economic Area) Regulations 2016 is cast in similar terms. Article 20 TFEU and article 21 TFEU grant EU citizens the primary and individual right to move and reside in the territory of other member states subject to the limitations and conditions in Directive 2004/38/EC. Since leaving behind family greatly reduces an EU citizen’s willingness to move to another member state, the Directive gives rights of free movement and residence to two categories of family member, direct family members under article 2(2) and other family members as laid down in article 3(2) and the present appeal concerned the latter. The Directive does not confer any right of residence upon an “extended family member”. However, it recognises that their right of residence must be facilitated after an “extensive examination” of their personal circumstances.

Court of Appeal interprets section 117D(2) of the NIAA 2002

Mahmood, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Ors [2020] EWCA Civ 717 (05 June 2020)

The Court of Appeal has held that when determining whether a person had been convicted of an offence that had caused serious harm in order to fall within the definition of a “foreign criminal” under the section 117D(2) of the Nationality, Immigration and Asylum Act 2002, what matters is the actual harm caused by the particular offence, and an evaluative judgment had to be made in the light of the facts and circumstances of the offending. There can be no general and all-embracing test of seriousness. Three appellants (Mahmood, Estnerie and Kadir) in three conjoined actions sought to challenge decisions that they fell within the definition of “foreign criminal” for the purposes of the section 117D. Mahmood was a Pakistani national with indefinite leave to remain in the UK and was married to, and lives with, a Pakistani national who also has leave to remain. Mahmood was convicted of causing or inciting pornography involving a child aged between 13 and 17 contrary to section 48 of the Sexual Offences Act 2003 and was sentenced to a three-year non-custodial sentence. And he was consequently also made the subject of a 5-year Sexual Offenders Notice requirement, and a 5-year Sexual Harm Prevention Order (SHPO). He was convicted of failing to comply with the Notice requirement and a breach of the SHPO and was sentenced to a term of 6 months’ imprisonment on each count, to run concurrently.

Estnerie was a Malaysian who had claimed asylum and then made five applications for leave to remain under a false identity of a Sri Lankan national. All of his immigration applications were refused and he then pleaded guilty to six counts of being in possession of false identity documents and of seeking to obtain leave to remain by deception. Kadir was an Iranian whose application for asylum was refused and because he was a minor, he was granted discretionary leave to remain which he applied to extend on the grounds of private and family life but it was refused. However, Kadir was granted indefinite leave to remain under the legacy programme. His application for British citizenship was refused because of a conviction for causing criminal damage and he was sentenced for an offence of Assault Occasioning Actual Bodily Harm contrary to section 47 of the Offences against the Person Act 1861 in an act of “road rage” and was sentenced to a term of 8 months’ imprisonment and ordered to pay a victim surcharge of £140. Their appeals were dismissed by the FTT. Mahmood was refused permission to appeal by the UT. Estnerie’s appeal to the UT was refused. Kadir sought permission to appeal. These conjoined cases raised a short initial issue, whether the appellants committed “an offence that has caused serious harm” within the meaning of section 117D(2)(c)(ii).

Court of Appeal confirms £1 flat rate of pay in IRCs is lawful

Badmus & Ors, R (On the Application Of) v The Secretary of State for the Home Department [2020] EWCA Civ 657 (20 May 2020)

Sir Terence Etherton MR and Hickinbottom and Simler LJJ have determined in these proceedings that the Home Secretary is entitled to fix and subsequently to maintain a flat rate of pay for paid activities carried out by detainees in immigration removal centres (IRCs), and to fix and subsequently to maintain that payment rate at only £1 per hour (or £1.25 for special projects). Four immigration detainees –  namely Shola Badmus from Nigeria, GW from Jamaica, Okwudili Chinze from Nigeria, and Granville Millington from Trinidad and Tobago – who were detained in an IRC in different locations appealed a decision by Murray J refusing them permission to apply for judicial review of the Home Secretary decision to fix and maintain a flat rate of payment for paid activities undertaken by detained persons. The four claimants sought judicial review of the paid activity regime under which they were paid at a fixed rate of £1 per hour in accordance with a paid work strategy introduced by the Home Office in 2008, and set out in Detention Service Orders of 2008, 2013 and the 2018 Review Decision. The work done by the detainees was voluntary and it was not forced. The claimants argued that the pay regime for paid activity in IRCs violated the statutory purpose of the paid activity regime contained in the Detention Centre Rules 2001. The claimants also alleged fettling of discretion, Wednesbury [1948] 1 KB 223 unreasonableness, differential treatment and breaches of the PSED. 

At first instance in Morita [2019] EWHC 758 (Admin), Murray J refused permission to proceed with the detainees’ claim for judicial review and held that the claims were out of time because for each of the claimants the relevant decision was set out in the Detention Service Order 2013, the challenge being to that decision in the abstract rather than when each individual claimant was affected by the order. He found that fixed rate payment was not contrary to and did not frustrate the purpose of the Detention Centre Rules 2001 in general and in particular rule 3, which set out the purposes of the centres, and rule 17, which concerned paid activities. Furthermore, the claimants’ ECHR rights had not been breached as there was a reasonable and objective reason for the difference in treatment between the claimants and prisoners whom they had selected as a relevant comparator group. The four claimants/appellants were granted permission to appeal on grounds that argued that Murray J had been mistaken (i) to treat their claims as being out of time, or alternatively he was wrong not to extend time, (ii) to dismiss as unarguable their claims that the setting and maintaining of a flat rate of £1 an hour was contrary to and frustrated the legislative purpose reflected in the 2001 Rules,

NRPF regime breaches Article 3 of the ECHR and is unlawful

R (W, A Child By His Litigation Friend J) v The Secretary of State for the Home Department & Anor [2020] EWHC 1299 (Admin) (21 May 2020)

The “no recourse to public funds” or “NRPF” condition produces the effect of making its subjects ineligible for almost all benefits paid from public funds, including those intended to maintain the basic welfare of children. This judicial review claim was successful on the ground that the NRPF regime fails to ensure that imposing the NRPF condition will not result in inhuman treatment contrary to article 3 of the ECHR and is therefore contrary to section 6 of the Human Rights Act 1998 as expounded by the House of Lords in Limbuela [2006] 1 AC 396. According to the High Court, the NRPF regime, comprising paragraph GEN 1.11A and the earlier Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes Instruction read collectively, did not adequately recognise, reflect or give effect to the Home Secretary’s duty not to impose, or to lift, the condition of NRPF in cases where the applicant is not yet, but will imminently suffer inhuman or degrading treatment without recourse to public funds. “W”, the claimant, was born in August 2011 and was British and he made his claim through his litigation friend, his mother “J” a national of Ghana who entered the UK in 2009 and was granted leave to remain in the UK as his parent on the 10-year route to settlement in 2013 for 30 months subject to the NRPF  condition. 

Since 2013, J had variously received leave to remain subject to a condition of NRPF. She worked as a carer for mentally disabled people, but the imposition of the condition led to her and W to endure periods of destitution. They even became street homeless once and were then housed by a local authority. They also relocated repeatedly and W had to move school five times before he was eight years old. Given that the claimant W succeeded on the article 3 ground it became unnecessary for the court to determine the challenge on the remaining five grounds which among other things alleged breaches of the public sector equality duty contrary to section 149 of the Equality Act 2010 and the common law duty to take into account all relevant considerations and the statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009. Notably, section 3 of the Immigration Act 1971 contemplates a NRPF condition and person subject to a condition of this type is a “person subject to immigration control” within section 115(9) of the Immigration and Asylum Act 1999 and is excluded from eligibility for universal credit, income-based job-seeker’s allowance, state pension credit, employment and support allowance, personal independence payment, attendance allowance, severe attendance disablement allowance, carer’s allowance, disability living allowance, a social fund payment, health in pregnancy grant and child benefit: as detailed in section 115(1) and (3) of the 1999 Act.

Upper Tribunal: Policy on fee waivers is unlawful

In R (otao Dzineku-Liggison) v SSHD [JR/2249/2019], the UT held that the Home Office’s policy on fee waivers, namely the Fee Waiver: Human Rights-based and other specified applications, version 3.0 (dated 4 January 2019), is unlawful. UTJ Blundell took the view that a Ghanaian family of five – mother, father and twin sons aged nine and a daughter aged five – had made a valid human rights claim but that the Home Office had denied their claim but ultimately accepted that a human rights claim can be made in a letter. The mother arrived in the UK in 2006 on a Working Holiday Maker visa with valid rights until 2008 but she overstayed. The father came to the UK on a Working Holiday Maker in May 2005 with leave to enter until May 2007 and his leave was extended until November 2007 but he also overstayed. The children were born in the UK in June 2010 and July 2014 respectively. Later in December 2018, the whole family applied for leave to remain relying on article 8 of the ECHR, providing the decision-maker with supporting evidence and a covering letter submitting that their removal would breach their Convention rights, with an emphasis on the children’s best interests as the older two children had lived in the UK for more than seven years (accordingly it would not be reasonable to expect them to leave as set out in paragraph 276ADE(1)(iv) of the Immigration Rules).  

The family completed Form FLR(FP) and Appendix 1: Request for a Fee Waiver and their bank statements showed that they had no money. They said that there was no prospect of the payment for their application – £7665 with the Immigration Health Surcharge – within the foreseeable future and a fee waiver should therefore be granted. In their application form the applicants did not tick the “I am destitute” box but ticked the “I am not destitute but I would become destitute if I paid the application fee”. Also ticked was the statement that they were not destitute and would not become destitute if the the application fee was paid, however the  existence of exceptional circumstances relating to their financial circumstances meant that the applicants/their dependants were unable to pay the fee for the application. The family sent a detailed covering letter and checked boxes to indicate that all sections of the form had been completed and provided all the documentary evidence required and enclosed a fully completed application for leave to remain. By way of a decision dated 25 January 2019, the decision-maker said that they did not qualify for a fee waiver as “you are not considered to be destitute, you have not demonstrated that you would be rendered destitute by payment of the fee, and it is not considered that there are exceptional circumstances in your case such that a fee waiver should be granted”.

Statement of changes to the Immigration Rules CP 232

Statement of changes to the Immigration Rules CP 232 of 14 May 2020 makes a raft of changes to the Immigration Rules which will take effect on 4 June and 24 August. Some changes are being made to the Immigration Rules for the EU Settlement Scheme (EUSS), set out in Appendix EU, and for the EUSS family permit and travel permit, in Appendix EU (Family Permit). The key changes in respect of the EUSS and the EUSS family permit and travel permit relate to the following points. They bring the family members of the people of Northern Ireland within the scope of the EUSS (and of the EUSS family permit and travel permit). They also extend the scope for victims of domestic violence or abuse to apply for status under the EUSS. The changes also affect the Start-up, Innovator, Tier 2 Intra-company transfer and Representative of an Overseas Business categories. The EUSS and the EUSS family permit and travel permit changes are made in keeping with the New Decade, New Approach publication by the UK and Ireland on 9 January 2020 in anticipation of the restoration of devolved government in Northern Ireland, to bring family members of the people of Northern Ireland within the scope of the EUSS (and of the EUSS family permit and travel permit). This will enable eligible family members of the people of Northern Ireland to apply for UK immigration status, under the EUSS, on the same terms as the family members of Irish citizens in the UK.

This immigration status will be available to the family members of all of Northern Ireland’s people irrespective of whether the person of Northern Ireland holds British or Irish citizenship or both, and regardless of how they identify. Provision is also made to extend the scope for victims of domestic violence or abuse to apply for status under the EUSS. In line with the Withdrawal Agreement and Directive (2004/38/EC), this is currently confined to a former spouse or civil partner whose marriage or civil partnership has been legally terminated and who was a victim of domestic violence or abuse while the marriage or civil partnership was subsisting. In line with the UK’s wider commitment to tackle domestic violence or abuse and protecting victims, the changes under CP 232 will mean that any family member within the EUSS ’s scope (a spouse, civil partner, durable partner, child, dependent parent or dependent relative) whose family relationship with a relevant EEA citizen (or with a qualifying British citizen) has broken down permanently as a result of domestic violence or abuse will have a continued right of residence where this is warranted by domestic violence or abuse against them or another family member. Such persons will be in a position to rely on this, along with their own continuous residence in the UK, in applying for status under the EUSS.

Mother of British child fails on Chikwamba and Zambrano

Younas (section 117B(6)(b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC)(24 March 2020) 

Chikwamba [2008] UKHL 40 and Zambrano (C-34/09, EU:C:2011:124) were landmark cases. The Chikwamba principle is that there is no public interest in removing a person from the UK in order to seek an entry clearance from abroad that would be certain to succeed. The Zambrano substance of rights test says that a non-member state national (or a third country national “TCN”) parent of an EU citizen child resident within the EU is entitled to reside in the EU. And at the heart of the Zambrano jurisprudence lies the requirement that the EU citizen would be compelled to leave EU territory if the TCN, with whom the EU citizen has a relationship of dependency, is removed. The UT was unimpressed with the argument that Mrs Younas, a Pakistani citizen who had resided in UAE for most of her life, was in a position to rely on these cases to remain in the UK after entering the UK on a visitors visa while pregnant and giving birth to a British citizen child. She argued that the assumption that she would be able to re-enter the UK from Pakistan was wrong as she would be unable to satisfy the financial eligibility requirements for entry as a partner. She claimed that it was unlawful to remove her from the UK because she was entitled to a right of residence in order to avoid her daughter being deprived of the genuine enjoyment of the substance of her EU citizenship rights in accordance with Zambrano and Patel [2019] UKSC 59 (discussed here). 

Mrs Younas applied for six months leave to remain stating that she was 30 weeks pregnant and was advised that it was not safe for her to travel because of previous miscarriages. Her child was born in the UK and she later varied her application and asked for leave to remain on the basis of her family life with her partner/child but she was refused leave to remain under Appendix FM because she did not fall within the meaning of partner. She was a visitor and was therefore ineligible to be granted leave as a partner even if there would be insurmountable obstacles to her family life with her partner continuing outside the UK. She was also informed that she did not meet any of the private life routes to leave under paragraph 276ADE(1). Moreover, the refusal would not result in an unjustifiably harsh consequence that would breach article 8 of the ECHR because, having entered the UK as a visitor, she had no legitimate expectation of being able to remain permanently. Indeed, her daughter’s rights as a British citizen would not be denied by her removal because the child could remain in the UK with her father. When her appeal was heard in the UT, the Home Office accepted that there were insurmountable obstacles to her family life continuing outside the UK and it would not be reasonable or proportionate for the family unit to be indefinitely separated.

Supreme Court embraces Paposhvili and departs from N

AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 (29 April 2020) 

This appeal provided the Supreme Court the opportunity to consider whether to return a foreign criminal (“AM”) to Zimbabwe would violate his human rights under article 3 of the ECHR not to be subjected to inhuman treatment by reason of his medical condition, in light of the ECtHR’s landmark decision in Paposhvili v Belgium [2016] ECHR 1113. Lady Hale, Lord Wilson, Lady Black, Lady Arden and Lord Kitchin judged that the court should only refuse to follow a decision of the ECtHR in highly unusual circumstances and there was no question of the court not following Paposhvili. Giving the sole judgment, Lord Wilson explained that the time had finally come for the court to depart from the decision of the House of Lords in N (Uganda) v Secretary of State for the Home Department [2005] UKHL 31 and embrace the Grand Chamber’s decision in Paposhvili. The Supreme Court held that Sales LJ was wrong to consider that in substantive terms, Paposhvili intended to make a “very modest” extension of the protection under article 3 in medical cases. The Court of Appeal misinterpreted the ECtHR’s phrase “a significant reduction in life expectancy” in Paposhvili to mean “the imminence of death”. Lord Wilson began his judgment by clarifying that the appeal before the Supreme Court involved a highly controversial question of human rights law, namely the UK’s ability to deport a foreign citizen who committed serious crimes while lawfully resident here. 

The dialogue identified by his Lord Wilson was that many British citizens will react and say “We don’t want this man here” but he will respond “But I need to remain here”. AM is HIV positive and made the untested assertion that his deportation to Zimbabwe would deny him access to the medication which prevents his relapse into full-blown AIDS. Very serious conflict arose between public policy considerations and AM’s private existential needs. Indeed, this conflict led these two strands of opinion to “clash like warriors” and placed upon the law courts “a heavy burden in determining which should, under the law, prevail.” For the avoidance of doubt, article 3 of the ECHR states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Notably, AM abandoned his claim under article 8, which had failed in the tribunals, instead relying on article 3 in his Supreme Court appeal in which he submitted that the apex court should depart from the N case by reference to Paposhvili and to remit his case for rehearing by reference to article 3. The Supreme Court responded that the Court of Appeal had taken an “unduly narrow” interpretation of Paposhvili and was wrong to require imminent death. The court clarified that the obligation resting on the state to dispel “serious doubts” as to accessing medical treatment is “surely reasonable”.

Court of Appeal upholds right to rent checks

Secretary of State for the Home Department v R (otao The Joint Council for The Welfare of Immigrants) [2020] EWCA Civ 542 (21 April 2020)

Davis, Henderson and Hickinbottom LJJ have held that the statutory scheme (the “right to rent checks”), created by the Immigration Act 2014, sections 20-37 (Part 3 Chapter 1), that imposes obligations on landlords to take measures to ensure that they do not rent private accommodation to tenants who are disqualified by virtue of their immigration status is not incompatible with the ECHR – article 14 read in conjunction with article 8. Although the statutory scheme could still result in discrimination, it was nevertheless capable of being operated by landlords in a proportionate way in all cases and is justified. Yet in earlier proceedings reported as [2019] EWHC 452 (Admin), Martin Spencer J allowed the judicial review claim by the Joint Council for the Welfare of Immigrants (JCWI) and he made declarations that (i) the scheme is incompatible with article 14 read with article 8 of the ECHR, and (ii) a decision to commence the scheme in Wales, Northern Ireland and Scotland without any further evaluation of its efficacy and discriminatory effect would be irrational and a breach of the public sector equality duty laid down in section 149 of the Equality Act 2010 (the PSED). It was claimed by JCWI that the scheme produced the unintended consequences that those who are not excluded by the scheme from renting, but who were without British passports and ethnically British attributes, would be discriminated against by landlords in their administration of the scheme. 

Martin Spencer J held the scheme resulted in discrimination on grounds of nationality and/or ethnicity and that the executive was responsible for that discrimination. The court also held that the facts fell within the ambit of article 8, but not within it scope, and that the executive failed to justify the scheme, with the policy of the scheme being outweighed by its potential for race discrimination. The National Residential Landlords Association, the Equality and Human Rights Commission and the National Council for Civil Liberties intervened in these proceedings. The Court of Appeal held that the discrimination in this case was “justified” on the basis of the usual balancing exercise. The Court of Appeal’s point of departure was the observation that prior to arrival to the 2014 Act, section 25 of the Immigration Act 1971 as originally enacted made it an offence punishable by a fine and/or up to six months’ imprisonment for a person knowingly to harbour anyone whom he knew or had reasonable cause to believe was an illegal immigrant. This provision was later replaced by section 143 of the Nationality, Immigration and Asylum Act 2002 which deals with assisting unlawful immigration. In tandem with these provisions, Part VI of the Immigration and Asylum Act 1999 and Schedule 3 to the 2002 Act also restricted welfare support, including housing benefit, for irregular immigrants.

Windrush was avoidable but justice is still being denied

When the Windrush scandal began to surface in 2017, a lot of right wing people argued that the black community and investigative journalists were deliberately blowing things out of proportion to cause problems for Theresa May’s crumbling premiership. Actually, it was the other way around and Theresa May’s flagship “hostile environment” immigration policy towards immigrants had caused terrible problems for Black Britons, namely the Windrush generation who had been wrongly detained, deported and denied legal rights and social justice. With each passing day, new stories kept breaking in the papers and readers were left thinking how can this be happening in an advanced democracy like the UK? David Lammy, who is now shadow justice secretary, was outspoken on the subject and his advocacy and writings brought the plight of the Windrush generation further into the spotlight. Of course, a lot of extremists thought that David Lammy was making a fuss for nothing, that his behaviour was deliberately attention seeking and that an entire segment of the population being victimised by the Home Office were dodgy Jamaicans who were hell bent on cheating the UK authorities about their immigration status so as escape deportation from the UK. The former shadow home secretary Diane Abbott was also vociferous in her advocacy and criticism on the Windrush scandal and she was also abused and mocked like David Lammy.

Windrush Lessons Learned Review Independent review by Wendy Williams shows that a culture of disbelief exists in the Home Office and her findings contain some hard truths for both ministers and officials in the Home Office to swallow. The review by Wendy Williams is divided into four parts, namely what happened, when, and to whom (part 1), why the scandal happened (part 2), the department’s corrective measures (part 3) and findings and recommendations (part 4). She points out at the outset that the whole episode, which will inevitably tarnish the UK’s reputation for equality and human rights, was avoidable as it was driven by the extremist policies pursued by Theresa May and her government. Priti Patel did belatedly extend an apology to the Windrush generation in Parliament in light of the review. Indeed, Williams was crystal clear that the UK poorly served members of the Windrush generation and their children have been badly treated by this country. “They had every right to be here and should never have been caught in the immigration net,” she said and further lamented “many stories of injustice and hardship are heartbreaking, with jobs lost, lives uprooted and untold damage done to so many individuals and families.” While the scandal took the Home Office, and indeed the public, by surprise it is now very clear that “what happened to those affected by the Windrush scandal was foreseeable and avoidable.”

Judge’s role is only supervisory during the taking of evidence

WA (Role and duties of judge) Egypt [2020] UKUT 127 (IAC) (16 March 2020)

Vice President Ockelton and President Lane have given guidance to the effect that “during the taking of evidence a judge’s role is merely supervisory” and “if something happens during a hearing that disrupts the normal course of taking evidence it is essential that the judge records what happened and why; who said what; and what decision the judge made and on what basis.” The Home Office appealed a decision of the FTT whereby FTTJ Hollingworth unfairly allowed an Egyptian national’s appeal against the refusal of his protection claim. WA claimed that if returned to Egypt, he would be at risk as being, or being perceived to be, a supporter of the Muslim Brotherhood. WA’s claim stood or fell with the credibility of his account of his past activities in Egypt. In his cross-examination, the HOPO (Mr Hogg) drew attention to the fact that ill-treatment he had described during his oral evidence was not previously claimed. Upon further questioning regarding his exact connections with the Muslim Brotherhood and the Freedom and Justice Party, WA said that he had advocated civil disobedience, but was not in any way linked to any political party (he had had one or two thousand leaflets printed). President Lane and Vice President Ockelton were unhappy with the way the case had proceeded and was decided by the FTT. 

The cross-examination was then “interrupted” and FTTJ Hollingworth apparently granted an adjournment on 24 January 2019 (despite Mr Hogg’s objections) because in his view the scope of the case changed during cross-examination and unfairness arose to WA in relation to the exact scope of the case as presented on the basis of the witness statement submitted. The adjournment was granted to rectify this issue. The Home Office claimed that it was not right to say that an adjournment had been sought and that the case was adjourned on the FTT’s initiative. The grounds of appeal asserted that WA had claimed both to be a member and not to be a member of the Freedom of Justice Party and the Muslim Brotherhood. Indeed, it remained unclear whether membership of either of those organisations appeared in WA’s own account. Since he claimed association with both of them, the UT did not comprehend why there could have been any objection to Mr Hogg asking him for clarification. The UT said that the FTT did not set out either what the issue was or the reasons for resolving it in the way it did. The Home Office appealed arguing that the resulting decision, allowing the appeal, after a series of further events, was unfair and without any reason for doing so, FTTJ Hollingworth provided WA an opportunity to improve his case at a point where questions and cross-examination were getting difficult.

Royal Marine gambler with two sons loses deportation battle

LE (St Vincent and the Grenadines) v The Secretary of State for the Home Department [2020] EWCA Civ 505 (07 April 2020) 

The Court of Appeal has held that section 117C(5) of the Nationality, Immigration and Asylum Act 2002 applies to non-UK ex-service personnel who commit criminal offences, and its provisions cannot be overridden by any general duty to ex-service personnel and their families contained in the armed forces covenant. The appellant LE served as a Royal Marine Commando from November 2002 until October 2016 and he was on duty in Afghanistan and Iraq for which he was commended. Because of being a soldier he was exempt from immigration control under section 8(4) of the Immigration Act 1971. LE was born in July 1977 as a citizen of the UK and Colonies (CUKC). He ceased to be a CUKC upon the independence of St Vincent and the Grenadines in 1979 when he became a citizen of St Vincent and the Grenadines. Despite his militarily credentials he was convicted in October 2016 of dishonestly making false representations by tricking an elderly vulnerable woman into allowing him access to her bank account and emptying it of £20,000 to £30,000 for his own use. For this he was sentenced to 2 years’ imprisonment. His human rights claim was refused and a decision was made to deport him from the UK. He had two sons from different relationships, R born in November 2005 and D born in March 2011. LE married D’s mother S in 2012. They lived together as a family when he was not on service. 

Upon his release from prison in February 2018, LE resumed cohabitation with S and had daily contact with D but he then separated from S and contact with D became occasional. His contact with his son R was infrequent. The FTT allowed his appeal in February 2018 and found that his deportation would be “unduly harsh” within the meaning of section 117C(5) and that it would be a disproportionate interference with his family life. Later the UT decided that the FTT erred in law by allowing his appeal and the FTTJ failed to show exceptional circumstances or particular problems and matters making separation unduly harsh, effectively overriding the public interest in deporting foreign criminals as set out in section 117C(1) of the 2002 Act. The UT set aside the FTT’s decision and directed that the case be decided again in the UT which went on to decide against LE after a hearing in December 2018 in which LE gave evidence with his new partner CW, S and his employer.  The UT found their evidence to be truthful. S was recorded as saying that D did not want to see LE but wished to be kept in touch and said that a time will come when he will want to see his father. The UT discerned no basis to hold that the effect on either son would be harsh. The UT considered the armed forces covenant but found that there was no statutory exception for members of the armed forces facing deportation, or anything which meant that their families were entitled to special consideration.

Court of Appeal: Section 117B(6) of the NIAA 2002 requires a “fact-finding” approach

Runa v Secretary of State for the Home Department [2020] EWCA Civ 514 (08 April 2020) 

In this appeal Singh LJ accepted, and Baker LJ and Cobb J concurred, the submission that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a “fact-finding” approach in relation to the issue of the public interest in the removal of a parent of a qualifying child. The Court of Appeal found that the only question which arises under section 117B(6) is whether it would be reasonable to expect the child to leave the UK. Singh LJ reiterated that the focus has to be on the child, but the question needs to be answered against the background of the relevant facts, which includes what was likely to happen to the family unit if the person seeking leave to remain was required to leave the UK. Mrs Fahmida Khanom Runa entered the UK as a visitor in June 2006 with a visa from May 2006 to November 2006 and she became an overstayer but in June 2014 she married Mr Ali Hessan, a British citizen. Subsequently, on 1 April 2015 she applied for leave to remain in the UK as the spouse of a person present and settled in the UK. The application was refused on 10 June 2015 but the FTT allowed the appeal in September 2016. Later its decision was set aside in March 2018 by DUTJ Mandalia. Mrs Runa’s first son was born in October 2015 and is a British citizen. In October 2018, her second son was born who is also a British citizen.

The refusal of 10 June 2015 concluded that she was unable to satisfy the requirements of paragraph 276ADE(1)(vi) and Appendix FM of the Immigration Rules and the decision-maker applied the requirements for leave to remain as a partner under Appendix FM R-LTRP. Since Mrs Runa was unable to meet all the requirements of Section E-LTRP, the decision-maker applied the requirements for leave to remain as a partner under Appendix FM R-LTRP and considered the application by reference to the requirements of paragraph E-LTRP 1.1(a), (b) and (d). The decision-maker was not satisfied that the requirements of paragraph EX.1 were met by Mrs Runa as: (i) there was no evidence of insurmountable obstacles preventing her and her partner from continuing their relationship abroad in Bangladesh, and (ii) there were no exceptional circumstances which, consistent with article 8 of the ECHR warranting the grant of leave to remain outside the Immigration Rules. When the case came before DUTJ Mandalia, he first considered whether she met the requirements of para 276ADE and Appendix FM of the Immigration Rules. Since she had remained unlawfully in the UK as an overstayer, she could not satisfy the immigration status requirements set out in Appendix FM. Therefore the DUTJ considered para EX.1 and found that she was unable to establish that there were insurmountable obstacles to family life between her and her partner continuing outside the UK.

“Open for business”: Analysis of the UK’s new PBS

An “Australian-style points-based system” (new PBS) to control immigration was one of six guarantees given by Boris Johnson to “get Brexit done in January and unleash the potential of our whole country.” The new PBS is the cornerstone of the UK’s post-Brexit immigration policy which claims to put all foreigners on an equal footing when it comes to granting visas. Undaunted by the COVID-19 crisis, the new PBS ambitiously seeks to give fresh meaning to the slogan “open for business” but immigration lawyers will gleefully recall that New Labour had hammered out its own PBS (old PBS) for UK immigration long ago in March 2008. Prior to that in March 2006, A Points-Based System: Making Migration Work for Britain (CM 6741) was published. The old PBS involved a major change to the UK’s immigration system and it consolidated approximately 80 immigration routes into a five tier system whereby Tier 1 covered highly skilled migrants, Tier 2 covered skilled migrants, Tier 4 covered students and Tier 5 covered temporary workers. Tier 3, for unskilled workers remained suspended. The old PBS, which is currently in use, was presented to the public as providing greater control over migration and increased transparency for the benefit of visa applicants and the potential employers and education providers who sponsor them. It was introduced in phases, following extensive consultation with other government departments and stakeholder organisations.

Notwithstanding these seemingly positive traits, the old PBS quickly became a minefield and the law courts consistently held that it was so complex that it would arouse the envy of Byzantine Emperors, that it was kaleidoscopic and that it was not light reading. The Home Office marketed all these problems as a simplified one-stop migration process that judged applicants using clear and objective criteria to ensure consistency. Without a doubt, the old PBS caused problems for everyone and the unlawful practices associated with it were characterised by the Supreme Court as “a chimaera”. Yet the present government is keen to sell the new PBS as taking back control by the creation of a firm and fair visa system that attracts high-skilled workers who make a positive contribution to the UK’s economy, its communities and its public services: a system which supports a high wage, high-skill, high productivity economy. The policy documents are headlined that the UK exited the EU on 31 January 2020 and they harshly blame EU free movement law for distorting the UK’s immigration system and failing to meet the needs of the British people and simultaneously failing highly skilled migrants who wished to come the UK with a view to contributing to its economy and society. 

Domestic violence claim is not a human rights claim

MY (refusal of human rights claim: Pakistan) [2020] UKUT 89 (IAC) (27 February 2020) 

This decision brings further detriment to applicants relying on the domestic violence rules to obtain leave to remain. The result is that the Home Office can dictate the manner in which a human rights claim must be made so as to provide consideration and, if refused, to give rise to a statutory right of appeal. On the other hand, an assessment of whether a claim constitutes a human rights claim, as defined in statute by section 113 of the Nationality, Immigration and Asylum Act 2002, is not legally determinative. However, the Home Office guidance is broadly compatible with what the High Court in Alighanbari [2013] EWHC 1818 (Admin) has found to be the minimum elements of a human rights claim. MY, the Pakistani appellant, born in 1982, entered the UK in 2014 with limited leave to remain as the spouse of a person present and settled in the UK, whom he had married in Pakistan in November 2012. Prior the expiry of his leave, his marriage broke down irretrievably and he thus applied under Appendix FM of the Immigration Rules for leave to remain as a victim of domestic violence using form (SET)(DV) which failed to invite him to say whether there was any other reason why he might be entitled to leave to remain. However, a covering letter of representation described how his wife and in-laws in the UK mistreated him and said he had suffered psychological, physical, financial and emotional abuse as well as controlling and coercive behaviour. 

A medical report diagnosed MY as suffering from depression. Its author noted that MY was fearful that if he returned to Pakistan, he would be more vulnerable both mentally and psychologically. This was referable to “direct and implied threats made to him during his domestic abuse. Such fear of imminent mortal danger, having some basis in reality, superimposed on his tendency to be anxious and low, might prove extremely detrimental to his fragile mental health.” Notably, MY had provided his witness statement with his application and in it he expressed fear that if he returned to Pakistan “I have potential threaten of being murder (sic) in Pakistan by my in-laws”. The decision-maker said that any submissions he may have made relating to his human rights were not considered, as an application for settlement as a victim of domestic violence is not considered to be a human rights based application. He was therefore informed that if he wishes to apply for leave to remain, based upon his human rights or other compassionate practice it was open to him to apply using the appropriate application form. The ILR application on the basis on domestic violence was not to be conflated with a human rights based application, with the upshot that the decision-maker did not have to consider any human rights claim.

MLA without death penalty assurance breaches the DPA

Elgizouli v Secretary of State for the Home Department [2020] UKSC 10 (25 March 2020) 

This judgment his about a number of things. It is about mutual legal assistance (MLA), it is about the Islamic State in Iraq and Syria/Levant (ISIS/ISIL/Daesh), it is about the Data Protection Act 2018 (DPA) and EU law, and it is about the common law. But on the human side, this case is about a mother’s plea to save her allegedly terrorist son Shafee El Sheikh from the death penalty in the US. At first instance in the Divisional Court (discussed here), his mother Maha Elgizouli failed in her challenge against the Home Secretary’s decision to provide MLA to the US without first requiring an assurance that the death penalty would not be imposed on her son. However, in the present judgment, the Supreme Court heard her plea and allowed the appeal on the point that the decision failed to comply with the DPA. Along with Alexanda Kotey, El Sheikh is accused of participating in terrorist acts and the murder of UK and US citizens in Syria and of fighting for ISIS. Both men are presently detained by US forces in Iraq. The pair is accused of being part of the group nicknamed the “Beatles” which was led by the infamous Jihadi John who beheaded innocent civilians in Syria and then posted gruesome online videos of these barbaric acts. Unsurprisingly, the US authorities want to make examples out of them and US president Donald Trump called them “the worst of the worst!” 

El Sheikh had been deprived of his citizenship in December 2014 under section 40(2) of the British Nationality Act 1981 as such deprivation was conducive to the public good. He was entitled to Sudanese nationality and was thus not rendered stateless. The US made an initial MLA request to the UK in 2015 in relation to an investigation into the activities of the group but the then Home Secretary (Theresa May) required an assurance that the information would not be used directly or indirectly in a prosecution that could lead to the imposition of the death penalty. The US refused to provide a full death penalty assurance. But subsequently, in June 2018, the Home Secretary (Sajid Javid) agreed to provide the information to the US without requiring any assurance whatever. Maha Elgizouli then commenced judicial review proceedings to challenge the decision and the Divisional Court dismissed the claim. But it certified two questions of law of public importance: (i) whether it is unlawful for the Home Secretary exercise his power to provide MLA so as to supply evidence to a foreign state that will facilitate the imposition of the death penalty in that state on the individual in respect of whom the evidence is sought, and (ii) whether (and if so in what circumstances) it is lawful under Part 3 of the DPA, interpreted in the light of relevant principles of EU data protection law, for law enforcement authorities in the UK to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings.

Brexit: Appeal rights for EUSS applicants

The EU Settlement Scheme (EUSS), under which 3.34 million applications have been made and more than 3 million applicants have been granted status, caused uproar because applicants were not given any appeal rights and only had the right to administrative review (meaning that it was likely that another Home Office decision-maker would simply rubber stamp the first decision). However, the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 established, from exit day (31 January 2020), a right of appeal for EU, other European Economic Area (EEA) and Swiss citizens and their family members against decisions affecting their entitlement to enter and remain in the UK under the EUSS or decisions in relation to EUSS family permits or travel permits. These regulations apply to people who have made an application for, or have been granted, leave under the EUSS or entry clearance in the form of an EUSS family permit or travel permit. These regulations are necessary in order to meet the UK’s obligations under the Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement (“the Agreements”). The Agreements require that, where the UK operates, from exit, a scheme for EEA citizens and their family members protected by the Agreements to apply for residence status in the UK, the UK must also provide, from exit, judicial redress against any decision refusing to grant such EEA citizens and their family members residence status or any decision that otherwise restricts their entry and residence rights within the meaning of the Agreements.

The Agreements also specify that the redress procedures must allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the decision is based. As required by the Agreements, these regulations establish a range of appeal rights for those who apply under the EUSS and those whose rights under the scheme are restricted (for example, where their status is curtailed or revoked). Furthermore, they establish rights of appeal for those who are required to apply for entry clearance in the form of an EUSS family permit before they can apply in the UK for leave under the EUSS or who apply for entry clearance in the form of an EUSS travel permit. Indeed, where a person makes a valid application for leave under the EUSS, or for an EUSS family or travel permit, on or after exit day (31 January 2020), they will have a right of appeal against a decision to refuse the application, and in the case of an application under the EUSS, grant limited leave to enter or remain (pre-settled status under the scheme) where they believe they should have been granted indefinite leave to enter or remain (settled status under the scheme).