The Principles of Staying Proceedings in IJR

R (AO & AM) v SSHD (Stay of Proceedings – Principles) [2017] UKUT 168 (IAC) (28 March 2017)

You could be forgiven for thinking that only unethical people operating in the courts of Asia or Africa, where corruption reigns supreme, demand stays so as to frustrate the timely progression of cases. Courts clogged up with uncountable adjournments and stays are the hallmark of backward legal systems where those with more power habitually abuse the legal process. In reality the home office routinely uses the strategy of staying cases to gain the upper hand by delaying the timeliness of proceedings in order to frustrate the turning of the wheels of justice and uproot the rule of law. The present proceedings are protracted and these cases involve complex questions of refugee law. But the principles imparted in this presidential guidance are of very high value to anyone who has an interest in immigration judicial review (IJR). Even in straightforward everyday matters, which are not plagued by excessive complexity, those representing the secretary of state have a habit of asking for time to be extended for 35 days so that they can “take instructions” in order to file detailed grounds of defence. Usually no copy of an application to extend time will be served on the applicant or her representatives. Such outlandish behaviour is a regular feature in judicial review cases.

Another extraordinary tactic is to demand a stay so that the hearing date is vacated and a listed case can be forcibly put behind a supposedly important case; the details of which are deliberately withheld. In such an environment, it is refreshing to learn that the stays sought by the home office in these proceedings were refused. Mr Justice McCloskey (President) held in these cases that UTIAC has the same power as the High Court to stay proceedings. The power is discretionary and its exercise is normally regulated by the important factors in the overriding objective. Moreover, great caution needs to be exercised if a stay application contends that the outcome of another case will significantly influence the outcome of proceedings. Furthermore, especially compelling justification will be needed to stay a case warranting urgent judicial decision-making. Finally, judicial priority must be given to unaccompanied teenagers suffering from serious psychological trauma seeking expedited family reunion. Continue reading

Posted in Access to Justice, Article 8, Asylum, CFR, Children, ECHR, Eritrea, Families, Judicial Review, Stays, UNCRC | Tagged , , , , , , , | Leave a comment

‘The Duty of the CPS is to the Public’: Article 8 and Prosecuting Refugees for False Documents

SXH (Appellant) v The Crown Prosecution Service (Respondent) [2017] UKSC 30

“This woman, in her short life, has had to endure experiences of the most horrific nature,” is how Lord Kerr described the appellant’s ordeal. However, the Supreme Court dismissed the Somali refugee’s appeal. Giving the main judgment, Lord Toulson held that a decision to prosecute an asylum seeker for entering with false documents does not breach article 8 of the ECHR. A victim of rape and extreme violence, “SXH” belonged to the minority Bajuni community. The Darood clan murdered her father. Her mother died in Al-Shabaab related violence. She escaped from Somalia, spent a year in Yemen and travelled to Holland from where she flew to the UK using a false British convention travel document supplied by an agent. Upon being discovered at UK immigration control she disclosed her true identity and immediately claimed asylum. After her asylum screening interview, an immigration officer informed her that if she returned to Holland she would not be prosecuted for the offence of possessing an identity document relating to someone else, with the intention of using it to establish her identity as that person’s identity, under section 25(1) of the Identity Cards Act 2006. She refused the offer, pressed her asylum claim and was consequently arrested on suspicion of committing the offence.

A conviction under section 25 was punishable with up to ten years’ imprisonment (section 25 was re-enacted by section 4 of the Identity Documents Act 2010). UNCHR intervened in these proceedings  The Prosecution of Offences Act 1985 created the CPS which is an autonomous body advising police, immigration and other officials on bringing criminal charges. The DPP heads the CPS and section 10 of the 1985 Act requires her to issue a Code for Crown Prosecutors which obliges prosecutors to apply a two-stage test in deciding whether someone should be prosecuted for an offence. Stage one is connected to considering whether sufficient evidence exists to provide a realistic prospect of conviction. Stage two turns on wide-ranging considerations and involves deciding whether a prosecution would be in the public interest. Continue reading

Posted in Agents, Article 5, Article 6, Article 8, CPS, ECHR, Judicial Review, Refugee Convention, Somalia, UKSC | Tagged , , , , , , , | 1 Comment

Case Preview: SM (Algeria) (Appellant) v Entry Clearance Officer, UK Visa Section (Respondent)

Three years ago in AA (Somalia) v ECO (Addis Ababa) [2013] UKSC 81, the Supreme Court considered whether a Somali child in her brother-in-law’s care under the doctrine of Kafalah – a process of legal guardianship and the Islamic equivalent to adoption – was an adopted child under paragraph 352D of the Immigration Rules relating to leave to enter or remain as the child of a refugee. The court held that paragraph 352D did not extend to AA’s case and could not be rewritten in order to do so. Last month Lady Hale and Lords Kerr, Wilson, Reed and Hughes considered the question whether an Algerian child known as “SM” adopted under the Kafalah system is a direct descendant or extended family member of her sponsor within the meaning of regulations 7 and 8 of the Immigration (European Economic Area) Regulations 2006 which transpose articles 2 and 3 of Directive 2004/38/EC. Mr and Mrs M are French nationals exercising free movement rights in the UK. They have been resident here for many years and Mr M has a permanent right of residence. In 2009 the couple went to Algeria where they were assessed for their suitability for legal guardianship under the Kafalah system. They became SM’s legal guardians pursuant to Kafalah in 2011.

After abandoning her in hospital, SM’s biological mother did not reclaim her within three months as permitted by Algerian law. SM was refused entry clearance as a visitor. She subsequently relied on EU law but her application for admission to the UK as a family member of an EEA national exercising free movement rights under the 2006 Regulations was refused. The Upper Tribunal (UTJ Allen and DUTJ Bruce) allowed her appeal against the First-tier Tribunal’s decision. FK and MK (EEA Regulations: ‘Descendants’ meaning) Sierra Leone [2007] UKAIT 00038 precluded SM from being a direct descendent because she was not legally adopted. She was also not a family member. However, the UT was attracted to interpreting EU law purposively and found that she was an extended family member. Continue reading

Posted in Adoption, Algeria, Article 8, CFR, Children, Citizens Directive, Entry Clearance, Immigration Rules, Islam, UKSC | Tagged , , , , , , , | 1 Comment

Deception and the Immigration Rules: Dishonesty is Necessary for a Document to be ‘False’

Agha v SSHD (False Document) [2017] UKUT 121 (IAC) (21 February 2017)

The officials of the Federal Investigation Agency are much maligned in the West. In my encounters with FIA officials, in their role as immigration officers in Pakistani ports, they have been rather honest and polite unlike their very rude British counterparts. I know for a fact that the Director-General of the FIA will usually go out of his way to help British citizens with legal problems in Pakistan. That is not to say that all FIA officials are honest. Many of them are corrupt. However, the extreme racism and outright incompetence in the British home office is such that it surpasses any corruption that one can observe in Pakistan’s immigration discourse. Rapacity reminiscent of the East India Company is reflected in extortionist increases in immigration and nationality application fees. In this case, the entry clearance officer (Abu Dhabi) refused Ali Ahmed Agha’s visit visa in September 2015. In the ECO’s aid, an Immigration Liaison Manager based in Islamabad, Mr Martin Banks accused FIA officials of taking bribes to “roll back” stamps (allegedly for as little as £3.50). He claimed that British officials reported 185 such cases to the FIA in 2016 alone. Agha had visited the UK in 2007, 2008 and 2009. He re-entered in 2010 as a student.

His leave was extended on that basis but was later curtailed because he ceased to attend his university course. Obliged to leave by 30 November 2014, he voluntarily left the UK and arrived in Pakistan on 29 November 2014. Agha did not overstay or breach the conditions of his leave. The parties agreed that he arrived in Pakistan on 29 November 2014 but the problem for Agha was that the FIA entry stamp on his passport was dated 29 October 2014. Subsequently, his application for entry clearance under Appendix V of the Immigration Rules was refused on 6 September 2015. The ECO alleged that he used a false document because a document verification report found that the FIA entry stamp was most probably false. Moreover, the refusal intimated that any future applications would result in automatic refusal for 10 years. Continue reading

Posted in Agents, Appendix V, East India Company, Entry Clearance, False Statements and Misrepresentations, Immigration Rules, Judges, Judicial Review, Pakistan, Students, Visitors | Tagged , , , , | Leave a comment

Lex Loci Celebrationis and Proxy Marriage in English Law

Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 (23 March 2017)

Marriage by proxy is quite an important legal institution. As seen before, in the present case the home office agreed with Awuku that the Upper Tribunal fell into error by finding that he was not a spouse for the purposes of regulation 7 of the Immigration (European Economic Area) Regulations 2006. Somersaulting on its earlier position, the home office thus wanted the appeal to be allowed by consent on the basis that a line of authority in the Upper Tribunal, including the dubious decisions in Kareem [2014] UKUT 24 (IAC) and TA [2014] UKUT 316 (IAC), was wrongly decided. “Rather unusual circumstances,” is how Lloyd Jones, King and Lindblom LJJ described the overall state of affairs in this case. Awuku argued three grounds of appeal in the Court of Appeal. First that the UT erroneously concluded that the law by which the validity of the marriage is to be determined for the purposes of regulation 7 is the law of Germany. Second that it erroneously concluded in the absence of evidence that German law recognises a Ghanaian marriage by proxy as valid, the marriage would be unrecognised in the UK. And third that it erred in failing to address Awuku’s claim under article 8 of the ECHR.

Allowing the appeal on the first ground, Lloyd Jones LJ held that CMG Ockelton, Judge McKee, Deputy Judge McCarthy had been wrong in Kareem to create a new rule of private international law requiring reference to the law of the member state of the EU national in order to determine the marital status of a spouse or partner for the purposes of Directive 2004/38/EC. In light of analysis and commentary in Dicey, Morris and Collins on the Conflicts of Laws, 15th Edition (2012), Lloyd Jones LJ held that marriage by proxy would be treated as valid in England if recognised by the local law. It was clear to the court that there is nothing inherently unchristian about proxy marriage. Subsequent to the last hearing, these proceedings benefitted from adversarial argument from an advocate to the court. Of course, the mistakes made by the three judges in Kareem have been rather costly for those adversely affected by that decision. Continue reading

Posted in Article 8, Citizens Directive, CJEU, Court of Appeal, European Union, Judges, Spouses | Tagged , , , , , , | Leave a comment

‘Insurmountable Obstacles’ and ‘Exceptional Circumstances’ Tests Approved by Supreme Court

Agyarko and Ikuga v SSHD [2017] UKSC 11 (22 February 2017)

“Insurmountable obstacles” and “exceptional circumstances” are every day expressions in immigration law but their real meaning has eluded the cleverest of judges. These two cases provided the Supreme Court the opportunity to shed much needed light on the meaning of these phrases in paragraph EX.1(b) of Appendix FM of the Immigration Rules and the Immigration Directorate Instructions where they respectively appear. Involving a mixture of important issues, this judgment allowed the Supreme Court to reiterate its own structured approach to proportionality recently espoused in Hesham Ali [2016] UKSC 60 (see here), as originally articulated in Huang [2007] UKHL 11. The intersecting themes involved the right approach to the application of article 8 to the removal of a non-settled migrant; the interpretation and legality of the terms “insurmountable obstacles” and “precariousness”; the lawfulness of Appendix FM under EU law or the Immigration Act 1971 in linkage to the expectation of relocation abroad; and the lawfulness of the decisions made on the facts of Agyarko and Ikuga’s cases. Applying Jeunesse v The Netherlands (2015) 60 EHRR 17, precariously formed family life must be interpreted to mean that it will be likely only in exceptional circumstances that the non-national family member’s removal results in a breach of article 8 of the ECHR.

Strasbourg tends to interpret phrases such as “insurmountable obstacles” practically and realistically. Terms such as “un obstacle majeur” and “major impediments” are also in usage and the test of insurmountable obstacles is a stringent one. In this important judgment given by Lord Reed, the Supreme Court unanimously dismissed both Agyarko and Ikuga’s appeals. The outcome confirms that the justices have given a clean bill of health to the rules because their text is consonant with the ECtHR’s jurisprudence. Moreover, the principle of EU law under Zambrano (Case C-34/09) and any associated situations of dependency were outside the scope of the exercise because an EU citizen was not being forced to live outside the EU. The government was even more triumphant in these appeals than it was in the judgment in MM (Lebanon) & Ors [2017] UKSC 10. Continue reading

Posted in Appendix FM, Article 8, Children, CJEU, Court of Appeal, ECHR, Enforcement, Entry Clearance, Immigration Act 2014, Immigration Rules, Judicial Review, Proportionality, Spouses, UKSC | Tagged , , , , , , , , | 2 Comments

Supreme Court: MIR is Lawful

MM (Lebanon) & Ors v SSHD and Anor [2017] UKSC 10 (22 February 2017)

Victims of the dreaded Minimum Income Requirement must have preferred the first instance judgment when they enjoyed greater success before a single judge. Afterwards the Court of Appeal decided otherwise by holding that the MIR is lawful. The Supreme Court sadly followed suit. Containing a core feature that demands a gross annual income of £18,600 to sponsor a partner for a visa, the MIR imposes additional requirements of £3,800 for the first child and £2,400 for each child thereafter. All this does not apply to EEA-nationals but applies to British citizens and settled migrants. It also applies to refugees, and those granted humanitarian protection, aiming to sponsor a post-flight partner and dependent child or children. Although the MIR allows minimum specified savings of £16,000 to rectify an income shortfall, neither the non-EEA partner’s income nor third-party support can be taken into account in calculating the UK partner’s income. The wheels of justice were slow to turn for the appellants and these proceedings arose out of the Immigration Rules introduced in June 2012. Back then Brexit was nowhere on the horizon. It was completely unheard of. But poor families suddenly split apart by Appendix FM had to wait for the more important judgment in Miller [2017] UKSC 5 to be pronounced first.

Stretching back many years, the lengthy litigation created by the harsh new mechanical system ultimately ended in an overall defeat for ordinary people because Lady Hale and Lords Kerr, Wilson, Reed, Carnwath, Hughes and Hodge held that the MIR is acceptable in principle. However, they also decided that the rules and the Immigration Directorates Instructions unlawfully fail to take proper account of the duty owed to the child under section 55 of the Borders, Citizenship and Immigration Act 2009. Apart from being almost impossible to understand because of having been drafted in an unfriendly style, the reformatted rules entailed a previously unseen, indeed almost unknown, type of calculus. Boosting refusals, alien variables crept into ordinary immigration applications. Nothing even faintly resembling the new system had ever been seen before. Continue reading

Posted in Appendix FM, Article 12, Article 14, Article 8, Children, ECHR, Immigration Act 2014, Immigration Rules, Judicial Review, MIR, Proportionality, s 55 BCIA, Spouses, UKSC | Tagged , , , , , , , | 1 Comment