Court of Appeal holds paragraph 276B(ii) and paragraph 322(5) represent discrete tests for refusing ILR

Tahir Yaseen v Secretary of State for the Home Department [2020] EWCA Civ 157 (14 February 2020)

The appellant, Mr Tahir Yaseen, a Pakistani national, failed to make timely tax returns for the years 2010/11, 2011/12 and 2012/13. He filed these returns later in December 2015 after the point when his continued residence in the UK was in issue – he was otherwise qualified to be granted ILR on the basis of completing 10 years’ residence in the UK. However, he was refused ILR on two separate bases under paragraph 276B(ii) and paragraph 322(5) of the Immigration Rules which are expressed in similar language in terms of undesirability, conduct and character. He lost in the FTT and the UT. But the Court of Appeal remitted his case for rehearing to allow for an analysis of the extent and impact of his conduct in his favour and the performance of the balancing exercise required in accordance with Balajigari [2019] EWCA Civ 673 (discussed here and here). Irwin LJ held that paragraphs 276B(ii) and 322(5) represent different, discrete tests which can be applied successively by officials. The former does not require dishonesty whereas the latter does. Mr Yaseen entered the UK in 2005 and he received successive grants of leave to remain and was granted leave to remain as a Tier 1 (General) migrant in June 2013 which expired in June 2016. In September 2015, he applied for ILR on the basis of long residence.

He was refused ILR in January 2016. The decision-maker stated that the application had been considered under paragraph 276B.It was accepted that he could establish 10 years’ continuous lawful residence. As regards “personal history, including character, conduct, associations and employment record” the decision-maker considered the information provided with his applications for leave in 2011 and 2013 which were based on evidence of income from employment as a security guard and evidence of self-employed earnings. The figures used by him in those applications were necessary for leave to remain then granted to him. In an ILR interview in December 2015 he confirmed that he had only submitted self assessment tax returns for the tax years 2010 to 2011, 2011 to 2012 and 2012 to 2013 in December 2015. The delay was because of poor services by his accountant but the Home Office decided that there were significant differences in the information initially provided to HMRC and the information provided to UKVI about his earnings. The refusal stated that these differences meant that in light of his character/conduct it would be undesirable to allow him remain in the UK and that he failed to satisfy the requirements of paragraph 276B(ii)(c).

Supreme Court refuses to take “retrograde step” on the tort of false imprisonment

R (Jalloh) v Secretary of State for the Home Department [2020] UKSC 4 (12 February 2020) 

The Supreme Court unanimously dismissed the government’s appeal in Jalloh (formerly Jollah) concerning the law on damages for the tort of false imprisonment. The appeal required Lady Hale, Lord Kerr, Lord Carnwath, Lord Briggs and Lord Sales to consider the meaning of imprisonment at common law and whether it should be aligned with the concept of deprivation of liberty enshrined in article 5 of the ECHR. During the course of her judgment, with which the other Justices agreed, Lady Hale examined various cases, including judgments of the ECtHR and English authorities. The claimant claimed to be a Liberian national named Ibrahima Jalloh whereas the Home Office asserted that he was a Guinean national named Thierno Ibrahima Diallo. But this conflict was irrelevant to the issues in the Supreme Court. He was granted asylum under his claimed name in 2003. However, after being convicted of various offences in 2006, the Home Office made a deportation order against him in July 2008 which was still extant when the events linked to these proceedings began. The deportation order was revoked in September 2015 and a new order made in December 2016. In April 2013 he was convicted and sentenced for yet another offence and on 16 April 2013, when the custodial part of his sentence expired, because of time already spent in custody on remand, he was detained under powers conferred by the Immigration Act 1971. 

The FTT granted him bail on requirements as to residence and electronic monitoring but not a curfew. He reported to an immigration officer as required and the bail granted by the tribunal ended. Papers with a “Notice of Restriction” were issued and stated that he was liable to be detained under the 1971 Act but that detention would not be maintained but that restrictions were being imposed upon him under paragraph 2(5) of Schedule 3 to the 1971 Act. The said restrictions included a requirement to report to an immigration officer every Monday, Wednesday and Friday, to live at a specified address, stating “You are to be monitored electronically by means of tagging/tracking” and required him to stay at home each night between the hours of 11.00 pm and 7.00 am. The notice also cautioned him that he would be liable to imprisonment or a fine upon failure to comply with the curfew without reasonable excuse. Electronic monitoring equipment was installed and the curfew was in place a total of 891 days, from 3 February 2014 until 14 July 2016. Overall Mr Jalloh did comply with the curfew but he did break it on a number of occasions by leaving the house for Ramadan activities and to attend family court proceedings in Coventry.

Court of Appeal allows European deportation appeal in part

Hussein v Secretary of State for the Home Department [2020] EWCA Civ 156 (13 February 2020) 

In a complex deportation appeal against a deportation order based on the deportee’s status as a permanent resident, the Court of Appeal was not convinced that in dismissing Mr Ismail Hussein’s appeal, FTTJ Cassel had applied the legal test set out in regulation 21(3) of the Immigration (European Economic Area) Regulations 2006 which required “serious grounds of public policy or public security” for deporting him. Mr Hussein was born in Somalia in 1984 and he joined his father in the Netherlands in 1994 where they were naturalised as Dutch citizens. They then moved to the UK, where Mr Hussein claimed continuous residence since 1998. He further claimed substantial family connections in the UK with his 10-year-old child by his ex-wife, his second wife and two stepchildren, and his father and other relatives. Following convictions for a spate of criminal offences since 2000 (including robbery, supply of drugs and possession of offensive weapons), which led to three periods in custody, a deportation order was made against him in 2016 under regulation 19(3)(b) of the 2006 Regulations. The Home Office disagreed that Mr Hussein had resided in the UK for 10 years whereby his deportation would have had to be justified on “imperative grounds of public security” under regulation 21(4). But it agreed that he had shown five years’ residence and as a permanent resident was accordingly entitled to protection under regulation 21(3). 

The decision-maker concluded that the threshold of serious grounds of public policy or public security had been satisfied on the evidence. UTJ Rimington dismissed his appeal against FTTJ Cassel’s decision. Mr Hussein submitted that FTTJ Cassel had applied the wrong test for the establishment of 10 years’ residence and had failed to carry out an “overall assessment” of his integrative links. He also submitted that although the FTTJ had correctly recognised that he had acquired permanent residence under regulation 15(1)(a), he failed to apply the appropriate test for deportation under regulation 21(3) and incorrectly framed it as whether his conduct represented “a present threat to society” rather than whether there were “serious grounds of public policy or public security” for deporting him in light of his criminality. The Court of Appeal allowed the appeal in part on the second ground connected to permanent residence and the test of serious grounds of public policy or public security. It dismissed the appeal on the first ground arising out of 10 years’ residence and the FTTJ Cassel’s failure to carry out an “overall assessment” of his integrative links.

Registration fees for British citizenship breach section 55 duty

R (PRCBC & Ors) v Secretary of State for the Home Department [2019] EWHC 3536 (Admin) (19 December 2019) 

The Project for the Registration of Children as British Citizens (“PRCBC”), and two child claimants “O” and “A” brought judicial review proceedings against the extortionate level of fees of £1,012 required for applications to register a child as a British citizen by the Immigration and Nationality (Fees) Regulations 2018. Mr Justice Jay held that the £1,012 fee was unlawful because in setting the fee level, the Home Secretary had failed in her duty to consider the best interests of children when discharging her functions in relation to immigration and nationality as required by section 55 of the Borders, Citizenship and Immigration Act 2009. PRCBC is a charity which works exclusively on the registration of children as British citizens. It gives legal advice and representation to children and young adults to assess and establish their British citizenship rights. PRCBC has also lobbied Parliament about the scale of the registration fee and in these legal proceedings it represented the interests of everyone adversely affected by the fee. The exact metrics are unknown and are disputed but it is estimated that some 120,000 children in the UK are without citizenship or leave to remain. O was born in the UK on 14 July 2007. She never left the UK and studies but is prohibited from working. O satisfied the requirements for registration under section 1(4) of the British Nationality Act 1981 after 10 years on 14 July 2017. 

Her mother was a single parent and the household could not afford the fee but was able to muster up the £372 to pay for the the administrative element of processing an application.  The rest the fee money effectively cross-subsidised other functions in connection with immigration and nationality. No exemptions, waivers or reductions applied in registration cases. The evidence showed that for a substantial number of children the prescribed fee was unaffordable. The Home Office refused to determine O’s application because the full amount was not paid. O identifies as British and wishes to be treated as British but is not perceived as such by her friends and by society. Paying the full fee is not an option for O and her mother. A was born in the UK on 13 June 2016 to a Nigerian mother and at the time of her birth her mother was married to a Lithuanian citizen. A’s biological father was a British citizen at all material times and she would be automatically entitled to British citizenship pursuant to section 1(1) of the 1981 Act were it not for section 50(9A). A and her mother have limited leave to remain in the UK and access state benefits and cannot afford the registration fee.

‘Black British’: Nigerian criminal wins in Court of Appeal

CI (Nigeria) v The Secretary of State for the Home Department [2019] EWCA Civ 2027 (22 November 2019) 

The Court of Appeal allowed a Nigerian criminal’s appeal after considering the scope and proper application of “Exception 1” to deportation set out in section 117C (article 8: additional considerations in cases involving foreign criminals) of Part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended). Sir Ernest Ryder (Senior President of Tribunals) and Hickinbottom and Leggatt LJJ further considered the correct approach to determining whether there were “very compelling circumstances” sufficient to outweigh the public interest in deportation under section117C. Presently aged 27, CI arrived in the UK with his mother when he was one year old and he has no family or other ties with Nigeria. His mother, who claimed asylum in 1994 was a child abuser and he entered the care system aged 15. She was a drug user. She made him purchase drugs for her or to beg for money from neighbours. Their house was dirty, CI and his siblings were deprived of food and he was denied use of the toilet. He was put into foster care when his mother denied him access to the house. Despite his absences from school, he gained six GCSEs and two AS levels. He offended in 2009 and 2010. In 2013, after pleading guilty, he was convicted of theft and attempted robbery. Later that year he was convicted of a further offence of robbery. In 2015 CI was convicted of an assault committed in prison and was sentenced to a further seven months’ imprisonment. 

Some evidence suggested that he committed the assault while he was in a psychotic state and he was diagnosed as suffering from a major depressive disorder with some significant post-traumatic traits. CI’s criminality resulted in the Home Office making a deportation order against him pursuant to section 32(5) of the UK Borders Act 2007 in July 2014, on the basis that he was convicted of a criminal offence for which he had been sentenced to a period of imprisonment of at least 12 months, which he resisted on the basis that his deportation would breach his private and family life rights pursuant to article 8 of the ECHR. CI’s British citizen son was born in December 2017. But he separated from his partner before the child was born and CI refrained from developing a relationship with his son for fear of the pain of separation if he were deported from the UK. The FTT allowed his appeal. However, the UT reversed the FTT’s decision and CI appealed to the Court of Appeal which had to determine the correct approach to approaching the exceptions to deportation set out in section 117C. CI’s mother applied for ILR in June 2002 under the Deportation Policy 5/96 (“DP5/96”), which set out criteria to be applied when considering whether enforcement action should proceed or be initiated against parents of children with long residence in the UK.

The public interest in deportation has ‘a moveable rather than fixed quality’ holds Court of Appeal

Akinyemi v The Secretary of State for the Home Department [2019] EWCA Civ 2098 (04 December 2019) 

The Court of Appeal thinks that it is necessary to approach the public interest in deportation in a flexible manner by accepting that in certain cases an individual’s circumstances can reduce the legitimate and strong public interest in removal. The number of such cases will necessarily be very few and they will be exceptional having regard to the legislation and the Immigration Rules. Sir Ernest Ryder (Senior President of Tribunals) and Moylan and Nicola Davies LJJ explained that the correct approach to be taken to the “public interest” in the balance to be undertaken by a tribunal is to recognise that the public interest in the deportation of foreign criminals has a moveable rather than fixed quality. The court held that when considering whether it was proportionate to make a deportation order against Mr Remi Akinyemi, a Nigerian national who had been born and lived his entire life in the UK, the UT had failed to conduct the balancing exercise identified in Hesham Ali [2016] UKSC 60 (discussed here), between the strength of the public interest in the deportation of the offender and the impact on his private and family life pursuant to article 8 of the ECHR. Mr Akinyemi was born in the UK in 1983 to Nigerian parents who entered the UK lawfully as students, his father was granted ILR in 1987 and British citizenship in 2004. His mother died in 1999.

He was one of three siblings and had never left the UK. Mr Akinyemi had a history of suicide attempts and suffered from epilepsy and depression. He had a very long criminal record and had 20 convictions for 42 offences, including causing death by dangerous driving and drug offences. Because of the legislation in force at the time of his birth, he did not acquire British nationality automatically. Despite having been entitled to British citizenship for many years, he never took steps to acquire it and remained a Nigerian national by virtue of his birth. He had never left the UK since his birth. He struggled with mental health problems and depression from a young age. His mother’s death when he was aged 14 impacted him significantly as did a false accusation of rape made against him. But he had not offended since January 2017, which he attributed to the relationship (regarded as genuine and long-term) he had been in for almost three years. His father thought of him as “a kind boy” and their relationship had become closer. His partner considered her relationship with him as being really good. She said that in recent times Mr Akinyemi had sought medical help, was coming to terms with his illness, and had finally grown into the man he wanted to be.

Zambrano carers: The test of compulsion is a practical test

Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019)

Addressing the scope of the substance of rights test devised in Zambrano (C-34/09, EU:C:2011:124), whereby 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, the Supreme Court has held that in Patel [2017] EWCA Civ 2028 the Court of Appeal was wrong to include the question of choice into the assessment of compulsion. Lady Arden held that the test of compulsion is a practical test which needs be applied to the actual facts rather a theoretical set of facts. The court also held that Chavez-Vilchez (C-133/15, EU:C:2017:354), which is purely a children case, does not relax the level of compulsion required in the case of adults. The Home Office submitted that the Zambrano principle “exists at the very edge of EU law”. The appellants, Mr Patel and Mr Shah argued that the doctrine is not necessarily restricted only to “exceptional cases” because of the centrality of EU citizenship which “is destined to be the fundamental status of nationals of the member states” under Grzelczyk (C-184/99, EU:C:2001:458). Mr Patel, an Indian national who entered the UK as a student, provides primary care to his elderly British father who suffers from final stage kidney disease. His British mother has a heart problem and suffers from poor mobility because of very poor knee function. Mr Patel’s application for ILR outside the rules was refused and the appeal was dismissed. 

A Pakistani national who entered the UK as a student, Mr Adil Shah is the primary carer for his British citizen child. His wife is a British citizen and works full-time. Both applied for a derivative residence card under regulation 15A of the then Immigration (European Economic Area) Regulations 2006 whereby, in order to implement Zambrano, a TCN is entitled to a derivative right to reside in the UK if they are a primary carer of a British citizen residing in the UK and the British citizen would not be able to reside in the UK or another EEA state if the TCN were made to leave. The Home Office refused to grant a residence card in both cases on the basis that the relatives they cared for would not be forced to leave the UK if the appellants left. The FTT and the UT allowed Mr Shah’s appeal. However, both tiers of the tribunal dismissed Mr Patel’s appeal. The Court of Appeal subsequently held that Chavez-Vilchez did not alter the Zambrano principle and Irwin, Lindblom and Thirlwall LJJ found that reported cases in England that implement Zambrano but pre-date Chavez-Vilchez do not hold diminished authority.