Case Preview: Kiarie and Byndloss v SSHD

After a raft of cases on the “foreign criminal” theme – such as Nouazli [2016] UKSC 16, Johnson [2016] UKSC 56, Makhlouf [2016] UKSC 59 and Hesham Ali [2016] UKSC 60 – were decided last year, Kiarie and Byndloss (Appellants) v SSHD (Respondent) are yet more appeals involving the controversial subject of deportation to have reached the Supreme Court. The big difference is that these conjoined appeals arising out of the “deport first, appeal later” regime are probably just the first in a long series of cases that will require the justices to interpret the testing mechanics of the Immigration Act 2014. Lady Hale and Lords Wilson, Carnwath, Hodge and Toulson recently heard these appeals and reserved judgment on the issue whether section 94B of the Nationality, Immigration and Asylum Act 2002 complies with the procedural and substantive protections under article 8 of the ECHR. Kiaire and Byndloss both had indefinite leave to remain in the UK but received imprisonment of two and three years respectively because of their unconnected convictions for serious drug offences. Consequently, the home office decided to deport Kiaire to Kenya and Byndloss to Jamaica. Kiaire spent most of his life in the UK with his parents whereas Byndloss has a British spouse and has at least seven children by different partners.

It was mandatory under section 32(5) of the UK Borders Act 2007 for a deportation order to be made in both cases unless an exception in section 33 applied. Kiaire was not initially informed that consideration was being provided to section 94B. The provision entered into force on 28 July 2014 and the Court of Appeal was “appalled by the complexity” of the way it interacted with the appellate process. Byndloss was notified that his human rights claim had been certified under section 94B with the result that his appeal could only be heard once he had left the UK. The decision-makers involved rejected the possibility that they faced a real risk of serious irreversible harm if removed from the UK while the outcome of any appeal was pending. Both appellants instituted judicial review proceedings against the decisions to certify their claims. BID and Byndloss’s children are intervening in these proceedings.

Jihad and the Cancellation of British Passports

R (XH and AI) v SSHD [2017] EWCA Civ 41 (02 February 2017)

Fighting in foreign wars is a rising trend among British Muslims. Now that more than 400 British jihadis have returned home they will inevitably indoctrinate impressionable youth into extremism. Ronald Fiddler, or Jamal al Harith, received £1m in compensation for abuses suffered in Guantánamo but he recently carried out a suicide bombing on behalf of the “Islamic State” (ISIS) group. The ironies are intense. Wounded servicemen are less fortunate and complain that they have to beg, borrow and steal to come up with funds to cope with the horrific life changing injuries that they suffered in the line of duty in Iraq and Afghanistan. Omar Deghayes was also detained in Guantánamo. Like hundreds of other British Muslims, his three young nephews went to Syria to overthrow the Damascus regime and two of them have reportedly been killed. Disgruntled Muslims in the West find it attractive to turn to extremism and violence to express rebellion against western values. The conflict is set to expand because of rising global resentment against Muslims who are perceived as being bad. Last month’s terrorist attack on Parliament by Khalid Masood – who converted to Islam like Fiddler – and Thursday’s thwarted attempt by Mohammed Khalid Omar Ali have only added further fuel to the fire.

XH and AI are British citizens who are considered a threat to the UK’s national security because of their ISIS links. Their passports were cancelled, using prerogative power, to prevent them from travelling to Syria/Iraq for extremist activities. It was contrary to the public interest for them to hold a British passport. The case raised important issues involving prerogative power and EU law. XH has convictions for criminal offences such as robbery, attempted robbery and possession of a bladed article. He was also found in possession of anti-American and anti-Israeli propaganda and violent jihad related videos. AI’s brother Mohammed travelled to Syria and is presently believed to be in Iraq supporting ISIS. From the authorities’ standpoint, the danger of them slipping away was such that it was appropriate to cancel their passports. XH was informed that he could travel within the EU, facilitated by a single-use travel document, if the risk was deemed to be manageable.

The Principles of Staying Proceedings in IJR

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

You might 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 IJR 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.

‘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.

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.

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.

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, 15^th 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.