Dual national Pakistani killer who renounced British citizenship loses deportation battle in Court of Appeal

Zulfiqar v Secretary of State for the Home Department [2022] EWCA Civ 492 (14 April 2022) 

In this important judgment on deportation, dual nationality, foreign criminals, executive powers and duties, proportionality, public interest and the right to respect for private and family life, the Court of Appeal has unanimously held that a person’s status as a foreign criminal status within the meaning of section 32 of the UK Borders Act 2007 and section 117C of the Nationality, Immigration and Asylum Act 2002 has to be determined at the date of the decision to make a deportation order. Underhill, Arnold and Snowden LJJ held that the fact that a foreign criminal had lived in the UK all their life and/or had committed the offence which rendered him liable to deportation while he was still a British citizen did not mean that there was no public interest in his deportation. The Court of Appeal agreed with the Upper Tribunal’s view in Zulfiqar (Foreign criminal: British citizen) Pakistan [2020] UKUT 312 (IAC), see here, that it was proportionate to order Mr Zulfiqar’s deportation in the public interest. Mr Zulfiqar was born in the UK in 1979 and he held dual British and Pakistani nationality from birth. He lived in the UK his whole life and had only visited Pakistan once. In 2005 he was convicted of murder and sentenced to life imprisonment with a minimum term of 15 years. In 2011 he renounced his British citizenship so as to qualify for consideration for transfer to Pakistan to serve the remainder of his sentence there. 

The reason for Mr Zulfiqar’s renunciation of British citizenship was to be near his father who had returned to live in Pakistan and was ill. However, his application for transfer to Pakistan was refused. Then in 2013, while in prison, he got married to a British citizen who had two children by a previous relationship, but Mr Zulfiqar did not have a parental relationship with them. In 2018, the SSHD made a deportation order under section 3(5)(a) of the Immigration Act 1971. However, Mr Zulfiqar had wanted to live in the UK with his wife on release and appealed to the First-tier Tribunal claiming that his deportation would be incompatible with his rights under article 8 of the ECHR. The FTT considered whether deportation would involve a disproportionate interference with his article 8 rights, on the basis that he was not a “foreign criminal” for the purposes of section 117C as he had been a British citizen at the time of his conviction. However, FTTJ Feeney took the view that his deportation would be proportionate and dismissed the appeal and the Upper Tribunal likewise dismissed his appeal. The Upper Tribunal (Judges O’Callaghan and Mandalia) held that Mr Zulfiqar was a foreign criminal for the purposes of section 117C and Part 13 of the Immigration Rules. The Upper Tribunal further held that the FTT’s error as him not being a foreign criminal was not material because the nature of his sentence meant that he could not rely on the statutory exceptions to the public interest in section 117C. 

Wrongfully removed Afghan child wins Francovich damages

QH (Afghanistan) v Secretary of State for the Home Department [2022] EWCA Civ 421 (01 April 2022)

The Court of Appeal has held that a mere declaration was not just satisfaction for the SSHD’s admitted violations of the rights—pursuant to article 8 of the ECHR—of a minor Afghan asylum seeker caused by his removal to Germany and instead the admitted breach of article 27 of the Dublin III Regulation on the criteria for determining the Member State responsible for examining an application for international protection by a third-country national or a stateless person had indeed been sufficiently serious to entitle him to Francovich v Republic of Italy (Cases C-6/90 and 9/90) [1993] 2 CMLR 66 type damages. “A”, the appellant, was born in Afghanistan. His uncle “D” who moved to the UK, was granted asylum and became British in 2008. The appellant left Afghanistan in 2015. He first went to Greece, then to Germany, and entered the UK in April 2016 where claimed asylum. He said he was 16, claiming that he seen his father being murdered, that his brother had also been murdered, and further that he had  himself been kidnapped and tortured. But his age was assessed as 19. A found D and stayed with him, but made a stronger connection with his support workers. He was so traumatised by his terrible experiences in Afghanistan that in May or June 2016 he tried to commit suicide. He had provided the SSHD with an Afghani identity document showing that he was born in 2000.

Germany accepted responsibility for him under Dublin III. In April 2017 he was detained and a decision was made to remove him to Germany. He was removed just two days after being given notice of that decision. He claimed that he had been unlawfully removed, that he was a disputed minor and that his mental health had declined since he got to Germany and that his removal was a breach of Dublin III and government policy about removal in third country cases. At the time of his judicial review claim in October 2018, A was still in Germany and the judge found that the SSHD had unlawfully removed him without proper notice and in breach of policy. The SSHD conceded that the lack of notice had breached article 27 of Dublin III. So the judge quashed the removal decision, as well as decisions certifying as clearly unfounded the appellant’s asylum claim on third country grounds and his human rights claim, ordered the appellant’s return and required him to particularise his damages claim. In May 2020 the UT decided that A was born in 2000—meaning that he was a child when he was removed. It later decided that he had not had a family life with D when he was removed, but that his removal had breached his right to a private life and article 27 of Dublin III. However, the breach was not held sufficiently serious to warrant Francovich damages.

Guantánamo Bay detainee wins in Court of Appeal

Zubaydah v Foreign And Commonwealth Office & Ors [2022] EWCA Civ 334 (16 March 2022)

Abu Zubaydah, a Palestinian born in Saudi Arabia, is detained in Guantánamo Bay, Cuba. He was captured in March 2002 in Pakistan. He claims that between 2002 and 2006 he was unlawfully rendered by agents of the United States to six countries, namely Lithuania, Thailand, Poland, the United States Base at Guantánamo Bay, Cuba, Morocco and Afghanistan. In 2006 he was rendered again to Guantánamo Bay, where he has been detained without trial ever since. The CIA decided that he should be held incommunicado for the rest of his life and that is what has transpired. In this judgment concerning detention, extraordinary rendition, foreign torts, inhuman or degrading treatment or punishment and torture, the Court of Appeal held that Lane J had erred in concluding under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 that the law applicable to a claim for torts committed by the Secret Intelligence Service and the Security Service and while the appellant was detained in six countries by the CIA was the law of those countries. Dame Victoria Sharp PQBD, Thirlwall and Males LJJ held that Lane J ought to have concluded that the net significance of the factors linking the torts with the six countries was minimal, while the significance of the factors connecting the torts with England and Wales was very substantial, and that the general rule as to the applicable law was hence displaced under section 12. 

Zayn-al-Abidin Muhammad Husayn (aka Abu Zubaydah) was aggrieved by Lane J’s view that the law applicable to his claim for torts allegedly committed by the Security Service and the Secret Intelligence Service (“the Services”) while he was detained in six countries by the US Central Intelligence Service/CIA was the law of those countries. He said that between 2002 and 2006 he had been unlawfully rendered to six countries by the CIA and held in each country at a black site where he had been subjected to extreme mistreatment and torture. He claimed that during that time the Services had sent numerous questions to the CIA to be used during his interrogations without seeking any assurances that he would not be tortured or mistreated. He claimed that the defendants were vicariously liable for the torts thus committed by the Services, namely misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment, and negligence. These “black sites” have been described as secret detention facilities around the world, operating outside the US legal system. Abu Zubaydah was the first person to be detained in such a site as seen in the 2014 Report of the US Senate Select Committee on Intelligence. The United States did not accept the existence of these facilities at the time. Even after admitting the “black sites” programme in 2006, it has never confirmed the location of the sites. In Al-Nashiri v Poland/Husayn v Poland (2015) 60 EHRR 16, the ECtHR held that a black site existed in Poland and that the claimant had been held in it, during which time he suffered breaches of the ECHR. 

Fees Regulations not ultra vires the Immigration Act 2014

O (a minor), R (on the application of) v Secretary of State for the Home Department [2022] UKSC 3 (02 February 2022)

Dismissing this appeal, Lord Hodge, Lord Briggs, Lady Arden, Lord Stephens and Lady Rose held that the Immigration and Nationality (Fees) Regulations 2018 were not ultra vires the Immigration Act 2014, which authorised the SSHD to make subordinate legislation setting fees for applications to obtain British citizenship. Although the 2018 Regulations set the application fee for a child at a level which many children and their families could not simply afford, the 2014 Act did not impose any criterion of affordability. On the contrary, express powers were conferred on the SSHD to set high fees at levels which could subsidise other functions in relation to immigration and nationality. The appeal/case of “O” concerned whether subordinate legislation was ultra vires because it set the fee at which a child or young person could apply to be registered as a British citizen at a level which many young applicants have found to be unaffordable. O was born in the UK in July 2007. She attended school and had never left the UK. She was a Nigerian citizen, but from her tenth birthday she had satisfied the requirements to apply for registration as a British citizen under section 1(4) of the British Nationality Act 1981. O applied to be registered as a British citizen on 15 December 2017 but was unable to afford the full amount of the fee, which was £973 at that time. 

It was not disputed that many children and their families cannot afford the fee charged where an applicant is a child. Because the full fee was not paid, the SSHD refused to process O’s application. O was joined in her legal challenge by the charity known as The Project for the Registration of Children as British Citizens. The court said that statutory interpretation involves an objective assessment of the real meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which were being considered. The primary source by which meaning was to be ascertained is the words and passages in a statute read in the context of the relevant section as a whole and in the wider context of a relevant group of sections. Further, the relevant context could be provided by other provisions in a statute and the statute as a whole. Although the context disclosed by external aids to interpretation, such as Explanatory Notes, Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers, is relevant to assist the court to ascertain the meaning of the statute and whether or not there was ambiguity and uncertainty, external aids played a secondary role in interpretation and none of them would displace the meanings conveyed by the words of the statute that, after consideration of context, were clear and unambiguous and did not produce absurdity.

Proper notice is necessary in deprivation of citizenship cases

R (D4) v Secretary of State for the Home Department [2022] EWCA Civ 33 (26 January 2022) 

In these proceedings, upholding the decision of Chamberlain J, the Court of Appeal held that section 40(5) of the British Nationality Act 1981 provided that, before making an order depriving a person of British citizenship, the SSHD had to give that person written notice of her decision. The SSHD had appealed Chamberlain J’s findings and Sir Geoffrey Vos MR, Baker and Whipple LJJ held that regulation 10(4) of the British Nationality (General) Regulations 2003, which provided that notice would be deemed to have been given if it had been placed on the individual’s UK Home Office file, was ultra vires section 40(5) and section 41(1)  of the 1981 Act and was thus void and of no effect. D4 had travelled to Syria. She was assessed as having done so in order to join a proscribed terrorist organisation. On 27 December 2019, the decision to deprive her of her British citizenship was made and placed on D4’s Home Office file. On the same day, officials made an order depriving D4 of her citizenship. Section 40(5) obliged the SSHD to give written notice of her decision to D4 before making an order depriving her of citizenship. However, when the SSHD made her decision, D4 was detained in Camp Roj and had no valid address for correspondence. The SSHD therefore placed a notice of the decision on her Home Office file and went on to make the deprivation order.

In doing so, the SSHD relied on the deeming provision in regulation 10(4) of the 2003 Regulations, which provided that where there was no valid address for correspondence, the notice would be deemed to have been given if it was placed on the subject’s Home Office file. Regulation 10(4) had been made pursuant to  section 41(1)(e) of the 1981Act, which empowered the SSHD to make regulations “for the giving of any notice”. The High Court—Chamberlain J—upheld D4’s application for judicial review of the deprivation order, holding that the regulation 10(4) deeming provision was ultra vires section 40(5) and section 41(1) of the 1981 Act. Chamberlain J addressed the arguments before him in ten stages of reasoning which led him to conclude at that regulation 10(4) was ultra vires. He took the view that “I conclude that Parliament did not give the Home Secretary power to make regulations that treat notice as having been given to the person affected when it has not been given to that person but instead has simply been placed on a Home Office file. Regulation 10(4) is accordingly ultra vires ss. 40(5) and 41(1) of the 1981 Act. It is void and of no effect. As it is severable, its invalidity does not affect the other parts of reg. 10.” Whipple LJ found Chamberlain J’s examination of the issues to be of considerable assistance and she reached the same conclusion as he did for many of the same reasons.

SSHD can cancel ILR held by a person outside the UK

R (C1) v Secretary of State for the Home Department [2022] EWCA Civ 30 (19 January 2022)

According to the Court of Appeal, section 3B of the of the Immigration Act 1971 and article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 confer on the SSHD the power to cancel both limited and indefinite leave to remain (“ILR”) in the UK when the person who held that leave was outside the UK. It was the SSHD’s appeal against a declaration made by Mr Jay J that article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 only permitted the cancellation of limited leave to remain, and not ILR, held by a person who was outside the UK and that the detention of C1 was thus unlawful. The appeal concerned the meaning/legal effect of section 3B of the Immigration Act 1971 and article 13(7) of the 2000 Order. C1 was granted ILR in 2017. He departed from the UK and went to Iran on 21 November 2018. On 26 November 2018, while C1 was outside the UK, the SSHD in person decided to exclude him from the UK on the grounds that his presence in the UK was not conducive to the public good, and cancelled his ILR under article 13(7) of the Order and under paragraph 321A(4) of the Immigration Rules. C1 nevertheless tried to return to the UK several times and eventually succeeded in making his way back in an inflatable boat and he was detained for being an illegal entrant.

C1 successfully applied for judicial review of the decision to cancel his ILR. Article 13(7) gave the SSHD the power to cancel leave to remain in force under article 13 and held by a person who was outside the UK. The SSHD’s grounds of appeal were that Jay J erred in deciding that article 13(7) did not apply to ILR and/or, if and to the extent that he had held that article 13(7) was ultra vires the 1971 Act, section 3B, he had also erred. Section 3B was inserted into the 1971 Act by section 2 of the Immigration and Asylum Act 1999 and it was headed “Further provision as to leave to remain” and section 3B(1) gave the SSHD the power to make further provision with respect to the giving, refusing or varying of leave to remain.  The issue was whether section 3B authorised, and article 13(7) gave the power to, the SSHD to cancel ILR in the UK when its holder was not present the UK. Underhill, Asplin and Elisabeth Laing LJJ allowed the SSHD’s appeal and made some points. The case of R (MK (Tunisia)) v SSHD [2011] EWCA (Civ) 333 concerned the cancellation of the claimant’s non-lapsing indefinite leave to enter under article 13(7) and the SSHD had accepted that section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 had applied to the decision cancelling the claimant’s leave. The court held that the claimant’s indefinite leave to enter was extended by virtue of section 82 pending the determination of the appeal, with the result that he could return to the UK to exercise his right of appeal.

Corrupt Pakistani builders kept out by Court of Appeal

Hussain & Anor v Secretary of State for the Home Department [2021] EWCA Civ 2781 (26 November 2021)

In Pakistan, Mr Malik Riaz and his “Bahria Town” building business are synonymous with corruption and land grabbing. In this interesting judgment about corruption, dirty money and the infamous Malik Riaz Hussain and his vast property empire, Nicola Davies, Nugee and Snowden LJJ held that the SSHD had been entitled to cancel 10-year multi-entry visit visas held by Malik Riaz and his son Ali Riaz, who were the chairman and CEO of Bahria Town which had been implicated in unlawful land transactions in Pakistan. The evidence as a whole, which included judgments given in civil proceedings by the Supreme Court of Pakistan, supported the conclusion that the exclusion of the father and son from the UK would be conducive to the public good owing to their involvement in corruption and financial misconduct. Nicola Davies LJ held that there was no merit in the challenge to the visa cancellation decisions and UTJ Kebede was right that in all the circumstances “there is an overwhelming case to be made for saying that the respondent was entitled to reach the conclusion that she did and that there was nothing irrational in her doing so.” The ECO had cancelled their visas in December 2019 on grounds that, while they had not been criminally convicted, they had been involved in corruption and financial/commercial misconduct in Pakistan and their exclusion from the UK was therefore conducive to the public good because of their conduct, character and associations. 

The ECO’s conclusion was founded on Malik Riaz and Ali Riaz’s involvement with the affairs of their family company, a large property developer in which the former was the company’s chairman and the latter was the CEO. The ECO had had relied on many bits of information to make the decision to cancel the visas. Three judgments of the Supreme Court of Pakistan in civil proceedings which found that the company and/or the appellants had benefitted from a series of unlawful land transactions in Pakistan by virtue of which the company obtained valuable government-owned land at a significant undervalue. The first of those decisions had been made by a 2:1 majority. The ECO relied on successful applications by the UK’s National Crime Agency (NCA) to freeze the family’s accounts, and a subsequent settlement under which the family agreed to pay £190 million towards the amount owed under the Supreme Court judgments. The ECO relied on a final report submitted by the Joint Investigation Team in Pakistan under the direction of the Supreme Court in separate proceedings concerning alleged bribery and money laundering by the company and others. The ECO further relied on a reference filed by Pakistan’s National Accountability Bureau concerning investigations into land developments and misconduct of public officials, in which the company and Ali Riaz were named as accused. The ECO also relied on the fact that the company later offered to pay the full price of the land, and the Supreme Court of Pakistan accepted that it should pay 460 billion Rupees (or £2.3 billion) which would be guaranteed by four members of the family, including the father and son.

Supreme Court: SSHD cannot ignore a defective bail order

R (Majera) v Secretary of State for the Home Department [2021] UKSC 46 (20 October 2021)

In an appeal involving a question of constitutional importance (whether the government or anyone else can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order), the Supreme Court decided that a defective bail order made by the FTT in relation to an immigration detainee is not necessarily void simply owing to that defect. Mr Majera was a Rwandan national who came to the UK as a child and was granted ILR but in 2006 he was convicted of serious offences and it was recommended that he should be deported. A deportation order was made in November 2012 but was never implemented. An application made in March 2015 to revoke the said order remained undecided. After being convicted of serious criminal offences in 2006, he received a sentence of imprisonment for public protection and in 2013 he was transferred to open prison conditions where he worked as a volunteer at a charity shop. On 30 March 2015, upon release on licence, the SSHD decided to detain Mr Majera under paragraph 2 of Schedule 3 to the Immigration Act 1971, pending his removal or departure from the UK. Mr Majera applied to the FTT for bail under paragraph 22 of Schedule 2 to the 1971 Act. 

FTTJ Narayan decided that he should be released on bail on condition that he report to his offender manager and subject also to the conditions of his licence. The SSHD had sought a condition prohibiting Mr Majera from continuing to perform unpaid work, but FTTJ Narayan decided not to impose such a condition and FTTJ Narayan’s bail order did not require him to appear before an immigration officer at a specified time and place, despite paragraph 22(1A) of Schedule 2 to the 1971 Act requiring that it do so. On 30 July 2015, an immigration officer gave Mr Majera a notice which stated that “the Secretary of State has decided that you should not continue to be detained at this time but, under paragraph 2(5) of Schedule 3 to the [1971 Act], she now imposes… restrictions” and that he “may not enter employment, paid or unpaid” and that he be subject to a curfew. On 3 December 2015 and 4 January 2016, the SSHD refused requests made for the withdrawal of the prohibition on Mr Majera carrying out voluntary work and for the relaxation of the curfew restriction, respectively. Those decisions were challenged by judicial review on the ground that the SSHD could not lawfully impose conditions which the Tribunal had declined to order. The SSHD conceded that the curfew condition was unlawful, but nevertheless said that it was lawful to impose the condition relating to unpaid work as the bail order made by FTTJ Narayan was legally defective and therefore void.

One-application-at-a-time policy: Court of Appeal differentiates ‘human rights claim’ from ‘leave to remain’

MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500 (15 October 2021)

The Court of Appeal has held that an ILR application as a victim of domestic violence does not inherently involve a human rights claim and its refusal will accordingly not be accompanied by a right of appeal. The issue was whether the SSHD is to be regarded for the purposes of section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002) as having made a decision to refuse the appellant MY’s human rights claim (within the meaning of section 113 of the 2002 Act) notwithstanding that she has purported to decide only the application for leave to remain as a victim of domestic violence. Underhill LJ held, giving the sole judgment, that where an applicant applied for leave to remain on a specified ground and also advanced a human rights claim connected to that ground, the refusal of leave was not necessarily also a refusal of the human rights claim. Addressing the leave application while deferring the human rights claim would be in line with the SSHD’s “one-application-at-a-time” policy. The court held that in doing so, the SSHD would not, on a proper construction of section 82(1)(b) have “decided to refuse a human rights claim”. MY entered the UK on a spouse visa in 2014 and lived with his wife and her parents. He said that he was then the victim of repeated domestic violence from them. He separated from his wife in 2015 and was later divorced from her. 

His leave to remain was curtailed with effect from in 2016, but he claimed that he did not receive notice of curtailment. He then re-applied for leave to remain on different bases which were either withdrawn or rejected. In November 2017 he submitted an application for ILR using form SET (DV), accompanied by a letter by his solicitors. The form was initially rejected but was re-submitted. SET (DV) did not give MY a specific opportunity to raise his human rights claim. But in a witness statement mentioned in his response to section 4 of the SET (DV) form (“Evidence of Domestic Violence”) he made assertions which it was said sufficiently indicated his claim that his removal from the UK would breach his ECHR rights. He stated that he was suffering from a mental illness as a result of “the verbal, emotional, physical and financial abuse that I suffered in my marital life” said to engage article 8 and that if he returned to Pakistan he was at risk of being killed at the instigation of his in-laws, said to engage article 2 or article 3. A psychiatric report was attached to the form. The SSHD said that she accepted the witness statement as raising a human rights claim, although she said that this was not on the basis of article 8 but on the basis of article 2 or 3 and this was the basis on which the UT had proceeded. The decision in MY’s case was made in light of the provisions of Appendix FM catering for victims of domestic violence.

Permission to work guidance for asylum seekers breached section 55 duty

R (Cardona) v Secretary of State for the Home Department [2021] EWHC 2656 (Admin) (04 October 2021)

Linden J decided that the permission to work and volunteering for asylum seekers policy of 22 May 2019 (Version 8), was defective so far as it related to children because the wording was inconsistent with the requirement, implied by section 55 of the Borders, Citizenship and Immigration Act 2009, to take into account the welfare of the particular child as a primary consideration in every relevant case. Mr Cardona, the claimant, was a citizen of Honduras who arrived in the UK on 20 September 2018 with his wife and their daughter, who was then aged 21 months, and they claimed asylum. At the time of the hearing date on 27 July 2021, Linden J observed that nearly 3 years later, that application had yet to be determined although the court was told that an outcome was expected by 21 September 2021 absent special circumstances. In 2020, Mr Cardona received permission to work pending the determination of his application for asylum. However, in line with paragraph 360A of the Immigration Rules that permission was limited to employment in jobs on the Shortage Occupations List (SOL). Mr Cardona did not possess the skills or qualifications which would enable him to take up one of the occupations on the SOL. However, there were other jobs available in the area where he and his family were living, which local employers would be willing to offer him and which he would like to take up. 

The SSHD declined to exercise her residual discretion to depart from the Immigration Rules by disapplying the SOL condition in Mr Cardona’s own case, on the basis that no exceptional and/or compassionate reasons existed either generally or by reference to duty regarding children’s welfare in section 55 of the Borders, Citizenship and Immigration Act 2009. Mr Cardona challenged the permission to work and volunteering for asylum seekers of 22 May 2019 (Version 8) which was in force at the time of the decision dated 24 June 2020, as it applied to children. In IJ (Kosovo) v SSHD [2020] EWHC 3487, the court decided that the policy was defective in not referring to the residual discretion to depart from the Immigration Rules, and the policy had been amended accordingly. It was Mr Cardona’s claim that Version 8 failed to comply with section 55 as decision-makers were only directed to consider section 55 when deciding whether to grant permission to work in accordance with the Immigration Rules, and not when considering whether to exercise discretion to depart from the rules, and because it stated, after referring to the section 55 duty that it was very unlikely that a decision to refuse permission to work for an adult would adversely impact on a child or override the public interest in refusing permission to those who do not comply with the process in accordance with the rules. He argued that the decision did not give sufficient reasons and/or address the particular considerations of his case and was irrational. 

Supreme Court: Systemic unfairness in fast-track rules did not automatically invalidate all FTT decisions

R (TN (Vietnam)) v Secretary of State for the Home Department [2021] UKSC 41 (22 September 2021)

Through this judgment, the Supreme Court unanimously dismissed the appeal of “TN” which concerned the effect of structural unfairness in the Fast Track Procedure Rules 2005 on individual appeal determinations. The court held that the invalidity of the rules did not mean that all decisions made by the FTT under those rules were automatically null and void. An appellant would have to show that the hearing as a whole was unfair in their particular case because of the 2005 Rules. The court said that the guidance set out in the judgment of Singh LJ in R (TN (Vietnam)) v SSHD [2018] EWCA Civ 2838 should be adopted for applications to set aside appeal decisions made under the 2005 Rules. TN came to the UK in 2004 and made an unsuccessful asylum claim on religious persecution grounds. She was granted temporary admission but absconded. Her asylum claim was refused for non-compliance. TN came to the attention of the authorities again in April 2011 when she made fresh submissions claiming that she had been working in a nail bar. TN was then detained at the nail bar in February 2012 and removed to Vietnam in March 2012 but she returned to the UK two years later. She made a further asylum claim following her arrest for working illegally. That claim was also based on religious persecution and events  which had occurred after her removal from the UK; that along with a priest, her mother caused a financial crisis in the community. 

In August 2014, the SSHD decided that TN’s asylum claim was suitable for determination in the Detained Fast-track (DFT) process, and TN was detained at Yarl’s Wood Detention Centre. In her asylum interview in August 2014, TN claimed that she had been detained and tortured by the Vietnamese authorities on her return in 2012. She moreover said that she had been sexually abused on her return journey to the UK in 2014. But the decision-maker refused TN’s asylum claim on 14 August 2014. Her appeal was dismissed by the FTT as her account was incredible. Just before removal directions were in the process of being enforced, TN claimed for the first time that she was a victim of trafficking both on her return journey to the UK in 2014 and within the UK. Following a medical assessment to assess whether TN was a victim of trafficking, on 20 August 2015 the decision-maker rejected TN’s assertion that her new claim should be treated as a fresh asylum claim and maintained the removal directions. Ouseley J however held that the new claim was a valid fresh claim, and it remains outstanding; but he rejected her claim that the FTT’s previous determination was automatically a nullity. The Court of Appeal dismissed her appeal in relation to this latter point. Giving the leading judgment, Singh LJ held on the question of automatic nullity that the FTT in determining an appeal in a way which was procedurally unfair would be acting without jurisdiction, and  therefore unfairness had to be shown in the individual case (known as Singh LJ’s jurisdictional reason). 

Court of Appeal: “In-time” application can only be made before expiry of existing leave to remain

The Secretary of State for the Home Department v Waqar Ali [2021] EWCA Civ 1357 (14 September 2021)

In an appeal concerning a narrow question of construction of the phrase “in-time” for the purposes of paragraph 39E(2) of the Immigration Rules in the context of applications for leave to remain in the UK, the Court of Appeal held that paragraph 39E (which permits “any current period of overstaying will be disregarded”) of the Immigration Rules was not able to accommodate Mr Waqar Ali, a Pakistani national who entered the UK as a student and extended his leave in that category and then made a series of applications for leave all of which were refused. Overall, Arnold, Andrews Simler LJJ held that where the deadline for making an application for further leave to remain in the UK was on the expiry of any existing period of leave, an application was not “in-time” where it had been made after that date even where the Immigration Rules permitted a late application within a limited period of overstaying. The Court of Appeal judged that an application is made “in-time” for the purposes of paragraph 39E(2)(a) if it was made before the expiry of leave and an application made in the so-called “grace period” is not “in-time”. The question arose in relation to the Tier 1 (Entrepreneur) Migrant route but equally impacts many other leave to remain routes where applications for leave are made after the expiry of existing leave. 

The context was that Mr Ali was granted leave on 8 March 2013 to remain in the UK as a Tier 1 (Post-Study) Migrant and prior to the expiry of his leave he had made an in-time application as a Tier 1 (Entrepreneur) Migrant (“application 1”). This was refused as the decision-maker found that he was not a genuine business person. The decision set out his in-country appeal rights and stated that his previous leave would be extended until such time as any appeal was resolved, and that any new application should be made “before your current leave expires”. The FTT dismissed his appeal and both tiers of the tribunal refused his permission to appeal. He became appeal rights exhausted and his leave under section 3C  of the Immigration Act 1971 came to an end. By remaining in the UK without leave and he breached immigration law and became an overstayer. He reapplied, just less than 28 days after the expiry of his leave, as a Tier 1 (Entrepreneur) Migrant (“application 2”) and was refused leave to remain. Mr Ali was warned of his liability to detention and removal and the consequences of illegally overstaying. He applied for an administrative review which was unfavourable. However, instead of leaving, he reapplied as a Tier 1 (Entrepreneur) Migrant (“application 3”) but was refused as he was an overstayer and he was not able rely on paragraph 39E(2) as his application was not made within 14 days of the refusal of an “in-time application”.

Revival of section 3C leave approved by Court of Appeal

R (Akinola & Anor) v Upper Tribunal & Anor [2021] EWCA Civ 1308 (26 August 2021)

In these judicial review proceedings, the Court of Appeal decided that in circumstances where an extension of time had been granted for an out-of-time appeal against the refusal of an application to vary limited leave to remain, the original leave was revived under section 3C(2)(c) of the Immigration Act 1971 with future effect from the time when the appeal was instituted. The appeal was instituted and became a pending appeal within section 3C(2)(c) when the notice of appeal was filed, not the date when the extension of time was granted. The Court of Appeal found that the withdrawal of a decision did not have the consequence of causing leave to be extended retroactively under section 3C from the date of the decision. Three conjoined appeals, namely those of Ms Akinola, Mr Abbas and Mr Anwar, raised issues about the interpretation and effect of section 3C which provides for the extension of immigration leave in certain defined circumstances. Of key importance was the position under section 3C where an application has been made to vary existing leave, the application has been refused by a decision of the SSHD, and later (i) there is an out-of-time appeal for which an extension of time is granted, or (ii) the decision-maker withdraws and/or reconsiders the decision. The issues arose in the context of applications under paragraph 276B of the Immigration Rules for Indefinite Leave to Remain (ILR) on the ground of long residence. 

Ms Akinola, Mr Abbas and Mr Anwar all entered the UK as students. Importantly, in each case the question whether leave was extended by the operation of section 3C was relevant to whether the applicant had built up the required “10 years continuous lawful residence in the United Kingdom”. Each appellant had applied to vary their existing leave to ILR on the ground of long residence. Their applications had been refused and they had appealed. Under section 3C, where an application had been made for variation of existing leave before the leave expired and the leave expired without the variation application being decided the leave was extended under section 3C(2) during any period when the case was neither decided nor withdrawn; an in-country appeal could be brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002 or an in-country appeal under section 82(1) was pending. It was common ground that an out-of-time appeal for which an extension of time had been granted engaged section 3C(2)(c) as a pending appeal and resulted in a revival of the original leave. The issues were threefold (i) whether a revival of leave under section 3C had retroactive effect so as to run continuously from the time when it otherwise would have expired, (ii) if an extension of time was granted, an appeal was pending when the extension of time was granted or when the notice of appeal had been filed, and (iii) whether the withdrawal of a decision was functionally equivalent to the quashing of a decision by the court and had the like/same result that an application for variation would not have been decided until a fresh decision was taken on the application and leave would continue to be extended under section 3C(2)(a) in the meantime. 

Court of Appeal: An extended family member must demonstrate continuous dependency on the sponsor

Chowdhury v Secretary of State for the Home Department [2021] EWCA Civ 1220 (09 August 2021)

Dismissing this appeal, the Court of Appeal held that in evaluating whether an applicant qualified as an extended family member under regulation 8(2) of the Immigration (European Economic Area) Regulations 2006, the words “and continues to be” in regulation 8(2)(c) have to be read as speaking to a persisting state of affairs. Macur, Stuart-Smith LJJ and Sir Stephen Richards held that there was a need for an ongoing dependency and that the condition set out in regulation 8(2)(a) defined the starting point, and the condition set out in regulation 8(2)(c) defined the necessary duration. Mr Chowdhury was a Bangladeshi national who tried to enter the UK as a student with entry clearance for three years. In 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, living illegally in the UK. Five years later he applied for a residence card as the extended family member of an EEA national. In 2016, he applied for a residence card, claiming to be an extended family member of his great uncle Mr Nashir Chowdhury, who was an EEA national, in accordance with regulation 8(2)(a) and regulation 8(2)(c).

The decision-maker was not satisfied that he had been a dependent of his great uncle, either in Bangladesh or in the UK. The FTT determined that he had been dependent on his great uncle in Bangladesh, but that there was no evidence of dependency between 2011 and December 2014 or January 2015 when Mr Chowdhury was said to have joined his great uncle’s household in the UK. The UT upheld the FTT’s decision, finding that if an applicant had merely to establish past dependency to satisfy regulation 8(2)(a), and present dependency or membership of the EEA national’s household to satisfy regulation 8(2)(c), then the words “and continues to be” in regulation 8(2)(c) would be superfluous. UTJJ Mandalia and Hanson found that the language of regulation 8(2)(c) did not admit the possibility of a broken dependency. The member state’s obligations in respect of extended family members were clearly more restricted than in the case of family members falling within article 2 of the Directive and the member states had a wide discretion as regards the selection of factors to be taken into account. The member states were entitled to lay down particular requirements as to the nature and duration of the dependence in order be satisfied that the dependency was genuine and stable.

Afghan Refugees in Pakistan: Webinar on 31 August 2021

The withdrawal of US forces from Afghanistan and the return of the Taliban after two decades has left the world stunned and the UK rushed to airlift more than 4,000 UK nationals and Afghan citizens, while Joe Biden intends to stick to the 31 August deadline. These events show that the “war on terror” has been a complete failure. Furthermore, pumping a trillion dollars in the Afghan National Army (ANA) was a complete waste of money. Indeed, it appears to have been wishful thinking that the ANA would fight against Islamic militancy and its soldiers either deserted or joined the Taliban and 20 years of western efforts to build a stable state in Afghanistan quickly faded away as puppet government of Ashraf Ghani disintegrated in a matter of days. The Pakistan Institute of International Affairs (PIIA) is organising a webinar on Afghan Refugees in Pakistan: Past, Present, and Future on Tuesday, 31 August 2021 at 3:00 p.m. (PST). Joining link and details are below. Pakistan has hosted one of the world’s largest refugee populations for over four decades. In successive waves, refugees from Afghanistan have sought shelter inside Pakistan which, over the years, has hosted millions of Afghan refugees. It is estimated that 3 million Afghan refugees still reside in Pakistan but according to the UNHCR, only 1.4 million are registered and the humanitarian assistance provided by Pakistan for over four decades has made a significant impact on its economy and social life and on its strained resources.

Pakistan is not a party to the 1951 Geneva Convention on the Status of Refugees relating to the Status of Refugees/1967 Protocol and has also not enacted any national legislation for the protection of refugees nor established procedures to determine the refugee status of persons who are seeking international protection within its territory. Such persons are thus treated in accordance with the provisions of the Foreigners Act 1946. But modern refugee law is embedded in the 1951 Convention. Under article 1A(2) a “refugee” is any person who “owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or, who not having a nationality and being outside the country of his former habitual residence …, is unable or, owing to such fear, is unwilling to return to it …”. Hosting millions of refugees for many decades has stressed Pakistan’s local infrastructure, services and the environment, as many Afghan refugees presently form part of Pakistan’s informal economy. The repatriation of these refugees to their home country never fully materialised because of the continued conflict and violence in Afghanistan. With the withdrawal of foreign forces from Afghanistan and the Taliban forming the government in Kabul, a humanitarian crisis has developed with thousands of civilians fleeing the country. Pakistan has stated that it cannot take in any more refugees from Afghanistan. How will the world, in general, and Pakistan, in particular, manage this crisis? 

Deprivation of citizenship: Notice cannot be served by placing decision on subject’s Home Office file

D4, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 2179 (Admin) (30 July 2021) 

In these insightful judicial review proceedings, Chamberlain J held that prior to making an order depriving a person of British citizenship, the SSHD had to give that person written notice of her intention to do so. The court held that regulation 10(4) of the British Nationality (General) Regulations 2003, which provides that notice would be deemed to have been given in certain circumstances, was ultra vires section 40(5) and section 41(1) of the British Nationality Act 1981. D4 is currently detained at Camp Roj in north-eastern Syria and has been there since January 2019. On 27 December 2019, the decision to deprive her of her British citizenship was made by the Chancellor of the Exchequer (in the Home Secretary’s absence) and placed on D4’s Home Office file. On the same day, officials acting on behalf of the Chancellor made an order depriving D4 of her citizenship. For all practical purposes, the decision and order was treatable as made by the SSHD. Section 40(5) obliged the SSHD to give written notice of her decision to D4 before making an order depriving her of her citizenship. However, when the SSHD made her decision, D4 was detained in Camp Roj and had no valid address for correspondence. The SSHD therefore placed a notice of the decision on her Home Office file and went on to make the deprivation order. D4 was entirely unaware of the decision or the order until October 2020. 

In proceeding without having given written notice to D4, the SSHD had invoked on the deeming provision in regulation 10(4) of the 2003 Regulations, which stated that where there was no valid address for correspondence, notice would be deemed to have been given if it was placed on the subject’s Home Office file. Notably, regulation 10(4) was made pursuant to section 41(1)(e) of the 1981 Act, which had empowered the SSHD to make regulations “for the giving of any notice ”. In light thereof, D4 submitted that the power provided by section 41 to make regulations “for the giving of any notice” did not include a power to make regulations deeming service to have been effected in a situation where the notice could never have come to the subject’s attention. Accordingly, D4 submitted successfully, that the court should quash the deprivation order and declare that regulation 10(4) was ultra vires section 40(5) and section 41. Under section 40(2) of the 1981 Act, Parliament conferred on the SSHD the power to make an order depriving a person of British citizenship if satisfied that deprivation would be conducive to the public good. Parliament provided by section 40(5) that, before making such an order in respect of a person, she must give the person written notice specifying that she has decided to make an order, the reasons for it and the right of appeal.

SSHD wins in Supreme Court on legality of policy on initial age assessment of child asylum seekers

R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38 (30 July 2021) 

In this case, the Supreme Court unanimously allowed the SSHD’s appeal by holding that she was not obliged to issue policy guidance to eliminate uncertainty in the application of a stipulated legal rule. Where the lawfulness of policy guidance was in issue, however, it was necessary to consider the legal obligations of the person promulgating the guidance with regard to its content. Lord Reed (President), Lord Lloyd-Jones, Lord Briggs, Lord Sales, Lord Burnett decided that in the context of immigration, a policy that immigrants claiming to be children should be assessed as an adult only if their physical appearance/demeanour “very strongly” suggested that they were “significantly” over 18 was lawful and did not direct immigration officers to act in conflict with their legal duty under the statutory regime. The respondent, “BF”, was an Eritrean national who had entered the UK illegally with no identity documentation. He had claimed asylum as an unaccompanied minor, saying that he was 16. He was initially assessed by immigration officers as being significantly over 18, and probably in his mid-20s, and was detained. But subsequently age assessments carried out in accordance with the decision in R (B) v Merton LBC [2003] EWHC 1689 (Admin) determined that he was under 18. The Immigration Act 1971, as amended by the Immigration Act 2014, lays down the legal regime applicable to asylum seekers and Schedule 2 to the 1971 Act makes distinct provision as to the detention of asylum seekers who are unaccompanied children as compared with adults over the age of 18. 

The SSHD has issued policy guidance for immigration officers in cases of doubt as to the age of an asylum seeker presenting as a child. The guidance is set out in two documents: (i) an asylum instruction entitled Assessing Age and (ii) the relevant section of the general operational guidance issued to immigration officers entitled the Enforcement Instructions and Guidance (“the EIG”). Notably, section 55.9.3.1 of the EIG sets out various criteria for circumstances when the Home Office will not accept that an asylum seeker is a child. Criterion C was relevant to BF’s case. Criterion C initially provided that an asylum seeker would not be accepted as being under 18 if “their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary” (emphasis in original). This was subsequently amended to include a requirement within Criterion C that two Home Office officials must separately come to this conclusion. The Assessing Age instruction gives further guidance on the age assessment process, particularly in relation to Criterion C. BF was initially assessed as an adult by immigration officers applying Criterion C. He was accordingly detained as if he were an adult. More detailed age assessments were subsequently carried out in 2015, and it was eventually decided that he was aged less than 18. BF challenged the Policy by way of judicial review before the Upper Tribunal on the basis that it was unlawful in so far as based on Criterion C, as physical appearance and demeanour are an inherently unreliable guide to age. 

Court of Appeal upholds quashing of HMPO’s refusal to accept a mother’s applications for her children’s British passports

Secretary of State for the Home Department v GA & Ors [2021] EWCA Civ 1131 (23 July 2021)

On the SSHD’s appeal, the Court of Appeal held that Chamberlain J had been entitled to quash a refusal by Her Majesty’s Passport Office to accept a mother’s applications for British passports for her four children currently living in Country X. In December 2019, the mother applied to HMPO for British passports for the older three children, the fourth child having been issued with her British passport in 2020 after being born in England earlier that year. In a decision communicated by letter of 7 January 2020, HMPO refused to accept the applications because it required them to be supported by evidence of the consent of a person with parental responsibility under the law of Country X. It considered that person to be the children’s father alone. The mother was not considered to have any status at all. That was extremely problematic as it was either unsafe or impossible for the mother to obtain the father’s consent. In making the applications the mother had explained that he had recently been arrested after “months of extremely serious physical and psychological abuse including torture of me – much of this witnessed by the children – when he isolated us”. Chamberlain J quashed HMPO’s decision, holding that the SSHD could properly decide that questions of parental responsibility arising in connection with passport applications should be decided in accordance with the Hague Convention on Parental Responsibility and Child Protection 1996. Notably, article 16 provides that attribution of parental responsibility is governed by the law of the state of a child’s habitual residence.

Article 22 provides that application of the applicable law provisions of the Convention can only be refused if it would be manifestly contrary to public policy, taking into account the child’s best interests. Chamberlain J held that HMPO’s assessment that the mother lacked the authority to apply for the children’s British passports was not rationally sustainable on the evidence. If that was incorrect and the father did have sole parental responsibility under the law of Country X, he held that HMPO was required to apply article 22 when it applied article16; and that applying the law of Country X in the present case would be manifestly contrary to public policy within article 22, taking into account the children’s best interests; further that applying the law of Country X would involve unjustifiable sex discrimination, breaching article 14 of the ECHR read with article 8. Article 22 is headed “application of the applicable law provisions can only be refused if it would be manifestly contrary to public policy, taking into account the best interests of the child.” Article 16 is headed “attribution of parental responsibility is governed by the law of the state of the child’s habitual residence.” The UNCRC and section 55 of the Borders, Citizenship and Immigration Act 2009 concern the duty to safeguard and promote the welfare of children in discharging any function in relation to nationality. The SSHD accepted that dealing with passport applications is a function relating to nationality and did not maintain that the children’s residence in Country X disapplied the duty. 

Court of Appeal: De facto adoption rules seem to be irrational

R (AK & Ors) v The Entry Clearance Officer (Islamabad) & Anor [2021] EWCA Civ 1038 (09 July 2021)

In these proceedings concerning an application for permission to appeal, the court commented, but it did not decide, that there is a “strong case” that paragraph 309A of the Immigration Rules is irrational. In summary, the 11 applicants were nationals of Afghanistan. Their eldest sister came to the UK in March 2012 and was granted asylum in June 2012. The 11 applicants sought entry to the UK in June 2012 on the basis that they had been the subject of a de facto adoption by their sister in Afghanistan. Their application was refused as the applicants did not satisfy the requirements of the relevant rules. Ultimately, on 12 December 2017 the 11 applicants were granted discretionary leave to enter the UK for 33 months. That leave was granted outside the Immigration Rules on the basis that refusal of leave to enter would involve a breach of the right to respect for family life guaranteed by article 8 of the ECHR. Notably, paragraph 352D of the Immigration Rules provides that children whose parents have been granted refugee status in the UK may be granted leave to enter to join or remain with their parents. In 2003, changes to the rules came into force which amended the definition of “parent” to include the parent of a child who was the subject of a de facto adoption. The amendments provided a definition of de facto adoption, paragraph 309A of the Immigration Rules deals with adopted children. 

The relevant provisions of paragraph 6 provide that a “parent” includes: “(c) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or a court in a country whose adoption orders are recognised by the UK or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A.” The court said that the definition is “convoluted” but, essentially, for a de facto adoption to have taken place, the following requirements need to be satisfied. The adoptive parent (or parents); must have lived abroad for a minimum period of 18 months immediately preceding the entry clearance application by the child; must have been living with the child for a period of 12 months immediately preceding the application by the child for entry clearance; and must have assumed the role of the child’s parents, since the beginning of the said 18 month period, so that there has been a genuine transfer of parental responsibility. The applicants criticised aspects of this definition and criticised the requirement that the adoptive parent must have lived with the child in the 12 months immediately preceding the making of an application for entry clearance and said that the fact that this definition could never be satisfied in the case of a refugee as such a person would have fled the country to seek asylum elsewhere. 

Time spent in the UK as a visitor counts as ‘residence’ for ILR

R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076 (15 July 2021)

On the important subject of indefinite leave to remain (ILR) on the grounds of 10 years’ continuous residence, the Court of Appeal has held that the SSHD had erred in refusing an ILR application made by Mr Chandra Mungur – a citizen of Mauritius – because it could not be said that he had “left the United Kingdom in circumstances in which he had no reasonable expectation at the time of leaving that he would lawfully be able to return” during the period relied upon as 10 years’ continuous residence. While Mr Mungur had left the UK in 2001 following expiry of his visit visa, he had done so with the intention and expectation of lawfully returning as soon as possible under a student visa. Mr Mungur had obtained a visitor visa valid from 22 March 2001 to 22 September 2001. He entered the UK as a visitor on 16 April 2001 and left on 1 September 2001 “to return to Mauritius to apply for Entry Clearance as a student”. That application was granted on 25 September 2001 and was valid until 25 September 2003. On 5 October 2001, he entered the UK again and by a succession of applications he applied for and was granted further leave to remain successively first as a student and then as a work permit holder. He remained lawfully in the UK from 25 September 2003 until 13 July 2011. He overstayed for 1,947 days when his leave to remain expired on 13 July 2011 until 10 February 2016.

Mr Mungur was granted further leave to remain on human rights grounds until 8 May 2019. He applied for ILR on the grounds of 10 years’ continuous residence on 30 May 2019. On 20 September 2019, the decision-maker refused the application on the ground that during the period relied upon by Mr Mungur as continuous residence, he had “left the UK in circumstances in which he had no reasonable expectation at the time of leaving that he would lawfully be able to return” and thus could not satisfy the requirements of the paragraph 276A(1)(a) of the Immigration Rules. In addition to the first ground of refusal, the decision-maker further said that he had been in the past an overstayer and therefore could not satisfy the requirements of paragraph 276B(v). Aggrieved, he challenged the lawfulness of the refusal by bringing judicial review proceedings. He said that when he left the UK on 1 September 2001, he had a reasonable expectation that he would lawfully be able to return, which satisfied the requirements of paragraph 276A(a)(iii) and that, thus, his absence from 1 September to 5 October 2001 did not break the period of continuous residence which had to be taken as starting on 16 April 2001. He accepted he overstayed for 1,947 days but he argued that the Home Office was wrong to decide that he did not meet the requirements of paragraph 276B(v). The government abandoned reliance on this issue and conceded that his overstaying was not a bar to ILR because he was not a current overstayer and not currently in breach of the Immigration Rules and paragraph 276B(v), “the applicant must not be in the UK in breach of immigration laws”, did not apply.