Deprivation of Citizenship: Unnecessary to Conduct a Proleptic Analysis of Deportation

Aziz & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1884 (08 August 2018)

Abdul Aziz, Abdul Rauf and Adil Khan – the appellants – were convicted in 2012 of the grooming, sexual exploitation and trafficking of several teenaged girls in Rochdale. All three men were naturalised British citizens and also citizens of Pakistan. The important issue in the present appeal was whether the decision-maker and the FTT made a proper and lawful assessment at the deprivation stage of the consequences of deprivation of citizenship upon the three men and their children in relation to their rights under article 8 of the ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009. The present proceedings only concerned the decision to make an order to deprive the appellants of their British citizenship pursuant to section 40 of the British Nationality Act 1981. Each appellant had children in the UK and an established private life. Depriving them of their British citizenship, which would be conducive to the public good in light of their serious offending, was the first step in their deportation to Pakistan. The Court of Appeal held that in determining an appeal against deprivation of British citizenship, a tribunal only needs to examine the reasonably foreseeable consequences of such deprivation, including the likelihood of deportation, insofar as it is necessary to assess those consequences in order to determine whether the making of the deprivation order itself was lawful and compatible with ECHR rights.

When a decision is made to deport them, they will be in a position to raise article 8 and section 55 insofar as they relate to deportation itself. In the present proceedings, the FTT followed the guidance of the Upper Tribunal in Deliallisi (British Citizen: Deprivation Appeal: Scope) [2013] UKUT 439 (IAC), and gave extensive consideration to the impact upon the appellants and their families’ rights under article 8 and section 55, should they be deported after being deprived of their citizenship. It was the view of the FTT that, given their serious offending, the appellants’ rights would not be violated by the deprivation of citizenship or by any future deportation measure. They argued that the FTT’s approach was not “entirely consistent” with Delialissi. They further argued that the decision to deprive them of their citizenship was not compatible with the executive’s policy as set out in paragraph 55.4.4 of the Home Office Nationality Instructions whereby “conduciveness to the public good means depriving in the public interest on grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.”

Serious Breaches of Duties of Procedural Fairness and Candour by Home Office in Calais Children’s Cases

R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 (31 July 2018)

These proceedings concerned Citizens UK’s appeal against Soole J’s decision that the expedited process adopted by the Home Office to assess the eligibility of 2,000 unaccompanied asylum-seeking children (UASC) to be transferred to the UK from the Calais Jungle had breached the common law duty of fairness because the reasons given for adverse decisions under the expedited process were inadequate. And the Court of Appeal unanimously allowed the appeal and also held that the Home Office had breached its duty of candour to and co-operation with the court and had even resorted to misleading the Administrative Court. The Calais Jungle or camp was demolished in October 2016 by the French authorities which together with the British established the expedited process. Citizens UK argued that the process breached (i) EU law, particularly because its failure to comply with procedural protections guaranteed under the Dublin III Regulation, (ii) the common law requirements of fairness, and (iii) the procedural protections afforded to the UASC by article 8 of the ECHR as set out within Schedule 1 to the Human Rights Act 1998. Intending to seek asylum in the UK, the UASC travelled to the camp and the so-called expedited process was supposed to be an accelerated version of the Dublin III procedure and the Home Office accepted that there were likely to be UASC who had close family links to the UK and would therefore be eligible for transfer under Dublin III.

But after conducting the assessments, between October and December 2016 the Home Office refused to transfer to the UK over 500 children who claimed to have family members in the UK. The refusal decisions were conveyed to the French authorities via a spreadsheet on 14 December 2016 with a short word or phrase explaining the basis of refusal. Over the next few days, the French authorities informed the children about their refusals. At first instance, Soole J dismissed Citizens UK’s judicial review claim in its entirety. The Court of Appeal prefaced its judgment in light of the decisions in ZT (Syria) [2016] EWCA Civ 810 and R (RSM) [2018] EWCA Civ 18. In ZT (Syria) the Court of Appeal allowed the government’s appeal from the Upper Tribunal’s decision to allow the claims of three UASC in France seeking to join their siblings in the UK who had been granted refugee status. In RSM the applicant was an unaccompanied minor in Italy in whose case the UT held that there was a public law duty to consider exercising the discretion conferred by article 17.1 of Dublin III. The argument was rejected by the Court of Appeal and among other things Arden LJ held that “lodged” in article 17.1 means where an application has “actually been lodged”.

Deemed Paternity and Discrimination: Section 50(9A) of the British Nationality Act 1981 is Incompatible with the ECHR

K (A Child) v The Secretary of State for the Home Department [2018] EWHC 1834 (Admin) (18 July 2018)

Importantly, the Administrative Court has recently held that the scheme in section 50(9A) of the British Nationality Act 1981 which deemed a child’s father to be the man the mother was married to at the time of the birth rather than the child’s biological father for the purposes of establishing nationality is incompatible with article 14 of the ECHR read with article 8. The court held that even though it was reasonable for legislation to prescribe a child’s deemed paternity, the law did not strike a fair balance because it did not permit the child to acquire the biological father’s nationality as of right on proof of paternity as it only conferred a right to ask the Home Secretary to exercise a discretion to grant such nationality. K was born in London in May 2014 and showing her British father as SK and her Pakistani mother as MT, her birth was registered in June 2014. She is SK’s biological child and they have lived together since her birth. MT did not enjoy settled status in the UK when K was born so she was unable to claim British nationality through her. Notably, prior to entering into a committed relationship with SK, it was the case that MT had broken off ties with her Pakistani husband RS because of domestic violence. The situation was such that only SK, a British national who had always lived in the UK, was able to provide an avenue for K to attain British nationality.

An application for a British passport for K was made using her birth certificate and evidence that SK, her father, is British and a British passport valid from October 2014 to October 2019 was granted. In July 2016, K’s mother, MT, made an application for leave to remain, based on her family relationship with SK and K. The application stated that she had entered the UK with a son from her first marriage on 24 April 2013 and made an asylum application based on her fear of her then husband, RS. The application also relied on the fact that she had a British child. In July 2016, MT applied for leave to remain relying on her family relationship with SK and K. She said that she had a British child and that she entered the UK in April 2013 with a son from her first marriage and claimed asylum owing to fear of her then husband RS. In June 2017, Her Majesty’s Passport Office (HMPO) revoked K’s British passport because of “a change of circumstances”. Enquiries about MT’s application for leave to remain showed that at the time of K’s birth, she was married to RS, something previously unknown to HMPO.

Brexit and Appendix EU: Changes to the Immigration Rules

In his recent opinion in R O (C‑327/18 PPU, EU:C:2018:644), Advocate General Szpunar lamented that “we know that we know next to nothing about the future legal relationship between the EU and the United Kingdom of Great Britain and Northern Ireland”. But one thing that we do know is that Statement of changes to the Immigration Rules: CM 9675 (20 July 2018) ensures that Appendix EU to the Immigration Rules will come into force on 28 August 2018 for the purposes of an initial test phase of the EU Settlement Scheme which will be rolled out on a phased basis from late 2018 and will be fully open by 30 March 2019. The scheme aims to implement a simple three-step process that tests the core criteria of identity, eligibility and suitability and these criteria serve the purpose of measuring the merits of individual applications. However, problematically, the scheme will confer immigration status in digital form and this is likely to result in the victimisation of EU nationals and their families because of the right to rent checks and the ability to prove one’s right to work in the UK. In that regard the House of Commons Exiting the European Union Committee has made it clear in The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens (Eighth Report of Session 2017–19) that “documents, such as endorsed passports or biometric cards, are understood as forms of identification and are likely to be the default document requested by a landlord or employer.”

Without such documents, employers and landlords will readily ostracise and exclude EU citizens from renting property and working and they will suffer because of the hostile environment policy which cannot so easily be turned off or reset by pressing a button or flicking a switch. So understandably the three million EU citizens in the UK want a hard document to be issued rather than a digital code. The Home Office insists the digital code system will be less resource intensive, reduce fraud and be simple to use. However, MPs are concerned that the Home Office is introducing a new system on a large scale and relies upon employers and landlords to be open to understanding and embracing a new way of working. Employers and landlords will want to avoid the consequences of breaching the law and therefore the Brexit Committee has called on the government to issue a physical document to EU citizens. The Immigration and Nationality (Fees) (Amendment) (EU Exit) Regulations 2018 will specify fees for applications under Appendix EU and provide for exceptions in respect of those fees. Applications will cost £65 and costs for children under 16 will be £32.5. Biometric data will be enrolled within the meaning of the Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018.

Court of Appeal: Guidance on Entry Clearance and MIR

Secretary of State for the Home Department v MS (Pakistan) [2018] EWCA Civ 1776 (27 July 2018)

The Supreme Court’s ruling in MM (Lebanon) [2017] UKSC 10 permitted the operation of the Minimum Income Requirement (MIR) for partners in Appendix FM and Appendix FM-SE of the Immigration Rules. But clearly, the Justices still disapproved of the rigid manner in which the MIR had been erected by the government and they found that fairness requires an assessment regarding whether the state would be burdened where the MIR is unmet. At first instance, Blake J held in MM (Lebanon) [2013] EWHC 1900 (Admin) that the MIR was so onerous on applicants that it constituted an unjustified and disproportionate interference with the right to respect for family life and therefore fell outside the margin of appreciation afforded to the executive. In these proceedings, on the governments’s appeal, the Court of Appeal held in light of MM (Lebanon) [2014] EWCA Civ 985, which reversed MM (Lebanon) [2013] EWHC 1900 (Admin), that the Upper Tribunal had erred in law by overturning refusals by entry clearance officers to grant the respondents leave to enter the UK on the ground that their spouses did not satisfy the MIR. McCombe LJ was surprised that premature applications for entry clearance were made and litigated rather than fresh applications being made in order to save time and money. Therefore, it is much better to be safe than sorry and submit a properly prepared fresh application than pursuing an expensive and pointless appeal if it will fail.

A Pakistani national, MS married B, a British national, in November 2012 in Pakistan. Earlier in August 2012, she found employment but had no other employment in the 12 months immediately before MS’s application for leave to enter as a spouse made in December 2012 which was refused for not satisfying the MIR. The FTT held in February 2014 that the basic £18,600 threshold was not met for 12 months prior to the ECO’s decision. However, payslips for the four months which she had been able to supply, relating to the four months preceding the application, equated to annual income between £16,460 and £22,000. Following Blake J’s approach and considering the full facts, the FTT determined that MS’s appeal should be allowed because refusing entry clearance amounted to an unjustified interference with article 8 of the ECHR. The UT dismissed the SSHD’s appeal and held that the FTT was right to apply Blake J’s approach because the family’s income was above the guideline figure of £13,400 proposed by him. In the conjoined appeal, TD and her son, X, were of Jamaican nationality. TD married G, a British citizen of Jamaican origin, in Jamaica in 2012.

Refugee Convention: Metropolitan Territory is Distinct from Dependent Territories

R (Bashir & Ors) v Secretary of State for the Home Department [2018] UKSC 45 (30 July 2018)

In a complex interim judgment dealing with threshold issues, the Supreme Court has held that both the Refugee Convention 1951 and the 1967 Protocol extend to the UK’s Sovereign Base Areas (SBAs) of Akrotiri and Dhekelia. Britain occupied Cyprus between 1878 and 1960. Secretive deal making with the Ottoman Empire led the British Empire to forge an alliance with the Turks to protect them from Russia. The British initially occupied and administered Cyprus and ultimately annexed it upon the outbreak of the First World War when the British and the Turks found themselves fighting on opposite sides. Turkey recognised the annexation in the Treaty of Lausanne 1923 and that status continued until the settlement between the UK, Greece and Turkey in 1960 when Cyprus became a republic. Like Britain’s other Mediterranean possessions the island was of military and strategic importance rather than economic value. Upon independence in 1960, the UK retained sovereignty over the SBAs to accommodate military bases which are now the only notable British strategic assets in the eastern Mediterranean. These proceedings threw up a number of issues including the respondents’ entitlement to resettlement in the UK under the Convention, the validity of the UK-Cyprus Memorandum of Understanding of 2003 on illegal migrants and asylum seekers, and whether the UK is in principle entitled to discharge its obligations under the Convention by arranging for support to be provided by Cyprus?

The respondents were six refugees from various countries in North Africa and the Middle East and their family members. In 1998, they were rescued after being abandoned by human traffickers on a sinking vessel in the Mediterranean. Luckily, the RAF airlifted 75 passengers including the respondents to Akrotiri in south Cyprus where the respondents were recognised as Convention refugees. However, until now, they have lived in limbo for 20 years in Dhekelia where they occupy disused, dilapidated and hazardous military accommodation. They subsequently sought admission to the UK in 2013 but in November 2014 they were refused entry and judicial review proceedings were instituted. Initially, Foskett J held that the SBAs fall outside the Convention’s scope because of the binding authority of Bancoult (No 2) [2008] UKHL 61 but he quashed the decision because of a failure to take UNHCR’s concerns into account that resettling the respondents in the Republic of Cyprus (RoC) was undesirable and impractical. However, the Court of Appeal reversed Foskett J’s finding on the extension of the Convention to the SBAs and Irwin LJ directed the SSHD to make a fresh decision on whether to admit the respondents to the UK. Now, in answering a question of “great general importance” the apex court has held that the Convention does not guarantee freedom of movement for refugees between a state’s dependent territory and its mainland.

Court of Appeal: ‘Indiscriminate Methods of Warfare’ in Gaza

MI (Palestine) v Secretary of State for the Home Department [2018] EWCA Civ 1782 (31 July 2018)

Holding that it is sufficiently arguable that the situation in Gaza is attributable to direct and indirect actions of parties to the conflict such as the Israeli military and Hamas, the Court of Appeal has made obiter comments that the decision in HS (Palestinian-return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC) is out of date but that any revision to the existing country guidance is the domain of the Upper Tribunal. Allowing the present appeal, Flaux LJ held that the tribunal overlooked the important approach in Sufi and Elmi v United Kingdom (2012) 54 EHRR 9 regarding “indiscriminate methods of warfare” in densely populated areas and therefore failed to consider properly what test should be applied to the facts of MI’s case. Moreover, the UT misdirected itself in law by applying the strict “very exceptional cases” test in N v SSHD [2005] UKHL 31. MI was born in 1983 and is a national of the Occupied Palestinian Territories. He arrived in the UK from Gaza in October 2013 and claimed asylum. However, his claim for asylum was refused in November 2014 and a removal decision was made. MI’s appeal was dismissed in its entirety by the First Tier Tribunal which was of the view that his claim lacked credibility regarding the risk of persecution on return to Gaza. Upon further appeal, the UT found that the FTT had erred in considering article 3 of the ECHR in failing to engage with the available country evidence.

The Home Office did not disagree that Gazans are refugees but it conveniently considered them to be the responsibility of the United Nations Refugee Works Agency (UNRWA). In light of further evidence and submissions, remaking the decision on article 3, the UT dismissed the appeal as merely a “medical case”. Notably, the guidance in HS from 2011 remained the UT’s point of departure. Despite Israeli atrocities in Gaza in attacks such as Operation Cast Lead (civilian death toll 1398, including 345 children), in HS it was still the view of the tribunal that the tests exacted by the Refugee Convention 1951 as applied in the decided cases and under article 3 establish a higher level of risk than returnees to Gaza would experience upon going back because the conditions do not amount to persecution. This was so despite the fact that Israel deliberately disrupts access to electricity and clean water in Gaza and also blockades the entry of goods in order to inflict hardship on the poor Palestinian people displaced in the strip, which has been dubbed “the world’s largest open air prison” because it is completely cordoned off from the rest of humanity. In 2015, the United Nations Conference on Trade and Development said that Gaza has got no chance of recovery and will become “unliveable” by 2020.