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

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

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

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

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

Supreme Court: MIR is Lawful

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

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

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

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

‘Sub-optimal’ Supplementary Decision Letters Are Lawful

Caroopen & Myrie v Secretary of State for the Home Department [2016] EWCA Civ 1307 (20 December 2016)

The use of supplementary decision letters is widespread in immigration judicial review. They are used in various situations in order to cure legal errors vitiating poor quality original decisions. Four points stand out. First, they often give reasons, or fuller reasons, for the original decision in response to a criticism of its inadequate reasoning. Second, such letters may be effective not by retrospectively correcting the initial decision but by prospectively bridging the gap if it is vitiated with invalidity. Third, further evidential or other material put to the decision-maker might warrant reconsideration of the original decision regardless of its initial validity – for example, where a judicial review is pending and the claimant relies on previously unused material. A fourth situation arises where the decision-maker expressly admits that the original decision was defective but concurrently makes a fresh decision with the same result – strictly not “supplementary” the Turgut [2000] EWCA Civ 22 scenario occurs when the original decision is superseded, albeit for a different reason, and a need exists for the tribunal to decide whether it is permissible for the validity of the fresh decision to be determined in the context of ongoing proceedings. After excoriating these tactics, the Court of Appeal nonetheless found nothing inherently wrong with such letters.

Underhill LJ reached this conclusion despite lamenting that supplementary decision letters are “confused and confusing”. On principle, he held that irrespective of any supplementary decision, the original decision should be quashed by default if it was unlawful. The behaviour, bemoaned his Lordship, constitutes “thoroughly bad practice” with the unmistakable result that it is inconsistent with the overriding objective of the Civil Procedure Rules 1998. The present judgment concerned the conjoined appeals of Johanna Caroopen, a Mauritian, and Debbie Myrie, a Jamaican. Allowing the appeals in part, the court also ironically sympathised with the army of non-lawyer officials engaged in producing poor quality decision letters because “they are working under great pressure and having to apply a constantly shifting body of law, and lore, which is shamefully complicated and is confusing even to experts.” Continue reading

Posted in Appendix FM, Article 8, Children, Court of Appeal, ECHR, Immigration Rules, Jamaica, Judicial Review, Nigeria, Tribunals, Visitors | Tagged , , , , , , | Leave a comment

Case Preview: SXH (Appellant) v CPS (Respondent)

SXH (Appellant) v CPS (Respondent) UKSC 2014/0148 relates to an asylum seeker who fled her native Somalia in 2008 because of suffering extreme sexual and physical violence and arrived in the UK in 2009 via Yemen and Holland. “SXH” hails from the minority Bajuni community. The Darood clan murdered her father. Her mother died in Al-Shabaab related violence. It is undisputed that she could not obtain proper documentation in Somalia. However, she was detained and charged with possessing a false document under section 25(1) of the Identity Cards Act 2006 – repealed by the Identity Documents Act 2010 – when it emerged that she had entered the UK using a false travel document. She was granted asylum and released from custody. In the hearing on 19 July 2016, Lord Mance, Lord Kerr, Lord Reed, Lord Hughes and Lord Toulson considered three important issues, namely (i) whether her entry into the UK as an asylum seeker and the decision to prosecute her for entering with false travel documentation engaged article 8 of the ECHR (ii) whether the prosecution decision was disproportionate and (iii) what is the appropriate threshold for engaging article 8. UNHCR is intervening in these proceedings. Lord Mance granted provisional anonymity to SXH at the outset of the hearing. A final decision on anonymity will be made at the disposal of proceedings.

SXH said that the false travel document had been given to her an agent. Advised to travel to the UK, she did not claim asylum in Holland because it was unfamiliar to her. In June 2010, the prosecution offered no evidence and a formal verdict of not guilty was entered at Chelmsford Crown Court. Since the Crown Prosecution Service (CPS) is a public authority within the meaning of section 6 of the Human Rights Act 1998, SXH complained that the decision to prosecute her constituted an unlawful interference with the right of respect for her private life under article 8 and entitled her to damages. The Court of Appeal held that the offence under section 25 did not interfere with the right to private life but if it did, it was a proportionate interference with that right in pursuit of the legitimate aim of preventing crime and disorder. Continue reading

Posted in Africa, Agents, Article 8, Asylum, Crime, ECHR, Human Rights Act, Judicial Review, Somalia, UKSC | Tagged , , , , , , | Leave a comment

Overruling Kareem: Proxy Marriages and Recognition under European Union Law

Awuku v Secretary of State for the Home Department [2016] EWCA Civ 1303 (06 December 2016)

Questions about the validity of marriage have eternally dogged immigration law. Born in October 1973, and the holder of Ghanaian nationality, Awuku married a German national by proxy in Ghana in February 2013 under Ghanaian customary law. His application for a residence card as the spouse of an EEA national exercising free movement rights was refused in November 2013 because the decision-maker was not satisfied that his claimed marriage was registered in accordance with the Ghanaian Marriage and Divorce (Registration) Law 1985. The appeal was considered on the papers and on the evidence put to her, including a marriage certificate and a statutory declaration, the judge concluded that the marriage was recognised in the country where it took place. She also found that it was properly executed and satisfied the legal requirements of the country in which it took place. Equally, nothing in the law of either party’s country of domicile affected their ability to freely enter into the marriage. Her examination of the decision led her to conclude that that removal would disproportionately violate Awuku, his spouse and his family’s article 8 rights. However, her findings on Awuku’s marriage conflicted with Kareem (Nigeria) [2014] UKUT 24 (IAC) and the matter entered the Upper Tribunal.

These important proceedings will have wide-ranging legal consequences and Lloyd Jones LJ described Kareem as lying “at the heart of the case”. The novelty of the appeal is that in the Court of Appeal, the respondent home office agrees with Awuku that 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. Therefore, it also wants the appeal to be allowed. The Upper Tribunal was of the view that consideration needed to be provided to the question whether the marriage was recognised in the EEA national’s home state, which was Germany in the present case. Judge Ehsun allowed the home office’s appeal because she found that the German authorities needed to assess whether Awuku’s marriage to his German spouse by proxy was valid and recognised under German law. Continue reading

Posted in Article 8, Citizens Directive, Citizenship and Nationality, ECHR, European Union, Public Interest, Spouses, Tribunals | Tagged , , , , , , , , | 1 Comment

Free Movement and Deportation: Nonjudicial Restrictions on the Right to Work are Lawful

R (Lauzikas) v Secretary of State for the Home Department [2016] EWHC 3215 (Admin) (16 December 2016)

Like countless other European citizens, the Lithuanian claimant, Lauzikas, came to the UK to work the construction industry. He entered the UK in 2012. However, in June 2014, a row with his former wife’s current partner led him to first threaten and then shoot the man with a BB gun. He pleaded guilty to possessing an imitation firearm and in January 2015 he received 14 months’ imprisonment. Serving seven months on remand entitled him to immediate release and he received notification of his liability to be deported and detained under regulation 24(1) of the Immigration (European Economic Area) Regulations 2006. In February 2015, a decision was made to make a deportation order pursuant to regulation 19(3)(b) and regulation 21 of the 2006 Regulations. The case was certified under regulation 24AA(2) of the 2006 Regulations (i.e. his removal would not be unlawful under section 6 of the Human Rights Act 1998) so as to allow his removal pending any appeal against the decision to deport him. Removal directions followed soon afterwards in March. An appeal was lodged against the deportation decision and removal directions were cancelled after parallel judicial review proceedings were issued. Lauzikas remained in the country but was nevertheless detained until the tribunal granted him bail.

The present judicial review application was mounted on the basis that an employment restriction imposed on Lauzikas constituted an unjustified and disproportionate interference with his right of free movement as an EU worker, and that the interference was also impermissible under domestic law because the home office had no power to impose restrictions where an individual was bailed to appear before the tribunal. Thirlwall J held that the right to work is a “qualified right” which is “an aspect of the freedom of movement.” Explaining that no authority existed on the central EU law point in this case, her Ladyship refused the application because the effect of suspending removal was to merely allow him to stay in the UK in order press his legal rights. Moreover, during that time he was provided accommodation and modest financial support. So no breach of his rights occurred for him to pursue remedies against the executive. Continue reading

Posted in Citizens Directive, Citizenship and Nationality, CJEU, Deportation, Detention, ECHR, Employment, European Union, Human Rights Act, Immigration Act 2014, Notices, Proportionality, UKSC, Working | Tagged , , , , , , , , , | Leave a comment

Suitability Criteria for Entry Clearance are ‘Rather Clumsy’

uspaspoort-jpgEntry Clearance Officer – United States of America v MW (United States of America) & Ors [2016] EWCA Civ 1273 (14 December 2016)

Entry clearance for a foreign national with significant previous criminal convictions is dealt with under paragraph S-EC.1.4. of Appendix FM of the Immigration Rules. This was the ECO’s appeal against the Upper Tribunal’s finding that the refusal of entry clearance to an American citizen from California was unjustified and disproportionate because he had served sentences of imprisonment for offences committed in the US. The Court of Appeal held that the intention behind paragraph S-EC.1.4. was to emphasise the public interest in maintaining refusal of entry clearance. Allowing the ECO’s appeal, Sir Terence Etherton MR, Lady Justice King and Lord Justice Irwin concluded that “very compelling factors” would usually be needed to outweigh the public interest in maintaining refusal. Born in 1968, the appellant, MW, was convicted of an offence in 2005 and was sentenced to four years’ imprisonment. Another conviction followed in 2008 and his reoffending led to an additional 16 months’ imprisonment. He was released on parole soon afterwards and in 2011 he was fully discharged from parole. In 2012, he married his sponsor Lisa Whitby Flack who is a British national with longstanding service as a fire fighter and deep family connections and home ownership in the UK. She also has close relationships with MW’s three children.

However, age restrictions would disallow her from working as a fire fighter in America – so it is impractical for her to move there. MW’s children are free to come to the UK. Their mother consents to them living with Lisa Flack whose family is also content with such arrangements. Nothing suggests that they live in unsatisfactory conditions in America but they would be able to attend school in the UK. The cases fell to be considered under paragraph S-EC.1.1. to 1.4. Refusing the applications, the decision-maker did not find MW’s circumstances to amount to exceptional circumstances. After considering article 8 of the ECHR the refusal letter concluded that the decision (8 April 2013) was justified and proportionate because the public interest outweighed human rights considerations. Continue reading

Posted in Appeals, Appendix FM, Article 8, Asylum, Children, Deportation, ECHR, Entry Clearance, Immigration Rules, Proportionality, Public Interest, UKBA 2007, UKSC | Tagged , , , , , , | Leave a comment