R (Hysaj & Ors) v Secretary of State for the Home Department  UKSC 82 (21 December 2017)
Extraordinarily, the Home Office sought to have these appeals allowed by consent despite the fact that Dinjan Hysaj and Agron Bakijasi had fraudulently deceived the authorities in obtaining ILR. The conflict in the former Yugoslav republic of Kosovo created more than 850,000 refugees and tens of thousands of people arrived in the UK claiming that they had been the victims of persecution. In reality, many of them were Albanian nationals who had lied about their true identity. No concrete action was taken against Hysaj when his lies first came to light. But after being sentenced to five years’ imprisonment for causing GBH, he was informed that he was not and never had been a British citizen because the grant had been obtained by impersonation. Bakijasi’s fraud surfaced when his partner returned to Albania in order to regularise her immigration status. The question for the Supreme Court was whether the misrepresentations made by the appellants in their applications for British citizenship made the grant of that citizenship a nullity, rather than rendering them liable to be deprived of that citizenship under sections 40 and 40A of the British Nationality Act 1981. Bound by existing authority, the Court of Appeal had no choice but to uphold Ouseley J’s first instance judgment that the appellants had not in fact become British citizens when issued with certificates by the Home Office purporting to register them as having citizenship by naturalisation.
Nevertheless, Sales LJ found the binding authorities to be “problematic in various respects”. The present judgment therefore allowed the Supreme Court to hold that the decisions of the Court of Appeal in Parvaz Akhtar  QB 46 and Bibi v ECO (Dhaka)  EWCA Civ 740 were wrongly decided. Hysaj was born in Albania in 1977 and arrived in the UK and claimed asylum in July 1998. He falsely claimed to be a citizen of the former Yugoslavia from Kosovo, where he said he had been persecuted. He used his real name but lied by understating his age so as to be considered a child when he claimed asylum. He was granted refugee status and obtained ILR in 1999. He applied for naturalisation as a British citizen in 2004 and was granted British citizenship in his own name but with false details regarding his date of birth, nationality and place of birth. Bakijasi entered the UK in 1999 and also falsely claimed to be a citizen of the former Yugoslavia from Kosovo and gave a false name and a false date of birth in his asylum claim, which was refused. But he was granted ILR under the Family ILR exercise in 2005. He was subsequently granted British citizenship under a fabricated name, date of birth, and place of birth. Continue reading
Posted in Appeals, Asylum, Bangladesh, Children, Citizenship and Nationality, Court of Appeal, False Statements and Misrepresentations, Families, Judicial Review, Pakistan, Refugee Convention, Spouses
Tagged Asylum, British Nationality, Case Law, Criminal Offences, Fraud, Judicial Review, Pakistan, Persecution, Spouses, UK Supreme Court
In her Christmas speech to British forces in Akrotiri, the prime minister celebrated the downfall of ISIS. Temporarily relieved from the turbulence of domestic and European politics, a triumphant Theresa May stressed that British military bases in Cyprus – the epicentre of thousands of strategic sorties – were central to defeating jihadists entrenched in Iraq and Syria. Just days before the victory speech, Lady Hale and Lords Mance, Kerr, Wilson, Sumption, Reed and Carnwath heard the SSHD’s appeal on the intriguing question whether the Refugee Convention 1951 the 1967 Protocol extend to the UK’s Sovereign Base Areas (SBAs) of Akrotiri and Dhekelia. And, if so, whether the SSHD is required to admit Tag Eldin Ramadan Bashir and five other refugees and their families to the UK for settlement. Under a secret agreement in 1878, in order to thwart rising Russian aggression the declining Ottoman Empire deliberately ceded Cyprus’s governance to Great Britain which “occupied and administered” the island until 1914 and ultimately annexed it as a colony upon the outbreak of the First World War. The Treaty of Lausanne 1923 recognised the colony and that status continued until the constitutional settlement of 1960. The SBAs are military zones retained under British sovereignty following the independence of the Republic of Cyprus (RoC) in 1960.
The respondents were rescued in the Mediterranean from a dangerous Lebanese fishing boat en route to Italy. Human traffickers, who charged $2000 per person for the journey, abandoned the “floating coffin” vessel when the engine broke down. But luckily the respondents were airlifted to Akrotiri in 1998 and were recognised as Convention refugees shortly thereafter. But until now they have lived in limbo in Dhekelia where they occupy disused, dilapidated and hazardous military accommodation called Richmond Village. In 2013, they sought admission to the UK. But in November 2014 the SSHD refused them entry and judicial review proceedings were instituted. Despite holding that the SBAs fall outside the Convention’s scope because of the binding authority of Bancoult (No 2)  UKHL 61, Foskett J quashed the decision because of a failure to take UNHCR’s concerns into account that resettling the respondents in RoC was undesirable and impractical. He was unconvinced that the FCO had a practice of recognising that international treaties applicable to Cyprus before 1960 continued to apply to the SBAs after their inception. Continue reading
Posted in Appeals, Article 14, Asylum, Brexit, CFR, Court of Appeal, ECHR, Human Trafficking, International Law, Italy, Judicial Review, Persecution, Politics, Refugee Convention, Settlement, UKSC
Tagged Asylum, Brexit, Case Law, Court of Appeal, ECHR, Judicial Review, Persecution, Refugee Convention, UK Supreme Court
R (HC) v Secretary of State for Work and Pensions  UKSC 73 (15 November 2017)
Lady Hale found this to be a “very troubling” case but she agreed with Lord Carnwath that the appeal had to be dismissed. The thing that troubled her Ladyship was that the welfare of British children was at stake. In addition to the fact that HC’s case involved the interpretation of the landmark decision in Zambrano (Case C-34/09, EU:C:2011:124), the impact of the government’s actions on the neglected rights of British children remained a striking feature of this appeal. However, despite the exceptional nature of the Zambrano right of residence, the Supreme Court pointed out that the CJEU’s ruling is not predisposed to maintaining the unity of the family and does not guarantee any particular quality of life or standard of living. “HC” has been living the UK since 2008. She is Algerian and became an overstayer when her marriage to a British citizen ended owing to domestic violence. Her right of residence was not in doubt because she is a Zambrano carer, i.e. a non-EU citizen who was the primary carer of an EU citizen. The Zambrano principle precludes EU member states from enacting measures against a Zambrano carer in circumstances where those measures result in the deprivation of the genuine enjoyment of the dependent EU citizen’s rights under EU law.
Oldham Council accommodates HC and her children under section 17 of the Children Act 1989. She receives £80.5 per week in subsistence and utility costs. It was undisputed that this was sufficient for the family to remain. Notably, Zambrano carers are precluded from claiming various income-related benefits by the operation of the Social Security (Habitual Residence) (Amendment) Regulations 2012, the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 and the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012. These regulations limit Zambrano carers’ rights to claim some types of non-contributory social security assistance accessible by “habitually resident” persons. The changes aimed to curb potential annual expenditure between £3.8m and £9.4m that 700 people a year qualifying for Zambrano rights would trigger in terms of income support, housing benefit and council tax benefit. HC complained that her British children had to survive on “the bare minimum” because they were precluded from enjoying the same benefits and opportunities of growing up in Britain like normal British children such as their British step-siblings/cousins with the result “that they do not in practice have the same rights.” Continue reading
Posted in Article 14, CFR, Children, Citizenship and Nationality, CJEU, Court of Appeal, ECHR, European Union, Families, Judicial Review, UKSC
Tagged Case Law, Children, Court of Appeal, ECHR, European Union, Judicial Review, UK Supreme Court, Zambrano
Secretary of State for the Home Department v Onuorah  EWCA Civ 1757 (03 November 2017)
Notably, the Court of Appeal has confirmed the correctness of its decision in the recent case of Kopoi  EWCA Civ 1511 (see here). The court unanimously held that short visits to the UK do not engage either family life or private life within the meaning of article 8 of the ECHR. Singh LJ rejected submissions arising out of various Strasbourg authorities because they were being placed outside their context. Delivering the court’s judgment, his Lordship said that he was inescapably bound by the Court of Appeal’s previous rulings whereas Strasbourg authorities only needed to be taken into account under section 2(1) of the Human Rights Act 1998. The decision is yet another blow to individuals attempting to exaggerate the scope of family life or private life in their entry clearance cases. The judgment seems to be the final nail in the coffin of persons raising article 8 between adults in cases where there is no clear-cut evidence of dependency. Born in 1985, Chioma Goodness Onuorah is from Nigeria where she lives with her husband. Both of them are employed. She applied for a visit visa to the UK under the sponsorship of her brother Franklin Onuorah, a naturalised British citizen who is married with two children. In July 2014, the Entry Clearance Officer (ECO, Abuja) refused her application for a visit visa because of concerns about the genuineness of her intentions to enter the UK as a visitor for a limited period.
The appeal to the First-tier Tribunal was successful. Judge Manuell accepted Franklin Onuorah’s evidence and found him to be an honest witness. He was also satisfied that Onuorah did in fact intend to return to Nigeria after her brief visit to the UK. He said that he would have had no hesitation in allowing the appeal under 41 of the Immigration Rules had the option been available to him, but it was not available because family visitor visas applications made after 25 June 2013 no longer enjoyed a right of appeal. Although Onuorah had no family life in the UK, the FTT thought that the refusal directly affected her British brother and his two British children. Judge Manuell decided that the refusal was incorrect because it disregarded proportionality. In his view, Onuorah would comply with her visa conditions and the public interest under article 8(2) was satisfied because there was no evidence to show that the she was someone who would breach the law if permitted to visit the UK for short visit. The ECO, who appealed, was directed to issue her with the type of visit visa for the correct fee had been paid. Continue reading
Posted in Appeals, Article 2, Article 8, Court of Appeal, ECHR, Entry Clearance, Human Rights Act, Immigration Rules, Proportionality, Tribunals
Tagged Article 8, Case Law, Court of Appeal, ECHR, Immigration Rules, Tribunals, UK Supreme Court
R (on the application of AT) v Secretary of State for the Home Department  EWHC 2589 (Admin) (18 October 2017)
These judicial review proceedings relate to appeal rights in a hostile environment, domestic violence and indefinite leave to remain in the UK. Despite granting AT’s application, Kerr J held that the SSHD was “perfectly entitled” to enact delegated legislation to remove the right of appeal from victims of domestic violence in immigration cases whose claims were not human rights claims, and replace that right with administrative review. On the other hand, that did not mean that she could remove the right of appeal for domestic violence claims that were also human rights claims. AT was Pakistani national born in July 1992 who entered the UK in June 2013 with entry clearance for six months as the fiancée of a British citizen. In late 2013, she married UZ at a civil ceremony in Oldham. She was granted leave to remain until July 2016 as a British citizen’s spouse. Typical of abused Pakistani women, she initially loved her husband very much but her marriage fell apart because of domestic violence, which broadly defined includes coercive and also controlling behaviour and the infliction of psychological as well as physical injury. The situation led her in-laws to arrange her return to Pakistan. In a letter written to the Home Office, UZ counterclaimed in March 2015 that AT bullied and belittled him. He said she considered him to be worthless because he is disabled.
He said she was a fraud and used him to gain entry to the UK. He stressed that their marriage had broken down irretrievably. He wanted a divorce and hoped that the authorities would remove her from this country. He also said she had told his father that she did not like living in the UK and wished to return to Pakistan. The Home Office curtailed AT’s leave to remain on the basis of UZ’s letter. Claiming that her marriage had broken down because of domestic violence, AT applied for ILR assisted by evidence from her GP, her aunt and her friend. The decision-maker refused AT’s application and the refusal was upheld upon administrative review. Her removal was suspended when urgent judicial review proceedings were instituted contending that the court should grant an order quashing the words in paragraph AR3.2(c)(xiii) of Appendix AR of the Immigration Rules, which replaced the right of appeal to the First-tier Tribunal in a domestic violence case – that was also a human rights claim – with the process of administrative review. The offensive words being “not where an application is made under… section DVILR (domestic violence)”. Continue reading
Posted in Appeals, Appendix FM, Article 2, Article 3, Article 8, Domestic Violence, ECHR, Forced marriage, Human Rights Act, Immigration Act 2014, Immigration Rules, Judicial Review, Pakistan, Settlement
Tagged Article 8, Case Law, ECHR, Immigration Rules, Judicial Review, Removals, Spouses
The respondent “B” entered the UK illegally in 1993. He is probably from Algeria. But since he refuses to identify himself his real nationality is unknown. Earlier this month, the Supreme Court heard the SSHD’s appeal on the issue whether, once there is no longer a lawful basis for the detention of an individual pending deportation, there is still a power to grant bail and impose bail conditions in respect of that individual under the Immigration Act 1971. Notably, in 1998, B was arrested on suspicion of terrorism and involvement with the GIA. Subsequently, SIAC determined that he had links with procuring equipment sent to Islamists in Chechnya. Between 2002 and 2005 he was detained, latterly in Broadmoor, under the Anti-Terrorism, Crime and Security Act 2001. In August 2005, he was notified of the SSHD’s intention to deport him. Arguing that his return to Algeria would result in violations of article 3 of the ECHR, he appealed and in April 2006 he was granted bail conditional upon finding suitable accommodation; but none was found and he stayed in Broadmoor. Overall B remained either in prison or on conditional bail, including special bail conditions to allow his admission to hospital, until 2014. The appeal was heard but SIAC adjourned proceedings as part heard upon discovering that B gave a false name in his notice of appeal. In January 2007, directions were given pursuant to the SIAC (Procedure) Rules 2003 for B to reveal his identity, including his full name.
He refused to comply but consented to provide a DNA sample. In July 2007, SIAC made a fresh order (containing a penal notice) requiring B to provide the information. In 2008, B was held to be a threat to national security. SIAC judged that B’s conduct was an abuse of process and that he had intentionally caused a deadlock in the progression of his appeal. Upon the SSHD’s application, SIAC ordered B’s committal to prison for four months as a consequence of him “deliberately and contumeliously” disobeying the July 2007 order in contempt of court. Upon release from prison in April 2013, he was admitted to the Highgate Centre for Mental Health. Applying the Hardial Singh  1 WLR 704 principles, SIAC held in February 2014 that B could no longer be lawfully be detained because there was no reasonable prospect of removing him to Algeria and the ordinary legal basis for justifying his detention had fallen away. In April 2014, B’s bail conditions were further relaxed. The SSHD applied to strike out the appeal against the notice of decision to deport B. Continue reading
Posted in Article 3, Article 5, Bail, CFR, Court of Appeal, Deportation, Detention, Dyson JSC/MR, ECHR, Proportionality, Public Interest, SIAC, Terrorism, UKSC
Tagged Algeria, Court of Appeal, Detention, ECHR, Judicial Review, Terrorism, UK Supreme Court
Lounes v Secretary of State for the Home Department (C-165/16, EU:C:2017:862)
In this judgment, the CJEU has embraced AG Bot’s opinion that EU law does not take away with one hand that which it has given with the other. The outcome means that a non-EU national is able to benefit from a right of residence in the member state where his EU citizen family member resided before acquiring its nationality in addition to her original nationality. The conditions governing the grant of the said right of residence must not be stricter than those set out in the Citizens’ Directive (2004/38/EC). Toufik Lounes is Algerian. He entered the UK as a visitor on a six-month visa in January 2010 and overstayed illegally. Lounes formed a relationship with Perla Nerea García Ormazábal (Mrs Lounes) in 2013. Thereafter, in January 2014, they entered into an Islamic marriage. A civil ceremony took place in May 2014. Shortly before that, Mr Lounes was notified of his liability to removal as an overstayer and a removal decision was served on him. A month earlier, he had applied for an EEA residence card on the basis of his marriage. Mrs Lounes moved from Spain to the UK to study English in 1996. She attended university in the UK and after receiving an undergraduate degree in applied computing she undertook professional training and obtained full-time work in London at the Turkish Embassy.
She resided in the UK in the exercise of her rights under the Directive. In August 2009, she became a naturalised British citizen and acquired a British passport. Mr Lounes was refused an EEA residence card because of his wife’s dual nationality. In McCarthy (C‑434/09, EU:C:2011:277), the CJEU held that the Directive does not apply to an EU citizen who had never exercised his right of free movement, had always resided in the member state of his nationality and was, additionally, a national of another member state. Lang J thought it was unclear whether the amendments to the definition of “EEA national” unlawfully restricted her right to free movement under article 21 TFEU and the Directive. Therefore, taking account of Mrs Lounes’s specific history, her Ladyship queried the compatibility of UK legislation with EU law and referred the following of question to the CJEU: Are she and her spouse both beneficiaries of the Directive, within the meaning of article 3(1), whilst she is residing in the UK, and holding both Spanish nationality and British citizenship? Continue reading
Posted in Citizens Directive, Citizenship and Nationality, CJEU, European Union, Families, Free Movement, Judicial Review, Permanent Residence, Spouses
Tagged 2004/38/EC, Brexit, British Nationality, Case Law, Dual Nationality, European Union, Free Movement, Judicial Review, Spouses