Pending Case NA (C-115/15): Four Questions For CJEU

European Union (EU) law can be potent stuff; its spectacularly emollient effects are totally life-changing for beneficiaries. Conversely, the abrasive national rules are fraught with treachery and only the fit survive. Impossible things are possible for illegal entrants under the regulations but under the rebarbative rules impossibility will often confront, and usually crush, the applicant: outside the rules non-standard features are required to justify granting leave. Another thing to know about the Darwinian rules, which are true only by the accident of history, is that when they do come into play to aid an applicant, there is scant acknowledgement that they even exist. From this perspective, the rules are a myth; by skewing them regularly, the Home Office shortchanges applicants even when coverage under article 8 of the European Convention on Human Rights (ECHR) exists. Involving a myriad of intriguing issues, the EU law tale of a Pakistani lady called Nazia Ahmed (NA) has been reported as [2013] UKUT 89 (IAC), [2014] EWCA Civ 995 and [2015] EWCA Civ 140. These days her case is simply known as Pending Case NA (C-115/15) and may hold the key to unlocking numerous doors in EU law.

The Court of Appeal’s latest judgment, [2015] EWCA Civ 140, reveals that three further questions have been referred for a preliminary ruling. Therefore, combined with the single question formulated in [2014] EWCA Civ 995, a total of four questions are awaiting answers from Luxembourg’s Elysian Fields. The application initiating proceedings was lodged in the Court of Justice of the European Union (CJEU) on 6 March 2015 and the reference in the Official Journal was published as Application: OJ C 171 from 26 May 2015, p. 20. NA’s case is unique because, unlike past cases, her EU national children’s proposed removal within the EU (from the UK to Germany, the state of their nationality and the only state within the EU in which they are entitled to live) was, at [2013] UKUT 89 (IAC), held to violate their human rights. Equally, in relation to the derivative right of residence, her case Continue reading

Posted in Article 8, CFR, Citizens Directive, CJEU, ECHR, European Union, Human Rights, Immigration Rules, Karachi, Pakistan, Permanent Residence | Tagged , , , , , , , | 1 Comment

Student Loans: Settlement Criterion Declared Unlawful

Lady HaleR (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 (29 July 2015)

Soaring costs, rampant hostility towards foreigners and rigid rules have made the UK an unattractive place to live and study. But should settlement underpin access to student loans? As Lady Hale DPSC stressed at the outset of her judgment, Tigere’s case concerned the discriminatory rules of eligibility for educational loans which were inaccessible to students factually settled in the UK but not settled in the eyes of immigration law. “The appellant is not alone in her predicament,” spoke the voice of reason as her Ladyship clarified that the future of a very small group of young people – who, for no fault of their own, had hitherto been put in an invidious position – depended on the outcome of these proceedings. The case turned on whether either the lawful residence or settlement criterion governing access to student funding breached a Zambian national’s right to education under article 2 of the first protocol (A2P1) of the European Convention on Human Rights (ECHR) or unjustifiably discriminated against her in the enjoyment of that right. The “unjustifiably discriminatory” settlement criterion breached the ECHR whereas there was “ample justification” for the requirement to be lawfully ordinarily resident.

Allowing the appeal in part, the Supreme Court held by majority (3:2) that requiring settlement to qualify for a student loan breached Tigere’s ECHR rights, article 14 (prohibition of discrimination) read with A2P1 (no person shall be denied the right to education). This is good news for those with discretionary leave to remain (DLR) because they can no longer be denied student funding on the ground that they are not settled. According to the court, precluding persons such as Tigere from accessing student loans has a very severe impact on them. Likewise, denying or delaying higher education, until settlement is achieved, also damages the community and the economy. “Education is rather different” from general measures of political, economic or social strategy because the margin of appreciation allowed to the state under the ECHR increases exponentially with the level of education. Continue reading

Posted in Appendix FM, Article 14, Article 8, ECHR, Education, Human Rights Act, Immigration Rules, Lady Hale, Settlement, Students, UKSC | Tagged , , , , , | 1 Comment

Terror Imam: Monitoring Measures Breach ECHR

DD v Secretary of State for the Home Department [2015] EWHC 1681 (Admin) (19 June 2015)

No matter where one looks, judges seem to be hell-bent on helping wicked individuals. For example, SIAC’s recent decision that N2’s continued detention was unjustified, because he would not abscond, is yet another tight slap across Theresa May’s face. In the earlier case of DD, which this post analyses, the High Court thought that a radical Somali preacher’s electronic monitoring tag inhibited his human rights. Elsewhere, the Lahore High Court had gone even further by ordering the release of Zakiur Rehman Lakhavi, the mastermind behind the Mumbai terror attacks in 2008, because his continued detention under public order legislation was “unlawful”. The English courts face stern criticism for being afraid of breaching terror suspects’ human rights whereas their (arguably venal) Pakistani counterparts are accused of having historic ties to jihadis. But in fairness, unlike Irwin J or Collins J, Pakistani judges may after all face the further dilemma of being targeted in suicide attacks for not granting bail so perhaps there are more attractive reasons to forgive them for tolerating extremism. I am generally suspicious of all things David Cameron but I agree with him that British Muslims need to do more to stop radicalisation.

Just the other day, walking in north London in the middle of the holy month of Ramadan I passed a synagogue, a church, a temple and a mosque. Security at the synagogue was beefed up. The church looked deserted. Women dressed in colourful sarees with bindis and henna stained hands congregated outside the temple. Friday prayers had just broken off at the mosque and about fifty wild-eyed men loitered outside and their behaviour unsettled even me, a native of Karachi – arguably the world’s most dangerous city. To a foreigner, the ignorance observable in British Salafism is probably the type of Jahiliyyah against which the early Muslims, Prophet Muhammad (Peace Be Upon Him) and his companions, undertook to preach their message. (Here Salafism and Wahhabism are deliberately used interchangeably despite the former’s objection to doing so.) Continue reading

Posted in Al-Shabab, Article 3, Article 8, Asylum, Human Rights Act, Islam, Kenya, Refugee Convention, Somalia, Terrorism | Tagged , , , , , | 1 Comment

Supreme Court: ‘Ravichandran is Sound’

MA and AA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40 (24 June 2015)

“Aur Sardar Khan tum ko asylum mil giya kya (did you get your asylum Sardar Khan)?” I ask the young Peshawari Afghan butcher in the Iranian north London supermarket. “Haan Khan akhirkaar mil giya (yes I finally did)” grins the beaming teenager as if he had won the lottery. Yet referring to the recent attack on the Afghan Parliament he bemoans “magar aafat to aab shuruh hoi hai (but the calamity has just begun)”. Pointing the finger at the likely culprit, I clarify “saab Pakistan ka qusoor hai (it’s all Pakistan’s fault)”. But unlike most Afghans he disagrees. Sardar Khan, who claims to have been persecuted by the Taliban, ironically looks up to the Pakistan Army – which has never won a war – because of its British roots and American hardware. The young Pashtun yearns for his own country to have an “Allah’s Army” that can smash the menace of jihadi terrorism. With their vibrant Hindi/Urdu, in their roles as fruit sellers, butchers etc the charismatic children of Afghanistan have made me feel at home during my time as a foreigner in xenophobic Britain.

Not all smuggled unaccompanied asylum-seeking children (UASCs) are as lucky as Sardar (literally “chief”) and these cases show that most accounts of being indoctrinated into suicide bombing and jihad are disbelieved. AA, TN and MA were Afghan UASCs whose asylum claims were rejected. However, all of them were granted discretionary leave to enter and remain in the UK until the age of 17½ years under official policy (as reflected in the guidance document Processing an Asylum Application from a Child). Their cases turned on the sufficiency of the appellate process and the scope of the duty with regard to family tracing. Lord Toulson (with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Hughes agreed) held that, under the old regime for appeals prior to the phased cutover to the new system under Continue reading

Posted in Afghan War, Asylum, CFR, Children, CJEU, Court of Appeal, European Union, Immigration Act 2014, Judicial Review, Terrorism | Tagged , , , , , , | 1 Comment

Stringency and Sensibility under Appendix FM

R (Agyarko & Ors) v The Secretary of State for the Home Department [2015] EWCA Civ 440 (06 May 2015)

This is the sequel to the SS (Congo) case analysed in the last post. To do with leave to remain rather than leave to enter, this case involved overstayers who relied on their relationships with British citizens in order to obtain visas. The Court of Appeal (Longmore, Gloster and Sales LJJ) held that for leave to remain to be granted on that basis a claimant needed either to show “insurmountable obstacles” to continuing family life outside the UK or needed to demonstrate “exceptional circumstances” under article 8 ECHR. Mrs Agyarko and Mrs Ikuga were aggrieved by the Upper Tribunal’s refusal of permission to apply for judicial review proceedings of the Home Office’s refusal to grant them leave to remain. Agyarko (a Ghanaian) and Ikuga (a Nigerian) relied on their respective family lives to get leave to remain. However, their applications were refused because they failed on section EX.1(b) of Appendix FM of the Immigration Rules in light of the finding that there were no “insurmountable obstacles” preventing them from continuing their relationships outside the UK and that no exceptional circumstances under article 8 existed.

The court dismissed the appeals in light of Nagre [2013] EWHC 720 (Admin) – a judgment that is said to contain “an accurate statement of the law”. In line with his own decision from a couple of years ago, Sales LJ (as he now is) held that where a person unlawfully overstays and forms a relationship or gets married and wishes to remain the UK, the test of “insurmountable obstacles” is a “stringent” test. The court, moreover, explained that although the test is also to be interpreted in a sensible and practical rather than a purely literal way, it is more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the UK. Continue reading

Posted in Appendix FM, Article 8, Children, Immigration Rules, Judicial Review, Proportionality, Spouses | Tagged , , , , | Leave a comment

‘Full Coverage’: Family Life, Exceptionality and the Rules

The Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387 (23 April 2015)

In these cases relating to the admission of spouses under Appendix FM, the Court of Appeal (Richards, Underhill and Sales LJJ) unanimously allowed the Home Office’s appeals against the decisions of the Upper Tribunal in the cases of SS (Congo), BM (Afghanistan), BB (Pakistan) and FA (Somalia). Their Lordships also refused to extend time for the Home Office to apply for permission to appeal in the cases of AC (Canada) and KG (India). The court held that compelling circumstances needed to be demonstrated in order to qualify for the grant of leave to enter outside the Immigration Rules (pursuant to residual discretion) on the basis of article 8 where an application for admission to the UK as the spouse or family member of a British citizen or refugee failed to meet the minimum income or evidence of income requirements under the rules. Richards LJ stressed the point that the use of the phrase “exceptional circumstances” in instructions to officials does not make the leave to remain and enter provisions of the rules into a complete code but he equally explained that nothing turns on the distinction, one which is clearly without a difference.

On the slippery subject of the codification of article 8 within the rules, Richards LJ held that the concept of a “complete code” should not be given undue weight by the courts. The question on appeal was whether the decisions of the First-tier Tribunal were so affected by Blake J’s overruled first instance reasoning in MM (Lebanon) [2013] EWHC 1900 (Admin) (see here) that the Home Office’s appeals fell to be allowed (which, of course, they were in light of the later ruling in MM (Lebanon) [2014] EWCA Civ 985, see here). All the respondents had been refused leave because their sponsoring spouse’s income failed to satisfy the minimum requirements in Appendix FM and Appendix FM-SE of the Immigration Rules. Continue reading

Posted in Appeals, Appendix FM, Article 8, Entry Clearance, Human Rights Act, Immigration Rules, Spouses | Tagged , , | Leave a comment

‘Evidential Flexibility’ in Supreme Court

Imagine that you made a mistake in your immigration application but were later able to fix the problem because of the “evidential flexibility” policy. This issue has vexed both litigants and the courts for quite some time now. On appeal from a decision of the Court of Appeal (Pitchford and Davis LJJ, Sir Stanley Burnton) reported at [2014] EWCA Civ 2 (20 January 2014), the case of Manish Mandalia (Appellant) v Secretary of State for the Home Department (Respondent) Case ID: UKSC 2014/0059 will be heard by Lady Hale DPSC, Lord Clarke, Lord Wilson, Lord Reed and Lord Hughes JJSC on 7 May 2015. The issue that needs to be decided is whether the Home Office was required to afford Mr Mandalia an opportunity to correct an error in his application for leave to remain before refusing it. Mandalia is from India. He entered the UK on a student visa in 2009. When he applied for further leave to remain as a student in February 2012 he was required by the relevant Immigration Rules to accompany his application with bank statements covering a 28-day period that demonstrated a minimum continuous balance of £5,400.

The bank statements he supplied with his application showed a credit balance in excess of £11,000 throughout. However, Mandalia made a mistake and provided statements covering only a 22-day period from 29 December 2011 to 19 January 2012. He complained that the Home Office did not apply its “evidential flexibility” policy to him. Upper Tribunal Judge Martin did not deal with any evidential flexibility policy arguments. Under the policy Mandalia would have had a chance to correct his mistake before his application was refused and a decision to remove him was made. Continue reading

Posted in Court of Appeal, Immigration Rules, India, PBS, s 19 UKBA 2007, Students, Tier 4, Tribunals | Tagged , , , | 2 Comments