Article 8 and Entry Clearance: Court of Appeal Confirms the Approach in Mostafa

Entry Clearance Officer, Sierra Leone v Kopoi [2017] EWCA Civ 1511 (10 October 2017)

In this interesting case, the Court of Appeal allowed the ECO’s appeal against the Upper Tribunal’s decesion that the relationship between Edna Kopoi and her relatives in the UK amounted to family life for the purposes of article 8 of the ECHR. Overall, the outcome confirms the ratio of Mostafa [2015] UKUT 112 (IAC) where it was held that it “will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of article 8(1).” Born in 1991, Edna Kopoi is a citizen of Sierra Leone and resides there. Her father, Edmound Kopoi had sponsored her uncle Emmanuel Kopoi to study for his O-level exams and took care of him in Freetown where he went to college. Emmanuel got a job with the UN and while working in Nepal he met a British citizen and they got married in 2008. Emmanuel has ILR and the couple have two children: it is their wish that their children should develop a proper relationship with their paternal family and cultivate Sierra Leonean roots. In October 2013, Edna applied for entry clearance to the UK as a family visitor to stay with her uncle Emmanuel and his wife for three weeks under the couple’s sponsorship.

Her application was considered under the visit visa rules at the material time – i.e. paragraph 41 of the Immigration Rules – but the ECO refused entry clearance because was he not satisfied that she was genuinely seeking entry as a visitor for a limited period as claimed and that she intended to leave the UK after her visit. Edna, who had finished college, failed to provide evidence that she planned on further study in Sierra Leone. She was unemployed, had no money of her own and was wholly dependent on her father and her sponsors. An entry clearance manager reviewed the decision on the ground that Edna was indeed a genuine visitor and that “it is a breach of the rights of the children of the sponsors right to family life to deny them access to their paternal family members.” In February 2014, the ECM upheld the refusal because Edna’s future plans remained unclear and she had no personal financial resources. In the ECM’s view, no breach of article 8 occurred because no family life existed between the two British children concerned and their paternal family members in Sierra Leone.

Article 8 and Entry Clearance: No Obligation under ECHR to Allow Aliens to Pursue a Private Life

Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393 (28 September 2017)

A Pakistani national aged 33, Tahir Abbas made an application for him and his wife and two small children to come to the UK for four weeks in 2014 for the purpose of visiting his British uncle and his grandmother. Providing details of previous visits, Abbas answered questions relating to his employment and financial position. He indicated that the trip would cost him only £250 because his British uncle would pay the remaining costs incurred by the trip. The entry clearance officer refused the application as Abbas had previously been refused entry clearance because of using deception by filing a non-genuine document. The ECO was also not satisfied that the family would leave the UK as stated at the end of the proposed visit. Abbas contended that the earlier refusal “was not fair at all” and responded to the concerns raised by the previous ECO about the origin of funds in his bank. Despite having overstayed on a previous visit and despite his sponsor (his uncle) having said they would be visiting for two months, Abbas maintained that him and his family had no intention of overstaying in the UK and would leave in four weeks. He pointed that large sums of money recently paid into his bank account had come from his British uncle who wanted to buy land in Pakistan.

The First-tier Tribunal allowed Abbas’s appeal against the refusal of entry clearance because such denial violated his rights to develop a private life guaranteed by article 8 of the ECHR. Upholding this rationale, the Upper Tribunal dismissed the appeal against the First-tier Tribunal’s decision. Abbas disputed that he submitted a false document relating to his employment when he was recently refused entry clearance under paragraph 320(7A) of the Immigration Rules. He supplied further documentation from his employer to confirm the position. The point of principle that arose on appeal to the Court of Appeal concerned the extent to which the state has a positive obligation on grounds of private life (where no relevant family life exists) to grant entry clearance for an adult to visit an elderly relative located in the UK. Gloster, Ryder and Burnett LJJ held that no such positive obligation exists. Burnett LJ found no sign of the recognition of such an obligation in the Strasbourg jurisprudence.

Drug Dealing and Deportation: No Sympathy in Strasbourg for Settled Nigerian Criminal

Ndidi v United Kingdom – 41215/14 (Article 8 – Expulsion – Nigeria) [2017] ECHR 781 (14 September 2017)

Nicknamed “Bruiser” for “roughing up” his minions in the underworld of drug dealing, Ifeanyi Chukwu Ndidi, a Nigerian, entered the UK aged two with his mother and two siblings in 1989. He got badly roughed up in the immigration appeals system for his sins and his 28-year residence in the UK failed to trump the public interest in deporting him. The ECtHR agreed with the UK courts and authorities that his deportation was justified. Ndidi’s mother overstayed as a visitor and claimed asylum, which was refused, but she and her children were granted exceptional leave to remain. He began to offend from age 12. In 1999, he was cautioned for causing ABH and committing robbery. However, his offending intensified and he acquired a significant criminal record. He was convicted of robbery and GBH in 2003. The same year he was granted settlement and later also convicted of disorderly behaviour. He was convicted of burglary, theft and impersonating a police officer in 2004 and again during the same year he was convicted of robbery and was sentenced to three years’ detention in a Young Offenders’ Institution. Expulsion was not pursued but he was warned of his liability as to deportation. Subsequently, Ndidi pleaded guilty to supplying Class A drugs in 2008.

He was sentenced to seven years’ imprisonment in 2009. In 2010, the Home Office notified Ndidi of his liability to automatic deportation under section 32(5) of the United Kingdom Borders Act 2007. The decision-maker did not find that his rights under the Refugee Convention 1951 or the European Convention on Human Rights 1950 would not be breached by his deportation. His mother and siblings became British citizens and his father had acquired settlement. In the decision-maker’s view, Ndidi’s ties to them did not constitute family life and any private life he enjoyed ranked second to the legitimate interest of preventing disorder and crime by virtue of his removal. Equally, his elderly grandmother was in Nigeria and he could readjust to life there. There was no language barrier as English was an official language in Nigeria. The decision-maker cited Ndidi’s serious criminal record, and poor behaviour while in detention, to conclude that his deportation would not breach article 8 of the ECHR.

Current Accounts in a ‘Hostile Environment’: Bad Banks to Police Immigration Law from Next Year

Should the weeding out of thousands of overstayers, foreign national offenders facing deportation and failed asylum-seekers be delegated to bad banks so that 70m bank accounts can be screened in order to ascertain the account holders’ immigration status? No definitely not. Why? Because the deficit of trust in the banking sector is at an all time high. It is an inescapable numerical truth that the 20 leading global banks – including key British household names such as HSBC, Barclays and Lloyds – paid more than £264bn in “conduct costs” between 2012-2017, i.e. costs incurred and financial penalties paid as a consequence of deceitfulness, cheating and lying in ways totally unknown to the ordinary unsuspecting person. Equally, using a sample of 169 people, the Independent Chief Inspector’s analysis of the “hostile environment” measures created by Theresa May found that 10pc of applicants are incorrectly being denied access to banking services on the basis of their immigration status. Overall, David Bolt’s inspection concluded that although the hostile environment measures enacted by the Immigration Act 2016 (see here) seek to close various gaps left open by its predecessor Immigration Act 2014, both statutes suffer from the defect that their provisions are not based on any metrics and simply operate on the basis of the dogma that they are miraculously right in principle.

Chief Inspector Bolt concluded that the legislative package falls short of expectations because it does not operate on any cost-benefit principles. Unsurprisingly, the outsourcing of responsibility requiring banks to conduct immigration checks will cause casualties and innocent people will suffer. Since access to banking is a basic need, industry specialists think that the policing of bank accounts will be anti-competitive. It will hurt consumers and also deprive banks of customers. Literally, the staggering sum of £264bn (three times the £90bn Brexit bill being demanded by the EU) is what the 20 banks have paid global regulators to buy their way out of all sorts of trouble such as LIBOR rigging, mis-selling financial products (PPI/mortgages), breaching money laundering rules and violating sanctions against “evil” regimes in Iran, Sudan and even North Korea. It is the price they have paid for their corruption. Indeed, metrics are not in short supply when it comes to the historic “deadly sins” of the banks. The £264bn figure reveals a disturbing increase of 32pc on earlier levels of conduct costs.

Integration is Multidimensional: ‘Generic Factors’ Count in Calculating Integrative Links in Deportation Cases

AS (Iran) v Secretary of State for the Home Department [2017] EWCA Civ 1284 (23 August 2017)

AS entered the UK aged nine with his mother under the family reunion rules because his father had been granted indefinite leave to remain as a refugee who had fled persecution in Iran. But he developed a serious criminal record. Unlike his mother, he did not acquire British citizenship and was thus a “foreign criminal” holding Iranian nationality. The authorities sought his deportation and the decision-maker assessed that the public interest in the deportation of foreign criminals was not outweighed by AS’s article 8 rights. However, the First-tier Tribunal allowed his appeal. However, the Upper Tribunal set aside the decision because of the judge’s failure to consider the effects of the provisions relating to article 8 and the public interest contained in sections 117A-D of the Nationality, Immigration and Asylum Act 2002 and the changes in the Immigration Rules effective as of 28 July 2014. Thereafter, the Court of Appeal held that in evaluating whether the public interest in deportation is outweighed the “very significant obstacles” test to integration (into the country to which a foreign criminal’s deportation is proposed) entails taking a broad evaluative judgment and it includes considering “generic” factors such as intelligence, employability and general robustness of character. AS’s convictions included attempted robbery (2009) and possession of an offensive weapon (2011).

Further convictions for robbery/attempted robbery and handling stolen goods (2013) meant that AS received three years’ detention in a Young Offenders Institution after which a decision was made to deport him to Iran. His offending was aggravated because he opportunistically pre-planned his crimes and committed them at night by targeting young “posh” people by holding them at knifepoint. Analysis of his 2013 offences found a propensity to commit offences for personal gain. He was thoughtless about the impact his crimes had on his victims. His risk of re-offending was assessed as “medium”. Since he completed his GCSEs and pursued a course in business studies, the Youth Offending Team evaluated him as “academically capable”. AS’s appeal succeeded because the first-tier judge applied an outdated version of paragraphs 398, 399 and 399A of part 13 of the rules and found that there would be very significant obstacles to his integration in Iran because he lacked family ties there and only had weak social and cultural links to that country. He judged that the compelling public interest considerations supporting deportation were not sufficiently serious to outweigh the consequences of interference with AS’s private and family life.

Statelessness: Ethnic Cleansing and the Rohingya

UNHCR estimates that at least 10 million people around the world are stateless. People who are denied a nationality are automatically disentitled from everyday activities most of us take for granted. The inability to access banking, education, employment and healthcare is bound to produce debilitating effects on anyone’s life and make them profoundly vulnerable. Equally, not having a passport or not being able to participate in the political process by voting or not being able to say and do what you want is bound to result in a life of servitude. In Al-Jedda [2013] UKSC 62, recounting the horrors unleashed by the Reich Citizenship Law of 1935, Lord Wilson characterised statelessness as “evil” and highlighted that article 15 of the Universal Declaration of Human Rights 1948 provides that “everyone has the right to a nationality” and “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. Despite my Arabian name and Pakistani nationality, I do not write here as a “Muslim”. But nonetheless I write to mourn for the minority Muslim population of Myanmar, i.e. the Rohingya who were made stateless by the Burma Citizenship Law 1982. They can trace their history to the eighth century but are not recognised as one of the national races of Myanmar unless they can show “conclusive evidence” of their lineage or history of residence. Consequently, they are ineligible for any class of citizenship and are shunned by mainstream society.

According to Eric Fripp, “to be stateless in general terms is to be without attachment to a State as a national.” Since they are “resident foreigners”, or “illegal Bengali immigrants”, the Rohingya cannot hold public office, study or travel freely. Over the past three weeks, more than 400,000 Rohingya refugees have poured into Bangladesh to escape Rakhine State’s killing fields where the Buddhist majority is indiscriminately attacking helpless civilians whose terrified faces tell us everything. The UN high commissioner for human rights, Zeid Ra’ad al-Hussein, has called these shocking events a “textbook example of ethnic cleansing”. Satellite imagery obtained by Amnesty International shows widespread torching of hundreds of Rohingya villages and the application of scorched-earth tactics by the Myanmar military. The UN secretary general António Guterres has described the situation as a “humanitarian catastrophe” and is demanding “an effective action plan” to ease the suffering of Rohingya refugees. Guterres is calling for an immediate end to the “tragedy”. But the Myanmar authorities are mining the border to prevent the Rohingya from returning home or even escaping to Bangladesh in the first place.

The Bad Citizen and EU Law

Arranz (EEA Regulations – Deportation – Test: Spain) [2017] UKUT 294 (IAC) (22 August 2017)

Over the years, the CJEU has carved out a special status for those bad EU citizens whose extreme crimes totally transgress the laws of the host member state. For example, in Professor Dimitry Kochenov’s excellent new book EU Citizenship and Federalism: The Role of Rights, Loïc Azoulai advances a formidable analysis by exposing the dichotomy between “good citizen” cases such as Carpenter (C-60/00) and Zambrano (C-34/09) and “bad citizen” cases such as P.I. (C-348/09) who serially sexually abused his partner’s daughter and M.G. (C-400/12) who was convicted of child abuse. Indeed, as Azoulai explains, there is an element of Dr Jekyll and Mr Hyde in the picture and bad citizens symbolise “the unavailability of each and every mode of integration into society”. In Tsakouridis (C-145/09), the CJEU held that organised crime representing “a serious evil … fraught with social and economic danger to mankind” must not be allowed to “directly threaten the calm and physical security of the population as a whole or a large part of it.” Importantly, bad behaviour is considered to undermine the “feeling of Union citizenship”. Antonio Troitiño Arranz is a Spanish national. He did not violate the values of the UK by breaching the criminal law. His crimes were directed at his home state. But since he used to be an ETA terrorist he was perceivably “bad” nonetheless.

His expulsion was sought from the UK because of his conviction for the murder of 12 civil guards and injury to 43 civil guards and 17 civilians, all perpetrated on 14 July 1986, for which he was reportedly sentenced to a total of 2,746 years in prison. The home office considered his personal conduct to be a genuine, present and sufficiently serious threat to the British public. His appeal involved the interpretation of article 27(2) of Directive 2004/38/EC and the corresponding provision located in regulation 21(5)(c) of the Immigration (European Economic Area) Regulations 2006. Giving guidance, McCloskey J allowed Arranz’s appeal and explained that the burden of proof in relation to the test in regulation 21(5)(c) rests on the home office. The president judged that the standard of proof is the balance of probabilities. Moreover, the test is not met by mere membership of an organisation proscribed under the laws of a foreign country and applying the tribunal’s decision in CS (Morocco) the Bouchereau (30/77) exception is no longer good law. After serving 24 years’ imprisonment, Arranz was mistakenly freed from prison on 13 April 2011 with six years’ remission for good behaviour.