Case Preview: Johnson v SSHD

Throwing up blazing issues of historic injustice and denial of citizenship at birth, this jamming case is hot stuff. Earlier, the Court of Appeal overturned the judgment of Dingemans J and held that no violation of article 14 of the ECHR (read with article 8) occurred by denying British nationality to Eric Erron Johnson who was born out of wedlock to a British father and a Jamaican mother. Arden LJ held that the Human Rights Act 1998 did not apply retrospectively and found that the judge had been wrong to find a continuing violation of Convention rights since Johnson’s birth. For the Supreme Court, the first issue turns on the application of the HRA to causative events occurring before its commencement, but which arguably have continuing effect. Secondly, the justices will also decide whether it is possible and appropriate to make a declaration of incompatibility with the ECHR as to historic – repealed – legislation denying automatic British citizenship to illegitimate children because their mother was not British even though the father was. Now aged 31, Johnson moved to the UK at age four and the court will decide whether his claim that a deportation order removing him to Jamaica violates his rights to a family life and freedom from discrimination is “clearly unfounded”?

In 1985, sections 2(1) and 3(1) the BNA 1981 read with section 50(9) provided that an illegitimate child like Johnson could acquire British nationality at birth or by registration as a minor only if his mother was a British national. Following the Roman rules of mater semper certa est (the mother is always certain) and pater semper incertus est (the father is never certain), the law thus precluded him from acquiring British citizenship at birth because he was an illegitimate child. He did not apply for citizenship after being granted settlement/ILR despite the availability of a scheme as of 1987 allowing him to do so on evidence of paternity. Dingemans J observed that he has “a very serious criminal record” and profited from commercially supplying class A drugs and was sentenced to 9 years’ imprisonment for being convicted of manslaughter in 2008 after falsely asserting at trial that he acted in self-defence.

Sahrawi Asylum Seeker’s Detention Upheld

R (ML (Morocco)) v SSHD [2016] EWHC 2177 (Admin) (31 August 2016)

The Convention Relating to the Status of Stateless Persons 1954 expresses quite “profound concern” for stateless persons not protected by the Convention Relating to the Status of Refugees 1951 and the UN calls for the “widest possible” protection of such persons’ fundamental rights and freedoms. Last year it was held in the case of Pham [2015] UKSC 19 that “stateless” in section 40(4) of the British Nationality Act 1981 has the same meaning as article 1(1) of the 1954 Convention. That was a memorable case but this one, which is from the troubled Maghreb region, also involves interesting facts. Ethnically the claimant was Sahrawi. ML begrudgingly said that he hated Morocco and told its authorities that he was Algerian. He suffered from a mental health disorder and offended serially amassing 14 convictions for 17 offences. His convictions over a seven-year period (2005-2007) included crimes such as attempted robbery, criminal damage, drugs offences and theft and he was considered to pose a high risk of harm to the public. He misused substances, was schizophrenic and took prescribed medication. The strange thing about the outcome of this case is that the home office – probably the most inefficient public authority of all time – comes out as a winner for diligence.

ML’s detention for more than two years ended in November 2015. The issue was whether the home office acted reasonably by attempting to apply for an Emergency Travel Document from the Western Sahara Mission – which had already refused an ETD in March 2014 – given that the mission is not recognised by the British government. The court held that detention for 10 months during which efforts were made to obtain an ETD was not unlawful because the home office acted expeditiously and reasonably diligently in its continued efforts to obtain one. Born in Tindouf in a Polisario operated refugee camp in Western Sahara, ML claimed asylum in the UK in mid-2003 by contending that he was ill-treated in the camp but his claim remained undetermined as it was rejected for non-compliance. Irrespective of his claim to statelessness, no formal application had been made in that regard.

‘Integration’ Calls for a Broad Evaluative Judgment

Secretary of State for the Home Department v Kamara [2016] EWCA Civ 813 (11 August 2016)

It is nearly impossible to find an immigration judgment at the Court of Appeal level that does not mention any case law at all. The case of Alusine Kamara, a Sierra Leonean resident in the UK since he was a child, was one where Sales LJ dismissed the home secretary’s appeal against the decision of the Upper Tribunal which had allowed Kamara’s appeal on the basis that he was fully integrated into the UK and his deportation as a foreign criminal would interfere with his right to respect for his private life under article 8 of the ECHR. In 1993, Kamara arrived in the UK as a child with his sister. Both of them were under 10 and joined his adult half-sister resident in the UK with indefinite leave to remain and they lived with relatives and in foster care. He grew up in the UK and in August 1995 his sister and him were granted ILR as their half-sister’s dependants. Sales LJ said Kamara is seeking to complete his studies and wants to be employed in the UK. He had lost contact with Sierra Leone completely and it was acknowledged by the home office that he did not know any of the languages spoken there.

His life fell into disarray when in October 2011 he was sentenced to 3½ years imprisonment for possession of class A drugs with intent to supply. His offending made him a “foreign criminal” within the meaning of the UK Borders Act 2007 and section 117C of the Nationality, Immigration and Asylum Act 2002. Although he behaved in an exemplary way during his sentence, he was to be deported upon release from jail. His credibility as a witness impressed the Upper Tribunal and it found him to be a diligent student who expressed remorse for his offending. His initial appeal to the First-tier Tribunal was successful under the Immigration Rules but the decision was set aside by the Upper Tribunal – which then made a fresh decision after conducting a full hearing because of errors at the First-tier level. Applying the relevant law, it made the findings outlined at the outset, i.e. that Kamara was socially and culturally integrated in the UK.

Children and the Seven Year Itch

R (MA (Pakistan) & Ors) v UTIAC & Anor [2016] EWCA Civ 705 (07 July 2016)

The divergence of views on what is or is not important about the 7-year rule means that nothing really makes sense anymore. Unsurprisingly, there is consensus that the law in this context is too fluid and requires clarification and comprehensive guidance from the highest court in the land. This notable “child centred” decision involved six appellants, four from Sri Lanka and two from Pakistan. MA and AP’s appeals involved applications under the Immigration Rules by children and NS, AR, CW and AZ’s appeals were connected to applications made by parents under section 117B(6) of the NIAA 2002 (as amended). The court held that in giving consideration to whether it was reasonable to remove a child from the UK under paragraph 276ADE(1)(iv) of the rules and section 117B(6), a court or tribunal should not simply focus exclusively on the child but must also have regard to the wider public interest considerations, including the conduct and immigration history of the parents. The outcome came under attack because the judiciary again “disgorged another important but unhelpful decision”. But then again it is also true that people serially overstay their visas and seven years go by quickly, especially if you have children, and on that analysis the madness must be stopped.

The key issue in these proceedings was about the manner in which the court should approach the question of reasonableness. Since the critical question involves whether it would be unreasonable for the child to be expected to leave the UK, Elias LJ said at para 13 that the court should approach rule 276ADE(1)(iv) and section 117B(6) in the “same way” because they are “similarly framed”. Stripping things down to a manageable formula, the Court of Appeal was of the view that courts and tribunals only need to ask the following questions when applying section 117B(6). First, is the applicant liable to deportation? If so, section 117B is inapplicable and instead the relevant code will usually be found in section 117C. Second, does the applicant have a genuine and subsisting parental relationship with the child? Third, is the child a qualifying child as defined

Article 8 and Precariousness: Appendix FM in Supreme Court

These days the Immigration Rules are full of riddles. Applying a gloss on article 8 of the ECHR, wide-ranging rubric under the existing rules incorporates high legal tests such as “insurmountable obstacles”, “exceptional circumstances”, “compelling circumstances” and “exceptionality”. Such phrases dictate the terms of article 8 in leave to remain and entry clearance matters. This year in April, the Supreme Court deliberated over whether such expressions comply with article 8. The court heard cases about the minimum financial requirements earlier in February and these judgments will provide much needed guidance in the field at a time when the UK is at war with itself over immigration. Albeit not illegal entrants, Margaret Agyarko (a Ghanaian) and Favour Ikuga (a Nigerian) are overstayers who rely on their “precarious” relationships with their British partners to remain in the UK but had their applications refused because they fell foul of the terms of the rules – namely section EX.1(b) of Appendix FM – as they failed to demonstrate insurmountable obstacles to family life continuing somewhere else. They also failed to show that exceptional circumstances warranting the grant of leave outside the rules – under the executive’s residual discretion – existed and rendered the refusal of leave to disproportionately interfere with article 8.

The first thing that Lady Hale said was that the parties needed to be aware that the same constitution of the court had heard the earlier appeals in MM (Lebanon) and related cases and the justices were “pretty familiar” with everything. Although the finality of the rules is creating new classes of victims, the court was slightly resistant to hearing points about the post-Immigration Act 2014 appellate regime where proceedings relying on Wednesbury grounds of challenge will inevitably mount because of the deletion of the “not in accordance with the law” ground of appeal. As argued by Mr Saini QC for the appellants, other pitfalls in the existing environment are that it has been authoritatively held – in cases such as Odelola [2009] UKHL 25 and Alvi [2012] UKSC for example – that the rules “create legal rights” but that is no longer true.

Extremely Deplorable CJEU Ruling on Domestic Violence

SSHD v NA (Pakistan) [2016] EUECJ C-115/15, EU:C:2016:487 (30 June 2016)

As pointed out by Guild, Peers and Tomkin in The EU Citizenship Directive: A Commentary (2014), Directive 2004/38/EC “has proven to be a fertile ground for litigation, generating increasing, dynamic, and rapidly evolving case-law” (at p. v). This “absurd” judgment about a Pakistani woman who had suffered domestic violence has left the door wide open for would be abusers who leave their third country national spouse stranded in the host member state by returning home. The agonising result of this “shameful ruling” is that a poor abused woman who had been given a talaq could not rely on the CJEU for justice because her husband left the host member state. During the course of these proceedings, the case of Nazia Ahmed (NA) has been reported in the domestic courts as [2013] UKUT 89 (IAC) at the tribunal level and as [2014] EWCA Civ 995 (see here) and [2015] EWCA Civ 140 (see here) in the Court of Appeal. Like countless Pakistani women, NA suffered domestic violence after marrying Khurshid Ahmed (KA) in September 2003. They moved to the UK in March 2004 but KA, who holds German nationality, left the matrimonial home in October 2006 after assaulting NA and in December 2006 he left the UK for good.

Professor Peers observed that it was the first occasion that the court “interpreted the specific rule on domestic violence cases” but he was repulsed by the CJEU’s decision because: “While the victim in NA was able to rely on other provisions of EU law, not all victims will be able to.” Everything seems to be wrong with this judgment because it gives EU citizens unilateral power to exploit their non-EU family members. The CJEU’s preference for a literal approach to retention of residence rights comes at the cost of misunderstanding the social context of the domestic violence rule and women’s hardship and subordination to men. KA purported to divorce NA by a talaq issued in Karachi in March 2007. In September 2008, NA instituted divorce proceedings in the UK; the decree absolute was issued in August 2009 and she was granted custody of the two German national children.

Reference by Supreme Court to CJEU: Does Enhanced Protection Depend on Permanent Residence?

Secretary of State for the Home Department v Franco Vomero (Italy) [2016] UKSC 49 (27 July 2016)

In analysing the future role of the courts in the post-Brexit legal landscape, Christina Lienen predicts a rise in EU law cases because of “people’s anxieties about their legal status and rights.” Noting that a number of complex EU law cases are pending before the Supreme Court, she concludes “that we will be in for a treat once the article 50 trigger is pulled.” Though a longstanding pre-Brexit matter, the case of Franco Vomero (FV) is one where the Supreme Court referred a series of questions about the interplay between of article 16 and article 28 of the Citizens’ Directive or 2004/38/EC. Almost four years ago, the Court of Appeal (Pill, Aikens and Rafferty LJJ, [2012] EWCA Civ 1199) held that a four-year period of imprisonment for manslaughter did not affect FV’s permanent residence in the UK for a continuous 10-year period prior to the decision to deport him. He came within the protection afforded by regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 and could only be deported on imperative grounds of public security, which were absent in his case. The Supreme Court granted permission to appeal in February 2013 but stayed proceedings because other references were already pending in MG (C-400/12, EU:C:2014:9) and Onuekwere (C-378/12, EU:C:2014:13).

Onuekwere involved a Nigerian national who married an Irish national exercising her right of freedom of movement and residence in the UK. The couple had two children but his criminality was problematic. He was convicted of a sexual offence, for facilitating another person’s illegal entry into the UK and for unlawful possession of false documents. In Onuekwere the CJEU confirmed that a period of imprisonment does not count towards calculating the five years of continuous residence necessary for a permanent right of residence under article 16 of the Directive. In keeping with that analysis, FV had not acquired any right of permanent residence before the date of the decision to deport him. Yet, a stubborn Italian, FV argued that the finding in Onuekwere is irrelevant because an EU citizen with no right of permanent residence may nonetheless acquire a right to enhanced protection from expulsion under article 28 of the Directive.