‘Standoff’ in enforcement: Once given, an oral decision stands

PAA (First-tier Tribunal: Oral decision – written reasons) [2019] UKUT 13 (IAC) (10 January 2019)

Arguably, nothing is more exhilarating in the tribunal than a judge allowing your client’s appeal in an oral decision by uttering “I will allow this appeal”. But should the judge be allowed to change her/his mind afterwards? That is what seemed to happen to this Iraqi appellant and after giving a negative answer to this question the vice-president of the Upper Tribunal Mr CMG Ockelton also had some words of wisdom for both representatives because of their lack of preparation regarding exactly what their position was in relation to the tribunal procedure rules. He found it “extremely regrettable” that both representatives “had not looked at the rules and did not know”. The appellant PAA last had leave as an unaccompanied asylum-seeking child. The matter entered the Upper Tribunal because PAA appealed the First-tier Tribunal’s written decision dismissing his appeal against the refusal of his refugee claim and entitlement to humanitarian protection. This was so despite the fact that the judge had said at the end of the hearing that he would allow the appeal and the Home Office would be able to appeal in 14 days. Despite his overall generosity, Mr Ockelton did not accept PAA’s ambitious argument that he had a substantive legitimate expectation of a decision in his favour as the judge had said there would be an expectation of this nature. As he said he was unable to “see the slightest basis in law why that should be so.”

His reason was that if events in the First-tier Tribunal constitute a ground of appeal then it must be on the clear basis of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Mr Ockelton was unhappy that neither the appellant’s representative nor the presentation officer made any attempt to make any submissions on the procedure rules regarding whether the First-tier Tribunal judge was entitled to give a decision at the hearing and had done so, or was able to give a decision only in writing. Instead both parties simply said that they did “not know”. Understandably, Mr Ockelton found this to be unacceptable and explained that “it ought to go without saying that anybody proposing to make submissions in an appeal about the procedure adopted below should have done proper research on what the procedural strictures below actually were.” As Singh LJ held in Talpada [2018] EWCA Civ 841 procedural rigour applies in public as in private law and this important concept turns on parties knowing and following the relevant procedure rules. Hence, those who conduct litigation or attend court hearings without adequate knowledge of the rules of procedure run the clear risk of having a decision made against their client on procedural grounds.

Should Shamima Begum be allowed to return home?

After running away from Bethnal Green with her school friends Amira Abase and Kadiza Sultana three years ago, Shamima Begum, the ISIS bride deprived of British citizenship, is stuck in limbo with her son who was born in the al-Hawl refugee camp run by the SDF in Syria. She has already lost two infant children but remains totally unrepentant about joining the jihad and readily enlisting herself as bride material for ISIS, which she still endearingly refers to as “dawlah”. Her desire for an English-speaking husband resulted in her marriage to the Dutch jihadist Yago Reidijk who she still loves “very much”. Reidijk, who is being touted as a “convert to Islam”, was convicted in absentia of membership of a terrorist organisation and he is suspected of involvement in terrorist plots in the Netherlands. Attracted to volunteering for the death cult of ISIS because of propaganda videos, Shamima Begum ran away from home at the tender age 15 and is only 19. However, as a “victim” she is in no way comparable to the kidnapped Chibok girls who were forced to become jihadi brides and also forced to commit horrifically violent acts to prove their loyalty just in order to stay alive. Shamima Begum very consciously chose to participate in ISIS and so it is hard to spin things in her favour. She admits that she did not know what she was getting into. However, she does not find fault with terrorism and even argues that the Manchester Arena suicide bombing was “justified”. 

Her ongoing plight and gender do not reduce the danger she poses to security. The UK is understandably not keen to roll out the red carpet for her. After she was deprived of her British citizenship, Bangladesh disowned her as well. Despite her harsh predicament, her continuing reverence for ISIS makes Shamima Begum highly dislikeable. As she herself admits, she was not disturbed or sickened by the sight of a severed head because she was more concerned that the victim – “an enemy of Islam” – might have violated a “Muslim woman”; presumably someone like her. Of course, such ideas sit uncomfortably with her preference to “come home and live quietly with my child” and equally paradoxical is her contention that “a lot of people should have sympathy for me.” As discussed, in relation to the “Beatles”, the CPS has twice assessed that those who are suspected of beheading hostages cannot be prosecuted in the UK owing to insufficient evidence. Therefore, going by that perhaps it will not be possible to prosecute Shamima Begum after all – let alone jail her. She has been deprived of her British citizenship but this is only possible if she is a dual national because she cannot be made stateless. 

No death penalty assurance is necessary for ISIS ‘Beatles’

R (El Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin) (18 January 2019)

In a rolled-up hearing, Lord Burnett LCJ and Garnham J granted permission for judicial review in these proceedings but their Lordships dismissed the claim brought by Maha El Gizouli – the mother of the ISIS terrorist Shafee El Sheikh – against the Home Secretary’s decision to provide mutual legal assistance (MLA) to the US without requiring an assurance that the death penalty would not be imposed. Assurances of this type are routine in extradition cases to territories where capital punishment exists. Shafee El Sheikh and Alexanda Kotey are detained in Syria by American backed Kurdish forces. The pair is accused of participating in acts of barbaric terrorism and the murder of US nationals in Syria and of fighting for ISIS. With Jihadi John at the helm, the so-called “Beatles” beheaded dozens of innocent people including Americans James Foley, Steven Sotloff and Peter Kassig and Brits David Haines and Alan Henning. These grotesque acts were filmed and posted online and caused incalculable pain and anguish to the victims’ families. Pursuant to the 1994 Treaty of Mutual Legal Assistance in Criminal Matters between the US and the UK, the US requested MLA. The UK sought an assurance from the US that the death penalty would not be sought against anyone found guilty as a result of the investigation. Kurdish fighters apprehended El Sheikh and the US indicated that an assurance would not be given.

The US classifies both El Sheikh and Kotey as prisoners of war and wants to send them to Guantanamo. While giving evidence at a Senate panel hearing, Jeff Sessions, the US Attorney-General, remarked that “I have been disappointed, frankly, that the British are not willing to try the cases but intend to tell us how to try them and they have certain evidence we need”. Sajid Javid, who became Home Secretary on 30 April 2018, spoke to Sessions and expressed concerns that the UK had said it was not interested in prosecuting El Sheikh. Javid said that the death penalty should not be an issue for the UK and that he did not want the British authorities to tie America’s hands over the use of material gathered by British investigators. Thus, Javid acceded to the request without seeking any assurance. The Divisional Court held that the Home Secretary had been entitled to authorise MLA to the US to assist in a criminal investigation, which could in turn result in the prosecution of a British suspected terrorist for offences carrying the death penalty, without seeking assurances that the US prosecutors would not seek the death penalty.

An Alternative to Brexit: The Judgment in Wightman

Wightman and Others v Secretary of State for Exiting the European Union (C-621/18, EU:C:2018:999, 10 December 2018)

Brexit is a big mess. It is “a powerful acid” and is a huge economic and bureaucratic nightmare. Going through with it in the hope that normality can be restored to British politics is equated with “howling at the moon”. But Theresa May is “determined to deliver Brexit, and determined to deliver on time – on March 29 2019.” With very little time left, she emphasises that “the clock is ticking” and politicians must “put aside our differences” in the national interest. Nevertheless, on the international stage May intends to be belligerent and the crusader in her is keen “to battle for Britain in Brussels” because she is “armed with a fresh mandate”. Conversely, to avoid the impending calamity, a softer option does exist because the Wightman ruling permits the UK to freely and unilaterally revoke the 29 March 2017 notification of its intention to leave the EU: a sea change from the reasoning embraced by the Supreme Court in Miller [2017] UKSC 5 which was decided on the basis that once notice under article 50 of the Lisbon Treaty/TEU was given the government pulled the trigger which caused the “bullet to be fired” with the result that it “will hit the target and the Treaties will cease to apply”. Yet the CJEU held that the revocation of notice, decided in line with the UK’s own national constitutional requirements, would mean that the UK remains in the EU under terms that are unchanged regarding its status as a member state.

Hence, the ruling presents a convenient escape of last resort for the UK if all else fails. Under article 50, after notifying the European Council, the withdrawing member state must negotiate and conclude a withdrawal agreement with the EU. The EU Treaties then no longer apply to the exiting member state from the commencement of the withdrawal agreement or, failing that, two years after giving notice of the intention to withdraw and any possible extension. These proceedings trace their roots to a petition for judicial review in Scotland and the referring court pointed out that the answer would enable members of the House of Commons to know, when exercising their vote on a withdrawal agreement, whether the third option of revoking notice under article 50 existed in addition to the two other options of withdrawing from the EU with a deal or withdrawing from the EU without a deal. The petitioners were maligned and portrayed as traitors to the UK and continue to be attacked for their political views on remaining in the EU. However, in reality they are true patriots who wish to end the ongoing insanity that is being manifested by the mafia blindly wanting to carry out Brexit at any cost.

Analysis of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill

The crushing defeat suffered by Theresa May because of the rejection her Brexit Deal has left the UK in utter chaos. Uncertainty looms large in all spheres of UK life but the government is determined to carry through with Brexit at all costs. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill is an important piece of upcoming legislation because it makes provision to end free movement rights under retained EU law and to repeal other retained EU law relating to immigration. As introduced, the Bill is divided into three parts and apart from seeking to end free movement it seeks to empower the government so as to modify, using regulations subject to the affirmative procedure, retained EU legislation on social security co-ordination. According to the government a power of this nature is required to enable the delivery of a range of options from Brexit day, particularly to put into action its preferred approach to social security co-ordination in a no deal scenario. The Bill consists of seven clauses and operates in linkage with the new White Paper entitled The UK’s future skills-based immigration system. Clause 1 and schedule 1 contain provisions to terminate the law of free movement in the UK by repealing section 7 of the Immigration Act 1988 with the result that EU nationals and their non-EU family members will require permission to enter and remain here under the Immigration Act 1971.

This is said to enable the delivery of the future immigration system which is not specified in the Bill and will be implemented through future Immigration Rules relating to workers, students and family members. As things presently stand, free movement enables those from the European Economic Area (the “EEA”, i.e. the EU and Iceland, Liechtenstein and Norway) and Swiss nationals and their family members to (i) enter the UK and reside here for an initial period of three months, (ii) reside in the UK as a “qualified person”, such as a jobseeker, worker, self-employed person, self-sufficient person, or student, for as long as they have that status, and (iii) acquire permanent residence after completing five years lawful residence in the UK under the Citizens’ Directive (2004/38/EC). But all this will be history once free movement law is repealed and new Immigration Rules are erected to generally keep Europeans out of the UK unless they have obtained employment in advance and are remunerated £30,000 per annum. As seen earlier, all this spells out the end of two immigration systems in the UK and a single system will be operated in the future.

Analysis of Country Guidance on Iranian Kurds

HB (Kurds) Iran (illegal exit: failed asylum seeker) CG [2018] UKUT 430 (IAC) (12 December 2018)

Finding themselves trapped as minorities in countries such as Iran, Iraq, Syria and Turkey, the Kurds are dubbed “a people without a country” and comprise “the world’s largest stateless nation”. While answering the question whether a failed asylum seeker of Kurdish ethnicity will be at risk of persecution on return to Iran, the Upper Tribunal found in this country guidance decision that Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment. The appellant, HB, was of Kurdish ethnicity and he was a citizen of Iran. Born in 1988 in Betoosh, Sardasht, Iran, he was an only child whose parents (a shepherd and a housewife) disappeared in 1994 because of involvement in Kurdish nationalism. HB suffered burns injuries during a fire at his family home at the same time and his uncle took him to Iraq where he grew up undocumented. In Iraq, he was bullied and harassed by villagers because of a disability in his legs and his Iranian origins. Upon reaching adulthood he returned to Iran. With his uncle’s help, he raised money to pay for his journey abroad by selling his family land. He illegally exited Iran in September 2015 and arrived in the UK in early July 2016. He claimed that he was unable to live in Iraq undocumented and face discrimination without citizenship and residence rights.

Equally, he was unable to return to Iran to live because of his family’s claimed involvement with Kurdish separatists. HB’s protection claim was refused in December 2016. The FTTJ Nicholls dismissed his appeal in January 2017 but then UTJ Storey set the decision aside for it to be remade in the Upper Tribunal. Hitherto there had been 19 country guidance cases on Iran (from 2002 to 2016) and the present case became the twentieth case of this nature. In determining the appeal, the Upper Tribunal considered expert evidence from two expert witnesses, Ms Anna Enayat and Professor Emile Joffé. In imparting guidance, the Iranian regime’s poor record on human rights remained the tribunal’s point of departure. The Report of the UN Special Rapporteur on the situation of human rights in Iran to the Human Rights Council (17 March 2017) is very clear that the theocratic regime in Iran habitually abuses human rights and torture and other forms of cruel, inhuman and degrading treatment are prevalent. But the regime rejected all of the 20 recommendations on these issues made during the 2014 universal periodic review.

Scottish Perspectives on Paragraph 322(5) and ILR

Oji (Nigeria) v Secretary of State for the Home Department [2018] CSOH 127

The petitioner, or claimant, Mr Collins Oji was a Nigerian national who applied for indefinite leave to remain (ILR) on 19 February 2016 along with his dependent spouse on the basis of five years residence as a highly skilled Tier 1 (General) migrant. On 3 November 2017 his application was refused principally by making reference to paragraph 322(5) of the Immigration Rules. In other words, owing to his character and conduct the decision-maker considered that it would be undesirable to allow him to remain in the UK. The refusal was predicated on the finding that in his antecedent application Mr Oji had declared different sums of income to Her Majesty’s Revenue and Customs (HMRC) and to UK Visas and Immigration (UKVI). The decision-maker also found that the earnings’ discrepancy meant that Mr Oji failed to prove his genuine earnings in the preceding 12 months with the result that he was treated as having had no earnings and hence failed to accumulate the requisite points to acquire ILR. An administrative review of the decision was refused on 6 December 2017. Upon challenge, Lord Tyre opined that paragraph 322(5) is not restricted to any certain “type” of case. But the court was equally attracted to Spencer J’s approach in R (Khan) v SSHD (Dishonesty, Tax Return, Paragraph 322(5)) [2018] UKUT 384 (discussed here) and it reduced (quashed) both the refusal of ILR and the administrative review upholding the refusal.

In refusing the application, the decision-maker relied on paragraphs 19(i) and (j) of Appendix A of the Immigration Rules which list factors that are relevant in assessing, on balance of probabilities, the genuineness of the earnings claimed by an ILR applicant. From 1 February 2015 to 31 January 2016, Mr Oji claimed earnings of £55,220 which consisted of salaried earnings and self-employed earnings. The decision-maker observed that in his Tier 1 application dated 25 January 2011 Mr Oji claimed total earnings of £56,140 (including £37,380 self-employed earnings) from 1 March 2010 to 10 January 2011. Moreover, in his application dated 29 January 2013 he had claimed total earnings of £56,331 (including £34,300 self-employed earnings from 21 January 2012 to 20 January 2013). The decision-maker observed that in 2010/11 and 2012/13 declared self-employed net profits of £5,310 and £5,350 were revised and Mr Oji subsequently declared self-employed net profits of £37,379 and £34,300 for those years.