Off the Hook: New Guidance on HOPOs and WCOs

Awuah & Ors (Wasted Costs Orders – HOPOs – Tribunal Powers: Ghana) [2017] UKFTT 555 (IAC) (13 July 2017)

Everyone knows that the tribunal judiciary is generally quick to side with sedentary HOPOs who serve no purpose other than reciting flawed decision letters as if they were scripture. It is also an open secret that in the line of duty, officials routinely lie, cheat, mislead and obfuscate matters to maintain the upper hand. The behaviour of HOPOs and the oppressive bureaucratic culture they represent brings to mind Geoffery Care’s intriguing analysis that in the first tribunal that sat secretly in Blackwall in an abandoned waterside office, the immigration officer used to be the “boss” in proceedings relating to the “right to land”. By analogy it is entirely possible to perceive HOPOs as a modern-day mafia that operates at the behest of the Godfather, i.e. the SSHD. In these proceedings, McCloskey J (President) and Mr Clements (President FtT) answered a series of questions and gave detailed guidance on the HOPO creed whose foremost traits, in addition to being deceitful, are negligence and mediocrity. However, they lamentably found that the FtT is not empowered to make a Wasted Costs Order (“WCO”) against a HOPO and that the Carltona principle governs the SSHD-HOPO relationship. They also found that a range of judicial functions and duties achieve HOPOs’ answerability to the tribunal.

Each time a WCO is in contemplation common law fairness requires that the respondent should be alerted to this possibility, be appraised of the case against him and be given adequate time and opportunity to respond. Similarly, the basic requirements of fairness to the respondent must always be respected despite the fact that expedition and summary decision-making are desirable in WCO cases. According to McCloskey J and Mr Clements, a causal nexus between the impugned conduct of the respondent and the costs unnecessarily incurred by the aggrieved party is a condition precedent for a WCO to be made. The final word of presidential caution was that the tribunal must employ restraint when exercising its “own motion” power to make a WCO. Notably, there are 145 HOPOs nationwide operating out of nine home office centres. This number includes 37 SPOs, or senior presenting officers, charged with presenting cases to the Upper Tribunal.

Inherent Jurisdiction: Article 8 and Adoption

W v The Secretary of State for the Home Department [2017] EWHC 1733 (Fam) (07 July 2017)

Nigerians are automatically associated with corruption and deception. The magnitude of the problem is such that even honest citizens of Nigeria – who in fact make up the vast majority of the population – are seen as fraudsters. These proceedings involved themes linked to adoption, domicile, intercountry adoption, entry clearance, recognition of foreign judgments and conflict of laws. The intersection of such fields of law is immersed in complexity and confusion lurks behind every nook and cranny. Yet in this case a Nigerian couple applied for recognition of a Nigerian adoption order pursuant to the inherent jurisdiction and Pauffley J granted their application. Mr and Mrs W are married Nigerian citizens from “[X] state”. Mr W is a Tier 2 visa holder. Mrs W is residing in the UK as his spouse. They intend to return to Nigeria in 2019 after Mr W completes his current placement and acquires a significant medical qualification. The couple’s two-year old adopted son V, who lives abroad with maternal relatives, had been refused admission to the UK as the child under paragraph 319H (b) and paragraph 319H (l) of the Immigration Rules. The court gave effect to the presidential guidance imparted by Sir James Munby in N (A Child), Re [2016] EWHC 3085.

The effect of Pauffley J’s judgment recognising V’s Nigerian adoption order was to treat them as his “parents” in immigration law with the consequence that V became their dependent child under the points-based system arrangements operated for family members. The parents could not seek a declaration, under section 57 of the Family Law Act 1986, that V is their adopted child because of their inability to satisfy the criteria that he was domiciled in the UK at the time of the application or habitually resident for one year preceding the application. Moreover, they were also ineligible from seeking a domestic adoption because of their inability to satisfy the requirements of section 83 of the Adoption and Children Act 2002 and regulation 4(2) of the Adoptions with a Foreign Element Regulations 2005. Prospective adopters must be ILR holders. The regulations prescribe that they must obtain a certificate specifying that if an adoption order is made “the child will be authorised to enter and reside permanently in the UK”.

Case Preview: Sadovska and another (Appellants) v Secretary of State for the Home Department (Respondent) (Scotland)

Vociferous debate is raging over EU law rights because of Brexit and, of course, immigration is a hotspot in that regard. Standing firm, European leaders remain committed to their common mission to expand rights and refuse to reduce them. But at some point unbridled rights turn into anathema for society. These proceedings relate to a “sham marriage” between Violeta Sadovska, a Lithuanian, and Saleem Malik, a Pakistani. She entered the UK in 2007 exercising her right of free movement pursuant to Directive 2004/38/EC. He arrived as student in 2011 on a two-year visa until April 2013 but in late March 2014 he published a notice of their intention to marry on 17 April 2014. Enforcement officers swooped on the suspicious wedding ceremony. Both appellants were interviewed separately and the home office subsequently ordered their removal from the UK because they had attempted to contract a marriage of convenience. On appeal, the First-tier Tribunal decided that Malik’s interviews confirmed that the couple had not demonstrated knowledge of each other consistent with their claimed relationship. The FtT found no evidence of any marriage planning. It judged that they were not in a durable relationship. It was thus justified to revoke Sadovska’s residence card and order her removal. Malik enjoyed no family life needing protection. No private life claim was advanced.

The FtT stated that the burden of proof in immigration appeals is on the appellant and the standard of proof is the balance of probabilities. It found that the pair had attempted to enter into a marriage of convenience to facilitate Malik’s stay in the UK. The Upper Tribunal refused the appellants’ appeal. The Inner House held that the FtT did not err in relation to the burden or standard of proof and was entitled to reach a conclusion of fact as to their relationship, in light of the evidence adduced and attaching such weight to the evidence as it deemed appropriate. Last month Lady Hale and Lords Neuberger, Kerr, Clarke and Reed heard the onward appeal on the issue whether the Inner House erred in failing to hold that, in cases where the respondent intervenes to stop an alleged marriage of convenience and makes a removal order on that basis, the evidential burden of proof rests with the respondent and requires to be discharged on the balance of probabilities.

‘Human Marketplace’: New Libya Country Guidance

ZMM (Article 15(c)) Libya CG [2017] UKUT 263 (IAC) (28 June 2017)

When “mad dog” Muammar Gaddafi deposed Libya’s King Idris in 1969, his hero Nasser was both shocked and amused that the jaded ideology conjuring up fake dreams of Arab “free officers” unifying the Middle East had retained any political currency. Gaddafi’s demise was a particularly bloody affair even by Arab standards. The vacuum of power created by the collapse of the Libyan state unleashed untold ills on local people but the magnitude of the problem only came to be fully understood in the west when one Salman Abedi, who had left the UK in 2011 to overthrow Gaddafi’s regime, committed a terrorist atrocity in sleepy Manchester which left 22 people dead. Painfully ironically, like the tragic events presently bestriding the Arab world, Abedi’s terrorist attack was avoidable. “ZMM” is a citizen of Libya. He spent his whole life in Tripoli and arrived in the UK as a student in September 2014 and claimed asylum in April 2015. His appeal was dismissed but the decision was set aside in November 2016 because the judge’s approach was flawed as he failed to recoginse that FA (Libya): Article 15(c) Libya CG [2016] UKUT 413 held that the earlier country guidance in AT and Others Libya CG [2014] UKUT 318 should no longer be followed.

Alison Pargeter, who is a senior research associate at the Royal United Services Institute, gave expert evidence in the present proceedings. Even though her evidence was unchallenged, the home office representative oddly claimed that the expert had given a “possibly over gloomy” picture of Libya’s future. However, in light of the ongoing lawlessness in the country, the Upper Tribunal found that “the violence in Libya has reached such a high level that substantial grounds are shown for believing that a returning civilian would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to a threat to his life or person.” The tribunal found that Libya is boiling with indiscriminate violence. Because of the intense internal armed conflict, people used to a highly authoritarian country now find that they are living amid endemic levels of violent crime. Kidnappings, robberies and murder are rife and internal travel is extremely dangerous.

EU Law and Family Unity: The Opinion in Lounes

Lounes v Secretary of State for the Home Department (C‑165/16 EU:C:2017:407) (30 May 2017)

An Algerian, Toufik Lounes entered the UK as a visitor on a six-month visa in January 2010. He overstayed illegally. He formed a relationship with Perla Nerea García Ormazábal in 2013. Thereafter they entered into an Islamic marriage in January 2014. A civil ceremony took place in May 2014 shortly before which Lounes was notified of his liability to removal as an overstayer and a removal decision was served on him. A month earlier, an application for an EEA residence card had been made on the basis of the couple’s marriage. García Ormazábal 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. In August 2009, she became a naturalised British citizen and acquired a British passport. Lounes was refused an EEA residence card because of his wife’s dual nationality. In McCarthy (C‑434/09), dubbed “hard to defend” by Professor Peers, the CJEU held that Directive 2004/38/EC 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.

In the present proceedings it is undisputed that before becoming British, García Ormazábal exercised her free movement rights and, as a Spanish national, acquired a right of residence in the UK under the directive. The issue was whether an EU citizen such as García Ormazábal, who had exercised her rights of free movement and residence in accordance with the directive and then obtained the host member state’s nationality, may nevertheless rely, for her and/or for her non-EU spouse’s benefit, upon the rights and freedoms conferred by the directive in the light of its scope ratione personae (“by reason of the person”)? For Advocate General Bot depriving her of her EU law rights because of her naturalisation as a British citizen “would annihilate the effectiveness” of the rights derived by her from article 21(1) TFEU. In 2012, the British authorities had used the outcome in McCarthy as an excuse to amend (and re-amend) the domestic regulations transposing the directive to preclude dual EU

Deportation in Advance of Appeal is Unlawful

R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 (14 June 2017)

In 2013, as home secretary, Theresa May pledged to her party that foreign criminals with outstanding appeals would no longer be permitted to remain on British soil in cases “where there is no risk of serious and irreversible harm”. By holding that the crippling “deport first, appeal later” (DFAL) provisions of the Immigration Act 2014 are unlawful, the Supreme Court continued the trend of departing from the Court of Appeal’s conservatism. Both appellants had convictions for serious drugs offences. Presently 23, Kiarie, a Kenyan, came to the UK aged three and lived with his family acquiring ILR in 2004. Presently 36, Byndloss, a Jamaican, entered the UK aged 21 acquiring ILR in 2006. Byndloss and his wife have four children and he also has numerous further children from other relationships. Deportation orders were made for both appellants pursuant to the automatic deportation regime under section 32(5) of the UK Borders Act 2007. The decision-makers rejected the appellants’ claims that exception 1 in section 33 applied with the result that their deportation would breach their rights under article 8 of the ECHR. Overall, Lady Hale and Lords Wilson, Carnwath, Hodge and the late Lord Toulson distanced themselves from Richards, Elias and McCombe LLJ’s interpretation of the public interest in DFAL cases.

DFAL certification pursuant to section 94B of the Nationality, Immigration and Asylum Act 2002, as inserted by section 17 of the 2014 Act, accompanied the deportation orders. However, despite the use of the DFAL provisions, no “clearly unfounded” certification was made under section 94 of the 2002 Act. This meant that the appeals were arguable. Lord Wilson observed that 1,175 DFAL certificates for foreign criminals were issued between July 2014 and December 2016. The overwhelming majority of these individuals were deported in advance of their appeals. Only 72 notices of appeal were filed from abroad and virtually all the appeals had failed. Speeding up the expulsion of criminals, preventing them from dragging out the appeals process and building up article 8 rights were the foundations of DFAL. But deporting appellants ahead of their appeals incurred high costs for them. The equipment needed to participate from abroad minimally costs £526. Renting suitably equipped premises costs thousands of pounds.

Article 8 and ‘Catch 22’: New Rules for ADR are Lawful

BritCits v The Secretary of State for the Home Department [2017] EWCA Civ 368 (24 May 2017)

“Dead woman walking” zombie Theresa May’s odium for the sick and elderly achieved infamy long before her “dementia tax” debacle. The courts have repeatedly upheld the validity of the harsh Immigration Rules she unleashed in July 2012 and their approach to the controversial rules for adult dependant relatives (ADR) is no different. These proceedings arose out of a generically made judicial review challenge to the ADR rules by the charity BritCits which seeks to preserve the interests of sponsors and applicants affected by the stringent rules on family migration by campaigning to change them. Last year Mitting J dismissed the claim seeking to quash the rules for the admission of ADR of British citizens, those settled in the UK and those in the UK with refugee leave or humanitarian protection. In this judgment Sir Terence Etherton MR and Davis and Sales LJJ dismissed the onward appeal. BritCits complained of three things. First, violating the principle in Padfield [1968] UKHL 1, Mitting J had failed to find that the home secretary had not exercised her powers under the Immigration Act 1971 to promote the object and policy of the statute but instead acted in the overriding pursuit of different non-statutory objectives (namely the reduction of costs to the NHS).

Second, he failed to find that the immigration rule in issue operates in a self-defeating and partial way, is irrational and thus unlawful. Third, he failed find that the immigration rule in issue is incompatible with article 8 of the ECHR and needed either to be quashed, or that a declaration needed to be made regarding its non-compliance with article 8. The claim was argued on the basis of a paradigm factual situation where a UK citizen has an elderly dependant parent residing outside the UK and both the foreign parent and the UK citizen child want the final years of the parent’s life to be spent in the care of his or her child and in the company of his or her grandchildren. BritCits submitted that article 8 protected the family life enjoyed by the parent and the UK citizen in every paradigm factual situation presented by the written evidence of practicing lawyers tendered specifically for these proceedings.