On the important subject of indefinite leave to remain (ILR) on the grounds of 10 years’ continuous residence, the Court of Appeal has held that the SSHD had erred in refusing an ILR application made by Mr Chandra Mungur – a citizen of Mauritius – because it could not be said that he had “left the United Kingdom in circumstances in which he had no reasonable expectation at the time of leaving that he would lawfully be able to return” during the period relied upon as 10 years’ continuous residence. While Mr Mungur had left the UK in 2001 following expiry of his visit visa, he had done so with the intention and expectation of lawfully returning as soon as possible under a student visa. Mr Mungur had obtained a visitor visa valid from 22 March 2001 to 22 September 2001. He entered the UK as a visitor on 16 April 2001 and left on 1 September 2001 “to return to Mauritius to apply for Entry Clearance as a student”. That application was granted on 25 September 2001 and was valid until 25 September 2003. On 5 October 2001, he entered the UK again and by a succession of applications he applied for and was granted further leave to remain successively first as a student and then as a work permit holder. He remained lawfully in the UK from 25 September 2003 until 13 July 2011. He overstayed for 1,947 days when his leave to remain expired on 13 July 2011 until 10 February 2016.
Mr Mungur was granted further leave to remain on human rights grounds until 8 May 2019. He applied for ILR on the grounds of 10 years’ continuous residence on 30 May 2019. On 20 September 2019, the decision-maker refused the application on the ground that during the period relied upon by Mr Mungur as continuous residence, he had “left the UK in circumstances in which he had no reasonable expectation at the time of leaving that he would lawfully be able to return” and thus could not satisfy the requirements of the paragraph 276A(1)(a) of the Immigration Rules. In addition to the first ground of refusal, the decision-maker further said that he had been in the past an overstayer and therefore could not satisfy the requirements of paragraph 276B(v). Aggrieved, he challenged the lawfulness of the refusal by bringing judicial review proceedings. He said that when he left the UK on 1 September 2001, he had a reasonable expectation that he would lawfully be able to return, which satisfied the requirements of paragraph 276A(a)(iii) and that, thus, his absence from 1 September to 5 October 2001 did not break the period of continuous residence which had to be taken as starting on 16 April 2001. He accepted he overstayed for 1,947 days but he argued that the Home Office was wrong to decide that he did not meet the requirements of paragraph 276B(v). The government abandoned reliance on this issue and conceded that his overstaying was not a bar to ILR because he was not a current overstayer and not currently in breach of the Immigration Rules and paragraph 276B(v), “the applicant must not be in the UK in breach of immigration laws”, did not apply.
The Supreme Court unanimously dismissed Mr Sanambar’s appeal and held that the Upper Tribunal correctly approached the balancing exercise required by article 8 of the ECHR and it was entitled to conclude that the interference with Mr Sanambar’s private and family life was outweighed by the public interest in the prevention of crime. Two issues arose in this appeal. First, the correct approach to article 8 in deportation cases consequent upon criminal offending by those who entered and lawfully settled in the UK as children. Second, the approach to the test of “very significant obstacles to integration” in the receiving state in such cases. Mr Sanambar was born in 1995 in Iran and arrived in the UK lawfully with his mother in 2005 having been given leave to enter and indefinite leave to remain under the family reunion policy. He had a difficult upbringing due to his father’s violent conduct, but had a particularly strong bond with his mother, with whom he has lived all his life. He had no family ties with Iran but spoke to his mother in Farsi. He was then convicted of three counts of attempted robbery in 2009, possession of an offensive weapon and six counts of robbery in 2011, three counts of attempted robbery, and one count of handling stolen property in 2013. Notably, the 2013 robberies were all committed at night and at knifepoint and his victims were aged between 15 and 18.
In the light of his 2013 convictions, for which he was sentenced to three years’ detention in a Young Offender Institution, the SSHD decided that Mr Sanambar’s deportation would be conducive to the public good and would not be in breach of his right to respect for his private and family life under article 8. She made a deportation order against him. He then appealed against that decision. After a rehearing before the UT his appeal was dismissed. The UT held that he had not met the threshold under the Immigration Rules for resisting his removal because he had failed to show that there were very significant obstacles to his integration in Iran. His appeal to the Court of Appeal was dismissed by Irwin, Moylan and Rafferty LJJ. The Supreme Court rejected the submission that in a case involving a settled migrant who has lawfully spent all or the major part of his childhood in the host country, the court must separately consider whether there were very serious reasons to justify expulsion, as a separate condition after the examination of the criteria in Üner v the Netherlands [GC] 46410/99, 45 EHRR 14. Instead the authorities established that the court must carry out a delicate and holistic assessment of all the criteria flowing from the ECtHR’s caselaw in order to justify the expulsion of a settled migrant, like Mr Sanambar, who has lived almost all of his life in the host country. It needs to be demonstrated that the interference with his private and family life was supported by relevant and sufficient reasons.
In these judicial review proceedings, Sir Nigel Davis and Singh and Dingemans LJJ held that there was no reasonable prospect of successfully appealing against a factual finding made by FTTJ Monson that the applicant for leave to remain, one Mr Sohrab Mahmud (a Pakistani national), had cheated on an English language test. Moreover, a request to adduce fresh evidence without a proper application was treated as an application for relief from sanctions and was refused owing to a serious procedural failing. Since it was a Cart v Upper Tribunal  UKSC 28 application to the Administrative Court, there was no right, pursuant to the provisions of CPR 54.7A, to have an oral renewal of the application for permission to apply for judicial review after the refusal by HHJ Jarman QC to grant permission to apply on the papers whose decision was the focus of the present appeal. The SSHD had refused Mr Mahmud’s application for leave to remain on the basis that he had used deception in a previous application for leave to remain by using a Test of English for International Communication (TOEIC) certificate which had been obtained using a proxy test taker. Mr Mahmud vehemently denied the allegation, although he confirmed that the voice on the tape recording of the test was not his. He appealed to the FTT which rejected his explanation that there must have been a mix up with tapes at the test centre and his application for permission to appeal was refused by the UT.
His application for permission to apply for judicial review of that refusal on the grounds that it raised an arguable case and an important point of principle was refused. On appeal, he sought to adduce as fresh evidence a report on English language certificates by an all-party parliamentary group (APPG). A US corporation called Educational Testing Service (ETS) provided the tests and in February 2014 the BBC’s Panorama programme reported on the cheating. The Home Office required ETS to employ voice recognition software to go back over the recordings from the test centres to try and identify those cases in which it appeared that the same person had spoken in multiple tests, suggesting that he or she was a professional proxy. ETS reported its findings to the SSHD and then in 2014 and 2015 the SSHD made decisions in about 40,000 cases cancelling or refusing leave to remain on the basis that those persons had cheated in the TOEIC test. Underhill LJ noted in Ahsan v SSHD  EWCA Civ 2009 that “although it seems clear that cheating took place on a huge scale, it does not follow that every person who took the TOEIC test in any centre was guilty of it”. In numerous cases in the FTT, UT and High Court individuals accused of cheating have successfully challenged the allegation in their particular case. The TOEIC litigation has raised a number of issues, as Dingemans LJ observed at the outset in these proceedings.
In these proceedings case, Wall J decided that it was arguable that it had been unlawful for the SSHD to have had in place an unpublished policy which went directly against the terms of her published policy and which directly stoped her in her duty to consider whether asylum seekers had been trafficked en route to the UK. “AA” was a non-Arab Darfuri from Sudan who claimed that he feared persecution in his own country and fled to Europe. He travelled to France via Libya, claiming that in Libya he was sold into slavery and tortured. On arrival in France he made an asylum claim. His claim was unsuccessful and he travelled to the UK where he claim asylum again. The SSHD conducted a screening interview which did not identify him as a potential victim of modern slavery and he was returned to France under the terms of Regulation 604/2013 (Dublin III), as the appropriate jurisdiction to determine his claim for asylum. The SSHD’s guidance detailed the questions to be asked during the course of a screening interview including the following two questions, designed to elicit information which might suggest that someone had been the subject of modern slavery, i.e. “why have you come to the UK?” and “please outline your journey to the UK”. AA argued that at the time of his screening interview the SSHD also had an unpublished policy which was at odds with the published policy in that the two questions were not to be asked.
He agued that that unlawfully curtailed the opportunity for the SSHD to gather material which would have led her to conclude that he was a victim of modern slavery and act accordingly. AA also maintained that if a conclusive determination that he was a victim of modern slavery been made thereafter, he would have been eligible to apply for leave to remain in the UK. The SSHD accepted that she had a published policy in place at the time of AA’s interview which provided for the asking of the two questions. Equally, the SSHD further accepted that there was a policy decision taken not to ask those two questions at that time. It was the government’s case that that new policy was adopted in order to streamline the screening interview process with a view to reducing contact time between asylum seekers and others owing to the COVID-19 pandemic and to ensure that all cases were dealt with as expeditiously as possible. However, the SSHD asserted that asking the questions would not have actually resulted in AA giving any information amounting to evidence of modern slavery which would have resulted in a referral for more investigation. Granting AA’s application for judicial review, Wall J ordered the SSHD to use her best endeavours to bring AA back from France. The court refused to adjourn to provide the SSHD to submit a fuller defence as that would “in the vernacular, be an exercise in kicking the ball into the long grass.”
First, it argued that the guidance inaccurately states the investigatory duties imposed by the Dublin III on the UK following receipt of a Take Charge Request (TCR) from another Member State. It was submitted that the relevant guidance provides only for information to be obtained from the local authority once the family link had been established, which came too late in the process to allow for relevant information to be obtained to inform the assessment. It was said that there was no process for case workers to give UAMs notice of concerns before refusing TCRs, which had led to errors in a number of cases. Further it was said that the use of the word “onus” in the guidance was inaccurate. Secondly, it was said that the guidance wrongly states that TCRs can be summarily refused if the SSHD’s investigation has not been completed within the two month time limit imposed by Dublin III. Thirdly, it was said that the guidance sets out a practice in relation to re-examination requests which is unlawful because it misapplies the decision of the Court of Justice of the European Union (CJEU) in the case of X and X v Staatssecretaris van Veiligheid en Justitie (C‑47/17 and C‑48/17, ECLI:EU:C:2018:900). The SSHD submitted that the challenges to Policy v.3 and v.4 of the guidance should not be entertained as those versions had been superseded and had been rendered academic. She also sought permission to rely on a late witness statement from the head of the European Intake Unit (EIU) at the Home Office.
The long title of the Nationality and Borders Bill gives it a positive gloss and explains that it makes provision about nationality, asylum and immigration, victims of slavery or human trafficking and a power for tribunals to charge participants where their behaviour has wasted the tribunal’s resources and for connected purposes. However, parts of the Bill deliver Priti Patel’s promise to turn a civilised country such as the UK into a pariah state. As reported the UNHCR has said that it is “absolutely dismayed” that the UK is introducing legislation to let asylum seekers be sent abroad for offshore processing. The Home Office is seeking to sell the Bill on the basis of spin in the form of “three fair but firm objectives” to increase the fairness of the system and protect and support those in genuine need of asylum; to deter illegal entry into the UK; and to remove those illegally present more easily from the UK. The government is quite adamant that the measures will tackle illegal migration, asylum and control the UK borders. But the reality is that Priti Patel’s new laws are a fresh attack on genuine refugees and will cause further delay and problems in a broken asylum system which is plagued by unfairness. As introduced, the Bill consists of six parts set out in 71 clauses and five schedules. Part 1 deals with nationality, part 2 deals with asylum, part 3 deals with immigration offences and enforcement, part 4 deals with modern slavery, part 5 deals with miscellaneous matters and part 6 deals with general matters. This post examines aspects of part 3 the Bill which intend to criminalise seeking asylum.
Controversially, clause 38 (assisting unlawful immigration or asylum seeker) of the Bill amends the facilitation found offences in sections 25 and 25A of the Immigration Act 1971, raising the maximum penalty from 14 years’ prison to life imprisonment and removing the requirement of facilitation being “for gain” in relation to section 25A. As currently in force, section 25 of the 1971 Act makes it an offence to carry out an act (including outside of the UK) to facilitate the commission of a breach (or attempted breach) of immigration law by an person who is not a UK national. Notably, facilitation may include behaviour linked to recruiting, transporting, transferring, harbouring, receiving or exchanging control over another person. Moreover, the required mental element is that the person doing the act must know or have reasonable cause for believing that the act in question facilitates the commission of a breach or attempted breach of immigration law by the individual, and must know or have reasonable cause for believing that the individual is not a UK national. Currently under section 25A(1) of the 1971 Act, it is an offence for a person, knowingly and for gain, to facilitate the arrival or entry (or the attempted arrival or entry) of an asylum seeker into the UK. Section 25A contains a requirement to prove gain and gains from facilitation may be cash-in-hand, taken while abroad, or otherwise difficult to link back to facilitation, making this difficult to evidence in some prosecutions. Clause 38 of the Bill removes the requirement to prove gain, broadening the section 25A offence, to allow the Home Office to charge more people for facilitating the arrival of asylum seekers to the UK.
In these proceedings, Morris J decided that the SSHD’s refusal to issue a British passport to one Mr Leonard Gjini, a dual British and Albanian national, who had obtained his British citizenship through fraud was irrational and unlawful. The court also held that the SSHD’s refusal to amend Mr Gjini’s naturalisation certificate in order to accurately reflect his date and place of birth was unlawful. Mr Gjini entered the UK and claimed asylum on the false basis that he was born in Deqan, Kosovo, Yugoslavia on 16 March 1982. In May 1999 he was granted asylum and indefinite leave to remain. On 29 September 2004 he was granted a naturalisation certificate in the name of Leonard Gjini and he was issued with a British passport bearing his false date, country and place of birth. In August 2019 the SSHD wrote to him indicating that some verification checks showed that he had obtained his UK citizenship through fraud and notified him that consideration was being given whether to deprive him of British citizenship under section 40(3) of the British Nationality Act 1981. Mr Gjini’s passport was revoked on 15 August 2019. On 1 October 2019, he reapplied for a British passport. However, on 22 October 2019, Her Majesty’s Passport Office (HMPO) refused his application, stating that he obtained his British citizenship by deception and noting a mismatch between the date, country and place of birth as it appeared on his naturalisation certificate and his actual details.
On 6 August 2020 the SSHD refused to amend the naturalisation certificate to reflect his genuine biographical information. Mr Gjini submitted that, first of all, the refusal of his passport application was irrational, perverse and insufficiently reasoned and unlawful as being incompatible with a written ministerial statement (WMS), at the heart of this case, made by the then SSHD, Mrs Theresa May, on 25 April 2013. He said that the refusal did not comply with the principle of proportionality under EU law and was incompatible also with his right to respect for private life under article 8 of the ECHR. He submitted that the refusal was also unlawful as being indicative of the application of an inconsistent practice as between comparable cases. In relation to refusal to amend the naturalisation certificate, Mr Gjini contended that it was unlawful, contrary to the SSHD’s own policy statements and irrational. Morris J granted the application for judicial review and found that refusal to issue a British passport was irrational and unlawful was quashed. Morris J also allowed permission to amend Mr Gjini’s grounds which sought to challenge the later refusal of 6 August 2020 amend the naturalisation certificate to demonstrate his genuine biographical information. The court highlighted that according to the decision in R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett)  1 QB 811, a passport does not confer citizenship, it is merely evidence of it. Notably, passports are issued at the discretion of the SSHD under the Royal Prerogative. They can be withdrawn through the use of the same discretionary power.
As to the seven year rule saga, the Court of Appeal has held that in a situation where a child whose parents had no entitlement to leave to remain in the UK applied for leave to remain pursuant to paragraph 276ADE(1)(iv) of the Immigration Rules on the basis that they had seven years’ continuous residence and it would not be reasonable to expect them to leave, the starting point is that it would be reasonable to expect them to leave with their parents. Overstayers “NA” and “SB” were a married couple and were Bangladeshi nationals whose children “YS” and “YA” were born in the UK. The family appealed against a decision of the Upper Tribunal upholding the SSHD’s refusal of their application for leave to remain in the UK. In April 2018 the family applied for leave to remain. YS had made his claim under paragraph 276ADE(1)(iv) on the basis that he had lived continuously in the UK for at least seven years and it would not be reasonable to expect him to leave. His parents and brother had no entitlement to remain under the rules but contended that their removal would interfere with their rights pursuant to article 8 of the ECHR. The decision-maker refused all four applications. In May 2019, FTTJ Bart-Smith dismissed the appeals and UTJ Stephen Smith subsequently found an error of law in the FTT’s decision but re-made it by again dismissing the appeal in November 2019.
The UT decided that while the family’s removal would interfere with their article 8 rights the interference was justified in the public interest. The family were granted permission to appeal on the basis that the case gave rise to an issue of general importance in relation to the correct approach to paragraph 276ADE(1)(iv) and section 117B(6) of the Nationality, Immigration and Asylum Act 2002, as set out in Part 5A. In order to determine whether an interference with article 8 rights was justified in the public interest, the court/tribunal had to have regard to the terms of section 117B(6), which provided that the public interest did not require the removal of a child who had lived in the UK for more than seven years where it was not reasonable to expect them to leave. UTJ Stephen Smith determined that it was reasonable to expect YS to leave the UK with his parents NA and SB. The decision of the UT was premised on the rejection of the family’s argument that in keeping with the judgment of the Court of Appeal in R (MA (Pakistan)) v UTIAC EWCA Civ 705, it was obliged to proceed on the basis that, absent powerful reasons to the contrary, it would be unreasonable to expect a child who had seven years’ residence to leave. The UT judged that the “powerful reasons” doctrine had not survived the Supreme Court decision in KO (Nigeria) v SSHD  UKSC 53, discussed here.
The Court of Appeal has recently decided that in circumstances where the UT had not made a finding that the FTT had erred in law, UTJJ Perkins and Craig  UKAITUR PA114882017 had no jurisdiction to interfere with the FTT’s decision that AE, an refugee from Iraq, had been entitled to the protection of the Refugee Convention 1951 as her offending had not met the high threshold set out in article 1F(c). The appellant “AE” was an Iraqi national, had arrived in the UK in 2007 aged 15. She was granted discretionary leave to remain but she posted online statements encouraging jihad which led to her conviction in 2015 for two offences under the Terrorism Act 2006. She was sentenced to three-and-a-half years’ imprisonment. The SSHD sought to deport her as a foreign criminal within the meaning of section 32 of the UK Borders Act 2007 and refused her asylum claim. She was granted restricted leave to remain on the basis that returning to Iraq would expose her to a risk of ill-treatment contrary to article 3 of the ECHR. But the SSHD decision-maker determined that AE’s criminal conduct meant that she was excluded from the protection of the 1951 Convention by article1F(c) and section 33(2)(b). The SSHD quoted the sentencing judge’s remarks and concluded that AE met the threshold of article 1F(c) as she had encouraged people, on a massive scale, to engage in international terrorism and supported Islamic State.
However, the FTT allowed AE’s appeal against the decision to refuse protection, having assessed that her offending and determined that the SSHD had failed to show that her acts were sufficiently grave in terms of their impact on international peace, peaceful relations and security between states under article 1F(c). The SSHD appealed on the basis that the FTT had gone behind the sentencing remarks which it had been agreed could be relied on for their factual findings. The UT allowed the SSHD’s appeal on the ground that the FTT had been wrong to take the view it did. Before the FTT, AE had conceded – as she did on appeal to the Court of Appeal – that the nature and quality of her conduct were such as to bring her within the scope of article 1F(c). Therefore, the FTT examined the scale of the dissemination of the offending material. It found as a fact that over 347 days AE posted an average of at most 50 tweets a day, making a total of 17,350 tweets to 8,500 followers. It assessed this as a large number of posts over the course of almost a year. But the FTT found that she had held extremist views at the time, but that these were not entrenched. It did so on the basis that there was no evidence to indicate any extremist views before the offending period. It found that AE did not hold extremist views at the time of hearing. AE submitted that the UT erred as the FTT was the primary decision-maker and the UT was not entitled to interfere with the FTT’s decision unless it identified an error of law which it failed to do.
In a new judgment on adult dependant relatives in the case of a 66-year-old Pakistani school teacher who suffered from arthritis, depression and high blood pressure and had three British citizen children in the UK, the Court of Appeal decided that the FTT had been wrong in concluding that family life did not exist for the purpose of to article 8 of the ECHR but the judge (FTT Judge Brewer) had nevertheless correctly concluded that even if she had an article 8 family life refusal of leave was proportionate. Mrs Mobeen was widowed in 2006 and visited her children frequently in the UK, spending only 12 months in Pakistan after 2011 and the rest of her time in the UK. She applied for and was granted three visitor’s visas from September 2007 to March 2008, from June 2008 to June 2010, and from July 2010 to July 2015. In 2013, her home in Pakistan burned down due to faulty wiring. It was too expensive to fix it and she lived with her niece for a year until her niece needed the space. In June 2014, she entered the UK on a visit visa expiring in July 2015. She stayed in the UK, living with her son and younger daughter. She suffered from depression, hypertension and arthritis and had help with shopping and cooking but otherwise essentially looked after herself. She helped with childcare for her grandson and her children could afford to house her in Pakistan and provide her with care assistance.
After entering the UK in June 2014, Mrs Mobeen applied for leave to remain in January 2015. The application was refused in March 2015 with no right of appeal. An application for judicial review was made at the end of the same month, it was dismissed in June 2016. In July 2017, she made a further application for leave to remain on the basis of her family and private life in the UK, claiming that it was unreasonable to expect her to leave the UK on account of her circumstances as she was living with her son and financially dependent on her children, in particular her son. The children were all financially independent. They were supporting her with private healthcare insurance and accommodation in the UK. She would not be relying on public funds or NHS services. Her elder daughter, Haya, was also said to be very dependent on her mother for child care for her young son, Mrs Mobeen’s grandson. The claim asserted that she suffered from arthritis and high blood pressure. The decision-maker refused her application on the basis that no significant obstacles existed as to her re-integration into Pakistan, and there were no exceptional circumstances rendering the refusal a breach to article 8 of the ECHR. On appeal, FTTJ Brewer heard the evidence of two of her children, Faizan and Haya. The FTT also had before it written reports from three medical professionals, one in Pakistan and two in the UK.
Mostyn J has held that the SSHD had erred when formulating in Annex 1 paragraph (b) of Appendix EU to the Immigration Rules the definition of a “person with a Zambrano right to reside” as “a person … without leave to enter or remain in the UK, unless this was granted under this Appendix”. His Lordship held that it is clear from the decision of the CJEU in Ruiz Zambrano v Office National de l’Emploi (C-34/09),  QB 265, that the holding of a limited national leave to remain and a wider right to remain could and would co-exist in many cases. Furthermore, the natural, fair, reasonable and plain meaning of the words set out in regulation 16 of the Immigration (European Economic Area) Regulations 2016 entitles an applicant for a derivative right to reside to have the application determined by reference to the prescribed eligibility criteria set out in the regulation rather than being struck out peremptorily. A Nigerian national, Olorunfunmilayo Oluwaseun Akinsanya arrived in the UK in 2006. She had four children, one of whom, C (aged 10), is a British national and she is C’s sole carer. Akinsanya had a six-month visitor visa. She then had a two-year family visit visa. When C was one year old, she applied for a derivative residence card as the Zambrano carer of C. The application was refused, but Akinsanya was successful in her appeal to the FTT and she was then issued with a five-year derivative residence card in September 2014.
In 2017 she could not work due to ill-health and she unsuccessfully applied for the “no recourse to public funds” condition on her right to reside to be removed on the basis of destitution. She applied for leave to remain under Appendix FM to the Immigration Rules on the basis of the family/private life 10-year route and was granted 30 months’ limited leave to remain, with no condition preventing recourse to public funds. In January 2020 she applied for ILR under the Settlement Scheme under Appendix EU of the Rules, on the basis that she was a Zambrano carer with five years’ continuous residence. Akinsanya’s application was refused in September 2020 on the basis that she was not eligible for the scheme because she had already been granted limited leave to remain, and was therefore barred by the definition of “person with a Zambrano right to reside” in Annex 1 paragraph (b) of Appendix EU. That was the decision challenged before Mostyn J in these judicial review proceedings. In Zambrano the CJEU decided that article 20 of the Treaty on the Functioning of the European Union must be interpreted as precluding a member state from refusing a third country national with minor EU citizen children dependents a right of residence and the grant of a work permit. In essence, the court had to decide whether the SSHD, in promulgating Appendix EU to the Immigration Rules on 7 March 2019, erred in law in his understanding of the scope of (i) the Zambrano jurisprudence, and (ii) regulation 16 of the 2016 Regulations.
The Court of Appeal has decided that that “immigration exemption” paragraph 4 of Schedule 2 of the Data Protection Act 2018 – which disapplies certain data protection rights for the purpose of maintaining effective immigration control – is incompatible with article 23 of the General Data Protection Regulation (“GDPR”, Regulation 2016/679). The court also held that there is no comparable measure in domestic law to article 23(2), which contains a condition precedent to the validity of any “legislative measure” purporting to fall within article 23(1). Underhill, Singh and Warby LJJ stated that in the absence of any such measure, the immigration exemption was an unauthorised derogation from the fundamental rights conferred by the GDPR and was unlawful. The Open Rights Group, the first appellant, is a digital rights organisation that seeks to promote and uphold privacy and data protection rights and the3million, the second appellant, is a grassroots organisation of EU citizens resident in the UK. They brought a judicial review claim against the Secretaries of State for the Home Department and Digital, Culture, Media and Sport, seeking a declaration that the immigration exemption was unlawful and an order disapplying it. The central grounds of challenge were that the immigration exemption was incompatible with the GDPR and/or also with the Charter of Fundamental Rights of the European Union (CFR). Accordingly, by virtue of the principle of supremacy of EU law, the exemption could not stand.
Notably, the immigration exemption enacted in purported compliance with with article 23 provided that personal data processed for maintaining effective immigration control was excepted from the application of the GDPR. Holding the exemption lawful, Supperstone J found that it fell within article 23(1)(e) as a matter of “important public interest” and that it pursued a legitimate aim. In reaching his conclusion, he held that the criteria by which to test the lawfulness of the measure concerned were set out in The Christian Institute v The Lord Advocate (Scotland) UKSC 51. According to the judge, the immigration exemption satisfied those criteria because it was “comprehensible”, did not lack clarity or foreseeability, and was subject to an adequate set of safeguards. Supperstone J held that the immigration exemption satisfied those criteria because it was “comprehensible”, did not lack clarity or foreseeability, and was subject to an adequate set of safeguards. But the appellants were unhappy with that and contended that the court had erred in holding that the legal requirements for a lawful derogation differed according to whether statute itself created or required interference with individual rights or allowed the use of an exemption by data controllers in particular cases, and in approaching the case by reference to the principles applicable to article 8 of the ECHR.
In these proceedings, the Court of Appeal held that the FTT had not erred in finding that there were exceptional circumstances to justify reversing the Home Secretary’s decision to deprive an Albanian of citizenship under section 40(3) of the British Nationality Act 1981. Underhill, Newey and Baker LJJ held that an unexplained and extraordinary delay of nine years by the Home Office meant that Mr Bujar Laci, the appellant, had been entitled to believe that his citizenship was no longer in question. The court also said that the fact that it would have been unlawful for Mr Laci’s employer to continue to employ him if he were deprived of citizenship also carried weight in the overall assessment. The Home Secretary deprived Mr Bujar Laci of his British citizenship on the ground that he had obtained it by fraud, i.e. he had applied for naturalisation on the basis that he was a Yugoslav national from Kosovo whereas he was in fact Albanian. Mr Laci was born in Albania and came to the UK in 1989. He was aged 16. He claimed asylum on the false basis that he was only 14 years old and was a Yugoslav national from Kosovo who had escaped persecution. Mr Laci was granted indefinite leave to remain and was granted British nationality in 2005 and he provided the same false details of birth and nationality in his citizenship application. In February 2009, the Home Office informed him he had obtained his citizenship by fraud and deprivation was under consideration.
In March 2009, Mr Laci’s solicitors admitted his deception. However, they put forward mitigating circumstances and reasons why he ought not to be deprived of his citizenship. Mr Laci then heard nothing further from the Home Office for nine years and he pursued a career as a payroll officer, bought a flat, got married and had a son. In February 2018, the Home Office corresponded with him, notifying him that the it was considering depriving him of his British citizenship. In June 2018, he was given formal notice that the Home Secretary intended to deprive him of his citizenship under section 40(3) of the 1981 Act. The FTT allowed his appeal against that decision under section 40A. The UT found that the FTT had erred in law. The Supreme Court’s judgment in R (Hysaj) v SSHD UKSC 82 (discussed here) confirmed that in a case of the present kind, where an applicant for naturalisation lies about their place of birth and nationality, the grant of citizenship is not a nullity. Prior to Hysaj it was the government’s policy that it would “not normally deprive of citizenship” a person who had been resident in the UK for more than 14 years but the revised post-Hysaj position is that “Length of residence in the UK alone will not normally be a reason not to deprive a person of their citizenship”. In the present case, Mr Laci had always retained his Albanian nationality and the effect of him being deprived of his British nationality would not be to render him stateless.
Lane J (President) and Mr Ockelton (Vice President) have determined that the effect of rule 22(2)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 is that in the absence of any direction limiting the grounds which may be argued before the Upper Tribunal, the grounds contained in the application for permission are the grounds of appeal to the Upper Tribunal, even if permission is stated to have been granted on limited grounds. Rule 22(2)(b) has the complementary effect that any limitation on the grounds of appeal must be by direction and, as a direction, can be the subject of an application to amend, suspend or set aside the said direction under rule 5(2) of the 2008 Rules. Lane J and Mr Ockelton also explained that when the Upper Tribunal grants permission to appeal from the First-tier Tribunal, even on limited grounds, its decision is not amenable to judicial review under the R (Cart) v UT and R (MR) Pakistan v UT and SSHD UKSC 28 procedure, which, as specifically indicated by CPR 54.7A, is available only when the Upper Tribunal refuses permission. On 19 December 2007, the Bangladeshi appellant killed his wife in the UK and on 1 December 2008 he was convicted of murder and a year later sentenced to life imprisonment, along with a recommendation that he serve a minimum of twelve years before release. The appellant made a protection claim, asserting that he would be at real risk of serious harm, if returned to Bangladesh, as his late wife’s family would kill him there.
He also said that he had converted from Islam to Christianity and so would be at real risk of serious harm in Bangladesh as an apostate. He claimed to be bisexual and wanted to live openly as such, but that he would be at real risk of serious harm, in Bangladesh. The SSHD decision-maker refused the protection claim and the appellant exercised his right of appeal to the First-tier Tribunal. On 15 January 2020, the First-tier Tribunal heard his appeal against the decision of the respondent to deport him to Bangladesh. On 4 February 2020, after the previous hearing, the First-tier Tribunal promulgated a decision, dismissing the appellant’s appeal on asylum and human rights grounds. He sought permission to appeal on seven grounds. On 3 March 2020, the First-tier Tribunal refused permission to appeal and the appellant renewed his application and UTJ Sheridan made the following decision “Application for permission to appeal is granted in respect of Grounds 4 and 7 only”. On 6 July 2020, the appellant applied for permission to judicially review the UTJ’s decision as he had permission only on limited grounds. On 15 February 2021, Master Gidden, having noted that no request was made under CPR 54.7A(9) for a substantive hearing, ordered that “the decision of the Upper Tribunal to refuse permission to appeal is quashed”.
In relation to an applicant for leave to remain as a Tier 1 (Investor) Migrant under the points-based system (PBS) required by the Immigration Rules, rule 245ED and Appendix A Table 8B, to have borrowed £1 million from a UK-regulated financial institution and to have that sum under her control, the Court of Appeal determined that some restriction on the use of money did not mean the money was not under the control of the applicant. Furthermore, Popplewell LJ held that a requirement that a loan had to be invested in a specific company did not mean that the applicant lacked control of the money. His Lordship said that he had not reached “these conclusions with any enthusiasm”. These proceedings concerned an appeal by Ms Wang and her dependant son G against a decision of the Upper Tribunal by UTJJ Rimington and Jackson,  UKUT 393 (IAC), upholding the SSHD’s refusal of their applications for further leave to remain. In order to satisfy the Immigration Rules rule 245ED, Ms Wang needed to have 75 points under Appendix A paras 54 to 65-SD, and the assets and investment for which she was claiming points had to be wholly under her control. As she had previous grants of leave to remain prior to 6 November 2014, the relevant table in Appendix A of the Immigration Rules was Table 8B. In order to score 75 points, it was necessary to comply with the conditions in each row of Table 8B.
Ms Wang needed to have borrowed £1 million from a UK-regulated financial institution and have that sum under her control, and she had to have invested at least £750,000 of that sum in UK government bonds, share capital or loan capital in a qualifying active and trading UK-registered company. She entered into an agreement with a company which sold her a product aiming to satisfy those requirements and her claim was based on her participation in a scheme sold to her and over 100 other applicants for Investor Migrant visas, whereby £1 million had been borrowed from Maxwell Asset Management Limited (“MAM”) and invested in Eclectic Capital Limited (“Eclectic”) by way of a convertible loan. This was known as the Maxwell/Eclectic scheme and after making requests for further information and after conducting two interviews with Ms Wang, the decision-maker refused the applications on the grounds that the loan from MAM did not result in her having the proceeds under her control, and that the investment in Eclectic was not a qualifying investment. Their application for administrative review was unsuccessful and the refusal was maintained. Later, judicial review proceedings in the Upper Tribunal were dismissed and Ms Wang appealed to the Court of Appeal. Underhill VP and Nugee LJ agreed with Popplewell LJ’s decision and Underhill VP lamented that “the drafting of the relevant rules leaves a great deal to be desired.”
Mrs Lynda Mahabir came to the UK as a baby aged two months in 1969. She lived in the UK until 1977 but was forcibly removed by her father to Trinidad in 1977. The Home Office’s failure to document her lawful immigration status meant that she was unable to return to the UK for 41 years, when she was finally granted leave to remain pursuant to the Windrush scheme in 2018. However, the Home Office demanded £22,909 in application fees from her husband and five children (including two minors) and refused to consider their entry visa applications under the Windrush scheme. But the family did not have the £22,909 to pay the Home Office. Sitting as a Deputy High Court Judge, Mr Tim Smith held that the SSHD committed “a colossal interference” in Mrs Mahabir’s right to family life because she either had to forego the remedies the executive had put in place with the express intention of remedying the injustice suffered by her and others like her, or else she had to break up the family. Notably, she broke up the family, hoping that it was only temporary, but in the process she suffered the “colossal interference” with her right to family life identified by Lord Wilson in R (Quila) v SSHD 1 AC 621. The court noted that by 2018 heartbreaking accounts of the Windrush scandal were reported in the media. The plight of Windrush victims was well known indeed, and these events marked a racist epoch in British history.
In January 2020, Mrs Mahabir brought her son Micah-Bjorn Mahabir, the sixth claimant, to the UK. He was granted leave to enter for six months and applied for leave to remain as in-country applicant invoking article 8 of the ECHR and argued that to be separated again from his mother would result in an interference with his and his mother’s rights. He was granted granted limited leave to remain in February 2021. Except for the sixth claimant, no application had been made in relation to Mr Mahabir and the rest of the couple’s children. The claimants did not seek a conventional public law remedy but a remedy based on their ECHR rights. Accordingly, the SSHD accepted that no point could be taken based on the absence of any actual application. Mr Smith recalled that in the Windrush Lessons Learned Review Independent review by Wendy Williams it had been made quite clear that the Immigration Act 1971 provided the Windrush generation the right of abode in the UK but they were not given any documents to demonstrate their status and records were not kept. On the other hand, “They had no reason to doubt their status, or that they belonged to the UK. They could not have been expected to know the complexity of the law as it changed around them.” Wendy Williams lamented that “in particular their history was institutionally forgotten” and in light of the infamous hostile environment policies of the UK government, the scale of the problem began to be understood by 2017 and in the spring of 2018 national newspapers and journalists, chief among them the Guardian’s Amelia Gentleman, were reporting harrowing stories about the scandal.
Mr Justice Swift held in these proceedings that the government’s decision in early May 2018 to continue to apply the existing good character guidance to applications for naturalisation as British citizens made by members of the Windrush generation was unlawful. It followed that the determination of Mr Howard’s application on that basis was also unlawful. Mr Howard was born in Jamaica in December 1956 and came to the UK in November 1960 where he lived until his death in November 2019. In 2007 and 2010 he applied for a UK passport. However, his applications failed as he was not a British citizen. In February 2012 he was informed that if he wished to obtain British citizenship he would first need to apply for indefinite leave to remain in the UK and if successful he could then apply for naturalisation under section 6 of the British Nationality Act 1981 once he could show the required period of lawful residence in the UK. Despite being “reliable, hardworking and diligent in carrying out his duties,” he then lost his job because of an inspection of his employer by the Home Office. He made a “No Time Limit Application” supported by copies of documents going back to 1965 which evidenced his presence in the UK but it was refused as he was unable to provide further documentary evidence of his residence in the UK in each year since 1960 which he was asked to provide within 14 days.
After the Windrush statement in the House of Commons in April 2018, he applied again to establish his right to remain in the UK. By letter dated 10 May 2018 he was informed that his application had been successful and that the Home Office now accepted that he had obtained ILR on 1 January 1973 (the date the the Immigration Act 1971 came into force). Mr Howard’s application for naturalisation was refused on the basis of his criminal record. In short, three convictions between 1974 and 1977 each of which had resulted in a Probation Order; three convictions relating to Class B drugs between 1984 and 1988 each of which had resulted in a fine; a conviction in 2000 for an offence under public order law which had been addressed by imposition of a further Probation Order and a conviction for common assault in June 2018 which had resulted in the 12-month suspended sentence. The application for naturalisation became the subject of four separate decisions dated 5 November 2018, 3 December 2018, 23 May 2019 and 16 October 2019 (when the Home Office said it had reviewed the case and finally granted Mr Howard’s application “on an exceptional basis”). The Claim Form was filed on 5 April 2019, since Mr Howard died of leukaemia on 12 November 2019 his daughter Ms Maresha Howard Rose was substituted as the claimant in these proceedings. Sajid Javid became the Home Secretary on 30 April 2018. The good character issue was put in a submission to him the same day. However, in early May 2018, Javid decided that the existing good character guidance should continue to be applied to all applicants, including Windrush applicants. His predecessor Ms Amber Rudd had favoured change on the point.
In the SSHD’s appeal against a decision of the UT overturning a deportation order made in respect of Mr Deon Starkey, the Court of Appeal decided that in determining appeals which turned on whether there were very compelling circumstances within the meaning of section 117C(1) of the Nationality, Immigration and Asylum Act 2002 which meant that a convicted sex offender who was suffering from paranoid schizophrenia should not be deported to South Africa, both tiers of the Tribunal had erred in their consideration of the evidence as to the difficulties that the offender might face in terms of securing work and appropriate medical treatment in South Africa. Mr Starkey suffered from paranoid schizophrenia which was controlled by a drug of last resort, Clozapine. Other drugs had been tried over the years, but had not controlled his symptoms. Those taking Clozapine need regular blood tests to monitor their white-cell count. He was 45 years old. He arrived in the UK a young child aged two, although the Home Office could not verify his arrival from its own records. The evidence suggested that he had been living in the UK since 25 October 1977 and was taken into care in 1982. He stayed in care until he was an adult. He had applied for indefinite leave to remain which was granted in February 2001. Mr Starkey was convicted of two counts of indecent assault on a female under 14, three counts of gross indecency with a child under 16, and one count of rape of a female who was less than 16 years old.
In 1987 he was convicted of three counts of burglary/theft and was given a supervision order for two years. He was sentenced to eight years’ imprisonment and he was required to register on the Sex Offenders Register for life, and banned from working with children for life. He was also kept in detention under immigration powers after the Parole Board authorised his release and a decision was served on him which wrongly stated that he only had an out-of-country right of appeal. He was deported to South Africa in 2017 but was not admitted since his escorts had not brought an emergency travel document which had been issued to him and he was then admitted to the UK for the necessary documents to be obtained. Removal directions were set in 2018 but cancelled when he was admitted to hospital. Earlier on in his life, he had been diagnosed with paranoid schizophrenia after a breakdown. He said that he had serious issues with his mental health over the years. They peaked in about 2009, when he tried to commit suicide. Voices in his head induced him to harm himself. He slashed his wrist once, in front of his mother, was taken to hospital but quickly discharged. The voices got worse, and he again tried to take his own life and he jumped off a bridge into the River Thames. The SSHD wished to deport him and argued that he was 45 years old and could live an independent life in South Africa and reintegrate there as nothing prevented him from doing so.
In C3, C4 and C7 v SSHD, the Special Immigration Appeals Commission (SIAC) agreed with the point that C3, C4 and C7 had no other nationality other than that of the UK and so the SSHD was not able to deprive them of their British citizenship under section 40(2) of the British Nationality Act 1981. In distinction to R (Begum) v SIAC UKSC 7, discussed here, the issues in the instant proceedings were not connected to whether the SSHD should have taken the decisions that she did, but instead whether those decisions were legally open to her. C3 was born in the UK in 1990 and was deprived of her British citizenship. Further, both of her parents were born in present day Bangladesh but her father arrived in the UK in 1957 as a Pakistani citizen but got British citizenship and lost his Pakistani citizenship. C3’s mother arrived the UK in 1987 and was issued her first British passport in 1990 and C3 was a British citizen under section 1(1) of the British Nationality Act 1981 as she was born in the UK to a British citizen father. C4 was born in the UK in 1992 and was 27 when deprived of her British citizenship. Her father was also born in present day Bangladesh in 1940 and moved to the UK in 1965 and got settled status but did not acquire British citizenship. Her mother was also born in present day Bangladesh in 1951 and her mother moved to the UK in 1990 and was granted British citizenship in 2002. C7 was born in Bangladesh in 1978 and was a dual British-Bangladesh citizen, he was a British citizen since his father was a British citizen. He was a Bangladeshi citizen owing to his birth there. The trio travelled to Syria to join ISIS/ISIL and were stripped of their British citizenship.
The territory of present day Bangladesh was a part of British India until 14 August 1947 when it became East Pakistan which then later became the sovereign state of Bangladesh on 26 March 1971. Notably three Bangladeshi legal instruments were relevant to these proceedings, first of all the Pakistan Citizenship Act 1951 which was Pakistani legislation written in English and section 5 (citizenship by descent) was important. For example, one of the issues in C3’s case was whether the amendment (in 2009) to acquire Bangladeshi citizenship through matrilineal descent under section 5 was retrospective. Another piece of primary legislation was the Bangladesh Citizenship (Temporary Provisions) Order 1972 (as amended). The Government of Bangladesh exercised the power conferred by article 2B(2) of the 1972 Order by giving an Instruction, SRO No. 69/2008, in the Bangla language and no official version accompanied it (the most authoritative translated version in English was approved in E3 and N3 v SSHD EWCA Civ 2020). Overall, C3 submitted that she was never a Bangladeshi citizen by descent and that it was irrelevant even if she was as she lost her Bangladeshi citizenship upon turning 21. C4 and C7 made a like submission which rested on three strands supported by expert evidence.
In these proceedings the court was required to determine whether local authorities needed its authorisation to apply for immigration status or passports for children subject to a care order. The issue was whether the local authorities should exercise parental responsibility to make applications under the European Union Settlement Scheme (EUSS). Mr Justice MacDonald held that a local authority is generally entitled to apply for settled status under the EUSS on behalf of a child subject to a care order or placement order pursuant to the parental responsibility conferred on it by section 33(3) of the Children Act 1989 and section 25(parental responsibility) of the Adoption and Children Act 2002. The local authority did not need to seek the court’s authorisation before making such an application, even where the child’s parents objected or could not be located in order to give consent. The issue arose in the context of the EUSS and its application to four children in the UK. In order for EU nationals to remain in the UK after Brexit, they must apply for settled status under the EUSS before 30 June 2021. Survey results indicated that the total number of looked after children and care leavers eligible to apply under the EUSS was 3300, of which 2080 were the subject of an interim care order, a care order or a placement order. Further, the survey indicated that of those 3300 eligible children and young people, 1520 applications were received.
Of the 2080 eligible children and young people in respect of whom there was in force an interim care order, a care order or a placement order, 890 had had an application to the EUSS made on their behalf by a local authority. The four children in these proceedings, were all born to Polish parents. The first two children were subject to final care orders, and a placement order was made in respect of one child. Their passports had been lost. The second two children were to be placed with their maternal great cousin under a special guardianship order and the Polish passport office required the written consent of all those with parental responsibility, or a court order replacing such consent, before a passport could be issued for the children. In both cases, the parents refused consent. The court was told that the Home Office is now repeating the survey in order to ascertain what further progress has been made in respect of applications to the EUSS for looked after children and other children with whom local authorities are concerned who are eligible to apply under the EUSS. In the first matter, MacDonald J was concerned with the welfare of PW, born in 2009 and aged 11 and NW, born in 2011 and aged 9. Warwickshire County Council applied for orders under the inherent jurisdiction consenting to the issue by the Polish Embassy of new passports for PW and NW, permitting the local authority to apply for EU settled status under the EUSS for each of the children. In the second case, the court was concerned with the welfare of DZ, born in 2007 and now aged 13 and MZ, born in 2008 and now aged 12.
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