Statelessness: Ethnic Cleansing and the Rohingya

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

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

The Bad Citizen and EU Law

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

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

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

Zambrano Carers: ‘Benefits Tourism’ and EU Law

The right to care is not an express function of the EU Treaties or the law of freedom of movement. Yet under case law even a non-EU citizen primary carer can claim a right of residence on the basis of caring for their EU citizen child. This appeal involves the important question whether Zambrano carers are entitled to social assistance, i.e. non-contributory welfare benefits, on an equivalent basis as EU citizens lawfully resident in the UK. The debate concerns the effective citizenship principle and prohibited national measures which can undermine it. Two main issues linked to the nature of Zambrano carer status arose in these proceedings in the Court of Appeal. First, when does the status arise? And second, does it confer any right to social benefits? Arden, Elias and Burnett LJJ unanimously held that EU law does not entitle Zambrano carers to the same level of payments of social assistance as lawfully resident EU citizens. Applying the decision in Patmalniece [2011] UKSC 11, they took the view that the discrimination between Zambrano carers and other benefits claimants is not direct discrimination on the grounds of nationality but is indirect discrimination on immigration status. HC is from Algeria and she entered the UK lawfully and became a victim of domestic violence during her marriage to a British citizen. Her two children are British but she became an overstayer when her marriage ended.

The council accommodates her and the children under section 17 of the Children Act 1989 and she receives subsistence and utility costs. Among other things, HC challenged by way of judicial review the legality of the regulations that provide that Zambrano carers are ineligible from receiving non-contributory social benefits. Lady Hale and Lords Clarke, Wilson, Sumption and Carnwath heard this appeal in June 2017 and considered the questions (i) whether the statutory instruments which provide that Zambrano carers are not entitled to social benefits in the UK are unlawful, in particular whether they entail discrimination under EU law or the ECHR which cannot be justified and (ii) whether the resolution of these points of law requires a reference to the CJEU. The AIRE Centre intervened in these proceedings. At first instance, Supperstone J dismissed HC’s claim in light of the judgment in Bah v UK (2012) 54 EHRR 21 and held that the discrimination was justified on the facts of HC’s case. Arden LJ said that Supperstone J had been right that any discrimination was justified on the facts of HC’s case.

The Home Office Must Prove Abuse Of EU Law Rights

Sadovska & Anor v Secretary of State for the Home Department (Scotland) [2017] UKSC 54 (26 July 2017)

During these proceedings, the Supreme Court said it was “delighted” to hear its first appeal in Scotland. Without a doubt, the appellants must surely be equally delighted with the outcome in their case because Lady Hale and Lords Neuberger, Kerr, Clarke and Reed unanimously held that the burden of proving a “marriage of convenience” falls on the home office. Giving the only judgment, Lady Hale allowed the appeal on the basis of EU law and found it unnecessary to make any findings on ECHR rights. She arrived at the “firm conclusion” that the case needed to be heard afresh in the First-tier Tribunal. The future president of the court clarified that the state is entitled to enact measures to prevent sham marriages but that it also has the responsibility to “show that the marriage would indeed be a sham.” Nevertheless, to avoid the enhancement of the appellants’ claims, her Ladyship rejected the argument that their case should be approached as if they were married because their marriage was frustrated by enforcement action. Violeta Sadovska, a Lithuanian, entered the UK in 2007 exercising her right of free movement pursuant to Directive 2004/38/EC. Saleem Malik, a Pakistani, arrived as a student in 2011 on a two-year visa until April 2013.

They entered into a relationship and published a notice of their intention to marry. Enforcement officers disrupted their wedding. The appellants were interviewed separately under caution. The home office alleged that they had tried to enter into a marriage of convenience. Thereafter, in appellate proceedings, both tiers of the tribunal and the Inner House found against the appellants who raised arguments based on fairness. The appeal concerned the correct approach of the appellate tribunal where the home office finds that an EEA national lawfully resident in the UK should be removed because of an abuse of rights. The present case concerned allegations about a marriage of convenience, particularly on the issue of which party bears the burden of proof in establishing that a proposed marriage is one of convenience. Yet Lady Hale observed that the outcome of the appeal produces wide-ranging implications for any “abuse” capable of justifying removal under article 35 of the Directive. Official estimates suggest that 4,000 to 10,000 applications a year to stay in the UK are made on the basis of a sham marriage or civil partnership.

Aligning the Immigration Rules with MM (Lebanon)

Judicial review claims known as MM (Lebanon) & Ors [2017] UKSC 10 challenging the Minimum Income Requirements (MIR) under Appendix FM ended in overall disappointment for divided families. Partial success at first instance resulted in momentary jubilation. But ultimately, following Konstatinov v Netherlands [2007] ECHR 336, the Supreme Court held that the MIR is acceptable in principle despite having “a particularly harsh effect”. Since the judgment still had some emollient undertones in relation to alternative sources of funding and children’s rights, Statement of Changes to the Immigration Rules HC290 (20 July 2017) slightly relaxes the stringency of the original mechanics governing Theresa May’s crippling and incomprehensible “new rules”. Full legal clarity on the MIR’s calculus came five long years after its creation and JCWI, which intervened in MM (Lebanon) along with the Children’s Commissioner, condemned the changes as “inadequate” and accused the government of “tinkering at the margins”. The changes mean that in circumstances where reliance is placed on other sources of funding to boost an application, a 10-year route to settlement will be available to applicants with further scope to later re-enter the five-year route in cases where they subsequently meet the relevant requirements. New provisions in Appendix FM reflect the ongoing duty owed in relation to children’s best interests and HC290 also addresses the overall proportionality balance of the Immigration Rules.

The MIR demands a gross annual income of £18,600 to sponsor a partner for a visa. It imposes additional requirements of £3,800 for the first child and £2,400 for each child thereafter. It applies to British citizens, settled migrants, refugees and those granted humanitarian protection aiming to sponsor a post-flight partner and dependent child or children. The changes also claim to create “a complete framework” for considering article 8 claims by a partner, child, parent or adult dependent relative under Appendix FM. The changes in HC290 apply from 10 August 2017 and will affect all decisions made on or after that date. Notably, the test of exceptional circumstances (see here) is also provided an express footing within the Immigration Rules for cases where refusal results in unjustifiably harsh consequences for the applicant or their family. The Supreme Court approved of the test in Agyarko and Ikuga [2017] UKSC 11 and the transposition of the test, found hitherto in the guidance, brings the test of proportionality under article 8 into the rules.

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 domicile, intercountry adoption, entry clearance, the 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”.