The public interest in deportation has ‘a moveable rather than fixed quality’ holds Court of Appeal

Akinyemi v The Secretary of State for the Home Department [2019] EWCA Civ 2098 (04 December 2019) 

The Court of Appeal thinks that it is necessary to approach the public interest in deportation in a flexible manner by accepting that in certain cases an individual’s circumstances can reduce the legitimate and strong public interest in removal. The number of such cases will necessarily be very few and they will be exceptional having regard to the legislation and the Immigration Rules. Sir Ernest Ryder (Senior President of Tribunals) and Moylan and Nicola Davies LJJ explained that the correct approach to be taken to the “public interest” in the balance to be undertaken by a tribunal is to recognise that the public interest in the deportation of foreign criminals has a moveable rather than fixed quality. The court held that when considering whether it was proportionate to make a deportation order against Mr Remi Akinyemi, a Nigerian national who had been born and lived his entire life in the UK, the UT had failed to conduct the balancing exercise identified in Hesham Ali [2016] UKSC 60 (discussed here), between the strength of the public interest in the deportation of the offender and the impact on his private and family life pursuant to article 8 of the ECHR. Mr Akinyemi was born in the UK in 1983 to Nigerian parents who entered the UK lawfully as students, his father was granted ILR in 1987 and British citizenship in 2004. His mother died in 1999.

He was one of three siblings and had never left the UK. Mr Akinyemi had a history of suicide attempts and suffered from epilepsy and depression. He had a very long criminal record and had 20 convictions for 42 offences, including causing death by dangerous driving and drug offences. Because of the legislation in force at the time of his birth, he did not acquire British nationality automatically. Despite having been entitled to British citizenship for many years, he never took steps to acquire it and remained a Nigerian national by virtue of his birth. He had never left the UK since his birth. He struggled with mental health problems and depression from a young age. His mother’s death when he was aged 14 impacted him significantly as did a false accusation of rape made against him. But he had not offended since January 2017, which he attributed to the relationship (regarded as genuine and long-term) he had been in for almost three years. His father thought of him as “a kind boy” and their relationship had become closer. His partner considered her relationship with him as being really good. She said that in recent times Mr Akinyemi had sought medical help, was coming to terms with his illness, and had finally grown into the man he wanted to be.

Zambrano carers: The test of compulsion is a practical test

Patel v Secretary of State for the Home Department [2019] UKSC 59 (16 December 2019)

Addressing the scope of the substance of rights test devised in Zambrano (C-34/09, EU:C:2011:124), whereby a non-member state national (or a third country national “TCN”) parent of an EU citizen child resident within the EU is entitled to reside in the EU, the Supreme Court has held that in Patel [2017] EWCA Civ 2028 the Court of Appeal was wrong to include the question of choice into the assessment of compulsion. Lady Arden held that the test of compulsion is a practical test which needs be applied to the actual facts rather a theoretical set of facts. The court also held that Chavez-Vilchez (C-133/15, EU:C:2017:354), which is purely a children case, does not relax the level of compulsion required in the case of adults. The Home Office submitted that the Zambrano principle “exists at the very edge of EU law”. The appellants, Mr Patel and Mr Shah argued that the doctrine is not necessarily restricted only to “exceptional cases” because of the centrality of EU citizenship which “is destined to be the fundamental status of nationals of the member states” under Grzelczyk (C-184/99, EU:C:2001:458). Mr Patel, an Indian national who entered the UK as a student, provides primary care to his elderly British father who suffers from final stage kidney disease. His British mother has a heart problem and suffers from poor mobility because of very poor knee function. Mr Patel’s application for ILR outside the rules was refused and the appeal was dismissed. 

A Pakistani national who entered the UK as a student, Mr Adil Shah is the primary carer for his British citizen child. His wife is a British citizen and works full-time. Both applied for a derivative residence card under regulation 15A of the then Immigration (European Economic Area) Regulations 2006 whereby, in order to implement Zambrano, a TCN is entitled to a derivative right to reside in the UK if they are a primary carer of a British citizen residing in the UK and the British citizen would not be able to reside in the UK or another EEA state if the TCN were made to leave. The Home Office refused to grant a residence card in both cases on the basis that the relatives they cared for would not be forced to leave the UK if the appellants left. The FTT and the UT allowed Mr Shah’s appeal. However, both tiers of the tribunal dismissed Mr Patel’s appeal. The Court of Appeal subsequently held that Chavez-Vilchez did not alter the Zambrano principle and Irwin, Lindblom and Thirlwall LJJ found that reported cases in England that implement Zambrano but pre-date Chavez-Vilchez do not hold diminished authority.

Upper Tribunal demands adherence to proper standards of appellate advocacy

Das (paragraph 276B – s3C – application validity) Bangladesh [2019] UKUT 354 (IAC) (8 October 2019) 

This case makes a variety of points about the validity of immigration applications, the enjoyment of statutorily extended leave under section 3C of the Immigration Act 1971, timeliness, adherence to proper standards of appellate advocacy in the UT and  the grant of permission to appeal to the UT following a successful application to the Administrative Court. A married couple of Bangladeshi nationality who were born on 1 April 1980 and 23 September 1987 respectively, Mr Tapan Kumar Das and Mrs Sudipta Modak appealed against a decision of FTTJ Keith who dismissed their appeals against the refusal of their human rights claims. Mr Das’s application was for ILR under paragraph 276B of the Immigration Rules. Mrs Modak and their three year old daughter’s application for leave to remain was made on family life grounds, seemingly anticipating that Mr Das would be granted ILR and that their cases would be assessed with that in mind. The decision-maker rejected that the main applicant Mr Das had accrued at least ten years of continuous lawful residence in the UK and his application was accordingly refused under paragraph 276B(i)(a). Mrs Modak and the child’s applications were refused in light of the decision on Mr Das’s case. The UT took the opportunity to reiterate Hickinbottom LJ’s observation in Harverye [2018] EWCA Civ 2848 that the grounds of appeal are the well from which the argument must flow. The UT dismissed the appeal without hearing from the SSHD. 

Mr Das, the first appellant, arrived in the UK in January 2007 as a student and a day prior to the expiration of his visa on 11 September 2008, he tried to make an application for further leave to remain as a student but used the wrong form and so his application was rejected. He then rectified his error and obtained a student visa from 5 March 2009 to 30 November 2009. His leave was further renewed on four occasions and his leave was due to end on 30 June 2017 but was curtailed to expire on 29 June 2015. Prior to his leave’s expiry Mr Das applied for further leave on human rights grounds but his application was refused and the decision was upheld on reconsideration. The appeal was struck out for want of payment of fees but was reinstated in July 2016 only to be withdrawn in January 2017 before it could be heard by the FTT. Mr Das’s application for ILR under paragraph 276B was made (or purportedly made) on 28 December 2016. In the decision of 28 December 2017, the decision-maker concluded that the events in 2008 broke Mr Das’s continuous lawful residence. The FTT declined to exercise discretion in respect of this gap because he had not provided any grounds upon which the judge was prepared to do so.

Tortured Tamil refugee wins in Court of Appeal

RS (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1796 (28 October 2019) 

The Court of Appeal has held that RS, a Sri Lankan national, who had been detained and tortured by Sri Lankan authorities owing to his membership of the LTTE and who had escaped, had a well-founded fear of serious harm if returned, because it was inherently likely that he was the subject of an arrest warrant and on the country’s stop list. The court held that FTT had been wrong to hold that there was not a reasonable likelihood that an arrest warrant had been issued. RS entered the UK in May 2013 and immediately claiming asylum on arrival. In Sri Lanka he had been detained shortly after the civil war ended in May 2009 and he was tortured because of his association with the LTTE/Tamil Tigers, a separatist/terrorist organisation. After spending 18 months in detention RS made his escape by hiding in a removable cesspit assisted by those responsible for emptying it. He then went into hiding and ultimately used forged papers to travel to the UK via India. He was refused asylum in 2014 and his appeal was dismissed by the FTT and the UT. His application for permission to appeal was was stayed pending the outcome in the MP (Sri Lanka) [2016] UKSC 32 proceedings (discussed here) but it later became clear that those proceedings had no bearing on RS’s case. These facts were found by the FTT or were common ground before the judge. RS was a low-level member of the LTTE between 1995 and 2009. 

He worked for the finance division, undertaking vehicle maintenance and sending food, weapons and supplies with vehicles, arranging transport within the LTTE, in the peaceful period from 2004 to 2006 he worked for an engineering company. He was captured by the Sri Lankan army in 2009 and was tortured in detention and he could not reasonably be expected to have known that there would be a progressive release of detainees (many had been released in the period before and after January 2011). His account regarding his escape was credible and while he was staying with relatives in July 2011 army officers from a nearby camp came searching for “escapees”, but they did not find RS there. His account did not indicate that army officers had identified him in particular as the object of their search before they came. The FTT did not make findings about the extent of injury which RS suffered at the hands of his torturers. However, it had before it a detailed report of a medical practitioner whose view was that RS’s multiple scars were highly consistent with having been inflicted by blows from an iron bar, a long wooden stick, a thick cable, a rifle butt, a fall and shrapnel wounds. The conclusion was that the full picture presented by RS’s scars was strong evidence of the trauma and torture described by him.

Algerian father of five British children loses deportation battle

OH (Algeria) v The Secretary of State for the Home Department [2019] EWCA Civ 1763 (24 October 2019) 

The Court of Appeal has held that in considering a challenge to the deportation of a foreign national offender under section 117C of the Nationality, Immigration and Asylum Act 2002 all of the foreign criminal’s previous convictions are relevant (i.e. the entire criminal history), not just the offence that triggered the deportation order. Floyd, King and Irwin LJJ also explained that while approaching the statutory test in section 117C(6) of whether there are very compelling reasons not to deport a foreign criminal who had been sentenced to at least four years’ imprisonment, an obligation is placed upon the tribunal to be more than usually clear as to why such a conclusion is justified. OH an Algerian national appealed against the decisions of the Upper Tribunal (i) first quashing a decision of the First-tier Tribunal that he should not be deported, and (ii) second upon a rehearing dismissing his appeal against the deportation order. OH had five British children (A, B, C, D and E) because of his marriage to a British citizen HL in 1998. He had a very poor immigration history and an even more appalling criminal record. He lived continuously in the UK since 1995, his asylum appeal was dismissed in 1998. He was granted leave to remain because of his marriage to HL and was granted indefinite leave to remain (ILR) in 2003. However, he did not live with his family continuously. In 2004 he was convicted of causing grievous bodily harm with intent to do grievous bodily harm and sentenced to 8 years’ imprisonment. 

The Home Office wished to deport OH and his appeal to make a deportation order against him was dismissed in July 2007. Further attempts to appeal and related judicial review proceedings failed and a deportation order was served on him on 24 June 2008. Then the Home Office refused to revoke the deportation order in 2009 and after complex legal proceedings which went into the Court of Appeal, upon remittal OH won in the UT and was given successive grants of discretionary leave to remain, the last of which expired in May 2014. Prior to the expiry of his last grant, OH applied for further leave to remain and  while the application was pending he was further convicted of assault occasioning actual bodily harm. The offending occurred on 11 December 2014 and the conviction was on 16 May 2015. The assault was an attack on OH’s eldest child, a daughter and the resultant conviction triggered the decision-making under appeal in the present proceedings. A non-molestation order was made and discharged and OH returned to the family home in 2017. The notice setting out the reasons for deportation not only the 2015 conviction but all of OH’s previous convictions, including notably the conviction which led to the eight-year sentence. OH previously entered the UK in July 1988, he left a year later. In May 1991 he admitted to using a false passport to gain entry but it was unknown when he left before his return in 1995.

Home Office sticks to its guns on paragraph 322(5)

In Balajigari [2019] EWCA Civ 673 (discussed here), the Court of Appeal held that the use of paragraph 322(5) of the Immigration Rules in the cases of highly skilled Tier 1 (General) migrants (T1GMs) was “legally flawed” because SSHD decision-makers jumped to the unfair conclusion that any earnings discrepancies in T1GM applications are the result of dishonesty, without giving applicants an opportunity to proffer an innocent explanation. Hickinbottom, Underhill and Singh LJJ held that where the decision-maker is minded to refuse indefinite leave to remain (ILR) under paragraph 322(5) on the basis of the applicant’s dishonesty, or other reprehensible conduct, it is necessary as a matter of procedural fairness to indicate clearly to the applicant that the decision-maker has that suspicion, so as to give the applicant an opportunity to respond. The Home Office is required to take that response into account before concluding that there has been such conduct. The court said that refusal was “functionally equivalent” to a removal decision and that the lack of a “minded to refuse” letter rendered the refusal decisions procedurally unfair. “Earnings discrepancy” cases T1GM applicants were refused ILR because of discrepancies between earnings figures declared in applications for leave to remain and the figures declared in their tax returns for equivalent periods or a failure to file any return. Ideally an applicant’s immigration application should be free from discrepancies, errors and contradictions.

But this is easier said than done and most people cannot recall what they had said at an earlier stage and of course to make errors is only human. Immigration law and Home Office decision-makers might well take a different view. Paragraph 322(5) applies where it is “undesirable” to permit an applicant to remain in the UK “in the light of his conduct … character or associations or the fact that he represents a threat to national security” and the rule is set out under part 9 (grounds for refusal) of the Immigration Rules. Under the T1GM scheme, which used to be a key part of the points-based system, applicants were awarded points for attributes in which earnings played a major part. Hence it was possible for people to claim beefed up sums in earnings to earn points in immigration applications. Whether the same figures were recorded with HMRC was another matter. The Home Office review of these cases showed that since 2015 a total of 1,697 ILR applications from T1GMs migrants had been refused using paragraph 322(5). The judgment in Balajigari was seen as a positive development in this field but the new Home Office guidance on false representations is taking a tough stance making further litigation inevitable.

The Immigration (Amendment) (EU Exit) Regulations 2019

The Immigration (Amendment) (EU Exit) Regulations 2019 are made in exercise of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018 (“the 2018 Act”), in order to address deficiencies in retained EU law arising from withdrawal of the UK from the EU. They also make consequential and saving provision under paragraph 21 of Schedule 7 to the 2018 Act. The regulations make amendments to legislation in the field of immigration and in particular amend the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). Notably, regulation 2(4) omits regulation 9 of the 2016 Regulations to remove provision for the 2016 Regulations to apply to a family member or extended family member of a British citizen where that British citizen has exercised EU Treaty rights in an EEA State. Moreover regulations 2(3) and (11) make provision consequential on that change. Regulation 4 sets out saving provisions so that the position of a person who had qualified under this route prior to commencement of this amendment is protected. It also makes provision for the 2016 Regulations to continue to apply to family members and extended family members of British citizens living in an EEA State at the time that these provisions commence who return to the UK after that date. Regulations 2(5), (10) and (12) have the effect that residence cards issued to third country national family members of EEA nationals by EEA States under articles 10 or 20 of Directive 2004/38/EC will no longer be valid for admission to the UK.

Furthermore, EEA nationals and their family members who do not produce on arrival the required documentation (a valid EEA passport or national identity card for an EEA national; a valid passport and valid EEA family permit or UK-issued residence card for a third country national family member) will no longer be able to establish a right of admission by other means or be given a chance to be brought these documents. Regulation 2(6) inserts a new regulation 15A into the 2016 Regulations. This amendment has the effect that a person who arrives in the United Kingdom after this amendment comes into force will not be able to acquire permanent residence under regulation 15 of the 2016 Regulations. But this does not apply to (a) a person outside of the UK on that date who was lawfully resident in the United Kingdom under the 2016 Regulations immediately before then or (b) a person who has leave to enter or remain granted by virtue of the EU Settlement Scheme. Regulation 2(8) revokes the restriction on systemic verification of rights of residence under the 2016 Regulations.