Court of Appeal: No Absolutism in Zambrano Principle

The Secretary of State for the Home Department v Robinson (Jamaica) [2018] EWCA Civ 85 (02 February 2018)

The government’s appeal in this case was stayed, prior to which the UT had allowed Robinson’s appeal against a FTT decision, pending the outcome in the cases of Rendón Marin (C-165/14, EU:C:2016:275) and CS (C-304/14, EU:C:2016:674) where it was held that the principle in Ruiz Zambrano (C-34/09, EU:C:2011:124) is not absolute and permits exceptions. A Jamaican national born in 1975, Cherrie Ann-Marie Robinson entered the UK in August 2002 and was granted leave to enter as a visitor for three weeks. Her leave was extended as a student. In February 2004 she applied for leave to remain as the spouse of Marlon MacPherson, who was present and settled in the UK, and was granted leave until March 2006. She applied for and was granted ILR in March 2006. Later that year she was convicted of supplying cocaine and received 30 months’ imprisonment. Subsequently, her deportation was sought and a deportation order was signed in November 2007. This situation resulted in statutory appeals and judicial review proceedings. Meanwhile, Robinson gave birth to her son D in December 2008. She also applied for leave to remain outside the Immigration Rules in 2012 and treating her application as one to revoke her deportation order, the decision-maker refused the application. Thereafter, FTT dismissed her appeal in December 2012. However, the UT subsequently allowed her appeal in August 2013.

The Home Office filed an appeal in October 2014 and Sales LJ granted a stay on the papers in January 2015. In the instant judgment, the Court of Appeal unanimously allowed the Home Office’s appeal and remitted the matter to the UT for redetermination on the merits because the UT had taken too absolutist a view of Zambrano and the errors associated with that approach were not sufficiently immaterial for the court to dismiss the appeal instead. The Court of Appeal also found serious flaws with the approach taken by McCloskey J in CS (Morocco) about the status of Bouchereau (30/77, EU:C:1977:172). Unlike McCloskey J, Singh LJ did not find that the historic decision’s burial rites had been performed and he convincingly held that Bouchereau remains binding law. The two grounds of appeal pursued were (i) the UT wrongly concluded that the principle established by the CJEU in Zambrano is absolute and prohibits the deportation of a third-country national even where he or she is guilty of serious criminal conduct, and (ii) the UT failed to consider and apply regulations 20 and 21A of the Immigration (European Economic Area) Regulations 2006 in concluding that the decision to remove Robinson was not in accordance with the law. Continue reading

Posted in Appeals, Children, Citizens Directive, CJEU, Court of Appeal, Deportation, European Union, Free Movement, Proportionality, Public Interest, Tribunals, UKSC | Tagged , , , , , , , | 2 Comments

Free Movement: ‘Spouse’ Includes Same Sex Spouse

Coman v Inspectoratul General pentru Imigrări (C‑673/16, ECLI:EU:C:2018:2, AG Wathelet’s Opinion)

Marriage between persons of the same sex is prohibited under article 277(1), (2) and (4) of the Romanian Civil Code. Relu Adrian Coman – a Romanian – cohabited with Robert Clabourn Hamilton – an American – for four years in the USA. In 2010, the two men married in Brussels where Coman worked in the European Parliament. Relying on the Citizens’ Directive (2004/38/EC), in late 2012 an application had been made for the necessary documents to be issued so as to enable Coman to work and reside permanently in Romania with his spouse. Romania’s General Inspectorate for Immigration refused to issue the requested documentation on the ground that extending a US national’s temporary residence for the purposes of family reunion was not a possibility. It was not possible to classify Hamilton as the “spouse” of an EU citizen because of Romania’s refusal to recognise same-sex marriage. The Constitutional Court of Romania referred to the CJEU the question whether Hamilton, as the spouse of an EU citizen having exercised his freedom of movement, must be granted a right of permanent residence in Romania. It is the first opportunity for the court to rule whether within the meaning of the directive, the concept of “spouse” applies in the context of a marriage between two men. In answering this “delicate” question, taking an expansionist view of EU sexual citizenship, AG Wathelet interpreted “spouse” to include same sex spouse.

The directive uses the word “spouse” on numerous occasions, especially in article 2(2)(a), but the term is left undefined nonetheless. For AG Wathelet, specifically in the limited context of free movement the definition of the concept of “spouse” affects men and women’s identity and dignity. Moreover, it also affects the personal and social concept that EU citizens have of marriage which varies between people and from member state to member state. Member states must not impede an EU citizen’s freedom of residence by refusing to grant his/her third country national same sex spouse a right of permanent residence in their territory. Although member states are free to authorise marriage between persons of the same sex or not, they may not impede the freedom of residence of an EU citizen by refusing to grant his/her non-EU same sex spouse a right of permanent residence in their territory. The Asociaţia Accept, a Romanian NGO defending and promoting LGBTI rights, is supporting Adrian Coman and Robert Hamilton in their bid to get justice. Continue reading

Posted in Article 8, CFR, Citizens Directive, CJEU, ECHR, European Union, Families, Free Movement, Permanent Residence, Spouses | Tagged , , , , , | Leave a comment

ILR and the Importance of Medical Evidence

R (Gayle) v Secretary of State for the Home Department [2017] EWHC 3385 (Admin) (21 December 2017)

This is a case with a “tragic personal history”. Gayle and her son Gary entered the UK on a six-month visitor visa in 2000. However, they overstayed. More than one person abused her before she came to the UK. Her partner in the UK abused her further and was deported to Jamaica in 2006. Two of her male children died young. Her son who lived in the USA died and her son Gary Scott, who lived with her, was murdered in London in December 2015. In 2011, Gayle and her son Gary applied for leave to remain. In January 2013, they were both granted leave to remain for 30 months. There was an initial condition that she was to have no recourse to public funds, but later in July 2014 that limitation was removed. Subsequently, Gayle applied for ILR but was instead granted a further 30 months leave to remain outside the rules in November 2016. The duration of the grant was challenged on two grounds. First, that there was uncontested medical evidence that Gayle had long-standing mental health difficulties and that her perceived uncertainty about her long-term immigration status was significantly and deleteriously impacting on her treatment and possible recovery. The decision-maker failed to refer to or analyse the uncontested medical evidence properly and therefore failed to take it into account.

Second, since article 8 of the ECHR was engaged the failure to grant ILR breached Gayle’s Convention rights. Granting the application for judicial review, HHJ Wall QC held that the decision-maker had not properly considered the medical evidence in making the decision. Irrespective of whether or not a case falls within the Immigration Rules, under section 3(b) of the Immigration Act 1971 the Home Secretary has a discretion to grant anyone ILR. Three expert reports were submitted in the present case. Two were from a psychiatrist, Dr Maloney and the third had been produced by a mental-health psychologist, Dr Bulkeley. Gayle’s experts thought that it would be in her best interests if she were granted ILR because this would be a benefit to her psychological welfare. For example, Dr Bulkeley concluded that she had a severe, complex form of PTSD and a chronic major depressive disorder of a severe form. He opined that the negative effect of uncertainty as a consequence of her immigration status upon her mental health warranted a grant of ILR because it would be of significant benefit to her psychological welfare. Continue reading

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Brexit: The Miller Judgment

R (Miller & Anor) v The Secretary of State for Exiting the European Union [2017] UKSC 5

Miller is considered to be the most important constitutional case for a generation. The lead claimant Gina Miller means different things to different people. She aroused extreme hatred in pro Brexit circles because of challenging the government’s intention to rely on prerogative power to withdraw from the treaties governing the UK’s membership of the EU. For example, Viscount Rhodri Philipps called her a “bloody troublesome first-generation immigrant” and pledged £5,000 to anyone who killed her by “accidentally” running her over. But he was only sentenced to 12 weeks’ imprisonment for sending malicious communications. Death threats were also received by the 11 Tory MPs who dared to rebel against the government. Calls were made for their public hanging because they traitorously defied their own party over Brexit. After that for “sabotaging” Brexit civil servants were attacked in an extraordinary way “worthy of 1930s Germany”. Earlier in 2016, Thomas CJ, Etherton MR and Sales LJ were also slandered for being corrupt traitors and even dubbed the “enemies of the people” when they held at first instance that the government could not trigger article 50 of the Lisbon Treaty without the enactment of statute because “the Crown has no power to alter the law of the land, whether it be common law or contained in legislation.” By majority the Supreme Court held that there was no power under the prerogative for notice to be given pursuant to article 50(2) for the UK to withdraw from the EU.

An Act of Parliament was required. Notice was given more than 10 months ago and time is clearly of the essence. Ironically, despite the rapidly approaching deadline of 29 March 2019, no concrete British plan for Brexit exists. Instead, ministers are bickering among themselves rather than showing unity – a trait well engrained in their European counterparts. Judging from the apparent deadlock in ongoing negotiations Gina Miller surely did the UK a huge favour by stopping Theresa May from using the prerogative to give notice. Less time remaining would definitely have put the UK an even weaker position today. The majority rejected the contention that ministers alone could make a major change to UK constitutional arrangements. Automatic and overriding effect is given to EU law only while the European Communities Act 1972 – which gave effect to the UK’s membership of the EU – remains on the statute book. However, that point is only a reflection of the supremacy of Parliament without whose sanction no new source of law can come into existence. Fire Brigades Union [1995] UKHL 3 leaves no doubt that “ministers’ intentions are not law” and it cannot be assumed “that they will necessarily become law.” Continue reading

Posted in Brexit, Cases, CJEU, Constitution, Economy, European Union, Free Movement, International Law, Judicial Review, Miller, Politics, Rule of law, UKSC, Women | Tagged , , , , | 1 Comment

Law Corrected on British Citizenship and Identity Fraud

R (Hysaj & Ors) v Secretary of State for the Home Department [2017] UKSC 82 (21 December 2017)

Extraordinarily, the Home Office sought to have these appeals allowed by consent despite the fact that Dinjan Hysaj and Agron Bakijasi had fraudulently deceived the authorities in obtaining ILR. The conflict in the former Yugoslav republic of Kosovo created more than 850,000 refugees and tens of thousands of people arrived in the UK claiming that they had been the victims of persecution. In reality, many of them were Albanian nationals who had lied about their true identity. No concrete action was taken against Hysaj when his lies first came to light. But after being sentenced to five years’ imprisonment for causing GBH, he was informed that he was not and never had been a British citizen because the grant had been obtained by impersonation. Bakijasi’s fraud surfaced when his partner returned to Albania in order to regularise her immigration status. The question for the Supreme Court was whether the misrepresentations made by the appellants in their applications for British citizenship made the grant of that citizenship a nullity, rather than rendering them liable to be deprived of that citizenship under sections 40 and 40A of the British Nationality Act 1981. Bound by existing authority, the Court of Appeal had no choice but to uphold Ouseley J’s first instance judgment that the appellants had not in fact become British citizens when issued with certificates by the Home Office purporting to register them as having citizenship by naturalisation.

Nevertheless, Sales LJ found the binding authorities to be “problematic in various respects”. The present judgment therefore allowed the Supreme Court to hold that the decisions of the Court of Appeal in Parvaz Akhtar [1981] QB 46 and Bibi v ECO (Dhaka) [2007] EWCA Civ 740 were wrongly decided. Hysaj was born in Albania in 1977 and arrived in the UK and claimed asylum in July 1998. He falsely claimed to be a citizen of the former Yugoslavia from Kosovo, where he said he had been persecuted. He used his real name but lied by understating his age so as to be considered a child when he claimed asylum. He was granted refugee status and obtained ILR in 1999. He applied for naturalisation as a British citizen in 2004 and was granted British citizenship in his own name but with false details regarding his date of birth, nationality and place of birth. Bakijasi entered the UK in 1999 and also falsely claimed to be a citizen of the former Yugoslavia from Kosovo and gave a false name and a false date of birth in his asylum claim, which was refused. But he was granted ILR under the Family ILR exercise in 2005. He was subsequently granted British citizenship under a fabricated name, date of birth, and place of birth. Continue reading

Posted in Appeals, Asylum, Bangladesh, Children, Citizenship and Nationality, Court of Appeal, False Statements and Misrepresentations, Families, Judicial Review, Pakistan, Refugee Convention, Spouses | Tagged , , , , , , , , , | 1 Comment

Case Preview: Bashir and Others v SSHD

In her Christmas speech to British forces in Akrotiri, the prime minister celebrated the downfall of ISIS. Temporarily relieved from the turbulence of domestic and European politics, a triumphant Theresa May stressed that British military bases in Cyprus – the epicentre of thousands of strategic sorties – were central to defeating jihadists entrenched in Iraq and Syria. Just days before the victory speech, Lady Hale and Lords Mance, Kerr, Wilson, Sumption, Reed and Carnwath heard the SSHD’s appeal on the intriguing question whether the Refugee Convention 1951 the 1967 Protocol extend to the UK’s Sovereign Base Areas (SBAs) of Akrotiri and Dhekelia. And, if so, whether the SSHD is required to admit Tag Eldin Ramadan Bashir and five other refugees and their families to the UK for settlement. Under a secret agreement in 1878, in order to thwart rising Russian aggression the declining Ottoman Empire deliberately ceded Cyprus’s governance to Great Britain which “occupied and administered” the island until 1914 and ultimately annexed it as a colony upon the outbreak of the First World War. The Treaty of Lausanne 1923 recognised the colony and that status continued until the constitutional settlement of 1960. The SBAs are military zones retained under British sovereignty following the independence of the Republic of Cyprus (RoC) in 1960.

The respondents were rescued in the Mediterranean from a dangerous Lebanese fishing boat en route to Italy. Human traffickers, who charged $2000 per person for the journey, abandoned the “floating coffin” vessel when the engine broke down. But luckily the respondents were airlifted to Akrotiri in 1998 and were recognised as Convention refugees shortly thereafter. But until now they have lived in limbo in Dhekelia where they occupy disused, dilapidated and hazardous military accommodation called Richmond Village. In 2013, they sought admission to the UK. But in November 2014 the SSHD refused them entry and judicial review proceedings were instituted. Despite holding that the SBAs fall outside the Convention’s scope because of the binding authority of Bancoult (No 2) [2008] UKHL 61, Foskett J quashed the decision because of a failure to take UNHCR’s concerns into account that resettling the respondents in RoC was undesirable and impractical. He was unconvinced that the FCO had a practice of recognising that international treaties applicable to Cyprus before 1960 continued to apply to the SBAs after their inception. Continue reading

Posted in Appeals, Article 14, Asylum, Brexit, CFR, Court of Appeal, ECHR, Human Trafficking, International Law, Italy, Judicial Review, Persecution, Politics, Refugee Convention, Settlement, UKSC | Tagged , , , , , , , , | 1 Comment

Zambrano Carers: ‘Benefits Tourism’ Appeal Dismissed

R (HC) v Secretary of State for Work and Pensions [2017] UKSC 73 (15 November 2017)

Lady Hale found this to be a “very troubling” case but she agreed with Lord Carnwath that the appeal had to be dismissed. The thing that troubled her Ladyship was that the welfare of British children was at stake. In addition to the fact that HC’s case involved the interpretation of the landmark decision in Zambrano (Case C-34/09, EU:C:2011:124), the impact of the government’s actions on the neglected rights of British children remained a striking feature of this appeal. However, despite the exceptional nature of the Zambrano right of residence, the Supreme Court pointed out that the CJEU’s ruling is not predisposed to maintaining the unity of the family and does not guarantee any particular quality of life or standard of living. “HC” has been living the UK since 2008. She is Algerian and became an overstayer when her marriage to a British citizen ended owing to domestic violence. Her right of residence was not in doubt because she is a Zambrano carer, i.e. a non-EU citizen who was the primary carer of an EU citizen. The Zambrano principle precludes EU member states from enacting measures against a Zambrano carer in circumstances where those measures result in the deprivation of the genuine enjoyment of the dependent EU citizen’s rights under EU law.

Oldham Council accommodates HC and her children under section 17 of the Children Act 1989. She receives £80.5 per week in subsistence and utility costs. It was undisputed that this was sufficient for the family to remain. Notably, Zambrano carers are precluded from claiming various income-related benefits by the operation of the Social Security (Habitual Residence) (Amendment) Regulations 2012, the Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 and the Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012. These regulations limit Zambrano carers’ rights to claim some types of non-contributory social security assistance accessible by “habitually resident” persons. The changes aimed to curb potential annual expenditure between £3.8m and £9.4m that 700 people a year qualifying for Zambrano rights would trigger in terms of income support, housing benefit and council tax benefit. HC complained that her British children had to survive on “the bare minimum” because they were precluded from enjoying the same benefits and opportunities of growing up in Britain like normal British children such as their British step-siblings/cousins with the result “that they do not in practice have the same rights.” Continue reading

Posted in Article 14, CFR, Children, Citizenship and Nationality, CJEU, Court of Appeal, ECHR, European Union, Families, Judicial Review, UKSC | Tagged , , , , , , , | 1 Comment