The EU Settlement Scheme (EUSS) is unlawful because it contravenes the Withdrawal Agreement negotiated between the UK and the EU. Under the EUSS, certain EU citizens living in the UK after Brexit were granted limited leave to remain for five years and were required to re-apply if they wished to remain lawfully in the UK thereafter. In this ruling, Lane J held that those who had been granted the residence rights created by Part 2 of the Withdrawal Agreement could not lose those rights at the end of a period of limited leave if they failed to re-apply. The claimant was the Independent Monitoring Authority for the Citizens’ Rights Agreements, serving to protect the rights of EU citizens living in the UK, which sought judicial review of the EUSS regulating residence rights of EU citizens following the UK’s withdrawal from the EU. After 31 December 2020, EU citizens could no longer enter or remain in the UK pursuant to the right of free movement conferred by Article 21 of the TFEU. Part 2 of the Withdrawal Agreement negotiated between the UK and the EU provided for rights of residence for those who had settled in the UK before the end of the withdrawal transition period and Article 13(1) provided for a right to reside subject to specified limitations and conditions. Article 15 conferred a right of permanent residence on those who had lawfully been residing in the UK for a continuous period of five years.
Notably, Article 13(4) provided that the SSHD could not impose any other limitations or conditions for obtaining or retaining residence rights and Article 18(1) empowered her to require all EU citizens living in the UK to apply for a new residence status conferring the residence rights set out in Part 2. Indeed, the SSHD purported to exercise that power by establishing the EUSS. The EUSS was “constitutive”. The Part 2 residence rights did not arise automatically upon the fulfilment of the conditions necessary for their existence and instead EU citizens living in the UK were required to apply for leave to remain under the Immigration Act 1971 so that Part 2 residence rights could be conferred by the grant of residence status. Upon such an application, those EU citizens who had lived in the UK continuously for five years or more would be granted indefinite leave to remain (“settled status”). Those who had been in the UK for less than five years would be granted limited leave to remain for five years (“pre-settled status”). Significantly, if they did not make a further application for leave to remain, then upon the expiry of their limited leave they would lose their pre-settled status and would become overstayers.
In this deportation case, Underhill, Nicola Davies and Stuart-Smith LJJ held that where, on an appeal from the First-tier Tribunal (FTT), the Upper Tribunal (UT) found that where the FTT’s decision involved an error of law, it would normally re-make the decision instead of remitting it to the FTT, unless it was satisfied that the error had deprived a party of a fair hearing before the FTT. Where the UT was so satisfied, it would normally remit the decision to the FTT. If the UT chose instead to re-make the decision itself, it would have to give cogent reasons for doing so. “AEB” appealed against a decision of the UT upholding a deportation order made by the respondent SSHD. The appellant was a Nigerian national who had been in the UK for 30 years and who was separated from his partner but helped to care for their three children, all of whom had significant disabilities and special needs. In 2017, he was convicted of dishonesty and sentenced to 4 years’ imprisonment. As a result, the SSHD served a deportation decision under the automatic deportation provision set out in section 32 of the UK Borders Act 2007. AEB appealed to the FTT relying on article 8 of the ECHR, which brought into play the provisions of Part 5A of the Nationality, Immigration and Asylum Act 2002. But the FTT dismissed his appeal and UT set aside that dismissal on the basis that the FTT had made errors of law which had deprived AEB of a fair hearing.
But rather than remitting the decision to the FTT, it exercised its discretion under section 12(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 to re-make the decision and it upheld the deportation order, making the finding that there were no “very compelling circumstances” within the meaning of section 117C(6) of the 2002 Act so as to outweigh the public interest in deportation. AEB submitted that the UT had (i) misdirected itself as to the principles to be applied when deciding whether to retain or remit a decision, and should have remitted the decision and (2) erred in its approach to what amounted to “very compelling circumstances”. The Court of Appeal allowed the appeal and held as follows. As to the general principles on re-making or remitting, the court observed that the UT’s discretion under section 12(b)(ii) to re-make or remit a decision was the subject of a series of Practice Directions and Practice Statements. The Practice Statements aimed to provide guidance and encourage consistency and they did not lay down immutable rules, establish propositions of law or fetter the UT’s broad discretion. The basic distinction between the Practice Directions and the Practice Statements is that the Practice Directions tend to set out steps to be taken by the parties while the Practice Statements tend to refer to what the FTT and the UT themselves will do.
The High Court has held that the SSHD’s policy of removing asylum seekers to Rwanda to have their asylum claims determined there rather than in the UK was—in principle—lawful. However, in eight individual cases, the way in which the SSHD had implemented the policy was flawed. Her decisions in those cases would be quashed and remitted to her for reconsideration. These highly complex proceedings concerned eight conjoined claims, where the claimants—asylum seekers, charities and a home office officials’ trade union—sought judicial review of 47 decisions made by the defendant SSHD to remove some asylum seekers to Rwanda to have their asylum claims determined there instead of this country. The SSHD had made the decisions pursuant to a policy—the controversial Rwanda policy—which made asylum seekers potentially eligible for removal to Rwanda in the event their claims were inadmissible (because they had not sought asylum in the first safe country they reached) and if their journey to the UK had been “dangerous” (for example, by reason of having been undertaken by small boat or clandestinely in a lorry). Removal from the UK in these circumstances involves two decisions: first of all, a decision that the asylum claim is inadmissible—i.e., that the asylum claim should not be decided on its merits in the UK; and second a decision to remove the asylum claimant to a safe third country which in these cases is Rwanda.
The arrangements under the Rwanda policy are known as the Migration and Economic Development Partnership (“the MEDP”). Notably, in relation to any asylum claim made on or before 27 June 2022, the power to make these inadmissibility and removal decisions is in paragraph 345A to 345D of the Immigration Rules. The court stated at the outset that the government’s proposal to relocate asylum seekers to Rwanda has been the subject of considerable public debate. It was, therefore, important to have the role of the court well in mind. Lewis LJ and Swift J explained that in judicial review claims the court resolves questions of law. Judicial review, they emphasised, is the means of ensuring that public bodies act within the limits of their legal powers and indeed in accordance with the legal principles governing the exercise of their decision-making functions. Parliament requires that public bodies act consistently with the rights and freedoms guaranteed by the ECHR under section 6 of the Human Rights Act 1998. They said that the court is not responsible for making political, social or economic choices—for example to determine how best to respond to the challenges presented by asylum seekers seeking to cross the Channel in small boats or by other means. Indeed, those decisions, and those choices, are ones that Parliament has entrusted to ministers.
Philip Mott KC has held that in section 2(1)(b)(i) of the Immigration Act 1971 a person who was a Citizen of the UK and Colonies (CUKC) by descent was only granted a right of abode in the UK if their parent had obtained that citizenship by either birth, adoption, naturalisation or registration in the United Kingdom, and the words “in the United Kingdom” apply to all four methods of obtaining citizenship. The court was of the view that the claimant Mr Indran Murugason’s father, who had become a CUKC by being born in Penang in 1948, before it became part of Malaysia, therefore did not come within section 2(1)(b)(i), so Mr Murugason did not have a right of abode and had not become a British citizen under section 11 of the British Nationality Act 1981. Mr Murugason had applied for judicial review of the defendant SSHD’s decision that he had no right of abode in the UK under section 2(1) of the 1971 Act as originally enacted. Mr Murugason’s father had been born in Penang in 1948; he was deemed to be a natural-born British subject under section 1 of the British Nationality and Status of Aliens Act 1918. The British Nationality Act 1948 came into force in 1949, and under section 12(1)(a) Mr Murugason’s father automatically became a CUKC. Later in 1957, Malaysia became an independent state, and his father, who was still in Penang, was allowed to retain his CUKC status despite independence.
Mr Murugason was born in 1972 in Penang, under section 5(1) of the 1948 Act he became a CUKC by descent through his father’s status. The 1971 Act came into force and divided British subjects into patrials and others; patrials had the right of abode, while others, even if CUKCs, did not. Section 2(1)(b)(i) of the 1971 Act provided that a person had a right of abode in the UK if he was a CUKC born to or adopted by a CUKC parent who had that citizenship at the time by his birth, adoption, naturalisation or … registration in the United Kingdom. Under section 11 of the 1981 Act those who had been CUKCs and had the right of abode became British citizens, so the question whether he had become a British citizen depended on whether section 2(1)(b)(i) of the 1971 Act had given him the right of abode. Mr Murugason’s submissions concentrated on section 2(1)(b)(i). It was argued that he had a right of abode because (i) he was a CUKC who was (ii) born to a parent who had that citizenship at the time of the birth and (iii) the parent had that citizenship by his birth. Refusing judicial review, Philip Mott KC examined the language of the provision and the wider context of the 1971 Act which was to impose the same restrictions on all CUKCs, requiring a direct UK connection through birth, adoption, naturalisation or registration. The special arrangement provided for in the 1971 Act had been to extend CUKC status to those born after independence, but not to provide them all with a right of abode.
In the case of “L3”, the Court of Appeal held that the SSHD had been entitled to exclude a Libyan national from the UK on the ground that he posed a threat to national security. The interests of his children, who had dual Libyan/British citizenship but had only lived in the UK for a relatively short time, did not outweigh the public interest in his expulsion. L3 appealed against a decision by the Special Immigration Appeals Commission (SIAC) rejecting his challenge to the respondent SSHD’s decision to exclude him from the UK. L3 and his wife, a dual British/Libyan citizen, arrived in the UK with their three older children in 2014. L3 was granted limited leave to remain. However, in 2017, while the family was on a trip to Libya, the SSHD cancelled L3’s leave to remain and excluded him from the UK. Subsequently, the family lived together in Turkey on tourist visas and three further children were born to the couple. All six children were holders of dual British/Libyan citizenship. In 2020 the SSHD withdrew her initial decision and she made a fresh decision to exclude L3 on the basis that he posed a risk to national security. The SSHD found that he associated with Islamic extremists, held a leadership position in a Libyan militia group, and had killed a security guard. But L3 asked SIAC to review the decision arguing that it violated article 8 of the ECHR.
L3 furthermore argued that the decision breached his right under Ruiz Zambrano v Office national de l’emploi (Case C-34/09)EU:C:2011:124 to remain within the EU as the primary carer of dependent children who were British citizens and would otherwise be compelled to leave with him. SIAC made the assumption that article 8 was engaged but, after considering open and closed material, decided that the SSHD had been entitled to exclude L3. SIAC further concluded that the Zambrano principle only applied where the children were entirely dependent on the excluded person and would inevitably have to leave the EU with them, and that there was no such dependency in this case because the children could stay in the UK with their mother, who had a right to remain as a British citizen. L3 submitted that SIAC had erred by (i) paying no attention to the importance of children being brought up in the country of their citizenship, that importance having been enunciated in ZH (Tanzania) v SSHD UKSC 4 and (ii) failing to refer to Patel v SSHD UKSC 59, which made it clear that the best interest of the children had to be taken into account when considering Zambrano rights. In ZH, Lady Hale found that the intrinsic importance of citizenship should not be played down and as British citizens, children have rights which they would not be able to exercise if they moved to another country. They would lose the advantage of growing up and being educated in their own country “with their own culture and their own language”. But Macur, Peter Jackson and Elisabeth Laing LJJ disagreed on both grounds.
In these judicial review proceedings, Lieven J held that Appendix FM, specifically the Domestic Violence Indefinite Leave to Remain (DVILR) of the Immigration Rules, and the differential treatment between victims of spousal abandonment inside and outside the UK is not justified and therefore breaches of Article 14 of the ECHR and the Human Rights Act 1998. The fact that the rules protected victims of spousal abandonment if they were present in the UK when they were abandoned, but not if they were outside the UK having been tricked or coerced by their abusive spouse, severely impacted the article 8 rights of the latter victims and could not be justified by the SSHD. AM, the claimant was a national of Pakistan born in 1991. In 2017 she married IM, a British citizen, and she arrived in the UK in December 2017 on a spouse visa valid until August 2020. In December 2018 she gave birth to a daughter. She was subjected to very severe financial, physical, emotional and sexual domestic abuse and, sitting in the Family Division of the High Court, Theis J made findings of very serious domestic abuse against the father. The violence inflicted by IM on AM had resulted in severe and long-lasting physical harm including the removal of one of her ovaries and also a diagnosis of achalasia type 2, which resulted in a weight loss of over 30 kilos.
She was forced to travel to Pakistan, ostensibly on a holiday to resolve marital problems, but IM retained X, and AM did not see her until they were reunited in the UK later on. AM was a victim of transnational marriage abandonment (TMA), leading to her being stranded in Pakistan and separated from her 2 year old British child for 8 months. AM’s exclusion from the DVILR as a TMA victim was challenged in these judicial review proceedings. Advised by a member of staff of the British Embassy in Pakistan and the Visa Appliction Centre in Karachi, AM applied for a replacement Biometric Residence Permit (BRP) but this was refused on 10 March 2021 on the basis that she did not have valid leave to return when she left the UK. She then instructed Islington Law Centre (ILC) which submitted an urgent and detailed application for a fee waiver, showing her finances, the domestic abuse she was a victim of in the UK and her abandonment in Pakistan and separation from her daughter. ILC informed the SSHD that AM would need to be in the UK by 1 July 2021 to attend Family Court proceedings, and that the SSHD should facilitate and expedite her return to the UK.
The Court of Appeal has held that Mr Victormills Onyekachi Iyieke, who had applied for indefinite leave to remain (“ILR”) on the ground of 10 years’ continuous lawful residence in the UK and who had a period of overstaying in 2014 “book-ended” by periods of leave was not able to rely on paragraph 276B(v) of the Immigration Rules. It is notable that current overstaying and previous overstaying between periods of leave are referred to as “open-ended” and “book-ended” overstaying. Furthermore, the Court of Appeal observed that under paragraph 276B(v) a period of overstaying between periods of leave was disregarded where the previous application was made before 24 November 2016 and within 28 days of the expiry of leave. Mr Iyieke had made an application within 28 days of the expiry of his leave in 2014—that was unsuccessful and he was later granted temporary admission on other grounds. In paragraph 276B(v), “the previous application” could not refer to any unsuccessful application made in a period of book-ended leave before 24 November 2016. The reference was to “the” previous application and not “a” previous application and “the” previous application had to have resulted in a period of leave. Mr Iyieke had a post-study work visa which expired on 9 August 2014. He applied for leave to remain on 2 September 2014, which was within 24 days of the expiry of his post-study work visa.
The application of 2 September was refused on 29 October 2014. But that refusal was challenged and Mr Iyieke was granted temporary admission on 28 November 2014. But his application of 2 September 2014 was unsuccessful. Mr Iyieke was later granted leave to remain on human rights grounds. It was common ground that his temporary admission from 28 November counted towards his period of 10 years’ continuous lawful residence. There was therefore a gap of 111 days between the expiry of leave on 9 August 2014 and the temporary admission on 28 November 2014. In 2021, he applied for ILR, which was refused on 13 June 2021. Mr Iyieke argued that he had had 10 years’ continuous lawful residence at the date of the SSHD’s decision, although there had been a period when he did not have leave, that was book-ended by periods of leave and so should count towards the 10 years pursuant to the provisions of paragraph 276B(v)(a) because he had made his 2 September 2014 application within 28 days of the expiry of leave, and that application had been made before 24 November 2016. The Court of Appeal granted permission for judicial review but the application was refused as there was nothing unlawful on the part of the SSHD. The court mentioned R (Munir) v SSHD  UKSC 32 and stated that the SSHD has wide-ranging discretion under the Immigration Act 1971 to grant leave to enter or remain where leave would not be granted under the Immigration Rules.
The three respondents—HA (an Iraqi), RA (an Iraqi) and AA (a Nigerian)—were “foreign criminals” for the purposes of section 32 of the UK Borders Act 2007 and the SSHD was the appellant in the Supreme Court which dismissed the government’s appeals. In all three cases the SSHD ordered deportation and the First–Tier Tribunal had allowed the appeal from that decision. But the Upper Tribunal remade the FTT decisions by dismissing the appeal. Then the Court of Appeal allowed the appeal from the Upper Tribunal’s decision. The present appeals concerned the statutory regime governing the deportation of foreign criminals under, Part 5A, section 117C of the Nationality, Immigration and Asylum Act 2002. HA and RA were medium offenders and AA was a serious offender. A “foreign criminal” is someone who is not a British citizen, who is convicted in the UK of an offence, and who is sentenced to at least 12 months’ imprisonment. The 2002 Act separates foreign criminals who have been sentenced to terms of imprisonment into two categories. Those sentenced to at least 12 months, but less than four years (“medium offenders”), can avoid deportation if they can establish that its effect on a qualifying child or partner would be “unduly harsh”—known as Exception 2. Moreover, Exception 1, relating to length of lawful residence and integration, was not in issue in this appeal. Those sentenced to at least four years (“serious offenders”) can avoid deportation if they establish that there are “very compelling circumstances, over and above those described in Exceptions 1 and 2”.
Whether deportation would produce unduly harsh effects for a qualifying partner/child is relevant to serious offenders. It was not disputed before the Supreme Court that a medium offender who cannot satisfy the unduly harsh test can try to show that the very compelling circumstances test is met. Notably, the very compelling circumstances test requires a full proportionality assessment to be carried out, weighing the interference with the rights of the potential deportee and their family to private/family life under article 8 of the ECHR against the public interest in their deportation. And the proportionality assessment will be carried out in all foreign criminal cases unless the medium offender can show that either of Exceptions 1 or 2 apply. The Supreme Court unanimously dismissed the appeals. Lord Hamblen gave the unanimous judgment of the court—he recalled that in KO (Nigeria) v SSHD  UKSC 53, discussed here, the meaning of the “unduly harsh test” had been previously considered by the Supreme Court. The SSHD submitted the Court of Appeal failed to follow the requisite test in HA and RA’s cases, HA (Iraq) v SSHD EWCA Civ 1176, discussed here. The SSHD said in particular that Court of Appeal—Underhill, Peter Jackson and Popplewell LJJ—incorrectly disapproved of comparing the degree of harshness experienced by a qualifying child to that which would necessarily be involved for any child—the “notional comparator” baseline against which undue harshness is to be evaluated—and wrongly lowered the threshold approved in KO (Nigeria).
In this appeal involving indefinite leave to remain (ILR) on the basis of 10 years’ continuous lawful residence and notices, the Court of Appeal held that Mr Marepally whose application for leave to remain had been rejected by a deficient notice, which failed to inform him of his right to appeal, could not rely on section 3C(2)(a) of the Immigration Act 1971 in order to extend his overall period of leave so that he accrued 10 years’ continuous lawful residence. Moreover, the failure to inform him of his right to appeal had caused no injustice as his appeal would have failed in any event. Mr Marepally had a complex immigration history and appealed against the decision that he was not entitled to indefinite leave to remain in the UK. He had entered the UK in February 2009 with entry clearance until 30 April 2014 as a Tier 4 student. Mr Marepally’s leave to remain as a student was curtailed in January 2014, and his application for further leave to remain was rejected. On 29 April 2014 he applied again (unsuccessfully) for leave to remain as a student. His appeal was eventually allowed on 6 May 2016 after which he varied his April 2014 application (on 25 January 2017) by applying for leave to remain as a Tier 5 worker. That application was refused on 29 March 2017, but the notice was deficient and it did not inform him of his right to appeal.
He said that his April 2014/ January 2017 application had therefore not been determined because the notice served failed to comply with the requirements of regulation 5 of the Immigration (Notices) Regulations 2003, meaning that section 3C(2)(a) of the 1971 Act operated to extend his leave to remain until a compliant notice was served on him and he then subsequently applied in February 2019 for ILR in the UK on the basis of 10 years’ continuous lawful residence, part of which had consisted of the alleged extension of leave under section 3C(2)(a). As to notice requirements, the court held that one of the functions of the notice served by the SSHD was to give an applicant information about his right to appeal against a particular decision. Further, the SSHD could rectify the error by sending a corrected notice and the time to appeal would then begin to run from the time that the corrected notice was sent to the applicant. Failing that, a court dealing with a claim for judicial review would usually quash the notice if that was necessary in order to enable the applicant to have an effective appeal. A court might, however, find that the notice was not invalid, or might decline as a matter of discretion to quash the notice, for instance, if the applicant had in fact been made aware of the right of appeal; if doing so would serve no practical purpose; or where no injustice had been suffered. In such circumstances, the original notice of decision remained in force and continued to have legal effect, and the time for appealing began when that notice was sent to the person concerned.
The Supreme Court allowed the complex deportation appeal of “SC”, a Jamaican national born in 1991 who arrived in the UK in December 2001 and whose mother was a lesbian who was persecuted by gang members in Jamaica. SC and his mother were granted indefinite leave to remain (“ILR”) in the UK as refugees in October of 2003 because they had experienced violence, harassment and assault at the hands of gang members in Jamaica. SC had lived in the UK since his arrival and committed numerous criminal offences between 2005 and 2012. In June 2012, he was convicted of assault causing actual bodily harm for which he was sentenced to two years in a young offender’s institution. As a result, SC was a “foreign criminal” who qualified for automatic deportation under the UK Borders Act 2007. There is a real risk to SC of inhuman or degrading treatment, contrary to article 3 of the ECHR in urban but not rural parts of Jamaica. Therefore, deporting SC to Jamaica would be unlawful unless SC “can reasonably be expected to stay” in the rural areas of Jamaica under the legal principle of “internal relocation”. Allowing an appeal from a deportation order made by the SSHD, the First–Tier Tribunal Judge held that SC could not reasonably be expected to stay in a rural part of Jamaica. FTTJ Kamara considered, among other things, SC’s criminal convictions, police officers’ evidence including intelligence about criminal offending, his own evidence and a report from his psychologist.
The SSHD appealed unsuccessfully to the Upper Tribunal (Judge Canavan) but her appeal to the Court of Appeal resulted in decisions of both Tribunals being set aside. Ryder LJ (then Senior President of Tribunals) and Davis and Henderson LJJ decided to remit the determination of SC’s appeal against the SSHD’s deportation order to the FTT for a fresh hearing. Judge Canavan had concluded that FTTJ Kamara had referred to the correct test in Januzi v SSHD  UKHL 5, and that her conclusion that SC could only live in a rural area of Jamaica was open to her on the evidence. In particular, the UT found that the findings in paragraph 38 of the FTT judgment would not on their own be sufficient to conclude that internal relocation would be unreasonable, but the FTT applied the correct test on an “overall reading of the decision”. The four issues upon appeal were: whether SC’s criminal conduct was a factor relevant to determining if he could reasonably be expected to stay in a rural area of Jamaica, based on a value judgment of what is “due” to him as a criminal; whether the FTT erred in holding that SC could not reasonably be expected to stay in a rural area of Jamaica; whether the FFT erred in assessing sections 117C(4)(b)–(c) of the the Nationality, Immigration and Asylum Act 2002 and paragraphs 399A(b)–(c) of the Immigration Rules in holding that SC is socially/culturally integrated in the UK and there would be very significant obstacles to his integration in Jamaica; and whether the FTT erred in law in embarking on a freestanding assessment of article 8 of the ECHR applying the wrong test and failing to give due weight to the public interest in SC’s deportation.
Upon the SSHD’s appeal, the Court of Appeal held that a case in which she had relied on generic evidence from Educational Testing Service to discharge the evidential burden of establishing that an English for International Communication certificate was obtained by fraud, the First-tier Tribunal had been entitled to give little weight to the conclusions of a 2019 report on English language certificates by an all-party parliamentary group (APPG) into that evidence. The SSHD was unhappy that the Upper Tribunal allowed an appeal by Halima Akter (HA) against the decision-maker’s refusal to grant her leave to remain in the UK. Macur, Peter Jackson and Andrews LJJ held that the key decision in DK and RK (ETS: SSHD evidence, proof) India UKUT 112 (IAC)—DK and RK (2)—was an authoritative decision and unless contradicted by credible evidence, the generic evidence was sufficient to discharge the evidential burden. HA arrived in the UK on student visa and had successfully extended her leave to remain. As part of her application, she had submitted a Test of English for International Communication (TOEIC) certificate obtained from Educational Testing Service (ETS). The SSHD had served a notice of administrative removal, after having received “generic” information from ETS which satisfied her that HA’s TOEIC certificate had been obtained by deception.
HA sought leave to remain on the basis of by article 8 of the ECHR, her application was, however, refused. She appealed to the FTT, relying on the conclusion of the APPG report which, she asserted with some vehemence, undermined the generic evidence on which the decision-maker relied. The FTT found the APPG report to attract little evidential weight and it concluded that the SSHD had satisfied the evidential burden of establishing that the TOEIC certificate had been obtained by deception. On appeal, the UT held that the FTT had failed to adequately engage with the report, which bore significant evidential weight. It went on to allow HA’s appeal on article 8. The aggrieved SSHD submitted that the UT’s conclusion that the report so undermined her case on fraud that she had not discharged the evidential burden was perverse, inadequately reasoned and wrong in law. And, indeed, the Court of Appeal concurred with the SSHD and allowed her appeal. The UT’s sole reason for setting aside the FTT decision was that the FTTJ had failed adequately—or at all—to engage with the APPG report. The SSHD filed an application pursuant to rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 inviting the UT to set aside its earlier decision on the basis that it breached decided authority: SSHDv Shehzad  EWCA Civ 615 and Majumder v SSHD  EWCA Civ 1167, whereby the generic evidence relied on by the SSHD is sufficient to discharge the initial evidential burden of proof.
Dismissing these judicial review claims, Mr Justice Jay held that in the event the Special Immigration Appeals Commission (“SIAC”) had made factual findings, in cases before it under appeal, that the SSHD had been wrong to make decisions depriving persons of their British citizenship pursuant to section 40(2) of the British Nationality Act 1981, then her subsequent withdrawal of deprivation decisions in similar cases had prospective effect only and did not render the original deprivation orders unlawful. Overall, the executive had acted reasonably at the time and she had been satisfied that the withdrawal of citizenship would not leave the persons concerned stateless, pursuant to section 40(4). Notably, three claimants (E3, N3 and ZA) applied for judicial review of the SSHD’s decisions to deprive them of their British citizenship. These judicial review proceedings raised an important question of principle. Was the legal effect of the withdrawal decision prospective only (the SSHD’s analysis) or was it retroactive in the sense that it should be treated as never having been made (E3’s and N3’s analysis)? This question was not academic, especially because ZA, E3’s daughter, was born in Bangladesh during the period of deprivation. If E3’s and N3’s analysis were correct, then ZA would be automatically entitled to British citizenship and would not need to make an expensive application. There was complex litigation in the Court of Appeal and also an application for permission to appeal to the Supreme Court in E3 and N3’s cases.
Following the determination of the Special Immigration Appeals Commission (“SIAC”) in three similar cases, the SSHD concluded that her deprivation decisions in the cases of E3 and N3 could no longer be supported, and these were withdrawn. She also informed E3 and N3 that their citizenship had been reinstated. SIAC then filed and served a notice recording that fact in accordance with its procedure rules. E3 was born in the UK in 1981, with dual British and Bangladeshi citizenship, Bangladeshi citizen parents. N3 was born in Bangladesh in December 1983 and was a British citizen at birth within the meaning of section 2(1)(a) of the British Nationality Act 1981 since his parents were British citizens otherwise than by descent. In 2017, the SSHD made the deprivation orders under section 40 of the 1981 Act and E3 and N3 successfully appealed to SIAC, which held that they had lost their Bangladeshi citizenship at age 21 and so the deprivation decision rendered them stateless contrary to section 40(4). ZA, E3’s daughter was born in Bangladesh in 2019. The Court of Appeal allowed the SSHD’s appeal against SIAC’s judgment and the matter was remitted to the latter for reconsideration. E3 and N3 applied for permission to appeal to the Supreme Court. Pending their further appeal, SIAC had judged three similar cases allowing appeals by persons deprived of British citizenship on the ground that the orders rendered them stateless.
This important guidance concerned the correct approach to be adopted in a human rights appeal in which it is argued that removing an individual from, or requiring them to leave the UK, would be a breach of section 6 of the Human Rights Act 1998, on the basis that such removal or requirement would be contrary to article 3 of the ECHR, having regard to the individual’s mental ill-health and/or risk of suicide. Determining the correct approach presently requires an analysis of the judgment of the Grand Chamber of the European Court of Human Rights in Savran v Denmark  ECHR 1025. This case provided an opportunity for the Upper Tribunal to give guidance as to expert reports; in particular, psychiatric reports. Justice Lane and Upper Tribunal Judge Rimington gave wide-ranging guidance on expert medical evidence in immigration and asylum cases and they dismissed HA’s appeal. A citizen of Sri Lanka, HA first arrived in the UK aged 21 with entry clearance as a student and extended his student visa on a number of occasions and his student leave came to an end in February 2016. He applied for a residence card under the EEA Regulations (as then in force), as the family member of an EEA resident. In July 2016, his application was refused, with no right of appeal. He then made further applications for a residence card on the same basis in August 2016 and March 2017. But both applications were refused without a right of appeal.
Subsequently, in September 2018, he applied for further leave to remain on the basis of his private life, stressing that he was suffering from depression, for which medication had been prescribed by his GP. The SSHD treated his application as a human rights claim and refused it, finding that he did not satisfy paragraph 276ADE of the Immigration Rules because he had not lived in the UK for the required period; and because there would be no very significant obstacles to his reintegration into Sri Lanka. The SSHD further concluded that there were no exceptional circumstances that would make the refusal breach article 8 of the ECHR. Finally, the SSHD found that the HA’s removal would not violate article 3 of the ECHR, on the basis that his case did not meet the high threshold for succeeding by reference to article 3 on medical grounds, as decided by the House of Lords in N v SSHD  UKHL 31; HA’s prescription citalopram tablets were available in Sri Lanka. HA feared that his removal “will result in a drastic and irretrievable breakdown of my health and there will be no coming back for me then”. In the United Kingdom, he said he was “treated with dignity and respect and can lead a life free of troubles”. In this regard, he cited his cousin/sister’s “love and support” and argued that he is “a law-abiding citizen of this country and I have never broken the law and hope to give back to society with my many talents”.
In this important judgment on deportation, dual nationality, foreign criminals, executive powers and duties, proportionality, public interest and the right to respect for private and family life, the Court of Appeal has unanimously held that a person’s status as a foreign criminal status within the meaning of section 32 of the UK Borders Act 2007 and section 117C of the Nationality, Immigration and Asylum Act 2002 has to be determined at the date of the decision to make a deportation order. Underhill, Arnold and Snowden LJJ held that the fact that a foreign criminal had lived in the UK all their life and/or had committed the offence which rendered him liable to deportation while he was still a British citizen did not mean that there was no public interest in his deportation. The Court of Appeal agreed with the Upper Tribunal’s view in Zulfiqar (Foreign criminal: British citizen) Pakistan UKUT 312 (IAC), see here, that it was proportionate to order Mr Zulfiqar’s deportation in the public interest. Mr Zulfiqar was born in the UK in 1979 and he held dual British and Pakistani nationality from birth. He lived in the UK his whole life and had only visited Pakistan once. In 2005 he was convicted of murder and sentenced to life imprisonment with a minimum term of 15 years. In 2011 he renounced his British citizenship so as to qualify for consideration for transfer to Pakistan to serve the remainder of his sentence there.
The reason for Mr Zulfiqar’s renunciation of British citizenship was to be near his father who had returned to live in Pakistan and was ill. However, his application for transfer to Pakistan was refused. Then in 2013, while in prison, he got married to a British citizen who had two children by a previous relationship, but Mr Zulfiqar did not have a parental relationship with them. In 2018, the SSHD made a deportation order under section 3(5)(a) of the Immigration Act 1971. However, Mr Zulfiqar had wanted to live in the UK with his wife on release and appealed to the First-tier Tribunal claiming that his deportation would be incompatible with his rights under article 8 of the ECHR. The FTT considered whether deportation would involve a disproportionate interference with his article 8 rights, on the basis that he was not a “foreign criminal” for the purposes of section 117C as he had been a British citizen at the time of his conviction. However, FTTJ Feeney took the view that his deportation would be proportionate and dismissed the appeal and the Upper Tribunal likewise dismissed his appeal. The Upper Tribunal (Judges O’Callaghan and Mandalia) held that Mr Zulfiqar was a foreign criminal for the purposes of section 117C and Part 13 of the Immigration Rules. The Upper Tribunal further held that the FTT’s error as him not being a foreign criminal was not material because the nature of his sentence meant that he could not rely on the statutory exceptions to the public interest in section 117C.
The Court of Appeal has held that a mere declaration was not just satisfaction for the SSHD’s admitted violations of the rights—pursuant to article 8 of the ECHR—of a minor Afghan asylum seeker caused by his removal to Germany and instead the admitted breach of article 27 of the Dublin III Regulation on the criteria for determining the Member State responsible for examining an application for international protection by a third-country national or a stateless person had indeed been sufficiently serious to entitle him to Francovich v Republic of Italy (Cases C-6/90 and 9/90)  2 CMLR 66 type damages. “A”, the appellant, was born in Afghanistan. His uncle “D” who moved to the UK, was granted asylum and became British in 2008. The appellant left Afghanistan in 2015. He first went to Greece, then to Germany, and entered the UK in April 2016 where claimed asylum. He said he was 16, claiming that he seen his father being murdered, that his brother had also been murdered, and further that he had himself been kidnapped and tortured. But his age was assessed as 19. A found D and stayed with him, but made a stronger connection with his support workers. He was so traumatised by his terrible experiences in Afghanistan that in May or June 2016 he tried to commit suicide. He had provided the SSHD with an Afghani identity document showing that he was born in 2000.
Germany accepted responsibility for him under Dublin III. In April 2017 he was detained and a decision was made to remove him to Germany. He was removed just two days after being given notice of that decision. He claimed that he had been unlawfully removed, that he was a disputed minor and that his mental health had declined since he got to Germany and that his removal was a breach of Dublin III and government policy about removal in third country cases. At the time of his judicial review claim in October 2018, A was still in Germany and the judge found that the SSHD had unlawfully removed him without proper notice and in breach of policy. The SSHD conceded that the lack of notice had breached article 27 of Dublin III. So the judge quashed the removal decision, as well as decisions certifying as clearly unfounded the appellant’s asylum claim on third country grounds and his human rights claim, ordered the appellant’s return and required him to particularise his damages claim. In May 2020 the UT decided that A was born in 2000—meaning that he was a child when he was removed. It later decided that he had not had a family life with D when he was removed, but that his removal had breached his right to a private life and article 27 of Dublin III. However, the breach was not held sufficiently serious to warrant Francovich damages.
Abu Zubaydah, a Palestinian born in Saudi Arabia, is detained in Guantánamo Bay, Cuba. He was captured in March 2002 in Pakistan. He claims that between 2002 and 2006 he was unlawfully rendered by agents of the United States to six countries, namely Lithuania, Thailand, Poland, the United States Base at Guantánamo Bay, Cuba, Morocco and Afghanistan. In 2006 he was rendered again to Guantánamo Bay, where he has been detained without trial ever since. The CIA decided that he should be held incommunicado for the rest of his life and that is what has transpired. In this judgment concerning detention, extraordinary rendition, foreign torts, inhuman or degrading treatment or punishment and torture, the Court of Appeal held that Lane J had erred in concluding under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 that the law applicable to a claim for torts committed by the Secret Intelligence Service and the Security Service and while the appellant was detained in six countries by the CIA was the law of those countries. Dame Victoria Sharp PQBD, Thirlwall and Males LJJ held that Lane J ought to have concluded that the net significance of the factors linking the torts with the six countries was minimal, while the significance of the factors connecting the torts with England and Wales was very substantial, and that the general rule as to the applicable law was hence displaced under section 12.
Zayn-al-Abidin Muhammad Husayn (aka Abu Zubaydah) was aggrieved by Lane J’s view that the law applicable to his claim for torts allegedly committed by the Security Service and the Secret Intelligence Service (“the Services”) while he was detained in six countries by the US Central Intelligence Service/CIA was the law of those countries. He said that between 2002 and 2006 he had been unlawfully rendered to six countries by the CIA and held in each country at a black site where he had been subjected to extreme mistreatment and torture. He claimed that during that time the Services had sent numerous questions to the CIA to be used during his interrogations without seeking any assurances that he would not be tortured or mistreated. He claimed that the defendants were vicariously liable for the torts thus committed by the Services, namely misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment, and negligence. These “black sites” have been described as secret detention facilities around the world, operating outside the US legal system. Abu Zubaydah was the first person to be detained in such a site as seen in the 2014 Report of the US Senate Select Committee on Intelligence. The United States did not accept the existence of these facilities at the time. Even after admitting the “black sites” programme in 2006, it has never confirmed the location of the sites. In Al-Nashiri v Poland/Husayn v Poland (2015) 60 EHRR 16, the ECtHR held that a black site existed in Poland and that the claimant had been held in it, during which time he suffered breaches of the ECHR.
Dismissing this appeal, Lord Hodge, Lord Briggs, Lady Arden, Lord Stephens and Lady Rose held that the Immigration and Nationality (Fees) Regulations 2018 were not ultra vires the Immigration Act 2014, which authorised the SSHD to make subordinate legislation setting fees for applications to obtain British citizenship. Although the 2018 Regulations set the application fee for a child at a level which many children and their families could not simply afford, the 2014 Act did not impose any criterion of affordability. On the contrary, express powers were conferred on the SSHD to set high fees at levels which could subsidise other functions in relation to immigration and nationality. The appeal/case of “O” concerned whether subordinate legislation was ultra vires because it set the fee at which a child or young person could apply to be registered as a British citizen at a level which many young applicants have found to be unaffordable. O was born in the UK in July 2007. She attended school and had never left the UK. She was a Nigerian citizen, but from her tenth birthday she had satisfied the requirements to apply for registration as a British citizen under section 1(4) of the British Nationality Act 1981. O applied to be registered as a British citizen on 15 December 2017 but was unable to afford the full amount of the fee, which was £973 at that time.
It was not disputed that many children and their families cannot afford the fee charged where an applicant is a child. Because the full fee was not paid, the SSHD refused to process O’s application. O was joined in her legal challenge by the charity known as The Project for the Registration of Children as British Citizens. The court said that statutory interpretation involves an objective assessment of the real meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which were being considered. The primary source by which meaning was to be ascertained is the words and passages in a statute read in the context of the relevant section as a whole and in the wider context of a relevant group of sections. Further, the relevant context could be provided by other provisions in a statute and the statute as a whole. Although the context disclosed by external aids to interpretation, such as Explanatory Notes, Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers, is relevant to assist the court to ascertain the meaning of the statute and whether or not there was ambiguity and uncertainty, external aids played a secondary role in interpretation and none of them would displace the meanings conveyed by the words of the statute that, after consideration of context, were clear and unambiguous and did not produce absurdity.
In these proceedings, upholding the decision of Chamberlain J, the Court of Appeal held that section 40(5) of the British Nationality Act 1981 provided that, before making an order depriving a person of British citizenship, the SSHD had to give that person written notice of her decision. The SSHD had appealed Chamberlain J’s findings and Sir Geoffrey Vos MR, Baker and Whipple LJJ held that regulation 10(4) of the British Nationality (General) Regulations 2003, which provided that notice would be deemed to have been given if it had been placed on the individual’s UK Home Office file, was ultra vires section 40(5) and section 41(1) of the 1981 Act and was thus void and of no effect. D4 had travelled to Syria. She was assessed as having done so in order to join a proscribed terrorist organisation. On 27 December 2019, the decision to deprive her of her British citizenship was made and placed on D4’s Home Office file. On the same day, officials made an order depriving D4 of her citizenship. Section 40(5) obliged the SSHD to give written notice of her decision to D4 before making an order depriving her of citizenship. However, when the SSHD made her decision, D4 was detained in Camp Roj and had no valid address for correspondence. The SSHD therefore placed a notice of the decision on her Home Office file and went on to make the deprivation order.
In doing so, the SSHD relied on the deeming provision in regulation 10(4) of the 2003 Regulations, which provided that where there was no valid address for correspondence, the notice would be deemed to have been given if it was placed on the subject’s Home Office file. Regulation 10(4) had been made pursuant to section 41(1)(e) of the 1981Act, which empowered the SSHD to make regulations “for the giving of any notice”. The High Court—Chamberlain J—upheld D4’s application for judicial review of the deprivation order, holding that the regulation 10(4) deeming provision was ultra vires section 40(5) and section 41(1) of the 1981 Act. Chamberlain J addressed the arguments before him in ten stages of reasoning which led him to conclude at that regulation 10(4) was ultra vires. He took the view that “I conclude that Parliament did not give the Home Secretary power to make regulations that treat notice as having been given to the person affected when it has not been given to that person but instead has simply been placed on a Home Office file. Regulation 10(4) is accordingly ultra vires ss. 40(5) and 41(1) of the 1981 Act. It is void and of no effect. As it is severable, its invalidity does not affect the other parts of reg. 10.” Whipple LJ found Chamberlain J’s examination of the issues to be of considerable assistance and she reached the same conclusion as he did for many of the same reasons.
According to the Court of Appeal, section 3B of the of the Immigration Act 1971 and article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 confer on the SSHD the power to cancel both limited and indefinite leave to remain (“ILR”) in the UK when the person who held that leave was outside the UK. It was the SSHD’s appeal against a declaration made by Mr Jay J that article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000 only permitted the cancellation of limited leave to remain, and not ILR, held by a person who was outside the UK and that the detention of C1 was thus unlawful. The appeal concerned the meaning/legal effect of section 3B of the Immigration Act 1971 and article 13(7) of the 2000 Order. C1 was granted ILR in 2017. He departed from the UK and went to Iran on 21 November 2018. On 26 November 2018, while C1 was outside the UK, the SSHD in person decided to exclude him from the UK on the grounds that his presence in the UK was not conducive to the public good, and cancelled his ILR under article 13(7) of the Order and under paragraph 321A(4) of the Immigration Rules. C1 nevertheless tried to return to the UK several times and eventually succeeded in making his way back in an inflatable boat and he was detained for being an illegal entrant.
C1 successfully applied for judicial review of the decision to cancel his ILR. Article 13(7) gave the SSHD the power to cancel leave to remain in force under article 13 and held by a person who was outside the UK. The SSHD’s grounds of appeal were that Jay J erred in deciding that article 13(7) did not apply to ILR and/or, if and to the extent that he had held that article 13(7) was ultra vires the 1971 Act, section 3B, he had also erred. Section 3B was inserted into the 1971 Act by section 2 of the Immigration and Asylum Act 1999 and it was headed “Further provision as to leave to remain” and section 3B(1) gave the SSHD the power to make further provision with respect to the giving, refusing or varying of leave to remain. The issue was whether section 3B authorised, and article 13(7) gave the power to, the SSHD to cancel ILR in the UK when its holder was not present the UK. Underhill, Asplin and Elisabeth Laing LJJ allowed the SSHD’s appeal and made some points. The case of R (MK (Tunisia)) v SSHD  EWCA (Civ) 333 concerned the cancellation of the claimant’s non-lapsing indefinite leave to enter under article 13(7) and the SSHD had accepted that section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 had applied to the decision cancelling the claimant’s leave. The court held that the claimant’s indefinite leave to enter was extended by virtue of section 82 pending the determination of the appeal, with the result that he could return to the UK to exercise his right of appeal.
In Pakistan, Mr Malik Riaz and his “Bahria Town” building business are synonymous with corruption and land grabbing. In this interesting judgment about corruption, dirty money and the infamous Malik Riaz Hussain and his vast property empire, Nicola Davies, Nugee and Snowden LJJ held that the SSHD had been entitled to cancel 10-year multi-entry visit visas held by Malik Riaz and his son Ali Riaz, who were the chairman and CEO of Bahria Town which had been implicated in unlawful land transactions in Pakistan. The evidence as a whole, which included judgments given in civil proceedings by the Supreme Court of Pakistan, supported the conclusion that the exclusion of the father and son from the UK would be conducive to the public good owing to their involvement in corruption and financial misconduct. Nicola Davies LJ held that there was no merit in the challenge to the visa cancellation decisions and UTJ Kebede was right that in all the circumstances “there is an overwhelming case to be made for saying that the respondent was entitled to reach the conclusion that she did and that there was nothing irrational in her doing so.” The ECO had cancelled their visas in December 2019 on grounds that, while they had not been criminally convicted, they had been involved in corruption and financial/commercial misconduct in Pakistan and their exclusion from the UK was therefore conducive to the public good because of their conduct, character and associations.
The ECO’s conclusion was founded on Malik Riaz and Ali Riaz’s involvement with the affairs of their family company, a large property developer in which the former was the company’s chairman and the latter was the CEO. The ECO had had relied on many bits of information to make the decision to cancel the visas. Three judgments of the Supreme Court of Pakistan in civil proceedings which found that the company and/or the appellants had benefitted from a series of unlawful land transactions in Pakistan by virtue of which the company obtained valuable government-owned land at a significant undervalue. The first of those decisions had been made by a 2:1 majority. The ECO relied on successful applications by the UK’s National Crime Agency (NCA) to freeze the family’s accounts, and a subsequent settlement under which the family agreed to pay £190 million towards the amount owed under the Supreme Court judgments. The ECO relied on a final report submitted by the Joint Investigation Team in Pakistan under the direction of the Supreme Court in separate proceedings concerning alleged bribery and money laundering by the company and others. The ECO further relied on a reference filed by Pakistan’s National Accountability Bureau concerning investigations into land developments and misconduct of public officials, in which the company and Ali Riaz were named as accused. The ECO also relied on the fact that the company later offered to pay the full price of the land, and the Supreme Court of Pakistan accepted that it should pay 460 billion Rupees (or £2.3 billion) which would be guaranteed by four members of the family, including the father and son.
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