TN & MA (Afghanistan): Is JR an Effective Remedy for UASCs?

Like the case of AA (Afghanistan), the cases of TN and MA (Afghanistan) (AP) (Appellants) UKSC 2014/0047 also involve the Reception Directive and regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 which impose on the Home Office the duty to endeavour to trace the members of a minor’s family as soon as possible after he makes a claim for asylum. Of course, TN and MA’s narratives are also related to Afghanistan’s endless war but as discussed below all these cases also involve further legal dilemmas. TN and MA arrived in the UK as unaccompanied asylum-seeking children (or ‘UASCs’). They were granted discretionary leave to remain, until they reached the age of 17½, after they had reached 16½. Since the said leave was for less than a year, the appellants did not enjoy a right of appeal against refusal of their asylum claims under section 83(2) of the Nationality, Immigration and Asylum Act 2002 (NIAA). This situation led them to argue that they were denied an effective remedy, within article 39 of Council Directive 2005/85/EC (the Procedures Directive), by way of appeal.

The appellants equally contended that the limitations of judicial review disadvantaged them and that “corrective relief”, emerging from cases such as Rashid [2005] Imm AR 608 and S [2007] INLR 450, was in issue. They also placed reliance in the Charter of Fundamental Rights of the European Union (CFR). However, the Court of Appeal (Maurice Kay, Beatson and Briggs LJJ) held that UASCs who had been unsuccessful in their asylum claim and were granted discretionary leave at the age of 16½ until they reached the age of 17½ had an effective remedy in judicial review to challenge the initial rejection of their asylum claims.

AA (Afghanistan): What is the Scope of the Tracing Duty?

The Supreme Court looks set to hear a trio of Afghan asylum cases next week. The fact that AA (Afghanistan) (Appellant) UKSC 2014/0081 and TN and MA (Afghanistan) (AP) (Appellants) UKSC 2014/0047 involve children does not detract from the truly macabre nature of the ongoing conflict in that country. A panel of justices consisting of Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Toulson will hear these important cases on 3 and 4 March 2015. The AA case, which concerns the extent of the tracing duty, is considered in this post and the TN and MA cases are explored in the next post. In AA, using the services of an agent arranged by his maternal grandfather, the appellant entered the UK in mid-2011 concealed in a lorry. He claimed asylum and contended that subsequent to the death of his father, said to be a Taliban commander in eastern Afghanistan’s Nangarhar province killed in April or May 2011, the local Taliban applied pressure and tried to force him to become a suicide bomber and to avenge his father’s death.

AA, who was given the notional date of birth of 1 January 1996, also claimed that the local police developed an interest in him because of their belief that he might aspire to follow in his father’s footsteps. AA, his mother and his younger brother relocated from their home in Baghak and joined his grandfather in a village called Jokan where it was decided that his safety required him to leave the country altogether. In the UK, AA’s asylum claim was refused but he was given leave until he reached 17½ years. The First-tier judge disbelieved his claim in its entirety and concluded that he was Afghani youth who left Afghanistan, clearly with the benefit of some financial assistance, simply in order to seek a better life in the UK. The Upper Tribunal also dismissed the appeal.

Under Zoumbas, Tribunal Cases Can’t Contradict Nagre

Javed & Ors v Secretary of State for the Home Department [2015] EWHC 390 (Admin) (20 February 2015)

This judicial review claim concerned a six member Pakistani family. Together with his wife, two sons and two daughters, Mr Javed arrived in the UK in 2006 on a five-year entry clearance as an exempt diplomat working as a cashier at the Pakistan High Commission. The family’s leave got curtailed because Mr Javed left his job. In 2011, the family’s applications for leave to remain outside the rules were refused. The appeals were dismissed and appeal rights became exhausted in March 2012. Fresh applications for leave to remain outside the rules followed in March 2013 but were refused without a right of appeal. The decisions were challenged by way of judicial review and permission was granted on the papers. Supplementary decision letters, dealing specifically with the article 8 claim (which was considered to be arguable by the court) were subsequently issued in 2014 and confirmed the refusals. The claim for judicial review was dismissed because the family did not enter with a view to settlement, they resided lawfully for nearly four years but thereafter their residence became precarious.

The fact that they became resident for over eight years because of judicial review proceedings did not aid them. In dismissing the claim for judicial review, Philip Mott QC held that neither JO & Others [2014] UKUT 00517 (IAC) nor Oludoyi [2014] UKUT 00539 (IAC) (see here) put into doubt the practical guidance imparted by Sales J in Nagre [2013] EWHC 720 (Admin) in relation to the extent of detail required in a decision letter. The court was of the view that if they did cast doubt on Nagre, the two tribunal authorities would be in conflict with the decision of the Supreme Court in Zoumbas [2013] UKSC 74.

Alvi Argument Betrays Work Permit Holder

R (Memon) v The Secretary of State for the Home Department [2015] EWHC 205 (Admin) (06 February 2015)

The Memons are a fiercely business-minded people who originate in the Sindh province of Pakistan and the Indian state of Gujarat. The Indian annexation of princely states such as Junagadh (which preferred to accede to Pakistan), after the Partition of British India, triggered an exodus of Memons and many sought refuge in the then fledgling state of Pakistan. Many settled in Karachi and the sprawling port metropolis will always be indebted to the industrious Memon community for bringing entrepreneurship and creating employment in testing economic times. In the instant case, the Pakistani claimant for judicial review, Zahid Hussain Memon was an engineer who worked in the construction industry in Luton and who had been educated in the UK. Rejecting reliance placed in Alvi [2012] UKSC 33 (see here), sitting as deputy judge, Timothy Brennan QC held that the Home Office’s request inviting Memon to furnish documents evidencing his employment history in the UK (such as P60s and a P45, or a letter from HMRC) did not amount to the imposition of an additional threshold condition into the immigration rules.

Rather, the request was a mere request for evidence detailing Memon’s employment history and because it was not provided when asked for, the Home Office was entitled not to be satisfied about his compliance with his work permit with the inevitable result that his application had to be refused. Using form SET(O), in January 2012 Memon applied for indefinite leave to remain (ILR) based on 5 years of continuous residence. In his application he relied on a “To Whom It May Concern” letter (confirming his reliability and trustworthiness) that had not been produced for immigration purposes.

‘Historic Injustice’: Adult Child’s Appeal Allowed

AP (India) v The Secretary of State for the Home Department [2015] EWCA Civ 89 (13 February 2015)

The Court of Appeal recently revisited the theme of “historic injustice” and Elias, McCombe and King LJJ unanimously held in this case that the appellant should be granted entry clearance. The matter clearly demonstrates the extent to which East African Asians continue to suffer at the hands of the British government. The entry clearance officer (ECO) failed to consider the rights of all family members. The “historic injustice” argument was not pursued with real vigour by the appellant’s representatives in the tribunal but was reintroduced by his counsel in the Court of Appeal. Elias LJ did not attempt to disguise the dark history behind it all and he recalled the court’s remarks in NH (India) [2007] EWCA Civ 1330 where Sedley LJ was clear that the mistreatment of East African Asians was a “shameful episode in British history”. In the present case, the court was clear that modern means of communication, such as Skype or telephone calls, and visits alone were insufficient means for the appellant to sustain his family life with his British father and Indian mother and sister (who were ultimately given the right to enter).

The problem for the appellant was that he was an adult dependant and therefore faced an uphill battle to be admitted to the UK. But the law ultimately favoured him. As Sedley LJ said in Patel and Ors [2010] EWCA Civ 17 it was one thing for the historical wrong to be compensated, but reversing the passage of time was quite another matter. The present judgment will undoubtedly inspire other separated families to continue their struggle to have their adult children admitted to the UK. Tens of thousands of people are affected by the problem. I wrote on the theme some years ago and dozens of East African Asians have responded to my post.

Presidential Guidance on Dublin Cases

R (Weldegaber) v Secretary of State for the Home Department (Dublin Returns – Italy) IJR [2015] UKUT 70 (IAC) (12 Feb 2015)

Yosief Weldegaber, the applicant for judicial review was a 31-year old Eritrean national. His removal was stayed by the tribunal in December 2014. McCloskey J described this Dublin Regulation case as having “something of a history”. Weldegaber asserted that he was forced to flee his country. He said that he was studying to be a priest but was reprimanded by the Eritrean state and was subsequently detained by the Ethiopian authorities. He fled to Sudan, landed up in Italy, then proceeded to Holland, was returned to Italy but ultimately managed to enter the UK in March 2009 and of course claimed asylum. His presence in the UK dated back to March 2009. He said that he stayed a week on each occasion that he was in Italy where the authorities gave him no support, assistance, accommodation or food. In his judgment, among other things, McCloskey J comprehensively rejected the submission that the decision in Tabrizagh [2014] EWHC 1914 (Admin) required reassessment in light of the ECtHR’s recent decision in Tarakhel v Switzerland [2014] ECHR 1185 (see here).

The president thought that there is nothing in the Strasbourg judgment which calls into question the decision of the Administrative Court in Tabrizagh. Tarakhel was tipped to be the coming of the end of the Common European Asylum System. Different people called it different things. But along with AI [2015] EWHC 244 (Admin), Weldegaber’s case confirms that it is proving hard for asylum-seekers to benefit from Tarakhel. In her detailed judgment in AI, involving a non-Arab Darfuri (of Tunjur ethnic origin) national of Sudan whose asylum claim in France was refused but who travelled to the UK and claimed

The ‘Unvarnished’ Article 8: Haleemudeen Wrongly Decided

Singh v The Secretary of State for the Home Department [2015] EWCA Civ 74 (12 February 2015)

In this case on the interaction between the old rules and the new rules, the Court of Appeal (Arden, Lewison and Underhill LJJ) finally shed much needed light on the problems thrown up by its earlier conflicting decisions in Edgehill [2014] EWCA Civ 402 and Haleemudeen [2014] EWCA Civ 558 regarding which article 8 regime should apply in a case where an application for leave to remain was made prior to 9 July 2012 but the decision was made later. The court also addressed an important issue about precisely how the two-stage approach should operate. It unanimously dismissed Mr Singh and Ms Khalid’s appeals but did not conceal its annoyance with the “rebarbative drafting” of the immigration rules and urged the government to consider making their drafting and presentation more accessible. The court inclined to the view that the National Archive was an insufficient resource to keep track of the immigration rules and considered it essential for the Home Office to produce an archive of all past consolidated versions of the rules in a form that allows everyone to know their content at any given date.

Because of the near impossibility of keeping abreast of “the kaleidoscopic changes” in the rules, Underhill LJ unsurprisingly remarked at para 57: “I pity whoever has to undertake the task.” Statement of Changes HC 194 and HC 565 remained the court’s point of departure. It noted that prior to cutover to the new rules on 9 July 2012, in its “unvarnished” form, issues relating to article 8 ECHR were governed entirely by case law whereas following transition to the new regime private and family life came to be detailed in the rules in paragraph 276ADE and Appendix FM. The court held that Haleemudeen was wrongly decided