Fraud and revocation of ILR: Court of Appeal unlocks the door to the finality of unappealed tribunal decisions

Ullah v The Secretary of State for the Home Department [2019] EWCA Civ 550 (03 April 2019)

The Court of Appeal recently dismissed a Pakistani immigrant’s appeal against the refusal of his judicial review claim challenging the decision to cancel his Indefinite Leave to Remain (ILR) in the UK. Controversially, the ruling imports into immigration law the legal test in Ladd v Marshall [1954] EWCA Civ 1 applicable to the admission of new evidence in private law cases and, on the basis of an anonymous tip-off, it unlocks the door to the finality of unappealed tribunal decisions which are meant to be binding on the parties. Despite the present Pakistani appellant’s fraudulent behaviour, which probably justifies the harsh result in his case, the outcome will allow the Home Office to simply disregard tribunal decisions where it lost and did not bother to appeal. The approach is problematic because it enables decision-makers to unilaterally change settled judicial findings without affording any right of appeal. Ladd v Marshall articulates a three-part test. First whether the evidence now relied upon could with reasonable diligence have been discovered earlier prior to the trial. Second, whether that evidence was likely to have had an impact on the case, i.e. that it had an important if not necessarily decisive influence in the decision. Third, the evidence must be apparently credible although not incontrovertible. Mr Rehmat Ullah applied for ILR in November 2011 on the basis of having been in the country for 14 years. The application was refused in March 2012.

However, FTTJ Turkington allowed his appeal in June 2012 and ILR was granted to Mr Ullah as the Home Office accepted the decision and did not appeal. But later in 2013, an unknown person sent a “denunciation” of Mr Ullah to the Home Office which brought into question the past basis upon which he had applied for ILR in 2011 and on which the FTT had found in his favour. In March 2016, his leave was cancelled and these judicial review proceedings raised the rather tricky question of the principles arising when, after initially unsuccessfully resisting an appeal to the FTT from a decision to grant ILR, the Home Office thereafter finds fresh evidence suggesting that the original claim to ILR had been fraudulent. It was alleged that Mr Ullah had obtained a passport and visas under a date of birth different to that provided in the application for ILR. In defence of the judicial review claim, the Home Office provided photocopies of passports issued in November 2000 and in December 1995, with an original entry of a birth date of 4 January 1952, which had been changed to 20 February 1960. After receiving his ILR, Mr Ullah twice visited Pakistan in 2013 and encountered no problems with immigration officials on return to the UK.

No presumption favouring revocation of deportation order after 10 years says Court of Appeal

EYF (Turkey) v Secretary of State for the Home Department [2019] EWCA Civ 592 (11 April 2019)

In relation to the proper construction of paragraph 391(a) of the Immigration Rules, which concerns the continuation of deportation orders in relation to those individuals sentenced to less than four years’ imprisonment, the Court of Appeal has held that the question of revocation of a deportation order will depend on the circumstances of the individual case. In a judgment given by Sir Ernest Ryder (Senior President of Tribunals) and Davis and Haddon-Cave LJJ, the court found that there is no presumption in favour of or against revoking a deportation order after 10 years had elapsed after the order had been made. EYF, a Turkish citizen, entered the UK with his family in 2000 and claimed asylum which was refused and the appeal dismissed in 2001. He went to Manchester Airport with his wife and seven-year old daughter on 11 February 2003 and outside the airport’s entrance he set various immigration papers alight. When police officers arrived he dowsed himself, his wife and his daughter in petrol and threatened to set himself and his family on fire. He also threw petrol at the officers. In March 2003, he was convicted of affray and sentenced to two years’ imprisonment. Thus, the Home Office wished to deport him and in November 2004 his appeal was dismissed and permission to appeal was refused. Thereafter, he became appeal rights exhausted and in September 2005 he was deported to Turkey. Subsequently, in January 2008 he applied for entry clearance in Turkey.

The application was refused owing to the extant deportation order. The First-tier Tribunal allowed his appeal but the Upper Tribunal upheld the refusal and the Court of Appeal refused permission to appeal. In November 2009, EYF applied for the deportation order to be revoked. However, the decision-maker refused to revoke the deportation order in September 2010. Again, both tiers of the tribunal dismissed his appeal and the Court of Appeal refused permission to appeal. Later in May 2013, he made another application to revoke the deportation order. The decision-maker refused to revoke the deportation order on 5 June 2015, which was the decision relevant for the purposes of the present appeal. Following the tribunal’s direction, the decision-maker made a supplementary decision on 29 March 2016 and upheld the earlier decision to revoke the deportation order and the First-tier Tribunal took this into account while dismissing EYF’s appeal on 4 July 2016. Later on 29 June 2017 the Upper Tribunal (UTJ Eyre QC) dismissed the appeal on the two grounds of appeal canvassed before him.

Section 117B(6) after KO (Nigeria): Presidential panel allows dishonest Turkish mother’s appeal

JG (section 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC) (15 February 2019)

The Supreme Court’s decision in KO (Nigeria) [2018] UKSC 53 (discussed here) was a seminal judgment. Yet it was seen as “deeply unsatisfactory” in some respects because Lord Carnwath left open the question of “reasonableness” by holding that the best interests assessment must be conducted in “the real world in which the children find themselves.” In doing so his Lordship endorsed the approach in SA (Bangladesh) 2017 SLT 1245 and EV (Philippines) [2014] EWCA Civ 874 that the child’s right to remain does not automatically guarantee that the parents will be granted leave to remain as well. In the present case, Mr Justice Lane held that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 requires a court or tribunal to hypothesise that the child in question would leave the UK, even if this is not likely to be the case, and ask whether it would be reasonable to expect the child to do so. He rejected the idea that paragraphs 18 and 19 of KO (Nigeria) support a construction of section 117B(6)(b), whereby the application of subsection (6) depends upon a tribunal finding, on the particular facts of the case, that the child will be expected to leave the UK if the person concerned is removed. Instead, he preferred the submission that such a construction is not possible, purely as a matter of statutory interpretation, and that nothing in KO (Nigeria) permits the tribunal to hold otherwise. The Court of Appeal has upheld his core reasoning in AB (Jamaica) [2019] EWCA Civ 661.

Lane J made the preliminary point that the provisions addressing article 8 of the ECHR and public interest considerations in Part 5A of the 2002 Act have received an intense amount of judicial analysis in comparison to normal laws. He rejected the claim that a full-blown proportionality assessment, taking full account of the immigration history of the parent subject to removal, is nonetheless required in cases where the child would not in practice leave the UK. In Lane J’s view, it was pointless to persist that there could still be a very real difference between the outcome of the proportionality assessment and an appraisal pursuant to section 117B(6) because if “Parliament has decreed a particular outcome by enacting section 117B(6), then that is the end of the matter.” The appellant “JG” was “both dishonest and unscrupulous, each to a high degree”. Consequently, it was clear that this interpretation permitted an undeserving individual or family to remain in the UK. Indeed, in reality Parliament had legislated “to be more generous than is strictly required by the Human Rights Act 1998” and in MA (Pakistan) [2016] EWCA Civ 705 it was recognised that Part 5A has the aim of imposing greater consistency in decision-making in this area by courts and tribunals.

Second human rights claim does not automatically trigger right of appeal says Supreme Court

Robinson (formerly JR (Jamaica)) v Secretary of State for the Home Department [2019] UKSC 11 (13 March 2019)

In this judgment concerning appeal rights, the Supreme Court unanimously dismissed a Jamaican national’s appeal but it took the opportunity to express serious concern about the huge pressures confronting the appeals system and the complexities of the Immigration Rules. Highlighting the Law Commission’s consultation paper Law Commission: Simplification of the Immigration Rules; CP 242, 21 January 2019, Lord Lloyd-Jones lamented that “the structure of both primary and secondary legislation in this field has reached such a degree of complexity that there is an urgent need to make the law and procedure clear and comprehensible.” Aged only seven, Mr Jamar Robinson arrived in the UK from Jamaica in October 1998 with six months’ leave to enter and then overstayed. Among his criminal convictions were two robberies that led to a deportation order being issued in July 2013. Lengthy deportation proceedings ensued and his appeal to the FTT was dismissed, it being accepted at the time that there was no family life in play. Permission to appeal to the UT was refused. He became appeal rights exhausted in May 2015 when further representations were made to the Home Office since his then partner was pregnant but the representations did not expressly seek the revocation of the deportation order and did not refer to human rights. The decision-maker refused to revoke the deportation order and concluded that deportation would not breach article 8 of the ECHR.

Equally, the representations did not amount to a fresh human rights claim within the meaning of paragraph 353 of the Immigration Rules. Mr Robinson’s son was born in July 2015 and further representations were made but again the decision-maker concluded that deportation would not breach article 8 and also that the further submissions did not amount to a fresh claim. An appeal to the FTT failed to aid him because it declined jurisdiction because the decision did not attract a right of appeal. Subsequently, the UT dismissed Mr Robinson’s application for judicial review of the decision that the further representations were not a fresh claim and the FTT’s decision that he had no right of appeal. The Court of Appeal dismissed his appeal in May 2017. In the Supreme Court, the question raised by the appeal was: where a person has already had a human rights claim refused and there is no pending appeal, do further representations/submissions that rely on human rights grounds have to be accepted by the decision-maker as a fresh claim in accordance with rule 353 if a decision in response to those submissions is to attract a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.

Free Movement and Kafala: CJEU Judgment in SM (Algeria)

SM (Enfant place sous kafala algerienne) (Citizenship of the European Union – “Direct descendant” – Judgment) (C-129/18, EU:C:2019:248)

The CJEU has confirmed AG Campos Sánchez-Bordona’s opinion that a child in the guardianship of an EU citizen under the kafala system in Algeria cannot be regarded as a “direct descendant” of that citizen within the meaning of article 2(2)(c) of Directive 2004/38/EC (the Citizens’ Directive). The court held that the EU citizen’s member state of residence must facilitate, following an assessment, the minor’s entry to and residence in its territory pursuant to article 3(2)(a). The eight-year-old child in question, SM, or “Susana” as Lady Hale preferred to call her when making the reference in SM (Algeria) [2018] UKSC 9 (see here), was left in a period of lengthy legal limbo because her case has been in litigation since 2012. Earlier she was placed into the legal guardianship of Mr and Mrs M, French nationals resident in the UK unable to have children, pursuant to Algerian law. She had been abandoned at birth and parental responsibility was transferred to them by decree and they were deemed “suitable” to take a child and pursuant to a judicial act they undertook to give Susana “an Islamic education … keep her fit morally and physically, supplying her needs, looking after her teaching, treating her like natural parents, protect her, defend her before judicial instances [and] assume civil liability for detrimental acts.” They are entitled to remove her from Algeria and the surname on her birth certificate was changed to their surname. 

She was refused entry clearance to the UK as the adopted child of an EEA national because guardianship under the Algerian kafala system is not recognised as an adoption under UK law. The Supreme Court had referred a trio of questions to the CJEU seeking clarification on important issues such as whether Susana can be classed as a “direct descendant” within the meaning of article 2(2)(c), whether such children can be denied entry clearance if they are the victims of exploitation, abuse or trafficking or are at such risk, and whether it is possible for member states to enquire about whether the procedure for placing the child in the guardianship/custody of the EU citizen was such as to provide sufficient consideration to the child’s best interests. Overall, in light of its answer to the first question, the CJEU did not find it necessary to provide an answer to the second question about abuse and trafficking or the third question. The judgment approves AG Campos Sánchez-Bordona’s views and endorses his analysis of the ECtHR cases of Harroudj v France and Chbihi Loudoudi v Belgium and the CJEU advances a telling analysis regarding the Charter of Fundamental Rights of the European Union and the pivotal role it plays in this case.

AG Campos Sánchez-Bordona: Kafala children are not direct descendants but are other family members

SM v Entry Clearance Officer, UK Visa Section (C-129/18, EU:C:2019:140)

In response to the reference made by the Supreme Court in SM (Algeria) [2018] UKSC 9 (see here), AG Campos Sánchez-Bordona advised the CJEU to declare that a child in the legal guardianship of an EU citizen under the Algerian kafala system cannot be classed as a “direct descendant” of that citizen within the meaning of article 2(2)(c) of the Directive 2004/38/EC (the Citizens’ Directive). However, following an assessment, the member state in which the EU citizen is resident must facilitate the entry and residence of the child in its territory. The child in the present case, a little girl who Lady Hale had called “Susana”, was placed into the legal guardianship of Mr and Mrs M pursuant to Algerian law. She was abandoned at birth in 2010 and parental responsibility was transferred to them by decree. The couple hold French passports and sought entry clearance for Susana as the adopted child of an EEA national under regulation 12(1), or alternatively 12(2) of the Immigration (European Economic Area) Regulations 2006. However, entry clearance was refused on two grounds. Firstly, Algerian guardianship was not recognised as an adoption in UK law as Algeria was not a party to the Hague Convention on Intercountry Adoption 1993 and was not named in the Adoption (Designation of Overseas Adoptions) Order 1973 then in force. Secondly, no application had been made for intercountry adoption under section 83 of the Adoption and Children Act 2002. 

The First-tier Tribunal upheld the decision but the Upper Tribunal allowed Susana’s appeal by finding that she was an extended family member (EFM). However, the Court of Appeal allowed the ECO’s appeal and held that Susana was not entitled to entry because under the provisions of the 2006 Regulations she could not be categorised as a family member, EFM or relative of her adoptive parents. In the court’s view the refusal did not breach European or international obligations concerning children’s welfare. The court also concluded that the UK’s rules regarding intercountry adoptions are wholly consistent with EU law and they thus constitute a reasonable and proportionate means of giving effect to international obligations relating to children’s welfare. Whereas Laws LJ declined to make a reference to the CJEU, Lady Hale found it necessary to refer some questions and like AG Campos Sánchez-Bordona little doubt existed in her Ladyship’s mind that article 3(2)(a) would provide coverage to Susana as an “other family member” (or EFM) in the event she did not fall within article 2(2)(c).

Supreme Court allows tortured Tamil asylum-seeker’s appeal

KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10 (6 March 2019)

In a recent judgment given by Lord Wilson the Supreme Court unanimously allowed KV’s appeal, remitting the matter to the UT for fresh determination. KV, a Sri Lankan asylum-seeker of Tamil ethnicity, claimed that the scars on his arm and back were the result of torture but his claim was still disbelieved on the basis that the scars were self-inflicted by proxy (SIBP), i.e. by another person at his invitation. While not a member of the Tamil Tigers, KV used to melt gold for the organisation. He claimed that Sri Lanka’s government detained and tortured him and tried to extract information about where the gold and other valuables were hidden. He contended that the government burned his arm with hot metal rods while he was conscious. The pain rendered him unconscious and during the time he remained unconscious hot rods were applied to his back. Upon regaining consciousness, his captors increased the intensity of his pain by pouring petrol on him and threatening to set him on fire. A few months later, his burnt skin healed into scars. Photographs he provided were deemed insufficient evidence and the decision-maker found inconsistencies in his narrative, noting that no medical evidence was provided in support of his claim of torture which was rejected. The FTT dismissed his appeal. The UT was unconvinced by KV’s evidence but it recognised that if his scarring was caused by torture then a real possibility arose that his story was true.

KV’s case was assisted by the expert evidence of Dr Zapata-Bravo who said that the scars were inflicted by burning with a hot metal rod. The scarring on the arm had blurred edges. But the scarring on KV’s back had such precise edges that he must have been unconscious while the burns were inflicted. Dr Zapata-Bravo concluded that his clinical findings were “highly consistent” with KV’s account of torture, and that it was unlikely the scars were SIBP. The UT’s determination and reasons, described by Lord Wilson as “a mammoth document” underpinned by “massive effort”, was against KV and dismissing his appeal UTJJ Storey, Dawson and Kopieczek held that it was clinically unlikely, given their precise edging, that (a) his scars could have been inflicted unless he was unconscious, and (b) that a person like KV could remain unconscious throughout multiple applications of hot metal rods to his arms and back, unless he was anaesthetised. The Court of Appeal held by a majority (Elias LJ dissenting) that the evaluation made by the UT was legitimately open to it and thus it could not be criticised as perverse or irrational, Moreover, it was beyond Dr Zapata-Bravo’s remit as an expert medical witness to state his opinion that his findings were “highly consistent” with KV’s claim of torture as a whole.