Government loses bid to lower bar for exclusion of extremists from refugee status

The Secretary of State for the Home Department v NF [2021] EWCA Civ 17 (11 January 2021) 

The Court of Appeal has dismissed the government’s appeal as to the lowering of the high threshold for the engagement of article 1F(c) of the Refugee Convention 1951 and Davis, Lewis, Nugee LJJ decided that despite disturbing evidence that “NF” had been in contact with known extremists, the threshold established by the Supreme Court was high as established by the Supreme Court in Al-Sirri v SSHD [2013] 1 AC 745. The Court of Appeal concluded that that possessing large amounts of terrorist-related material and contact with extremists might amount to “acts contrary to the purposes and principles of the United Nations” in article 1F(c) so as to exclude certain individuals from the protection of refugee status and if the person’s conduct was sufficiently grave it could cross the high threshold established by Al-Sirri. NF was a Kenyan who entered the UK as a student to study aerospace engineering, accompanied by his wife as his dependent. He downloaded large quantities of material relating to Islamic extremism and terrorism, and was in contact with extremists. So he was charged with three terrorism offences in relation to those actions. He convicted on one count of possession of a terrorist manual and received a  nine month sentence, the sentencing judge recommended his deportation. He subsequently applied for asylum. The SSHD accepted that NF could not be returned to Kenya where he would face a real risk of ill-treatment contrary article 3 of the ECHR. 

However, the SSHD considered that his actions amounted to acts contrary to the purposes and principles of the United Nations under article 1F(c) and considered him to be excluded from the protection of refugee status. The FTT concluded that he did not fall within the provision in article 1F(c) and the UT upheld the decision. The SSHD granted NF leave to remain owing to the article 3 issues and this case did not concern whether NF ought to be deported to Kenya. The only issue turning on the appeal was whether the UT was correct in holding that there was no error of law in the decision of the FTT. Subsequent to a visit to Kenya in 2013, downloaded material showing an interest in Islamic terrorism was found to be in NF’s possession. The downloaded material included photos of armed members of Al Shabaab, a terrorist organisation and also speeches by three individuals supporting terrorism. Searches of his home revealed large quantities of downloaded material showing an interest in terrorism. He had deleted many thousands of files from his home computer. He was charged with three offences of collecting or making a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, contrary to section 58 of the Terrorism Act 2000. He was convicted of having a manual entitled 39 Ways to Serve and Participate in Jihad.

Proof, expert evidence and credibility in trafficking cases

MN v Secretary of State for the Home Department [2020] EWCA Civ 1746 (21 December 2020) 

The Court of Appeal has decided that the two-stage procedure provided for by the National Referral Mechanism (NRM) to determine whether a person is a victim of human trafficking, involving an initial decision on whether there are reasonable grounds to believe that a person is a victim, and a subsequent conclusive decision made on the balance of probabilities, complies with the requirements of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT), Directive 2011/36 and article 4 of the ECHR. Two appellants (MN, an Albanian national, and IXU, a Nigerian national) appealed against the dismissal of their judicial review applications of decisions made by Home Office decision-makers that they were not victims of trafficking for the purposes of the NRM. The NRM sets out a two-stage identification procedure to determine whether someone was a victim of trafficking. A “Competent Authority”, a part of the Home Office, determines whether there are reasonable grounds to believe that a person is a victim. Then, in light of further consideration/investigation, the Competent Authority makes a conclusive decision. Conclusively established trafficking victims are entitled to support under the NRM. Some, but not all, of that support is available also to potential victims identified at the first stage. The Competent Authority made reasonable grounds determinations in favour of both MN and IXU but made conclusive decisions against them. Farbey J (MN) and Mr Philip Mott QC (IXU) dismissed the judicial review claims at first instance. 

MN and IXU argued that they were entitled to continue to receive support and protection for as long as there were reasonable grounds to believe that they were trafficking victims and that the second stage in the NRM, at which a conclusive decision was made on the balance of probabilities, was unlawful. They submitted that the Competent Authority had taken the wrong approach in both cases to the expert evidence before it. They claimed that the Competent Authority had taken the wrong approach to assessing the credibility of their accounts. The AIRE Centre and Anti-Slavery International intervened in these appeals and the court allowed the appeals in part. Furthermore, there was in the case of each appeal a ground peculiar to it. These were related to anxious scrutiny, MN argued that in her case Farbey J wrongly held that no duty of anxious scrutiny arose. While she was still a child IXU underwent female genital mutilation and she stated that the FGM was performed for the purpose of an intended forced marriage to an older man. The judge held that that was immaterial to the question whether she was a victim of trafficking because the connection between the FGM and any possible future exploitation was not sufficiently proximate –  IXU contended that he was wrong to do so. In the Court of Appeal, this point was called the “nexus” issue, which the court retained as shorthand for convenience (it was not sure that this was entirely apt).

Permission to work guidance for asylum seekers is unlawful

R (IJ (Kosovo)) v Secretary of State for the Home Department [2020] EWHC 3487 (Admin) (18 December 2020) 

The claimant, “IJ”, was a citizen of Kosovo who was determined to be a refugee and a victim of trafficking. During the time her asylum claim was still being considered, her claim arose, and permission was granted, by a condition imposed on her under paragraph 360A of the Immigration Rules, whereby she was not permitted to take up employment in a position that fell outside the Shortage Occupation List (SOL). The SSHD refused to allow IJ to take up employment in a post as a cleaner that would fall outside the SOL and refused to exercise her residual discretion outside the Immigration Rules to permit this. Aggrieved by this, IJ challenged the lawfulness of SSHD’s decisions maintaining the SOL condition, her relevant policy guidance and rule 360A itself, on the basis that these are or were not in accordance with article 4 of the ECHR and/or article 8 read with article 12 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT) and associated law and guidance, and or infringed common law principles of clarity and transparency and/or discriminated against trafficking victims contrary to article 14 of the ECHR in conjunction with article 4 and/or article 8. IJ was trafficked to the UK on 31 December 2017 and was detained on 9 March 2018 after coming to the attention of the authorities. On 19 March 2018 a decision-maker found no reasonable grounds to regard her as a victim of trafficking. 

On 10 September 2018 the SSHD promulgated a policy (which was declared unlawful) that if an alleged victim of trafficking claimed asylum, their application for discretionary leave to remain as a victim of trafficking would not be determined until after their asylum claim. On 6 March 2019, IJ issued a civil claim against the Home Office and Bedfordshire Police relating to her detention, the failure to identify her as a victim of trafficking and associated breaches of her data rights and human rights. On 7 March 2019 a decision was made that there were reasonable grounds to regard her as a victim of trafficking. On 10 May 2019 she requested permission to take up a non-SOL offer of employment and made this request in alternative proceedings leading to litigation which was compromised. On 2 January 2020 the SSHD made the decision under challenge, again refusing permission for IJ to work outside the SOL, on the ground that her circumstances did not distinguish her from other asylum seekers. Subsequently, judicial review proceedings were pursued and permission was granted. On 14 July 2020 the SSHD decided that there were conclusive grounds to regard IJ as a victim of trafficking, but refused to grant her discretionary leave on the grounds that her asylum claim was outstanding. However, on 5 October 2020 the SSHD granted IJ asylum as a refugee and she was granted a work permit on 13 October 2020.

No further “exceptional circumstances” test for Zambrano carers in deportation cases

Robinson (Jamaica) v Secretary of State for the Home Department [2020] UKSC 53 (16 December 2020) 

This appeal raised the issue whether a third-country national (TCN) otherwise benefiting from the derivative right to reside within EU territory pursuant to the principle in Ruiz Zambrano v Office national de l’emploi  (Case C-34/09) EU:C:2011:124 enjoys enhanced protection against deportation, with the result that she/he can be deported in “exceptional circumstances” only. The Supreme Court unanimously held that the phrase “exceptional circumstances” does not import a further hurdle before a Zambrano carer can be deported from European Union (EU) territory. Under the Zambrano doctrine, and the substance of rights test, a TCN parent of a EU citizen child resident in EU territory who was dependent on the TCN parent is entitled to a right of residence if expulsion of the TCN parent would require the child to leave EU territory, consequently depriving the child of the genuine enjoyment of the substance of the child’s EU citizenship rights. The principle extends to dependants who are not children and it applies even though the EU citizen has not exercised their right of free movement. The TCN’s right of residence is a derivative right derived from the dependent EU citizen and it flows from Article 20 of the  Treaty on the Functioning of the European Union (TFEU) and was expressed without reservation in Zambrano so as to be thought to prevent expulsion of the TCN parent in all circumstances. Ms Robinson was a Jamaican national. 

She was convicted of supplying a Class A drug (cocaine) in the UK in 2006. The SSHD wanted to deport her. During the course of her lengthy appeal proceedings she had a son who is a UK citizen, and for whom she provided primary care. The First-tier Tribunal (FTT) dismissed Ms Robinson’s appeal against deportation and the Upper Tribunal (UT) decided that there were errors of law in the FTT’s decision, set it aside and remade it, allowing her appeal on the basis that the Zambrano right of residence was unqualified, so that there was an absolute prohibition preventing deportation of the TCN parent without any consideration of proportionality even if the TCN had committed serious crimes. The SSHD appealed to the Court of Appeal against the UT’s determination and proceedings were stayed to await the judgments in CS v SSHD (Case C-304/14) EU:C:2016:674, [2017] QB 558 and Rendón Marín v Administración del Estado (Case C-165/14) EU:C:2016:675, [2017] QB 495 which were given on 13 September 2016. The CJEU decided that there was a limitation on the Zambrano derivative right of residence, so that it was not absolute. This led to a narrowing of the issues and it was accepted that the UT had erred in law in that it had wrongly concluded that protection against removal was absolute and there was no need to consider proportionality if it came to the conclusion that the deportation of a TCN parent would require a child who was an EU citizen to depart from EU territory with the person being deported.

Court of Appeal upholds Algeria country guidance for gay men

YD (Algeria) v Secretary of State for the Home Department [2020] EWCA Civ 1683 (14 December 2020) 

Lewis, Peter Jackson and Asplin LJJ have dismissed the appeal of Mr YD who alleged that the country guidance in OO (Gay men) (Algeria) CG [2016] UKUT 65 was flawed. The Court of Appeal determined that the reasoning in OO (Algeria) is sound and the tribunal in the present case was entitled to find on the evidence that, outside the family, a gay man in Algeria would not face a real risk of persecution. Mr YD entered the UK illegally in July 2012, aged 15. He claimed asylum on the basis that as a homosexual male he had a well-founded fear of persecution if he were to be returned to Algeria. Mr YD claimed his parents died in a car crash when he was six and he went to live with his uncle. That relationship became troubled and he was thrown out of the house when he was about 12 years old. He then met Anis, and went to live with him and they had a sexual relationship. But Anis’s mother discovered their affair and threatened to tell his uncle. He then lived on the streets and later met someone who helped him travel to the UK. His asylum case was based on his fear that his uncle would kill him because of his homosexuality and that he would be judged and treated badly, and would be in danger, in Algeria. The decision-maker refused Mr YD’s claim on July 2013 but he was granted discretionary leave to remain for one year. 

He applied for further leave to remain which was refused on 13 October 2015 leading to an appeal to the FTT. The FTT was satisfied that Mr YD was gay and it considered the country guidance in OO, whereby outside the family home, a gay man in Algeria would not have a well-founded fear of persecution because of his sexual orientation. Notably, the FTT also considered the judgment in HJ (Iran) & HT (Cameroon) v SSHD [2010] UKSC 31. The FTT noted that, although Algerian law criminalised homosexual behaviour, the state did not actively seek out gay men to take any form of action against them and there was no real risk of prosecution, even when the authorities became aware of such behaviour. The FTT accepted that there was a real risk of violence and persecutory ill treatment if Mr YD were to be returned to his local area, but it found that the risk could be avoided by the availability of a safe and reasonable internal relocation. The state did not actively seek out gay men to take any form of action against them either by prosecution or subjecting them to other forms of persecutory ill-treatment. Sharia law was not applied to gay men and the FTT decided that Mr YD  had no family life in the UK and that internal relocation within Algeria would not be unduly harsh, albeit that he would not live openly as a gay person. It determined that there were no significant obstacles to reintegration – the UT agreed with the FTT’s decision.

An unlawful lacuna in policy is harming victims of trafficking

EOG (Anonymity Order Made) v Secretary of State for the Home Department [2020] EWHC 3310 (Admin) (03 December 2020)

Mostyn J has held that an unlawful lacuna in the government’s existing policy concerning the leave to remain of potential trafficking victims who had been referred to the National Referral Mechanism (NRM). Given the very lengthy delays impeding the NRM system, the court decided that the SSHD must formulate a policy that grants potential trafficking victims interim discretionary leave on such terms and conditions as are appropriate both to their existing leave positions and to the likely delay that they will face. The claimant (EOG) arrived in the UK in September 2017. She was granted a Tier 5 Youth Mobility Scheme Visa which entitled her to work and which was valid until 20 September 2019. In April 2018 she became dominated by a man who abused her sexually and forced her into prostitution. She eventually managed to escape and in September 2018 she was referred into the NRM. In June 2019, EOG started work with a trafficking support organisation and she was able to work because her visa remained unexpired. She enjoyed her work and by all accounts her ability to do it was an important component in her psychological and social recovery with which the state was obligated to assist her under the terms of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT). Her visa was due to expire on 20 September 2019 prior to which she ceased work and became reliant on payments from the state. 

After lengthy delays in the NRM system, her leave to remain expired before she had been recognised as a victim of trafficking or could be considered for the grant of discretionary leave to remain (she had received a positive reasonable grounds decision but a conclusive grounds decision had not been made). All this meant that she was thrust into the infamous “hostile environment” created by the the Immigration Act 2014 for overstayers and other illegal migrants and was deprived of access to basic services and employment. This made it a criminal offence to be in the UK without leave to remain and also imposed additional restrictions on her right to work, to rent accommodation, to have a bank account, to hold a driving licence, or to access free treatment from the NHS. Consequently, EOG applied for judicial review of the SSHD’s policy concerning leave to remain for suspected victims of trafficking who had been referred to the NRM. EOG relied on article 10(2) of ECAT and submitted that in circumstances where such gross delays arose, it was incumbent on the SSHD to include within the existing policy terms which regulated the leave position of a person who had received a positive reasonable grounds decision. Specifically, she argued that the SSHD’s policy of excluding a recipient of a reasonable grounds decision from a grant of discretionary leave was unlawful and the SSHD’s refusal to treat a referral into the NRM as an application to vary her existing visa, thereby extending that leave under section 3C of the Immigration Act 1971, was likewise unlawful.

Strasbourg finds Nigerian man’s deportation violated article 8

Unuane v United Kingdom – 80343/17 [2020] ECHR 832 (24 November 2020) 

In the case of Mr Unuane, a Nigerian national, who had been deported from the UK after a conviction for offences relating to falsification of immigration documents, the ECtHR found a violation of article 8 of the ECHR. Mr Unuane was deported after a conviction for offences relating to falsification of 30 applications for leave to remain in the UK and he was sentenced to five years and six months’ imprisonment, his appeal was unsuccessful. His Nigerian partner was also convicted of the same offence and, along with their three minor children, she was initially subject to a deportation order as well. Unlike Mr Unuane, their appeals were allowed, owing to the best interests of the children, and they remained in the UK. The SSHD was obliged to make a deportation order against Mr Unuane section 32(5) of the UK Borders Act 2007. The SSHD considered that he was a “foreign criminal” as defined by section 32(1) of the 2007 Act and accordingly his deportation, by virtue of section 32(4) of the 2007 Act, was deemed to be conducive to the public good. The FTT dismissed his appeal but the UT found that the FTT had materially erred in law. The UT found that “the wife needs him and she is staying” and “the boys need him”. However, it held that there were no “very compelling circumstances” and it dismissed the appeal. Reliance placed in Hesham Ali v SSHD [2016] UKSC 60 failed to satisfy the Court of Appeal which refused permission to appeal in 2017. 

Mr Unuane was deported from the UK on 27 February 2018. For the ECtHR, the principal issue was whether Mr Unuane’s deportation was “necessary in a democratic society”, or in other words, whether the deportation order had really struck a fair balance between his Convention rights on the one hand and the community’s interests on the other. Notably, the criteria for carrying out this assessment, which became apparent from the court’s case-law and was spelled out in Boultif v Switzerland 54273/00 and Üner v the Netherlands [GC] 46410/99 which were meant to facilitate the application of article 8 in expulsion cases by domestic courts. Further in applying these criteria, the respective weight to be attached to them would inevitably vary according to the specific circumstances of each case.Part 5A (sections 117A to 117D) of the Nationality, Immigration and Asylum Act 2002, as inserted by section 19 of the Immigration Act 2014 which came into force on 28 July 2014, applies where a court/tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s right to respect for private and family life under article 8. In cases concerning the deportation of foreign criminals a court or tribunal must have regard to the considerations listed in section 117C. There were also changes to the deportation provisions of Part 13 of the Immigration Rules. Prior to Part 5A, in July 2012 the Immigration Rules were amended to include the then “new rules” on article 8. 

Home Office is failing potential victims of human trafficking

DA & Ors v Secretary of State for the Home Department [2020] EWHC 3080 (Admin) (13 November 2020) 

In judicial review proceedings brought by an Eritrean and two Sudanese nationals who claimed to be victims of human trafficking, Fordham J held that it was strongly arguable that the Home Office had acted unlawfully in curtailing asylum screening interviews during the COVID-19 pandemic by asking applicants a narrower set of questions than those which were identified in her published policy guidance Asylum Screening and Routing Guidance (version 5, 2 April 2020). Essentially, a strong case was made out that the omission of two key questions which were specifically designed to help identify potential victims of trafficking was against the law. Fordham J therefore ordered the SSHD to ensure that those two questions – Question 3.1 “why have you come to the UK?” and Question 3.3 “please outline your journey to the UK” – were asked in interviews and that those conducting the interviews were aware of the issues and tests surrounding the risk of trafficking. DA, an Eritrean, the first claimant, had his screening interview (in person) in September 2020. On the evidence it lasted 15 minutes. His journey question (question 3.3) answer was recorded as “arrived illegally by boat on 07/09/2020”. He claimed to have said at the interview that his journey had involved transiting through Libya where he had been “imprisoned and sold”. He was detained. His protection claim was certified and he was given a notice of removal. He was only asked questions about his journey after solicitors came on record and sent a letter before claim. 

There was subsequently an NRM referral which had led to a positive reasonable grounds decision. The position in relation to the second and third Sudanese claimants IH and OA was very similar except that they were both interviewed telephonically. IH’s “journey” question was left blank. He said he was “stopped” from telling the interviewer about the journey and he claimed to have been imprisoned and sold in Libya. He was detained, his claim was certified and he was given notice of removal. A letter before claim precipitated a change of approach and he had a referral and positive reasonable grounds decision. The third claimant, whose “journey question” had the same set answer of “illegal arrival”. The claimants argued that they were detained for much longer than they would have been had they been dealt with on their case lawfully. They said that the only reason why they were released and legally protected from removal, under the criteria recognised by the SSHD as applicable to individuals in their situations, was owing to the solicitors’ intervention. They also submitted that the entirety of the screening interview as set out in the SSHD’s published guidance must be followed and sought interim relief which was granted, albeit narrower and more tailored than was sought by the claimants, and the court ordered that asylum screening interviews in all cases must involve question 3.1 and question 3.3 on pages 66 and 67 of the Asylum Screening and Routing Policy Guidance (April 2020) and these questions must always be asked owing to the implications for identifying potential victims of trafficking.

Upper Tribunal says gender terminology respecting the chosen identity of claimants must be used

Mx M (gender identity – HJ (Iran) – (terminology) El Salvador [2020] UKUT 313 (IAC) (22 October 2020) 

In this case involving an appellant who was a national of El Salvador and who considered themselves a homosexual man when living in El Salvador but subsequently identified as non-binary, the UT said that decision makers should where possible apply the guidance in the Equal Treatment Bench Book and use gender terminology which respects the chosen identity of claimants before them. Moreover, UTJ Bruce said that the principles set out in HJ (Iran) & HT (Cameroon) v SSHD [2010] UKSC 31 are concerned with the protection of innate characteristics, as such they are to be applied in gender identity claims. Notably, UTJ Bruce was requested to use the gender pronoun “Mx”. The basis of M’s claim was that they would, for reason of their membership of the LGBTI community, face a real risk of persecution in El Salvador at the hands of the police and the general public that would recur upon return. “M” claimed that owing to their appearance they would be identifiable as/perceived to be gay or transgender and would face violent attack by homo/trans-phobic gangs against which the police would, or could, do nothing. The FTT dismissed M’s first appeal. After a fresh claim M’s case entered the FTT for a second time. The FTT directed itself to the principles in Devaseelan (Second Appeals – ECHR – Extra-territorial effect) Sri Lanka [2002] UKIAT 00702* whereby the judge had to take as its starting point the first FTT’s findings. 

The FTT found that the objective evidence confirms that El Salvador has a problem with violent crime. It said that it was not suggested that the conditions were sufficiently severe to engage article 15(c) of the Qualification Directive 2004/83/EC. Applying the principles in HJ (Iran), it was UTJ Bruce’s judgment that the appeal of Mx M must be allowed. She noted that sexual orientation and gender identity claims were addressed at paragraph 82 of HJ (Iran) where Lord Rodger laid down the legal framework for enquiry to be applied to such claims. UTJ Bruce observed that the relevant principles had not been applied in the present case. HJ (Iran) was neither cited nor applied in the refusal. Nor did it feature in the reasoning of either of the FTT’s decisions. She applied that framework when judging  whether the 2020 decision of the FTT was flawed and had an error of law. The question whether M was a member of a particular social group was examined by UTJ Bruce who noted that Lord Rodger embarked upon his analysis by stressing that when an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay or that he would be treated as gay by potential persecutors in his country of nationality. Overall, the SSHD did not dispute in 2018, that M identified as, and in El Salvador was treated as, a gay man.

Pakistani criminal who renounced British citizenship loses deportation appeal

Zulfiqar (‘Foreign criminal’: British citizen) [2020] UKUT 312 (IAC) (11 September 2020) 

The Upper Tribunal has found that the meaning of “foreign criminal” is not consistent over the Nationality, Immigration and Asylum Act 2002 and the UK Borders Act 2007. This was, among other things, the outcome in the matter of Mr Zulfiqar who was a national of Pakistan. His father was naturalised as a British citizen in 1973 and his mother in 1981. At the time of the index offence, murder, Mr Zulfiqar was a dual national. He was a British national and was born in the UK in 1979 and was also a citizen of Pakistan by descent. He always lived in the UK and prior to the index offence, he had accumulated five previous convictions for eight offences relating to motor vehicles, drink driving, deception and drug possession. The murder was along with two other men. The three men went from London to West Yorkshire where they were arrested and they admitted to the police that all three men were planning to leave the country and travel to Pakistan to avoid arrest and prosecution. A jury convicted Mr Zulfiqar of murder and he had pleaded guilty to violent disorder and assault occasioning actual bodily harm. He was sentenced to a mandatory term of life imprisonment with a minimum term of 15 years. He was also sentenced to concurrent sentences of two years for violent disorder and two years for assault occasioning actual bodily harm. He was arrested for the murder offence in November 2004 and he remained in custody and then immigration detention since then. 

In October 2008, Mr Zulfiqar made and application to be repatriated to Pakistan under the Prisoner Transfer Agreement which does not confer on an applicant an automatic right to transfer and the consent of both States is required before transfer can take place and his application was refused by the Ministry of Justice as he was a dual national holding both British and Pakistani nationality. Pakistan confirmed that a sentence of life imprisonment for murder would be enforced under the Pakistan Penal Code 1860 and, following transfer, he would serve 15 years in prison after which his automatic release would be possible. Yet it was the case that he could return to the UK after his release in Pakistan without sanction or supervision, which was not in the public interest owing to the very serious nature of his offending. The Ministry of Justice was very concerned that as a British citizen Mr Zulfiqar could return to the UK upon his release from a prison in Pakistan and in so doing would not be subject to life licence conditions imposed in accordance with recommendations of the Parole Board. So in August 2011 he applied to renounce his British citizenship and this was approved, the renunciation being satisfied that he also held Pakistani citizenship. He pursued repatriation but was unsuccessful as the Prisoner Transfer Agreement had been suspended by the UK in 2010 and 2019 and by Pakistan in 2015. The facts of this case were quite extraordinary.

Court of Appeal clarifies giving of curtailment notices

R (Alam) v Secretary of State for the Home Department [2020] EWCA Civ 1527 (16 November 2020) 

The Court of Appeal dismissed the appeals of Mr Masud Alam and Mr Masud Rana who had both appealed against the refusal of permission to apply for judicial review of the SSHD’s decisions to curtail their leave to remain. The two appeals raised the question of what is required “to give notice in writing of” a decision curtailing a person’s leave to remain in the UK. Both Mr Alam and Mr Rana contended that they were not given notice of the curtailment decision and that consequently the SSHD’s power to curtail their leave was not validly exercised. The SSHD submitted that, as she had done all that was required of her under the relevant legislation, it was for the two appellants to prove that they were not given notice and they had no real prospect of doing so. Mr Alam and Mr Rana were both Bangladeshi nationals who entered the UK as Tier 4 (General) students. In Mr Alam’s case, the despatch address was “Applicant” and an outgoing recorded delivery number was quoted but the tracking data for the number was not available, due to the passage of time. The GCID notes recorded that the decision was sent to him “at his last known address”. In Mr Rana’s case the decision was sent by recorded delivery. The GCID notes recorded that “issued ICD 3971 to migrant at: Flat 10 Weddell House” and that “Royal Mail track and trace shows signed for 25 March 2015. Signed name Rana”. 

The manner in which the SSHD may curtail leave to remain is set out in section 4(1) of the Immigration Act 1971 whereby the person affected shall be given notice in writing and in Syed (curtailment of leave – notice) [2013] UKUT 144 IAC. UTJ Spencer stated that, while there were regulations which dealt with giving written notice of “immigration decisions” there were no corresponding regulations dealing with notice in writing of a decision to curtailleave to remain and that was the case as section 82 of the Nationality, Immigration and Asylum Act 2002 defined “immigration decision” in order to exclude a decision the effect of which was to leave the applicant with some leave to remain. The notice in writing which curtailed Mr Syed’s leave had been sent twice by recorded delivery to his last known address and it was returned twice and in the absence of applicable regulations deeming service by post to be effective, effective notice had not been given to Mr Syed. In R (Javed) v SSHD [2014] EWHC 4426 (Admin), there was evidence that the notice had been sent by recorded delivery to an address which Mr Javed had provided to the SSHD when making a previous application for extension of leave to remain, but had been signed for by someone else. Neil Garnham QC held that, in the absence of specific regulations, it had not been established that Mr Javed had been given notice of the decision.

Procedural fairness fails skilled migrant in Court of Appeal

R (Topadar) v Secretary of State for the Home Department [2020] EWCA Civ 1525

The uncertain outcome in the Supreme Court in R (Pathan) v SSHD [2020] UKSC 41, discussed here, was swiftly put to the test in the case of Mr Topadar. The Court of Appeal decided that the SSHD’s failure to notify the individual that she had requested further information from his sponsor when deciding the application had not been procedurally unfair. Lewis LJ held that the application of the Supreme Court’s judgment was fact specific and it was not at all intending to lay down an absolute or universal requirement that the SSHD must give the appellant prior notice of an event that might affect the consideration of an application with a view to the applicant being able to take steps to address that matter. On the contrary, as the majority of the Supreme Court found, the requirements of procedural fairness are not monolithic and are flexible and are necessarily influenced by the context and the facts. Males and Floyd LJJ agreed with Lewis LJ that the overall situation in Mr Topadar’s case was different from Mr Pathan’s case and his appeal was dismissed. Mr Topadar entered the UK as a Tier 4 (General) student and he then applied to switch Tier 2 (General). His application was refused. The refusal was upheld by the administrative reviewer. Mr Topadar argued that the application was not finally determined until the administrative review was complete. He said that he was entitled to vary his immigration application at any time until it was finally determined and had done so by making a human rights claim.

Mr Topadar argued that he continued to have leave to remain by virtue of in section 3C  of the Immigration Act 1971 and until the application (as varied to include the human rights claim) was decided. He had applied using form FLR(O) to vary his existing leave and he then applied for leave to remain under Tier 2 (General). He then submitted a letter to the SSHD varying his FLR(O) application to an application seeking further leave to remain as a Tier 2 (General) applicant. Significantly, he required 50 points for attributes and he was required to submit a certificate of sponsorship showing that he had been offered a skilled job which met certain criteria and paid a certain level of salary. Mr Topadar relied on his proposed employment with Orchid Money Transfer Ltd and the certificate of sponsorship provided by Orchid that the job was as an accounts manager with a salary of £21,000 a year. Orchid gave a letter indicating that it wanted to sponsor Mr Topadar conditionally upon him being granted a successful extension of his leave to remain. Orchid confirmed that it had a certificate of sponsorship for the Mr Topadar and gave a further document with a summary of the role and the skills required. But the decision-maker subsequently corresponded with Orchid by email indicating that she had received applications from Mr Topadar and a second person for Tier 2 (General) leave to remain in the UK in order to work for Orchid, the sponsor, as an accounts manager and sales manager respectively.

Court of Appeal refuses relief in “bad” paragraph 322(5) cases

R (Baldha & Anor) v The Secretary of State for the Home Department [2020] EWCA Civ 1494 (10 November 2020) 

In two tax discrepancy matters with some similarities, sitting alone Hickinbottom LJ decided to refuse permission to amend and permission to appeal in each of the cases of  Baldha and Dhamodharan – who were both Indian nationals who applied for ILR in the UK following various periods of leave to enter and remain in the UK. The court refused relief despite the concession that the ILR refusals should be quashed. The claims of the other applicants, each of whom was either the wife or child of the first applicant, were in fact entirely dependent upon his. In each case, the application and administrative review were refused by reference to with paragraph 322(5) of the Immigration Rules on the basis that there were material discrepancies between the earnings declared by the main applicant to the SSHD in an earlier application for leave to remain and to HMRC for the corresponding tax year and the former were significantly higher than the latter. Under paragraph 322(5) leave to remain in the UK should normally be refused where the decision-maker considers it is undesirable to permit the person to remain in the UK on account of his conduct. In refusing the applications, the SSHD considered that, by making different declarations, the first applicant had been guilty of misconduct. The refusals concluded that, in making different declarations of income, the first applicant acted dishonestly and fraudulently, and the decision-maker refused to exercise discretion nevertheless to grant him leave to remain. 

The applicants appeared to have understood dishonesty to have been the basis of the alleged misconduct on which the decision-maker applied paragraph 322(5) and the judicial review grounds were not set out in any distinctive way in the single document which comprised the Statement of Facts, Grounds for Judicial Review and Remedies. The ground of challenge was that the decision-maker’s conclusion that the first applicant fell within paragraph 322(5) because he had been guilty of dishonesty was Wednesbury unreasonable and not properly open to her on the evidence (which was in line with the state of the law as it was understood at that time). In the decisions that the applicants sought to appeal to the Court of Appeal, the UT refused permission to proceed with the judicial review on the basis that, on the evidence, the decision-maker was unarguably entitled to come to the conclusion that the first appellant had been dishonest. In each case, the tribunal decision was made following an oral hearing, but prior to the guidance given in Balajigari v SSHD [2019] EWCA Civ 673 in which it was held that the approach of the SSHD in such cases was legally flawed as being procedurally unfair if she proceeded from a finding of dishonesty to a refusal of leave to remain without first giving the immigration applicant an opportunity to proffer an innocent explanation, by adopting a “minded to refuse” procedure, unless that failure was immaterial.

Inaccessible new Immigration Rules are not “good law”

The Home Secretary, Priti Patel has gleefully announced “After many years of campaigning, I am delighted the Immigration Bill which will end free movement on 31st December has today passed through Parliament. We are delivering on the will of the British people”. Statement of changes to the Immigration Rules: HC 813 (22 October 2020) is a mammoth document which brings a blizzard of hard changes to the UK’s rapidly changing immigration environment. HC 813 amends the Immigration Rules to deliver the new post-Brexit Points-Based System (PBS). The Home Office says the amendments represent a further step in simplifying the rules by the implementation of the recommendations of the Law Commission so as to ensure greater clarity is provided to migrants, employers and other users of the rules. The Court of Appeal recently excoriated the “labyrinthine structure” and “idiosyncratic drafting” of the the Immigration Rules in Hoque & Ors v SSHD [2020] EWCA Civ 1357 (discussed here) which was handed down on the same day HC 813 was published, but the court’s concerns seem to have fallen on deaf ears. In its Thirty Third Report of Session 2019-21 – published 5 November 2020 – HL Paper 161, the Secondary Legislation Scrutiny Committee looked at HC 813 and took the view that “combining so many policy areas in one very large instrument is wholly unjustified” as it ignores the government’s definition of “good law” as it makes the law inaccessible to the citizen. Indeed, the Scrutiny Committee was unimpressed by the changes and it said that the “House may wish to ask the government an undertaking that this portmanteau approach will not be repeated.”

HC 813 is 507 pages. It makes changes to the rules for visitors who will be able to study up to six months under the standard visit route and all such study needs to be undertaken at an accredited institution, except recreational courses undertaken for leisure that last no longer than 30 days. The changes will allow drivers on international routes to collect as well as deliver goods and passengers in and out of the UK and will remove the requirement for volunteering to be incidental to the main reason for the visit. In the Student and Child Student rules, the levels of maintenance are being amended in line with the current home student maintenance loans. A new Short-term Study route is being introduced for students who wish to come to the UK to study English language courses lasting between 6 and 11 months. It will replace the current route. The study must be at an accredited institution. Students who wish to come to the UK to study for 6 months or less may now do so under the visitor route. The maintenance levels are being amended in the Student and Child Student rules – in line with the current home student maintenance loans. Students who wish to come to the UK to study for 6 months or less may now do so under the Visitor route. The wide-ranging changes to the Immigration Rules are examined below.

Jamaican father of four British children wins in Court of Appeal

KB (Jamaica) v Secretary of State for the Home Department [2020] EWCA Civ 1385 (28 October 2020) 

The Court of Appeal has held that FTTJ Gurung-Thapa had not erred in law by allowing a foreign criminal’s deportation appeal when she determined that the effect of deportation on his children would be unduly harsh. Whereas when considering undue harshness, the FTTJ had followed the approach in MM (Uganda) v SSHD [2016] EWCA Civ 617 which was later shown to be erroneous in KO (Nigeria) v SSHD [2018] UKSC 53, discussed here, her reasoning demonstrated that she clearly understood the elevated threshold that had to be met for undue harshness and the SSHD had conceded that her conclusions were capable of meeting that threshold when applying the correct test. In essence, McCombe, Asplin and Popplewell LJJ restored the order of the FTTJ and allowed the appeal and found that the UT was wrong to determine that the effect of KB’s deportation on his children would not be unduly harsh, and that there were no very compelling circumstances that outweighed the public interest in his deportation. UTJ Norton-Taylor found in the SSHD’s favour and remarked that “this case has been a very difficult case to determine”. KB, a 38-year-old citizen of Jamaica, had four children from a relationship with their mother going back to 2003. They were all born and brought up in the UK and had British citizenship. There were two boys, aged 15 and 14, and two girls, aged 8 and 6 (at the time of the FTT decision they were aged 12, 11, 5 and 3).

KB also had a child, who was irrelevant to his appeal, by another woman with whom he had no subsisting relationship. Prior to UTJ Norton-Taylor’s decision, UTJ Finch allowed the SSHD’s appeal on the grounds of error of law and ordered that there be a fresh hearing of the appeal against the deportation order, to be heard in the UT and KB appealed with leave against the UT error of law decision – permission to appeal was refused in relation to the remade decision. In his appeal, KB argued that the error of law decision should be set aside because the FTTJ did not make any error of law. Notably, KB was granted temporary admission in the UK when he was aged 20 and he was given leave to remain on human rights grounds, based on his family life which was renewed. He was convicted of a total of nine offences comprising possession of cannabis and various driving offences. He pleaded guilty to those offences and received non-custodial sentences. But the convictions which triggered deportation were for the offences of assault occasioning actual bodily harm and doing an act intended to pervert the course of justice, to which he pleaded guilty and he received custodial sentences of 12 and 6 months respectively, which had run consecutively. Allowing his appeal, McCombe, Asplin and Popplewell LJJ reiterated the approach in HA (Iraq) v SSHD [2020] EWCA Civ 1176, discussed here and AA (Nigeria) v SSHD [2020] EWCA Civ 1296, discussed here and these decisions steered the court in disposing of proceedings.

Supreme Court: Failure to promptly notify migrant of revocation of sponsor’s licence breached duty of procedural fairness

R (Pathan) v Secretary of State for the Home Department [2020] UKSC 41 (23 October 2020) 

This case turned on the issue whether notice to an applicant of revocation of a sponsor’s licence in respect of his Tier 2 (General) Migrant application was required as a matter of procedural fairness? The Supreme Court unanimously held that the SSHD breached her procedural duty to act fairly by failing promptly to notify Mr Pathan of the revocation of his sponsor’s licence. The majority (Lady Black and Lords Kerr and Briggs) held that the SSHD was not under a further duty to provide a period of time following notification to enable Mr Pathan to react to the revocation of his sponsor’s licence. Lord Wilson and Lady Arden thought that the law did impose this further duty on the SSHD. Lord Briggs preferred to dismiss the appeal despite the SSHD’s breach of the duty to notify promptly. Notably, while Mr Pathan’s application was in the process of being considered, the Home Office revoked his employer Submania Ltd’s sponsor licence. Consequently, he was not able to satisfy the requirements of paragraph 245HD(f) of the Immigration Rules – i.e. a valid Certificate of Sponsorship – and so his application for leave to remain was refused. The principal issue was whether the decision-maker’s failure to communicate the revocation to Mr Pathan was reviewable in public law on the grounds that it amounted to a violation of the rules of natural justice – procedural unfairness – which entail an opportunity to be heard on any material information which the decision-maker acquires and which was unknown to the applicant.

Mr Pathan sought an administrative review of refusal of his Tier 2 (General) application. However, the decision was maintained and he then sought judicial review of that decision in the Upper Tribunal. UTJ Allen decided against him. Subsequently, the Court of Appeal further dismissed his appeal. The Court of Appeal judged that Mr Pathan’s appeal raised a question of substantive fairness which was not a free-standing ground for judicial review, Mr Pathan would have to show irrationality. He could not succeed on that ground because the rules for the PBS had been drafted for rational policy reasons. Mr Pathan his wife and son were Indian nationals. Mr Pathan entered the UK as a Tier 4 (General), his leave was extended. Later he was granted further leave to remain as Submania’s employee (business development manager) under Tier 2 (General) and when that leave expired he made an in-time application for leave to remain supported by a Certificate of Sponsorship provided by Submania and section 3C of the Immigration Act 1971 operated to extend his expiring leave pending his further application and any administrative review or appeal in relation to the decision on that application. The SSHD revoked Submania’s sponsorship licence while his application was pending. When he sought administrative review of the refusal, Mr Pathan sought a 60-day period to be able to provide a fresh Certificate of Sponsorship and repeated this request when he issued judicial review proceedings.

Court of Appeal rebukes poor drafting of Immigration Rules

Hoque & Ors v Secretary of State for the Home Department [2020] EWCA Civ 1357 (22 October 2020)

The Court of Appeal has deeply criticised the “labyrinthine structure” and “idiosyncratic drafting” of the the Immigration Rules and “the confused language and/or structure of particular provisions.” These unflattering remarks were made by the court in the cases of Messrs Hoque, Kabir and Mubarak – all Bangladeshis – and Mr Arif – a Pakistani – who all arrived in the UK more than 10 years ago with leave to enter as students and received further grants of leave to remain since then. They claimed their long residence entitled them to indefinite leave to remain (ILR). The SSHD did not accept that they were entitled to ILR essentially because at the time of their applications their leave to remain had expired and they were overstayers. Hoque, Kabir and Arif’s appeals concerned the issue whether they were entitled to ILR under the long residence provisions of the Immigration Rules, which turned on the correct interpretation of paragraph 276B. Alternatively, they claimed that the refusal of ILR breached their rights under article 8 of the ECHR and Mubarak only relied on article 8. Significantly, their last period of limited leave had expired before they had accumulated 10 years’ continuous lawful residence. They did not make any further application before the expiry of that leave and did not benefit from the operation of the provision in section 3C  of the Immigration Act 1971 and thus became overstayers who remained in the UK unlawfully.  

They did make further applications for leave within the 14-day time limit (Arif and Kabir) or 28-day time limit (Hoque) from the expiry of their earlier leave but those applications were subsequently varied so as to become applications for ILR and were pending at the tenth anniversary of their arrival in the UK but were subsequently refused. The court said that these were cases of open-ended overstaying. All the applications were refused by the SSHD. In each case the decision-maker refused ILR on the basis that it followed from the facts that as from the expiry of the last period of limited leave to remain their residence had not been lawful and thus they could not satisfy the requirements of paragraph 276B(i)(a) which stipulates that an ILR applicant on the grounds of long residence needs to have “had at least 10 years continuous lawful residence in the United Kingdom”. The appeals in these cases primarily focussed on the effect paragraph 276B(v). Significantly, that sub-paragraph consisted of three elements: [A] the applicant must not be in the UK in breach of immigration laws, [B] except that where paragraph 39E of the rules applied any current period of overstaying would be disregarded, and [C] any previous period of overstaying between periods of leave would also be disregarded where – (a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave, or (b) the further application was made on or after 24 November 2016 and paragraph 39E applied.

Removal policy preventing access to justice declared unlawful

R (FB (Afghanistan) & Anor) v Secretary of State for the Home Department [2020] EWCA Civ 1338 (21 October 2020)

In a significant judgment, Lord Burnett LCJ and Hickinbottom and Coulson LJJ held that the SSHD’s removal notice window policy found in her guidance document Judicial Review and Injunctions (Version 17.0) (the JRI Policy) was unlawful insofar as it gave rise to a real risk of preventing access to justice for irregular migrants. The Court of Appeal allowed the appeal on the basis that the serious risk of removal before the affected person was able to access the court to challenge the decision inherent in the policy amounted to an unacceptable risk of a breach of the right to access to justice at common law which rendered the policy ultra vires. As to relief, the court made a declaration that the policy was unlawful insofar as it gave rise to a real risk of preventing access to justice. Earlier on in R (FB and another) v SSHD (removal window policy) [2018] UKUT 428 (IAC), the Upper Tribunal (Lane J) held that while deficient in a number of respects, the policy was not incompatible with the right to access to justice and the SSHD’s decision to remove FB under the policy was not unlawful. In R (Medical Justice) v SSHD [2019] EWHC 2391 (Admin), Freedman J held that the policy, as amended following the determination in FB, was not unlawful. In these proceedings, the appellants submitted that both the tribunal and court were wrong to hold that the policy does not unlawfully restrict access to justice.

The court prefaced its judgment with the point that the Immigration Act 2014 included provisions designed to encourage those who require leave to enter or remain but do not have it (“irregular migrants”) to regularise their immigration position by either making a claim for leave or leaving the UK. For example Part 3 of the 2014 Act generally restricted the access of irregular migrants to residential tenancies, employment, NHS facilities, and obtaining bank accounts, driving licences etc (the so-called “hostile environment” later “compliant environment” provisions). Section 1 of the 2014 Act needs to be seen in that context and it amended section 10 of the Immigration and Asylum Act 1999 to replace diverse provisions with a single power of removal vested in the SSHD. Medical Justice submitted (i) first, that the serious risk of removal before the affected individual is able to access the court to challenge the decision that is inherent in the JRI Policy amounts to an unacceptable risk of a breach of the common law right of access to justice which renders the policy ultra vires, and (ii) second, it is also irrational given that it is the express aim of the policy to maintain the right to access to justice by giving every person served with a notice of removal window sufficient time to be able to raise a claim and for such a claim to be properly considered.

Pakistan and Child Abduction: Lahore High Court holds ‘Hague Convention is not an extradition treaty’

Pakistan is notorious for child abduction. In the case of Sumayyah Moses v SHO and Others (Writ Petition No. 74048 of 2019) PLD 2020 Lahore 716, the Lahore High Court explained that the Hague Convention on the Civil Aspects of International Child Abduction 1980 is not an extradition treaty, as it focuses on procedure and jurisdiction rather than on merits of any underlying custody issue. Tariq Saleem Sheikh J examined articles 3 and 5 of the Hague Convention and the distinction in civil and criminal law in relation to abduction. The court also addressed issues related to Article 199 of the Constitution of Pakistan 1973 and section 491 (power to issue directions of the nature of a habeas corpus) of the Code of Criminal Procedure. Tariq Saleem Sheikh J examined numerous English cases. He said that after carefully studying the principles set out by the Court of Appeal in Re M (Abduction: Non-Convention Country) [1995] 1 FLR 89, he arrived at the clear view that they were consistent with Pakistan’s jurisprudence and thus adopted them. The court dismissed the petition and held that the petitioner mother should approach the Guardian Court which would decide the matter. Tariq Saleem Sheikh J held that the High Court was competent to entertain a habeas corpus petition under Article 199 of the Constitution or section 491 of the Code and direct that a person in custody within its territorial jurisdiction be produced before it and satisfy itself that he was not being held unlawfully.  

That was all the more so where the petitioner was a mother who had a bona fide belief that the children were removed from her custody by use of chicanery and subsequently forced to stay in Pakistan against her will and she could not be precluded from approaching the High Court. Tariq Saleem Sheikh J further added that proceedings in the habeas corpus jurisdiction are summary in nature and the High Court is disabled from conducting a detailed inquiry which was necessary. The petitioner mother had recourse to the Guardian Court which which was the proper forum. The court pointed out that under section 5 of the Pakistan Citizenship Act 1951 all children wherever born of a Pakistani father are deemed to be citizens of Pakistan by descent. This was the result of Muhammad Younas v Shahzad Qamar and Others PLD 1981 Lahore 280 where it was held that the respondents were born in the UK, they were citizens of Pakistan by descent in terms of section 5 and the Family Court at Sialkot had jurisdiction to decide the matter. In Rochomal Daryanomal v The Province of West Pakistan PLD 1960 Karachi 150, the court had held that the child’s nationality is determined by that of his father and the onus to prove rests on the person alleging the contrary. In Abu Saeed A Islahi v Mrs Talat Mir and Others 1994 MLD 1370 it was held that in law children are deemed to hold their father’s citizenship and the question of them renouncing of citizenship cannot arise till they attain the age of majority.

Lahore High Court ruling on Pakistan and Child Abduction

In Abid Hussain (Petitioner) v Rukhsana Munir and others (Respondents) 2020 YLR 1533 Lahore, Miss Aalia Neelum J directed Pakistan’s police authorities to produce two Dutch girls of Pakistani origin, who had been abducted by their own mother and then taken to Pakistan in a deliberate breach of the set custody plan with the children’s father. Aalia Neelum J also gave the father the custody of the girls. This case was decided prior to Pakistan’s accession to the Hague Convention on the Civil Aspects of International Child Abduction 1980. This case has been reported as 2020 YLR 1533 but it was decided long ago by the the Lahore High Court on 22 July 2015 as Criminal Miscellaneous No. 998-H of 2015. Mr Abid Hussain, the petitioning father had pursued a petition under section 491 (Power to issue directions of the nature of a Habeas Corpus) of the Code of Criminal Procedure and prayed for custody of his two daughters, namely Fatima Abid Hussain, aged 13 years, and Saleema Abid Hussain, aged 11 years. He alleged that were in the illegal custody of their mother because according to an agreed parenting plan both parents would jointly exercise  parental authority over their children and the parents would consult each other when they plan any relocation. Notably by way of a divorce decree dated 1 August 2013 passed by the family court in Rotterdam the custody of Khadija was granted to the father and the custody of Fatima and Saleema was granted to the mother. 

Aalia Neelum J said that the divorce decree and parenting plan were legal valid and binding on the parties. However, on or before 16 December 2013, the mother secretly and without consent and/or knowledge of father, abducted/kidnapped the girls and took them to Pakistan. The father had approached the Dutch Central Authority (DCA) on 6 and 8 January, 2014 seeking legal help in relation to the abduction of Fatima and Saleema. He also filed a complaint with the police regarding the children’s abduction. Later, his brother Abdul Ghaffar informed the officials of the Embassy of Netherlands in Islamabad about the children’s whereabouts. The mother was married with Majid Hussain (the real brother of the petitioner) on 28 December 2013. The petitioner also filed another complaint with the police in Rotterdam and Interpol published a yellow notice on the request of National Central Bureau of the Netherlands. The Rotterdam district court later varied the family court’s order and gave parental authority over Fatima and Saleema solely to the petitioner. The petitioner arrived in Lahore and filed his habeas corpus petition, praying that the police be directed to locate, recover and produce the abducted children and that they be handed over to him against the clear facts of his case. The mother resisted the petition and argued that it was filed after approximately two years and that fact alone disentitled the petitioner from the relief sought owing to laches.