Court of Appeal: Article 8 assessments are fact intensive

GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630 (04 October 2019)

GM arrived in the UK from Sri Lanka as a student in 2010 and in August 2012 she married another Sri Lankan national. Their first child was born on 31 October 2012. Her student visa expired in May 2013 and her husband was granted leave to remain until 2018 having lived continuously in the UK since 1998 without returning to Sri Lanka. In 2014, GM claimed asylum and made a human rights claim. The decision-maker rejected both claims on the basis that there were no obstacles to her returning to Sri Lanka and living there with her family. The couple then had another child and in August 2015 the FTT dismissed the appeal on all grounds. The FTT decided that GM’s case needed to be considered under article 8 of the ECHR outside the Immigration Rules and that the public interest considerations under section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended) applied but it decided that her removal from the UK was not a violation of article 8. The UT agreed with the FTT’s decision. Later in 2018, the GM’s husband and children were granted ILR. Since 2015, the Supreme Court had clarified the test to be applied under article 8 in relation to the rules and section 117B in the cases of Agyarko [2017] UKSC 11 (discussed here), Ali [2016] UKSC 60 (discussed here), KO (Nigeria) [2018] UKSC 53 (discussed here) and Rhuppiah [2018] UKSC 58 (discussed here). 

GM submitted that the FTT had improperly applied the proportionality test in dismissing her human rights claim. The Court of Appeal allowed the appeal and addressed general points relating to the proportionality test, the little weight provisions in sections 117B(4) and (5), the interests of GM’s children and the relevance of insurmountable obstacles. Holding that the judgments of the UT and FTT needed to be set aside owing to errors of law, failure to consider relevant facts and GM’s family holding ILR, Green LJ also directed the SSHD pursuant to section 87 of the 2002 Act to reconsider GM’s human rights claim that it would be a breach of article 8 for her to be removed from the UK. His Lordship also said that “there is a deeply disjointed feel to this case” and the court was “at a loss to understand why” the Home Office had not “pragmatically agreed to revisit” GM’s position after her husband and children had been granted ILR. The court judged that without the benefit of the Supreme Court’s jurisprudence the FTT had erred in approaching article 8 family life rights. Green LJ judged that “article 8 assessments are fact intensive” and so using comparators is of limited utility.

The situation in Sudan remains volatile

AAR & AA (Non-Arab Darfuris – return) Sudan [2019] UKUT 282 (IAC) (7 August 2019)

These appeals concerned the question whether the guidance given in AA (non-Arab Darfuris – relocation) Sudan CG [2009] UKAIT 00056 and MM (Darfuris) Sudan CG [2015] UKUT 10 (IAC) needed to be revised in light of the current country evidence including the consideration of internal relocation of non-Arab Darfuris to Khartoum. Upper Tribunal Judges Pitt and Blum found that the situation in Sudan remains volatile after civil protests started in late 2018 and the future is unpredictable. The Upper Tribunal judged there is insufficient evidence currently available to demonstrate that the guidance given in AA (non-Arab Darfuris) and MM (Darfuris) Sudan requires revision and thus those cases should still be followed. In the present appeals, the first appellant AAR belonged to the Berti tribe and is a Darfuri and a citizen of Sudan. In August 2017 his asylum claim was refused. The decision-maker accepted his claim to be a member of the Berti tribe and a Darfuri but rejected that he was ever arrested and detained or that he was a fugitive from prosecution in Sudan. It was not accepted that he would be at risk on return. His appeal was dismissed and his account was not found to be credible. The FTT found that other than his Darfuri ethnicity AAR had not been involved in politics and did not have any particular profile of any kind. Also a citizen of Sudan and a Darfuri, the second appellant AA belonged to the Zaghawa tribe. 

He arrived illegally in the UK and immediately claimed asylum, claiming that he was detained for being a Darfuri and thereafter held for five months at an army camp near where he claims he was forced to clean and cook for soldiers. He was refused asylum in 2017 as the decision-maker rejected his claim that he had encountered problems with the Sudanese authorities. His appeal was dismissed and the FTT found that he would not be persecuted on return and the Upper Tribunal upheld the finding that there had been no past persecution but found that the FFT had taken the wrong approach to the country guidance cases and whether it would be unduly harsh for AA to relocate internally within Sudan. His case was subsequently linked to AAR’s in order to consider whether the existing guidance required revision in light of the current country evidence. The Home Office had conducted a fact-finding mission to Sudan in August 2018 in order to obtain information about the conditions of Darfuris in Sudan, a focussing on Khartoum, and the overall treatment of returnees.

HC 2631 and the EU Settlement Scheme

Statement of Changes to the Immigration Rules HC 2631, presented to Parliament on 9 September 2019, makes a raft of changes and it makes revised provision for access to the EU Settlement Scheme (or the “EUSS”) until 29 March 2022 whereby the scheme will be accessible in both “deal” and “no-deal” scenarios, for existing close family members (where the relationship existed on exit day) of UK nationals returning with them from the EEA or Switzerland having lived there together while the UK national had exercised their free movement rights. Notably, the European Union (Withdrawal) (No.2) Act 2019 which requires the government to ask for an extension to article 50 if there is no deal by 19 October 2019. Notably, close family members are children and grandchildren (including those born overseas after exit day), spouses, civil partners, durable partners, and parents and grandparents, The changes allow access to the scheme until 31 December 2020, in both “deal” and “no-deal” scenarios, for future spouses, civil partners and durable partners (where the relationship was established after exit), and other dependent relatives, of UK nationals returning with them from the EEA or Switzerland having lived there together while the UK national exercised their free movement rights. HC 2631 clarifies how the scheme reflects the provisions of the Immigration (European Economic Area) Regulations 2016 covering this route under EU law and makes consequential changes following the inclusion of extended family members in that route under the regulations from 7 March 2019. 

The changes also clarify the definitions relating to relevant dual nationals, that is EEA citizens who were exercising Treaty rights in the UK and have naturalised as a British citizen, whose family members can apply under the scheme and this includes allowing their children aged under 21 to apply for settled status under the scheme (EUSS) on the basis that their parent would qualify for it if they could apply, which, as a British citizen, they cannot. Offshore working, by North Sea oil workers for example, will count as permitted absence from the UK with the effect that such work can be counted as UK residence towards an EUSS application. The changes confirm that a family member pegging their status on an EEA citizen who has “ceased activity” must have been resident in the UK as their family member at that point, consistent with Directive (2004/38/EC). Clarity is also provided to the requirements for evidence of family relationship. An EEA citizen applicant (like a non-EEA citizen applicant) without documented permanent residence status must provide relevant evidence about their EEA citizen family member, where they are relying on their relationship to that person (rather than on their own residence as an EEA citizen, e.g. where they became an EEA citizen during their residence in the UK).

Brexit and the Euro TLR Scheme

After being installed as Home Secretary, Priti Patel, pounced on the opportunity to declare that free movement would end with a no-deal Brexit on 31 October 2019. She then made a u-turn. But her misguided comments caused a surge in applications under the EU Settlement Scheme and she subsequently doubled down on her position in her party’s conference by suggesting that she owed a “particular responsibility” to “taking back control”, adding that “it is to end the free movement of people once and for all.” Patel then bragged about initiating an Australian style points-based immigration system in the “best interests” of the UK and she sought to resurrect Theresa May’s failed policies of having a system “that attracts and welcomes the brightest and the best … that supports brilliant scientists, the finest academics and leading people in their fields.” The new No deal immigration arrangements for EU citizens arriving after Brexit policy paper published by the Home Office (5 September 2019) states that the UK will leave the EU on 31 October 2019 (but all this is subject to the European Union (Withdrawal) (No.2) Act 2019 which requires the government to ask for an extension to article 50 if there is no deal by 19 October 2019). The emergent position is that EU citizens who come to the UK after Brexit will have to obtain a 36-month temporary immigration status called European Temporary Leave to Remain (Euro TLR). 

Patel’s initial announcements came immediately under attack and the shadow home secretary Diane Abbot said that the government’s immigration policy was riddled with “complete falsehoods” and accused the Conservatives of being “untrustworthy and incompetent”. The policy paper, on the other hand, stresses that “the new Euro TLR Scheme will be simple and free” and applications under it will be made after arrival in the UK. EU citizens travelling to the UK after Brexit will not need to make any special arrangements in advance. However, “some visible changes at the UK border” will occur and there will be “tougher rules for criminals but otherwise EU citizens will be able to cross the UK border as now.” Indeed, visible changes at the border have already occurred and I did not see any EU signs alongside the UK passports signs to the eGates when I returned to the UK from Karachi a few days ago, the EU signs and the stars of the EU flag are no longer there, they have been removed from the airport. The government is saying that it wants those EU citizens who are resident in the UK before 31 October 2019 and their family members to stay in the UK and they should apply under the EU Settlement Scheme (also known as the EUSS).

Critical Perspectives on the EU Settlement Scheme

In London you constantly hear a foreign language in the background and foreign workers are in action everywhere. Most of all European people do jobs local people have little appetite for. Boris Johnson promised and guaranteed EU citizens “absolute certainty for the right to live and remain”. The UK economy depends on foreign workers but ironically freedom of movement became the straw that broke the camel’s back and led to 17.4 million people (52%) voting for Brexit by a very slim majority. For more than three years, the UK government deliberately neglected the issue of citizens’ rights during Brexit negotiations and as the specialist disability Portuguese care worker Ana Rocha explained on live television, people who have contributed to the UK for decades, for example, by nursing the elderly and looking after children, are now quickly packing their bags because they feel unwelcome in a country which they call their home. The “Portuguese Brexit woman” said that after being denied settled status she felt that she had “no voice”, adding that for those in her predicament “the Settlement Scheme is not working.” Despite its hostile environment policies, the government presented the EU Settlement Scheme as a user friendly system similar to online shopping. Experimental statistics show that more than half a million applications (520,600) were received in September 2019. The irony is that EU citizens must apply to stay in their home but they were promised that they would only have to register. 

The total number of applications received up to 30 September 2019 was more than 1.8 million (1,860,200). Overall 373,600 applications concluded in September 2019 and 57% were granted settled status and 43% were granted pre-settled status. As of 30 September 2019, 1.5 million (1,524,500) applications were decided in total of which 61% were granted settled status, 38% were granted pre-settled status. Comparative analysis with 31 July 2019 shows that grants of settled status are down by 6% from 64% to 57% and at least two million of people are yet to apply. In total 1,700,000 applications were received from EU citizens in England, 92,700 from Scotland, 29,300 from Wales and 28,700 from Northern Ireland. However not long ago Jacob Rees Mogg (the stiff, slouching leader of the house) and Michael Gove (the self-confessed cocaine abuser, now in-charge of no-deal planning) had wilfully misrepresented the number of grants under the scheme by inflating the number of persons granted settled status to one million, deliberately and conveniently ignoring the inferior pre-settled status altogether. Now the government is claiming that it is offering “plenty of support and information on offer to help people apply and get the status they need” which appears to be incorrect.

Regulations give effect to Kafala judgment in SM (Algeria)

The Immigration (European Economic Area) (Amendment) Regulations 2019, which came into force on 15 August 2019, amend the Immigration (European Economic Area) Regulations 2016  (“the 2016 Regulations”) and give effect to the judgment of the Court of Justice of the European Union (“CJEU”) in the case of SM (Algeria) v ECO, UK Visa Section (C-129/18, EU:C:2019:248, discussed here). The new regulations also address issues concerning the practical application of the 2016 Regulations. In SM (Algeria) the CJEU found 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 child in question, SM, or “Susana” as Lady Hale named her when making the reference in SM (Algeria) [2018] UKSC 9 (discussed here), was left in a period of lengthy legal limbo because her case had been in litigation since 2012. The CJEU approved of AG Campos Sánchez-Bordona’s views and endorsed his analysis of the ECtHR cases of Harroudj v France and Chbihi Loudoudi v Belgium.

Susana’s case also represented a major development in relation to the principles of the Charter of Fundamental Rights of the European Union and the CJEU held that the Charter also further obliged the UK to grant Susana entry and residence if the assessment of her best interests is positive (which it indeed was since she was abandoned at birth and she has no other family except her guardians). First of all, regulation 2(2) amends regulation 2 of the 2016 Regulations to bring a decision to grant an EEA family permit within the definition of “EEA decision”. It also clarifies that applications rejected as invalid will not fall within the definition. Moreover, regulation 2(3) amends regulation 5 of the 2016 Regulations to make it clear that workers and self-employed persons who have ceased activity due a permanent incapacity to work, or who are now active abroad, must have lived in the UK continuously immediately prior to, respectively, becoming permanently incapacitated or taking up work or self-employment abroad.

Systematic failure: Immigration bail hearings 2019, the view from Taylor House

The UK is the only country in Europe without a time limit on detention for immigration purposes, despite pressure from numerous campaigns. The burden is therefore on the applicant to show why he should be allowed out on bail while his immigration case is under consideration and not on the Home Office to try and process his case fast. A group of law students observed and collected data on Immigration Bail Hearings at Taylor House Tribunal Hearing Centre in Clerkenwell, London. Almost every Monday over a period of six months (October 2018 – April 2019), they would attend in pairs and observe the bail list for that day. In total they observed 55 hearings spread over 24 days and produced a report entitled Systematic failure: Immigration Bail Hearings 2019, the view from Taylor House. The key themes highlighted by the pilot study were (i) the variety of judicial attitudes – some judges seemed pro-detention and some seemed pro-granting bail, (ii) the attitudes of the Home Office presenting officers, (iii) Interpretation issues – many hearings were withdrawn because an interpreter was not present or proceeded with difficulty, (iv) the impact of videolink, (v) medical issues, and (vi) multiple issues surrounding accommodation – they observed several hearings where bail would have been granted but for lack of an address.

The report begins by noting that “the greatest punishment issued by courts in this country is deprivation of liberty, even for the most serious crimes. Yet this is the fate of those who have fallen foul of the immigration system while waiting for the Home Office to make a decision on their case. The aim of immigration detention is to ensure that a person doesn’t abscond before the Home Office can remove him from the country. But, in order to get out on bail, he needs to show not only that he is not likely to abscond, but also that he is not a threat to public security.” It continues “for example, if he has served a prison sentence for a violent offence, he may be less likely to be let out on bail. Yet if the same person had been a British citizen, he would have been released from prison and participating in society under the supervision of a Probation Officer. Moreover, those who have been convicted of minor offences are often deemed a threat to public security, justifying their continued detention. If an applicant can show that he is not likely to abscond and is not a threat to the public, he must also show that the Home Office will not be likely to make any efforts to remove him in the near future.”