Illegitimacy and Denial of Nationality at Birth: No Retrospective Application of Human Rights Act

R (Johnson) v The Secretary of State for the Home Department [2016] EWCA Civ 22 (26 January 2016)

In yet another a win for the home office, the Court of Appeal (Arden, Laws and Lindblom LJJ) found no violation of article 14 read with article 8 of the European Convention on Human Rights in relation to denial of British nationality at birth to Eric Erron Johnson, a convicted offender and Jamaican national subject to a deportation order who was the illegitimate child of a British father and a Jamaican mother. Delivering the judgment of the court, Arden LJ held that Dingemans J had erred in his conclusion as regards a continuing violation having occurred from Johnson’s birth in Jamaica on 18 March 1985 and that proceedings challenging the deportation order could be brought under the Human Rights Act 1998 – which did not apply retrospectively. The ruling is also interesting because of Johnson’s reliance on the recent decision in Keyu [2015] UKSC 69 and the court’s consideration of section 65 of the Immigration Act 2014, albeit neither had an effect on the outcome of the appeal. As is customary with her judgments, Arden LJ made it a point to summarise the issues and her overall conclusion at the outset.

Her Ladyship explained that the present case turned on the effect of discriminatory denial of British nationality before the commencement of the HRA on a deportation order against a foreign offender and she decided that even if Johnson’s Convention rights had been infringed, any violation was outside the HRA’s perimeter because it occurred before the Act entered into force. “If it could be considered to be a continuing violation, then it would not matter that the original violation had occurred before the HRA came into force, but in my judgment it was not a continuing violation for the purposes of Strasbourg jurisprudence,” is how Arden LJ put it as she set aside Dingemans J’s decision and dismissed Johnson’s cross-appeal. No order was made remitting the matter to the First-tier Tribunal as no historic injustice had taken place Continue reading

Posted in Article 14, Article 2, Article 8, Automatic Deportation, Children, Citizenship and Nationality, Court of Appeal, Human Rights Act, Illegitimacy, Immigration Act 2014, Neuberger PSC | Tagged , , , , , | 1 Comment

Case Preview: Belhaj v Straw

Belhaj and another (Respondents) v Straw and others (Appellants) UKSC 2014/0264 concerns allegations by a former opponent of Colonel Gaddafi and his wife that they were abducted and unlawfully taken to Libya in February 2004 and were both allegedly detained and tortured in that country. Abdul-Hakim Belhaj, the first respondent, was detained until 23 March 2010 and alleges he was tortured and was sentenced to death following a flagrantly unfair trial. Fatima Boudchar, the second respondent, was released on 21 June 2004. The appellants – namely Jack Straw (ex-foreign secretary), Sir Mark Allen CMG (ex-director of Counter-Terrorism of the Secret Intelligence Service), the Secret Intelligence Service, the Security Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office – have denied liability in their defences and the issues in this appeal have arisen by way of preliminary issues of law. There is an abundance of intervention in these proceedings and the UN Special Rapporteur on Torture, the UN Chair-Rapporteur on Arbitrary Detention, the International Commission of Jurists, Amnesty International, Redress and Justice are apparently all involved.

Lord Neuberger, Lady Hale, Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hughes heard this case – on appeal from [2014] EWCA Civ 1394 (Sir John Dyson MR, Lloyd Jones and Sharp LJJ) – in the second week of November 2015 together with the MoD and FCO’s appeal in the Rahmatullah case. Belhaj and Boudchar appealed to the Court of Appeal against preliminary rulings made by Simon J, as he then was, [2013] EWHC 4111 (QB) that the act of state doctrine operated as a bar to their claims against the foreign secretary and government officials and departments. Belhaj, who opposed the former Libyan strongman Muammar Gaddafi in the 1990s, had fled Libya and moved to China in 2003. In 2004, Belhaj and Boudchar had hoped to claim asylum by taking a commercial flight from Beijing to London. Continue reading

Posted in Al-Sweady, Article 6, Cases, Detention, Disclosure, ECHR, Human Rights Act, Libya, Public Interest | Tagged , , , , , | Leave a comment

Case Preview: Rahmatullah v MoD and FCO

Nabbed by British forces in Iraq – where he was seeking work – in 2004 only to be handed over to the Americans and rendered to Bagram Airbase, Yunus Rahmatullah, a Pakistani national who grew up in the Gulf, was detained for a decade without charge until his release on 17 June 2014. He now lives in Quetta, once an idyllic colonial town that gained strategic importance during the Afghan war and thereafter quickly morphed into a hotbed of Islamic extremism. He is claiming damages in tort and under the Human Rights Act 1998 from the Ministry of Defence (MoD) and the Foreign and Commonwealth Office (FCO). In Rahmatullah (Respondent) v Ministry of Defence and another (Appellants) UKSC 2015/0002, the issue for Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption is whether Rahmatullah’s claims in tort against the appellants in respect of alleged acts or omissions of US personnel while he was in US custody in Iraq and/or Afghanistan are barred by operation of either the foreign act of state doctrine or doctrine of state immunity. The justices heard the appeal in the second week of November 2015.

The MoD and the FCO appealed Leggatt J’s judgment, reported at [2014] EWHC 3846 (QB), and a raft of related litigation has entered the apex court. Together with Belhaj v Straw, the Supreme Court’s justices wrestled with the hard issues thrown up by this case for almost four days (9-12 November 2015). “Yunus Rahmatullah has been through 10 years of unimaginable horror. Now that he has finally been able to speak freely to his lawyers, there is no longer any doubt that the British government bears responsibility for his torture and illegal rendition to Bagram,” explains Kat Craig, legal director at Reprieve. Conversely, US authorities considered Rahmatullah to be a member of the al-Qaida affiliate Lashkar-e-Taiba and contended he travelled from Continue reading

Posted in Article 6, ECHR, FCO, Human Rights Act, Iraq, Muslims, Pakistan, Politics, Terrorism, UKSC | Tagged , , , , , , | 1 Comment

Supreme Court: Pre-entry English Tests Are Lawful

R (Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 (18 November 2015)

Language, the most common human currency and form of expression, has become central to the great cultural tug-of-war unfolding in British society today. In times when the conflict of culture between east and west is clearly in the ascendant, “early” integration initiatives to bond migrant communities into the British way of life are driving a wedge between British “breadwinners”, whose foreign spouses and partners are affected by pre-entry English tests, and the authorities, who consider that culture and economics should act as a filter to keep out the unwanted. This decision given by Lord Neuberger (President), Lady Hale (Deputy President), Lord Wilson, Lord Hughes and Lord Hodge reveals quite a lot about the dividing line between cultures. It equally exposes the tensions between the drive to make foreigners gel into the host society and the human rights of British citizens who happen to have a spouse or a partner from a non-EEA country. The justices found that it is lawful to require foreign spouses or partners of British citizens to demonstrate – in the form of a certificate – knowledge of English to a prescribed standard before entering the UK.

Holding that integration in the host British society at an early stage is “undoubtedly an important aim”, the Supreme Court unanimously dismissed abstract challenges to the pre-entry English language tests for partners in the appeals of Ali and Bibi who complained that requirements targeting integration into the host society disproportionately breached their rights under article 8 of the European Convention on Human Rights (ECHR). On the other hand, the suitability of the guidance issued in relation to the operation of the immigration rule laying down the pre-entry English requirement remains open to question. For Lady Hale, operating the rule together with the present guidance is “likely to be incompatible with the convention rights of a significant number of sponsors.” According to Lord Neuberger, it is “virtually certain” that article 8 rights will be infringed in a “significant number of cases”. Lady Hale proposed recalibrating the guidance in order to avoid article violations in individual cases. Continue reading

Posted in Appendix FM, Article 14, Article 8, ECHR, English Tests, Entry Clearance, Human Rights Act, Immigration Rules, Judicial Review, Lady Hale, Proportionality, UKSC | Tagged , , , , , | 2 Comments

Deterring ‘Potential Extremists’: The BNA and the Scope of the Naturalisation Discretion

MM & GY & TY v Secretary of State for the Home Department [2015] EWHC 3513 (Admin) (03 December 2015)

This damaging decision for the British government was published immediately after David Cameron slanderously accused those opposed to expanding UK airstrikes against “Islamic State” of being a “bunch of terrorist sympathisers”. Overall the crude ultimatum probably deterred MPs from defying Cameron. To compliment existing British military strategy in Iraq, they voted 397 votes to 223 to approve airstrikes against ISIS in Syria; a move that made bombing jihadi militants in Raqqa – the “head of the snake” which must be crushed – a reality. But in this robust judgment handed down the very next day, Ouseley J defiantly quashed three decisions by the home secretary to refuse British citizenship to the wife and two adult children of a former member of the Egyptian Islamic Jihad (EIJ); a bloodthirsty preacher named Hany el Sayed el Sabaei Youssef (HY) who glorifies slain terror mastermind and former al-Qaida boss Osama bin Laden. Although HY’s wife and two adult children did satisfy statutory requirements for naturalisation, Theresa May exercised discretionary power to refuse them naturalisation in order to deter potential extremists from manifesting fundamentalism by sending out a clear message that their family members would not be naturalised as a consequence of their activities.

However, it was argued that MM, GY & TY are “blameless individuals whose character is unimpeachable” who had been punished “for the sins of their father”. The court agreed and chastised the home secretary for not grappling with the issues created by her policy and held that her stance was irrational because her position lacked internal logic. On the one hand, Ouseley J was invited to rule that executive action of this nature is inimical to democracy and the rule of law. On the other hand, arguments were aired that citizenship is a privilege – and not a right – which can be rationally denied to spouses and blood relatives of extremists. However, the home secretary’s attempt to disincentivise extremism backfired and the court held that it is unfair to refuse naturalisation with a view to providing a general deterrent to others. This post takes a look at this case and also provides me a chance to vent frustration at world affairs. Continue reading

Posted in Afghan War, Article 14, Article 3, Article 8, Citizenship and Nationality, ECHR, Human Rights Act, India, Islam, Judicial Review, Pakistan, Politics, Terrorism | Tagged , , , , | 1 Comment

MAC Skewers Tier 1 Entrepreneur Visas

The home secretary’s advisers – the Migration Advisory Committee (MAC) – have found that the Tier 1 (Entrepreneur) visa route under the Points-Based System (PBS) is being used by “low quality businesses”. MAC, which consists of a publicly appointed chairman and four other independent economists, is adamant that it “found substantial evidence” for reaching this conclusion and opined that industry experts and leaders ought to be selecting entrepreneurs rather than civil servants. These criticisms are a further jolt to the UK’s high global ranking (6th) for entrepreneurship and opportunity because just two weeks ago while giving evidence to the Home Office Select Committee, Professor David Metcalf CBE, MAC’s chairman, hammered Tier 1 (Investor) “golden” visas as “absolutely not fit for purpose”. The UK is giving settlement and citizenship rights away to foreign elites he protested. British residents are footing the bill and he considers it pointless to reward foreign businessmen investing in gilts with accelerated settlement rights and citizenship. Metcalf also approves of the onerous minimum income requirements for spouses and partners under (the inexorable) Appendix FM of the Immigration Rules, which cannot be met by half of the UK’s population and are now being litigated in the Supreme Court – the court of last resort and the highest appellate court in the land.

Irrespective of the hardship caused by the harshness of the family migration rules, Malthusians such as Metcalf and Mrs May – who symbolise nothing short of a “population police” – must feel vindicated by recent estimates released by the Office of National Statistics (ONS) that Britain’s population will rise by 10 million over the next 25 years, and net migration will drive two-thirds of this growth. This figure makes a striking contrast with the rest of Europe as a whole where population is expected to rise at a rate of 3% in comparison with the UK where the rate is predicted to be 15%. The ten-year projection is that the UK population will rise by 4.4 million with the result that England’s population could swell as much as 7.5% by 2024. These trends suggest that the UK will leave France and Germany behind to become Europe’s most populous country by Continue reading

Posted in Appendix FM, Economy, Employment, Entrepreneurs, Immigration Rules, PBS, Tier 1 | Tagged , , , , , | 1 Comment

Former IRA Man Loses Supreme Court Appeal

R v McGeough (Appellant) (Northern Ireland) [2015] UKSC 62 (21 October 2015)

In this appeal from a judgment of the Court of Appeal in Northern Ireland – given by Morgan LCJ, Higgins and Girvan LJJ, [2013] NICA 22 (7 May 2013) – Lord Neuberger (President), Lord Kerr, Lord Hughes, Lord Toulson and Lord Hodge dismissed Terence Gerard McGeough’s appeal and their Lordships held that Council Directive 2005/85/EC (the Procedures Directive) did not help him in establishing that information contained in his asylum application (August 1983) in Sweden was protected from disclosure in his criminal trial (November 2010) in the UK. This unusual case involves the activities of the Irish Republican Army (IRA) and boasts quite unique facts. On 13 June 1981 McGeough was badly injured in an attack he mounted on the instructions of the IRA, along with another republican militant, in County Tyrone against Samuel Brush – a postman and also a member of the Ulster Defence Regiment (UDR). Expecting an attack on his life, Brush had been wearing a bulletproof vest. He also had a Smith and Wesson revolver for personal protection. Despite being hit by several bullets, Brush returned fire and injured McGeough who needed to have a .38 bullet surgically removed from his body.

Although in the Republic of Ireland, Monaghan is not far from Aughnacloy in the townland of Cravenny Irish, the spot near which the attack on Brush took place in a remote part of County Tyrone in Northern Ireland. McGeough’s critical condition meant that to cope with the gunshot wound to the chest, he was airlifted from Monaghan and admitted to a Dublin hospital. When he was returned to a hospital in Monaghan, despite being under police guard he managed to escape on 27 June 1981 and made his way out of the country soon thereafter. Three decades later on 18 February 2011, at Belfast Crown Court Stephens J convicted McGeough of attempted murder, possession of firearms with intent to commit an indictable offence, and two counts of membership of the IRA (a proscribed organisation) from 1 January 1975 until 14 June 1981. McGeough was sentenced to a 20-year prison term but served less than two years under the terms of the Good Friday Agreement 1998, he was released in January 2013. Continue reading

Posted in Asylum, British Bill of Rights, Disclosure, ECHR, European Union, Human Rights Act, Immigration Rules, Refugee Convention, UKSC | Tagged , , , , , , , , | 1 Comment