Court of Appeal: “In-time” application can only be made before expiry of existing leave to remain

The Secretary of State for the Home Department v Waqar Ali [2021] EWCA Civ 1357 (14 September 2021)

In an appeal concerning a narrow question of construction of the phrase “in-time” for the purposes of paragraph 39E(2) of the Immigration Rules in the context of applications for leave to remain in the UK, the Court of Appeal held that paragraph 39E (which permits “any current period of overstaying will be disregarded”) of the Immigration Rules was not able to accommodate Mr Waqar Ali, a Pakistani national who entered the UK as a student and extended his leave in that category and then made a series of applications for leave all of which were refused. Overall, Arnold, Andrews Simler LJJ held that where the deadline for making an application for further leave to remain in the UK was on the expiry of any existing period of leave, an application was not “in-time” where it had been made after that date even where the Immigration Rules permitted a late application within a limited period of overstaying. The Court of Appeal judged that an application is made “in-time” for the purposes of paragraph 39E(2)(a) if it was made before the expiry of leave and an application made in the so-called “grace period” is not “in-time”. The question arose in relation to the Tier 1 (Entrepreneur) Migrant route but equally impacts many other leave to remain routes where applications for leave are made after the expiry of existing leave. 

The context was that Mr Ali was granted leave on 8 March 2013 to remain in the UK as a Tier 1 (Post-Study) Migrant and prior to the expiry of his leave he had made an in-time application as a Tier 1 (Entrepreneur) Migrant (“application 1”). This was refused as the decision-maker found that he was not a genuine business person. The decision set out his in-country appeal rights and stated that his previous leave would be extended until such time as any appeal was resolved, and that any new application should be made “before your current leave expires”. The FTT dismissed his appeal and both tiers of the tribunal refused his permission to appeal. He became appeal rights exhausted and his leave under section 3C  of the Immigration Act 1971 came to an end. By remaining in the UK without leave and he breached immigration law and became an overstayer. He reapplied, just less than 28 days after the expiry of his leave, as a Tier 1 (Entrepreneur) Migrant (“application 2”) and was refused leave to remain. Mr Ali was warned of his liability to detention and removal and the consequences of illegally overstaying. He applied for an administrative review which was unfavourable. However, instead of leaving, he reapplied as a Tier 1 (Entrepreneur) Migrant (“application 3”) but was refused as he was an overstayer and he was not able rely on paragraph 39E(2) as his application was not made within 14 days of the refusal of an “in-time application”.

Revival of section 3C leave approved by Court of Appeal

R (Akinola & Anor) v Upper Tribunal & Anor [2021] EWCA Civ 1308 (26 August 2021)

In these judicial review proceedings, the Court of Appeal decided that in circumstances where an extension of time had been granted for an out-of-time appeal against the refusal of an application to vary limited leave to remain, the original leave was revived under section 3C(2)(c) of the Immigration Act 1971 with future effect from the time when the appeal was instituted. The appeal was instituted and became a pending appeal within section 3C(2)(c) when the notice of appeal was filed, not the date when the extension of time was granted. The Court of Appeal found that the withdrawal of a decision did not have the consequence of causing leave to be extended retroactively under section 3C from the date of the decision. Three conjoined appeals, namely those of Ms Akinola, Mr Abbas and Mr Anwar, raised issues about the interpretation and effect of section 3C which provides for the extension of immigration leave in certain defined circumstances. Of key importance was the position under section 3C where an application has been made to vary existing leave, the application has been refused by a decision of the SSHD, and later (i) there is an out-of-time appeal for which an extension of time is granted, or (ii) the decision-maker withdraws and/or reconsiders the decision. The issues arose in the context of applications under paragraph 276B of the Immigration Rules for Indefinite Leave to Remain (ILR) on the ground of long residence. 

Ms Akinola, Mr Abbas and Mr Anwar all entered the UK as students. Importantly, in each case the question whether leave was extended by the operation of section 3C was relevant to whether the applicant had built up the required “10 years continuous lawful residence in the United Kingdom”. Each appellant had applied to vary their existing leave to ILR on the ground of long residence. Their applications had been refused and they had appealed. Under section 3C, where an application had been made for variation of existing leave before the leave expired and the leave expired without the variation application being decided the leave was extended under section 3C(2) during any period when the case was neither decided nor withdrawn; an in-country appeal could be brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002 or an in-country appeal under section 82(1) was pending. It was common ground that an out-of-time appeal for which an extension of time had been granted engaged section 3C(2)(c) as a pending appeal and resulted in a revival of the original leave. The issues were threefold (i) whether a revival of leave under section 3C had retroactive effect so as to run continuously from the time when it otherwise would have expired, (ii) if an extension of time was granted, an appeal was pending when the extension of time was granted or when the notice of appeal had been filed, and (iii) whether the withdrawal of a decision was functionally equivalent to the quashing of a decision by the court and had the like/same result that an application for variation would not have been decided until a fresh decision was taken on the application and leave would continue to be extended under section 3C(2)(a) in the meantime. 

Court of Appeal: An extended family member must demonstrate continuous dependency on the sponsor

Chowdhury v Secretary of State for the Home Department [2021] EWCA Civ 1220 (09 August 2021)

Dismissing this appeal, the Court of Appeal held that in evaluating whether an applicant qualified as an extended family member under regulation 8(2) of the Immigration (European Economic Area) Regulations 2006, the words “and continues to be” in regulation 8(2)(c) have to be read as speaking to a persisting state of affairs. Macur, Stuart-Smith LJJ and Sir Stephen Richards held that there was a need for an ongoing dependency and that the condition set out in regulation 8(2)(a) defined the starting point, and the condition set out in regulation 8(2)(c) defined the necessary duration. Mr Chowdhury was a Bangladeshi national who tried to enter the UK as a student with entry clearance for three years. In interview at immigration control he was discovered to be at an unsuitable standard of English for his intended course and his sponsorship was withdrawn by the admissions officer of London Denning College and his entry clearance was cancelled. His appeal was dismissed and he became an absconder, living illegally in the UK. Five years later he applied for a residence card as the extended family member of an EEA national. In 2016, he applied for a residence card, claiming to be an extended family member of his great uncle Mr Nashir Chowdhury, who was an EEA national, in accordance with regulation 8(2)(a) and regulation 8(2)(c).

The decision-maker was not satisfied that he had been a dependent of his great uncle, either in Bangladesh or in the UK. The FTT determined that he had been dependent on his great uncle in Bangladesh, but that there was no evidence of dependency between 2011 and December 2014 or January 2015 when Mr Chowdhury was said to have joined his great uncle’s household in the UK. The UT upheld the FTT’s decision, finding that if an applicant had merely to establish past dependency to satisfy regulation 8(2)(a), and present dependency or membership of the EEA national’s household to satisfy regulation 8(2)(c), then the words “and continues to be” in regulation 8(2)(c) would be superfluous. UTJJ Mandalia and Hanson found that the language of regulation 8(2)(c) did not admit the possibility of a broken dependency. The member state’s obligations in respect of extended family members were clearly more restricted than in the case of family members falling within article 2 of the Directive and the member states had a wide discretion as regards the selection of factors to be taken into account. The member states were entitled to lay down particular requirements as to the nature and duration of the dependence in order be satisfied that the dependency was genuine and stable.

Afghan Refugees in Pakistan: Webinar on 31 August 2021

The withdrawal of US forces from Afghanistan and the return of the Taliban after two decades has left the world stunned and the UK rushed to airlift more than 4,000 UK nationals and Afghan citizens, while Joe Biden intends to stick to the 31 August deadline. These events show that the “war on terror” has been a complete failure. Furthermore, pumping a trillion dollars in the Afghan National Army (ANA) was a complete waste of money. Indeed, it appears to have been wishful thinking that the ANA would fight against Islamic militancy and its soldiers either deserted or joined the Taliban and 20 years of western efforts to build a stable state in Afghanistan quickly faded away as puppet government of Ashraf Ghani disintegrated in a matter of days. The Pakistan Institute of International Affairs (PIIA) is organising a webinar on Afghan Refugees in Pakistan: Past, Present, and Future on Tuesday, 31 August 2021 at 3:00 p.m. (PST). Joining link and details are below. Pakistan has hosted one of the world’s largest refugee populations for over four decades. In successive waves, refugees from Afghanistan have sought shelter inside Pakistan which, over the years, has hosted millions of Afghan refugees. It is estimated that 3 million Afghan refugees still reside in Pakistan but according to the UNHCR, only 1.4 million are registered and the humanitarian assistance provided by Pakistan for over four decades has made a significant impact on its economy and social life and on its strained resources.

Pakistan is not a party to the 1951 Geneva Convention on the Status of Refugees relating to the Status of Refugees/1967 Protocol and has also not enacted any national legislation for the protection of refugees nor established procedures to determine the refugee status of persons who are seeking international protection within its territory. Such persons are thus treated in accordance with the provisions of the Foreigners Act 1946. But modern refugee law is embedded in the 1951 Convention. Under article 1A(2) a “refugee” is any person who “owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or, who not having a nationality and being outside the country of his former habitual residence …, is unable or, owing to such fear, is unwilling to return to it …”. Hosting millions of refugees for many decades has stressed Pakistan’s local infrastructure, services and the environment, as many Afghan refugees presently form part of Pakistan’s informal economy. The repatriation of these refugees to their home country never fully materialised because of the continued conflict and violence in Afghanistan. With the withdrawal of foreign forces from Afghanistan and the Taliban forming the government in Kabul, a humanitarian crisis has developed with thousands of civilians fleeing the country. Pakistan has stated that it cannot take in any more refugees from Afghanistan. How will the world, in general, and Pakistan, in particular, manage this crisis? 

Deprivation of citizenship: Notice cannot be served by placing decision on subject’s Home Office file

D4, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 2179 (Admin) (30 July 2021) 

In these insightful judicial review proceedings, Chamberlain J held that prior to making an order depriving a person of British citizenship, the SSHD had to give that person written notice of her intention to do so. The court held that regulation 10(4) of the British Nationality (General) Regulations 2003, which provides that notice would be deemed to have been given in certain circumstances, was ultra vires section 40(5) and section 41(1) of the British Nationality Act 1981. D4 is currently detained at Camp Roj in north-eastern Syria and has been there since January 2019. On 27 December 2019, the decision to deprive her of her British citizenship was made by the Chancellor of the Exchequer (in the Home Secretary’s absence) and placed on D4’s Home Office file. On the same day, officials acting on behalf of the Chancellor made an order depriving D4 of her citizenship. For all practical purposes, the decision and order was treatable as made by the SSHD. Section 40(5) obliged the SSHD to give written notice of her decision to D4 before making an order depriving her of her citizenship. However, when the SSHD made her decision, D4 was detained in Camp Roj and had no valid address for correspondence. The SSHD therefore placed a notice of the decision on her Home Office file and went on to make the deprivation order. D4 was entirely unaware of the decision or the order until October 2020. 

In proceeding without having given written notice to D4, the SSHD had invoked on the deeming provision in regulation 10(4) of the 2003 Regulations, which stated that where there was no valid address for correspondence, notice would be deemed to have been given if it was placed on the subject’s Home Office file. Notably, regulation 10(4) was made pursuant to section 41(1)(e) of the 1981 Act, which had empowered the SSHD to make regulations “for the giving of any notice ”. In light thereof, D4 submitted that the power provided by section 41 to make regulations “for the giving of any notice” did not include a power to make regulations deeming service to have been effected in a situation where the notice could never have come to the subject’s attention. Accordingly, D4 submitted successfully, that the court should quash the deprivation order and declare that regulation 10(4) was ultra vires section 40(5) and section 41. Under section 40(2) of the 1981 Act, Parliament conferred on the SSHD the power to make an order depriving a person of British citizenship if satisfied that deprivation would be conducive to the public good. Parliament provided by section 40(5) that, before making such an order in respect of a person, she must give the person written notice specifying that she has decided to make an order, the reasons for it and the right of appeal.

SSHD wins in Supreme Court on legality of policy on initial age assessment of child asylum seekers

R (BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38 (30 July 2021) 

In this case, the Supreme Court unanimously allowed the SSHD’s appeal by holding that she was not obliged to issue policy guidance to eliminate uncertainty in the application of a stipulated legal rule. Where the lawfulness of policy guidance was in issue, however, it was necessary to consider the legal obligations of the person promulgating the guidance with regard to its content. Lord Reed (President), Lord Lloyd-Jones, Lord Briggs, Lord Sales, Lord Burnett decided that in the context of immigration, a policy that immigrants claiming to be children should be assessed as an adult only if their physical appearance/demeanour “very strongly” suggested that they were “significantly” over 18 was lawful and did not direct immigration officers to act in conflict with their legal duty under the statutory regime. The respondent, “BF”, was an Eritrean national who had entered the UK illegally with no identity documentation. He had claimed asylum as an unaccompanied minor, saying that he was 16. He was initially assessed by immigration officers as being significantly over 18, and probably in his mid-20s, and was detained. But subsequently age assessments carried out in accordance with the decision in R (B) v Merton LBC [2003] EWHC 1689 (Admin) determined that he was under 18. The Immigration Act 1971, as amended by the Immigration Act 2014, lays down the legal regime applicable to asylum seekers and Schedule 2 to the 1971 Act makes distinct provision as to the detention of asylum seekers who are unaccompanied children as compared with adults over the age of 18. 

The SSHD has issued policy guidance for immigration officers in cases of doubt as to the age of an asylum seeker presenting as a child. The guidance is set out in two documents: (i) an asylum instruction entitled Assessing Age and (ii) the relevant section of the general operational guidance issued to immigration officers entitled the Enforcement Instructions and Guidance (“the EIG”). Notably, section 55.9.3.1 of the EIG sets out various criteria for circumstances when the Home Office will not accept that an asylum seeker is a child. Criterion C was relevant to BF’s case. Criterion C initially provided that an asylum seeker would not be accepted as being under 18 if “their physical appearance/demeanour very strongly suggests that they are significantly over 18 years of age and no other credible evidence exists to the contrary” (emphasis in original). This was subsequently amended to include a requirement within Criterion C that two Home Office officials must separately come to this conclusion. The Assessing Age instruction gives further guidance on the age assessment process, particularly in relation to Criterion C. BF was initially assessed as an adult by immigration officers applying Criterion C. He was accordingly detained as if he were an adult. More detailed age assessments were subsequently carried out in 2015, and it was eventually decided that he was aged less than 18. BF challenged the Policy by way of judicial review before the Upper Tribunal on the basis that it was unlawful in so far as based on Criterion C, as physical appearance and demeanour are an inherently unreliable guide to age. 

Court of Appeal upholds quashing of HMPO’s refusal to accept a mother’s applications for her children’s British passports

Secretary of State for the Home Department v GA & Ors [2021] EWCA Civ 1131 (23 July 2021)

On the SSHD’s appeal, the Court of Appeal held that Chamberlain J had been entitled to quash a refusal by Her Majesty’s Passport Office to accept a mother’s applications for British passports for her four children currently living in Country X. In December 2019, the mother applied to HMPO for British passports for the older three children, the fourth child having been issued with her British passport in 2020 after being born in England earlier that year. In a decision communicated by letter of 7 January 2020, HMPO refused to accept the applications because it required them to be supported by evidence of the consent of a person with parental responsibility under the law of Country X. It considered that person to be the children’s father alone. The mother was not considered to have any status at all. That was extremely problematic as it was either unsafe or impossible for the mother to obtain the father’s consent. In making the applications the mother had explained that he had recently been arrested after “months of extremely serious physical and psychological abuse including torture of me – much of this witnessed by the children – when he isolated us”. Chamberlain J quashed HMPO’s decision, holding that the SSHD could properly decide that questions of parental responsibility arising in connection with passport applications should be decided in accordance with the Hague Convention on Parental Responsibility and Child Protection 1996. Notably, article 16 provides that attribution of parental responsibility is governed by the law of the state of a child’s habitual residence.

Article 22 provides that application of the applicable law provisions of the Convention can only be refused if it would be manifestly contrary to public policy, taking into account the child’s best interests. Chamberlain J held that HMPO’s assessment that the mother lacked the authority to apply for the children’s British passports was not rationally sustainable on the evidence. If that was incorrect and the father did have sole parental responsibility under the law of Country X, he held that HMPO was required to apply article 22 when it applied article16; and that applying the law of Country X in the present case would be manifestly contrary to public policy within article 22, taking into account the children’s best interests; further that applying the law of Country X would involve unjustifiable sex discrimination, breaching article 14 of the ECHR read with article 8. Article 22 is headed “application of the applicable law provisions can only be refused if it would be manifestly contrary to public policy, taking into account the best interests of the child.” Article 16 is headed “attribution of parental responsibility is governed by the law of the state of the child’s habitual residence.” The UNCRC and section 55 of the Borders, Citizenship and Immigration Act 2009 concern the duty to safeguard and promote the welfare of children in discharging any function in relation to nationality. The SSHD accepted that dealing with passport applications is a function relating to nationality and did not maintain that the children’s residence in Country X disapplied the duty. 

Court of Appeal: De facto adoption rules seem to be irrational

R (AK & Ors) v The Entry Clearance Officer (Islamabad) & Anor [2021] EWCA Civ 1038 (09 July 2021)

In these proceedings concerning an application for permission to appeal, the court commented, but it did not decide, that there is a “strong case” that paragraph 309A of the Immigration Rules is irrational. In summary, the 11 applicants were nationals of Afghanistan. Their eldest sister came to the UK in March 2012 and was granted asylum in June 2012. The 11 applicants sought entry to the UK in June 2012 on the basis that they had been the subject of a de facto adoption by their sister in Afghanistan. Their application was refused as the applicants did not satisfy the requirements of the relevant rules. Ultimately, on 12 December 2017 the 11 applicants were granted discretionary leave to enter the UK for 33 months. That leave was granted outside the Immigration Rules on the basis that refusal of leave to enter would involve a breach of the right to respect for family life guaranteed by article 8 of the ECHR. Notably, paragraph 352D of the Immigration Rules provides that children whose parents have been granted refugee status in the UK may be granted leave to enter to join or remain with their parents. In 2003, changes to the rules came into force which amended the definition of “parent” to include the parent of a child who was the subject of a de facto adoption. The amendments provided a definition of de facto adoption, paragraph 309A of the Immigration Rules deals with adopted children. 

The relevant provisions of paragraph 6 provide that a “parent” includes: “(c) an adoptive parent, where a child was adopted in accordance with a decision taken by the competent administrative authority or a court in a country whose adoption orders are recognised by the UK or where a child is the subject of a de facto adoption in accordance with the requirements of paragraph 309A.” The court said that the definition is “convoluted” but, essentially, for a de facto adoption to have taken place, the following requirements need to be satisfied. The adoptive parent (or parents); must have lived abroad for a minimum period of 18 months immediately preceding the entry clearance application by the child; must have been living with the child for a period of 12 months immediately preceding the application by the child for entry clearance; and must have assumed the role of the child’s parents, since the beginning of the said 18 month period, so that there has been a genuine transfer of parental responsibility. The applicants criticised aspects of this definition and criticised the requirement that the adoptive parent must have lived with the child in the 12 months immediately preceding the making of an application for entry clearance and said that the fact that this definition could never be satisfied in the case of a refugee as such a person would have fled the country to seek asylum elsewhere. 

Time spent in the UK as a visitor counts as ‘residence’ for ILR

R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076 (15 July 2021)

On the important subject of indefinite leave to remain (ILR) on the grounds of 10 years’ continuous residence, the Court of Appeal has held that the SSHD had erred in refusing an ILR application made by Mr Chandra Mungur – a citizen of Mauritius – because it could not be said that he had “left the United Kingdom in circumstances in which he had no reasonable expectation at the time of leaving that he would lawfully be able to return” during the period relied upon as 10 years’ continuous residence. While Mr Mungur had left the UK in 2001 following expiry of his visit visa, he had done so with the intention and expectation of lawfully returning as soon as possible under a student visa. Mr Mungur had obtained a visitor visa valid from 22 March 2001 to 22 September 2001. He entered the UK as a visitor on 16 April 2001 and left on 1 September 2001 “to return to Mauritius to apply for Entry Clearance as a student”. That application was granted on 25 September 2001 and was valid until 25 September 2003. On 5 October 2001, he entered the UK again and by a succession of applications he applied for and was granted further leave to remain successively first as a student and then as a work permit holder. He remained lawfully in the UK from 25 September 2003 until 13 July 2011. He overstayed for 1,947 days when his leave to remain expired on 13 July 2011 until 10 February 2016.

Mr Mungur was granted further leave to remain on human rights grounds until 8 May 2019. He applied for ILR on the grounds of 10 years’ continuous residence on 30 May 2019. On 20 September 2019, the decision-maker refused the application on the ground that during the period relied upon by Mr Mungur as continuous residence, he had “left the UK in circumstances in which he had no reasonable expectation at the time of leaving that he would lawfully be able to return” and thus could not satisfy the requirements of the paragraph 276A(1)(a) of the Immigration Rules. In addition to the first ground of refusal, the decision-maker further said that he had been in the past an overstayer and therefore could not satisfy the requirements of paragraph 276B(v). Aggrieved, he challenged the lawfulness of the refusal by bringing judicial review proceedings. He said that when he left the UK on 1 September 2001, he had a reasonable expectation that he would lawfully be able to return, which satisfied the requirements of paragraph 276A(a)(iii) and that, thus, his absence from 1 September to 5 October 2001 did not break the period of continuous residence which had to be taken as starting on 16 April 2001. He accepted he overstayed for 1,947 days but he argued that the Home Office was wrong to decide that he did not meet the requirements of paragraph 276B(v). The government abandoned reliance on this issue and conceded that his overstaying was not a bar to ILR because he was not a current overstayer and not currently in breach of the Immigration Rules and paragraph 276B(v), “the applicant must not be in the UK in breach of immigration laws”, did not apply. 

Supreme Court dismisses deportation appeal of settled Iranian national who lawfully entered the UK as a child

Sanambar v Secretary of State for the Home Department [2021] UKSC 30 (16 July 2021)

The Supreme Court unanimously dismissed Mr Sanambar’s appeal and held that the Upper Tribunal correctly approached the balancing exercise required by article 8 of the ECHR and it was entitled to conclude that the interference with Mr Sanambar’s private and family life was outweighed by the public interest in the prevention of crime. Two issues arose in this appeal. First, the correct approach to article 8 in deportation cases consequent upon criminal offending by those who entered and lawfully settled in the UK as children. Second, the approach to the test of “very significant obstacles to integration” in the receiving state in such cases. Mr Sanambar was born in 1995 in Iran and arrived in the UK lawfully with his mother in 2005 having been given leave to enter and indefinite leave to remain under the family reunion policy. He had a difficult upbringing due to his father’s violent conduct, but had a particularly strong bond with his mother, with whom he has lived all his life. He had no family ties with Iran but spoke to his mother in Farsi. He was then convicted of three counts of attempted robbery in 2009, possession of an offensive weapon and six counts of robbery in 2011, three counts of attempted robbery, and one count of handling stolen property in 2013. Notably, the 2013 robberies were all committed at night and at knifepoint and his victims were aged between 15 and 18.

In the light of his 2013 convictions, for which he was sentenced to three years’ detention in a Young Offender Institution, the SSHD decided that Mr Sanambar’s deportation would be conducive to the public good and would not be in breach of his right to respect for his private and family life under article 8. She made a deportation order against him. He then appealed against that decision. After a rehearing before the UT his appeal was dismissed. The UT held that he had not met the threshold under the Immigration Rules for resisting his removal because he had failed to show that there were very significant obstacles to his integration in Iran. His appeal to the Court of Appeal was dismissed by Irwin, Moylan and Rafferty LJJ. The Supreme Court rejected the submission that in a case involving a settled migrant who has lawfully spent all or the major part of his childhood in the host country, the court must separately consider whether there were very serious reasons to justify expulsion, as a separate condition after the examination of the criteria in Üner v the Netherlands [GC] 46410/99, 45 EHRR 14. Instead the authorities established that the court must carry out a delicate and holistic assessment of all the criteria flowing from the ECtHR’s caselaw in order to justify the expulsion of a settled migrant, like Mr Sanambar, who has lived almost all of his life in the host country. It needs to be demonstrated that the interference with his private and family life was supported by relevant and sufficient reasons. 

Court of Appeal rejects fresh evidence in TOEIC case

R (Mahmud) v Upper Tribunal (Immigration and Asylum Chamber) [2021] EWCA Civ 1004 (08 July 2021) 

In these judicial review proceedings, Sir Nigel Davis and Singh and Dingemans LJJ held that there was no reasonable prospect of successfully appealing against a factual finding made by FTTJ Monson that the applicant for leave to remain, one Mr Sohrab Mahmud (a Pakistani national), had cheated on an English language test. Moreover, a request to adduce fresh evidence without a proper application was treated as an application for relief from sanctions and was refused owing to a serious procedural failing. Since it was a Cart v Upper Tribunal [2011] UKSC 28 application to the Administrative Court, there was no right, pursuant to the provisions of CPR 54.7A, to have an oral renewal of the application for permission to apply for judicial review after the refusal by HHJ Jarman QC to grant permission to apply on the papers whose decision was the focus of the present appeal. The SSHD had refused Mr Mahmud’s application for leave to remain on the basis that he had used deception in a previous application for leave to remain by using a Test of English for International Communication (TOEIC) certificate which had been obtained using a proxy test taker. Mr Mahmud vehemently denied the allegation, although he confirmed that the voice on the tape recording of the test was not his. He appealed to the FTT which rejected his explanation that there must have been a mix up with tapes at the test centre and his application for permission to appeal was refused by the UT. 

His application for permission to apply for judicial review of that refusal on the grounds that it raised an arguable case and an important point of principle was refused. On appeal, he sought to adduce as fresh evidence a report on English language certificates by an all-party parliamentary group (APPG). A US corporation called Educational Testing Service (ETS) provided the tests and in February 2014 the BBC’s Panorama programme reported on the cheating. The Home Office required ETS to employ voice recognition software to go back over the recordings from the test centres to try and identify those cases in which it appeared that the same person had spoken in multiple tests, suggesting that he or she was a professional proxy. ETS reported its findings to the SSHD and then in 2014 and 2015 the SSHD made decisions in about 40,000 cases cancelling or refusing leave to remain on the basis that those persons had cheated in the TOEIC test. Underhill LJ noted in Ahsan v SSHD [2017] EWCA Civ 2009 that “although it seems clear that cheating took place on a huge scale, it does not follow that every person who took the TOEIC test in any centre was guilty of it”. In numerous cases in the FTT, UT and High Court individuals accused of cheating have successfully challenged the allegation in their particular case. The TOEIC litigation has raised a number of issues, as Dingemans LJ observed at the outset in these proceedings. 

Trafficking victim’s return from France ordered by court

AA (Sudan) v Secretary of State for the Home Department [2021] EWHC 1869 (Admin) (06 July 2021)

In these proceedings case, Wall J decided that it was arguable that it had been unlawful for the SSHD to have had in place an unpublished policy which went directly against the terms of her published policy and which directly stoped her in her duty to consider whether asylum seekers had been trafficked en route to the UK. “AA” was a non-Arab Darfuri from Sudan who claimed that he feared persecution in his own country and fled to Europe. He travelled to France via Libya, claiming that in Libya he was sold into slavery and tortured. On arrival in France he made an asylum claim. His claim was unsuccessful and he travelled to the UK where he claim asylum again. The SSHD conducted a screening interview which did not identify him as a potential victim of modern slavery and he was returned to France under the terms of Regulation 604/2013 (Dublin III), as the appropriate jurisdiction to determine his claim for asylum. The SSHD’s guidance detailed the questions to be asked during the course of a screening interview including the following two questions, designed to elicit information which might suggest that someone had been the subject of modern slavery, i.e. “why have you come to the UK?” and “please outline your journey to the UK”. AA argued that at the time of his screening interview the SSHD also had an unpublished policy which was at odds with the published policy in that the two questions were not to be asked.

He agued that that unlawfully curtailed the opportunity for the SSHD to gather material which would have led her to conclude that he was a victim of modern slavery and act accordingly. AA also maintained that if a conclusive determination that he was a victim of modern slavery been made thereafter, he would have been eligible to apply for leave to remain in the UK. The SSHD accepted that she had a published policy in place at the time of AA’s interview which provided for the asking of the two questions. Equally, the SSHD further accepted that there was a policy decision taken not to ask those two questions at that time. It was the government’s case that that new policy was adopted in order to streamline the screening interview process with a view to reducing contact time between asylum seekers and others owing to the COVID-19 pandemic and to ensure that all cases were dealt with as expeditiously as possible. However, the SSHD asserted that asking the questions would not have actually resulted in AA giving any information amounting to evidence of modern slavery which would have resulted in a referral for more investigation. Granting AA’s application for judicial review, Wall J ordered the SSHD to use her best endeavours to bring AA back from France. The court refused to adjourn to provide the SSHD to submit a fuller defence as that would “in the vernacular, be an exercise in kicking the ball into the long grass.”

Guidance for lone asylum seeking minors held unlawful

R (Safe Passage International) v Secretary of State for the Home Department [2021] EWHC 1821 (Admin) (02 July 2021) 

In these proceedings, Dingemans LJ and Dove J held that policy guidance issued by the SSHD to Home Office caseworkers concerning the application of Regulation 604/2013 (Dublin III) to unaccompanied minors seeking asylum in the UK was unlawful in part. The challenge was to three policy guidance documents published by the SSHD, entitled Dublin III Regulation Policy Guidance, version 3.0 (Policy v.3) published for Home Office staff on 30 April 2020, Dublin III Regulation Policy Guidance, version 4.0 (Policy v.4) published for Home Office staff on 14 August 2020 (replacing Policy v.3), and Requests made to the UK under the Dublin III Regulation prior to the end of the Transition Period, version 1.0 (Policy v.5) published for Home Office staff on 31 December 2020 (replacing Policy v.4) and set out how the Dublin III Regulation would apply in the UK following the end of the transition period for leaving the EU. Parts of Dublin III continued to apply pursuant to the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, (the 2019 Regulations), made pursuant to powers in the European Union (Withdrawal) Act 2018, so that outstanding requests under Dublin III could be processed. The challenge was brought by Safe Passage International which provides help to unaccompanied asylum seeking minors (UAMs) who are also known as unaccompanied asylum seeking children (UASCs) and are among the most vulnerable persons in society. Safe Passage submitted that the guidance set out in each successive policy document was unlawful on three main grounds.

First, it argued that the guidance inaccurately states the investigatory duties imposed by the Dublin III on the UK following receipt of a Take Charge Request (TCR) from another Member State. It was submitted that the relevant guidance provides only for information to be obtained from the local authority once the family link had been established, which came too late in the process to allow for relevant information to be obtained to inform the assessment. It was said that there was no process for case workers to give UAMs notice of concerns before refusing TCRs, which had led to errors in a number of cases. Further it was said that the use of the word “onus” in the guidance was inaccurate. Secondly, it was said that the guidance wrongly states that TCRs can be summarily refused if the SSHD’s investigation has not been completed within the two month time limit imposed by Dublin III. Thirdly, it was said that the guidance sets out a practice in relation to re-examination requests which is unlawful because it misapplies the decision of the Court of Justice of the European Union (CJEU) in the case of X and X v Staatssecretaris van Veiligheid en Justitie (C‑47/17 and C‑48/17, ECLI:EU:C:2018:900). The SSHD submitted that the challenges to Policy v.3 and v.4 of the guidance should not be entertained as those versions had been superseded and had been rendered academic. She also sought permission to rely on a late witness statement from the head of the European Intake Unit (EIU) at the Home Office. 

Nationality and Borders Bill: Offences and Enforcement

The long title of the Nationality and Borders Bill gives it a positive gloss and explains that it makes provision about nationality, asylum and immigration, victims of slavery or human trafficking and a power for tribunals to charge participants where their behaviour has wasted the tribunal’s resources and for connected purposes. However, parts of the Bill deliver Priti Patel’s promise to turn a civilised country such as the UK into a pariah state. As reported the UNHCR has said that it is “absolutely dismayed” that the UK is introducing legislation to let asylum seekers be sent abroad for offshore processing. The Home Office is seeking to sell the Bill on the basis of spin in the form of “three fair but firm objectives” to increase the fairness of the system and protect and support those in genuine need of asylum; to deter illegal entry into the UK; and to remove those illegally present more easily from the UK. The government is quite adamant that the measures will tackle illegal migration, asylum and control the UK borders. But the reality is that Priti Patel’s new laws are a fresh attack on genuine refugees and will cause further delay and problems in a broken asylum system which is plagued by unfairness. As introduced, the Bill consists of six parts set out in 71 clauses and five schedules.  Part 1 deals with nationality, part 2 deals with asylum, part 3 deals with immigration offences and enforcement, part 4 deals with modern slavery, part 5 deals with miscellaneous matters and part 6 deals with general matters. This post examines aspects of part 3 the Bill which intend to criminalise seeking asylum. 

Controversially, clause 38 (assisting unlawful immigration or asylum seeker) of the Bill amends the facilitation found offences in sections 25 and 25A of the Immigration Act 1971, raising the maximum penalty from 14 years’ prison to life imprisonment and removing the requirement of facilitation being “for gain” in relation to section 25A. As currently in force, section 25 of the 1971 Act makes it an offence to carry out an act (including outside of the UK) to facilitate the commission of a breach (or attempted breach) of immigration law by an person who is not a UK national. Notably, facilitation may include behaviour linked to recruiting, transporting, transferring, harbouring, receiving or exchanging control over another person. Moreover, the required mental element is that the person doing the act must know or have reasonable cause for believing that the act in question facilitates the commission of a breach or attempted breach of immigration law by the individual, and must know or have reasonable cause for believing that the individual is not a UK national. Currently under section 25A(1) of the 1971 Act, it is an offence for a person, knowingly and for gain, to facilitate the arrival or entry (or the attempted arrival or entry) of an asylum seeker into the UK. Section 25A contains a requirement to prove gain and gains from facilitation may be cash-in-hand, taken while abroad, or otherwise difficult to link back to facilitation, making this difficult to evidence in some prosecutions. Clause 38 of the Bill removes the requirement to prove gain, broadening the section 25A offence, to allow the Home Office to charge more people for facilitating the arrival of asylum seekers to the UK.

Refusal to issue passport owing to fraud held unlawful

R (Gjini) v SSHD [2021] EWHC 1677 (Admin) (21 June 2021) 

In these proceedings, Morris J decided that the SSHD’s refusal to issue a British passport to one Mr Leonard Gjini, a dual British and Albanian national, who had obtained his British citizenship through fraud was irrational and unlawful. The court also held that the SSHD’s refusal to amend Mr Gjini’s naturalisation certificate in order to accurately reflect his date and place of birth was unlawful. Mr Gjini entered the UK and claimed asylum on the false basis that he was born in Deqan, Kosovo, Yugoslavia on 16 March 1982. In May 1999 he was granted asylum and indefinite leave to remain. On 29 September 2004 he was granted a naturalisation certificate in the name of Leonard Gjini and he was issued with a British passport bearing his false date, country and place of birth. In August 2019 the SSHD wrote to him indicating that some verification checks showed that he had obtained his UK citizenship through fraud and notified him that consideration was being given whether to deprive him of British citizenship under section 40(3) of the British Nationality Act 1981. Mr Gjini’s passport was revoked on 15 August 2019. On 1 October 2019, he reapplied for a British passport. However, on 22 October 2019, Her Majesty’s Passport Office (HMPO) refused his application, stating that he obtained his British citizenship by deception and noting a mismatch between the date, country and place of birth as it appeared on his naturalisation certificate and his actual details. 

On 6 August 2020 the SSHD refused to amend the naturalisation certificate to reflect his genuine biographical information. Mr Gjini submitted that, first of all, the refusal of his passport application was irrational, perverse and insufficiently reasoned and unlawful as being incompatible with a written ministerial statement (WMS), at the heart of this case, made by the then SSHD, Mrs Theresa May, on 25 April 2013. He said that the refusal did not comply with the principle of proportionality under EU law and was incompatible also with his right to respect for private life under article 8 of the ECHR. He submitted that the refusal was also unlawful as being indicative of the application of an inconsistent practice as between comparable cases. In relation to refusal to amend the naturalisation certificate, Mr Gjini contended that it was unlawful, contrary to the SSHD’s own policy statements and irrational. Morris J granted the application for judicial review and found that refusal to issue a British passport was irrational and unlawful was quashed. Morris J also allowed permission to amend Mr Gjini’s grounds which sought to challenge the later refusal of 6 August 2020 amend the naturalisation certificate to demonstrate his genuine biographical information. The court highlighted that according to the decision in R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett) [1989] 1 QB 811, a passport does not confer citizenship, it is merely evidence of it. Notably, passports are issued at the discretion of the SSHD under the Royal Prerogative. They can be withdrawn through the use of the same discretionary power.

“Powerful reasons” doctrine is no longer good law

NA (Bangladesh) & Ors v Secretary of State for the Home Department [2021] EWCA Civ 953 (24 June 2021)

As to the seven year rule saga, the Court of Appeal has held that in a situation where a child whose parents had no entitlement to leave to remain in the UK applied for leave to remain pursuant to paragraph 276ADE(1)(iv) of the Immigration Rules on the basis that they had seven years’ continuous residence and it would not be reasonable to expect them to leave, the starting point is that it would be reasonable to expect them to leave with their parents. Overstayers “NA” and “SB” were a married couple and were Bangladeshi nationals whose children “YS” and “YA” were born in the UK. The family appealed against a decision of the Upper Tribunal upholding the SSHD’s refusal of their application for leave to remain in the UK. In April 2018 the family applied for leave to remain. YS had made his claim under paragraph 276ADE(1)(iv) on the basis that he had lived continuously in the UK for at least seven years and it would not be reasonable to expect him to leave. His parents and brother had no entitlement to remain under the rules but contended that their removal would interfere with their rights pursuant to article 8 of the ECHR. The decision-maker refused all four applications. In May 2019, FTTJ Bart-Smith dismissed the appeals and UTJ Stephen Smith subsequently found an error of law in the FTT’s decision but re-made it by again dismissing the appeal in November 2019.

The UT decided that while the family’s removal would interfere with their article 8 rights the interference was justified in the public interest. The family were granted permission to appeal on the basis that the case gave rise to an issue of general importance in relation to the correct approach to paragraph 276ADE(1)(iv) and section 117B(6) of the Nationality, Immigration and Asylum Act 2002, as set out in Part 5A. In order to determine whether an interference with article 8 rights was justified in the public interest, the court/tribunal had to have regard to the terms of section 117B(6), which provided that the public interest did not require the removal of a child who had lived in the UK for more than seven years where it was not reasonable to expect them to leave. UTJ Stephen Smith determined that it was reasonable to expect YS to leave the UK with his parents NA and SB. The decision of the UT was premised on the rejection of the family’s argument that in keeping with the judgment of the Court of Appeal in R (MA (Pakistan)) v UTIAC [2016] EWCA Civ 705, it was obliged to proceed on the basis that, absent powerful reasons to the contrary, it would be unreasonable to expect a child who had seven years’ residence to leave. The UT judged that the “powerful reasons” doctrine had not survived the Supreme Court decision in KO (Nigeria) v SSHD [2018] UKSC 53, discussed here. 

Terrorism convict defeats government in article 1F(c) appeal

AE (Iraq) v The Secretary of State for the Home Department [2021] EWCA Civ 948 (22 June 2021)

The Court of Appeal has recently decided that in circumstances where the UT had not made a finding that the FTT had erred in law, UTJJ Perkins and Craig [2020] UKAITUR PA114882017 had no jurisdiction to interfere with the FTT’s decision that AE, an refugee from Iraq, had been entitled to the protection of the Refugee Convention 1951 as her offending had not met the high threshold set out in article 1F(c). The appellant “AE” was an Iraqi national, had arrived in the UK in 2007 aged 15. She was granted discretionary leave to remain but she posted online statements encouraging jihad which led to her conviction in 2015 for two offences under the Terrorism Act 2006. She was sentenced to three-and-a-half years’ imprisonment. The SSHD sought to deport her as a foreign criminal within the meaning of section 32 of the UK Borders Act 2007 and refused her asylum claim. She was granted restricted leave to remain on the basis that returning to Iraq would expose her to a risk of ill-treatment contrary to article 3 of the ECHR. But the SSHD decision-maker determined that AE’s criminal conduct meant that she was excluded from the protection of the 1951 Convention by article1F(c) and section 33(2)(b). The SSHD quoted the sentencing judge’s remarks and concluded that AE met the threshold of article 1F(c) as she had encouraged people, on a massive scale, to engage in international terrorism and supported Islamic State. 

However, the FTT allowed AE’s appeal against the decision to refuse protection, having assessed that her offending and determined that the SSHD had failed to show that her acts were sufficiently grave in terms of their impact on international peace, peaceful relations and security between states under article 1F(c). The SSHD appealed on the basis that the FTT had gone behind the sentencing remarks which it had been agreed could be relied on for their factual findings. The UT allowed the SSHD’s appeal on the ground that the FTT had been wrong to take the view it did. Before the FTT, AE had conceded – as she did on appeal to the Court of Appeal – that the nature and quality of her conduct were such as to bring her within the scope of article 1F(c). Therefore, the FTT examined the scale of the dissemination of the offending material. It found as a fact that over 347 days AE posted an average of at most 50 tweets a day, making a total of 17,350 tweets to 8,500 followers. It assessed this as a large number of posts over the course of almost a year. But the FTT found that she had held extremist views at the time, but that these were not entrenched. It did so on the basis that there was no evidence to indicate any extremist views before the offending period. It found that AE did not hold extremist views at the time of hearing. AE submitted that the UT erred as the FTT was the primary decision-maker and the UT was not entitled to interfere with the FTT’s decision unless it identified an error of law which it failed to do. 

Court of Appeal: Physical needs are decisive in ADR cases

Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021)

In a new judgment on adult dependant relatives in the case of a 66-year-old Pakistani school teacher who suffered from arthritis, depression and high blood pressure and had three British citizen children in the UK, the Court of Appeal decided that the FTT had been wrong in concluding that family life did not exist for the purpose of to article 8 of the ECHR but the judge (FTT Judge Brewer) had nevertheless correctly concluded that even if she had an article 8 family life refusal of leave was proportionate. Mrs Mobeen was widowed in 2006 and visited her children frequently in the UK, spending only 12 months in Pakistan after 2011 and the rest of her time in the UK. She applied for and was granted three visitor’s visas from September 2007 to March 2008, from June 2008 to June 2010, and from July 2010 to July 2015. In 2013, her home in Pakistan burned down due to faulty wiring. It was too expensive to fix it and she lived with her niece for a year until her niece needed the space. In June 2014, she entered the UK on a visit visa expiring in July 2015. She stayed in the UK, living with her son and younger daughter. She suffered from depression, hypertension and arthritis and had help with shopping and cooking but otherwise essentially looked after herself. She helped with childcare for her grandson and her children could afford to house her in Pakistan and provide her with care assistance.

After entering the UK in June 2014, Mrs Mobeen applied for leave to remain in January 2015. The application was refused in March 2015 with no right of appeal. An application for judicial review was made at the end of the same month, it was dismissed in June 2016. In July 2017, she made a further application for leave to remain on the basis of her family and private life in the UK, claiming that it was unreasonable to expect her to leave the UK on account of her circumstances as she was living with her son and financially dependent on her children, in particular her son. The children were all financially independent. They were supporting her with private healthcare insurance and accommodation in the UK. She would not be relying on public funds or NHS services. Her elder daughter, Haya, was also said to be very dependent on her mother for child care for her young son, Mrs Mobeen’s grandson. The claim asserted that she suffered from arthritis and high blood pressure. The decision-maker refused her application on the basis that no significant obstacles existed as to her re-integration into Pakistan, and there were no exceptional circumstances rendering the refusal a breach to article 8 of the ECHR. On appeal, FTTJ Brewer heard the evidence of two of her children, Faizan and Haya. The FTT  also had before it written reports from three medical professionals, one in Pakistan and two in the UK. 

Limited leave to remain does not knock out a Zambrano claim

R (Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin) (09 June 2021)

Mostyn J has held that the SSHD had erred when formulating in Annex 1 paragraph (b) of Appendix EU to the Immigration Rules the definition of a “person with a Zambrano right to reside” as “a person … without leave to enter or remain in the UK, unless this was granted under this Appendix”.  His Lordship held that it is clear from the decision of the CJEU in Ruiz Zambrano v Office National de l’Emploi (C-34/09), [2012] QB 265, that the holding of a limited national leave to remain and a wider right to remain could and would co-exist in many cases. Furthermore, the natural, fair, reasonable and plain meaning of the words set out in regulation 16 of the Immigration (European Economic Area) Regulations 2016 entitles an applicant for a derivative right to reside to have the application determined by reference to the prescribed eligibility criteria set out in the regulation rather than being struck out peremptorily. A Nigerian national, Olorunfunmilayo Oluwaseun Akinsanya arrived in the UK in  2006. She had four children, one of whom, C (aged 10), is a British national and she is C’s sole carer. Akinsanya had a six-month visitor visa. She then had a two-year family visit visa. When C was one year old, she applied for a derivative residence card as the Zambrano carer of C. The application was refused, but Akinsanya was successful in her appeal to the FTT and she was then issued with a five-year derivative residence card in September 2014. 

In 2017 she could not work due to ill-health and she unsuccessfully applied for the “no recourse to public funds” condition on her right to reside to be removed on the basis of destitution. She applied for leave to remain under Appendix FM to the Immigration Rules on the basis of the family/private life 10-year route and was granted 30 months’ limited leave to remain, with no condition preventing recourse to public funds. In January 2020 she applied for ILR under the Settlement Scheme under Appendix EU of the Rules, on the basis that she was a Zambrano carer with five years’ continuous residence. Akinsanya’s application was refused in September 2020 on the basis that she was not eligible for the scheme because she had already been granted limited leave to remain, and was therefore barred by the definition of “person with a Zambrano right to reside” in Annex 1 paragraph  (b) of Appendix EU. That was the decision challenged before Mostyn J in these judicial review proceedings. In Zambrano the CJEU decided that article 20 of the Treaty on the Functioning of the European Union must be interpreted as precluding a member state from refusing a third country national with minor EU citizen children dependents a right of residence and the grant of a work permit. In essence, the court had to decide whether the SSHD, in promulgating Appendix EU to the Immigration Rules on 7 March 2019, erred in law in his understanding of the scope of (i) the Zambrano jurisprudence, and
(ii) regulation 16 of the 2016 Regulations.  

“Immigration exemption” from the GDPR is unlawful

R (The Open Rights Group & Anor) v The Secretary of State for the Home Department & Anor [2021] EWCA Civ 800 (26 May 2021)

The Court of Appeal has decided that that “immigration exemption” paragraph 4 of Schedule 2 of the Data Protection Act 2018 – which disapplies certain data protection rights for the purpose of maintaining effective immigration control – is incompatible with article 23 of the General Data Protection Regulation (“GDPR”, Regulation 2016/679). The court also held that there is no comparable measure in domestic law to article 23(2), which contains a condition precedent to the validity of any “legislative measure” purporting to fall within article 23(1). Underhill, Singh and Warby LJJ stated that in the absence of any such measure, the immigration exemption was an unauthorised derogation from the fundamental rights conferred by the GDPR and was unlawful. The Open Rights Group, the first appellant, is a digital rights organisation that seeks to promote and uphold privacy and data protection rights and the3million, the second appellant, is a grassroots organisation of EU citizens resident in the UK. They brought a judicial review claim against the Secretaries of State for the Home Department and Digital, Culture, Media and Sport, seeking a declaration that the immigration exemption was unlawful and an order disapplying it. The central grounds of challenge were that the immigration exemption was incompatible with the GDPR and/or also with the Charter of Fundamental Rights of the European Union (CFR). Accordingly, by virtue of the principle of supremacy of EU law, the exemption could not stand.

Notably, the immigration exemption enacted in purported compliance with with article 23 provided that personal data processed for maintaining effective immigration control was excepted from the application of the GDPR. Holding the exemption lawful, Supperstone J found that it fell within article 23(1)(e) as a matter of “important public interest” and that it pursued a legitimate aim. In reaching his conclusion, he held that the criteria by which to test the lawfulness of the measure concerned were set out in The Christian Institute v The Lord Advocate (Scotland) [2016] UKSC 51. According to the judge, the immigration exemption satisfied those criteria because it was “comprehensible”, did not lack clarity or foreseeability, and was subject to an adequate set of safeguards. Supperstone J held that the immigration exemption satisfied those criteria because it was “comprehensible”, did not lack clarity or foreseeability, and was subject to an adequate set of safeguards. But the appellants were unhappy with that and contended that the court had erred in holding that the legal requirements for a lawful derogation differed according to whether statute itself created or required interference with individual rights or allowed the use of an exemption by data controllers in particular cases, and in approaching the case by reference to the principles applicable to article 8 of the ECHR.