Stringency and Sensibility under Appendix FM

R (Agyarko & Ors) v The Secretary of State for the Home Department [2015] EWCA Civ 440 (06 May 2015)

This is the sequel to the SS (Congo) case analysed in the last post. To do with leave to remain rather than leave to enter, this case involved overstayers who relied on their relationships with British citizens in order to obtain visas. The Court of Appeal (Longmore, Gloster and Sales LJJ) held that for leave to remain to be granted on that basis a claimant needed either to show “insurmountable obstacles” to continuing family life outside the UK or needed to demonstrate “exceptional circumstances” under article 8 ECHR. Mrs Agyarko and Mrs Ikuga were aggrieved by the Upper Tribunal’s refusal of permission to apply for judicial review proceedings of the Home Office’s refusal to grant them leave to remain. Agyarko (a Ghanaian) and Ikuga (a Nigerian) relied on their respective family lives to get leave to remain. However, their applications were refused because they failed on section EX.1(b) of Appendix FM of the Immigration Rules in light of the finding that there were no “insurmountable obstacles” preventing them from continuing their relationships outside the UK and that no exceptional circumstances under article 8 existed.

The court dismissed the appeals in light of Nagre [2013] EWHC 720 (Admin) – a judgment that is said to contain “an accurate statement of the law”. In line with his own decision from a couple of years ago, Sales LJ (as he now is) held that where a person unlawfully overstays and forms a relationship or gets married and wishes to remain the UK, the test of “insurmountable obstacles” is a “stringent” test. The court, moreover, explained that although the test is also to be interpreted in a sensible and practical rather than a purely literal way, it is more demanding than a mere test of whether it would be reasonable to expect a couple to continue their family life outside the UK. Continue reading

Posted in Appendix FM, Article 8, Children, Immigration Rules, Judicial Review, Proportionality, Spouses | Tagged , , , , | Leave a comment

‘Full Coverage’: Family Life, Exceptionality and the Rules

The Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387 (23 April 2015)

In these cases relating to the admission of spouses under Appendix FM, the Court of Appeal (Richards, Underhill and Sales LJJ) unanimously allowed the Home Office’s appeals against the decisions of the Upper Tribunal in the cases of SS (Congo), BM (Afghanistan), BB (Pakistan) and FA (Somalia). Their Lordships also refused to extend time for the Home Office to apply for permission to appeal in the cases of AC (Canada) and KG (India). The court held that compelling circumstances needed to be demonstrated in order to qualify for the grant of leave to enter outside the Immigration Rules (pursuant to residual discretion) on the basis of article 8 where an application for admission to the UK as the spouse or family member of a British citizen or refugee failed to meet the minimum income or evidence of income requirements under the rules. Richards LJ stressed the point that the use of the phrase “exceptional circumstances” in instructions to officials does not make the leave to remain and enter provisions of the rules into a complete code but he equally explained that nothing turns on the distinction, one which is clearly without a difference.

On the slippery subject of the codification of article 8 within the rules, Richards LJ held that the concept of a “complete code” should not be given undue weight by the courts. The question on appeal was whether the decisions of the First-tier Tribunal were so affected by Blake J’s overruled first instance reasoning in MM (Lebanon) [2013] EWHC 1900 (Admin) (see here) that the Home Office’s appeals fell to be allowed (which, of course, they were in light of the later ruling in MM (Lebanon) [2014] EWCA Civ 985, see here). All the respondents had been refused leave because their sponsoring spouse’s income failed to satisfy the minimum requirements in Appendix FM and Appendix FM-SE of the Immigration Rules. Continue reading

Posted in Appeals, Appendix FM, Article 8, Entry Clearance, Human Rights Act, Immigration Rules, Spouses | Tagged , , | Leave a comment

‘Evidential Flexibility’ in Supreme Court

Imagine that you made a mistake in your immigration application but were later able to fix the problem because of the “evidential flexibility” policy. This issue has vexed both litigants and the courts for quite some time now. On appeal from a decision of the Court of Appeal (Pitchford and Davis LJJ, Sir Stanley Burnton) reported at [2014] EWCA Civ 2 (20 January 2014), the case of Manish Mandalia (Appellant) v Secretary of State for the Home Department (Respondent) Case ID: UKSC 2014/0059 will be heard by Lady Hale DPSC, Lord Clarke, Lord Wilson, Lord Reed and Lord Hughes JJSC on 7 May 2015. The issue that needs to be decided is whether the Home Office was required to afford Mr Mandalia an opportunity to correct an error in his application for leave to remain before refusing it. Mandalia is from India. He entered the UK on a student visa in 2009. When he applied for further leave to remain as a student in February 2012 he was required by the relevant Immigration Rules to accompany his application with bank statements covering a 28-day period that demonstrated a minimum continuous balance of £5,400.

The bank statements he supplied with his application showed a credit balance in excess of £11,000 throughout. However, Mandalia made a mistake and provided statements covering only a 22-day period from 29 December 2011 to 19 January 2012. He complained that the Home Office did not apply its “evidential flexibility” policy to him. Upper Tribunal Judge Martin did not deal with any evidential flexibility policy arguments. Under the policy Mandalia would have had a chance to correct his mistake before his application was refused and a decision to remove him was made. Continue reading

Posted in Court of Appeal, Immigration Rules, India, PBS, s 19 UKBA 2007, Students, Tier 4, Tribunals | Tagged , , , | 2 Comments

Paragraph 353 is the Gateway to Human Rights Appeals

R (Waqar) v SSHD (statutory appeals/paragraph 353) (IJR) [2015] UKUT 169 (IAC) (25 March 2015)

This case exposes the conflict inherent in the system of appeals. Waqar argued that paragraph 353 of the Immigration Rules had been subsumed within the statutory provisions of the Nationality Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. He entered the UK in 2007 (aged 13) and in 2008 he was convicted of five counts of raping a boy (aged 7). Apparently, his crimes stretched over dozens of separate incidents and he repeatedly raped his victim. But Waqar appealed the decision to make a deportation order against him. He lost the appeal and the order was signed on 24 June 2014. However, not long before that, Waqar contracted an Islamic marriage in November 2012. It produced two children – in August 2013 and July 2014 – and a third child is expected. The matter of Waqar’s conviction is under review by the Criminal Convictions Review Committee. Coker and Kebede UTJJ’s judgment in the tribunal has already been dubbed “arguably dubious” because it inhibits the “new” species of human rights claim by making it fit the straitjacket of a “fresh claim” within the meaning of paragraph 353.

The unsavoury facts and the controversial path taken by the tribunal are only one side of coin and the cryptic legislative provisions involved make Waqar’s case challenging reading. In an attempt to mitigate confusion, Appendix B of the decision provides a tabular comparison of the old (Nationality, Immigration and Asylum Act 2002 in force immediately prior to the commencement of the Immigration Act 2014) and the new versions of the provisions engaged in the matter. Coker and Kebede UTJJ’s judgment also establishes that the Immigration Act 2014 (Transitional and Saving Provisions) Order 2014 – SI 2014/2928, made in consequence of defects in SI 2014/2771, or the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014) – brings those whose deportation decision (including a decision to refuse to revoke a deportation order) was made after 10 November 2014 into the new legislative regime irrespective of when they were convicted of a criminal offence. Continue reading

Posted in Appeals, Crime, Deportation, ECHR, Immigration Act 2014, Immigration Rules | Tagged , , , , | 3 Comments

Court of Appeal Avoids Referring Zambrano Question to CJEU

Secretary of State for the Home Department v AQ (Nigeria) & Ors [2015] EWCA Civ 250 (25 March 2015)

Apart from being legally complex, these cases are also factually controversial. AQ (Nigeria), TH (Bangladesh) and CD (Jamaica) were foreign criminals who each successfully appealed to the First tier-Tribunal against the decision to order their deportation under section 32(5) of the UK Borders Act 2007 (“the Act”). The Upper Tribunal upheld the First tier-Tribunal’s determinations in each case. In the Court of Appeal (Sullivan, Pitchford and King LJJ) common issues arose in relation to the correct application of Part 13 of the Immigration Rules (HC 395 as amended by HC 194 in July 2012) and the best interests of children as a primary consideration for the purposes of Article 8 of the European Convention on Human Rights (“ECHR”). The appellant Home Office argued that AQ, TH and CD were foreign criminals whose deportation was conducive to the public good under section 32(1) of the Act and that in proceedings below there had been a failure to accord proper weight to the policy laid down in the new rules that a very strong case on human rights was required to outweigh the public interest in their deportation.

The Court of Appeal unanimously allowed the Home Office’s appeals in AQ and CD’s cases and remitted their cases to the First-tier Tribunal for re-hearing because of the inadequacy of parts of the evidence upon which the tribunal reached its conclusions. The appeal in TH’s case was dismissed. Moreover, Pitchford LJ did not accept the Home Office’s invitation to make a reference to the Court of Justice of the European Union (“CJEU”). AQ was convicted of conspiracy to supply 12 kg cocaine. Under severe emotional trauma, TH stabbed her infant daughter in the stomach to demonstrate that if she could not have the child, then neither could her husband. CD had multiple cocaine offences, a sexual offence and other offences relating to threatening behaviour and possession of criminal property and cannabis. Continue reading

Posted in Article 3, Article 8, Automatic Deportation, Children, CJEU, Immigration Rules, UKBA 2007 | Tagged , , , , | Leave a comment

e-Borders Arbitration Set Aside for ‘Serious Irregularity’

These judgments given by Akenhead J relate to the e-Borders controversy. The e-Borders passenger information system was marketed as a one-stop solution to the UK’s immigration and security problems. Under e-Borders the Home Office sought to create an electronic system to examine everyone entering and exiting the UK by verifying their details against immigration, police and security related watch lists. In Raytheon Systems Ltd [2014] EWHC 4375 (TCC), Akenhead J set aside an arbitral award (in e-Borders contractor Raytheon’s favour) because of “serious irregularity” within the meaning of section 68(2)(d) of the Arbitration Act 1996 (“the 1996 Act”). In December 2014, the court held that the arbitration tribunal failed to deal with all the issues (of fault and responsibility attributable to Raytheon which were highly relevant to quantum) put to it. Subsequently, in Raytheon Systems Ltd [2015] EWHC 311 (TCC), in February 2015, Akenhead J set the arbitration award (£200+ million) aside in its entirety for serious irregularity and ordered a fresh hearing. The arbitrators’ identities remain undisclosed to the public and the rulings did not intend to reflect on their integrity or general competence. Despite successfully challenging the award in court, the government continued to negotiate and the Home Secretary announced on 27 March 2015 that the settlement with Raytheon was “a full and final payment of £150m.”

The earlier judgments, in the Home Office’s favour, were made publicly available in February 2015 and are perhaps the only authoritative documents in the public domain that shed light on the dispute. The award was set aside for serious irregularity because of the arbitrators’ failure to address issues, highly relevant to quantum, of fault and responsibility attributable to Raytheon. Signed in 2007, the e-Borders contract was worth around £750 million in total. Continue reading

Posted in Arrivals, Citizens Directive, CJEU, Court of Appeal, Politics, Terrorism | Tagged , , , , , | 3 Comments

Supreme Court: EU Law Fails Vietnamese Jihadist

Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015) – read fully updated article on SSRN.

In the case of Pham (formerly “B2”), Lord Neuberger PSC, Lady Hale DPSC and Lord Mance, Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath JJSC unanimously dismissed the suspected terrorist’s appeal. The Supreme Court held that Pham was a Vietnamese national at the time the Home Secretary deprived him of his British citizenship. The key issue for the court was whether the British Nationality Act 1981 (“the 1981 Act”) prevented the Home Secretary from depriving Pham of British citizenship because making an order of that nature would cause him to become stateless. The answer depended on the 1954 Convention relating to the Status of Stateless Persons (“the 1954 Convention”) and whether the alleged Al Qaeda trainee was “a person who is not considered as a national by any state under the operation of its law”. In the Supreme Court, Pham raised a new ground and argued that the deprivation decision was disproportionate and unlawful under EU law. However, the court did not find it necessary to resolve the dispute about EU law.

Born in Vietnam (Mongai) in 1983, Pham lived in Hong Kong with his parents prior to the family’s arrival in the UK in 1989. After claiming asylum they were granted indefinite leave to remain and later in 1995 they also acquired British citizenship. Pham and his parents never held Vietnamese passports and they never took any steps to renounce their Vietnamese nationality. In fact, the only document linking Pham to Vietnam is his birth certificate. He attended a college of design and communications in Kent and converted to Islam when he was 21 and it is contended that he subsequently descended into Islamic extremism and travelled to Yemen (December 2010 – July 2011). Continue reading

Posted in Citizens Directive, Citizenship and Nationality, CJEU, Deportation, Immigration Act 2014, Politics, Proportionality, Statelessness | Tagged , , , , | Leave a comment