Algerian father of five British children loses deportation battle

OH (Algeria) v The Secretary of State for the Home Department [2019] EWCA Civ 1763 (24 October 2019) 

The Court of Appeal has held that in considering a challenge to the deportation of a foreign national offender under section 117C of the Nationality, Immigration and Asylum Act 2002 all of the foreign criminal’s previous convictions are relevant (i.e. the entire criminal history), not just the offence that triggered the deportation order. Floyd, King and Irwin LJJ also explained that while approaching the statutory test in section 117C(6) of whether there are very compelling reasons not to deport a foreign criminal who had been sentenced to at least four years’ imprisonment, an obligation is placed upon the tribunal to be more than usually clear as to why such a conclusion is justified. OH an Algerian national appealed against the decisions of the Upper Tribunal (i) first quashing a decision of the First-tier Tribunal that he should not be deported, and (ii) second upon a rehearing dismissing his appeal against the deportation order. OH had five British children (A, B, C, D and E) because of his marriage to a British citizen HL in 1998. He had a very poor immigration history and an even more appalling criminal record. He lived continuously in the UK since 1995, his asylum appeal was dismissed in 1998. He was granted leave to remain because of his marriage to HL and was granted indefinite leave to remain (ILR) in 2003. However, he did not live with his family continuously. In 2004 he was convicted of causing grievous bodily harm with intent to do grievous bodily harm and sentenced to 8 years’ imprisonment. 

The Home Office wished to deport OH and his appeal to make a deportation order against him was dismissed in July 2007. Further attempts to appeal and related judicial review proceedings failed and a deportation order was served on him on 24 June 2008. Then the Home Office refused to revoke the deportation order in 2009 and after complex legal proceedings which went into the Court of Appeal, upon remittal OH won in the UT and was given successive grants of discretionary leave to remain, the last of which expired in May 2014. Prior to the expiry of his last grant, OH applied for further leave to remain and  while the application was pending he was further convicted of assault occasioning actual bodily harm. The offending occurred on 11 December 2014 and the conviction was on 16 May 2015. The assault was an attack on OH’s eldest child, a daughter and the resultant conviction triggered the decision-making under appeal in the present proceedings. A non-molestation order was made and discharged and OH returned to the family home in 2017. The notice setting out the reasons for deportation not only the 2015 conviction but all of OH’s previous convictions, including notably the conviction which led to the eight-year sentence. OH previously entered the UK in July 1988, he left a year later. In May 1991 he admitted to using a false passport to gain entry but it was unknown when he left before his return in 1995.

Home Office sticks to its guns on paragraph 322(5)

In Balajigari [2019] EWCA Civ 673 (discussed here), the Court of Appeal held that the use of paragraph 322(5) of the Immigration Rules in the cases of highly skilled Tier 1 (General) migrants (T1GMs) was “legally flawed” because SSHD decision-makers jumped to the unfair conclusion that any earnings discrepancies in T1GM applications are the result of dishonesty, without giving applicants an opportunity to proffer an innocent explanation. Hickinbottom, Underhill and Singh LJJ held that where the decision-maker is minded to refuse indefinite leave to remain (ILR) under paragraph 322(5) on the basis of the applicant’s dishonesty, or other reprehensible conduct, it is necessary as a matter of procedural fairness to indicate clearly to the applicant that the decision-maker has that suspicion, so as to give the applicant an opportunity to respond. The Home Office is required to take that response into account before concluding that there has been such conduct. The court said that refusal was “functionally equivalent” to a removal decision and that the lack of a “minded to refuse” letter rendered the refusal decisions procedurally unfair. “Earnings discrepancy” cases T1GM applicants were refused ILR because of discrepancies between earnings figures declared in applications for leave to remain and the figures declared in their tax returns for equivalent periods or a failure to file any return. Ideally an applicant’s immigration application should be free from discrepancies, errors and contradictions.

But this is easier said than done and most people cannot recall what they had said at an earlier stage and of course to make errors is only human. Immigration law and Home Office decision-makers might well take a different view. Paragraph 322(5) applies where it is “undesirable” to permit an applicant to remain in the UK “in the light of his conduct … character or associations or the fact that he represents a threat to national security” and the rule is set out under part 9 (grounds for refusal) of the Immigration Rules. Under the T1GM scheme, which used to be a key part of the points-based system, applicants were awarded points for attributes in which earnings played a major part. Hence it was possible for people to claim beefed up sums in earnings to earn points in immigration applications. Whether the same figures were recorded with HMRC was another matter. The Home Office review of these cases showed that since 2015 a total of 1,697 ILR applications from T1GMs migrants had been refused using paragraph 322(5). The judgment in Balajigari was seen as a positive development in this field but the new Home Office guidance on false representations is taking a tough stance making further litigation inevitable.

The Immigration (Amendment) (EU Exit) Regulations 2019

The Immigration (Amendment) (EU Exit) Regulations 2019 are made in exercise of the powers conferred by section 8(1) of the European Union (Withdrawal) Act 2018 (“the 2018 Act”), in order to address deficiencies in retained EU law arising from withdrawal of the UK from the EU. They also make consequential and saving provision under paragraph 21 of Schedule 7 to the 2018 Act. The regulations make amendments to legislation in the field of immigration and in particular amend the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). Notably, regulation 2(4) omits regulation 9 of the 2016 Regulations to remove provision for the 2016 Regulations to apply to a family member or extended family member of a British citizen where that British citizen has exercised EU Treaty rights in an EEA State. Moreover regulations 2(3) and (11) make provision consequential on that change. Regulation 4 sets out saving provisions so that the position of a person who had qualified under this route prior to commencement of this amendment is protected. It also makes provision for the 2016 Regulations to continue to apply to family members and extended family members of British citizens living in an EEA State at the time that these provisions commence who return to the UK after that date. Regulations 2(5), (10) and (12) have the effect that residence cards issued to third country national family members of EEA nationals by EEA States under articles 10 or 20 of Directive 2004/38/EC will no longer be valid for admission to the UK.

Furthermore, EEA nationals and their family members who do not produce on arrival the required documentation (a valid EEA passport or national identity card for an EEA national; a valid passport and valid EEA family permit or UK-issued residence card for a third country national family member) will no longer be able to establish a right of admission by other means or be given a chance to be brought these documents. Regulation 2(6) inserts a new regulation 15A into the 2016 Regulations. This amendment has the effect that a person who arrives in the United Kingdom after this amendment comes into force will not be able to acquire permanent residence under regulation 15 of the 2016 Regulations. But this does not apply to (a) a person outside of the UK on that date who was lawfully resident in the United Kingdom under the 2016 Regulations immediately before then or (b) a person who has leave to enter or remain granted by virtue of the EU Settlement Scheme. Regulation 2(8) revokes the restriction on systemic verification of rights of residence under the 2016 Regulations.

Changes in the Immigration Rules: Key Features of HC170

Statement of changes to the Immigration Rules HC 170 amends the Immigration Rules to reflect changes required if the UK leaves the EU without a deal. The changes affect EU, other EEA and Swiss citizens, and their family members. In order to increase security and better protect the public, these changes will apply UK conduct and criminality thresholds to both the pre-exit and post-exit conduct of EEA citizens and also their family members moving to the UK after Brexit. These thresholds will also apply to the post-exit conduct of EEA citizens living here before Brexit, and their family members, and to the pre-exit as well as post-exit conduct of EU citizens living in the UK before Brexit, and their family members, where their conduct after exit day results in a sentence of imprisonment. The changes will also provide access to the EU Settlement Scheme (EUSS) for certain categories of family members joining an EEA citizen resident here before Brexit, with applications by such family members able to rely on residence in the UK which began after Brexit, and to reflect the deadline by when applications by such family members will need to be made. Further, the changes establish the European Temporary Leave to Remain Scheme (Euro TLR), for EEA citizens, and their close family members, moving to the UK after a no deal Brexit and before the start of the new points-based immigration system from January 2021, to enable them to obtain a UK immigration status so that they can continue living and working here for a temporary period after 2020.

HC 170 addresses changes required if the UK leaves the EU on 31 October 2019 without a deal because. Pursuant to the European Union (Withdrawal) (No.2) Act 2019, Johnson sent a letter to the EU Council and the EU granted the UK a Brexit flextension until 31 January 2020. The European Union (Withdrawal) Act 2018 (Exit Day)(Amendment) (No.3) Regulations 2019 have changed the exit date from 31 October 2019 to 31 January 2020. Under the Johnson government’s revised withdrawal agreement a no deal Brexit is still possible at a later date. The EUSS is set out in Appendix EU of the Immigration Rules. It lays down the basis for UK immigration status under which EEA citizens resident in the UK and their family members, and the family members of certain UK nationals, will be able to remain in the UK permanently after Brexit. The EUSS coincides with the revised draft Withdrawal Agreement with the European Union of 17 October 2019 in relation to those EU citizens resident in the UK before the end of the planned implementation period on 31 December 2020, and their family members. The EUSS is meant to be consistent with the citizens’ rights agreements with other EEA countries (Iceland, Liechtenstein and Norway) and with Switzerland.

The new graduate immigration route for students

The Tier 1 (Post Study Work) visa category (PSW) was axed on 5 April 2012. In order to attract the “best and the brightest” to the UK, a new Tier 1 (Graduate Entrepreneur) visa scheme was devised to replace the older PSW category. The PSW was a popular visa category allowing those holding UK degrees to work in the UK for two years without any formal job offer or potential employment. However, after seven years, on 11 September 2019 the government announced the creation of a new Graduate Immigration Route with a view to enabling international students to remain in the UK for two years after they have completed their studies. I once had a PSW which enabled me to obtain Indefinite Leave to Remain (ILR) and then ultimately I was granted British citizenship. When I attempted to switch to Tier 2 (General) the application was refused because the extremely nasty Conservative party came to power on 6 May 2010 and entered into a coalition with the Liberal Democrats. Together they made changes to the system to reduce net migration to the tens of thousands. All this had meant that my Tier 2 (General) application was unlawfully refused. But on appeal I won on article 8 of the ECHR outside the Immigration Rules. The Immigration Judge, a Sikh, initially resisted my submissions but then became attracted to my arguments and announced that he would allow my appeal. 

To my surprise, afterwards in the corridor he congratulated me in Punjabi “well done, well done, Good Luck to you.” Ironically the Immigration Judge in question is infamous for dismissing human rights appeals. Boris Johnson has reportedly axed the Conservative’s net migration target and his spokesman confirmed that Johnson did not want to play “a numbers game”. Instead Johnson and his cabal wish to enter into a game built around the Australian style points-based system. Whatever the real intentions behind such changes, I can say that if the PSW and cat-style article 8 worked for me then there is every possibility that it will work for other people who possess the right credentials to win. The Graduate Immigration Route, the reinvented version of the PSW, will be available to international students who have completed a degree at undergraduate level or above at a UK Higher Education Provider with a track record of compliance and who have a valid Tier 4 visa at the time of application. Successful applicants will be able to stay and work, or look for work, in the UK at any skill level for a maximum period of two years. Graduates will be able to switch into skilled work once they have found a suitable job.

Brexit: Analysis of Miller and Cherry in Supreme Court

R (Miller/Cherry) v The Prime Minister [2019] UKSC 41 (24 September 2019) 

These proceedings concerned a “one-off” issue arising in circumstances unseen in history and unlikely to arise again. The Supreme Court was cautious to emphasise at the outset that these proceedings did not concern the terms on which the UK is to leave the EU and they only related to whether the advice given by Boris Johnson to the Queen was lawful, and any legal consequences if he misled her, when he had advised Her Majesty on 27 or 28 August 2019 that Parliament should be prorogued from a date between 9 and 12 September until 14 October. In the minds of the pro-Brexit lobby, the outcome prevented Boris Johnson’s despotic dream of proroguing Parliament to force the UK’s exit from the EU by 31 October 2019 by hook or by crook. The court unanimously held that the decision to advise Her Majesty to prorogue Parliament was unlawful because it produced the bad effect of frustrating or preventing Parliament’s ability to carry out its constitutional functions without reasonable justification. The issues for the Supreme Court were (i) is the question of whether the PM’s advice to the Queen was lawful justiciable in a court of law? (ii) if it is, by what standard is its lawfulness to be judged? (iii) by that standard, was it lawful? (iv) if it was not, what remedy should the court grant? In the Scottish Cherry proceedings, Lord Doherty, refused an application for an interim interdict to prevent prorogation. 

Then in the substantive hearing he refused the petition because he found that the issue was not justiciable in a court of law. Thereafter, Lords Carloway, Brodie and Drummond Young allowed the appeal and held that the advice given to Her Majesty was justiciable because it was motivated by the improper purpose of stymying Parliamentary scrutiny of the executive and that the advice and the prorogation which followed it were unlawful and thus null and of no effect. The petitioners in the Scottish judicial review cases were MPs and others challenging the executive’s actions to silence Parliament to achieve its political designs. In English proceedings, at first instance the Divisional Court dismissed Mrs Gina Miller’s claim on the ground that the issue was not justiciable (Sir John Major and others intervening). The Supreme Court overturned the Divisional Court’s negative judgment (Lord Burnett of Maldon LCJ, Sir Terence Etherton MR and Dame Victoria Sharp PQBD) and its 11 Justices were instantaneously denounced as enemies of the people in a rerun of the attack on the judiciary which was made by the pro-Brexit lobby when the Divisional Court held in 2016 that triggering article 50 without legislation was unlawful.

Court of Appeal: Article 8 assessments are fact intensive

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

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

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