Article 8 and Entry Clearance: The Final Nail in the Coffin

Secretary of State for the Home Department v Onuorah [2017] EWCA Civ 1757 (03 November 2017)

Notably, the Court of Appeal has confirmed the correctness of its decision in the recent case of Kopoi [2017] EWCA Civ 1511 (see here). The court unanimously held that short visits to the UK do not engage either family life or private life within the meaning of article 8 of the ECHR. Singh LJ rejected submissions arising out of various Strasbourg authorities because they were being placed outside their context. Delivering the court’s judgment, his Lordship said that he was inescapably bound by the Court of Appeal’s previous rulings whereas Strasbourg authorities only needed to be taken into account under section 2(1) of the Human Rights Act 1998. The decision is yet another blow to individuals attempting to exaggerate the scope of family life or private life in their entry clearance cases. The judgment seems to be the final nail in the coffin of persons raising article 8 between adults in cases where there is no clear-cut evidence of dependency. Born in 1985, Chioma Goodness Onuorah is from Nigeria where she lives with her husband. Both of them are employed. She applied for a visit visa to the UK under the sponsorship of her brother Franklin Onuorah, a naturalised British citizen who is married with two children. In July 2014, the Entry Clearance Officer (ECO, Abuja) refused her application for a visit visa because of concerns about the genuineness of her intentions to enter the UK as a visitor for a limited period.

The appeal to the First-tier Tribunal was successful. Judge Manuell accepted Franklin Onuorah’s evidence and found him to be an honest witness. He was also satisfied that Onuorah did in fact intend to return to Nigeria after her brief visit to the UK. He said that he would have had no hesitation in allowing the appeal under 41 of the Immigration Rules had the option been available to him, but it was not available because family visitor visas applications made after 25 June 2013 no longer enjoyed a right of appeal. Although Onuorah had no family life in the UK, the FTT thought that the refusal directly affected her British brother and his two British children. Judge Manuell decided that the refusal was incorrect because it disregarded proportionality. In his view, Onuorah would comply with her visa conditions and the public interest under article 8(2) was satisfied because there was no evidence to show that the she was someone who would breach the law if permitted to visit the UK for short visit. The ECO, who appealed, was directed to issue her with the type of visit visa for the correct fee had been paid. Continue reading

Posted in Appeals, Article 2, Article 8, Court of Appeal, ECHR, Entry Clearance, Human Rights Act, Immigration Rules, Proportionality, Tribunals | Tagged , , , , , , | Leave a comment

‘Nothing Irrational’ about Abolishing Appeal Rights in Domestic Violence Cases

R (on the application of AT) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin) (18 October 2017)

These judicial review proceedings relate to appeal rights in a hostile environment, domestic violence and indefinite leave to remain in the UK. Despite granting AT’s application, Kerr J held that the SSHD was “perfectly entitled” to enact delegated legislation to remove the right of appeal from victims of domestic violence in immigration cases whose claims were not human rights claims, and replace that right with administrative review. On the other hand, that did not mean that she could remove the right of appeal for domestic violence claims that were also human rights claims. AT was Pakistani national born in July 1992 who entered the UK in June 2013 with entry clearance for six months as the fiancée of a British citizen. In late 2013, she married UZ at a civil ceremony in Oldham. She was granted leave to remain until July 2016 as a British citizen’s spouse. Typical of abused Pakistani women, she initially loved her husband very much but her marriage fell apart because of domestic violence, which broadly defined includes coercive and also controlling behaviour and the infliction of psychological as well as physical injury. The situation led her in-laws to arrange her return to Pakistan. In a letter written to the Home Office, UZ counterclaimed in March 2015 that AT bullied and belittled him. He said she considered him to be worthless because he is disabled.

He said she was a fraud and used him to gain entry to the UK. He stressed that their marriage had broken down irretrievably. He wanted a divorce and hoped that the authorities would remove her from this country. He also said she had told his father that she did not like living in the UK and wished to return to Pakistan. The Home Office curtailed AT’s leave to remain on the basis of UZ’s letter. Claiming that her marriage had broken down because of domestic violence, AT applied for ILR assisted by evidence from her GP, her aunt and her friend. The decision-maker refused AT’s application and the refusal was upheld upon administrative review. Her removal was suspended when urgent judicial review proceedings were instituted contending that the court should grant an order quashing the words in paragraph AR3.2(c)(xiii) of Appendix AR of the Immigration Rules, which replaced the right of appeal to the First-tier Tribunal in a domestic violence case – that was also a human rights claim – with the process of administrative review. The offensive words being “not where an application is made under… section DVILR (domestic violence)”. Continue reading

Posted in Appeals, Appendix FM, Article 2, Article 3, Article 8, Domestic Violence, ECHR, Forced marriage, Human Rights Act, Immigration Act 2014, Immigration Rules, Judicial Review, Pakistan, Settlement | Tagged , , , , , , | Leave a comment

Case Preview: B (Algeria) v SSHD

The respondent “B” entered the UK illegally in 1993. He is probably from Algeria. But since he refuses to identify himself his real nationality is unknown. Earlier this month, the Supreme Court heard the SSHD’s appeal on the issue whether, once there is no longer a lawful basis for the detention of an individual pending deportation, there is still a power to grant bail and impose bail conditions in respect of that individual under the Immigration Act 1971. Notably, in 1998, B was arrested on suspicion of terrorism and involvement with the GIA. Subsequently, SIAC determined that he had links with procuring equipment sent to Islamists in Chechnya. Between 2002 and 2005 he was detained, latterly in Broadmoor, under the Anti-Terrorism, Crime and Security Act 2001. In August 2005, he was notified of the SSHD’s intention to deport him. Arguing that his return to Algeria would result in violations of article 3 of the ECHR, he appealed and in April 2006 he was granted bail conditional upon finding suitable accommodation; but none was found and he stayed in Broadmoor. Overall B remained either in prison or on conditional bail, including special bail conditions to allow his admission to hospital, until 2014. The appeal was heard but SIAC adjourned proceedings as part heard upon discovering that B gave a false name in his notice of appeal. In January 2007, directions were given pursuant to the SIAC (Procedure) Rules 2003 for B to reveal his identity, including his full name.

He refused to comply but consented to provide a DNA sample. In July 2007, SIAC made a fresh order (containing a penal notice) requiring B to provide the information. In 2008, B was held to be a threat to national security. SIAC judged that B’s conduct was an abuse of process and that he had intentionally caused a deadlock in the progression of his appeal. Upon the SSHD’s application, SIAC ordered B’s committal to prison for four months as a consequence of him “deliberately and contumeliously” disobeying the July 2007 order in contempt of court. Upon release from prison in April 2013, he was admitted to the Highgate Centre for Mental Health. Applying the Hardial Singh [1984] 1 WLR 704 principles, SIAC held in February 2014 that B could no longer be lawfully be detained because there was no reasonable prospect of removing him to Algeria and the ordinary legal basis for justifying his detention had fallen away. In April 2014, B’s bail conditions were further relaxed. The SSHD applied to strike out the appeal against the notice of decision to deport B. Continue reading

Posted in Article 3, Article 5, Bail, CFR, Court of Appeal, Deportation, Detention, Dyson JSC/MR, ECHR, Proportionality, Public Interest, SIAC, Terrorism, UKSC | Tagged , , , , , , | 2 Comments

An ‘Important Milestone’: The Judgment in Lounes

Lounes v Secretary of State for the Home Department (C-165/16, EU:C:2017:862)

In this judgment, the CJEU has embraced AG Bot’s opinion that EU law does not take away with one hand that which it has given with the other. The outcome means that a non-EU national is able to benefit from a right of residence in the member state where his EU citizen family member resided before acquiring its nationality in addition to her original nationality. The conditions governing the grant of the said right of residence must not be stricter than those set out in the Citizens’ Directive (2004/38/EC). Toufik Lounes is Algerian. He entered the UK as a visitor on a six-month visa in January 2010 and overstayed illegally. Lounes formed a relationship with Perla Nerea García Ormazábal (Mrs Lounes) in 2013. Thereafter, in January 2014, they entered into an Islamic marriage. A civil ceremony took place in May 2014. Shortly before that, Mr Lounes was notified of his liability to removal as an overstayer and a removal decision was served on him. A month earlier, he had applied for an EEA residence card on the basis of his marriage. Mrs Lounes moved from Spain to the UK to study English in 1996. She attended university in the UK and after receiving an undergraduate degree in applied computing she undertook professional training and obtained full-time work in London at the Turkish Embassy.

She resided in the UK in the exercise of her rights under the Directive. In August 2009, she became a naturalised British citizen and acquired a British passport. Mr Lounes was refused an EEA residence card because of his wife’s dual nationality. In McCarthy (C‑434/09, EU:C:2011:277), the CJEU held that the Directive does not apply to an EU citizen who had never exercised his right of free movement, had always resided in the member state of his nationality and was, additionally, a national of another member state. Lang J thought it was unclear whether the amendments to the definition of “EEA national” unlawfully restricted her right to free movement under article 21 TFEU and the Directive. Therefore, taking account of Mrs Lounes’s specific history, her Ladyship queried the compatibility of UK legislation with EU law and referred the following of question to the CJEU: Are she and her spouse both beneficiaries of the Directive, within the meaning of article 3(1), whilst she is residing in the UK, and holding both Spanish nationality and British citizenship? Continue reading

Posted in Citizens Directive, Citizenship and Nationality, CJEU, European Union, Families, Free Movement, Judicial Review, Permanent Residence, Spouses | Tagged , , , , , , , , | Leave a comment

Appeal Rights and EFMs: The End of Sala

Khan v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1755 (09 November 2017)

Appeal rights in a hostile environment are a hotly debated topic in immigration law. Enforcement officials are notorious for denying appeal rights to immigration subjects. Sometimes immigration judges tend to mimic this behaviour. In these proceedings, the Court of Appeal held that the case of Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (IAC) was wrongly decided. The demise of Sala is being widely celebrated by immigration lawyers and appellants alike. The Upper Tribunal was wrong to find that no statutory right of appeal exists against a refusal to grant a residence card to a person claiming to be an extended family member (EFM) of an EEA national. Contrary to the findings made by CMG Ockelton VP and UTJ Grubb in Sala, the First-tier Tribunal and the Upper Tribunal do indeed have jurisdiction to hear an appeal where the Home Secretary refuses to exercise her discretion to grant a residence card to someone claiming to be an EFM within the meaning of regulation 17(4) of the Immigration (European Economic Area) Regulations 2006. The exercise of such discretion is an “EEA Decision” within the meaning of regulation 2(1). Muhammad Yasir Khan is from Pakistan. Relying on his uncle, a German national, he applied for a residence permit as an EFM but his application was refused in 2014 because the decision-maker did not accept that he was an EFM under regulation 8(2).

The First-tier Tribunal allowed his appeal in 2015. However, in 2016, applying Sala the Upper Tribunal found that there was no jurisdiction to hear the appeal. Consequently, the refusal had to be challenged by judicial review proceedings instead. Undeterred, Khan appealed to the Court of Appeal arguing three points. First, that Upper Tribunal should have permitted the parties to make submissions as to the decision in Sala, and the existence of the jurisdiction, before reaching its determination on the issue. Second, and most importantly, that in any event, Sala was wrongly decided, and whether as a matter of domestic statutory construction, or as a matter of EU law, there is a right of appeal to the tribunal system. Third, that even if Sala was correctly decided, and the 2006 Regulations cannot be construed so as to afford an EFM a right of appeal to the tribunals, they should be struck down as incompatible with EU law (permission was refused on this ground). Continue reading

Posted in Appeals, Article 8, CFR, Citizens Directive, CJEU, Court of Appeal, ECHR, European Union, Immigration Act 2014, Judges, OFMs, Proportionality, UKSC | Tagged , , , , , , , , | 1 Comment

Deceptive Criminal from Sierra Leone Triumphs on Citizens’ Directive in Court of Appeal

R (Decker) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1752 (03 November 2017)

These judicial review proceedings relate to the refusal of a residence card and the right approach to the validity of deportation orders. The Court of Appeal held that refusing an EEA residence card to the appellant Arthur Obafemi Cecil Decker was unlawful because proper consideration had never been provided to whether he really represented a “genuine, present and sufficiently serious threat” within the meaning of article 27(2) of the Citizens’ Directive as transposed by regulation 21 of the Immigration (European Economic Area) Regulations 2006. Jackson, Lewison and Hamblen LJJ did not think it was obvious how the question would have been decided in light of the tribunal’s findings that Decker posed a low risk of reoffending, his offending was dated and conducted long ago in his youth, and that he had not subsequently reoffended. Decker is from Sierra Leone and entered the UK a visitor in 2000 when he was aged 17. He arrived with his sister Winifred. Their asylum applications were refused but Winifred was granted indefinite leave to remain under the legacy exercise. Because he submitted forged medical documents with an immigration application, in 2005 Decker was convicted of trying to obtain leave by deception for which he was sentenced to 15 months’ detention in a young offenders’ institution. In 2008, he was notified of the decision to make a deportation order against him.

While his appeal was pending he moved to Ireland in 2009 with his sister Jennifer, a British citizen exercising Treaty rights and was therefore granted an EEA residence card as an extended family member. His appeal was withdrawn and a deportation order was signed against him. He subsequently returned to the UK eight months later and sought an EEA residence card on the ground that he was Jennifer’s dependent and a member of her household. The application was refused in 2010 and refused after reconsideration in 2011 and 2012. The First-tier Tribunal dismissed the appeal against the refusal and the Upper Tribunal refused permission to appeal. The Home Office refused to revoke the deportation order. Decker challenged the decision to remove him by instituting judicial review proceedings, attacking the validity of the deportation order made when he was in Ireland and the decision to detain him. He also challenged the Upper Tribunal’s decision to refuse permission to appeal and the refusal and certification of his application to revoke the deportation order. Continue reading

Posted in Appeals, Article 8, Asylum, Citizens Directive, Deception, Deportation, Detention, Entry Clearance, European Union, False Statements and Misrepresentations, Judicial Review, OFMs, UKSC | Tagged , , , , , , , , , , | Leave a comment

AG Bot: No Coverage for Mental Illness and Past Torture under the Qualification Directive

The annihilation of the Liberation Tigers of Tamil Eelam (LTTE) came at the cost of widespread human rights abuses and “unacceptably high” civilian casualties if not outright genocide. In MP (Sri Lanka) (C‑353/16, EU:C:2017:795), a reference from the UK Supreme Court, the CJEU is asked to rule on the question whether a third country national, who was tortured in the past but will no longer face torture upon return, is entitled to subsidiary protection because his psychological conditions would be treated inadequately by his state of origin’s healthcare system. Essentially, the question relates to the precise scope of coverage for mental illness and past torture within the meaning of the Qualification Directive (2004/83/EC). These proceedings provide a fresh opportunity for the CJEU to interpret article 2(e) and article 15(b) of the Directive or to alternatively rule on article 3 of the ECHR and article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). In a conservative mood, Advocate General Yves Bot proposed that, notwithstanding article 3 of the ECHR and article 14(1) of CAT, the CJEU should rule that article 2(e) and article 15(b) of the Directive impose no obligation on EU states to widen the scope of subsidiary protection to include cases such MP’s case. MP came to the UK from Sri Lanka in early 2005 as a student.

His leave to remain was extended to September 2008 but a further extension was refused in December 2008. Thereafter, he claimed asylum on the basis that he had been a member of the LTTE because of which the Sri Lankan security forces detained and tortured him. He said his LTTE background meant he was at risk of further ill-treatment if returned to the Sri Lanka. His claim was refused in February 2009. His narrative about LTTE membership and detention and torture claims were not disputed but it was not accepted that he would be of continuing interest to the Sri Lankan authorities or at risk of further ill-treatment if he were returned. Along with two others, MP was one of the appellants in the country guidance case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC). The medical evidence pointed to the scars on his chest, arms and limbs to be “highly consistent” with his claims of being beaten with blunt instruments and other forms of torture such as cigarette burns and hot iron bar burns and cuts to his hand with a knife. Continue reading

Posted in Article 3, Asylum, ECHR, European Union, Persecution, Politics, Refugee Convention, Settlement, Sri Lanka, Terrorism, UKSC | Tagged , , , , , , , | Leave a comment