Reference by Supreme Court to CJEU: Does Enhanced Protection Depend on Permanent Residence?

Secretary of State for the Home Department v Franco Vomero (Italy) [2016] UKSC 49 (27 July 2016)

In analysing the future role of the courts in the post-Brexit legal landscape, Christina Lienen predicts a rise in EU law cases because of “people’s anxieties about their legal status and rights.” Noting that a number of complex EU law cases are pending before the Supreme Court, she concludes “that we will be in for a treat once the article 50 trigger is pulled.” Though a longstanding pre-Brexit matter, the case of Franco Vomero (FV) is one where the Supreme Court referred a series of questions about the interplay between of article 16 and article 28 of the Citizens’ Directive or 2004/38/EC. Almost four years ago, the Court of Appeal (Pill, Aikens and Rafferty LJJ, [2012] EWCA Civ 1199) held that a four-year period of imprisonment for manslaughter did not affect FV’s permanent residence in the UK for a continuous 10-year period prior to the decision to deport him. He came within the protection afforded by regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 and could only be deported on imperative grounds of public security, which were absent in his case. The Supreme Court granted permission to appeal in February 2013 but stayed proceedings because other references were already pending in MG (C-400/12, EU:C:2014:9) and Onuekwere (C-378/12, EU:C:2014:13).

Onuekwere involved a Nigerian national who married an Irish national exercising her right of freedom of movement and residence in the UK. The couple had two children but his criminality was problematic. He was convicted of a sexual offence, for facilitating another person’s illegal entry into the UK and for unlawful possession of false documents. In Onuekwere the CJEU confirmed that a period of imprisonment does not count towards calculating the five years of continuous residence necessary for a permanent right of residence under article 16 of the Directive. In keeping with that analysis, FV had not acquired any right of permanent residence before the date of the decision to deport him. Yet, a stubborn Italian, FV argued that the finding in Onuekwere is irrelevant because an EU citizen with no right of permanent residence may nonetheless acquire a right to enhanced protection from expulsion under article 28 of the Directive. Continue reading

Posted in Brexit, Cases, Citizens Directive, Citizenship and Nationality, CJEU, Court of Appeal, Deportation, Permanent Residence, Proportionality, UKSC | Tagged , , , , , , | 1 Comment

Analysis: Immigration Act 2016

A hostile environment hitting wrongdoing from every angle has been in the making for a long time. The Immigration Act 2016 builds on the foundations laid by the “flagship” Immigration Act 2014. The public tends to view foreigners as stealing local jobs and accuses them of driving wages down and pushing house prices up. This convenient grievance makes it fashionable to use immigration as a trump card to stir up anxieties with disgruntled locals. For example, the present transport secretary, Chris Grayling, who remained highly unpopular during his stint as former justice secretary, stressed that migration “will change the face of our country forever”. The popularity of migrant bashing and the opportunities that come with it are irresistible for power hungry individuals in search of a career boost. Only recently slippery politicians used the panic surrounding immigration as a convenient weapon to arouse the public’s prejudices in order to swing the referendum vote in favour of Brexit. It seems to have been a worthless thing to vote for because the influx of foreigners into the UK will not diminish. Fortifying earlier measures, the new Act remains firmly rooted in the belief that sweeping legislative changes can cure the problems posed by immigration. 

The paradox is that trying to fix up the shambolic immigration system with constant changes to the statute book is virtually incapable of being part of the cure. The trend of keeping things in a state of flux causes uncertainty and the dizzying variations underpinning changes in the law are part of the disease. It is manifestly clear that standards cannot be met despite constant hikes in fees. Theresa May’s failure to reduce net migration to the tens of thousands and the ultimate abandonment of this goal altogether by Amber Rudd represents wholesale failure. So from that angle the deficit in public trust could not be greater. Whilst its predecessor legislation targeted the appeals regime and blitzed almost a dozen and a half appeal rights to a meagre four, the new workhorse Act contains a bevy of provisions in relation to access to services, Continue reading

Posted in Asylum, Brexit, Children, Deportation, ECHR, Economy, Employment, Enforcement, European Union, Fees, Immigration Act 2014, Immigration Act 2016, Islam, PBS, Public Interest, s 55 BCIA | Tagged , , , , , , , , | 1 Comment

No Section 83 Right of Appeal for Asylum Decision

MS (Uganda) v Secretary of State for the Home Department [2016] UKSC 33 (22 June 2016)

This case is somewhat academic because it relates to the construction of section 83 of the Nationality, Immigration and Asylum Act 2002. The provision laid down an additional right of appeal specific to asylum claims and has been repealed by section 15(3) of the Immigration Act 2014 by a broader right of appeal but remains applicable to a limited class of persons such as MS. The appeal went to the Supreme Court against the decision of Elias, Lewison and Floyd LJJ, [2014] 1 WLR 2766, who dismissed MS’s appeal. Lord Neuberger (President), Lady Hale (Deputy President), Lord Wilson, Lord Hughes and Lord Toulson came to the same conclusion but for different reasons. MS was granted leave as a student in 2010 until April 2012 but before its expiry he claimed asylum on the ground that his family’s alleged political activities in Uganda would cause him to be mistreated. The claim was rejected. His leave was not varied but any existing leave was not curtailed. The question was whether under section 83 of the 2002 Act it was necessary for the relevant grant of leave to remain to be contemporaneous with or to post-date the refusal of the asylum claim in order for MS to benefit from the right of appeal.

His brother was a terrorism suspect in Uganda and he argued his brother’s situation put him in jeopardy and he faced a real risk of persecution in the event of return. When he was refused asylum, MS had approximately about 11 weeks of leave to remain as a student. The First-tier Tribunal dismissed his claim to refugee status. Its jurisdiction was not in doubt until the Upper Tribunal held he had no right of appeal. The Court of Appeal found likewise. Giving the Supreme Court’s unanimous judgment, on the “shortly-stated” question of statutory construction Lord Hughes remarked: “the brevity with which the issue can be identified does not reflect the intrinsic difficulty of resolving it.” Continue reading

Posted in Africa, Appeals, Asylum, Immigration Act 2014, Persecution, Refugee Convention, Terrorism, Tribunals, UKSC | Tagged , , , , , | 1 Comment

Safe to Return: Asylum and Unlawful Exit from Iran

SSH and HR (illegal exit: failed asylum seeker) (CG) [2016] UKUT 308 (IAC) (29 June 2016)

With former home secretary Theresa May at the helm as prime minister, these days the British are preoccupied with hammering out a good Brexit deal with Europe. This intriguing case involved exiting Iran by illegal means. The invasion of Iraq in 2003 was a moment of huge disempowerment for secular Sunni Arabs. As the Chilcot Report has confirmed, military action was premature if not entirely misconceived and unjustified. Diplomatic options, which remained underutilised, were a far superior way of dealing with Saddam Hussein. Apart from successes for the historically betrayed Kurds who finally have some autonomy, a resurgent Iran has greatly benefitted from the lawlessness prevalent in the new Iraq and these days the commander of the Iranian army’s elite Quds force – which specialises in clandestine operations and foreign wars – Major General Qasem Soleimani seems to be calling the shots in hotspots like Fallujah and Aleppo. The spillover from the invasion also ignited the Syrian civil war, which may have led to as many as 470,000 deaths by some estimates. A similar death toll has also been reported for Iraq. One thing is for sure. Like much of the Middle East, Iraq has been transformed from an orderly dictatorship into a mixture of unruly militia territories interspersed with ISIS controlled zones.

Another consequence of Iraq has been the west’s paralysis over intervening in Syria, a failure cleverly milked by president Putin. After having suffered heavy losses during the Iran-Iraq War (1980-1988) revenge must be extremely sweet for the Iranians who are now in control in Iraq. They are also no longer directly at loggerheads with western powers because of last summer’s JCPOA. The two appellants in this case, SSH and HR, were both of Kurdish ethnicity. SSH claimed membership of Party for a Free Life in Kurdistan (PJAK) and said he stored arms in his house but his account was entirely disbelieved as a fabrication. HR claimed to have conducted political activities such as distributing pro-Kurdish leaflets/books to other like-minded Kurds and said his activities led him to fear for his safety when Iranian authorities apprehended a friend who was similarly active in politics. Continue reading

Posted in Article 3, Asylum, Blogging, Brexit, ECHR, FCO, Iran, Iraq, Politics, Refugee Convention, Syria, Terrorism, Tribunals | Tagged , , , , , , , | 1 Comment

Qualification Directive and Previous Torture: What is the Scope of Coverage for Mental Illness?

MP (Sri Lanka) v Secretary of State for the Home Department [2016] UKSC 32 (22 June 2016)

Nowadays, the island nation of Sri Lanka is a popular tourist destination. People from all over South Asia, and elsewhere, flock to marvel at the country’s historical attractions and its overwhelming natural beauty. But, rather than being driven by genuine peace making, stability in Sri Lanka was achieved through the barrel of the gun and mass murder. As if the Sinhalese government’s war crimes were not enough, the country is also governed under a plenary system whereby “Parliament has turned out to be ineffective against an over-mighty executive President, playing to the President’s tune.” Rather than speaking “softly” and carrying “a big stick”, senior academics and lawyers in the country are united in their view that “Parliament has been talking big while carrying a fiddle stick.” In this Sri Lankan case, Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Hughes and Lord Toulson decided to make a reference to the CJEU and asked: Does article 2(e), read with article 15(b), of the Qualification Directive cover a real risk of serious harm to the physical or psychological health of the applicant if returned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?

MP, the appellant 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 (now tamed) Liberation Tigers of Tamil Eelam (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 story 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. Continue reading

Posted in Article 3, Asylum, CJEU, ECHR, European Union, Sri Lanka, Terrorism, UKSC | Tagged , , , , | Leave a comment

Lone Women and Ostracism in Pakistan

SM (Lone Women – Ostracism) Pakistan [2016] UKUT 67 (IAC) (2 February 2016)

Like his clever creator, Kipling’s fictional character of the orphaned/vagabond Irish immigrant child Kimball O’Hara – the devoted chela (disciple) of a lama – lived in late 19th century Lahore whose administration was run by 70 British civil servants. But, as seen in the photo, nowadays things are quite different in Punjab. Commando policewomen keep watch over Sikhs arriving in Wagah for pilgrimage near Lahore in the village of Talwandi (Sheikhupura district) where Sri Guru Nanak Dev ji was born in 1469. Despite such scenes, domestic violence remains at chronic levels in Pakistan. However, limited hope can nevertheless be found in the paradox that despite being a male dominated society, Pakistan’s feudal and patriarchal roots have produced strong willed women. Even almost a decade after her assassination, Pakistan is still very much Benazir Bhutto country. It is also Malala Yousufzai territory and the co-recipient of the Nobel peace prize (2014) is aspiring to follow in the murdered prime minister’s footsteps. Even Nawaz Sharif – a rather venal character who sold his soul to the ultra-misogynist Saudis long ago – has tipped his daughter, Maryam Nawaz, to be his successor and she seems destined to replace him if he cannot survive his heart problems and the political fallout of the Panama Papers.

SM, the appellant, was from Lahore. When she came to the UK in 2004 she abided by the terms of her visa and returned. But in 2006 she entered again and claimed asylum three-and-a-half years later in April 2010 on the ground that while in the UK she had become involved with someone other than her alienated husband, a wealthy and powerful person who would seek revenge upon her return to Pakistan, and had three children with him (but only after many miscarriages). She contended no shelter in Lahore would give her refuge and she was unable to relocate to another part of the country. In May 2010, her claim was dismissed and a decision was taken to remove her from the UK. Sitting as UTJJ Gleeson and Kebede, the Upper Tribunal dismissed her appeal on asylum, humanitarian protection and human rights grounds. Continue reading

Posted in Article 3, Article 8, Asylum, Hale JSC, Immigration Act 2014, Islam, Pakistan, Persecution, Politics, Refugee Convention, s 55 BCIA, Tribunals, Women | Tagged , , , , , , | 4 Comments

‘Unduly Harsh’ is an Ordinary English Expression

005MM (Uganda) & Anor v Secretary of State for the Home Department [2016] EWCA Civ 450 (20 April 2016)

These proceedings are about two foreign criminals, a drug dealer (MM, a Ugandan) and a fraudster (KO, a Nigerian). They pour cold water over the theory that criminally minded individuals are able to overcome expulsion from the UK against the odds by clever use of human rights law. Automatic deportation under section 32 of the UK Borders Act 2007 is avoidable where a foreign criminal can demonstrate under human rights law that the effect on a qualifying child or partner would be unduly harsh. In circumstances where the deportation of a foreign criminal leads to the violation of ECHR rights, then under section 33(2)(a) of the 2007 Act that person should not be deported. The Immigration Act 2014 added fresh flavour to article 8. Because of conflicting tribunal authority on the subject, the present cases involved the construction of “unduly harsh” within the meaning of paragraph 399 of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002. Laws LJ held that MAB (USA) [2015] UKUT 435 was wrongly decided. The Court of Appeal unanimously dismissed the fraudster’s appeal. But it allowed the appeal against the drug dealer and remitted the case back to the tribunal for reconsideration.

In this judgment, Laws LJ was clear that it is not possible to turn a blind eye to “all the circumstances” – which of course include the immigration history and criminal conduct of the person in question. Accordingly, his Lordship found a need to desist from merely examining the “unduly harsh” effects of a criminal’s deportation on his child or partner in a vacuum. The 2014 Act purportedly reformed the crumbling edifice of the 2002 Act by inserting a new Part 5A (article 8 of the ECHR: public interest considerations) which applied from 28 July 2014. Among other things, pursuant to the amendments, courts and tribunals must give regard to section 117C whereby deporting foreign criminals is in the public interest which, as held by the court in this case, increases exponentially with the degree of seriousness of the offence. Continue reading

Posted in Article 8, Automatic Deportation, Children, Court of Appeal, Crime, ECHR, Human Rights Act, Immigration Act 2014, Immigration Rules, Nigeria, Uganda | Tagged , , , , , , | 1 Comment