Case Comment: SI (variation/curtailment – human rights ground) Pakistan [2011] UKUT 00118 (IAC)

This brief case makes a hulking legal point. Moreover, it illustrates the games which the UKBA “plays” with the objects of its control. Although the outcome was not in favour of SI (the appellant), the case is quite valuable because it reiterates that there is a right of appeal on human rights grounds where the UKBA (i) refuses to vary leave; (ii) decides to curtail leave; or (iii) decides to vary leave in a manner which in effect amounts to curtailing a person’s leave.

Although SI’s appeal pursuant to Article 8 of the ECHR was dismissed, it was determined by the Honourable Lady Dorrian that an appeal arising on human rights grounds should be heard before removal directions are made by the SSHD.

Coincidentally this approach was also espoused by Sedley LJ (as he then was) in TE (Eritrea) v SSHD [2009] ECWA Civ 174 where he explained that the state owed an obligation to make decisions “compendiously” so as to make things easier for everyone – itself included (see at [17] & [18]).

The favoured ploy cynically used by UKBA is to pretend that applications for leave to remain are out of time even where the said applications were clearly in time. Such behaviour is manifestly illegal as it makes a mockery of the Immigration (Notices) Regulations 2003 which require the SSHD to furnish the appropriate appeal form entailing and explaining a person’s right of appeal.

Last year “MBB” – an elderly Indian widow from Porbandar (the birth place of Mohandas KG or Mahatmaji/Bapu) – not only had her dependant relative application refused in the first instance, she was also deprived of her right of appeal because the UKBA was mendacious about the timing of her application.

MBB’s family had enough money to support her but these funds were viewed as insufficient by the UKBA (which intimated that she would be removed) despite her old age and dependence on her daughter.

Why MBB had to fight to obtain a right of appeal to have a hearing in the tribunal is an unanswered question which reflects negatively on the works of the SSHD and her servants in the UKBA whose preference is to use illegal methods to send an old woman “back to India” to live alone in misery and squalor. But to the SSHD’s surprise MBB now lives happily in Leicester with her family because she won her ILR claim on appeal. It should be noted that she is one of the lucky few and most people who are bullied by the UKBA bow down to the agency’s diktats.

While we are discussing the subject, it would be nice if the UKBA could explain why, for more than a year, the premium service for dependant relative applications “is suspended until further notice”? Additionally, given that postal applications now cost £1,814 there really is no excuse for the agency to pocket the money and deprive people of their appellate rights. In my view the UKBA should curtail its expertise in breaking up families and try to follow the law on appeals.

Similar to MBB, “SRP” (an Indian lad whose family was displaced from East Africa to India), arrived in the UK on a WHM visa – these are not extendable. His story is quite remarkable. His SAR exhibited that lawyers in England – some very prominent people who are now profoundly connected to Parliament – cashed in on his misery by making applications on his behalf which were bound to fail. (This was because he could not be classified as a dependant and did not live alone – HG and RG, rule 252 and the withdrawal of the Special Quota Voucher Scheme in the face of the 11 party JR remembered.)

Oh Empire, we have not forgotten thee!

When SRP made an application for leave to remain pursuant to Article 8 of the ECHR (not “Article 8 of the Human Rights Act”, but this is what was wrongly stated in the refusal letter!) the response was that his right of appeal was precluded under section 88 of the Nationality Immigration and Asylum Act 2002 because SRP sought to “remain in the United Kingdom for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules.”

The above illogic is at variance with the UK’s obligations under the Convention which no doubt trumps what the UKBA might say about SRP’s case and his rights of appeal under the rules. The striking thing about SRP is that as a married woman his mother was excluded from the SQVS. She staged a monumental struggle in order to obtain her British Overseas Citizen passport – which she finally converted into a full British passport. (To cut a very long story short.)

In SI’s case in the UTIAC the Honourable Lady Dorrian explained that contrary to the conclusion of the FTTIAC (which did not consider any allowances to be made for compassion or the Convention prior to removal directions being made):

We can only assume that the IJ has taken this as establishing that no human rights argument may be considered where removal directions have not been given. In our opinion it does no such thing.

It is hoped that the UKBA can take the above on board.

Given that very scant information is available on the subject of the East African Asians on the agency’s website, it is not too surprising that the UKBA’s decision makers fail to engage with human rights claims made by East African Asians.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Dependants, East African Asians, Families, Immigration Rules, Kenya, Pakistan, Removals, Sedley LJ, Settlement, SQVS, Tribunals, UKBA and tagged , , , , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.