Indo-Pak Family is Successful in ‘Pure Article 8 Claims’

CS and Others (Proof of Foreign Law) India [2017] UKUT 199 (IAC)(2 May 2017)

Relations are particularly strained between India and Pakistan. Short of an actual war, things could not be worse between the historic rivals. The Indian government maintains an extreme stance against minorities. Nowadays the constitutionally “socialist democratic republic” encourages killing Muslims for eating beef. Burning churches is equally fashionable because they symbolise monotheism. It is common knowledge that Modi, recently seen hugging Trump, belongs to the RSS, the extremist organisation which murdered Gandhi because he preached non-violence to bridge India’s communal divide. Amid concerns that the Indian army has deliberately been discharging shotgun cartridges into crowds of unarmed Kashmiri demonstrators to blind them, western leaders conveniently ignore continuing human rights abuses by the Indian army in Kashmir because Modi is a handy ally in the battle against Islamic terrorism. These proceedings involved a family of five comprised of a 42-year old Indian father, his 39-year old Pakistani wife, and their three children aged 8, 4, and 2 years. The mother and the father had valid leave in the UK and married on 9 October 2008 but subsequently became overstayers and none of their children are British. The father and the oldest child have Indian nationality and the remaining children do not have nationality of either India or Pakistan.

The home office proposed to remove the father and oldest daughter to India and the mother and the other two children to Pakistan. Antecedent judicial review proceedings triggered by the refusal of the family’s human rights claim resulted in settlement. However, as is common practice, the home office refused to grant leave to remain even after settling the judicial review claim and proposed to remove the family in the manner outlined above. Thereafter, the First-tier Tribunal dismissed the appeals brought under article 8 of the ECHR because the judge proceeded on the flawed basis that the appellants ought to be treated as Indian nationals or as people who can be removed to India. Upon appeal the Upper Tribunal found no error of law in the First-tier judge’s decision. However, the Court of Appeal found that Upper Tribunal’s decision was incorrect because it did not fully consider the question of the immigration law of India.

McCloskey J

Rehearing the appeal as a differently constituted Upper Tribunal, the president noted that “voluminous documentary evidence” and “lengthy submissions” meant that the proceedings were unnecessarily plagued by inefficiency. The issue that stood out in the appeal was whether it be will be reasonably possible for the long established family life of the five appellants to be maintained, or re-established, if the family was removed in the manner proposed by the authorities. The answer, which turned on the domestic law of India and not on UK law, steered the judicial resolution of the issues linked to article 8 and section 55 of the Borders, Citizenship and Immigration Act 2009. The appellants, who appeared unrepresented because they had no money for lawyers, contended that both provisions would be violated by their proposed removal.

These were long and protracted proceedings but that did not prompt the home office to provide answers to important questions about the domestic laws of India and Pakistan despite the grand plan to fragment this family in the manner British imperialists partitioned India for their own self-serving interests. The core focus in the appeal was whether, after removal, the mother and the two younger children will be able to reunite with the father and oldest child in India and the outcome depended on Indian immigration laws. Yet no expert evidence was put before the tribunal in that regard.

Mentioning R (Hassan and Karada) (Returns to Malta – Dublin Regulation) IJR [2016] UKUT 452 (IAC), McCloskey J said that in UK courts it is possible to prove foreign law through expert evidence and a written report suffices in that regard. The party relying upon the foreign law in question bears the burden of proof and judicial notice of foreign law is rarely appropriate. In particular, can a Pakistani male married to an Indian female with children obtain a spousal visa was thefundamentally misconceived” question formulated by the home office bureaucracy to argue its case. McCloskey J remained suspicious of this approach.

Non-expert, misleading and vague internal documentation produced by the home office suggested that a Pakistani woman married to an Indian national would initially travel to India on a short-term entry visa or tourist visa but nevertheless maintained a caveat about the need for the Indian High Commission in London to provide clarification on the true state of affairs. The home office analysis was based on non-specific summary document produced by India’s Ministry of Home Affairs in order to assist local officials to process visa applications. Oddly it failed to refer to India’s immigration laws. Its author was not an “expert”.

Among other things, McCloskey J found the documentation at hand to be silent on the question of the two younger children. Rubric under the heads of “PAK women married to Indian nationals and staying in India” and “Long Term Visa (Pakistan nationals)” had no application to these appeals. This only warranted reiterating the question about the appellants’ future if they were removed in the manner proposed. The home office said after removal the family would be reunited in India under Indian immigration laws at an unspecified future date. However, the evidence available was flawed and “manifestly short” of showing the true effect of Indian law. It raised more questions than it answered and left the tribunal wondering whether family reunification will really be achieved. The tribunal said:

23. It follows that the cornerstone of the Secretary of State’s case crumbles and collapses. The main pillar upon which the Secretary of State has sought to justify the impugned removal decisions has been shown to be devoid of foundation. The expectation on which the Secretary of State’s decision was based is misconceived.

The appeals were “pure Article 8 ECHR claims” as no coverage was available to the family under the rules. The parents were in a genuine marital relationship and enjoyed genuine and subsisting parental relationships with their children who had spent their entire lives in the UK. It was unreasonable to expect them to relocate because of the fragmentation of the family unit and the highly uncertain prospects of family reunification. The obstacles to family reunification were apparent and nothing pointed to these being classified as surmountable.

The application of Part 5A of the Nationality, Immigration and Asylum Act 2002 meant that the appellants spoke excellent English, nothing suggested that they were a financial burden to the UK and these points were not contentious issues. The “little weight” provisions were against the family in the overall proportionality balancing exercise. The family’s 8-year old was a “qualifying child” and the tribunal said:

25. … it would plainly, not be reasonable to expose this child to all of the imponderables and adverse consequences above which her enforced removal from the United Kingdom would entail.

On section 55 and treating children’s interests as a primary consideration, an “inextricable link” existed “between the best interests of these children and the perpetuation of the family unit”. Therefore, enforcing removal would be unlawful because the family’s future required them to remain together.

Comment

Just to balance out the scales in secular India’s favour a bit, notably, Pakistan’s dreadful American and Saudi sponsored blasphemy laws are also in full swing. Taimoor Raza, an adherent of the Shia sect (the second largest in Islam), was recently found guilty of insulting the prophet Muhammad because a counter-terrorism official lured him into a sectarian argument on social media. Raza was casually given the death sentence by a lunatic judge in Bahawalpur.

Earlier on Mashal Khan, a 23-year-old journalism student, who campaigned against injustice and corruption was murdered by a mob alleging blasphemy. Mashal Khan, who had previously studied in Russia and followed Karl Marx and Che Guevara, was dragged him out of his dorm room in Abdul Wali Khan University and beaten, stripped and publicly shot dead. Police have arrested 33 people, including six university staff, and no evidence supporting any allegation of blasphemy has been uncovered. An independent report by Justice Ibadur Rehman Lodhi found that:

A majority of blasphemy cases were based on false accusations, stemming from property disputes or other personal or family vendettas rather than genuine instances of blasphemy.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 8, ECHR, Immigration Act 2014, Immigration Rules, India, Pakistan and tagged , , , , , , . Bookmark the permalink.

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