Reflections on Zambrano: The Judgment in Chavez-Vilchez

Chavez-Vilchez and Others C-133/15 ECLI:EU:C:2017:354 (10 May 2017)

Minor EU children have a unique status in the CJEU’s jurisprudence and as these Dutch cases show, EU citizen children dependent on their non-EU parents are capable of repaying their debts to their foreign primary carer rather early in life. Indeed, the symbiotic nature of the relationship between a non-EU parent and the EU citizen child is reflected in the court’s finding that the parent may rely on a derived right of residence in the EU because of the child. These proceedings concerned eight third-country national mothers who each have one or more minor Netherlands national children whose fathers are holders of Netherlands nationality. Chavez-Vilchez is a Venezuelan national and the other mothers hold Cameroonian, Nicaraguan, Rwandan, Surinamese and Venezuelan nationality. One mother’s nationality is unclear but she entered from the former Yugoslavia. All of them live in difficult circumstances in the Netherlands and in each instance applications for social assistance and child benefit were rejected for the reason that without a right of residence, the mothers did not have any right to receive such assistance and benefits under national legislation. The refusal of social assistance and child benefit were premised on a restrictive interpretation of the judgments in Ruiz Zambrano (C-34/09, EU:C:2011:124) and Dereci and Others (C-256/11, EU:C:2011:734).

The Netherlands contended that the mere fact that a non-EU parent provides daily care to the EU citizen child and that the child is legally, financially or emotionally dependent on the non-EU parent does not lead to the automatic conclusion that the EU citizen child would be compelled to leave EU territory if a right of residence were refused to her parent. The mothers attempted to obtain social assistance and child benefit without having valid residence permits. All of them were not permitted to work. Some of them resided in the Netherlands lawfully. Others remained illegally but were not removed. The children’s fathers acknowledge them but they are in the care of their mothers. The facts of the cases differ as to the degree of the fathers’ contact with the children, their financial contributions towards their maintenance and custody rights. One father contributes to maintenance costs for his child. Five others do not contribute. Continue reading

Posted in Article 8, Brexit, CFR, Citizens Directive, Citizenship and Nationality, CJEU, ECHR, European Union, Families, Women | Tagged , , , , , , | Leave a comment

Asylum and Sexual Orientation: HJ (Iran) Guidance ‘Not Given in a Legal Vacuum’

LC (Albania) v Secretary of State for the Home Department (UNHCR Intervening) [2017] EWCA Civ 351 (09 May 2017)

HJ (Iran) [2010] UKSC 31 was a landmark judgment. The Supreme Court held that asylum should not be refused to a homosexual person on the basis that it could be considered reasonably tolerable that the asylum-seeker would have to hide their true sexuality on return to their home country in order to avoid persecution. The decision was criticised by the media for upholding the right of asylum on the basis of sexual orientation. It raised eyebrows in conservative circles. In these proceedings, Lord Rodger’s guidance came under attack for incompatibility with Directive 2004/83/EC (the Qualification Directive) as interpreted by the CJEU in Bundesrepublik Deutschland v Y and Z (Joined Cases C-71/11 and C-99/11) and Minister voor Immigratie en Asiel v X, Y and Z (Joined Cases C-199/12 to C-201/12) and their subsequent domestic application in MSM (Journalists; Political Opinion; Risk) Somalia [2015] UKUT 413 (IAC). In this case an Albanian appellant unsuccessfully argued that guidance imparted in HJ (Iran) was at variance with the Qualification Directive because of differentiating between someone whose modification of behaviour is “forced” by reason of his fear of persecution as opposed to someone whose modification of behaviour is “voluntary” with the result that the latter variety of person should not be granted refugee status.

Importantly, the home office conceded that the tribunals erred in relying upon MK (Lesbians) Albania CG [2009] UKAIT 36 as a country guidance case. LC alleged that Lord Rodger lost his way in HJ (Iran) because in light of subsequent CJEU authorities the true position is that where a gay person would conceal his sexual orientation on return then he is a refugee under the Qualification Directive irrespective of why he might hide his sexual orientation. Beatson, David Richards and Hickinbottom LJJ disagreed and unanimously dismissed his appeal. LC’s father discovered his relationship with an adolescent man and expelled him from the family home in Tirana. He entered the UK hidden in a lorry in 2012 (aged 16) and sought asylum claiming that he faced persecution in Albania because he was gay. His claim was refused and applying the HJ (Iran) guidance the First-tier Tribunal dismissed the appeal because the judge found that LC would not live openly as a gay man upon return to Albania but this would not be owing to fear of persecution. Thereafter the Upper Tribunal found no error of law and also dismissed the appeal. Continue reading

Posted in Ahmadis, Article 3, Asylum, CJEU, ECHR, European Union, Homophobia, Pakistan, UKSC | Tagged , , , , , | Leave a comment

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. Continue reading

Posted in Article 8, ECHR, Immigration Act 2014, Immigration Rules, India, Pakistan | Tagged , , , , , , | Leave a comment

Case Preview: Kiarie and Byndloss v SSHD

After a raft of cases on the “foreign criminal” theme – such as Nouazli [2016] UKSC 16, Johnson [2016] UKSC 56, Makhlouf [2016] UKSC 59 and Hesham Ali [2016] UKSC 60 – were decided last year, Kiarie and Byndloss (Appellants) v SSHD (Respondent) are yet more appeals involving the controversial subject of deportation to have reached the Supreme Court. The big difference is that these conjoined appeals arising out of the “deport first, appeal later” regime are probably just the first in a long series of cases that will require the justices to interpret the testing mechanics of the Immigration Act 2014. Lady Hale and Lords Wilson, Carnwath, Hodge and Toulson recently heard these appeals and reserved judgment on the issue whether section 94B of the Nationality, Immigration and Asylum Act 2002 complies with the procedural and substantive protections under article 8 of the ECHR. Kiaire and Byndloss both had indefinite leave to remain in the UK but received imprisonment of two and three years respectively because of their unconnected convictions for serious drug offences. Consequently, the home office decided to deport Kiaire to Kenya and Byndloss to Jamaica. Kiaire spent most of his life in the UK with his parents whereas Byndloss has a British spouse and has at least seven children by different partners.

It was mandatory under section 32(5) of the UK Borders Act 2007 for a deportation order to be made in both cases unless an exception in section 33 applied. Kiaire was not initially informed that consideration was being provided to section 94B. The provision entered into force on 28 July 2014 and the Court of Appeal was “appalled by the complexity” of the way it interacted with the appellate process. Byndloss was notified that his human rights claim had been certified under section 94B with the result that his appeal could only be heard once he had left the UK. The decision-makers involved rejected the possibility that they faced a real risk of serious irreversible harm if removed from the UK while the outcome of any appeal was pending. Both appellants instituted judicial review proceedings against the decisions to certify their claims. BID and Byndloss’s children are intervening in these proceedings. Continue reading

Posted in Africa, Appeals, Article 8, Automatic Deportation, Children, Deportation, ECHR, Human Rights Act, Immigration Act 2014, Immigration Act 2016, Jamaica, Judicial Review, Kenya, Public Interest, UKSC | Tagged , , , , , , , | 3 Comments

Jihad and the Cancellation of British Passports

R (XH and AI) v SSHD [2017] EWCA Civ 41 (02 February 2017)

Fighting in foreign wars is a rising trend among British Muslims. Now that more than 400 British jihadis have returned home they will inevitably indoctrinate impressionable youth into extremism. Ronald Fiddler, or Jamal al Harith, received £1m in compensation for abuses suffered in Guantánamo but he recently carried out a suicide bombing on behalf of the “Islamic State” (ISIS) group. The ironies are intense. Wounded servicemen are less fortunate and complain that they have to beg, borrow and steal to come up with funds to cope with the horrific life changing injuries that they suffered in the line of duty in Iraq and Afghanistan. Omar Deghayes was also detained in Guantánamo. Like hundreds of other British Muslims, his three young nephews went to Syria to overthrow the Damascus regime and two of them have reportedly been killed. Disgruntled Muslims in the West find it attractive to turn to extremism and violence to express rebellion against western values. The conflict is set to expand because of rising global resentment against Muslims who are perceived as being bad. Last month’s terrorist attack on Parliament by Khalid Masood – who converted to Islam like Fiddler – and Thursday’s thwarted attempt by Mohammed Khalid Omar Ali have only added further fuel to the fire.

XH and AI are British citizens who are considered a threat to the UK’s national security because of their ISIS links. Their passports were cancelled, using prerogative power, to prevent them from travelling to Syria/Iraq for extremist activities. It was contrary to the public interest for them to hold a British passport. The case raised important issues involving prerogative power and EU law. XH has convictions for criminal offences such as robbery, attempted robbery and possession of a bladed article. He was also found in possession of anti-American and anti-Israeli propaganda and violent jihad related videos. AI’s brother Mohammed travelled to Syria and is presently believed to be in Iraq supporting ISIS. From the authorities’ standpoint, the danger of them slipping away was such that it was appropriate to cancel their passports. XH was informed that he could travel within the EU, facilitated by a single-use travel document, if the risk was deemed to be manageable. Continue reading

Posted in Article 6, CFR, Citizens Directive, CJEU, Court of Appeal, ECHR, European Union, Judicial Review, Miller, Politics, Proportionality, Syria, Terrorism | Tagged , , , , , , , | Leave a comment

The Principles of Staying Proceedings in IJR

R (AO & AM) v SSHD (Stay of Proceedings – Principles) [2017] UKUT 168 (IAC) (28 March 2017)

You might be forgiven for thinking that only unethical people operating in the courts of Asia or Africa, where corruption reigns supreme, demand stays so as to frustrate the timely progression of cases. Courts clogged up with uncountable adjournments and stays are the hallmark of backward legal systems where those with more power habitually abuse the legal process. In reality the home office routinely uses the strategy of staying cases to gain the upper hand by delaying the timeliness of proceedings in order to frustrate the turning of the wheels of justice and uproot the rule of law. The present proceedings are protracted and these cases involve complex questions of refugee law. But the principles imparted in this presidential guidance are of very high value to anyone who has an interest in immigration judicial review (IJR). Even in straightforward everyday matters, which are not plagued by excessive complexity, those representing the secretary of state have a habit of asking for time to be extended for 35 days so that they can “take instructions” in order to file detailed grounds of defence. Usually no copy of an application to extend time will be served on the applicant or her representatives. Such outlandish behaviour is a regular feature in IJR cases.

Another extraordinary tactic is to demand a stay so that the hearing date is vacated and a listed case can be forcibly put behind a supposedly important case; the details of which are deliberately withheld. In such an environment, it is refreshing to learn that the stays sought by the home office in these proceedings were refused. Mr Justice McCloskey (President) held in these cases that UTIAC has the same power as the High Court to stay proceedings. The power is discretionary and its exercise is normally regulated by the important factors in the overriding objective. Moreover, great caution needs to be exercised if a stay application contends that the outcome of another case will significantly influence the outcome of proceedings. Furthermore, especially compelling justification will be needed to stay a case warranting urgent judicial decision-making. Finally, judicial priority must be given to unaccompanied teenagers suffering from serious psychological trauma seeking expedited family reunion. Continue reading

Posted in Access to Justice, Article 8, Asylum, CFR, Children, ECHR, Eritrea, Families, Judicial Review, Stays, UNCRC | Tagged , , , , , , , | Leave a comment

‘The Duty of the CPS is to the Public’: Article 8 and Prosecuting Refugees for False Documents

SXH (Appellant) v The Crown Prosecution Service (Respondent) [2017] UKSC 30

“This woman, in her short life, has had to endure experiences of the most horrific nature,” is how Lord Kerr described the appellant’s ordeal. However, the Supreme Court dismissed the Somali refugee’s appeal. Giving the main judgment, Lord Toulson held that a decision to prosecute an asylum seeker for entering with false documents does not breach article 8 of the ECHR. A victim of rape and extreme violence, “SXH” belonged to the minority Bajuni community. The Darood clan murdered her father. Her mother died in Al-Shabaab related violence. She escaped from Somalia, spent a year in Yemen and travelled to Holland from where she flew to the UK using a false British convention travel document supplied by an agent. Upon being discovered at UK immigration control she disclosed her true identity and immediately claimed asylum. After her asylum screening interview, an immigration officer informed her that if she returned to Holland she would not be prosecuted for the offence of possessing an identity document relating to someone else, with the intention of using it to establish her identity as that person’s identity, under section 25(1) of the Identity Cards Act 2006. She refused the offer, pressed her asylum claim and was consequently arrested on suspicion of committing the offence.

A conviction under section 25 was punishable with up to ten years’ imprisonment (section 25 was re-enacted by section 4 of the Identity Documents Act 2010). UNCHR intervened in these proceedings  The Prosecution of Offences Act 1985 created the CPS which is an autonomous body advising police, immigration and other officials on bringing criminal charges. The DPP heads the CPS and section 10 of the 1985 Act requires her to issue a Code for Crown Prosecutors which obliges prosecutors to apply a two-stage test in deciding whether someone should be prosecuted for an offence. Stage one is connected to considering whether sufficient evidence exists to provide a realistic prospect of conviction. Stage two turns on wide-ranging considerations and involves deciding whether a prosecution would be in the public interest. Continue reading

Posted in Agents, Article 5, Article 6, Article 8, CPS, ECHR, Judicial Review, Refugee Convention, Somalia, UKSC | Tagged , , , , , , , | 2 Comments