Supreme Court: EU Law Fails Vietnamese Jihadist

Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015) – read fully updated article on SSRN.

In the case of Pham (formerly “B2”), Lord Neuberger PSC, Lady Hale DPSC and Lord Mance, Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath JJSC unanimously dismissed the suspected terrorist’s appeal. The Supreme Court held that Pham was a Vietnamese national at the time the Home Secretary deprived him of his British citizenship. The key issue for the court was whether the British Nationality Act 1981 (“the 1981 Act”) prevented the Home Secretary from depriving Pham of British citizenship because making an order of that nature would cause him to become stateless. The answer depended on the 1954 Convention relating to the Status of Stateless Persons (“the 1954 Convention”) and whether the alleged Al Qaeda trainee was “a person who is not considered as a national by any state under the operation of its law”. In the Supreme Court, Pham raised a new ground and argued that the deprivation decision was disproportionate and unlawful under EU law. However, the court did not find it necessary to resolve the dispute about EU law.

Born in Vietnam (Mongai) in 1983, Pham lived in Hong Kong with his parents prior to the family’s arrival in the UK in 1989. After claiming asylum they were granted indefinite leave to remain and later in 1995 they also acquired British citizenship. Pham and his parents never held Vietnamese passports and they never took any steps to renounce their Vietnamese nationality. In fact, the only document linking Pham to Vietnam is his birth certificate. He attended a college of design and communications in Kent and converted to Islam when he was 21 and it is contended that he subsequently descended into Islamic extremism and travelled to Yemen (December 2010 – July 2011). Continue reading

Posted in Citizens Directive, Citizenship and Nationality, CJEU, Deportation, Immigration Act 2014, Politics, Proportionality, Statelessness | Tagged , , , , | Leave a comment

Union Law and Kafka under the EEA Regulations

The Immigration (European Economic Area) (Amendment) Regulations 2015 (“the 2015 Regulations”), which enter into force on 6 April 2015, further amend the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). Among other things, the 2015 Regulations aim to amend the transposition of Directive 2004/38/EC (“the Citizens’ Directive”) and implement the decision in Case C-202/13 McCarthy and Others ECLI:EU:C:2014:2450; they also aim to synchronise the 2006 Regulations with the new system of appeals produced by the Immigration Act 2014 (“the 2014 Act”) that will apply to all appeals from next month. Part 5 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), which contains the appeals’ infrastructure in relation to immigration decisions, intersects with the appeals system established by the 2006 Regulations. With the arrival of the 2014 Act, and the reformulation of appeals’ framework, several provisions of the 2002 Act have been recast in a different form (see here). The 2015 Regulations were instantaneously denounced for shirking the responsibility of implementing other recent case law of the Court of Justice of the European Union (“CJEU”).

The overhaul of the appeals system under the 2014 Act stipulates that an appeal to the tribunal can be made in three instances: against the refusal of a human rights claim and a protection claim; and against the revocation of refugee or humanitarian protection status. Regulation 4 (amendments to the 2006 regulations) and schedule 1 paragraph 15 of the 2015 Regulations amend schedule 1 – relating to appeals to the tribunal – of the 2006 Regulations with the result that the amended appeals regime becomes applicable to Continue reading

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HC 1116 and ‘Abuse’ of Asylum by Syrians

s01_10031615Statement of Changes in Immigration Rules HC 1116 was immediately condemned as “sickening”. Undoubtedly, the formula of a well-founded fear of persecution is wide open to abuse. However, in light of all the carnage that we have witnessed over the last few years, nothing could be further from the truth in the case of Syria. Designed to be a preemptive instrument, HC 1116 removes the transit without visa exemption in respect of Syrians possessing a B1 (temporary visitor for business) or B2 (temporary visitor for pleasure) category visa for entry to the United States of America. Not so long ago, the mosques of Damascus and Aleppo attracted tourists from every corner of the world who wanted to see the relics of the “Golden Age of Islam”. In addition to being a centre of culture and spiritualism, Syria was also the birthplace of Arab nationalism. Because of the Tigris and Euphrates, long before Islam’s advent as a religion and its emergence as a political force, it was an integral part of the ancient Near East. To be sure, northeastern Syria was part of Mesopotamia – the widely accepted “cradle of civilisation”.

In more recent times, despite being a dictatorship, the country became infected with the socialism of Salah ad-Din al-Bitar and Michel Aflaq. Compared to Wahabi Saudi Arabia or Khomeinist Iran, Syria was a “progressive” place. Unsurprisingly, the country used to be a popular destination for people who wanted to learn Arabic because the Syrian people were friendlier and their accent was superior to the Egyptian, Gulf or North African strands of the Arabic language. All this is no more. Bitar and Aflaq’s homeland has been transformed into a war zone and a hotbed of terrorism. It is now a place where innocents, like Prophet Muhammad’s grandson Husayn ibn ‘Alī ibn Abī Tālib, wanting to help make things better are mercilessly slaughtered in the name of Allah. Continue reading

Posted in Asylum, Immigration Rules, Pakistan, Persecution, Syria, Terrorism, Visitors | Tagged , , , | 1 Comment

‘Messy’ Article 3 and the ‘Obscure Policy of Mercy’

SJ v BELGIUM 70055/10, Judgment (Struck out of the List), (Grand Chamber), 19/03/2015

When she was eight months pregnant, SJ (a Nigerian national born in 1989) claimed asylum in Belgium in July 2007. She contended that she had fled Nigeria because the family of the child’s father, MA, with whom she had lived since childhood, pressurised her to have an abortion. SJ had already claimed asylum in Malta. Hence, pursuant to the Dublin II Regulation, the Belgian Aliens Office requested the Maltese authorities to deal with her asylum application. In August 2007, SJ was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral treatment and expressed her inability to travel for six months and requested psychological counseling. In November 2007, she additionally applied to remain in Belgium on the basis of her medical condition. The Aliens Office said that non-nationals could avail treatment for AIDS in Malta. It subsequently changed its mind and accepted responsibility for the asylum claim in 2009 because SJ was pregnant with her second child. In April 2009 SJ gave birth to her second child and in November 2012 she gave birth to a third child.

All of the children had the same father, MA, who, beginning on an unspecified date, spent occasional periods in Belgium without a residence permit. SJ’s asylum claim failed because of inconsistencies in narrative. The refusal was upheld in 2010 and SJ did not appeal to the Conseil d’État. The same year an official medical adviser opined that treatment for AIDS was available in Nigeria. The application on medical grounds was also refused and SJ was served, in November 2010, with an order to leave Belgium. However, ultimately SJ and her children were granted indefinite residence permits. Continue reading

Posted in Article 3, Article 8, Asylum, Belgium, CFR, CJEU, Court of Appeal, ECHR | Tagged , , , , | Leave a comment

Court of Appeal: American Visitor’s Appeal Allowed

PG (USA) v The Secretary of State for the Home Department [2015] EWCA Civ 118 (26 February 2015)

In this case, Elias and Fulford LJJ, Dame Janet Smith allowed Phyllis Gain’s appeal and remitted the matter to the Upper Tribunal in order for the article 8 decision to be remade. Gain, a 76-year old American national worked for the United States Foreign Service between 1965 and 2005. Her daughter’s family, including three daughters, moved to the UK in 2012 because her son-in-law (called Mr Stuck) worked as a minister of religion. Gain had two hip replacements and had fractured her arm. In the USA she moved with her family each time Mr Stuck was transferred to a new church. Her family in the UK had been granted leave to remain until mid-2015 pursuant to the Tier 2 (Minister of Religion) route and hoped to settle in this country. However, Gain’s entry clearance application was refused in June 2012 because she failed to show financial dependence on a relevant relative who was present or settled in the UK and that she did not meet the rules for points-based system dependants as she was not Mr Stuck’s spouse, partner or child.

Gain appealed against the refusal and upon review the Entry Clearance Manager thought that in light of her wealth she could visit the UK to see her family and found a “limited” interference with article 8 ECHR because the decision was justified and proportionate in the interests of maintaining effective immigration control. However, she nevertheless entered the UK as a visitor and in January 2013 she sought to renew her leave on that basis but her application was refused in March 2013 because the decision-maker was (i) not satisfied that as a result of the extension she would not have been in the UK for more than 6 months; and Continue reading

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Article 8 and Public Interest Considerations: Key Features

Dube (ss. 117A-117D) [2015] UKUT 90 (IAC) (24 February 2015)

This was the Home Office’s appeal against the decision of First-tier Tribunal where the judge upheld Dube’s appeal in relation to being refused indefinite leave to remain. Dube was a female Zimbabwean born in 1948 who entered the UK as a visitor in 2002. Her initial attempts to remain in the UK on human rights grounds failed and appeal rights became exhausted in 2005. She overstayed but made further applications for leave to remain in 2010, 2011 and 2012. In response to the application made in 2012, the Home Office did not consider it sufficient reasoning to grant leave to Dube despite the fact that she was HIV positive (diagnosed in 2003) and that she suffered from hyperthyroidism, dizzy spells and memory loss. Similarly, the refusal rejected the claim that she had formed a family life with her children and grandchildren in the UK. Similarly, her assertions that she had ties to the Seventh Day Adventist Church amounted to naught and were immaterial. She had not been in the UK for 20 years and she also accepted that she had family ties with two brothers and a 37-year old son in Zimbabwe.

The refusal maintained that she remained in the UK with full knowledge of her illegal status. She could return to Zimbabwe and continue her activities with her church there. Her health problems could be addressed in Zimbabwe as confirmed by the Country of Origin Service Report. Despite all this, the First-tier judge conducted a freewheeling sort of article 8 ECHR analysis. He concluded that Dube discharged the burden of proof and the reasons given by the decision-maker did not justify the refusal. Applying EB (Kosovo) [2008] UKHL 41, he found that with the passage of time, where a person should have been removed but was not, the importance of immigration control became diluted. Continue reading

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Presidential Guidance on Article 8 and Entry Clearance

Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) (6 March 2015)

The Entry Clearance Officer (ECO, Cairo) appealed the decision of the First-tier Tribunal to allow Mostafa’s appeal against the ECO’s decision in September 2013 to refuse him entry clearance to the UK as a family visitor to visit his wife, a British citizen ordinarily residing in the UK. The refusal of entry clearance related to the ECO’s reservations about Mostafa visiting the UK for a limited period and that he would leave at the end of the visit. The refusal advised Mostafa that his right of appeal was limited to section 84(1)(c) of the Nationality, Immigration and Asylum Act 2002, that the decision was unlawful under section 6 of the Human Rights Act 1998 as being incompatible with Mostafa’s Convention rights. The First-tier judge allowed the appeal on the Immigration Rules but made no finding on article 8, which was “unequivocally” raised in the grounds of appeal and skeleton argument. In mounting his appeal, the ECO argued that was not open to the First-tier Tribunal to consider whether the decision was in accordance with the rules or otherwise in accordance with the law.

McCloskey J and Perkins UTJ said at para 9 that the question of entertaining an appeal on the basis that the decision was not in accordance with the law or the rules did not arise because these grounds were impermissible. On the other hand, as in Mostafa’s case, where an appellant had demonstrated that the refusal of entry clearance interfered with article 8 rights, it was necessary to assess the evidence and see if the substance of the rules had been met the appellant because the potential to satisfy the rules informed the proportionality of the decision to refuse entry clearance. Continue reading

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