Paragraph 353 is the Gateway to Human Rights Appeals

R (Waqar) v SSHD (statutory appeals/paragraph 353) (IJR) [2015] UKUT 169 (IAC) (25 March 2015)

This case exposes the conflict inherent in the system of appeals. Waqar argued that paragraph 353 of the Immigration Rules had been subsumed within the statutory provisions of the Nationality Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. He entered the UK in 2007 (aged 13) and in 2008 he was convicted of five counts of raping a boy (aged 7). Apparently, his crimes stretched over dozens of separate incidents and he repeatedly raped his victim. But Waqar appealed the decision to make a deportation order against him. He lost the appeal and the order was signed on 24 June 2014. However, not long before that, Waqar contracted an Islamic marriage in November 2012. It produced two children – in August 2013 and July 2014 – and a third child is expected. The matter of Waqar’s conviction is under review by the Criminal Convictions Review Committee. Coker and Kebede UTJJ’s judgment in the tribunal has already been dubbed “arguably dubious” because it inhibits the “new” species of human rights claim by making it fit the straitjacket of a “fresh claim” within the meaning of paragraph 353.

The unsavoury facts and the controversial path taken by the tribunal are only one side of coin and the cryptic legislative provisions involved make Waqar’s case challenging reading. In an attempt to mitigate confusion, Appendix B of the decision provides a tabular comparison of the old (Nationality, Immigration and Asylum Act 2002 in force immediately prior to the commencement of the Immigration Act 2014) and the new versions of the provisions engaged in the matter. Coker and Kebede UTJJ’s judgment also establishes that the Immigration Act 2014 (Transitional and Saving Provisions) Order 2014 – SI 2014/2928, made in consequence of defects in SI 2014/2771, or the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014) – brings those whose deportation decision (including a decision to refuse to revoke a deportation order) was made after 10 November 2014 into the new legislative regime irrespective of when they were convicted of a criminal offence. Continue reading

Posted in Appeals, Crime, Deportation, ECHR, Immigration Act 2014, Immigration Rules | Tagged , , , , | 3 Comments

Court of Appeal Avoids Referring Zambrano Question to CJEU

Secretary of State for the Home Department v AQ (Nigeria) & Ors [2015] EWCA Civ 250 (25 March 2015)

Apart from being legally complex, these cases are also factually controversial. AQ (Nigeria), TH (Bangladesh) and CD (Jamaica) were foreign criminals who each successfully appealed to the First tier-Tribunal against the decision to order their deportation under section 32(5) of the UK Borders Act 2007 (“the Act”). The Upper Tribunal upheld the First tier-Tribunal’s determinations in each case. In the Court of Appeal (Sullivan, Pitchford and King LJJ) common issues arose in relation to the correct application of Part 13 of the Immigration Rules (HC 395 as amended by HC 194 in July 2012) and the best interests of children as a primary consideration for the purposes of Article 8 of the European Convention on Human Rights (“ECHR”). The appellant Home Office argued that AQ, TH and CD were foreign criminals whose deportation was conducive to the public good under section 32(1) of the Act and that in proceedings below there had been a failure to accord proper weight to the policy laid down in the new rules that a very strong case on human rights was required to outweigh the public interest in their deportation.

The Court of Appeal unanimously allowed the Home Office’s appeals in AQ and CD’s cases and remitted their cases to the First-tier Tribunal for re-hearing because of the inadequacy of parts of the evidence upon which the tribunal reached its conclusions. The appeal in TH’s case was dismissed. Moreover, Pitchford LJ did not accept the Home Office’s invitation to make a reference to the Court of Justice of the European Union (“CJEU”). AQ was convicted of conspiracy to supply 12 kg cocaine. Under severe emotional trauma, TH stabbed her infant daughter in the stomach to demonstrate that if she could not have the child, then neither could her husband. CD had multiple cocaine offences, a sexual offence and other offences relating to threatening behaviour and possession of criminal property and cannabis. Continue reading

Posted in Article 3, Article 8, Automatic Deportation, Children, CJEU, Immigration Rules, UKBA 2007 | Tagged , , , , | 1 Comment

e-Borders Arbitration Set Aside for ‘Serious Irregularity’

These judgments given by Akenhead J relate to the e-Borders controversy. The e-Borders passenger information system was marketed as a one-stop solution to the UK’s immigration and security problems. Under e-Borders the Home Office sought to create an electronic system to examine everyone entering and exiting the UK by verifying their details against immigration, police and security related watch lists. In Raytheon Systems Ltd [2014] EWHC 4375 (TCC), Akenhead J set aside an arbitral award (in e-Borders contractor Raytheon’s favour) because of “serious irregularity” within the meaning of section 68(2)(d) of the Arbitration Act 1996 (“the 1996 Act”). In December 2014, the court held that the arbitration tribunal failed to deal with all the issues (of fault and responsibility attributable to Raytheon which were highly relevant to quantum) put to it. Subsequently, in Raytheon Systems Ltd [2015] EWHC 311 (TCC), in February 2015, Akenhead J set the arbitration award (£200+ million) aside in its entirety for serious irregularity and ordered a fresh hearing. The arbitrators’ identities remain undisclosed to the public and the rulings did not intend to reflect on their integrity or general competence. Despite successfully challenging the award in court, the government continued to negotiate and the Home Secretary announced on 27 March 2015 that the settlement with Raytheon was “a full and final payment of £150m.”

The earlier judgments, in the Home Office’s favour, were made publicly available in February 2015 and are perhaps the only authoritative documents in the public domain that shed light on the dispute. The award was set aside for serious irregularity because of the arbitrators’ failure to address issues, highly relevant to quantum, of fault and responsibility attributable to Raytheon. Signed in 2007, the e-Borders contract was worth around £750 million in total. Continue reading

Posted in Arrivals, Citizens Directive, CJEU, Court of Appeal, Politics, Terrorism | Tagged , , , , , | 3 Comments

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 , , , , | 1 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