R (O) v Secretary of State for the Home Department  UKSC 19 (27 April 2016)
Heaven knows: Yarl’s Wood IRC – the infamous British Gulag where pregnant women and children are locked up – may even make the likes of president Putin squirm on an off day. But rarely will the great British state cringe at the ugly truths lurking behind the scenes in detention centres operated by private contractors who profit from “indefinite” detention (and apparently also sexually prey on vulnerable people deprived of their liberty). A Nigerian national aged 38 who entered the UK illegally in late 2003 with her three-year old son, O suffered from mental health problems that instigated attempted suicide, other self-harm, hallucinations, unpredictable mood-swings and impulsive outbursts for which she received high doses of anti-psychotic and anti-depressant medication. She was detained at Yarl’s Wood for almost three years (2008-2011) purportedly justified by the risks of absconding and harm despite a 2009 recommendation, under section 48 of the Mental Health Act 1983, for her transfer to hospital. O’s case turned on official policy on detaining the mentally ill pending deportation. It readily demonstrates the abjectness of the predicament of detainees and even Lord Wilson confessed that he knew nothing about her circumstances after 6 July 2011 but deduced “she has not, or not yet, been deported.”
Yet under the principle in Lumba  UKSC 12 it was held that permitting her judicial review claim to proceed would result in a £1 award for damages because she had already been released from detention when it was issued “and it could bring her no practical benefit.” Since it relates to detention, this case overlaps slightly with the decision in Nouazli  UKSC 16 (see here). Supported by the interveners – Bail for Immigration Detainees and Medical Justice – O successfully argued that the authority of R (Francis)(Bail for Immigration Detainees intervening)  EWCA Civ 718 had been wrongly decided. Continue reading
Posted in Article 5, Asylum, Deportation, Detention, ECHR, European Union, Immigration Act 2016, Judicial Review, Legal Aid, Nigeria, UKSC, Yarl's Wood IRC
Tagged Asylum, Case Law, Detention, Judicial Review, Mental Illness, Removals, UK Supreme Court
R (Nouazli) v Secretary of State for the Home Department  UKSC 16 (20 April 2016)
Algeria and immigration bring to mind the image of radical Islam. For example, in a decade long deportation battle involving six Algerian men which represents a serious blow to UK counter-terrorism efforts, SIAC recently said: “It is not inconceivable that these appellants, if returned to Algeria, would be subjected to ill-treatment infringing article 3. There is a real risk of such a breach.” The home office is not pursuing a further appeal despite its insistence that it is “disappointed” with the ruling against the men, who are accused of having had “direct links” to Osama bin Ladin and are therefore seen as a “risk” by the authorities. But of course the context was radically different in the case of Rachid Nouazli, also an Algerian national who had serious problems of addiction to class A drugs such as crack and heroin and who was described by the criminal courts as “a pest, a nuisance” because of his recidivism. Nouazli was not a violent offender and his appeal involved a variety of themes including asylum, marriage, EU law and the highly controversial issue of immigration detention – a costly and demeaning way of dealing with the problems of immigration control.
Among other things, the Supreme Court considered whether the absence of a time limit rendered Nouazli’s detention unlawful under EU law. However, the outcome of the appeal demonstrates that EU law is not always a trump card against the host member state. Importantly, in the case of JN v United Kingdom  ECHR 434, the European Court of Human Rights (First Section) ruled on 19 May 2016 that the absence of a time limit in UK immigration detention cases is not a breach of human rights. (Yet the court held that the lack of “due diligence” by the authorities resulted in a violation of article 5.) JN was unhappy with his long detention and complained about unclear time limits on the maximum period of immigration detention and the unavailability of automatic judicial review. If anything, the decision in Nouazli’s case produced the same result Continue reading
Posted in Algeria, Article 3, Article 5, CFR, Citizens Directive, CJEU, Deportation, Detention, ECHR, European Union, Immigration Act 2014, Judicial Review, Proportionality, UKSC
Tagged 2004/38/EC, Asylum, Criminal Offences, Detention, ECHR, European Union, Judicial Review, Terrorism, UK Supreme Court
Strangely enough David Cameron and Theresa May are supporting the UK’s membership of the EU despite their condemnation of the CJEU for usurping the rightful place of Parliament. Masquerading as the “good guys”, they appear less opposed to EU law’s “legal colonisation” than some others in their party who equate remaining in the EU as an open invitation to Paris-style terror attacks in London; an argument built on the theory that EU law is evil law. Alfredo Rendón Marín and CS both have criminal records, they received nine and twelve months’ imprisonment respectively. But the big difference is that CS is Abu Hamza’s daughter-in-law, the bloodthirsty Egyptian cleric who lost both hands and an eye in Afghanistan only to return to the UK to preach hatred in “Londonistan”. Some sources claim Osama bin Laden used to mock and ridicule Hamza for his injuries, which he apparently sustained while handling explosives, because they showed that Allah did not love him. To preserve his honour as an Arab, Hamza needed to cast the impression that he sustained his injuries fighting on the battlefield rather than in some freak accident – indeed, during his US trial he expressed his wish for the former.
CS was convicted of smuggling a mobile phone SIM card, in breach of the rules, when the extremist preacher was jailed. She is said to have concealed the SIM in the watch pocket of her jeans. CS’s son is British and Advocate General Maciej Szpunar’s Opinion can be seen as a blow to the rule of law because it awards rights to “a bunch of terrorists”. Marín, a Columbian national, has two minor children who were born in Malaga. His son is a Spanish national and his daughter is a Polish national and both children have always lived in Spain. The Advocate General found that a non-EU national with sole care and control of a minor child who is an EU citizen may not be expelled from a Member State or be refused a residence permit purely because of having a criminal record. Continue reading
Posted in Afghan War, Article 3, Article 8, Asylum, CFR, Children, Citizens Directive, CJEU, Deportation, ECHR, Muslims, Pakistan, Politics, Proportionality, Public Interest, Settlement, Terrorism, UKBA 2007, UKSC
Tagged 2004/38/EC, Article 8, Criminal Offences, ECHR, European Union, Free Movement, Refugee Convention, Terrorism, Tribunals, UK Supreme Court
The Secretary of State for the Home Department v Begum  EWCA Civ 122 (03 March 2016)
The inception of the new rules meant that in-country dependent relative applications were abolished so that net migration could be reduced to the tens of thousands. Wholesale failure in achieving that goal has come at the cost of prejudicing the elderly who are being badly disrespected both by first instance decision-makers and “specialist” tribunals jubilantly applying the rigid rules. The net result is widespread despair and it is common for clueless officials and heartless tribunal judges to feel a certain amount of pleasure, or even euphoria, by insulting the sick and the old who are in need of their families’ help and care. However, as shown by the arguments made to the Supreme Court in the MIR litigation (not to be confused with the Russian space station, which is probably easier to get a visa for), specifying article 8 rights in the immigration rules may be a great starting point but it cannot be the end of the story. The facts in the recent case of Razia Begum – a namesake of Razia, Sultan of Delhi 1236-1240 – confirm that it is possible to fight and win even on the tight parameters to article 8 ECHR laid down in the rules.
Begum’s two sons, two daughters (married to British citizens), 12 grandchildren and brother are all British citizens with longstanding residence in the UK. The case also shows that not all judges are afraid of granting leave on the basis of private life. Aged 70, Begum was ultimately given leave to remain on paragraph 276ADE(vi), as in force at the material time, even though she had lived in Pakistan for more than 60 years and a fifth columnist immigration judge seems to have done the unthinkable, i.e. grant an in-country “dependent relative” leave to remain on the private life criteria set out in the rules! From that angle, the case breathes much needed life into the overall coherence Continue reading
Posted in Appendix FM, Article 8, Court of Appeal, Dependants, Families, Immigration Rules, India, Pakistan, Proportionality
Tagged Article 8, ECHR, Immigration Rules, Removals, Tribunals, UK Supreme Court
Despite stiff competition from other cases, these appeals have got to be the showdown of the year. Tearing through the UK’s social fabric the country’s immigration rules are a minefield and have been producing more than their fair share of contentious and protracted litigation copious amounts of which keeps piling up on the Supreme Court’s doorstep. Legal limbo is a frequent visitor for the court’s justices and the well-known appeals of MM (Lebanon), AM (Pakistan), Master AF, SJ (Pakistan) and SS (Congo) were finally heard for three days (22-24 Feb 2016) by Lady Hale (Deputy President), Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes and Lord Hodge. The infamous question for the Supreme Court is whether the Minimum Income Requirement (MIR) for a UK citizen or resident wishing to bring a non-EEA spouse or partner into the UK is in breach of article 8 ECHR, unlawfully discriminatory and/or irrational? Devastation caused by the rules sets new standards in brutality because they are forcing British citizens into exile. The requirements were made part of the rules on 9 July 2012 through statement of changes HC194 and the savage consequences of the muscular rules laid down in Appendix FM are at the heart of these appeals.
In addition to extortionist fees for applications which dissuade many from applying in the first place, the complexities of the rules mean that there is a high certainty that an extremely large number of applications will inevitably be refused. As reported, estimates suggest that 43 per cent of the UK’s population fails the MIR and the appellants argue that the rules are absurd. The case is equally remarkable because it is the British government’s express position that “more affluent people integrate better”. However, the appellants submit that less affluent people have a greater incentive to integrate by doing everyday things such as speaking to their neighbours etc. Continue reading
Posted in Appendix FM, Article 8, Asylum, Citizenship and Nationality, ECHR, Entry Clearance, Families, Human Rights Act, Immigration Rules, Judicial Review, Pakistan, Proportionality, Tribunals, UKSC
Tagged Article 8, British Nationality, Children, Dependants, ECHR, Fees, Immigration Rules, Investors, Marriage, Spouses, UK Supreme Court
In Re B (A Child)  UKSC 4 (3 February 2016)
Perhaps facts never get more interesting than they are in this case. Then again, neither do laws. Under section 377 of the Pakistan Penal Code (Act XLV of 1860), “carnal intercourse against the order of nature with any man, woman or animal” constitutes an “unnatural offence” and “penetration is sufficient to constitute the carnal intercourse necessary to the offence.” The origins of this crime, authored by Lord Macaulay, are clearly rooted in the vestiges of British imperialism and the maximum punishment is life imprisonment but lesser sentences/fines may be imposed instead. “The absence of habitual residence anywhere places a child in a legal limbo,” remained Lord Wilson’s point of departure in this case about two British women in a same-sex relationship who used an unknown sperm donor of Asian ethnicity and had a daughter known as “B” who was born in April 2008. Though British nationals, the appellant and the biological mother were of Indian and Pakistani origin respectively and had a relationship from 2004 to 2011. The big twist in the story came when B was removed to Pakistan on 3 February 2014 when the respondent lawfully took her to live in that country where they have remained ever since.
The key question raised by the appeal was whether the traditional understanding of the point at which habitual residence is lost needed recalibration because of the Supreme Court’s recent adoption of the European concept of habitual residence. Yet, apart from the trials and tribulations of family law, this case is ultimately also symbolic of the hamstrung relationship between India and Pakistan. Of course the appellant (aged 35) also has a strong claim to being a “mother”, albeit she and the respondent (aged 45) did not enter into a civil partnership. The latter was primarily responsible for B’s care but both mothers were co-parents Continue reading
Posted in Adoption, Article 6, Article 8, Children, CJEU, ECHR, Families, Hague Convention, India, Nationality, Pakistan, UKSC, USSC
Tagged B2R, Children, ECHR, European Union, Habitual Residence, Inherent Jurisdiction, LGBTI, UK Supreme Court
R (Johnson) v The Secretary of State for the Home Department  EWCA Civ 22 (26 January 2016)
In yet another a win for the home office, the Court of Appeal (Arden, Laws and Lindblom LJJ) found no violation of article 14 read with article 8 of the European Convention on Human Rights in relation to denial of British nationality at birth to Eric Erron Johnson, a convicted offender and Jamaican national subject to a deportation order who was the illegitimate child of a British father and a Jamaican mother. Delivering the judgment of the court, Arden LJ held that Dingemans J had erred in his conclusion as regards a continuing violation having occurred from Johnson’s birth in Jamaica on 18 March 1985 and that proceedings challenging the deportation order could be brought under the Human Rights Act 1998 – which did not apply retrospectively. The ruling is also interesting because of Johnson’s reliance on the recent decision in Keyu  UKSC 69 and the court’s consideration of section 65 of the Immigration Act 2014, albeit neither had an effect on the outcome of the appeal. As is customary with her judgments, Arden LJ made it a point to summarise the issues and her overall conclusion at the outset.
Her Ladyship explained that the present case turned on the effect of discriminatory denial of British nationality before the commencement of the HRA on a deportation order against a foreign offender and she decided that even if Johnson’s Convention rights had been infringed, any violation was outside the HRA’s perimeter because it occurred before the Act entered into force. “If it could be considered to be a continuing violation, then it would not matter that the original violation had occurred before the HRA came into force, but in my judgment it was not a continuing violation for the purposes of Strasbourg jurisprudence,” is how Arden LJ put it as she set aside Dingemans J’s decision and dismissed Johnson’s cross-appeal. No order was made remitting the matter to the First-tier Tribunal as no historic injustice had taken place Continue reading
Posted in Article 14, Article 2, Article 8, Automatic Deportation, Children, Citizenship and Nationality, Court of Appeal, Human Rights Act, Illegitimacy, Immigration Act 2014, Neuberger PSC
Tagged Article 8, Criminal Offences, ECHR, Judicial Review, Russia, UK Supreme Court