Court of Appeal overrules Portuguese national’s deportation

Lopes v Secretary of State for the Home Department [2019] EWCA Civ 199 (26 February 2019)

Sir Stephen Richards and Davis and Simon LJJ have recently overruled a Portuguese national’s deportation by holding that when determining whether the First Tier Tribunal (FTT) had been correct to overturn the deportation of an EU national who had lived in the UK since childhood, the Upper Tribunal (UT) should not have proceeded on the basis that a concession by the Home Office had been withdrawn, without expressly considering whether that was fair and just. Luis Lopes came to the UK aged six with his family in 2002 and remained in the UK until June 2014 when he was 18. In October 2012, when he was only 16, Lopes committed wounding with intent to cause grievous bodily harm and unlawful wounding, contrary to sections 18 and 20 of the Offences Against the Person Act 1861. He pleaded guilty in December 2012 and in March 2013 he was sentenced to concurrent terms of four years and two years youth detention. Subsequently, 15 months later in June 2014, the Home Office decided to remove him to Portugal under the provisions of the Immigration (European Economic Area) Regulations 2006. In particular, regulation 21(4) required that those who had resided continuously in the UK for 10 years or were under the age of 18 could not be deported unless there were “imperative grounds of public security”. Moreover, the decision-maker had to take into account certain considerations including the person’s social and cultural integration into the UK.

The Home Office conceded in the case management hearing that regulation 21(4) applied and that Lopes could not be removed except on imperative grounds of public security and the highest level of protection was available to him. It was also conceded in the earlier decision letter by the decision-maker that Lopes clearly met the integration criteria established in the key case of Tsakouridis (C‑145/09, EU:C:2010:708) and satisfied the “integration test” laid down in recitals 23 and 24 of Directive 2004/38/EC or the “Citizens’ Directive”. However, the decision-maker concluded that deportation was justified owing to the risk of reoffending and the threat of serious harm Lopes posed to the public. The FTT proceeded on the basis that regulation 21(4) applied, and FTTJ Pooler found that imperative grounds of public security had not been demonstrated because Lopes did not represent a sufficiently serious threat. FTTJ Pooler considered issues of proportionality, which were found to weigh against deportation in view of his relative youth (18 at the time of the hearing), the fact that he had never lived independently and had lived his formative years in this country, with all that this implied in terms of social and cultural integration. Continue reading

Posted in Citizens Directive, CJEU, Court of Appeal, European Union, Free Movement, Proportionality, Tribunals | Tagged , , , , , | Leave a comment

Upper Tribunal confirms that there is no retrospective right of residence for extended family members

Kunwar (EFM – calculating periods of residence) [2019] UKUT 63 (IAC) (28 December 2018)

The Home Office won this appeal because of the effects of the Court of Appeal’s judgment in Macastena [2018] EWCA Civ 1558 (discussed here) whereby it is not possible to aggregate time spent in a durable relationship before the grant of a residence document with time spent after a residence document is issued, for the purpose of the calculating residence in accordance with the Immigration (European Economic Area) Regulations 2006. UTJ Grubb held that rights of residence of extended family members are only conferred once a residence card is issued. Mr Kunwar was a citizen of Pakistan born on 4 April 1981. He applied for permanent residence and his application was refused but on appeal FTTJ Barrowclough allowed his appeal. He relied on his durable relationship with one Ms Opara, a Polish and EEA national. The couple began their (unmarried) relationship in 2006 and lived together from January 2007 until March 2014 when their relationship broke down and Ms Opara returned to Poland. Mr Kunwar claimed that between March 2009 and March 2014 he was resident in the UK in accordance with the 2006 Regulations for a continuous period of five years. He put emphasis on the fact that he had been granted a residence card as an extended family member in September 2009 and also relied on the fact that he had been in a durable relationship with Ms Opara since at least March 2009.

Mr Kunwar argued that added together those two periods, amounted to five years’ continuous lawful residence pursuant to the 2006 Regulations. FTTJ Barrowclough accepted that Ms Opara had been exercising Treaty rights during that time. He also accepted the basis of Mr Kunwar’s case. Based upon his durable relationship with Ms Opara between March 2009 and March 2014, the judge found that he had acquired the right to permanent residence as a family member of an EEA national with whom he resided in the UK for a continuous period of five years pursuant to regulation 15(1)(b) of the 2006 Regulations. The Home Office argued that Mr Kunwar was not in position to “bolt on” extra time by relying upon his durable relationship prior to the issue of the residence card in 2009 so as to establish a period of five years’ continuous residence in keeping with the 2006 Regulations. It was argued that until the Home Office exercised its discretion to issue a residence card under regulation 17(4), Mr Kunwar was not a “family member” as defined in regulation 7(3) read with regulation 8(5). Continue reading

Posted in Appendix EU, Brexit, Citizens Directive, CJEU, Court of Appeal, European Union, Free Movement, Permanent Residence | Tagged , , , , , | Leave a comment

‘Standoff’ in enforcement: Once given, an oral decision stands

PAA (First-tier Tribunal: Oral decision – written reasons) [2019] UKUT 13 (IAC) (10 January 2019)

Arguably, nothing is more exhilarating in tribunal proceedings than a judge allowing your client’s appeal in an oral decision by uttering “I will allow this appeal”. But should the judge be allowed to change her/his mind afterwards? That is what happened to this Iraqi appellant. And after giving a negative answer to this question the vice-president of the Upper Tribunal Mr CMG Ockelton also had some words of wisdom for both representatives because of their lack of preparation regarding exactly what their position was in relation to the tribunal procedure rules. He found it “extremely regrettable” that both representatives “had not looked at the rules and did not know”. The appellant PAA last had leave as an unaccompanied asylum-seeking child. The matter entered the Upper Tribunal because PAA appealed the First-tier Tribunal’s written decision dismissing his appeal against the refusal of his refugee claim and entitlement to humanitarian protection. This was so despite the fact that the judge had said at the end of the hearing that he would allow the appeal and the Home Office would be able to appeal in 14 days. Despite his overall generosity, Mr Ockelton did not accept PAA’s ambitious argument that he had a substantive legitimate expectation of a decision in his favour as the judge had said there would be an expectation of this nature. As he said he was unable to “see the slightest basis in law why that should be so.”

His reason was that if events in the First-tier Tribunal constitute a ground of appeal then it must be on the clear basis of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Mr Ockelton was unhappy that neither the appellant’s representative nor the presentation officer made any attempt to make any submissions on the procedure rules regarding whether the First-tier Tribunal judge was entitled to give a decision at the hearing and had done so, or was able to give a decision only in writing. Instead both parties simply said that they did “not know”. Understandably, Mr Ockelton found this to be unacceptable and explained that “it ought to go without saying that anybody proposing to make submissions in an appeal about the procedure adopted below should have done proper research on what the procedural strictures below actually were.” As Singh LJ held in Talpada [2018] EWCA Civ 841 procedural rigour applies in public as in private law and this important concept turns on parties knowing and following the relevant procedure rules. Hence, those who conduct litigation or attend court hearings without adequate knowledge of the rules of procedure run the clear risk of having a decision made against their client on procedural grounds. Continue reading

Posted in Appeals, Asylum, Children, Enforcement, Inherent Jurisdiction, Iraq, Judicial Review, Legitimate Expectation, Tribunals | Tagged , , , | Leave a comment

Should Shamima Begum be allowed to return home?

After running away from Bethnal Green with her school friends Amira Abase and Kadiza Sultana three years ago, Shamima Begum, the ISIS bride deprived of British citizenship, is stuck in limbo with her son who was born in the al-Hawl refugee camp run by the SDF in Syria. She has already lost two infant children but remains totally unrepentant about joining the jihad and readily enlisting herself as bride material for ISIS, which she still endearingly refers to as “dawlah”. Her desire for an English-speaking husband resulted in her marriage to the Dutch jihadist Yago Reidijk who she still loves “very much”. Reidijk, who is being touted as a “convert to Islam”, was convicted in absentia of membership of a terrorist organisation and he is suspected of involvement in terrorist plots in the Netherlands. Attracted to volunteering for the death cult of ISIS because of propaganda videos, Shamima Begum ran away from home at the tender age 15 and is only 19. However, as a “victim” she is in no way comparable to the kidnapped Chibok girls who were forced to become jihadi brides and also forced to commit horrifically violent acts to prove their loyalty just in order to stay alive. Shamima Begum very consciously chose to participate in ISIS and so it is hard to spin things in her favour. She admits that she did not know what she was getting into. However, she does not find fault with terrorism and even argues that the Manchester Arena suicide bombing was “justified”. 

Her ongoing plight and gender do not reduce the danger she poses to security. The UK is understandably not keen to roll out the red carpet for her. After she was deprived of her British citizenship, Bangladesh disowned her as well. Despite her harsh predicament, her continuing reverence for ISIS makes Shamima Begum highly dislikeable. As she herself admits, she was not disturbed or sickened by the sight of a severed head because she was more concerned that the victim – “an enemy of Islam” – might have violated a “Muslim woman”; presumably someone like her. Of course, such ideas sit uncomfortably with her preference to “come home and live quietly with my child” and equally paradoxical is her contention that “a lot of people should have sympathy for me.” As discussed, in relation to the “Beatles”, the CPS has twice assessed that those who are suspected of beheading hostages cannot be prosecuted in the UK owing to insufficient evidence. Therefore, going by that perhaps it will not be possible to prosecute Shamima Begum after all – let alone jail her. She has been deprived of her British citizenship but this is only possible if she is a dual national because she cannot be made stateless.  Continue reading

Posted in Article 8, Children, Citizenship and Nationality, Deprivation of Citizenship, ECHR, Families, Immigration Act 2014, Lady Hale, Persecution, Politics, Statelessness, UKSC | Tagged , , , , | 4 Comments

No death penalty assurance is necessary for ISIS ‘Beatles’

R (El Gizouli) v Secretary of State for the Home Department [2019] EWHC 60 (Admin) (18 January 2019)

In a rolled-up hearing, Lord Burnett LCJ and Garnham J granted permission for judicial review in these proceedings but their Lordships dismissed the claim brought by Maha El Gizouli – the mother of the ISIS terrorist Shafee El Sheikh – against the Home Secretary’s decision to provide mutual legal assistance (MLA) to the US without requiring an assurance that the death penalty would not be imposed. Assurances of this type are routine in extradition cases to territories where capital punishment exists. Shafee El Sheikh and Alexanda Kotey are detained in Syria by American backed Kurdish forces. The pair is accused of participating in acts of barbaric terrorism and the murder of US nationals in Syria and of fighting for ISIS. With Jihadi John at the helm, the so-called “Beatles” beheaded dozens of innocent people including Americans James Foley, Steven Sotloff and Peter Kassig and Brits David Haines and Alan Henning. These grotesque acts were filmed and posted online and caused incalculable pain and anguish to the victims’ families. Pursuant to the 1994 Treaty of Mutual Legal Assistance in Criminal Matters between the US and the UK, the US requested MLA. The UK sought an assurance from the US that the death penalty would not be sought against anyone found guilty as a result of the investigation. Kurdish fighters apprehended El Sheikh and the US indicated that an assurance would not be given.

The US classifies both El Sheikh and Kotey as prisoners of war and wants to send them to Guantanamo. While giving evidence at a Senate panel hearing, Jeff Sessions, the US Attorney-General, remarked that “I have been disappointed, frankly, that the British are not willing to try the cases but intend to tell us how to try them and they have certain evidence we need”. Sajid Javid, who became Home Secretary on 30 April 2018, spoke to Sessions and expressed concerns that the UK had said it was not interested in prosecuting El Sheikh. Javid said that the death penalty should not be an issue for the UK and that he did not want the British authorities to tie America’s hands over the use of material gathered by British investigators. Thus, Javid acceded to the request without seeking any assurance. The Divisional Court held that the Home Secretary had been entitled to authorise MLA to the US to assist in a criminal investigation, which could in turn result in the prosecution of a British suspected terrorist for offences carrying the death penalty, without seeking assurances that the US prosecutors would not seek the death penalty. Continue reading

Posted in Article 3, Article 8, CFR, ECHR, Human Rights Act, International Law, Iran, Judicial Review, Politics, Rule of law, Terrorism, UKSC | Tagged , , , , , | Leave a comment

An Alternative to Brexit: The Judgment in Wightman

Wightman and Others v Secretary of State for Exiting the European Union (C-621/18, EU:C:2018:999, 10 December 2018)

Brexit is a big mess. It is “a powerful acid” and is a huge economic and bureaucratic nightmare. Going through with it in the hope that normality can be restored to British politics is equated with “howling at the moon”. But Theresa May is “determined to deliver Brexit, and determined to deliver on time – on March 29 2019.” With very little time left, she emphasises that “the clock is ticking” and politicians must “put aside our differences” in the national interest. Nevertheless, on the international stage May intends to be belligerent and the crusader in her is keen “to battle for Britain in Brussels” because she is “armed with a fresh mandate”. Conversely, to avoid the impending calamity, a softer option does exist because the Wightman ruling permits the UK to freely and unilaterally revoke the 29 March 2017 notification of its intention to leave the EU: a sea change from the reasoning embraced by the Supreme Court in Miller [2017] UKSC 5 which was decided on the basis that once notice under article 50 of the Lisbon Treaty/TEU was given the government pulled the trigger which caused the “bullet to be fired” with the result that it “will hit the target and the Treaties will cease to apply”. Yet the CJEU held that the revocation of notice, decided in line with the UK’s own national constitutional requirements, would mean that the UK remains in the EU under terms that are unchanged regarding its status as a member state.

Hence, the ruling presents a convenient escape of last resort for the UK if all else fails. Under article 50, after notifying the European Council, the withdrawing member state must negotiate and conclude a withdrawal agreement with the EU. The EU Treaties then no longer apply to the exiting member state from the commencement of the withdrawal agreement or, failing that, two years after giving notice of the intention to withdraw and any possible extension. These proceedings trace their roots to a petition for judicial review in Scotland and the referring court pointed out that the answer would enable members of the House of Commons to know, when exercising their vote on a withdrawal agreement, whether the third option of revoking notice under article 50 existed in addition to the two other options of withdrawing from the EU with a deal or withdrawing from the EU without a deal. The petitioners were maligned and portrayed as traitors to the UK and continue to be attacked for their political views on remaining in the EU. However, in reality they are true patriots who wish to end the ongoing insanity that is being manifested by the mafia blindly wanting to carry out Brexit at any cost. Continue reading

Posted in Brexit, Cases, CJEU, European Union, Free Movement, Judicial Review, Scotland, UKSC | Tagged , , , , , , | 2 Comments

Analysis of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill

The crushing defeat suffered by Theresa May because of the rejection her Brexit Deal has left the UK in utter chaos. Uncertainty looms large in all spheres of UK life but the government is determined to carry through with Brexit at all costs. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill is an important piece of upcoming legislation because it makes provision to end free movement rights under retained EU law and to repeal other retained EU law relating to immigration. As introduced, the Bill is divided into three parts and apart from seeking to end free movement it seeks to empower the government so as to modify, using regulations subject to the affirmative procedure, retained EU legislation on social security co-ordination. According to the government a power of this nature is required to enable the delivery of a range of options from Brexit day, particularly to put into action its preferred approach to social security co-ordination in a no deal scenario. The Bill consists of seven clauses and operates in linkage with the new White Paper entitled The UK’s future skills-based immigration system. Clause 1 and schedule 1 contain provisions to terminate the law of free movement in the UK by repealing section 7 of the Immigration Act 1988 with the result that EU nationals and their non-EU family members will require permission to enter and remain here under the Immigration Act 1971.

This is said to enable the delivery of the future immigration system which is not specified in the Bill and will be implemented through future Immigration Rules relating to workers, students and family members. As things presently stand, free movement enables those from the European Economic Area (the “EEA”, i.e. the EU and Iceland, Liechtenstein and Norway) and Swiss nationals and their family members to (i) enter the UK and reside here for an initial period of three months, (ii) reside in the UK as a “qualified person”, such as a jobseeker, worker, self-employed person, self-sufficient person, or student, for as long as they have that status, and (iii) acquire permanent residence after completing five years lawful residence in the UK under the Citizens’ Directive (2004/38/EC). But all this will be history once free movement law is repealed and new Immigration Rules are erected to generally keep Europeans out of the UK unless they have obtained employment in advance and are remunerated £30,000 per annum. As seen earlier, all this spells out the end of two immigration systems in the UK and a single system will be operated in the future. Continue reading

Posted in Appendix EU, Brexit, Citizens Directive, Citizenship and Nationality, CJEU, European Union, Immigration Rules, Permanent Residence, Students, Windrush, Working | Tagged , , , , , , , | 2 Comments