An Afterthought on Private Life

Bossadi (paraagraph 276ADE; suitability; ties) [2015] UKUT 42 (IAC) (28 January 2015)

This case concerned a national of the Democratic Republic of the Congo (DRC), one Mr Bossadi, who had been convicted more than half a dozen times for committing a string of offences, including robbery, between 2002 and 2011. A sentence of 42 months’ imprisonment was imposed on him for his crimes. In 2013, it was decided that a deportation order in accordance with section 32(5) of the UK Borders Act 2007 would be appropriate because he was a foreign criminal sentenced to a period of imprisonment of at least 12 months and could not avail any of the exceptions in section 33 of that Act. That decision was appealed and the First-tier Tribunal panel allowed Bossadi’s appeal under the ECHR (on the basis of article 3 and article 8) and paragraph 276ADE of the immigration rules. Unhappy with the panel’s decision, the Home Office appealed to the Upper Tribunal and Storey and Dawson UTJJ allowed the appeal because the First-tier panel materially erred in law in several respects and its reasoning as regards article 3 was “seriously deficient”.

The First-tier panel arrived at its conclusion because it felt that Bossadi arrived in the UK at the tender age of 4 and he would be at risk in relation to article 3 in the event of his removal to the DRC. First of all, the Upper Tribunal was unimpressed with the First-tier panel’s English language skills. In addition to general issues related to spelling and grammar, the Upper Tribunal was equally unimpressed with the First-tier panel’s application Continue reading

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Students: Appeal Rights Arise From Statute, Not By Fiat

London Metropolitan UniversityR (Ahmed) v The Secretary of State for the Home Department [2015] EWHC 23 (Admin) (15 January 2015)

Subsequent to imposing an entry clearance ban on Mehmooda Begum for her brother’s “deception”, in this Tier 4 (General) case involving London Metropolitan University, sitting as a deputy judge, the vice president of the upper tribunal, Mr CMG Ockelton was unimpressed with everyone including Walker J who extended time and granted permission on the ground that it was arguable that the claimant, Khandaker Shaheen Ahmed, had been treated unfairly. The court was unhappy with the claimant because of his reluctance to provide a full account of the facts and also by an “arithmetical slip” at the hearing by his counsel. Ahmed entered the UK at the age of 23. He arrived as a student and renewed his leave from time to time and his last grant of leave, which expired on 8 October 2012, was as a student at the unfortunate London Metropolitan University (LMU).

Ahmed was accused of not attending his classes in LMU. Although he refuted this, evidence of his absences, in the form of a report from LMU, was included in the Home Office’s acknowledgment of service. Fourteen months afterwards, Ahmed’s evidence to rebut the allegation was that he was undertaking the first semester of his third year. He had not paid his fees and the court was not satisfied that he was interested in his studies. Continue reading

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‘New’ Article 8 Authorities Are Not Legislation

HRA 98R (Esther Ebun Oludoyi & Ors) v Secretary of State for the Home Department (Article 8 – MM (Lebanon) and Nagre) IJR [2014] UKUT 539 (IAC) (29 October 2014 )

This decision clarifies that judgments such as Nagre [2013] EWHC 720, Gulshan [2013] UKUT 640 (see here) and Shahzad [2014] UKUT 85 must not be construed as qualifying or fettering the evaluation of article 8 of the European Convention on Human Rights (ECHR). Equally, according to the Upper Tribunal, the guidance provided in these authorities must be read in context and must not be construed as if the judgments are pieces of legislation. This decision also tries to correct the axiomatic misunderstanding that under Nagre if a person does not satisfy the requirements for the grant of leave under Appendix FM or paragraph 276ADE of the immigration rules, then a “threshold” of a “good arguable case” needs to be shown before the duty arises to consider article 8 beyond any immigration rules which set out criteria for the consideration of family or private life.

Four Nigerian applicants/claimants challenged, on article 8 grounds, three decisions taken in 2013 and 2014 in relation to the refusal of their applications for leave to remain which were made in 2012. Each applicant also challenged the decision-maker’s failure to make appealable immigration decisions with an in-country right of appeal. The claimants lost on all grounds but the decision in this case nevertheless sheds much needed light on the burgeoning and complicated article 8 case law which has emerged since 9 July 2012. Continue reading

Posted in Article 8, ECHR, Human Rights Act, Immigration Rules, Nigeria, Proportionality, Removals | Tagged , , | Leave a comment

Pre-entry English Tests for Spouses: ‘Benign Reform’ or ‘Social Engineering’?

A Supreme Court panel consisting of Lord Neuberger, Lady Hale, Lord Kerr, Lord Hughes and Lord Hodge looks set to hear Saffna Abdulla Mohammed Ali and Saiqa Bibi’s cases on 25 February 2015. These proceedings originated as a judicial review challenge to the changes to paragraph 281 of the immigration rules which were laid before Parliament in October 2010 and came into effect in late November 2010. The amendment required foreign spouses and partners of British citizens or persons settled in the UK applying for spouse visas to pass pre-entry tests evaluating an applicant’s speaking and listening skills in the English language. Consequently, foreign spouses, who previously had to demonstrate knowledge of English to a prescribed standard two years after entry into the UK, needed to produce a certificate of such knowledge prior to entry. The issue in this case is whether the language tests violate the right to a private and family life under article 8 of the European Convention on Human Rights (ECHR).

There has been no judicial determination of the facts of these cases. Instead, they were considered as matters of principle. At first instance, Beatson J (as he then was) dismissed the claims for judicial review in which Liberty and JCWI expressed an interest. Similarly, the Court of Appeal (Maurice Kay and Toulson LJJ, Sir David Keene dissenting) subsequently upheld Beatson J’s decision by majority. In between these two judgments, Blake J dismissed the claimants’ challenge in relation to discrimination in EU law and on the basis of gender. Continue reading

Posted in Article 12, Article 14, Article 8, ECHR, English Tests, Immigration Rules, Proportionality, Spouses, UKSC | Tagged , , | Leave a comment

President Gives Home Office Some Stick

MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 29 (IAC) (19 January 2015)

In this case, MR, the respondent, a thirty three year old Brazilian mother, applied for a derivative residence card pursuant to the Immigration (European Economic Area) Regulations 2006. The application was refused but the First-tier Tribunal upheld the appeal. The Home Office frivolously appealed to the Upper Tribunal. McCloskey J took the opportunity to lay down some markers about the threshold of arguability when granting permission to appeal. He was unhappy with the Home Office but he also seemed sceptical about the July 2012 amendments to the regulations, which for him “purportedly” gave effect to the CJEU’s jurisprudence and enabled persons satisfying regulation 15A “to qualify for a so-called ‘derivative’ right of residence.”

Mentioning Case C-200/02 Chen and Case C-434/09 McCarthy in his concise determination, McCloskey J neatly explained, “this species of right [‘indirect in nature’] does not stem directly from Directive 2004/38/EC” and “it is derivative, in the sense that where it arises it derives from the status of a relevant EEA national and the direct rights attendant thereon.” The only question on appeal was whether MR’s child would be unable to remain in the UK in the event she was refused a derivative residence card? Unsympathetic to the mother’s case, the Home Office contended that the father would able to care for the child and so it was acceptable for the mother to leave the UK. Continue reading

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Curtailment: Pakistani Wins Judicial Review Case

Javed Miandad R (Javed) v Secretary of State for the Home Department [2014] EWHC 4426 (Admin) (09 December 2014)

In the case of Hafiz Muhammad Zubair Javed, which raised a single point about a curtailment notice’s validity, Neil Garnham QC held that the Home Office could not rely on a third party’s signature to argue that a letter of curtailment was effectively delivered to its intended recipient. In doing so, the court held that the mere delivery of the letter to Javed’s home address was insufficient to establish that the letter was really given to him. Javed, a Pakistani, entered the UK in 2007 as a student and his leave was renewed from time to time. His leave was curtailed because the Home Office revoked his college’s sponsorship licence and the curtailment notice was sent to his last known address.

Javed made an application for further leave to remain in the Public Enquiry Office (PEO) which was refused because it was not made within 28 days of the expiry of his last grant of leave but Javed claimed not to have received the notice of curtailment. He said that he did not know the person, a “Mr Ansari”, who signed for the notice. For the court, if the notice of curtailment was served properly then the refusal of Javed’s application for leave to remain in the PEO was justified. Otherwise it was not justified and the refusal of leave Continue reading

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Deception: Entry Clearance and the Meaning of ‘False’

deceptionBegum (false documents and false statements) [2015] UKUT 41 (IAC) (8 December 2014)

Despite having visited the UK in the past, Mehmooda Begum, a Pakistani, was refused a visa to visit her son and daughter-in-law. She was not found to be in breach of immigration law during her past visits but supplied an accommodation report in her subsequent application which came to be investigated by the Entry Clearance Officer (ECO, Abu Dhabi). The accommodation in question was the home of the sponsor. There was no quarrel about it being spacious enough to accommodate Mehmooda Begum. However, the purported authors of the report disowned it and the application was therefore refused. The First-tier judge decided that the requirements of the immigration rules for visitors were met but that the ECO was right to refuse the application under the general grounds for refusal, i.e. because the applicant had made a false representation or provided a false document.

Mehmooda Begum relied on the case of A v SSHD [2010] EWCA Civ 773 to argue that for the purposes of paragraph 320(7A) of the immigration rules, falsity means deliberate dishonesty rather than mere incorrectness. But as CMG Ockelton said, the next stage in the analysis is whether the incorrect statement intended to deceive the ECO irrespective of whether the matter was material to the application and whether the falsity was to the applicant’s knowledge. Continue reading

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