RLR and Irrationality: Settlement for Sikh Separatist

MS (India) v Secretary of State for the Home Department [2016] EWHC 3162 (Admin) (09 December 2016)

This intriguing article 1F case concerns a Sikh separatist, or “terrorist” from India’s point of view, seeking a free Khalistān – literally “the land of the pure”. MS was disentitled from the protection conferred by the Refugee Convention 1951 because of his involvement in terrorism but his expulsion from the UK would result in his ECHR rights, pursuant to article 2 and article 3, being breached. The point was undisputed and the home office acknowledged the existence of a real risk that upon return to India, MS would be subjected to torture or inhuman treatment or might even be killed. The 44-year-old arrived in the UK more than 20 years ago and has three children who are all British citizens, as is his wife. He claimed asylum in 1995 which was refused in 1999. In 2000, his appeal was allowed by SIAC on human rights grounds in light of its conclusion that he would be persecuted upon return to India. However, his asylum claim fell to be excluded under article 1F because of his involvement in terrorism. Since his activities endured after entering the UK, he was held to have had endangered national security and was also ascertained as a constituting a continuing danger to it.

His presence in the UK was considered not to be conducive to the public good but coupled with the fact that he no longer posed a risk to national security and no possibility existed for him to be returned to India in the foreseeable future, his long residence meant that the refusal to grant him indefinite leave to remain (ILR) was irrational as far as Collins J could see. The background was that after initially receiving 12 months exceptional leave and subsequent grants of six monthly leave in June 2005 he applied for ILR/“settlement”. But for nine years long years, the home office inexplicably failed to act on the application. Consequently, in 2014, judicial review proceedings were initiated and finally triggered a response. The decision taken granted MS another six months’ leave but only with conditions and breaching these constituted a criminal offence. Continue reading

Posted in Article 2, Article 3, Article 8, Asylum, Deportation, ECHR, Immigration Act 2014, India, Politics, Proportionality, Refugee Convention, RLR, Settlement, SIAC, Terrorism | Tagged , , , , , , , , , | Leave a comment

Children’s Rights Are Not Passports Against Deportation

Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59 (16 November 2016)

Makhlouf entered the UK in 1997 as the spouse of settled person and was granted indefinite leave to remain in 1999. He was the father of two children born out of two separate relationships. His first child Sarah-Jayne was born out of his marriage to Ruth Henderson, a British citizen. They separated, but never divorced, because she claimed he was violent. Makhlouf pleaded not guilty to causing intentional GBH under section 18 of the OAPA 1861. But as seen in the last post he pleaded guilty – at the earliest opportunity – to the lesser GBH offence under section 20 and received 39 months’ imprisonment in 2005. While drunk, he attacked two people over a dispute related to a gambling game. He accused his victims of being loyalist paramilitaries who had not only provoked him but had also been racist about his Tunisian origins. The trial judge said that the victims’ behaviour was “shameful”. Makhlouf took “the law into his own hands” but the sentencing remarks did not record anything about the victims’ ethnically motivated conduct. His relationship with Charlene McManus after his release from prison resulted in their son’s birth in 2006. The relationship broke down shortly thereafter. Regular contact, if any, with his son ended in 2010.

The court took a pessimistic view of the merits of the appeal and concluded that eleventh hour points about the possibility of contact between him and his son represented “a last throw of a desperate dice”. Makhlouf suffered from depression, received benefits for his condition and claimed in his evidence he had been unable to work since 2006 or 2007 because of his depressive illness. His offending did not end with the GBH incident in 2003 and between 2008 and 2010 he committed a string of new offences and was convicted of breaching a non-molestation order, disorderly behaviour and assaulting a police officer. Moreover, in 2011, he was given three concurrent sentences of five months’ imprisonment because of further convictions for disorderly behaviour, attempted criminal damage and resisting a police officer. Continue reading

Posted in Appendix FM, Article 8, Automatic Deportation, Children, Court of Appeal, ECHR, Families, Immigration Act 2014, Immigration Rules, Proportionality, Tribunals, UKBA 2007, UKSC | Tagged , , , , , , , | Leave a comment

Supreme Court: Iraqi Criminal’s Appeal Dismissed

Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 (16 November 2016)

The linked cases of Hesham Ali (an Iraqi) and Zouhair Ben Belacum Makhlouf (a Tunisian) concern the contentious theme of foreign criminals. Lord Neuberger, Lady Hale, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes and Lord Thomas heard both appeals. The outcome reflects the increasing reluctance of the courts to permit the right to respect for family life to aid undeserving individuals who are involved in drug dealing or violent offending. Both men were foreign criminals within the meaning of the UK Borders Act 2007. Makhlouf received a sentence of 39 months’ imprisonment after pleading guilty, in 2005, to offences of assault causing grievous bodily harm (GBH) under section 20 of the OAPA 1861 and possession of an offensive weapon, relating to an incident in 2003. Ali’s appeal was dismissed by a majority of 6 to 1. Makhlouf’s appeal, analysed in the next post, was unanimously dismissed. In 2006, Ali was convicted of two counts of possessing Class A drugs with intent to supply and sentenced to four years’ imprisonment. Ali was 12 when he left Iraq in 1988 and resided unlawfully in Jordan for 12 years until 2000. He then unlawfully entered the UK where he remained without permission but was never removed. His asylum claim failed.

He developed a serious drug problem and pleaded guilty to the charges against him and received four years’ imprisonment. He quit drugs and was assessed as a low risk of harm and reconviction. He encountered trouble again in 2014 and pleaded guilty to driving while drunk and uninsured. He developed a relationship with a British lady, Ms Harwood. His two children, from a past relationship, probably reside in the UK but he is not in contact with them. Ali no longer has family in Iraq. An initial attempt to make a deportation order was withdrawn because of uncertainty about Ali’s nationality but a deportation order under section 32(5) of the 2007 Act was ultimately made in October 2010. The decision-maker thought that none of the section 33 exceptions applied. Any interference with article 8 was considered to be proportionate to the maintenance of effective immigration control and the aim of preventing disorder or crime. Continue reading

Posted in Article 8, Asylum, Automatic Deportation, Children, Court of Appeal, ECHR, Human Rights Act, Immigration Act 2014, Immigration Rules, Iraq, Proportionality, UKSC | Tagged , , , , , , , | Leave a comment

Brexit and the Rule of Law

R (Miller & Anor) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (03 November 2016)

Gina Miller says she brought these proceedings to preserve the rule of law. The businesswoman explains that when she asked her solicitors “If I don’t do this, who will?” they said “either you do this, or it doesn’t get done”. Miller studied law but was put off a legal career because of discrimination against women. She was born in British Guiana where her father served as the attorney general. In London, she worked her way up in the world of finance from rather humble beginnings. She knows about being a poor single mother with a disabled child. Yet Miller is ironically demonised as an elitist immigrant intent on destroying British democracy. She is certain her case is watertight and she thinks that the government’s appeal is “just ludicrous” and “unwinnable”. Analysts such as Dr Eirik Bjorge disagree. For him, the government would have been “all but certain to win in the Supreme Court” if it had argued that “the article 50 notice can be revoked”. In the Divisional Court, at first instance Lord Thomas of Cwmgiedd CJ, Sir Terence Etherton MR and Sales LJ held that the government has no power under the Crown’s prerogative to give notice pursuant to article 50 of the TEU for the UK to withdraw from the EU.

For so holding they were hysterically denounced as “enemies of the people” and called corrupt traitors. However, the court merely applied the UK’s constitutional law and independently determined the legal question presented to it. The judgment was very clear that the court did not call into question the significance of the referendum as a political event and that it was concerned with “a pure question of law”. Professor Douglas-Scott has dubbed Miller “the constitutional case of its generation” and opines that “the government should lose on appeal even with new arguments” because the first instance judgment is robust enough to withstand any attack. All eleven justices of the Supreme Court will hear the appeal for four days (8-11 December 2016). In the run up to the 23 June referendum, Nigel Farage demanded a second referendum in the event of a slim 52%-48% remain victory. But now the extremist has very different ideas. Donald Trump’s English poodle intends to march on the Supreme Court with a 100,000 strong mob to intimidate the judiciary and smother the rule of law. Continue reading

Posted in Brexit, Business, Citizens Directive, CJEU, Economy, European Union, Hale JSC, High Court, Homophobia, Judges, Miller, Neuberger PSC, Pakistan, UKSC | Tagged , , , , , , | 2 Comments

Automatic Citizenship Defeats Automatic Deportation

R (Johnson) v Secretary of State for the Home Department [2016] UKSC 56 (19 October 2016)

Recently in Bancoult (No 2) [2016] UKSC 35, Lady Hale dissented and dissected the rivaling theories of liberal imperialism (concentrating on good governance) and utilitarian imperialism (concerned purely with befitting imperial power) and she concluded that full and fair disclosure by public authorities “is a proud feature” of judicial review in this jurisdiction. In this case, which Dingeman’s J heard as a judicial review application at first instance, she allowed a foreign criminal’s appeal but only because he was not really a foreigner. Speaking unanimously for the Supreme Court, her Ladyship overturned the Court of Appeal’s judgment by holding that Johnson could not be deported for being a Jamaican criminal. To ascribe such liability to him because of his accidental birth outside wedlock would breach his Convention rights and would be unlawfully discriminatory. It was unnecessary to do so but the court nevertheless made a declaration of incompatibility under section 4 of the Human Rights Act 1998 in connection to the good character requirement in paragraph 70 of Schedule 9 to the Immigration Act 2014 which would have allowed Johnson to acquire British citizenship but for his criminality. This judgment will inevitably send shock waves across the establishment for the humiliation inflicted upon its “flagship” legislation.

“The appellant’s problems would be over if his mother could be found and his father persuaded to marry her,” is how Lady Hale summed up Johnson’s predicament. Arden LJ had, of course, thought otherwise. As seen previously, Johnson’s parents – a British father and a Jamaican mother – were unmarried. He was born in 1985 in Jamaica. Aged four he came to live in the UK with his father. He would have been British had he been legitimately born, or his parents married after his birth, or simply if his mother had been British. He would have obtained British citizenship if he or his father had made an application while he was still a child and, if over 16, of good character. But they did not. The Court of Appeal’s vehemence in dismissing his appeal is indicative of its failure to acknowledge the full scale of the problem at hand. Continue reading

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Blues for Zambrano: CS (Morocco) and Rendón Marín

In Zambrano (C‑34/09, EU:C:2011:124) the CJEU caused a stir by insisting that national law was incapable of depriving EU citizens of the genuine enjoyment of the substance of the rights granted by Union citizenship. Thereafter, in a series of judgments, it seemed to have second thoughts about the generosity of the earlier approach. Indeed, the later decisions in McCarthy (C‑434/09, EU:C:2011:277), Dereci (C‑256/11, EU:C:2011:734), Iida (C‑40/11 EU:C:2012:691), Ymeraga (C‑87/12, EU:C:2013:291) and O and Others (C‑356/11 and C‑357/11, EU:C:2012:776) led us to wonder about the genuineness of the Zambrano decision itself. After yet another disappointing decision in NA (C‑115/15, EU:C:2016:487, see here), in this pair of cases – i.e. Rendón Marín (C‑165/14, EU:C:2016:675) and CS (C‑304/14, EU:C:2016:674) – the Grand Chamber took the opportunity to shed further light on the derivative right of residence under Article 20 TFEU in the home Member State. Rendón 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. CS, a Moroccan, is Abu Hamza’s daughter-in-law. She was convicted of smuggling, in the pocket of her jeans, a mobile phone SIM card when he was imprisoned. She became liable to automatic deportation but her son is British.

The Tribunal Supremo (Supreme Court, Spain) and the Upper Tribunal (Immigration and Asylum Chamber, UK) referred questions to the CJEU about the effect that a criminal record may have on the recognition of a right of residence under EU law. The court responded that the existence of a criminal record alone is not enough to expel from EU territory or refuse a residence permit to a third country national with sole care of a minor EU citizen. Emphasising the importance of proportionality, the court held that it is possible to limit the derived right of residence compatibly with EU law only in circumstances when exclusion decision is founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security. It stressed the core principle that the personal conduct Continue reading

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The Sick Man of Europe: Can Theresa May Save the UK?

These days the British rule with two queens but they are still quite sick. Of course, the ills of their country are almost exclusively related to Brexit – a meaningless word not long ago. “Change is in the air” and the Brexit queen Theresa May is keen to do “new business with old allies” and build bridges outside the EU. But as Deloitte’s leaked memo shows there is no overall official plan for Brexit and ministers are deeply divided on how to proceed. The government has disowned the “unsolicited” document which warns that Whitehall could need 30,000 extra staff because it is working on 500 Brexit-related projects. Earlier analysis suggested that “in her quiet but deadly way Mrs May has been the most ruthless player of them all”. But when the vicar’s daughter spoke at her party’s conference her message was so unpalatable that even Brexiters were alarmed by its contents. Similarly, her “maternity tourism” comments, which flow from her intention to deny pregnant women access to hospitals unless they pay, closely identify with the caustic style of Donald Trump who thinks that most Mexicans are rapists and drug dealers and so Mexico must pay for a wall to protect the United States. Since citizenship has become the dividing line between good and evil, she interprets his victory as a sign to redouble the need to control immigration.

The home secretary Amber Rudd might even devise methods to racially profile all foreign workers in the UK and name and shame businesses relying on foreign labour. Steve Hilton, who advised David Cameron in the past but supported Brexit, attacked the government for using vitriol “worse” than Trump’s war on Islam. Drawing clear parallels to Nazi concentration camps, Hilton scandalised the government’s plans. Mocking Rudd at the cost of demeaning Holocaust victims he said: “Hey Amber, for your next brainwave why not announce that foreign workers will have numbers tattooed to their forearms.” Question marks also hang over Rudd’s directorship of two offshore firms in the Bahamas. “Margaret Thatcher’s revenge” is how Professor Vernon Bogdanor describes Brexit. Continue reading

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