Advocate General Szpunar on Rendón Marín and CS

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 , , , , , , , , , | Leave a comment

Dependent Relatives and Leave to Remain: A Glimmer of Hope?

The Secretary of State for the Home Department v Begum [2016] 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 , , , , , | Leave a comment

Article 8 and MIR: Appendix FM in Supreme Court

steve2Despite 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 , , , , , , , , , , | 4 Comments

Loss of Habitual Residence: Legal Limbo and the Modern Law

In Re B (A Child) [2016] 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 , , , , , , , | Leave a comment

Illegitimacy and Denial of Nationality at Birth: No Retrospective Application of Human Rights Act

R (Johnson) v The Secretary of State for the Home Department [2016] 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 [2015] 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 , , , , , | 1 Comment

Case Preview: Belhaj v Straw

Belhaj and another (Respondents) v Straw and others (Appellants) UKSC 2014/0264 concerns allegations by a former opponent of Colonel Gaddafi and his wife that they were abducted and unlawfully taken to Libya in February 2004 and were both allegedly detained and tortured in that country. Abdul-Hakim Belhaj, the first respondent, was detained until 23 March 2010 and alleges he was tortured and was sentenced to death following a flagrantly unfair trial. Fatima Boudchar, the second respondent, was released on 21 June 2004. The appellants – namely Jack Straw (ex-foreign secretary), Sir Mark Allen CMG (ex-director of Counter-Terrorism of the Secret Intelligence Service), the Secret Intelligence Service, the Security Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office – have denied liability in their defences and the issues in this appeal have arisen by way of preliminary issues of law. There is an abundance of intervention in these proceedings and the UN Special Rapporteur on Torture, the UN Chair-Rapporteur on Arbitrary Detention, the International Commission of Jurists, Amnesty International, Redress and Justice are apparently all involved.

Lord Neuberger, Lady Hale, Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hughes heard this case – on appeal from [2014] EWCA Civ 1394 (Sir John Dyson MR, Lloyd Jones and Sharp LJJ) – in the second week of November 2015 together with the MoD and FCO’s appeal in the Rahmatullah case. Belhaj and Boudchar appealed to the Court of Appeal against preliminary rulings made by Simon J, as he then was, [2013] EWHC 4111 (QB) that the act of state doctrine operated as a bar to their claims against the foreign secretary and government officials and departments. Belhaj, who opposed the former Libyan strongman Muammar Gaddafi in the 1990s, had fled Libya and moved to China in 2003. In 2004, Belhaj and Boudchar had hoped to claim asylum by taking a commercial flight from Beijing to London. Continue reading

Posted in Al-Sweady, Article 6, Cases, Detention, Disclosure, ECHR, Human Rights Act, Libya, Public Interest | Tagged , , , , , | Leave a comment

Case Preview: Rahmatullah v MoD and FCO

Nabbed by British forces in Iraq – where he was seeking work – in 2004 only to be handed over to the Americans and rendered to Bagram Airbase, Yunus Rahmatullah, a Pakistani national who grew up in the Gulf, was detained for a decade without charge until his release on 17 June 2014. He now lives in Quetta, once an idyllic colonial town that gained strategic importance during the Afghan war and thereafter quickly morphed into a hotbed of Islamic extremism. He is claiming damages in tort and under the Human Rights Act 1998 from the Ministry of Defence (MoD) and the Foreign and Commonwealth Office (FCO). In Rahmatullah (Respondent) v Ministry of Defence and another (Appellants) UKSC 2015/0002, the issue for Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption is whether Rahmatullah’s claims in tort against the appellants in respect of alleged acts or omissions of US personnel while he was in US custody in Iraq and/or Afghanistan are barred by operation of either the foreign act of state doctrine or doctrine of state immunity. The justices heard the appeal in the second week of November 2015.

The MoD and the FCO appealed Leggatt J’s judgment, reported at [2014] EWHC 3846 (QB), and a raft of related litigation has entered the apex court. Together with Belhaj v Straw, the Supreme Court’s justices wrestled with the hard issues thrown up by this case for almost four days (9-12 November 2015). “Yunus Rahmatullah has been through 10 years of unimaginable horror. Now that he has finally been able to speak freely to his lawyers, there is no longer any doubt that the British government bears responsibility for his torture and illegal rendition to Bagram,” explains Kat Craig, legal director at Reprieve. Conversely, US authorities considered Rahmatullah to be a member of the al-Qaida affiliate Lashkar-e-Taiba and contended he travelled from Continue reading

Posted in Article 6, ECHR, FCO, Human Rights Act, Iraq, Muslims, Pakistan, Politics, Terrorism, UKSC | Tagged , , , , , , | 1 Comment