Appeal Rights and EFMs: The Opinion in Banger

AG Bobek’s Opinion, SSHD v Rozanne Banger C‑89/17, ECLI:EU:C:2018:225

Appeal rights in a hostile environment are a profoundly important question. In the case of Banger (Unmarried Partner of British National: South Africa) [2017] UKUT 125 (IAC) a series of questions were referred to the CJEU. Among the four questions referred was the issue whether it is compatible with the Citizens’ Directive (2004/38/EC) to operate a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an “extended family member” (EFM), an expression which covers which both subcategories contained in article 3(2) of the Directive, i.e. “other family members” in article 3(2)(a) and “the partner with whom the Union citizen has a durable relationship, duly attested” under article 3(2)(b). Significantly, at first blush, AG Bobek appeared to reject the dubious approach formulated in Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (IAC). Nonetheless, he remained reluctant to dismiss in its entirety the idea that judicial review is an inadequate remedy for EFMs. Moreover, he was somewhat ambivalent about the CJEU’s role in the dispute in the main proceedings. But this case is about much more than just appeal rights and throws up issues regarding the rights of EU citizens returning home after their exercising free movement rights.

Rozanne Banger, a South African, and Philip Rado, a British national, lived together from 2008 to 2010 in South Africa. The latter accepted a job in the Netherlands and the couple moved there. Banger was granted a residence card pursuant to the domestic provisions transposing article 3(2) of the Directive. The couple then moved to the UK in 2013 where Banger was refused a residence card since they were not a married couple. AG Bobek opined that where an EU citizen returns to his home state, that member state must facilitate the entry and residence of the citizen’s non-EU partner with whom he has created or strengthened family ties in another member state. The requirement to facilitate does not confer an automatic right of residence but does require the member state to undertake an extensive examination of the personal circumstances of the third country national and justify any refusal of entry or residence. AG Bobek proposed that the CJEU should rule that Banger is entitled – in line with a combined interpretation of free movement rules in the Treaties and the Directive – to have an extensive examination of her application to reside in the UK. Continue reading

Posted in Appeals, Article 6, Citizens Directive, Citizenship and Nationality, CJEU, ECHR, Judicial Review, OFMs, Proportionality, Tribunals, UKSC | Tagged , , , , , , , , | Leave a comment

Article 8 and ADRs: The End of the Line?

Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611 (27 March 2018)

Singh LJ has recently taken yet another scalp. On this occasion his Lordship’s sword fell on the head of a helpless and elderly woman, a South African national called Cheryl Ribeli who suffers from numerous serious medical conditions including a chronic degenerative back disease, osteoarthritis and fibromyalgia. Overall, the upshot is that the rigorous and demanding rules for adult dependent relatives (ADRs) are here to stay and applicants must meet them in order to succeed. The calculus of the rules is such that emotional needs take second place to physical needs. This is yet another strident ruling which leaves a lot to be desired if you happen to be acting for the sick and the elderly who would like to join their family in the UK. Cheryl Ribeli’s daughter and sponsor, Carmen Steenkamp, is a British citizen who arrived in the UK in 2007 to work as an accountant with South African qualifications and citizenship. Her application for entry clearance as an ADR pursuant to Appendix FM of the Immigration Rules was refused by the ECO because he was not satisfied that she could not obtain the necessary care and support in South Africa, as specified under the terms of paragraph E-ECDR.2.5. The refusal letter of May 2014 stated that there was no evidence regarding the unavailability of specialist care in South Africa and maintained that other relatives were present in South Africa to provide the necessary care.

A letter written by counsel asserting that Steenkamp would have to leave the UK if her mother’s application was refused was cleverly construed by the ECO to mean that the daughter was free to return to South Africa to care for her mother. Ribeli had suffered from a degenerative disease of her lower and lumbar spine since her twenties. Her condition had deteriorated in her old age and separation from her daughter exacerbated her problem. Her GP opined that her present musculoskeletal pain was chronic and treatment for her problem was unavailable in South Africa. Thus she would only be able to access the level of care, including emotional care, she requires for an adequate quality of life from a close family member. Nurses and hired help were an inadequate replacement for her only daughter. Another specialist, whose advice was unseen by the ECO, explained that analgesics taken by Ribeli for pain control caused sedation. His opinion stated that overexertion exacerbated her condition and he stressed that she lives all alone and is struggling with daily life. The resultant anxiety and depression heightened her muscle tension and worsened her fibromyalgia. Continue reading

Posted in ADR, Appendix FM, Appendix V, Article 8, Court of Appeal, ECHR, Entry Clearance, Immigration Rules, Judicial Review, Proportionality, Public Interest, Tribunals, UKSC, Visitors, Women | Tagged , , , , , , | 3 Comments

Curtailment and Entry Clearance: Interfaith Couple Wins on Chikwamba in Court of Appeal

Tikka v The Secretary of State for the Home Department [2018] EWCA Civ 642 (28 March 2018)

Qaisar Tikka entered as with student leave until September 2011. Subsequently, he met his British wife Josita Simta Rajoria and they married on 22 August 2011. Tikka accidentally killed someone in the UK while driving while uninsured. He was still successful in this appeal because it was pointless to require him to return home to reapply for entry clearance. Interestingly, since his wife is a Hindu and he is a Muslim, they would not be able to live together in Pakistan as an unmarried couple without committing a criminal offence in the process. In September 2011, he applied for leave as a spouse but while that application was pending, he was involved in a road traffic accident on 21 December 2011. Someone stepped out in front of his vehicle and was killed while he was delivering food from a takeaway restaurant. His driving was not to blame. He had vehicle insurance. Since the insurance policy did not cover use of the vehicle for work purposes, the result that he was driving uninsured when the accident occurred. Therefore, he was convicted of the offence of causing the death of another person by driving a motor vehicle while uninsured, carrying a maximum sentence of two years’ imprisonment, and sentenced to 180 hours’ unpaid work pursuant to a community order. The Home Office refused his spouse visa application because the required English language certificate was not provided.

However, since the certificate was ultimately produced, the First Tier Tribunal allowed the appeal in February 2014. Leave to remain was granted for two years on 11 September 2014. But Tikka’s leave was simultaneously curtailed under paragraph 322(5), paragraph 322(5A) and paragraph 323(i) of the rules because he had caused “serious harm” and removal directions were put into place. However, in the final analysis the Court of Appeal remained unimpressed with the authorities’ stance on the public interest in removing Tikka. The court was also suspicious of the fact that proceedings in the Upper Tribunal focused on the prospects of temporary separation between husband and wife and the consequences of a permanent separation were left unaddressed. In relation to the curtailment, the case was dismissed on the rules. But FTTJ Law had allowed the appeal on article 8 of the ECHR in a freewheeling kind of way because (i) the couple’s marriage would be “destroyed” by Tikka’s removal, and (ii) the spouses’ separation would be disproportionate “because of the inability of the Appellant’s wife to travel to Pakistan” and the operation of the law in that country which would dually prevent the couple from marrying and also make it a crime for them to cohabit outside of wedlock. Continue reading

Posted in Article 8, Court of Appeal, ECHR, Families, Immigration Act 2014, Immigration Rules, India, Muslims, Pakistan, Persecution, Public Interest, Spouses, Students | Tagged , , , , , , , , | Leave a comment

Seven Year Rule: ‘Powerful Reasons’ Approach Confirmed

MT & ET (Child’s Best Interests: Ex Tempore Pilot) Nigeria [2018] UKUT 88(IAC) (1 February 2018)

The president Peter Lane J has reconfirmed Elias LJ’s doctrine in MA (Pakistan) & Ors [2016] EWCA Civ 705 (see here) that “powerful reasons” are necessary to remove a child with seven years residence in the UK. The mother (MT) and her daughter (ET) were from Nigeria and entered the UK in 2007 as visitors. ET was then aged four. They overstayed and repetitiously applied for leave to remain and made a series of applications relying on article 8 of the ECHR. After the last refusal, the First-tier Tribunal dismissed the appeal in early 2011. The mother then claimed asylum. Her claim was refused and certified. An in-country right of appeal was provided after a successful judicial review but the FTT dismissed the appeal in November 2012. New applications were raised and resulted in further decisions in August 2016 refusing MT and ET’s human rights claims. On further appeal, the FTT dismissed their claims. UTJ Martin gave an oral (ex tempore) decision delivered at the hearing in Manchester, reduced to writing afterwards. The cases were handled under the Proof of Concept for the Extempore Judgment Pilot 2017. The details were explained to the appellants by the tribunal and directions were given for paginated and indexed bundles to be filed and served and for the appellants’ skeleton argument to be included with their papers.

The directions were followed and the appellants’ skeleton argument alleged that their departure from the UK would inevitably result in breaches of the Immigration Rules, article 8 and section 55 of the Borders, Citizenship and Immigration Act 2009. MT said in her statement that the authorities had made no attempt to remove her and that her daughter was well attuned to life in the UK and knew nothing of Nigeria. ET stated in a handwritten note that in Nigeria she was beaten severely in school, owing to non-payment of school fees by her father. Her school in the UK described ET as a “generally a polite and thoughtful young lady who is making good progress in many areas” but concluded that she needed to concentrate more and stay focused to make progress in her studies. The Home Office opposed the appeal on the basis that both mother and daughter were unable to satisfy the terms of the Immigration Rules or freestanding article 8 outside the rules. It argued that they would be able to succeed only if the required standard of proof was met and that they would need to show that there would be very significant obstacles to her integration to Nigerian society. Continue reading

Posted in Article 3, Article 8, Asylum, Children, ECHR, Judges, Nigeria, Proportionality, Students, Tribunals, UKSC, Women | Tagged , , , , , , , | 1 Comment

Hague Convention: Supreme Court Confirms the Concept of ‘Repudiatory Retention’ in Child Abduction Cases

Re C (Children)(Abduction: Rights of Custody)[2018] UKSC 8 (14 February 2018)

Turning on the controversial subject of child abduction, this case divided the Supreme Court on the outcome on the facts. But otherwise, the Justices concurred on key points of principle relating to habitual residence and wrongful retention. Originally British, the mother was raised in England but was born in Canada. She moved to Australia in 2008 where she married the Australian father. Their children were born in 2012 and 2014. She also obtained Australian citizenship. The marriage broke down in late 2014 and during her maternity leave the mother proposed a visit to England. After initial reluctance the father agreed to an eight-week visit. The mother and the children arrived in England on 5 May 2015. They resided with the maternal grandmother where they have remained ever since. The eight-week visit was extended to one year by agreement. The mother gave up employment in Australia and began searching for work in England. She enrolled the older child at a local pre-school. Without informing the father, using solicitors she applied for British citizenship for both children who had entered the UK on six-month visitor visas. Notably, her solicitors’ letter of 4 November 2015 mentioned domestic abuse to the immigration authorities. The letter stated that she had been “effectively forced not to return to Australia in order to safeguard herself and the children” and that “the children’s centre of life is, and will be, in the UK.”

When pressed by the father about the children’s expected date of return, the mother said she was unsure of her plans and ultimately informed him in June 2016 that she intended to remain in the UK for good. The father initiated proceedings pursuant to the Convention on the Civil Aspects of International Child Abduction 1980 which enshrines four key principles, namely wrongful removal, wrongful retention, rights of custody and return. In England and Wales, domestic effect is given to the Convention by section 1(2) of the Child Abduction and Custody Act 1985. Overall, the harsh outcome in the present case exposes significant weaknesses in the existing system and perhaps even permits the travelling parent to overreach the rights of the left behind parent, rendering them unenforceable. The exact point in time when the mother decided not to return to Australia was directly in issue during these proceedings. She maintained that by April 2016 she knew she and the children would stay on in England meaning that she had decided not to return to Australia prior to the expiry of the agreed year. Continue reading

Posted in Appeals, Children, Citizenship and Nationality, CJEU, Court of Appeal, European Union, Families, Hague Convention, Lady Hale, UKSC, Women | Tagged , , , , , , | Leave a comment

Case Preview: FA (Pakistan) v SSHD

This appeal provides the Supreme Court the opportunity to further interpret its own historic case law by ascertaining (i) whether the refusal of asylum on the expectation an individual will suppress the expression of their religious faith, where the state criminalises the reasonable expression of that identity, is consistent with the “fundamental right to live openly and freely, as themselves” as articulated in HJ (Iran) [2010] UKSC 31 or with the understanding of religious belief as “so fundamental to human identity that one should not be compelled to hide, change, or renounce this in order to avoid persecution” as per RT (Zimbabwe) [2012] UKSC 38, (ii) whether the rights in those two cases are applicable only if an individual gives “particular importance” to them and, if so, how – for instance by reference to what comparator group – the existence of “particular importance” is to be ascertained, and (iii) whether an individual possessing a well-founded fear of religious persecution may be expected to rely upon internal relocation notwithstanding nationwide legal prohibition on the expression of the religion in question. FA’s asylum claim on the basis of being a persecuted Ahmadi Muslim in Pakistan was initially refused by the decision-maker who disbelieved that the Khatme-e-Nubuwat (“KN”) organisation had developed an interest in him. But his appeal was allowed by the FTT.

Subsequently, the UT allowed the Home Office’s appeal and the Court of Appeal found that it was possible for him to internally relocate to another part of Pakistan. FA arrived in the UK in October 2014. But he did not return to Pakistan owing to a fear of persecution by KN, which staunchly opposes the Ahmadis and seeks to subdue the open expression of their beliefs. The UT determined that the FTT erred in law by neglecting the country guidance imparted in MN and Others (Ahmadis – country conditions – risk) Pakistan CG [2012] UKUT 389 (IAC) by holding that it did not have “any real bearing” on FA’s asylum appeal. Moore-Bick LJ held that the UT’s approach was permissible and internal relocation was an option for FA. He worked as a teacher in Pakistan but was dismissed from work twice because of his beliefs. He joined the police in 2004 and his seniors and colleagues discriminated against him. He was granted entry clearance in 2014 and arrived in the UK with the twofold purpose of attending his brother’s wedding and the Amadiyya Annual Convention in London. Continue reading

Posted in Ahmadis, Appeals, Article 3, Asylum, Islam, Pakistan, Persecution, Refugee Convention, UKSC | Tagged , , , , | Leave a comment

Supreme Court: Reference to CJEU on Kefalah Children

SM (Algeria) v Entry Clearance Officer, UK Visa Section [2018] UKSC 9 (14 February 2018)

This appeal concerning legal guardianship under the Islamic “kefalah” system provided the Supreme Court the opportunity to refer three questions to the CJEU. The justices also held, as the Court of Appeal had done in Khan [2017] EWCA Civ 1755, that Sala [2016] UKUT 0411 (IAC) was wrongly decided and that an extended family member (EFM) does indeed enjoy a statutory right of appeal against the refusal of a residence card. Pursuant to Algerian law “Susana” was placed into Mr and Mrs M’s legal guardianship. She had been abandoned at birth and parental responsibility was transferred to them by decree. The couple hold French passports and sought entry clearance for Susana as the adopted child of an EEA national under regulation 12(1), or alternatively 12(2) of the Immigration (European Economic Area) Regulations 2006. However, entry clearance was refused on two grounds. Firstly, Algerian guardianship was not recognised as an adoption in UK law as Algeria was not a party to the Hague Convention on Intercountry Adoption 1993 and was not named in the Adoption (Designation of Overseas Adoptions) Order 1973 then in force. Secondly, no application had been made for intercountry adoption under section 83 of the Adoption and Children Act 2002 Act. The First-tier Tribunal upheld the decision.

But the Upper Tribunal allowed Susana’s appeal. FK and MK [2007] UKAIT 00038 precluded Susana from being a direct descendent because she was not legally adopted. She was also not a family member. However, UTJ Allen and DUTJ Bruce were attracted to interpreting EU law purposively and found that Susana was an EFM. Applying section 3(1) of the Human Rights Act 1998, they construed regulation 8 in conformity with article 8 of the ECHR. Laws, Kitchin and Christopher Clarke LJJ allowed the ECO’s onward appeal. They held that Susana was not entitled to entry clearance because under the provisions of the 2006 Regulations she could not be categorised as a family member, EFM or relative of her adoptive parents. In the Court of Appeal’s view the refusal did not breach European or international obligations concerning children’s welfare. The court concluded that the UK’s rules regarding inter-country adoptions are wholly consistent with EU law and are a reasonable and proportionate means of giving effect to international obligations relating to children’s welfare. Laws LJ declined to make a reference to the CJEU. Continue reading

Posted in Adoption, Algeria, Article 8, CFR, Children, Citizens Directive, CJEU, ECHR, Entry Clearance, European Union, Free Movement, UKSC | Tagged , , , , , | 1 Comment