Supreme Court: Pre-entry English Tests Are Lawful

R (Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 (18 November 2015)

Language, the most common human currency and form of expression, has become central to the great cultural tug-of-war unfolding in British society today. In times when the conflict of culture between east and west is clearly in the ascendant, “early” integration initiatives to bond migrant communities into the British way of life are driving a wedge between British “breadwinners”, whose foreign spouses and partners are affected by pre-entry English tests, and the authorities, who consider that culture and economics should act as a filter to keep out the unwanted. This decision given by Lord Neuberger (President), Lady Hale (Deputy President), Lord Wilson, Lord Hughes and Lord Hodge reveals quite a lot about the dividing line between cultures. It equally exposes the tensions between the drive to make foreigners gel into the host society and the human rights of British citizens who happen to have a spouse or a partner from a non-EEA country. The justices found that it is lawful to require foreign spouses or partners of British citizens to demonstrate – in the form of a certificate – knowledge of English to a prescribed standard before entering the UK.

Holding that integration in the host British society at an early stage is “undoubtedly an important aim”, the Supreme Court unanimously dismissed abstract challenges to the pre-entry English language tests for partners in the appeals of Ali and Bibi who complained that requirements targeting integration into the host society disproportionately breached their rights under article 8 of the European Convention on Human Rights (ECHR). On the other hand, the suitability of the guidance issued in relation to the operation of the immigration rule laying down the pre-entry English requirement remains open to question. For Lady Hale, operating the rule together with the present guidance is “likely to be incompatible with the convention rights of a significant number of sponsors.” According to Lord Neuberger, it is “virtually certain” that article 8 rights will be infringed in a “significant number of cases”. Lady Hale proposed recalibrating the guidance in order to avoid article violations in individual cases. Continue reading

Posted in Appendix FM, Article 14, Article 8, ECHR, English Tests, Entry Clearance, Human Rights Act, Immigration Rules, Judicial Review, Lady Hale, Proportionality, UKSC | Tagged , , , , , | 2 Comments

Deterring ‘Potential Extremists’: The BNA and the Scope of the Naturalisation Discretion

MM & GY & TY v Secretary of State for the Home Department [2015] EWHC 3513 (Admin) (03 December 2015)

This damaging decision for the British government was published immediately after David Cameron slanderously accused those opposed to expanding UK airstrikes against “Islamic State” of being a “bunch of terrorist sympathisers”. Overall the crude ultimatum probably deterred MPs from defying Cameron. To compliment existing British military strategy in Iraq, they voted 397 votes to 223 to approve airstrikes against ISIS in Syria; a move that made bombing jihadi militants in Raqqa – the “head of the snake” which must be crushed – a reality. But in this robust judgment handed down the very next day, Ouseley J defiantly quashed three decisions by the home secretary to refuse British citizenship to the wife and two adult children of a former member of the Egyptian Islamic Jihad (EIJ); a bloodthirsty preacher named Hany el Sayed el Sabaei Youssef (HY) who glorifies slain terror mastermind and former al-Qaida boss Osama bin Laden. Although HY’s wife and two adult children did satisfy statutory requirements for naturalisation, Theresa May exercised discretionary power to refuse them naturalisation in order to deter potential extremists from manifesting fundamentalism by sending out a clear message that their family members would not be naturalised as a consequence of their activities.

However, it was argued that MM, GY & TY are “blameless individuals whose character is unimpeachable” who had been punished “for the sins of their father”. The court agreed and chastised the home secretary for not grappling with the issues created by her policy and held that her stance was irrational because her position lacked internal logic. On the one hand, Ouseley J was invited to rule that executive action of this nature is inimical to democracy and the rule of law. On the other hand, arguments were aired that citizenship is a privilege – and not a right – which can be rationally denied to spouses and blood relatives of extremists. However, the home secretary’s attempt to disincentivise extremism backfired and the court held that it is unfair to refuse naturalisation with a view to providing a general deterrent to others. This post takes a look at this case and also provides me a chance to vent frustration at world affairs. Continue reading

Posted in Afghan War, Article 14, Article 3, Article 8, Citizenship and Nationality, ECHR, Human Rights Act, India, Islam, Judicial Review, Pakistan, Politics, Terrorism | Tagged , , , , | 1 Comment

MAC Skewers Tier 1 Entrepreneur Visas

The home secretary’s advisers – the Migration Advisory Committee (MAC) – have found that the Tier 1 (Entrepreneur) visa route under the Points-Based System (PBS) is being used by “low quality businesses”. MAC, which consists of a publicly appointed chairman and four other independent economists, is adamant that it “found substantial evidence” for reaching this conclusion and opined that industry experts and leaders ought to be selecting entrepreneurs rather than civil servants. These criticisms are a further jolt to the UK’s high global ranking (6th) for entrepreneurship and opportunity because just two weeks ago while giving evidence to the Home Office Select Committee, Professor David Metcalf CBE, MAC’s chairman, hammered Tier 1 (Investor) “golden” visas as “absolutely not fit for purpose”. The UK is giving settlement and citizenship rights away to foreign elites he protested. British residents are footing the bill and he considers it pointless to reward foreign businessmen investing in gilts with accelerated settlement rights and citizenship. Metcalf also approves of the onerous minimum income requirements for spouses and partners under (the inexorable) Appendix FM of the Immigration Rules, which cannot be met by half of the UK’s population and are now being litigated in the Supreme Court – the court of last resort and the highest appellate court in the land.

Irrespective of the hardship caused by the harshness of the family migration rules, Malthusians such as Metcalf and Mrs May – who symbolise nothing short of a “population police” – must feel vindicated by recent estimates released by the Office of National Statistics (ONS) that Britain’s population will rise by 10 million over the next 25 years, and net migration will drive two-thirds of this growth. This figure makes a striking contrast with the rest of Europe as a whole where population is expected to rise at a rate of 3% in comparison with the UK where the rate is predicted to be 15%. The ten-year projection is that the UK population will rise by 4.4 million with the result that England’s population could swell as much as 7.5% by 2024. These trends suggest that the UK will leave France and Germany behind to become Europe’s most populous country by Continue reading

Posted in Appendix FM, Economy, Employment, Entrepreneurs, Immigration Rules, PBS, Tier 1 | Tagged , , , , , | 1 Comment

Former IRA Man Loses Supreme Court Appeal

R v McGeough (Appellant) (Northern Ireland) [2015] UKSC 62 (21 October 2015)

In this appeal from a judgment of the Court of Appeal in Northern Ireland – given by Morgan LCJ, Higgins and Girvan LJJ, [2013] NICA 22 (7 May 2013) – Lord Neuberger (President), Lord Kerr, Lord Hughes, Lord Toulson and Lord Hodge dismissed Terence Gerard McGeough’s appeal and their Lordships held that Council Directive 2005/85/EC (the Procedures Directive) did not help him in establishing that information contained in his asylum application (August 1983) in Sweden was protected from disclosure in his criminal trial (November 2010) in the UK. This unusual case involves the activities of the Irish Republican Army (IRA) and boasts quite unique facts. On 13 June 1981 McGeough was badly injured in an attack he mounted on the instructions of the IRA, along with another republican militant, in County Tyrone against Samuel Brush – a postman and also a member of the Ulster Defence Regiment (UDR). Expecting an attack on his life, Brush had been wearing a bulletproof vest. He also had a Smith and Wesson revolver for personal protection. Despite being hit by several bullets, Brush returned fire and injured McGeough who needed to have a .38 bullet surgically removed from his body.

Although in the Republic of Ireland, Monaghan is not far from Aughnacloy in the townland of Cravenny Irish, the spot near which the attack on Brush took place in a remote part of County Tyrone in Northern Ireland. McGeough’s critical condition meant that to cope with the gunshot wound to the chest, he was airlifted from Monaghan and admitted to a Dublin hospital. When he was returned to a hospital in Monaghan, despite being under police guard he managed to escape on 27 June 1981 and made his way out of the country soon thereafter. Three decades later on 18 February 2011, at Belfast Crown Court Stephens J convicted McGeough of attempted murder, possession of firearms with intent to commit an indictable offence, and two counts of membership of the IRA (a proscribed organisation) from 1 January 1975 until 14 June 1981. McGeough was sentenced to a 20-year prison term but served less than two years under the terms of the Good Friday Agreement 1998, he was released in January 2013. Continue reading

Posted in Asylum, British Bill of Rights, Disclosure, ECHR, European Union, Human Rights Act, Immigration Rules, Refugee Convention, UKSC | Tagged , , , , , , , , | 1 Comment

Supreme Court Allows Evidential Flexibility Appeal

On 14 October 2015, a generous Supreme Court allowed four appeals in as many judgments. In Gohil [2015] UKSC 61 and Sharland [2015] UKSC 60, among other things, “opening the floodgates” the court held that Varsha Gohil and Alison Sharland were entitled to have their divorce settlements reopened and seek new payouts because their former husbands had concealed vital financial information during their divorce cases. In Shahid [2015] UKSC 58, the court found that the appellant – who was convicted of the racially-aggravated abduction and murder of a 15-year-old boy – was segregated unlawfully during three separate periods totalling 14 months and that his article 8 rights had been violated. And in the immigration case of Mandalia [2015] UKSC 59, holding that the government’s “high level of pedantry” was “misplaced” the court unanimously allowed a Tier 4 (General) student’s appeal and quashed the refusal of his visa extension application. Presently aged 33, an Indian national, Mr Manish Mandalia entered the UK as a student in February 2008. His visa was extended until 9 February 2012. With just two days to spare, on 7 February 2012 he sought to renew his leave to continue his studies but his application was refused because his bank statements were not as specified by the rules.

Pursuing a two-year certified accountancy course, Mandalia submitted his application with evidence that he had held at least £5,400 for a consecutive period of only 22 days ending no earlier than a month prior to the date of his application whereas the rules underpinning his application exacted that his bank statements needed to show that he had held the said amount for a consecutive period of 28 days. He complained that the evidential flexibility policy, which allowed him to cure his mistake before his application was refused and a decision to remove him was made, was not applied to him. The question for Lady Hale DPSC and Lord Clarke, Lord Wilson, Lord Reed and Lord Hughes JJSC was whether the home office acted unlawfully in refusing Mandalia’s application without first inviting him to provide a further bank statement or statements which showed that he had also held at least £5,400 throughout the missing/preceding six days? Continue reading

Posted in Article 8, Immigration Rules, Legitimate Expectation, PBS, Students, Tier 4, UKSC | Tagged , , , , | Leave a comment

Tier 1 Investor Visas ‘Not Fit For Purpose’

According to Professor David Metcalf OBE, Tier 1 (Investor) visas are “absolutely not fit for purpose” and he said the UK derives “absolutely no gain” from the operation of this golden system of immigration and citizenship for wealthy individuals. Quite paradoxically, these revelations, made by the chair of the independent Migration Advisory Committee (MAC), come off the heels off the government’s concerns that criminals are using the buoyant London property market to conceal their ill-gotten gains. Under fire from the Home Affairs Select Committee on Tuesday 20 October 2015, Metcalf also admitted before MPs that the home secretary failed to consult him prior to launching her failed bid to reduce net migration to the tens of thousands. Things are made even more scandalous by the fact that the British taxpayer is doling out huge sums of money to potentially dodgy foreign businessmen and oligarchs who invest in gilts and are recklessly rewarded with accelerated settlement rights and citizenship over and above the interest money earned from investing in government bonds. Interestingly, Metcalf also backs the controversial minimum income requirements for spouses and suggests a “minimum gross income figure to support a two-adult family of between £18,600 and £25,700”.

So-called Tier 1 “golden visas” are fashionable among the Chinese and Russian elites and Chinese investors (more than 350 in 2013-2014) using the scheme are increasing at an exponential rate. Although the scheme brings billions to the UK in investment its weaknesses are all too apparent to MAC and Transparency International says that the visas are being used to launder money. Metcalf is very concerned that the home office is handing settlement rights out to rich individuals and he also thinks that the UK is paying foreigners for the privilege of acquiring British citizenship. Metcalf’s claims could not have come at a more inopportune moment because the Chinese president Xi Jinping is visiting the UK on a four-day state visit and the two countries have just signed business deals worth £40 billion. The seriousness surrounding the deal-making was so profound that even Labour leader Jeremy Corbyn succumbed to pressure and decided not to engage in political grandstanding by upsetting Xi Jinping – who was clear that opportunity may knock just once and had played hard to get with president Obama Continue reading

Posted in China, Citizenship and Nationality, Immigration Rules, Judicial Review, MAC, Pakistan, PBS, Settlement, Tier 1 | Tagged , , , | 2 Comments

Tier 1 Exceptional Tech Talent Visas

During colonial times, British bayonets and bullets butchered entire populations. The British were notorious for blowing people to bits at the cannon’s mouth. But now British battalions are chicken to pull the trigger in the battlefield against baddies such as the Taliban. So they want a British Bill of Rights to solve the problem. Ministers want to be able to detain people such as Serdar Mohammed – accused of being a bomb-maker – indefinitely in some Afghan hellhole but since the courts said otherwise, the government now wants to derogate from the “ludicrous” European Convention on Human Rights (ECHR) so that the British war machine can confidently enter war zones with a “licence to kill”. Because it has cost the government £150 million to defend thousands of judicial reviews and compensation claims arising out of British misconduct in Iraq and Afghanistan, action is being taken to discipline lawyers making bogus claims and “two human rights firms” have been referred to the regulator to “end the human rights farce”. As promised in Theresa May’s recent speech, rogue lawyers will no longer be allowed to misuse human rights but the army will be permitted to indulge in abuse and torture. Forget human rights, turn to tech!

Although we have entered an era when the kid gloves have come off, there is a brighter side to life outside the ECHR and asylum and the global war on terror. Notably, despite all the gloom and doom, a few foreigners are still welcome but the deal is that you must be an asset to the UK. Clever foreign technology specialists are in high demand and the Tier 1 (Exceptional Tech Talent) scheme caters to them. Tech City UK, the taxpayer-funded organisation designed to promote the UK’s digital technology sector, received 19 applications and approved 17 but it has an annual capacity of 200 annual places. Since there was too much red tape for small companies to cut through, there will be four new ways for foreign technology specialists to satisfy the criteria. Tech City UK’s mission is to attract and secure world-class talent from outside the European Union (EU) and the Tier 1 (Exceptional Tech Talent) scheme will open on 12 November 2015 and the full criteria and application process will go live on that date. Continue reading

Posted in Afghan War, Business, ECHR, Exceptional Talent, Immigration Rules, Iraq, PBS, Tier 1 | Tagged , , , | 1 Comment