New Punishments: Immigration Bill 2015

The onslaught continues. The Immigration Act 2014 promised to root out the ills of the system but now fresh legislation has been proposed to cure things even further and the home office recently announced a welter of new (improved) anti-immigrant measures in the Immigration Bill 2015. For example, in addition to the right to rent checks introduced under part 3 of the 2014 Act, it is now apparent that rogue landlords will be made subject to the new criminal offence of renting to illegal immigrants. Pursuant to the new punishments, the home office will also be able to close any business down for 48 hours for reason of employing illegal workers (illegal migrants in the UK are estimated to be between 420,000 to 860,000 – the Migration Observatory reports). Those hiring illegal workers “will be hit from all angles” said James Brokenshire in August 2015 as he promised to heighten enforcement raids from this autumn. Intriguingly, the Migration Advisory Committee, or MAC, estimates that on average employers can expect one wage enforcement visit from HMRC in 250 years and expect to be prosecuted for failing to pay the minimum wage once in a million years.

Within the measures set out in the new bill – which represent a further crackdown on access to services, enforcement and appeals – businesses will risk losing their licences to sell food and alcohol if they are found using illegal migrants as labour. Such provisions are seen as being in the “best interests of the British people and those who play by the rules.” Not long ago, in 2010, Theresa May and her boss David Cameron plotted a course to reduce net migration to the hundreds of thousands. But then came the rude awakening: instead of receding, net migration soared to new record levels, and data released in August 2015 demonstrated that it stood at 330,000. New economic problems are also afoot. For example, Andy Haldane, the chief economist of the Bank of England (BoE), has been arguing the case for reducing interest rates even further (from 0.5 percent) with the global financial crisis having entered a dreaded third phase. Continue reading

Posted in Access to Justice, Appeals, Article 8, Bank Accounts, ECHR, Economy, Employment, Enforcement, European Union, Human Rights Act, Immigration Act 2014, Immigration Bill 2015, Judicial Review, Politics, Tribunals | Tagged , , , , , , | 1 Comment

Immigration Act 2014: Bank Accounts

Although the Immigration Bill 2015-16 has arrived, the details of the Immigration Act 2014 are still being digested. Apart from rogue employers and landlords, provisions enacted under the 2014 Act also created a system that deals with immigration offenders in relation to bank accounts. These banking provisions hardwired immigration law with the larger discourse of regulating financial services. The Financial Conduct Authority (FCA) is the UK’s famous conduct of business regulator. Like the Prudential Regulation Authority (PRA), a subsidiary of the Bank of England (BoE), the FCA is a creature of statute and owes its existence to the Financial Services Act 2012 which introduced wholesale changes to the UK’s regulatory framework for financial services. Among other things, on 1 April 2013, the 2012 Act abolished and replaced the earlier Financial Services Authority (FSA) with the FCA and the PRA. When he came into office Martin Wheatley, the cashiered CEO of the FCA, unwisely said that in his role as City Sheriff he would shoot first and ask questions later. George Osborne could not renew his contract because of his overt aggression to the financial elite; Wheatley resigned and lamented that he had “unfinished business” to settle. Prior to the 2008 financial crisis, the banks enjoyed a free hand to cheat.

Tracey McDermott (who has been acting as CEO from 12 September 2015) temporarily replaced Wheatley and Andy Haldane (the BoE’s Chief Economist) has been tipped as his permanent replacement. Wheatley bit the dust because the FCA’s clumsy and controversial March 2014 scoop to the Telegraph entitled Savers locked into ‘rip-off’ pensions and investments may be free to exit, regulators will say (about investigating 30 million ancient “zombie” insurance policies) not only destroyed market value (almost £3 billion in just a few hours) and caused market free-fall for companies such as Aviva and Prudential, but also demonstrated his misunderstandings about his own role as regulator. That is where he ended up throwing the axe at his own feet. But later on he candidly accepted that the debacle was a “screw up”. I am only mentioning all this because Continue reading

Posted in Bank Accounts, Court of Appeal, Economy, Enforcement, FSMA, Immigration Act 2014, Immigration Bill 2015, Immigration Rules, Judges, Lady Hale | Tagged , , , , , , | 2 Comments

EU Spouse ‘Retains’ Higher Ground

Singh and Others (Judgment) [2015] EUECJ C-218/14 (16 July 2015)

One would think that yet another case called “Singh” – that too in the Court of Justice of the European Union (CJEU) – would probably be met with open arms by enthusiasts of European Union (EU) law. However, the strident answer to the main question in these proceedings probably pours cold water on the hopes of many third country nationals who would like to retain a right of residence under the Citizens’ Directive, 2004/38/EC (the directive). I did not contaminate the post on the English reference pending in C-115/15, NA (Pakistan) with the Irish outcome of this case because that may have offended Theresa May, as everyone knows the Home Secretary (who does not beat about the bush) is a law unto herself and has even been putting David Cameron on the immigration hook. With Survation’s poll showing that 43 percent would vote for Brexit and 40 percent would choose to stay (and 17 percent are undecided), things are looking grim for EU fans. These cases turned on issues relating to retention of residence rights and sufficiency of resources. The EU spouses involved left Ireland to settle in another member state whereas the spouses who were third country nationals chose to remain in Ireland.

The decision in this case is a lead balloon. It has been expertly defined as another “problematic CJEU judgment” in an important field where, as Professor Steve Peers has soulfully argued, the rules on divorce and departure “appear to conflict with each other nearly as much as divorcing couples do.” He found this ruling “simplistic”. Soon after their departure, the EU spouses initiated divorce proceedings that led to the dissolution of the marriages between them and the third country nationals concerned. Kuldip Singh (an Indian), Denzel Njume (a Cameroonian) and Khalid Aly (an Egyptian) were unhappy with the Minister for Justice and Equality’s rejection of their applications for retention of their right of residence in Ireland subsequent to their divorces. The court analysed a medley of authorities including Melloni, C-399/11, EU:C:2013:107Iida, C-40/11, EU:C:2012:691, Continue reading

Posted in Citizens Directive, CJEU, Karachi, Permanent Residence | Tagged , , , , | Leave a comment

Asylum, Blogging and Iran

“The image conjured up by the name Persia is one of romance – roses and nightingales in elegant gardens, fast horses, flirtatious women, sharp sabres, jewel-coloured carpets, melodious music,” explains Michael Axworthy in Empire of the Mind. “But in the cliché of Western media presentation, the name Iran conjures a rather different image – frowning mullahs, black oil, women’s blanched faces peering from under dark chadors, grim crowds burning flags, chanting ‘death to …’,” he argues further. Considered to be public enemy number one and part of the “axis of evil” just a few years ago, a resurgent Iran is fast becoming the envy of historically pampered American allies like Israel and Saudi Arabia. Much to their dismay, Iran, the classic rogue state looks set to become America’s ally in the “war on terror”. Barack Hussein Obama’s Iran deal, symbolising the great thaw in relations with the Ayatollahs, is arguably as historic as Nixon’s deal with the Chinese.

As expected, Republican efforts to scupper the deal were killed by Democrats in the US Senate, securing a major foreign policy victory for President Obama; he will not have to veto any moves against the deal that reforms Iran’s nuclear programme. Republicans remained two votes short of the 60 needed to take the resolution to a final vote. “This vote is a victory for diplomacy for American national security, and for the safety and security of the world,” Obama said. In the run up to Obama’s triumph, likening the Vienna Agreement (or Joint Comprehensive Plan of Action (JCPOA)) to a football match, a jocund President Hassan Rouhani posited that Iran had won the game by three goals to two. Continue reading

Posted in Appendix FM, Asylum, Blogging, Business, European Union, India, Iran, Islam, Israel, Pakistan, Politics, Refugee Convention, Terrorism, Tribunals, United States, Women | Tagged , , , , , , , | Leave a comment

Pending Case NA (C-115/15): Four Questions For CJEU

European Union (EU) law can be potent stuff; its spectacularly emollient effects are totally life-changing for beneficiaries. Conversely, the abrasive national rules are fraught with treachery and only the fit survive. Impossible things are possible for illegal entrants under the regulations but under the rebarbative rules impossibility will often confront, and usually crush, the applicant: outside the rules non-standard features are required to justify granting leave. Another thing to know about the Darwinian rules, which are true only by the accident of history, is that when they do come into play to aid an applicant, there is scant acknowledgement that they even exist. From this perspective, the rules are a myth; by skewing them regularly, the Home Office shortchanges applicants even when coverage under article 8 of the European Convention on Human Rights (ECHR) exists. Involving a myriad of intriguing issues, the EU law tale of a Pakistani lady called Nazia Ahmed (NA) has been reported as [2013] UKUT 89 (IAC), [2014] EWCA Civ 995 and [2015] EWCA Civ 140. These days her case is simply known as Pending Case NA (C-115/15) and may hold the key to unlocking numerous doors in EU law.

The Court of Appeal’s latest judgment, [2015] EWCA Civ 140, reveals that three further questions have been referred for a preliminary ruling. Therefore, combined with the single question formulated in [2014] EWCA Civ 995, a total of four questions are awaiting answers from Luxembourg’s Elysian Fields. The application initiating proceedings was lodged in the Court of Justice of the European Union (CJEU) on 6 March 2015 and the reference in the Official Journal was published as Application: OJ C 171 from 26 May 2015, p. 20. NA’s case is unique because, unlike past cases, her EU national children’s proposed removal within the EU (from the UK to Germany, the state of their nationality and the only state within the EU in which they are entitled to live) was, at [2013] UKUT 89 (IAC), held to violate their human rights. Equally, in relation to the derivative right of residence, her case Continue reading

Posted in Article 8, CFR, Citizens Directive, CJEU, ECHR, European Union, Human Rights, Immigration Rules, Karachi, Pakistan, Permanent Residence | Tagged , , , , , , , | 1 Comment

Student Loans: Settlement Criterion Declared Unlawful

Lady HaleR (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57 (29 July 2015)

Soaring costs, rampant hostility towards foreigners and rigid rules have made the UK an unattractive place to live and study. But should settlement underpin access to student loans? As Lady Hale DPSC stressed at the outset of her judgment, Tigere’s case concerned the discriminatory rules of eligibility for educational loans which were inaccessible to students factually settled in the UK but not settled in the eyes of immigration law. “The appellant is not alone in her predicament,” spoke the voice of reason as her Ladyship clarified that the future of a very small group of young people – who, for no fault of their own, had hitherto been put in an invidious position – depended on the outcome of these proceedings. The case turned on whether either the lawful residence or settlement criterion governing access to student funding breached a Zambian national’s right to education under article 2 of the first protocol (A2P1) of the European Convention on Human Rights (ECHR) or unjustifiably discriminated against her in the enjoyment of that right. The “unjustifiably discriminatory” settlement criterion breached the ECHR whereas there was “ample justification” for the requirement to be lawfully ordinarily resident.

Allowing the appeal in part, the Supreme Court held by majority (3:2) that requiring settlement to qualify for a student loan breached Tigere’s ECHR rights, article 14 (prohibition of discrimination) read with A2P1 (no person shall be denied the right to education). This is good news for those with discretionary leave to remain (DLR) because they can no longer be denied student funding on the ground that they are not settled. According to the court, precluding persons such as Tigere from accessing student loans has a very severe impact on them. Likewise, denying or delaying higher education, until settlement is achieved, also damages the community and the economy. “Education is rather different” from general measures of political, economic or social strategy because the margin of appreciation allowed to the state under the ECHR increases exponentially with the level of education. Continue reading

Posted in Appendix FM, Article 14, Article 8, ECHR, Education, Human Rights Act, Immigration Rules, Lady Hale, Settlement, Students, UKSC | Tagged , , , , , | 1 Comment

Terror Imam: Monitoring Measures Breach ECHR

DD v Secretary of State for the Home Department [2015] EWHC 1681 (Admin) (19 June 2015)

No matter where one looks, judges seem to be hell-bent on helping wicked individuals. For example, SIAC’s recent decision that N2’s continued detention was unjustified, because he would not abscond, is yet another tight slap across Theresa May’s face. In the earlier case of DD, which this post analyses, the High Court thought that a radical Somali preacher’s electronic monitoring tag inhibited his human rights. Elsewhere, the Lahore High Court had gone even further by ordering the release of Zakiur Rehman Lakhavi, the mastermind behind the Mumbai terror attacks in 2008, because his continued detention under public order legislation was “unlawful”. The English courts face stern criticism for being afraid of breaching terror suspects’ human rights whereas their (arguably venal) Pakistani counterparts are accused of having historic ties to jihadis. But in fairness, unlike Irwin J or Collins J, Pakistani judges may after all face the further dilemma of being targeted in suicide attacks for not granting bail so perhaps there are more attractive reasons to forgive them for tolerating extremism. I am generally suspicious of all things David Cameron but I agree with him that British Muslims need to do more to stop radicalisation.

Just the other day, walking in north London in the middle of the holy month of Ramadan I passed a synagogue, a church, a temple and a mosque. Security at the synagogue was beefed up. The church looked deserted. Women dressed in colourful sarees with bindis and henna stained hands congregated outside the temple. Friday prayers had just broken off at the mosque and about fifty wild-eyed men loitered outside and their behaviour unsettled even me, a native of Karachi – arguably the world’s most dangerous city. To a foreigner, the ignorance observable in British Salafism is probably the type of Jahiliyyah against which the early Muslims, Prophet Muhammad (Peace Be Upon Him) and his companions, undertook to preach their message. (Here Salafism and Wahhabism are deliberately used interchangeably despite the former’s objection to doing so.) Continue reading

Posted in Al-Shabab, Article 3, Article 8, Asylum, Human Rights Act, Islam, Kenya, Refugee Convention, Somalia, Terrorism | Tagged , , , , , | 1 Comment