Appeal Rights and EFMs: The End of Sala

Khan v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1755 (09 November 2017)

Appeal rights in a hostile environment are a hotly debated topic in immigration law. Enforcement officials are notorious for denying appeal rights to immigration subjects. Sometimes immigration judges tend to mimic this behaviour. In these proceedings, the Court of Appeal held that the case of Sala (EFMs: Right of Appeal) [2016] UKUT 0411 (IAC) was wrongly decided. The demise of Sala is being widely celebrated by immigration lawyers and appellants alike. The Upper Tribunal was wrong to find that no statutory right of appeal exists against a refusal to grant a residence card to a person claiming to be an extended family member (EFM) of an EEA national. Contrary to the findings made by CMG Ockelton VP and UTJ Grubb in Sala, the First-tier Tribunal and the Upper Tribunal do indeed have jurisdiction to hear an appeal where the Home Secretary refuses to exercise her discretion to grant a residence card to someone claiming to be an EFM within the meaning of regulation 17(4) of the Immigration (European Economic Area) Regulations 2006. The exercise of such discretion is an “EEA Decision” within the meaning of regulation 2(1). Muhammad Yasir Khan is from Pakistan. Relying on his uncle, a German national, he applied for a residence permit as an EFM but his application was refused in 2014 because the decision-maker did not accept that he was an EFM under regulation 8(2).

The First-tier Tribunal allowed his appeal in 2015. However, in 2016, applying Sala the Upper Tribunal found that there was no jurisdiction to hear the appeal. Consequently, the refusal had to be challenged by judicial review proceedings instead. Undeterred, Khan appealed to the Court of Appeal arguing three points. First, that Upper Tribunal should have permitted the parties to make submissions as to the decision in Sala, and the existence of the jurisdiction, before reaching its determination on the issue. Second, and most importantly, that in any event, Sala was wrongly decided, and whether as a matter of domestic statutory construction, or as a matter of EU law, there is a right of appeal to the tribunal system. Third, that even if Sala was correctly decided, and the 2006 Regulations cannot be construed so as to afford an EFM a right of appeal to the tribunals, they should be struck down as incompatible with EU law (permission was refused on this ground). Continue reading

Posted in Appeals, Article 8, CFR, Citizens Directive, CJEU, Court of Appeal, ECHR, European Union, Immigration Act 2014, Judges, OFMs, Proportionality, UKSC | Tagged , , , , , , , , | 1 Comment

Deceptive Criminal from Sierra Leone Triumphs on Citizens’ Directive in Court of Appeal

R (Decker) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1752 (03 November 2017)

These judicial review proceedings relate to the refusal of a residence card and the right approach to the validity of deportation orders. The Court of Appeal held that refusing an EEA residence card to the appellant Arthur Obafemi Cecil Decker was unlawful because proper consideration had never been provided to whether he really represented a “genuine, present and sufficiently serious threat” within the meaning of article 27(2) of the Citizens’ Directive as transposed by regulation 21 of the Immigration (European Economic Area) Regulations 2006. Jackson, Lewison and Hamblen LJJ did not think it was obvious how the question would have been decided in light of the tribunal’s findings that Decker posed a low risk of reoffending, his offending was dated and conducted long ago in his youth, and that he had not subsequently reoffended. Decker is from Sierra Leone and entered the UK a visitor in 2000 when he was aged 17. He arrived with his sister Winifred. Their asylum applications were refused but Winifred was granted indefinite leave to remain under the legacy exercise. Because he submitted forged medical documents with an immigration application, in 2005 Decker was convicted of trying to obtain leave by deception for which he was sentenced to 15 months’ detention in a young offenders’ institution. In 2008, he was notified of the decision to make a deportation order against him.

While his appeal was pending he moved to Ireland in 2009 with his sister Jennifer, a British citizen exercising Treaty rights and was therefore granted an EEA residence card as an extended family member. His appeal was withdrawn and a deportation order was signed against him. He subsequently returned to the UK eight months later and sought an EEA residence card on the ground that he was Jennifer’s dependent and a member of her household. The application was refused in 2010 and refused after reconsideration in 2011 and 2012. The First-tier Tribunal dismissed the appeal against the refusal and the Upper Tribunal refused permission to appeal. The Home Office refused to revoke the deportation order. Decker challenged the decision to remove him by instituting judicial review proceedings, attacking the validity of the deportation order made when he was in Ireland and the decision to detain him. He also challenged the Upper Tribunal’s decision to refuse permission to appeal and the refusal and certification of his application to revoke the deportation order. Continue reading

Posted in Appeals, Article 8, Asylum, Citizens Directive, Deception, Deportation, Detention, Entry Clearance, European Union, False Statements and Misrepresentations, Judicial Review, OFMs, UKSC | Tagged , , , , , , , , , , | Leave a comment

AG Bot: No Coverage for Mental Illness and Past Torture under the Qualification Directive

The annihilation of the Liberation Tigers of Tamil Eelam (LTTE) came at the cost of widespread human rights abuses and “unacceptably high” civilian casualties if not outright genocide. In MP (Sri Lanka) (C‑353/16, EU:C:2017:795), a reference from the UK Supreme Court, the CJEU is asked to rule on the question whether a third country national, who was tortured in the past but will no longer face torture upon return, is entitled to subsidiary protection because his psychological conditions would be treated inadequately by his state of origin’s healthcare system. Essentially, the question relates to the precise scope of coverage for mental illness and past torture within the meaning of the Qualification Directive (2004/83/EC). These proceedings provide a fresh opportunity for the CJEU to interpret article 2(e) and article 15(b) of the Directive or to alternatively rule on article 3 of the ECHR and article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). In a conservative mood, Advocate General Yves Bot proposed that, notwithstanding article 3 of the ECHR and article 14(1) of CAT, the CJEU should rule that article 2(e) and article 15(b) of the Directive impose no obligation on EU states to widen the scope of subsidiary protection to include cases such MP’s case. MP came to the UK from Sri Lanka in early 2005 as a student.

His leave to remain was extended to September 2008 but a further extension was refused in December 2008. Thereafter, he claimed asylum on the basis that he had been a member of the LTTE because of which the Sri Lankan security forces detained and tortured him. He said his LTTE background meant he was at risk of further ill-treatment if returned to the Sri Lanka. His claim was refused in February 2009. His narrative about LTTE membership and detention and torture claims were not disputed but it was not accepted that he would be of continuing interest to the Sri Lankan authorities or at risk of further ill-treatment if he were returned. Along with two others, MP was one of the appellants in the country guidance case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC). The medical evidence pointed to the scars on his chest, arms and limbs to be “highly consistent” with his claims of being beaten with blunt instruments and other forms of torture such as cigarette burns and hot iron bar burns and cuts to his hand with a knife. Continue reading

Posted in Article 3, Asylum, ECHR, European Union, Persecution, Politics, Refugee Convention, Settlement, Sri Lanka, Terrorism, UKSC | Tagged , , , , , , , | Leave a comment

AG Szpunar: Permanent Residence is Necessary for Enhanced Protection against Expulsion

In EU Citizenship and Federalism: The Role of Rights, Michal Meduna’s entertaining chapter examines the protection EU citizens enjoy against expulsion as a consequence of scelestus europeus sum or “I am a European offender”. Toying with Sir Francis Jacob’s idea in the case of Konstantinidis (C-168/91, EU:C:1992:504) that EU citizens on the move can claim civis europeus sum to protect their fundamental rights, Meduna explains that “we do not find ourselves in a Greek tragedy”. Accordingly, the European Commission’s DG Justice, Human Rights and Citizenship concludes that key cases such as B and Vomero (Joined Cases C‑316/16 and C‑424/16, EU:C:2017:797) provide the CJEU the opportunity to rectify earlier mistakes – chances that were “squandered” in Rendón Marín (C‑165/14, EU:C:2016:675) and CS (Morocco) (C-304/14, EU:C:2016:674) – by fully federalising EU citizenship. For Meduna, “the Delphic prophecy” in Grzelczyk (C-184/99, EU:C:2001:458), that EU citizenship is “destined to be the fundamental status of the nationals of the member states”, compels EU institutions and citizens alike to toil to ensure that EU criminals can claim scelestus europeus sum confidently and “see national authorities nodding, and not laughing in response.” However, the very uncomfortable picture presented by recent jurisprudence has potentially been enlarged yet again because in B and Vomero AG Szpunar has opined that the acquisition of a right of permanent residence is mandatory for an EU citizen to qualify for enhanced protection against expulsion.

A case with a complex procedural history, Vomero is a reference to the CJEU from the UK Supreme Court which granted permission to appeal in February 2013 but stayed proceedings as references were already pending in MG (C-400/12, EU:C:2014:9) and Onuekwere (C-378/12, EU:C:2014:13). Vomero is an Italian, recidivist offender, whose crimes include manslaughter, assaulting the police, driving a motor vehicle while unfit through drink or drugs and driving while disqualified. He entered the UK more than 30 years ago after meeting his British partner in France. They married, jointly purchased property and had five children but their marriage broke down. Thereafter, Vomero moved into accommodation with Edward Mitchell and killed him by battering him on the head with weapons, including a hammer, and subsequently strangled Mitchell with the flex from an iron. Among other things, two questions struck the Supreme Court as important. Continue reading

Posted in Citizens Directive, Citizenship and Nationality, CJEU, Deportation, Enhanced Protection, Germany, Nationality, Permanent Residence, Proportionality, UKSC | Tagged , , , , , , | Leave a comment

Article 8 and Entry Clearance: Court of Appeal Confirms the Approach in Mostafa

Entry Clearance Officer, Sierra Leone v Kopoi [2017] EWCA Civ 1511 (10 October 2017)

In this interesting case, the Court of Appeal allowed the ECO’s appeal against the Upper Tribunal’s decision that the relationship between Edna Kopoi and her relatives in the UK amounted to family life for the purposes of article 8 of the ECHR. Overall, the outcome confirms the ratio of Mostafa [2015] UKUT 112 (IAC) where it was held that it “will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of article 8(1).” Born in 1991, Edna Kopoi is a citizen of Sierra Leone and resides there. Her father, Edmound Kopoi had sponsored her cousin Emmanuel Kopoi to study for his O-level exams and took care of him in Freetown where he went to college. Emmanuel got a job with the UN and while working in Nepal he met a British citizen and they got married in 2008. Emmanuel has ILR and the couple have two children: it is their wish that their children should develop a proper relationship with their paternal family and cultivate Sierra Leonean roots. In October 2013, Edna applied for entry clearance to the UK as a family visitor to come stay with her cousin Emmanuel and his wife for three weeks under the couple’s sponsorship.

Her application was considered under the visit visa rules at the material time – i.e. paragraph 41 of the Immigration Rules – but the ECO refused entry clearance because was he not satisfied that she was genuinely seeking entry as a visitor for a limited period as claimed and that she intended to leave the UK after her visit. Edna, who had finished college, failed to provide evidence that she planned on further study in Sierra Leone. She was unemployed, had no money of her own and was wholly dependent on her father and her sponsors. An entry clearance manager reviewed the decision on the ground that Edna was indeed a genuine visitor and that “it is a breach of the rights of the children of the sponsors right to family life to deny them access to their paternal family members.” In February 2014, the ECM upheld the refusal because Edna’s future plans remained unclear and she had no personal financial resources. In the ECM’s view, no breach of article 8 occurred because no family life existed between the two British children concerned and their paternal family members in Sierra Leone. Continue reading

Posted in Africa, Article 8, Brexit, Children, Court of Appeal, ECHR, Human Rights Act, Immigration Rules, Judicial Review, Miller, Proportionality, Tribunals, UKSC, Visitors | Tagged , , , , , , , , | 1 Comment

Article 8 and Entry Clearance: No Obligation under ECHR to Allow Aliens to Pursue a Private Life

Secretary of State for the Home Department v Abbas [2017] EWCA Civ 1393 (28 September 2017)

A Pakistani national aged 33, Tahir Abbas made an application for him and his wife and two small children to come to the UK for four weeks in 2014 for the purpose of visiting his British uncle and his grandmother. Providing details of previous visits, Abbas answered questions relating to his employment and financial position. He indicated that the trip would cost him only £250 because his British uncle would pay the remaining costs incurred by the trip. The entry clearance officer refused the application as Abbas had previously been refused entry clearance because of using deception by filing a non-genuine document. The ECO was also not satisfied that the family would leave the UK as stated at the end of the proposed visit. Abbas contended that the earlier refusal “was not fair at all” and responded to the concerns raised by the previous ECO about the origin of funds in his bank. Despite having overstayed on a previous visit and despite his sponsor (his uncle) having said they would be visiting for two months, Abbas maintained that him and his family had no intention of overstaying in the UK and would leave in four weeks. He pointed that large sums of money recently paid into his bank account had come from his British uncle who wanted to buy land in Pakistan.

The First-tier Tribunal allowed Abbas’s appeal against the refusal of entry clearance because such denial violated his rights to develop a private life guaranteed by article 8 of the ECHR. Upholding this rationale, the Upper Tribunal dismissed the appeal against the First-tier Tribunal’s decision. Abbas disputed that he submitted a false document relating to his employment when he was recently refused entry clearance under paragraph 320(7A) of the Immigration Rules. He supplied further documentation from his employer to confirm the position. The point of principle that arose on appeal to the Court of Appeal concerned the extent to which the state has a positive obligation on grounds of private life (where no relevant family life exists) to grant entry clearance for an adult to visit an elderly relative located in the UK. Gloster, Ryder and Burnett LJJ held that no such positive obligation exists. Burnett LJ found no sign of the recognition of such an obligation in the Strasbourg jurisprudence. Continue reading

Posted in Article 8, Court of Appeal, ECHR, Entry Clearance, Immigration Rules, Lady Hale, Pakistan, Proportionality, Tribunals, UKSC | Tagged , , , , , , | Leave a comment

Drug Dealing and Deportation: No Sympathy in Strasbourg for Settled Nigerian Criminal

Ndidi v United Kingdom – 41215/14 (Article 8 – Expulsion – Nigeria) [2017] ECHR 781 (14 September 2017)

Nicknamed “Bruiser” for “roughing up” his minions in the underworld of drug dealing, Ifeanyi Chukwu Ndidi, a Nigerian, entered the UK aged two with his mother and two siblings in 1989. He got badly roughed up in the immigration appeals system for his sins and his 28-year residence in the UK failed to trump the public interest in deporting him. The ECtHR agreed with the UK courts and authorities that his deportation was justified. Ndidi’s mother overstayed as a visitor and claimed asylum, which was refused, but she and her children were granted exceptional leave to remain. He began to offend from age 12. In 1999, he was cautioned for causing ABH and committing robbery. However, his offending intensified and he acquired a significant criminal record. He was convicted of robbery and GBH in 2003. The same year he was granted settlement and later also convicted of disorderly behaviour. He was convicted of burglary, theft and impersonating a police officer in 2004 and again during the same year he was convicted of robbery and was sentenced to three years’ detention in a Young Offenders’ Institution. Expulsion was not pursued but he was warned of his liability as to deportation. Subsequently, Ndidi pleaded guilty to supplying Class A drugs in 2008.

He was sentenced to seven years’ imprisonment in 2009. In 2010, the Home Office notified Ndidi of his liability to automatic deportation under section 32(5) of the United Kingdom Borders Act 2007. The decision-maker did not find that his rights under the Refugee Convention 1951 or the European Convention on Human Rights 1950 would not be breached by his deportation. His mother and siblings became British citizens and his father had acquired settlement. In the decision-maker’s view, Ndidi’s ties to them did not constitute family life and any private life he enjoyed ranked second to the legitimate interest of preventing disorder and crime by virtue of his removal. Equally, his elderly grandmother was in Nigeria and he could readjust to life there. There was no language barrier as English was an official language in Nigeria. The decision-maker cited Ndidi’s serious criminal record, and poor behaviour while in detention, to conclude that his deportation would not breach article 8 of the ECHR. Continue reading

Posted in Article 8, Automatic Deportation, Children, ECHR, Human Rights, Immigration Act 2014, Immigration Act 2016, Immigration Rules, Judges, Judicial Review, Legal Aid, Nigeria, Proportionality, Public Interest, Refugee Convention, s 55 BCIA, Settlement, Tribunals | Tagged , , , , , , , | Leave a comment