In February 2017, the Supreme Court (SC) handed down the long awaited judgement in MM (Lebanon) and others v SSHD [2017] UKSC 10. The SC concluded that the minimum income requirement (MIR) was acceptable in principle but the Rules and the Instructions which underpin the decision making unlawfully fail to take proper account of the s 55 duty (in relation to the welfare and protection of children's rights and interests). The SC also stated that the Instructions required amendment to allow consideration of "alternative sources of funding" when evaluating a claim under article 8 of the ECHR.
• Akinyemi v the Secretary of State for the Home Department [2017] EWCA Civ 236
The findings were largely fact sensitive and the court of appeal (CA) made that clear in [54].
In a sea of failed deportation appeals, this was arguable aquatic unicorn. In cases such as JO (Uganda) [2010] EWCA Civ 10, and Maslov v Austria (App no. 1638/03), the courts identified that long term residence in any country particularly from birth or childhood must be accorded significant weight in a deportation decision. In Akinyemi, the appellant was born in the UK to a naturalised British father and siblings with settled status. Although one of his siblings was born in the UK at a time when he was automatically entitled to British citizenship, the appellant was caught by the change in the change to UK nationality law. The appellant had several convictions and the SSHD wanted to deport him to Nigeria where he had never lived. The court considered the public interest factors in statute (section 117B-D of the NIAA 2002) and concluded that in his case, it could not be argued that he was in the UK "unlawfully" due to a loophole/ lacuna in the law. Therefore, the upper tribunal (UT) erred in the approach to public interest and his presence in this country. The UT Judge was wrong to direct herself that little weight should be attached to the fact that the appellant had been in the UK his whole life and to conclude that his presence was unlawful.
• R (on the application of Kiarie) and Byndloss [2017] UKSC 42.
Like manna from heaven (or something equally lovely), the SC delivered their judgement in the case of Kiarie and declared that the government's "deport first appeal later" policy was unfair and incompatible with the rights conferred by article 8 of the ECHR.
Article 8 requires that an appeal against a deportation order by reference to a claim in respect of private and family life should be effective [see paras 51-52]. Certification under section 94B of the 2002 Act, which results in deportation prior to the completion of the appeal process, obstructs an appellant's ability to effectively present his appeal against the deportation order [59]. The SSHD had certified article 8 claims of foreign criminals under section 94B in the absence of a ECHR-compliant system for the conduct of an appeal from abroad. The SSHD therefore failed to establish that deportation in advance of appeal strikes a fair balance between the rights of the appellants and the interests of the community and therefore the decisions to issue the certificates were unlawful [78].
Arguments regarding the relevance of these findings to non-deportation cases were advanced. At first, the SSHD sought to argue that the principles in Kiarie had no application to administrative removal cases (as well as EEA nationals who can apply to return to the UK to participate in deportation hearings). I do not think the distinction being made by the SSHD has continued to survive in the latter part of the year.
The EU does not seek to protect the rights of those who enter into "marriages of convenience" so the SSHD is always on the lookout for potential sham marriages. As an aside, the old saying "opposites attract" is unlikely to be well received in UK immigration law. The SSJD must prove that the marriage is a sham (see also Agho [2015] EWCA Civ 1198 and Rosa [2016] EWCA Civ 14).
• In Sadovska and another v SSHD (Scotland) [2017] UKSC 54,
the SC observed that in assessing an appeal in a sham marriage allegation, where a transcript of a marriage interview has been served, the court should not only consider inconsistencies in the parties' accounts but also the consistent matters (should go without saying).
The court also reiterated that a tribunal must consider the circumstances in which a marriage interview took place and any witness statement(s) relied on by the parties. In essence, consider the evidence globally rather than viewing the transcript of the marriage interview (if one is served by the SSHD), as a fait accompli. In addition, in a case involving an EEA national who is suspected of being in a sham marriage, [31] if the marriage is found to be a sham, proportationality of taking removal action (in an abuse of rights situation) must also be considered by a tribunal.
• In R (on the application of Islam and Pathan) v Secretary of State for the Home Department (Tier 2 licence-revocation-consequences) [2017] UKUT 00369 (IAC),
the Upper tribunal (UT) declared: "Unlike the situation for Tier 4 applicants, a person whose sponsor's Tier 2 licence was revoked for non-compliance with the Immigration Rules is not entitled to challenge a decision not to provide him/her with a period of 60 days in which to secure an alternative sponsor. Patel [2011] UKUT 211 (IAC) distinguished." The appellants relied on the principles of common law fairness (particularly on Doody [1994] 1 AC 531 one of my favourites. In paragraph 26, UTJ Allen found that the decision to treat students and workers different was a rational one. The judge concluded that there are operational and policy differences between the two categories. The Tier 4 objective is to provide persons who wish to study in the United Kingdom access to appropriate education at institutions and to regulate demand from prospective students, whereas the purpose behind Tier 2 is to meet demand from prospective employers in areas of skills shortage with applicants who can fill particular skilled vacancies where no resident worker can be found. The former is "a service consumer" and the latter, "a service provider". Although the judge stated that he saw some force in the appellants' argument, there was no irrationality in the SSHD's decision not to grant a 60-day period.
• Ahsan v SSHD [2017] EWCA Civ 2009 (TOEIC).
The history of the TOEIC "trials" is well known to immigration lawyers and the unfortunate individuals who were accused of being deceptive in a manner that was internally and externally unfair. The 4 appellants in Ahsan were all accused of cheating in TOEIC tests. Behind the scenes were hundreds of applicants who had been accused of using deception and were only granted out of country appeals which meant that they could only appeal once they had left the UK. They challenged the certification(s) by judicial review. In [97] the CA concluded that "…I would hold that an out-of-country appeal would not satisfy the Appellants' rights, either at common law or under article 8 of the Convention, to a fair and effective procedure to challenge the decisions to remove them; and that in those circumstances, subject to the human rights claim issue considered below, they were entitled to proceed with such a challenge by way of judicial review. [98] I emphasise that that conclusion depends on the particular features of the Appellants' cases, namely that the nature of the issues raised by their appeals was such that they could not be fairly decided without hearing their oral evidence, and also that facilities for giving such evidence by video-link were not realistically available. Even if those features are shared by the great majority of TOEIC cheating cases, it does not follow that they will be present in all cases where the legislation provides for an out-of-country appeal: in particular, whether it is necessary for the appellant to give oral evidence will depend on the nature of the issues".
• Khan v SSHD [2017] EWCA Civ 1755 (also referred to as MK (Pakistan) (Sala point).
The CA posed and answered the following question in relation to the findings in Sala (EFMs: Right of Appeal) [2016] UKUT 00411 (IAC). Was Sala wrongly decided? The CA said "yeah". But in a detailed and eloquent manner of course. The CA also considered whether there is jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the SSHD to exercise her discretion to grant a residence card to a person claiming to be an Extended Family Member (EFM)? The CA concluded that Sala was wrongly decided and the FTT does have the jurisdiction to deal with a challenge to a decision refusing to grant a residence card. Lord Justice Longmore also stated that:
"It is a cornerstone of the rule of law that discretionary powers conferred on Ministers of the Crown are not to be used arbitrarily and that, if an exercise of power is exercised otherwise than in accordance with the correct legal principles, it will be quashed by the courts. A litigant who is the subject of such a decision has an entitlement to an adjudication to that effect; at the very least, a decision by the Secretary of State not to issue a residence card is a decision which "concerns … a person's entitlement to be issued with … a … residence card" even if it is a decision taken in pursuance of a discretion conferred on the Secretary of State".
The UT had misconstrued the EEA Regulations (which all agreed were not well drafted) and the EC Directive.
• Uddin (2000 Order-notice to file: Bangladesh [2017] UKUT 00408 (IAC).
I love a headnote. It's like Ronseal.
The UT concluded that where the Secretary of State relies on a curtailment notice as having been deemed to have been given by being placed "on file' in accordance with article 8ZA(4) of the Immigration (Leave to Enter and Remain) Order 2000 (as amended) ("the 2000 Order"), it is for the Secretary of State to establish that that article applied. In addition, the Immigration (Leave to Enter and Remain) Order 2000 allows for the sending of a curtailment notice to an overseas address.
• EA and others (ARTICLE 3 medical cases-Paposhvili not applicable) 2017 UKUT 00445 (IAC).
A case with a headnote I did not enjoy. The panel made up of UTJ Pitt and UTJ Jordan concluded that the test in Paposhvili v Belgium (App no. 41738/10) is not open to the Tribunal to apply in light of previous precedent. As I predicted (quietly to myself) the court looked at Lord Neuberger's conclusions in Manchester City Council v Pinnock [2011] UKSC 6. In paragraph 47 of Pinncok, it was concluded that the UKSC was not bound to follow every decision of the ECtHR. The UT concluded that a different approach is called for on the part of the Supreme Court when there has been a clear and constant line of authority but only if it is consistent with United Kingdom law (or at least some 'fundamental substantive or procedural aspect' of it) or the decision of the ECtHR is not flawed in a material way.
This is likely to be appealed and I anticipate the SC will have a word.
• R (On the Application of Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin)
The CA found that deporting EEA nationals who were sleeping rough was BAD and completely unlawful.
In 2018, look out for the Statement of Changes and the changes to immigration detention.