Grounds of appeal in one stop appeals

Do not be fooled by the first judgment in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 by Lady Justice Arden. She holds that the appeal should be dismissed, but is out-voted by the rest of the bench, Lord Justice Moore-Bick and Lord Justice Sullivan.

The judgment concerns the nature of appeals and the convoluted link between rights of appeal and grounds of appeal created unnecessarily in the 2002 Act at sections 82 and 84. By a majority, the Court holds that as long as there is a right of appeal then any ground of appeal can be argued, no matter what the nature of the decision appealed against. For example, if a decision is made to deport an individual, that person can appeal on all available grounds, including race relations, EEA law, refugee grounds and so on.

I was surprised and slightly alarmed to read in Arden LJ’s judgment that there was even an argument that this was not the legal position. I always assumed that it was and have blithely assured immigration judges and instructing solicitors of this on several occasions in the past.

Some refugees have more rights than others

It's a case

In the recent case of MS and others (family reunion: “in order to seek asylum”) Somalia [2009] UKAIT 00041 the tribunal looked at the refugee family reunion rules and came to the slightly surprising conclusion that not all refugees have the same rights.

A recognised refugee who arrived in the UK and made a formal claim for asylum as defined in the immigration rules is allowed to sponsor family members to come in from abroad under the special refugee family reunion rules at immigration rules 352A to 352F.

A recognised refugee who did not make a formal claim for asylum is not allowed to do so. The tribunal held that such a person has not ‘left the country of his former habitual residence to seek asylum’. Such refugees might include refugees sur place (who left their country for other reasons but due to a change at home have now claimed asylum), Gateway refugees, refugees recognised as such in another country but who have moved to the UK or refugees who themselves entered as family members of other refugees.

Some might say that this decision eliminates one possibility for ‘chain migration’ (a term that always causes a little bit more of me to die inside in protest) but the numbers affected are very small. Many immigration lawyers will have come across cases where a spouse enters under the family reunion rules but the original refugee dies or disappears. Under the previous more liberal interpretation, such a person would be able to bring in their own and the original refugee’s children. Not any more though.

Unless, of course, the decision is overturned on appeal. As the growing ‘Tribunal overturned again‘ category on this blog shows, this isn’t exactly infrequent. I can say with some assurance that the legal team has sought permission to appeal and is still waiting. If you are interested, you can even read the grounds of appeal.

More on Metock

It's a big case

There has been a spate of big cases in the last few days. I’ll deal first with what is probably the most legally significant, ZH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1060.

In ZH the Court of Appeal have confirmed for anyone that did not already know it that Regulation 12(1)(b)(ii) of the 2006 EEA Regulations is unlawful following Metock. Remarkably, a Deputy President of the tribunal, Ms Arfon-Jones, had refused to accept this, but the Home Office conceded at the Court of Appeal that the appellant had been right. However, the Home Office attempted to prop up the tottering decision by arguing that the marriage at the heart of the case was a sham marriage and the couple should not therefore benefit from it. The Court of Appeal gave this new point short shrift and pointed out that the facts found by the tribunal were that there was a genuine relationship between the couple.

Tantalisingly, Lord Justice Aitkens ends his judgment as follows:

For those reasons, I would allow the appeal. I am conscious, however, that serious and difficult issues arise which concern: (i) the interpretation of the word “spouse” and the phrase “marriage of convenience” for the purposes of the 2006 Regulations, (ii) whether it is the person seeking an EEA family permit or the SSHD that has the burden of proving that a marriage is a “marriage of convenience” for the purposes of the 2006 Regulations; and (iii) the nature and application of the “abuse of rights” doctrine for the purposes of the 2004 Directive and, therefore, the 2006 Regulations. The points were fully argued before us. These issues will be raised at the re-hearing before the tribunal. When I prepared a first draft of this judgment I thought it would be possible and right to express some views on all three topics, in the hope of assisting the tribunal, although my views would not, strictly speaking, have been necessary for my decision on this appeal. However, having considered the issues and after discussion with Rix and Wall LJJ, I have decided that it is not sensible to give any views on these topics. On further reflection I think it will be much better that the tribunal should first find the further facts that might be relevant and, if further issues of law arise, they will be considered on appeal if necessary.

So, the wait continues…

Albanian/Kosovar deprived of British citizenship by Presenting Officer

In an unusually dramatic move, the Presenting Officer in the recent case of KB (para: 320(7A): “false representations”) Albania [2009] UKAIT 00043 served a section 40 notice on a witness in the case, thereby depriving him of his British citizenship. There is a right of appeal to the tribunal against such a decision and the tribunal records that it advised the unrepresented man to seek legal advice.

This was a case where the witness, who was sponsoring his wife to enter the UK from Albania, had claimed on arrival in the UK in 1999 to be a Kosovar. However, the tribunal records in the determination that the man was a national of Albania, although it is not clear how this was established. The Home Office accused him of lying about his nationality on entry and then continuing with the lie to obtain Exceptional Leave to Remain, then Indefinite Leave to Remain and then finally full British citizenship.

The tribunal, chaired by Mr Ockelton, found that a document obtained through falsehood and relied on in an immigration application does amount to a ‘false representation’ under immigration rule 320(7A) and therefore mandates refusal of the application and appeal. The tribunal goes on to comment that sometimes leave and even citizenship is appears to be granted when it should not have been, as well as the more usual complaint of not being granted when it should have been, before ending by observing that the Presenting Officer in court served the witness with a notice under s.40 of the British Nationality Act 1981:

Before us, Ms Tanner served on the sponsor a Notice of Decision under s40 of the British Nationality Act 1981, depriving the sponsor of his citizenship. We advised the sponsor to seek legal assistance in connection with it.

The case serves as a warning to any Albanian/Kosovans that should they by their actions cast doubt upon the basis on which they were granted ILR or citizenship — such as by sponsoring an Albanian spouse to enter the UK and presenting an Albanian passport — they are opening themselves to potential curtailment or deprivation proceedings.

Secret Sri Lanka policy emerges

In another development that would be shocking were we not so used to it by now, it has emerged that the Home Office has a secret policy not to return Tamils to Sri Lanka. This policy has existed since 25 April 2009 at least, which is the date of the last enforced return to Sri Lanka. The reason for the policy must be that the Home Office is concerned about the treatment of returned Tamils in the aftermath of the civil war. It would be interesting to know how far UKBA’s hands were tied by the Foreign and Commonwealth Office, which has taken a strong line on human rights abuses in Sri Lanka.

This non-return policy is ENORMOUSLY significant for two reasons:

1. The Home Office concedes that there is a risk on return in all Tamil asylum claims. This must be the case, as otherwise the policy would not exist. My guess is that HOPOs who have been vigorously arguing that it is perfectly safe for Tamils to go back to Sri Lanka have not been told that the official UKBA position is in reality that it is not safe. HOPOs have been misleading the tribunal and the courts, albeit I imagine inadvertently. There is past form for this. In the Rashid case it emerged that there was a secret policy about Iraqi asylum claims that was so secret that lots of people at the Home Office didn’t know about it. That was held to be unlawful and an abuse of power.

2. Any Tamils in detention since 25 April 2009 have probably been detained unlawfully and are entitled to compensation. Where there is no prospect of removal, it is not lawful to detain. If removals are suspended and there is no date for resumption of removals, UKBA cannot realistically claim that there is a prospect of removal.

As ever, this news emerges through a legal challenge in the courts. It underlines the importance of UKBA accountability to the proper courts, as opposed to the tribunal. The case is currently identified as R (on the application of B) v Secretary of State for the Home Department [2009] EWHC 2273 (Admin) but hasn’t at the time of writing appeared on BAILII. Detention in this case was held to be unlawful since 6 May 2009, when the claimant lodged an appeal, and the case has been transferred to the county court for the assessment of damages. Very substantial damages are likely to be awarded.

There is also reference in the judgment to a test case on Sri Lanka coming up in the tribunal in October.

Very good work indeed by the excellent Hugh Southey and Refugee and Migrant Justice.

Post flight spouse

Since 2005, refugees have been granted five years of limited leave, at the end of which they are eligible to apply for settlement, or ILR. Before 2005, they were granted settlement straight away, on the grounds that this policy promoted integration.

One of the consequences of this change is that refugees with limited leave are unable to sponsor a new spouse or other family members under the main immigration rules (rules 281, 297, 317 and so forth). There is provision for admission of a pre-existing spouse or child (i.e. a spouse to whom the refugee was married or a child born before the sponsor fled to the UK) but this cannot be used for a new, post flight spouse.

Whether this was an unintended or deliberate consequence is not entirely clear. However, being as the 2005 White Paper that preceded the change ranted on about the evils of ‘chain migration’ (the words of the Government, not my words) it would not be entirely surprising it this was deliberate.

In the recent case of A (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 825 the Court of Appeal were faced with an appeal by the new, post flight wife of a refugee who was seeking admission but had been refused. The judgments record a catalogue of appalling failures by either or both Treasury Solicitors and UKBA in dealing with the issues raised by the case and complying with directions; ultimately this cost them the case, which they lost solely for this reason. This should certainly happen more often in the Asylum and Immigration Tribunal, but immigration judges who have followed this course in the past have been firmly trodden on by their senior colleagues, who rather miss the broader point and find that the interests of justice are not served if the Home Office are punished for non compliance. One might have thought the reverse were actually true – the Court of Appeal certainly seem to think so.

I digress. Human rights were certainly engaged, the Court found, and therefore UKBA had to explain how and why the interference was necessary in a democratic society, the fourth of Lord Bingham’s famous five questions from Razgar. UKBA had completely failed to put forward any justification at all (and the tribunal had failed to identify any justification, but had dismissed the appeal anyway!). The appeal was therefore allowed.

However, this will not be the end of the story. Very late in the day, UKBA did put forward a justification. The Court does not record what it was, only that it was put forward too late to be considered in this particular case. We can therefore expect these arguments to crop up again. I’ve got a couple of outstanding cases raising these issues, so I’ll be very interested to see what reasons the Home Office has cooked up.

Error not to adjourn

In the recent case of AK (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 941 the Court of Appeal held that an immigration judge had committed an error of law in failing to adjourn a hearing when the appellant had been ditched by his legal representative the day before the hearing.

Harehills and Chapeltown Law Centre in 1983

There was a bit of history to the case, in that a previous adjournment had been granted and one of his previous representatives, Freemans, had dumped the appellant because they took the view that there was insufficient merit in the case to justify public funding. The Immigration Advisory Service declined to take the case on but referred the client to Harehills and Chapeltown law centre, who for reasons unexplained abandoned the client the day before the hearing.

The case should make immigration judges think twice about going ahead where it appears an appellant has been badly let down by a representative. However, the case most certainly is not authority for failure to adjourn always amounting to an error of law. It is a lesson in the importance of showing that an error is material, because what swung the case was that the new representatives, Wilson and Co, had managed to find evidence that might lead to the appeal being allowed, but which the appellant had not had an opportunity to present to the tribunal.

By the by, it sounds like an interesting substantive case. It concerns whether the gender reassigned (I think that means those who have a sex change in old speak, which is presumably now politically incorrect in some way) might amount to a particular social group in Iran.

Cambridge College of Learning considered

In the case of NA and Others v SSHD [2009] UKAIT 00031, the Asylum and Immigration Tribunal considered and rejected the claim of three students to have studied post graduate diploma courses taught at the now notorious Cambridge College of Learning (CCL). The tribunal went on to find that no such courses had ever been taught. The case therefore has major implications for any ex-student of CCL claiming to have studied and obtained a post graduate diploma from CCL, and the tribunal has in fact written to all such students with outstanding appeals proposing that their appeals are determined without a hearing (copy here). This is because any outstanding appeals based on post graduate diplomas from CCL are certain to be dismissed on the basis of NA and Others unless compelling new evidence is produced that suggests the tribunal was wrong in NA.

There do still seem to be ex-students from CCL claiming to have been genuine students, in the sense that they did attend the college on a regular basis, did attend lectures and did complete assignments. In short, they claim that there was a real course, even if it wasn’t a terribly good one. Under the immigration rules at the time (and which must be applied on appeal) there was no requirement for there to be a good quality course – the Home Office left the door wide open to any college to run a course said to be a post graduate diploma without there being any minimum requirements, accreditation or regulation for such courses.

I don’t know if there were genuine ‘post graduate diploma’ courses at CCL or not. If any of the remaining ex CCL students out there want to try and persuade the tribunal (a) to grant an oral hearing and (b) to allow their appeal, they’ll need substantial and compelling and evidence. It’s difficult to imagine what that might be, but perhaps:

1. Evidence from the actual lecturers on the course. This was conspicuous by its absence in the NA case.
2. Identity or enrolment evidence that matches with the evidence seized by the Home Office during the raid. None of the students in NA matched any of the CCL records held by the Home Office (or so said the Home Office, at least), but if there are genuine students out there perhaps they would match those records. To find out, disclosure from the Home Office would need to be sought.
3. None of the students in NA had a CCL identity card. Possession of one might be helpful.
4. The course materials and assignments  submitted by the alleged students in NA sound to be of very poor quality and in one case entirely plagarised from the internet. More convincing course materials and assignments might be helpful, although it is difficult to imagine this being enough by itself as an immigration judge might conclude materials had been manufactured for the purpose of the appeal.

Frankly, the chances of obtaining any of this evidence looks pretty slender. The chance of any successful appeal is also therefore correspondingly slender.

There are at least a few ex CCL students who won their appeals before the NA case was heard. The evidence relied on by the Home Office in those early cases was almost non-existent. To a significant extent, the Home Office has had its chance and blown it in such cases. Unless the Home Office has appealed, those students ought to be granted visas. If the Home Office did appeal, even though there is no error of law in making a decision on the basis of the evidence that was presented at the time, immigration lawyers sometimes suspect senior immigration judges of granting permission to the Home Office rather readily. It may be that even though there is no obvious error of law, such cases do get reconsidered and dismissed later on.

HIV/AIDS cases

Permission to appeal to the Court of Appeal has been granted in at least three cases to look at the question of in what circumstances a person with HIV/AIDS might succeed in establishing a right to remain in the UK on the basis that their removal to another country would breach their Article 3 or 8 human rights. Since the case of N v The United Kingdom there has been little or no reported case law on this very difficult issue, although a number of different arguments and approaches have been tested.

In the grant of permission I came across, KH (Afghanistan) v SSHD [2009] EWCA Civ 836, even Lord Justice Sedley doesn’t hold out much hope for success, but he finds that it is at least arguable and mentions at the end of the short judgment that permission was granted in two other cases that day.

Sexual identity

An interesting judgment has been handed down today: NR (Jamaica) v SSHD [2009] EWCA Civ 856. It touches on a thorny issue on which I have to say some immigration judges have not exactly covered themselves with glory. Sadly, the Court of Appeal fails to name the responsible senior immigration judges in this case.

One of my very first asylum appeals as an advocate was back in 2001, when I was representing a Kenyan professional who said he was gay. He claimed that he had experienced some very unpleasant difficulties as a consequence of being out-ed. There was absolutely no reason to think that he was lying, either about his sexuality or his account, which was completely consistent with the available country information. However, the adjudicator found that he wasn’t really gay, he was just making it up. What was he supposed to do, I thought? Pander to stereotype and turn up in a tutu? How on earth is a man who has recently arrived in the UK supposed to prove he is gay, and more importantly how bizarre and, frankly, rude and unpleasant is it that his word for it is doubted? No-one would doubt it if he had claimed to be heterosexual with only his own word for it. I think it is a classic example of the culture of disbelief.

Well, some senior immigration judges followed a similar approach in NR (Jamaica). Get this:

We find that on coming to London, as a teenager [the Appellant] experimented with different types of sexual identity. She then found herself imprisoned in all-female institutions. The Appellant told Renee Cohen [the psychologist] that while in prison she had become more socially confident and had been sexually active and that she had been lost and frightened in the years between leaving Jamaica and being imprisoned: see the second and third paragraphs of page 6 of her report. We find that as a healthy, healthy, energetic and engaged young woman in such institutions she had and took the opportunity to continue her experimentations with her sexual identity: indeed, there was no alternative except celibacy.

So far as Angela is concerned we accept what she says about how she sees her relationship with the Appellant. We note that while detained the Appellant became a trained prison listener and increased her self-confidence and we find the Appellant was and is well able to manipulate her relationship with Angela. Consequently, we find the evidence on the Appellant’s side shows that so far as she is concerned her relationship with Angela is not genuine. We are led to the conclusion she is using Angela as a means of bolstering her claim for international surrogate protection.

Basically, the tribunal conclude that a girl with a history of four years of lesbian relationships is actually just ‘experimenting’, isn’t really a lesbian at all and is just using her lesbian relationships to manipulate the asylum system to get status. The subtext, of course, is that lesbianism is abnormal. It might also be said that the senior immigration judges here had in mind some sort of scheming, lying lesbian stereotype – it is all deviant, immoral behaviour as far as they are concerned.

Unsurprisingly, the Court of Appeal has sent the case back to the tribunal to have another go.

A well-known and rather zealous Presenting Officer at Taylor House also gets a mention in the judgment. On the day of the hearing, with no prior notice, he withdrew the previous concessions made in the case (including the refusal letter) that the Appellant was a lesbian. Bizarrely, he suggested one of his colleagues has been under duress when making the concession and that the concession was not in the refusal letter, which in fact it was. It would appear he sought to argue that she wasn’t really a lesbian at all. This surely would have effectively prevented her from producing evidence that she was a lesbian, as she and her reps thought the issue was not being argued until the morning of the hearing.

This kind of last-minute ambushing is not uncommon, and I’ve had a few examples recently of documents being served by the HOPO on the day of the hearing or during the hearing in clear breach of directions, but they have resisted adjournments to enable us to take proper instructions or seek counter-evidence.