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.

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…

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.

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.

Older dependent relatives

Just a quick post on this to highlight an extremely useful case that’s been handed down today. I’ve been horribly busy so the blog has been suffering a bit, I’m afraid.

The case is ZB (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 834. It provides a really useful summary of the domestic and Strasbourg case law relevant to relationships between an older parent and his or her adult children and wider family.

In the judgment, the Court of Appeal emphasises the importance of Article 8 relationships, holds that Article 8 must be examined holistically, not compartmentalised into individual one-on-one relationships in a divide-and-conquer type approach, observes that earlier cases suggesting relationships between adults require something above and beyond the usual ties are rather elderly cases and holds that the threshold for engagement of Article 8 in such cases is not a particularly high one, and also reminds us that the test for whether a whole family can relocate to the appellant’s home country is just whether it is reasonable to expect this.

The tribunal had originally held that there was no Article 8 right engaged by the facts of the case at all, a somewhat surprising conclusion given the facts.

Criminal offences and refugee status

There have been several important judgments from the Court of Appeal in the last few weeks. I’ve been very busy and having difficulty keeping up. However, I seem to have been struck down by piggy flu and find myself with time at home on my hands. So, expect a series of case law posts over the next few days.

The first case is EN (Serbia) v SSHD [2009] EWCA Civ 630. It concerns section 72 of the Nationality, Immigration and Asylum Act 2002 and the presumption that a person has been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community if one of several conditions apply. If the presumption applies, the person is excluded from refugee status.

One of the conditions is that a person has been convicted of an offence specified by the Secretary of State in regulations. The regulations in question are the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004. The Court finds that the regulations are irrational and ultra vires because they include several offences which cannot rationally be described as ‘particularly serious’:

By way of example only, there are the following: theft, with no qualification as to the nature or value of the item or items stolen (so that theft of a bottle of milk is sufficient); an offence under section 9(1)(a) of the Theft Act 1968 (entering a building as a trespasser, intending to steal, inflict or attempt to inflict grievous bodily harm or rape), which would include someone who enters a building without permission intending to steal a bottle of milk; an offence under section 9(1)(b) of that Act (having entered a building as a trespasser, stealing or attempting to steal or inflicting or attempting to inflict grievous bodily harm), which again would include the offence committed by someone who enters a house without permission and then steals a milk bottle; an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging, without lawful excuse, another’s property intending to destroy or damage it or being reckless as to that), which would include the offence committed by someone who scratched the paintwork of another person’s car. The offence under section 44 of the Magistrates’ Court Act 1980, namely (aiding, abetting, counselling or procuring the commission of a summary offence, provided that the offence in question is described in Schedule 1 or 2 to the Order is specified. It is at best very difficult indeed to see how abetting the commission of a summary offence could be a particularly serious crime.

The 2004 order is therefore struck down as a whole as the Court cannot edit the order itself. Interestingly, the Court then goes on to make the following comment about whether the Tribunal can or should examine the lawfulness of delegated legislation:

Where a tribunal considers that there is a real prospect of a statutory instrument being ultra vires or unlawful, it should give serious consideration to adjourning its proceedings in order to give the party challenging its lawfulness an opportunity to issue judicial review proceedings before the Administrative Court, if necessary seeking an expedited hearing. It is far more appropriate that such issues be litigated before and decided by the Courts. However, this is likely to change if and when the AIT becomes part of the new tribunal structure, with an appellate structure and an Upper Tribunal of which the panel may include a High Court judge, with appeals to the Court of Appeal.

As well as striking down the 2004 Order, the Court also holds that there are two separate presumptions in section 72, both of which are rebuttable. The first is that one has been convicted of a particularly serious crime. The other is that one is a danger to the community. Both questions have to be examined separately. The Secretary of State was contending that there was just one presumption and that conviction of what was deemed to be a particularly serious crime automatically meant that one was presumed to be a danger to the community. Evidence as to risk of reoffending is therefore important in section 72 cases.

The Court’s decision is similar to that of the Tribunal in IH (s.72; ‘Particularly Serious Crime’) Eritrea [2009] UKAIT 00012. However, the Tribunal held that the 2004 order is lawful, so I’ve filed this post under ‘Tribunal overturned again‘.

On a different but important subject, in the course of judgment the Court finds that the Refugee Convention is not in fact incorporated into English law. It is only incorporated for some purposes and does not have the force of statute. I’ve no idea as to the implications of this, but it strikes me as worthy of mention.

Right to work

There are two recent important developments on this front.

The first is that the Home Office is appealing the ZO Somalia case on right to work for those who have made fresh asylum claims and have not received a decision within one year of their application. This may well be of interest to those stuck in the Legacy backlog awaiting decisions. Additionally, the Home Office are saying that even if they ultimately lose on the legal point, there is no obligation in European law to grant permission to work, only to decide the terms of access to the labour market. There will be no decisions made on right to work applications until the appeal is decided or the Home Office become, in their own language, ARE (Appeal Rights Exhausted).

The other important development applies only to Turks but is very important for them. In the new case of Sonmez v SSHD [2009] EWCA Civ 582 the Court of Appeal eventually concludes that prior breaches of immigration law do form an adequate basis for refusal of a permission to work application under the Ankara Agreement. The case concerns those who breached immigration law to establish employment or self employment and then have sought to rely on the Ankara Agreement to continue that employment or self employment. It is a split judgment, with Sedley LJ in the minority and Dyson and Maurince Kay LLJ in the majority. All agreed that the common law principle of ex turpi causa non oritur actio (‘from a dishonorable cause an action does not arise’) was not by itself reason to refuse the applications. This was the basis of the Tribunal’s earlier decision. The Tribunal had raised the point of their own motion and not referred themselves to relevant authorities more or less confining that principle to contract or tort. The majority, however, found that previous breach of immigration laws to establish employment or self employment did amount to an abuse and, relying on the earlier cases of Tum and Dari, Kondova and LF (Turkey) this was sufficient reason in European Community law to deny the benefits of the Ankara Agreement.

As with ZO Somalia, this won’t be the end of the matter. Both issues will probably end up in the House of Lords and then the ECJ. That could be several years down the line, though.

Bad guy or fall guy?

The Fall Guy

There has been a rush of cases in recent weeks on the subject of the Refugee Convention exclusion clauses. The exclusion clauses basically exclude some people from refugee status. In reality, human rights law has evolved to prevent removal if there is a well founded fear in such cases, but there are other benefits to refugee status for which make it worth fighting.

Shivani Jegarajah, a fellow tenant at Renaissance Chambers and a brilliant advocate, has been prominent in the Court of Appeal of late, and two of the big decisions on the exclusion clauses are ones in which she acted. By the by, she also has another big Sri Lankan Court of Appeal judgment pending after a successful hearing last week. More to follow once the judgment is available.

The first case is KJ (Sri Lanka) v SSHD [2009] EWCA Civ 292. The Appellant had been a member of and fought for the LTTE but had then fallen foul of the organisation and fled to the UK. He had not been involved with terrorist activities or attacks on civilians. The Asylum and Immigration Tribunal decided that as an active member of an organisation that carried out acts contrary to the purpose and principles of the United Nations, he was excluded from refugee status.

But, of course, one man’s terrorist is another man’s freedom fighter. Lord Justice Stanley Burnton notes that the LTTE is not just a terrorist organisation, although it certainly has carried out terrorist attacks. An active member of an organisation that only carries out terrorist activities will probably be excluded, he finds, but in cases where the organisation engages in a conventional military struggle and other activities, a more careful examination of the personal guilt of that person is required.

The second case is R (on the application of JS (Sri Lanka)) v SSHD [2009] EWCA Civ 364. The claimant had again been an active member and combatant with the LTTE and became second in command of their Intelligence Division’s combat unit. Lord Justice Toulson explores the principles of criminal liability and complicity in international criminal instruments and concludes that the tribunal has been far too readily excluding people from refugee status. He specifically disapproves the earlier ’starred’ decision in Gurung [2002] UKIAT 04870, by Dr Hugo Storey. Specifically, he finds that acquiescence is insufficient and he finds that the continuum approach in Gurung is wrong as it is simplistic and distracts from the critical question of ‘whether the evidence provides serious reasons for considering the applicant to have committed the actus reus of an international crime with the requisite mens rea’.

Both cases, and another recent case on the PKK in Turkey, MH (Syria) v SSHD [2009] EWCA Civ 226, suggest the Home Office and the tribunal have been following too expansive an approach to the exclusion clauses.

British citizens and refugee family reunion

In an unusual example of the Court of Appeal being less liberal than the Asylum and Immigration Tribunal, the AIT’s rather good decision in YS and YY (Paragraph 352D – British national sponsor former refugee) Ethiopia [2008] UKAIT 00093 was overturned by the Court of Appeal in DL (DRC) v ECO, Pretoria [2008] EWCA Civ 1420. The Tribunal had decided that the immigration rules on refugee family reunion apply to anyone who was historically recognised as a refugee. This is important to those affected, as it means that the normal requirement to show adequate maintenance and accommodation without recourse to public funds is waived.

The Court of Appeal decided that the natural meaning of the words in the immigration rules and the use of the perfect tense suggest that those who were historically recognised as refugees but are no longer refugees cannot benefit from the refugee family reunion rules. The Court then also decides that refugee status ceases automatically on the grant of British citizenship – or, at least, it used to, until EC Directives 2004/83/EC and 2005/85/EC came into effect. Whether it still does is left as an open question.

The team in one of the two linked Court of Appeal cases is in the process of petitioning the House of Lords.

I am reliably informed that a significant new argument is being run in the petition, along the lines that section 76(3) of the Nationality, Immigration and Asylum Act 2002 requires a positive step for the removal of ILR granted to a refugee, which suggests that cessation of status is not necessarily automatic.

Case law round-up

Er, it's a round up

There have been a number of recent determinations and judgments, not all of which quite justify a post all of their own, so I thought I would do a round-up.

The case that prompted the round-up is GS [2009] UKAIT 00010. It is actually just a direction in a case, it is not a determination as such, but because of its significance it has been reported and even been given country guideline status. It isn’t even a direction, really – it is a vehicle used to record an important concession by the Home Office, which is that there is an internal armed conflict across the whole of Afghanistan.

This won’t exactly be news to those who watch and read the news, but it is important for asylum lawyers because it means that Article 15(c) of the Qualification Directive comes into play in Afghan cases, as it has with Somali and Iraqi cases. It is a very complex area of law and ECJ judgments are in the pipeline, but in summary it offers a higher level of protection than was previously available in refugee type cases involving civil war situations. It is so very complicated that many lawyers and judges are probably ignoring it all. I have to admit there was a time when I too buried my head in the sand.

I can’t resist mentioning another recent case, SA and IA [2009] UKAIT 00006, which is another example of the tribunal treating Dr Alan George’s evidence with the respect it deserves. Quite a change from times past. It is amazing what a brush with Messirs Carter Ruck can do.

More importantly, the Court of Appeal in JH (Zimbabwe) [2009] EWCA Civ 78 made a very important (but how so dry!) decision on use of prescribed forms and the extension of leave by s.3C of the 1971 Act. The tribunal’s highly restrictive interpretation in DA (Section 3C – meaning and effect) Ghana [2007] UKAIT 00043 is disavowed and the Court concludes that:

(i) the appellant had used a ‘prescribed’ form, even if she had no chance of getting what she asked for, and therefore had made a valid application which therefore extended her leave under s.3C while the application was pending, and

(ii) that it is possible to vary an application for leave once it is made, even if leave is already extended by s.3C, as long as a decision has not yet been reached by the Home Office.

This case makes life considerably simpler for immigration applicants who are badly advised or use the wrong form.

The last case in the round up is ZT (Kosovo) [2009] UKHL 6, another rather dry and technical judgment, but this time from the House of Lords. It concerns fresh claims. The ILPA mailing says it is being ‘considered’ by asylum lawyers but no more. Thanks. Well, here’s a stab at some analysis.

Firstly, it is fairly narrow application as the judgment deals with cases where a s.94 of the 2002 Act clearly unfounded certificate has been made by the Home Office. This has the effect that the recipient can only appeal from outside the UK after removal.

The majority hold that the fresh claim rule, rule 353, does apply where a person in receipt of a s.94 certificate but who has not yet left the UK and therefore still has a right of appeal (albeit one that can only be exercised after departure) makes new representations to the Home Office. Lord Hope dissents on this point.

The majority then hold that there is a potential difference between the outcomes of considering a case under s.94 and rule 353. Lords Phillips and Brown dissent and hold that there is no difference, but Lords Hope, Carswell and Neuberger form the majority on this issue.

Where does this leave us? Well, on the facts of this case it was held that the case was doomed to fail under rule 353 as well as s.94. However, in future an asylum seeker who is certified under s.94 can apparently put in a fresh claim which must be considered by the Home Office under the rule 353 criteria.

At least, that is what I think the case says. It is always tricky trying to navigate one’s way through multiple judgments like these.