In a recent judgment given by Lord Wilson the Supreme Court unanimously allowed KV’s appeal, remitting the matter to the UT for fresh determination. KV, a Sri Lankan asylum-seeker of Tamil ethnicity, claimed that the scars on his arm and back were the result of torture but his claim was still disbelieved on the basis that the scars were self-inflicted by proxy (SIBP), i.e. by another person at his invitation. While not a member of the Tamil Tigers, KV used to melt gold for the organisation. He claimed that Sri Lanka’s government detained and tortured him and tried to extract information about where the gold and other valuables were hidden. He contended that the government burned his arm with hot metal rods while he was conscious. The pain rendered him unconscious and during the time he remained unconscious hot rods were applied to his back. Upon regaining consciousness, his captors increased the intensity of his pain by pouring petrol on him and threatening to set him on fire. A few months later, his burnt skin healed into scars. Photographs he provided were deemed insufficient evidence and the decision-maker found inconsistencies in his narrative, noting that no medical evidence was provided in support of his claim of torture which was rejected. The FTT dismissed his appeal. The UT was unconvinced by KV’s evidence but it recognised that if his scarring was caused by torture then a real possibility arose that his story was true.
KV’s case was assisted by the expert evidence of Dr Zapata-Bravo who said that the scars were inflicted by burning with a hot metal rod. The scarring on the arm had blurred edges. But the scarring on KV’s back had such precise edges that he must have been unconscious while the burns were inflicted. Dr Zapata-Bravo concluded that his clinical findings were “highly consistent” with KV’s account of torture, and that it was unlikely the scars were SIBP. The UT’s determination and reasons, described by Lord Wilson as “a mammoth document” underpinned by “massive effort”, was against KV and dismissing his appeal UTJJ Storey, Dawson and Kopieczek held that it was clinically unlikely, given their precise edging, that (a) his scars could have been inflicted unless he was unconscious, and (b) that a person like KV could remain unconscious throughout multiple applications of hot metal rods to his arms and back, unless he was anaesthetised. The Court of Appeal held by a majority (Elias LJ dissenting) that the evaluation made by the UT was legitimately open to it and thus it could not be criticised as perverse or irrational, Moreover, it was beyond Dr Zapata-Bravo’s remit as an expert medical witness to state his opinion that his findings were “highly consistent” with KV’s claim of torture as a whole.
The Istanbul Protocol
The protocol imparts guidance to medical experts to indicate for each lesion the degree of consistency between it and the cause given by the patient, on a scale from “not consistent” to “diagnostic of”. It provides that “ultimately, it is the overall evaluation of all lesions, and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story”. Thus, in concluding that his clinical findings were “highly consistent” with KV’s claim of torture, Dr Zapata-Bravo had formulated his conclusion in accordance with the terms of the protocol.
The Supreme Court
Unanimously allowing the appeal, the Supreme Court described the Court of Appeal’s observations as “controversial”. The UT did not think that, in opining that his findings were “highly consistent” with KV’s claim of torture, Dr Zapata-Bravo had exceeded the boundaries of his role. The judges referred to authority supporting the principle that one of the functions of a medical report in relation to scars is to offer a clear statement in relation to their consistency with the history given. Equally, the Home Office did not complain to the Court of Appeal that Dr Zapata-Bravo’s views were professionally inappropriate in any way.
However, Sales and Patten LJJ had different ideas because he “trespassed beyond his remit as an expert medical witness into the area where it was for the UT to make an assessment of all the evidence.” Sales LJ held that any further guidance was unnecessary because the correct approach to instructing experts is found in the Practice Direction of the Immigration and Asylum Chambers of the First-tier and Upper Tribunal 2014. But Lady Hale, Lord Wilson, Lady Black, Lord Briggs and Lord Kitchin did not agree with Sales and Patten LJJ. Instead, they concurred with Elias LJ’s position that the majority had erred by holding that Dr Zapata-Bravo had exceeded the proper limit of his role in the manner alleged. Lord Wilson disagreed with two aspects of Sales LJ’s judgment, namely his very narrow construction of the word “trauma” in the protocol and his handling of Dr Zapata-Bravo’s oral evidence.
Lord Wilson said that the Home Secretary did not defend the majority’s position. Decision-makers’ difficult task of analysing whether scars are the really result of torture is such that they can legitimately receive assistance from medical experts who feel able to offer an opinion about the consistency of their findings with the asylum-seeker’s claim regarding the circumstances in which the scarring was sustained, not limited to the mechanism by which it was sustained.
If Dr Zapata-Bravo only said that the scarring was caused by application of a hot metal rod, this would add nothing but the distinctions he drew between the scars on the back and the arm provided the UT assistance of significant potential value and the judges did not doubt his expertise. Keeping all this in mind, Lord Wilson overruled Sales LJ’s approach – namely that the references in para 187 of the protocol to the “trauma described” relate only to the mechanism by which the injury is said to have been caused – and held that:
21. … That is too narrow a construction of the word “trauma”. It is clear that in the protocol the word also covers the wider circumstances in which the injury is said to have been sustained.
Notably, Sales LJ had himself quoted paragraph 188 of the protocol which guides the expert towards the type of evaluation important in the assessment of “the torture story”. Furthermore, in formulating a clinical impression for the purpose of reporting evidence of torture, paragraph 105 of the protocol recommends that experts should ask themselves six questions, including whether their findings are consistent with the alleged report of torture and whether the clinical picture suggests a false allegation of torture. Lord Wilson extracted paragraph 122 of the protocol whereby “the purpose of the written or oral testimony of the physician is to provide expert opinion on the degree to which medical findings correlate with the patient’s allegations of abuse.”
In SA (Somalia)  EWCA Civ 1302, concerning alleged torture, the Court of Appeal held that the task for which an asylum-seeker tendered a medical report was to provide a clear statement as to the consistency of old scars found with the history given, directed to the particular injuries said to have occurred as a result of the torture or other ill treatment relied on as evidence of persecution. Notably, the court commended paragraphs 186 and 187 of the protocol and Sir Mark Potter commended them as particularly instructive for those requested to supply medical reports in relation to alleged torture. Later in RT (medical reports – causation of scarring) Sri Lanka  UKAIT 00009 the tribunal described SA (Somalia) as a landmark case in the identification of the purpose of a medical report in relation to alleged torture and in the protocol’s indorsement. Equally, in Mehmet Eren v Turkey  ECHR 1070, the Strasbourg Court’s approach coincided with these cases as did the relevant Guidelines on the Judicial Approach to Expert Medical Evidence and the Home Secretary’s instruction Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service. Correcting Sales LJ flawed approach, Lord Wilson found no inconsistency between that Practice Direction and the protocol and he held:
24. … Of course the expert must comply with the Practice Direction, including in particular the requirement in paras 10.2 and 10.4 not to offer an opinion outside the area of his expertise. But the Practice Direction does not address the specific area addressed by the protocol, namely the investigation of torture. When invited to investigate an allegation of torture, the expert should therefore recognise the protocol as equally authoritative – in accordance with the Court of Appeal’s decision in the SA (Somalia) case.
Therefore, an expert investigating an allegation of torture should recognise the protocol as equally authoritative as the relevant Practice Direction on expert evidence in immigration and asylum cases at the FTT and the UT. His Lordship explained that unless an expert finds that the trauma described is either “not consistent with” or “diagnostic of” the alleged torture, it would be beyond the expert’s remit to state that they “believed” the appellant. Overall, the conclusion about credibility always rests with the decision-maker following a survey of all the evidence.
In his dissenting judgment, Elias LJ had pointed out numerous problems with the UT’s reasons for rejecting KV’s account of torture. It was significant that the UT’s summary of Dr Zapata-Bravo’s evidence lacked apparent awareness that the scarring with precise edging was only on KV’s back, and addressed a hypothesis, not advanced by the doctor or KV, that KV was unconscious while the hot metal rods were applied to his arms as well as to his back. The doctor opined that the edges to the scars on the arm indicated the infliction of burns when KV had been conscious. But the UT had overlooked this key point.
Lord Wilson was not satisfied with Sales LJ’s stance that Dr Zapata-Bravo’s oral evidence in the UT must have been that the scars on the arm as well as on the back were precisely defined and that complete analgesia would have been required to produce all of them. Interestingly, whereas Sales LJ blamed KV for failing to provide the Court of Appeal with a transcript of the doctor’s oral evidence (without which the UT was not at fault), Lord Wilson judged that:
29. … But it is dangerous for us who work in appeal courts to assume that the answer to an apparent mistake at first instance must lie in oral evidence not recorded in the judgment and not transcribed for the purposes of the appeal. The court of first instance should be expected to record the oral evidence on which it places reliance.
The Supreme Court was provided a transcript of all the oral evidence given to the UT. Clearly, in his oral evidence Dr Zapata-Bravo never departed from his clinical findings of a difference in the scars as between the back and the arm or from the importance he had attached to the distinction.
In light of KV’s serious lack of credibility in several areas, the UT was right to address the possibility of SIPB. But when it concluded that there were only two real possibilities – either torture or SIBP – and when it rejected the former, it failed to take into account the fact that self-infliction of wounds was inherently unlikely. Lord Wilson noted that there is evidence of extensive torture by state forces in Sri Lanka at the relevant time. On the other hand, evidence of SIBP is almost non-existent among asylum-seekers and it was necessary to weigh in the balance that it is an extreme measure for someone to decide to cause himself deep injury and severe pain. Furthermore, if KV’s scars were SIBP, the wounds on his back could only have been inflicted under anaesthetic so he would have required the help of someone with medical expertise. In the final analysis, Lord Wilson approved Elias LJ’s view that very considerable weight should be given to the fact that SIBP injuries are likely to be extremely rare.
Indeed, as Elias LJ expressed the point in his dissenting judgment, “an individual is highly unlikely to want to suffer the continuing pain and discomfort resulting from self-inflicted harm, even if he is anaesthetised when the harm is inflicted.” Indeed, if KV’s wounding was SIBP, it was necessary to find an explanation (a) for the difference in the location and the presentation of the scarring as between his back and arm, and (b) for the number of wounds since, as identified by Elias LJ during the course of his dissenting judgment, “one or two strategically placed scars would equally well have supported a claim of torture”.
Compared to the strident views of UTJJ Storey, Dawson and Kopieczek in the UT and the controversial approach of Sales and Patten LJJ, Lord Wilson’s judgment leans in favour of the asylum-seeker because the protocol is as equally authoritative as the Practice Direction when it comes to torture. Therefore, there is no conflict between the two because the protocol specifically addresses the investigation of torture. This important decision will serve to ensure that the Home Office cannot dismiss those torture claims as incredible where strong medical evidence exists to the contrary.
While the Home Office preferred to remain tight-lipped about the outcome of these proceedings, KV was delighted by the decision and said: “I’m very happy about the ruling and hope that it will help many asylum seekers who have been tortured. On the other hand, a decade after his torture and eight long years after seeking asylum in the UK, he is distressed because of being lengthily left in limbo and he complains that the culture of disbelief in the Home Office and the courts made his trauma worse since he initially suffered from the misconception that the UK would readily protect his rights.
Despite these concerns, the Supreme Court’s judgment will serve as a salutary reminder that the claims of tortured asylum-seekers should not be disbelieved automatically and hopefully Lord Sales (who was recently appointed to the Supreme Court) will see the wisdom of Lord Wilson’s approach regarding the real role of medical experts and the significant potential value that their assistance offers to the tribunals.
Sir Stephen Richards and Davis and Simon LJJ have recently overruled a Portuguese national’s deportation by holding that when determining whether the First Tier Tribunal (FTT) had been correct to overturn the deportation of an EU national who had lived in the UK since childhood, the Upper Tribunal (UT) should not have proceeded on the basis that a concession by the Home Office had been withdrawn, without expressly considering whether that was fair and just. Luis Lopes came to the UK aged six with his family in 2002 and remained in the UK until June 2014 when he was 18. In October 2012, when he was only 16, Lopes committed wounding with intent to cause grievous bodily harm and unlawful wounding, contrary to sections 18 and 20 of the Offences Against the Person Act 1861. He pleaded guilty in December 2012 and in March 2013 he was sentenced to concurrent terms of four years and two years youth detention. Subsequently, 15 months later in June 2014, the Home Office decided to remove him to Portugal under the provisions of the Immigration (European Economic Area) Regulations 2006. In particular, regulation 21(4) required that those who had resided continuously in the UK for 10 years or were under the age of 18 could not be deported unless there were “imperative grounds of public security”. Moreover, the decision-maker had to take into account certain considerations including the person’s social and cultural integration into the UK.
The Home Office conceded in the case management hearing that regulation 21(4) applied and that Lopes could not be removed except on imperative grounds of public security and the highest level of protection was available to him. It was also conceded in the earlier decision letter by the decision-maker that Lopes clearly met the integration criteria established in the key case of Tsakouridis (C‑145/09, EU:C:2010:708) and satisfied the “integration test” laid down in recitals 23 and 24 of Directive 2004/38/EC or the “Citizens’ Directive”. However, the decision-maker concluded that deportation was justified owing to the risk of reoffending and the threat of serious harm Lopes posed to the public. The FTT proceeded on the basis that regulation 21(4) applied, and FTTJ Pooler found that imperative grounds of public security had not been demonstrated because Lopes did not represent a sufficiently serious threat. FTTJ Pooler considered issues of proportionality, which were found to weigh against deportation in view of his relative youth (18 at the time of the hearing), the fact that he had never lived independently and had lived his formative years in this country, with all that this implied in terms of social and cultural integration.
After initially failing to obtain permission to appeal, relying on MG (Portugal) (C-400/12, EU:C:2014:9), the Home Office appealed to the UT on the ground that the concession was wrongly made because there had been a failure to take into account the period spent in prison when deciding that Lopes appellant fell within regulation 21(4).
It was argued that since the concession was “incorrectly made,” FTTJ Pooler’s acceptance of it was “a misdirection of law.” The UT subsequently allowed the appeal and then remade the decision, instead of remitting the issue of integration back to the FTT.
The Court of Appeal
Simon LJ remarked that “the disengaged language” of the Home Office’s appeal “was inappropriate” because if there had been a concession that it sought to withdraw, an application for withdrawal was necessary and an assertion that it had been withdrawn did not suffice. If FTTJ Pooler had misdirected himself as a result of an incorrect concession, it was regrettable that the Home Office caused the misdirection in its entirety and bore responsibility.
(i) Error of law
The Home Office relied on MG to argue that the concession was an error of law but the CJEU’s decision had not substantially altered the earlier approach set out in Tsakouridis. In MG the CJEU found that although periods of imprisonment interrupted the continuity of residence, such periods could, together with other factors, be taken into account by the national authorities as part of the overall assessment of whether the integrating links with the host member state had been broken. In the present appeal, Simon LJ judged that:
26. … A material error might have been made if the appellant’s term of imprisonment had not been brought into the assessment; but it plainly had been. In substance, the respondent’s argument rested almost entirely on the failure to mention the MG case, in addition to the case of Tsakouridis. It may be that the writer of the letter was entirely unaware of the MG case decided in the CJEU six months earlier, but I am not prepared to assume that this is so or that a mistake was made. In any event, the MG case did not substantially change the CJEU approach to regulation 23(4) set out in Tsakouridis to which frequent reference was made in the MG case.
Therefore, no inconsistency arose between MG and the concession made in the decision – which took Lopes’s period of imprisonment duly into account, along with his length of residence, family connections with the UK and age on arrival in the UK, when assessing his level of integration. Notably, the balancing of positive and negative factors is the adoption of the approach set out in Tsakouridis, in MG and has been confirmed more recently by the CJEU in FV (Italy) and B (Joined Cases C-424/16 and C-316/16 EU:C:2018:256, discussed here).
(ii) Did the FTT err in law?
The court said that the Upper Tribunal, in the form of UTJ Hanson, found that the concession was “arguably material” and “arguably wrong in law”, but that meant no more than that the Home Office had satisfied the threshold for permission to appeal. Simon LJ judged that UTJ Hanson had, as a minimum, to find that there had been a material error of law if he were to interfere with the FTT’s findings.
Centrally, Mr Zainul Jafferji said that there was no proper basis for treating FTTJ Pooler’s approach to the concession in the decision letter as an error of law. It was also pointed out that the Home Office should not have just been allowed to withdraw the concession made before the FTT because of the effects of Carcabuk v SSHD (2000) 00/TH/01426 where Collins J and Mr CMG Ockelton imparted guidance regarding applications to withdraw concessions. Overall, if a presenting officer wishes to withdraw a concession in a refusal letter, he must inform the party or his advisor as soon as is possible and it will be for the judge to decide if an application for an adjournment to enable the new case to be met is made, and whether to grant it. If he does not, the concession will stand. The tribunal must always remain alive to the fact that an appellant may have prepared his or her case on the basis of the concession, and so must ensure that the appellant is not prejudiced. Mr Jafferji further submitted that having allowed the respondent to withdraw the concession and having erroneously identified an error of law in the FTT’s determination, UTJ Hanson himself carried out a flawed analysis on the basis that Lopes’s case fell within regulation 21(3). The court was attracted to these arguments and Simon LJ held that:
41. The FTT hearing proceeded on the express understanding, characterised as a concession, that the appellant fell within regulation 21(4). This had been specifically identified as material and had been accepted by the respondent at the prior Case Management Hearing. This is not a case in which no consideration had been given to what was an obvious point. The FTT decision was properly reasoned and contained no material error of law.
Consequently, contrary to UTJ Hanson’s conclusion, Lopes’s deportation had to be justified on imperative grounds of public protection, as had been accepted in the Case Management Hearing. Since FTTJ Pooler did not materially err in law, the UT was not justified in setting his findings aside and remaking the decision.
(iii) Could the Home Office withdraw the concession?
Even if the concession had been in relation to a matter of law, it did not follow that the Home Office was entitled to withdraw it on appeal. If a concession had been made an application had to be made to withdraw it rather than the mere assertion that it had been withdrawn. UTJ Hanson’s analysis of paragraph 25 of Davoodipanah  EWCA Civ 106 was wrong because of numerous reasons. He failed to take into account an overriding principle which encompassed both justice and fairness. The fact that the Home Office had allowed an entire day’s hearing to proceed on what was later said to be a false basis should have been a matter of serious concern.
The UT also failed to take into account the prejudice to Lopes by the withdrawal of the concession. For example, if the concession had not been made, he might have put in additional, or different, evidence before the FTT concerning his social and cultural integration into the UK.
Finally, rather than whether it appeared in retrospect that the concession should not have been made, a central question for the UT was whether the decision on regulation 21(4) was wrong in law. Lopes was unrepresented before the Upper Tribunal and he should have been given sufficient time to reflect on whether he wanted the matter remitted to the FTT, an adjournment to prepare his case on integration, or whether he wanted the UT to re-make the decision immediately. Accepting Mr Jafferji’s primary submission, the Court of Appeal allowed the appeal and restored the decision of FTTJ Pooler.
Readers should know that Mr Jafferji initially suggested to me that I should write a blog. Through Anglo Thai Legal Company, in our own practice, we have been instructing Mr Jafferji as counsel in entry clearance judicial reviews and we have had great success in securing justice for clients. Mr Jafferji’s style of advocacy is highly persuasive and very effective. His trademark Dawoodi Bohra cap creates a lasting impression on judges and, as I said in the earlier post on Decker  EWCA Civ 1752, I would recommend him as immigration counsel to everyone. Ultimately it is great to see that Mr Jafferji and those instructing him set the record straight in Lopes’s case because the meddling of the UT in FTTJ Pooler’s decision left a lot to be desired.
The Home Office won this appeal because of the effects of the Court of Appeal’s judgment in Macastena  EWCA Civ 1558 (discussed here) whereby it is not possible to aggregate time spent in a durable relationship before the grant of a residence document with time spent after a residence document is issued, for the purpose of the calculating residence in accordance with the Immigration (European Economic Area) Regulations 2006. UTJ Grubb held that rights of residence of extended family members are only conferred once a residence card is issued. Mr Kunwar was a citizen of Pakistan born on 4 April 1981. He applied for permanent residence and his application was refused but on appeal FTTJ Barrowclough allowed his appeal. He relied on his durable relationship with one Ms Opara, a Polish and EEA national. The couple began their (unmarried) relationship in 2006 and lived together from January 2007 until March 2014 when their relationship broke down and Ms Opara returned to Poland. Mr Kunwar claimed that between March 2009 and March 2014 he was resident in the UK in accordance with the 2006 Regulations for a continuous period of five years. He put emphasis on the fact that he had been granted a residence card as an extended family member in September 2009 and also relied on the fact that he had been in a durable relationship with Ms Opara since at least March 2009.
Mr Kunwar argued that added together those two periods, amounted to five years’ continuous lawful residence pursuant to the 2006 Regulations. FTTJ Barrowclough accepted that Ms Opara had been exercising Treaty rights during that time. He also accepted the basis of Mr Kunwar’s case. Based upon his durable relationship with Ms Opara between March 2009 and March 2014, the judge found that he had acquired the right to permanent residence as a family member of an EEA national with whom he resided in the UK for a continuous period of five years pursuant to regulation 15(1)(b) of the 2006 Regulations. The Home Office argued that Mr Kunwar was not in position to “bolt on” extra time by relying upon his durable relationship prior to the issue of the residence card in 2009 so as to establish a period of five years’ continuous residence in keeping with the 2006 Regulations. It was argued that until the Home Office exercised its discretion to issue a residence card under regulation 17(4), Mr Kunwar was not a “family member” as defined in regulation 7(3) read with regulation 8(5).
Notably, as regards Macastena the counterpoint was made, albeit unsuccessfully, that the Court of Appeal accepted that an individual could rely upon the period of his durable relationship even prior to the issue of a residence card once a card had been issued.
Upper Tribunal Judge Grubb
Mr Kunwar also submitted that the result in Macastena – where the individual had not been entitled to rely upon his durable relationship – was dependent upon the fact that in that case no card had ever been issued. In the present case, discretion had been exercised to issue a residence card in September 2009. Moreover, since the application was made in May 2009, the decision-maker must have been satisfied that Mr Kunwar was in a durable relationship with Ms Opara at least from March 2009. Notably FTTJ Barrowclough had found that as a fact in his decision. Mr Kunwar did not fall within the definition of a family member of regulation 7 (transposing article 2.2 of the Citizens’ Directive) of the 2006 Regulations and instead fell within regulation 8 (transposing article 3.2 of the Citizens’ Directive) which provides coverage to extended family members. Those who are extended family members, in particular under regulation 8(5) because he or she is the partner of an EEA national in a durable relationship, has no right of residence in the UK until issued with a residence card under regulation 17(4).
According to the CJEU, only “family members” as defined in article 2 of the Citizens’ Directive have a right of residence derived from the EU national. On the other hand, “other family members” or individuals in a “durable relationship, duly attested” with the EU national do not have a right of residence by virtue of the Directive. In Rahman (C‑83/11, EU:C:2012:519), the CJEU concluded that article 3.2 does not oblige member states to accord a right of entry or residence to “other family members” or those in a “durable relationship” with the EU national. Rather, the Directive imposes an obligation to “facilitate entry and residence” following the undertaking of an “extensive examination of the personal circumstances” of the persons concerned. As held in Banger (C-89/17, EU:C:2018:570, discussed here), that is to be effected by national legislation, which confers a wide discretion upon the member states when selecting the criteria but that those criteria must be consistent with the normal meaning of the terms “facilitate”.
Only once the residence card is actually issued do the 2006 Regulations recognise that an individual who has established that they are an “extended family member” has a right of residence. After than point in time, but only then, are they treated as a “family member” and UTJ Grubb explained further:
28. … The Directive does not confer any right of residence upon an “extended family member” but recognises that their right of residence must be facilitated after an “extensive examination” of their personal circumstances. That is exactly what occurred in this case following the application for a residence card relying upon regulation 8 of the 2006 Regulations. There is nothing in the Directive which requires a member state, following that process, to confer retrospectively a right of residence upon the “extended family member”.
Until issued with a residence card, a person in a durable relationship with an EU national will not have a right of residence in the UK. In this case, Mr Kunwar’s right of residence only arose in September 2009 a residence card was issued to him. The residence card issued could not retrospectively grant him a right of residence backdated to March 2009 and overall it was impossible to show that Mr Kunwar had resided in the UK in accordance with the 2006 Regulations for a continuous period of five years as a “family member” in order to establish a permanent right of residence under regulation 15(1)(b).
Mr Kunwar relied upon Macastena to argue that although the appellant in that case could not rely upon his period of residence in a durable relationship prior to his marriage, the position would have been different if he had applied for and received a residence card. It was argued that Longmore LJ accepted that in those circumstances “the time of that durable relationship could count towards an acquisition of a permanent right of residence”. Mr Kunwar submitted that he had been issued with a residence card in September 2009. Therefore in accordance with the judge’s factual finding that the durable relationship existed at least from March 2009, he had established the necessary five years’ continuous residence. UTJ Grubb rejected the argument as being off point and said:
38. I do not accept that argument. First, there is nothing in the passage relied upon in Longmore LJ’s judgment to suggest that he was accepting that even a period before the residence card was issued could be taken into account towards the acquisition of a permanent right of residence.
The substance of Longmore LJ’s reasoning ran counter to the submission and the Court of Appeal repeatedly emphasised the distinction between the rights of residence conferred upon “family members” and the right to “facilitate entry and residence” for persons in a durable relationship in keeping with the fortification of that distinction in Rahman. Longmore LJ was mindful of the earlier approach in Aladeselu  EWCA Civ 144 that a finding that an applicant comes within regulation 8 does not confer on him any substantive right to residence in the UK.
If anything Macastena only confirmed and applied the distinction between the right of residence of a family member and the absence of any right of residence for an extended family member until a residence card is issued under regulation 17(4) of the 2006 Regulations. Only once the residence card is issued do the 2006 Regulations confer upon an extended family member, a right of residence because from then onwards he or she is treated as a family member and may, if appropriate, rely upon the rights of residence recognised in regulation 13(2) and 14(2). Overall, UTJ Grubb held at paragraph 39 that only then does an extended family member begin to acquire a period of lawful residence capable of counting towards establishing a “permanent right of residence” on the basis of residing in the UK for a continuous period of five years under regulation 15(1)(b).
Therefore, FTTJ Barrowclough had erred in law in finding that Mr Kunwar had established the required period of residence under regulation 15(1)(b) of the 2006 Regulations in order to be entitled to a permanent residence card. The headnote summarised the position as:
(1) An extended family member (EFM) of an EEA national exercising Treaty rights in the UK (such as a person in a durable relationship) has no right to reside in the UK under the Immigration (EEA) Regulations until he or she is issued with the relevant residence documentation under regulation 17(4) of the 2006 Regulations (now regulation 18(4) of the 2016 Regulations).
(2) Following Macastena v SSHD  EWCA Civ 1558 , it is clear that it is not possible to aggregate time spent in a durable relationship before the grant of a residence document with time spent after a residence document is issued, for the purpose of the calculating residence in accordance with the Regulations.
(3) Once such a document is issued however, then the EFM is “treated as a family member” of the EEA national and may then have a right to reside under the Regulations (regulation 7(3)).
(4) Consequently, a person in a “durable relationship” with an EEA national can only be said to be residing in the UK “in accordance with” the Regulations once a residence document is issued. Only periods of residence following the issue of the documentation can, therefore, count towards establishing a “permanent right of residence”; under regulation 15 based upon 5 years’ continuous residence “in accordance with” the Regulations.
(5) The scheme of the 2006 and 2016 Regulations in respect of EFMs is consistent with the Citizens’ Directive (Directive 2004/38/EC). The Directive does not confer a right of residence on an individual falling within article 3.2 including a person in a “durable relationship, duly attested” with an EU national but only imposes an obligation to “facilitate entry and residence” following the undertaking of an “extensive examination of the personal circumstances” of individuals falling within article 3.2.
In Aibangbee  EWCA Civ 339 the Court of Appeal reiterated the point that time spent in a durable relationship prior to the issue of a residence card cannot be taken into account at all. The court rejected various submissions made on the basis of Banger and subscribed to the approach articulated by UTJ Grubb, describing it as:
38. … a neat encapsulation of the effect of the relevant provisions, giving proper effect to the judgment in Macastena.
First of all, regulation 3 amends regulations 2 and 36 of the 2016 Regulations to introduce a right of appeal against a decision to refuse residence documentation to extended family members under regulations 12(4), 17(5) or 18(4).
Secondly, it amends regulations 7 and 9 of the 2016 Regulations to give extended family members who meet certain conditions the right to enter and reside in the UK, when accompanying a returning British citizen who has exercised treaty rights in another member state.
In the long run, it will be interesting to see whether Brexit hysteria and rising racism will result in mass victimisation of EU nationals and their families at the hands of the Home Office and create yet another immigration scandal for the UK.
Perhaps nothing is more exhilarating than having an appeal allowed in an oral hearing. But should the judge be allowed to change her/his mind afterwards? That is what seemed to happen to this Iraqi appellant and after giving a negative answer to this question the vice-president of the Upper Tribunal Mr CMG Ockelton also had some words of wisdom for both representatives because of their lack of preparation regarding exactly what their position was in relation to the tribunal procedure rules. He found it “extremely regrettable” that both representatives “had not looked at the rules and did not know”. The appellant PAA last had leave as an unaccompanied asylum-seeking child. The matter entered the Upper Tribunal because PAA appealed the First-tier Tribunal’s written decision dismissing his appeal against the refusal of his refugee claim and entitlement to humanitarian protection. This was so despite the fact that the judge had said at the end of the hearing that he would allow the appeal and the Home Office would be able to appeal in 14 days. Despite his generosity, Mr Ockelton did not accept PAA’s argument that he had a substantive legitimate expectation of a decision in his favour as the judge had said there would be an expectation of this nature. As he said he was unable to “see the slightest basis in law why that should be so.”
His reason was that if events in the First-tier Tribunal constitute a ground of appeal then it must be on the clear basis of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Mr Ockelton was unhappy that neither the appellant’s representative nor the presentation officer made any attempt to make any submissions on the procedure rules regarding whether the First-tier Tribunal judge was entitled to give a decision at the hearing and had done so, or was able to give a decision only in writing. Instead both parties simply said that they did “not know”. Understandably, Mr Ockelton found this unacceptable and explained that “it ought to go without saying that anybody proposing to make submissions in an appeal about the procedure adopted below should have done proper research on what the procedural strictures below actually were.” As Singh LJ held in Talpada  EWCA Civ 841 procedural rigour applies in public as in private law and this important concept turns on parties knowing and following the relevant procedure rules. Hence, those who conduct litigation or attend court hearings without adequate knowledge of the rules of procedure run the clear risk of having a decision made against their client on procedural grounds.
Equally, such persons may well open themselves to a claim for failing to provide a proper service, or be referred to the appropriate regulator, or both. Mr Ockelton explained that if the representative’s practice is confined to the tribunal structure “there is no excuse at all for lack of knowledge of the rules.” Prior to the commencement of the 2014 Rules on 20 October 2014, all previous procedure rules governing first-instance appeals in immigration matters contained a provision requiring a decision to be in writing. However, rule 29 of the 2014 Rules deals with decisions and notice of decisions and rule 29(1) states “the Tribunal may give a decision orally at a hearing.” The text of rule 29 is in material respects the same as rule 40 of the Upper Tribunal Procedure Rules 2008. In Patel  EWCA Civ 1175, the Court of Appeal held that after it has been uttered a decision given to the parties in open court under a procedural rule in these terms cannot be revised or reversed. The requirement of written notice does not mean that such notice is required in order to perfect it. However, if the judge also gives a written notice in terms which are contrary to the oral decision, the written decision stands unless and until set aside by a court of competent jurisdiction.
Neither PAA’s representative nor the judge’s written note recorded that he said that he would allow the appeal but his foster parent, the social worker and the HOPO all contemporaneous recorded in writing virtually identical terms that the judge had made his decision orally in court. Essentially, he said that the appeal would be allowed and that Home Office would have 14 days to appeal against the decision. While he had some reservations, nothing indicated that those words were not intended to be his decision on the appeal and therefore Mr Ockelton held that:
8. … it is clear as a matter of law that he gave his decision orally allowing the appeal. He could not subsequently dismiss the appeal.
9. His written decision purporting to dismiss the appeal therefore presumably ought to be set aside as having been made without jurisdiction, the judge having become functus by giving his oral decision allowing the appeal.
The written decision appeared to be the subject of PAA’s appeal. It seemed to be the decision under appeal to the Upper Tribunal because as the decision was that given orally it was possible to regard it as not absolutely clear that the written decision was a “decision” in line with section 11(1) of the Tribunals Courts and Enforcement Act 2007 carrying an onward right of appeal.
Mr Ockelton deciphered that the written decision declared on its face that it was a decision of the First-tier Tribunal. Moreover, Patel left no doubt that a second decision was a decision by the tribunal in the prevailing circumstances. Hence, the correct route of challenge remained an appeal under section 11. Yet where there is an apparent conflict between decisions, as in the instant case, then:
9. … this produces a sort of standoff: neither party is entitled to enforce the decision it would rely on, until the matter has been sorted out on appeal.
Potential difficulties are thrown up if one party was absent from the hearing but on the other hand such problems can be resolved from the Tribunal clerk’s note of the outcome of the hearing if the notes taken by others present at the hearing prove inconclusive on the point.
But things did not end there. It was necessary to consider the status and effect of the documents sent out by the First-tier Tribunal in apparent compliance with rule 29(2) and (3)(a) whereby the tribunal must send out of a notice stating its decision, appeal rights, and written reasons for the decision. In the instant case, the tribunal sent the written decision of the judge dismissing the appeal and the reasons for dismissal, along with a covering letter indicating that either party could seek permission to appeal on a point of law within 14 days. Ordinarily this is sufficient to comply with the rules. In the present context, PAA challenged the written decision, but in all cases, even though the reasons for the decision may give the grounds for the challenge, on their own they are not dispositive and thus do not form part of the challenge itself. In the event an appeal is successful, it is specifically the decision that is set aside.
Moreover, under rule 33(2) and (3), time for appealing runs from the date on which the party making the application was provided with the reasons for the decision. In PAA’s case, it was not a procedural problem that the reasons were reasons for dismissing the appeal rather than allowing it. Upon receipt of the documents from the tribunal, it was open to either party to make an application for permission to appeal. Mr Ockelton explained that the appellant could have complained that the decision was different from the one given at the hearing, which he did. On the other hand, the Home Office could have complained that the reasons were entirely inadequate for allowing an appeal and that if those were the judge’s reasons he should have dismissed it. He explained further that:
11. Reasons given for a decision are often, or are often said to be, bad reasons: the onward appeal jurisdiction exists in order to answer such complaints. The mere fact that in the present case the reasons did not really support the decision at all does not mean that time did not run from their being provided.
The time for the Home Office to appeal against the decision had expired long ago and it confirmed that no application had been made to appeal. Equally, the Home Office did not seek to make an application for permission to appeal out of time, or to show why time should be extended. Mr Ockelton construed these facts to exemplify “the possibility of a decision against a party on procedural grounds arising from a representative’s ignorance of the rules.” He pointed out that an agile minded representative would have quickly appreciated First-tier Tribunal’s decision was the decision given orally to allow the appeal. Accordingly, the Home Office might have sought permission to appeal against the oral decision, arguably strengthened by the content of the written reasons. However, that is not what transpired which in the present situation was “not too troubling.”
Mr Ockelton observed that even in purporting to dismiss the appeal the judge found that PAA’s Iraqi nationality was as claimed (something which the Home Office challenged) and he also did not doubt that PAA was a minor. These factors did not automatically tilt the scales of justice in his favour but they helped “to show that winning his appeal was not wildly unlikely.”
The Upper Tribunal therefore set aside the First-tier Tribunal’s written decision to dismiss the appeal, substituting a decision that because the decision of the First-tier Tribunal had already been given orally there was no power to give a further decision dismissing the appeal in writing.
Accordingly, in light of the duty imposed on him under section 12(2) and under section 12(2)(ii) of the 2007 Act, Mr Ockelton remade the written decision by holding that there is no jurisdiction to give a second decision inconsistent with the first. Holding that the oral decision given in the hearing to allow the appeal stood as the decision on the appeal, the Upper Tribunal gave this guidance:
(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing.
(2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD  EWCA Civ 1175 is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision.
(3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal.
(4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time.
It is apparent from the vice-president’s decision that on this occasion he did not indulge in a Sala moment, when he departed from longstanding legal principles and denied a right of appeal to extended family members. In the present case, he took the necessary action to end the standoff in enforcement just in the hope that things would get sorted out in due course on appeal. Whereas Mr Ockelton found no reason to discipline the representatives beyond oral criticism, in Jetly  EWHC 204 (Admin), Mrs Justice Andrews had grave concerns about the manner in which judicial review proceedings had been conducted. Her Ladyship directed that the acting solicitors should pay wasted costs of £1,000.
The Hamid jurisdiction is designed to ensure that lawyers conducting litigation comply with the rules of court and otherwise conduct themselves according to proper standards of behaviour. In addition to referring the failures to the SRA, owing to the appalling nature of the situation at hand, Andrews J also proposed to send a copy of the judgment to the DPP for her to ascertain whether any further investigation was necessary into the possible conduct of reserved legal activities by a person or persons without the requisite authority.
Shamima Begum, the British ISIS bride now wishing to return to the UK after running away from Bethnal Green with her friends Amira Abase and Kadiza Sultana, is afraid that if she returns to the UK then she will be separated from her son who was born in the al-Hawl refugee camp run by the SDF in Syria. She has already lost two children in infancy but remains totally unrepentant about joining the jihad and readily enlisting herself as bride material for ISIS, which she still endearingly refers to as “dawlah”. Her desire for an English-speaking husband resulted in her marriage to the Dutch jihadist Yago Reidijk who she still loves “very much”. Reidijk, who is being touted as a “convert to Islam”, was convicted in absentia of membership of a terrorist organisation and is suspected of involvement in terrorist plots in the Netherlands. Attracted to joining the death cult of ISIS because of propaganda videos, Shamima Begum ran away from home at the tender age 15 and is only 19. But as a “victim” she is in no way comparable to the kidnapped Chibok girls who were forced to become jihadi brides and also forced to commit horrifically violent acts to prove their loyalty just in order to stay alive. Shamima Begum very consciously chose to participate in ISIS and so it is hard to spin things in her favour. She admits that she did not know what she was getting into. But she does not find fault with her actions.
Her ongoing plight and gender do not reduce the danger she poses to security. The UK is understandably not keen to roll out the red carpet for her and is happy to disown her instead. Despite her harsh predicament, her continuing reverence for ISIS makes Shamima Begum highly dislikeable. As she herself admits, she was not disturbed or sickened by the sight of a severed head because she was more concerned that the victim – “an enemy of Islam” – might have violated a “Muslim woman”; presumably someone like her. Of course, such ideas sit uncomfortably with her preference to “come home and live quietly with my child” and equally paradoxical is her contention that “a lot of people should have sympathy for me.” As discussed, in relation to the “Beatles”, the CPS has twice assessed that those who are suspected of beheading hostages cannot be prosecuted in the UK owing to insufficient evidence. Therefore, going by that perhaps it will not be possible to prosecute Shamima Begum after all – let alone jail her – and depriving her of her British citizenship will be impossible if she does not have dual nationality because the UK cannot make her stateless.
Since she has the “right of abode” in the UK, in the statutory language of section 1(1) of the Immigration Act 1971, she is “free to live in, and to come and go into and from, the United Kingdom without let or hindrance”. The same is also true of her two-day old son who is not only totally innocent but is also a British citizen.
I am not religious but I know that honest god fearing Muslims everywhere will be appalled that a death cult such as ISIS is being called a “caliphate” and people such as Shamima Begum are being labelled as “Muslim” and their horrific beliefs are being passed off as “Islam”. Notably, Prophet Muhammad was persecuted for his beliefs and practices. And when he sought asylum in Abyssinia, the Christian King granted his request and refused to hand over him and his followers to the Meccan soldiers who sought to enforce their return to Arabia.
When he did triumphantly return to Mecca, it was Muhammad who outlawed female infanticide (a widespread practice in polytheistic Arabia) and he also gave women legal rights such as the right to inherit property. He also prohibited the pillaging of the city and did not forcibly convert others to his new religion.
But for argument’s sake, if Prophet Muhammad would refuse to pardon Shamima Begum, Jesus Christ would most certainly forgive her for her sins. And if the UK is really a Christian country then it will surely follow the example of the Lord Jesus Christ and at the very least allow her to change her wicked ways and return to humanity. But of course being too much like Jesus does come with its fair share of problems. And indeed the times have radically changed from the days of Jesus or even from the time of the Treason Act 1351 which is still in force but does not capture Shamima Begum’s abandonment of British values in favour of the UK’s Islamist enemies in faraway Syria.
Ronald Fiddler, or Jamal al Harith, received £1m in compensation for abuses suffered in Guantanamo. But after his release in 2004, he carried out a suicide bombing in Iraq on behalf of ISIS in February 2017. Originally from Jamaica, his staunchly Christian family who believed in the “church of God” were shocked by his “conversion” to Islam. Fiddler denied that he was involved in terrorism and instead said that he was beaten, deprived of sleep, shackled in painful positions, provided very little water and given expired cans of food to eat while in the hands of US forces in Guantanamo. He complained about intense interrogations by Americans and British officials. But it seems that he was untruthful and did hate western values enough to return to Iraq and conduct a suicide attack. Thus one could be forgiven for being very suspicious about Shamima Begum because it is impossible to know what her real plans are? Her lawyer describes her as a “very traumatised young person” and people such as her are often described as “brainwashed” but, no matter how slim, surely there must be some chance that Shamima Begum might commit a terrorist atrocity in the UK if she returns. Who knows she might just set up a new female cell to perpetrate attacks on the public? But she maintains that “I never did anything dangerous. I never made propaganda. I never encouraged people to come to Syria.”
Clearly, the 800 ISIS fighters from Europe who now want to return home pose a huge threat to public security and it would be hugely naïve to think otherwise. Ben Wallace, the Security Minister, has said that Begum and – indeed countless other British ISIS sympathisers like her who now wish to return home to the UK – can be prosecuted for joining the jihad in Syria. Sajid Javid, the Home Secretary, instantaneously pounced on the chance to advance his leadership bid and said that he would “not hesitate” to stop her from returning and do everything in his power prevent her return because she is “full of hate for our country.” But as the Justice Secretary David Gauke has said the UK can only deprive Begum or others like her of their British nationality if they are not rendered stateless, something which is precluded by section 40(4) of the British Nationality Act 1981 if indeed the Home Secretary attempts to rely on section 40(2) to make an order depriving a person of citizenship because deprivation is conducive to the public good. The Supreme Court has held that “stateless” in section 40(4) of the 1981 Act has the same meaning as article 1(1) of the Convention relating to the Status of Stateless Persons 1954.
Furthermore, section 66 of the Immigration Act 2014 concerns cases where the citizenship status results from the person’s naturalisation. The provision in section 66 inserted section 40(4A) into the 1981 Act and empowered the Home Secretary to deprive someone of British citizenship if he considers their conduct to be seriously prejudicial to the interests of the UK and reasonable grounds also exist for believing that the person is able, under the law of a country or territory outside the UK, to become a national of such a country or territory. Moreover, by section 66(2), in exercising the section 40(4A) power the Home Secretary may take account of the manner in which a person conducted him or herself prior to these revised deprivation provision entering into force on 28 July 2014. Whereas the modifying provisions of the Immigration Act 2014 allow the Home Secretary to strip naturalised Britons of their citizenship, its powers do not capture those who are solely British nationals (who would be rendered stateless if deprived of citizenship).
The gap is filled by the discretionary power under the Counter-Terrorism and Security Act 2015 which allows for the temporary exclusion of British nationals from the UK. The legislation allows the Home Secretary to seize passports from would-be jihadis to preclude their exit. It also empowers him to issue Temporary Exclusion Orders (TEO) to prevent jihadis from returning to the UK for a period of at least two years. But an individual subject to a TEO may be given a permit to return which gives them permission to return to the UK. The return document may include conditions that the individual is required to comply with in order for the document to be valid.
So at most the Home Secretary could stop Shamima Begum from coming to the UK for a temporary period but there is no possibility for him to indefinitely stop her from coming back home. Upon her return a vast sum of money will need to be spent on monitoring her activities and resources will need to be diverted to cater to her case. While it is a crime to aid or abet a terrorist organisation in the UK, it is not a criminal offence to become the jihadi bride of an ISIS fighter. Since the age of criminal responsibility in England and Wales is 10 years old, Shamima Begum cannot claim that she had no criminal liability when she left for Syria at age 15.
Even though it is not possible for the Home Secretary to render Shamima Begum stateless, it appears that since she is a person of Bangladeshi origin, Sajid Javid may still rely on the amendments made by section 66 of the 2014 Act to render Shamima Begum stateless if reasonable grounds also exist for believing that she is able, under the law of Bangladesh, to become its national. However, if she was born outside Bangladesh then under the Bangladesh Citizenship Act 1951 she would only be a citizen by descent under section 5 if her birth was registered at the Bangladesh consulate or mission. In any event, it is clear that she is not a dual national.
Shamima Begum and her friends Amira Abase and Kadiza Sultana were straight A students in the Bethnal Green Academy and soon after their departure, the then commissioner of the Metropolitan police, Sir Bernard Hogan-Howe made it plain that if they girls returned home to the UK they would not face prosecution and instead they would be treated as victims. But that was a long time ago when Shamima Begum had not yet stunned the world by clarifying that she not only survived life in ISIS controlled territory but also seemed to have enjoyed it. Keeping the law to one side, it is ultimately a question of whether you would like someone like Shamima Begum to live side by side with you bearing in mind that she is not sorry about her actions? Her stance is that while in Syria she “was just a housewife” looking after her husband and kids.
Indeed other ISIS brides such as Sumaiyyah Wakil, who is said to be stripped of her British citizenship, have gone much further than her and have explained that it was “so cool” to see a woman being stoned to death by ISIS. Small wonder that most ordinary people will find it extremely hard indeed to sympathise with such crazy views and even if Shamima Begum is allowed to return to the UK it is very unlikely that she will ever be welcome here because absolutely no one will want to have anything to do with her except her parents perhaps. If Shamima Begum is not held to account for her support of ISIS, which is probably what will happen since it is not even possible to prosecute Shafee El Sheikh and Alexanda Kotey, the two remaining “Beatles”, then this sets a very dangerous precedent for a new generation of terrorists or their sympathisers who might fancy their chances of getting away with endangering the security of the UK.
On the other hand, the courts have handed down some precedents that outweigh the speculative nature of the above argument because of the best interests of the child. For example, the Supreme Court held in ZH (Tanzania)  UKSC 4 that the best interests of children are still a primary consideration in judging whether the interference with the children’s right to respect for their private and family life, protected by article 8 of the ECHR, was justified. Shamima Begum’s case is very different on the facts in comparison to the mother in ZH who was a failed asylum-seeker but the core idea is very much the same because her two children were British and the mother’s behaviour was appalling. ZH has been applied in different contexts and has produced complex litigation. However, it is very clear from the text of article 3.1 of the UN Convention on the Rights of the Child 1989 that the best interests of the child shall be a primary consideration in all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.
In Makhlouf (Northern Ireland)  UKSC 59, Lady Hale used the opportunity to reiterate that children must not be treated “just as adjuncts to other people’s rights” and must be “recognised as rights-holders in their own right”. In R (HC) v SSWP  UKSC 73, she held that decision- makers and persons in an official capacity must distinguish between children’s rights – specifically the rights of very young British children – and the rights of adults.
In the final analysis, it is best to listen to the wisdom of Lady Hale and subscribe to her views. If we cannot sympathise with Shamima Begum – who was probably just a sex slave in ISIS held Syria – we must sympathise with her two-day old British child who is wholly innocent and is exposed to disease and malnutrition thousands of miles away from home in a hostile environment in a camp in Syria. As her Ladyship recently pointed out in her All Human Beings? lecture:
Promoting children’s welfare should include promoting their rights under the UN Convention, including their political rights, facilitating their development as active democratic citizens, not just protecting their physical safety. Nor should they be deterred from playing a part in the democratic process, as otherwise they may become disengaged when they do grow up.
Therefore, Shamima Begum must be allowed to come home to the UK and her newborn son should be raised in a way that promotes his political rights and he should be allowed to participate in British society and democracy so that he does not become disengaged and become a terrorist if and when he finally does grow up.
In a rolled-up hearing, Lord Burnett LCJ and Garnham J granted permission for judicial review in these proceedings but their Lordships dismissed the claim brought by Maha El Gizouli – the mother of the ISIS terrorist Shafee El Sheikh – against the Home Secretary’s decision to provide mutual legal assistance (MLA) to the US without requiring an assurance that the death penalty would not be imposed. Assurances of this type are routine in extradition cases to territories where capital punishment exists. Shafee El Sheikh and Alexanda Kotey are detained in Syria by American backed Kurdish forces. The pair is accused of participating in acts of barbaric terrorism and the murder of US nationals in Syria and of fighting for ISIS. With Jihadi John at the helm, the so-called “Beatles” beheaded dozens of innocent people including Americans James Foley, Steven Sotloff and Peter Kassig and Brits David Haines and Alan Henning. These grotesque acts were filmed and posted online and caused incalculable pain and anguish to the victims’ families. Pursuant to the 1994 Treaty of Mutual Legal Assistance in Criminal Matters between the US and the UK, the US requested MLA. The UK sought an assurance from the US that the death penalty would not be sought against anyone found guilty as a result of the investigation. Kurdish fighters apprehended El Sheikh and the US indicated that an assurance would not be given.
The US classifies both El Sheikh and Kotey as prisoners of war and wants to send them to Guantanamo. While giving evidence at a Senate panel hearing, Jeff Sessions, the US Attorney-General, remarked that “I have been disappointed, frankly, that the British are not willing to try the cases but intend to tell us how to try them and they have certain evidence we need”. Sajid Javid, who became Home Secretary on 30 April 2018, spoke to Sessions and expressed concerns that the UK had said it was not interested in prosecuting El Sheikh. Javid said that the death penalty should not be an issue for the UK and that he did not want the British authorities to tie America’s hands over the use of material gathered by British investigators. Thus, Javid acceded to the request without seeking any assurance. The Divisional Court held that the Home Secretary had been entitled to authorise MLA to the US to assist in a criminal investigation, which could in turn result in the prosecution of a British suspected terrorist for offences carrying the death penalty, without seeking assurances that the US prosecutors would not seek the death penalty.
Diplomacy and options
The British Embassy in Washington’s view was that the Trump administration felt that “we are dumping on them” and will “hold a grudge” which would lead to “some damage to the bilateral relationship” because key figures such as Sessions, Mattis and Pompeo “will wind the President up to complain to the PM”.
Three options were identified by the Foreign Office, i.e. (i) to seek a full death penalty assurance, (ii) to seek a partial death penalty assurance, and (iii) to seek no assurance. Reflecting long-standing policy, the Foreign Secretary was advised to urge the Home Secretary to seek a full assurance. However, Boris Johnson said that the situation was “unprecedented and unique” owing to the highly heinous nature of the crimes committed by ISIS adherents such as El Sheikh and Kotey. He also pointed out that without a federal prosecution the pair would be exposed to detention in Guantanamo where due legal process would be denied to them. Equally, failing to co-operate with the US would also strain the UK’s key security relationship with the Americans. It was the government’s view that a successful prosecution and imposing commensurate sentences is particularly desirable to send out a strong deterrent signal to others and also ensure justice for victims’ families.
Thereafter, the Home Secretary acceded to the MLA request and the only strings attached were that the assistance and materials provided would only be used in a federal criminal investigation or prosecution. This was so despite the fact that the victims’ families wish to avoid the imposition of the death penalty. Notably, providing MLA does not automatically guarantee a federal prosecution. Equally, the pair’s executions would put the UK’s wider national security at risk since radicalisers will pounce upon this to manifest further hatred. However, as the UK is not itself able to pursue prosecution, the US administration would be extremely outraged at being asked for a death penalty assurance
Grounds of challenge
The fivefold grounds of claim argued that (i) the death penalty is a “cruel and unusual” and “inhuman” punishment and it is unlawful for the executive to exercise his powers under the prerogative to facilitate the imposition of such a penalty or substantially to contribute to the risk of its imposition, (ii) the decision was flawed by a series of misdirections of law and fact, and by failure to have regard to relevant considerations, (iii) the decision was inconsistent with the UK government’s policy of unequivocal opposition to the death penalty “in all circumstances”, (iv) the decision violated the claimant’s own rights under the ECHR by subjecting her to inhuman treatment in violation of article 3 and in violation of her right to psychological integrity under article 8, and (v) the provision of MLA without assurances violates the Data Protection Act 2018.
The Divisional Court
Unswayed by the grounds of challenge, Lord Burnett LCJ and Garnham J refused the application for judicial review after considering evidence from Ms El Gizouli’s neighbour about the effect of the decision on her. She also adduced evidence by Professor Jeffrey Fagan – an expert on execution methods in the US – and by Reprieve which campaigns for the abolition of the death penalty.
(i) Illegality and breach of the Rule of Law
Accepting that there is no existing precedent for an order of the sort sought and also accepting that the government enjoys discretionary power to provide MLA under the prerogative, Ms El Gizouli submitted that Simms  UKHL 33 and Pierson  UKHL 37 mean that the exercise of prerogative powers must accord with the common law and with fundamental principles of justice and the rule of law (particularly so where the death penalty is in issue).
In the case of Al-Saadoon  EWCA Civ 811 Lloyd Jones LJ (as he then was) recalled five authorities to definitively hold that the key principle of legality is a principle of statutory interpretation. The argument that the executive’s actions should be tested by reference to the principle of legality failed to curry favour with the court, which held that:
57. … Under this ground the claimant must, in our view, demonstrate that the decision to provide MLA was made in breach of domestic law, which might include international law that is part of domestic law.
Soering v UK (1989) 11 EHRR 439 and Al-Saadoon v UK (2010) 51 EHRR 9 held that the ECHR prohibition against subjecting a person to the death penalty, and against removing a person where there are substantial grounds for believing that the individual would face a real risk of being sentenced to death and executed, applies only to persons who are within the jurisdiction of the UK. It was held in Bankovic v Belgium (2007) 44 EHRR SE5 that ambit of the ECHR is essentially territorial. Ms El Gizouli argued that the common law was not limited by the fact that her son was outside the ECHR’s territorial application and thus the common law could prevent the facilitation of the death penalty.
The challenge relied on the approach in Al-Saadoon where Strasbourg endorsed the principle that a Contracting State incurs liability “by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment”. Yet Lord Kerr held in Ismail  UKSC 37 that the result in Soering rested on article 3 of the ECHR being breached because “in effect, the UK would have been directly instrumental in exposing Soering to the risk of being executed.” Ms El Gizouli submitted that that once the underlying principle of non-facilitation is identified as valid, its application is not necessarily limited to cases where the mode of facilitation is dependent on the presence of the individual in the jurisdiction. However the argument was unsound because it involved two fundamental expansions of the principles identified in Soering and Al Saadoon because it (a) extended the non-facilitation principle beyond cases involving extradition to face the death penalty, and (b) extended the principle to those outside the ECHR’s protection.
It was clear from Sandiford  UKSC 44 and also from Zagorski  EWHC 3110 (Admin) – concerning instances where the death penalty was imposed on British citizens abroad – that the domestic UK courts had declined to make such extensions. The former case involved a British citizen facing the death penalty in Indonesia for drug trafficking and the latter concerned two British citizens who had lengthily been on death row in the US (in Tennessee and Kentucky).
The argument was made that conviction in the US would expose El Sheikh to the prospect of lengthy detention, in harsh conditions, on federal death row, where the average period of detention pending execution is 12½ years. Equally, there was also the risk of a “botched” execution involving prolonged and excruciating pain and that there was a risk that he would be exposed to experimentation by unqualified and unskilled executioners. Therefore, the death penalty generally, or at any rate the death penalty regime that applies in the US, constitutes cruel, inhuman and degrading treatment within the meaning of article 16 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
Ms El Gizouli also argued that aiding or assisting another state in committing an internationally wrongful act is prohibited under customary international law. Therefore, complicity in such serious mistreatment is contrary to customary international law. The Divisional Court held that customary international law did not require such a development of the common law. A survey of the field showed that death sentences were not contrary to customary international law and the lethal injection method used in the US or other features of the US system did not violate international law (which did not preclude mutual assistance where an individual might face the death penalty). Hence, Lord Burnett LCJ and Garnham J held that overall:
84. There is no warrant for interpreting article 16 of UNCAT as prohibiting the death penalty on the basis that of necessity it amounts in itself to cruel or inhuman punishment. The death penalty remains too widespread around the world to make credible a submission that customary international law treats the death penalty per se as a cruel or inhuman punishment.
In reality the two issues were whether (a) the death penalty as enforced in the US can be said to amount to cruel or inhuman punishment, and (b) international law precludes the provision of MLA in proceedings in which an individual might face the death penalty. Indeed, the jurisprudence of the US Supreme Court was very clear that death by lethal injection does not amount to a violation of the Eighth Amendment (which prohibits cruel and unusual punishment) and that properly carried out, the death penalty would be “humane and constitutional”. Secondly, nothing supported the assertion that international law precludes the provision of MLA in proceedings in which an individual might suffer the death penalty. Their Lordships held that:
90. In our judgment the claimant’s case on customary international law falls at the first hurdle. There is no warrant for concluding that customary international law (a) prohibits the use of the death penalty; (b) renders features of the US regime contrary to international law; or (c) requires a state to decline to provide MLA in the circumstances of this claim.
Notably, to the extent that it was relied upon, article 16 of UNCAT was not part of English law and it had never been incorporated into English law. Significantly, in an environment where the Human Rights 1998, applying the ECHR, governs the circumstances in of a person’s removal to a non-convention country to face trial, it was quite clear from Lord Neuberger’s approach in Keyu  UKSC 69 that it would be wrong for the common law to develop a parallel jurisprudence. Thus, agreeing with the government, the Divisional Court judged:
90. It is sufficient to note that there is strength in the argument that such a far-reaching development of the common law, even by reference to customary international law, would be a bold step, particularly in an area touching international relations.
Lord Dyson said in Sandiford that it was right to regard the death penalty as “immoral and unacceptable”. However, he did not hold that the government’s policy of not providing funding for legal representation to a British national facing the death penalty abroad was unlawful. Observably, the Supreme Court did not express any opinion about whether the death penalty should be regarded as a cruel or inhuman punishment for the purposes of the common law. Finally, attempting to stretch the jurisprudence of the Privy Council on the death penalty (which was in the context of domestic constitutions and laws) did not assist the challenge and the common law had not developed to recognise that the death penalty was cruel, inhuman or degrading punishment.
(ii) Errors of law in the decision
Decisions under the royal prerogative are susceptible to judicial review. But on the other hand, it was evident from CCSU  UKHL 9 that interfering with the institutional competence of the executive was to be avoided and the institutional competency of the executive was to be respected. In Lord Carlile  UKSC 60, which concerned the bizarre exclusion of Maryam Rajavi who had been invited by Parliament to expose the brutality of Iran’s mullahs, Lord Sumption took the view that:
32. … even where ECHR rights are engaged, very considerable respect is accorded to judgements and assessments in the foreign relations field, including specifically in relation to the possible reactions of foreign governments.
The court held that the Home Secretary had been entitled not to seek partial assurances from the US authorities, allowing indirect use of evidence in death penalty prosecutions, on the basis that US authorities would react negatively. Importantly, in Corner House Research  UKHL 60, Lord Bingham rejected the argument that it was against the rule of law for a prosecutor to discontinue a criminal investigation if Saudi Arabia threatened to suspend ongoing intelligence co-operation, even in circumstances where it was judged it was liable to expose the UK to the threat of terrorist attack. Lord Sumption expressly approved of this in Lord Carlile where both the court and the executive sought to appease Iran by deciding that Mrs Rajavi’s presence in the UK was not conducive to the public good. So in the present case Sajid Javid was clearly entitled to have regard to the potential reaction of a foreign state, which did not share the UK government’s views or the values of the ECHR.
Moreover, any evidence provided by the UK could not be used for the purpose of detention or military commission in Guantanamo. The court judged that “the UK was not in a position to demand any more” and the government had no “leverage in this regard”. British authorities were keen to see El Sheikh be tried in a federal court in the US. The assistance was provided for that purpose. The UK could not also impose a condition that El Sheikh should not be transferred to Guantanamo and the court explained that:
118. … In providing the material for the purposes of a federal prosecution only, the UK was minimising the risk of a transfer to Guantanamo, an outcome the government wished to avoid.
It was right that the Foreign Office publication HMG Strategy for the Abolition of the Death Penalty 2010-2015 demonstrated the long-standing policy of the UK to oppose the death penalty “in all circumstances as a matter of principle” However, the court found nothing unlawful in the government adopting a policy which permits an exception to seeking assurances and requires a minister to evaluate the conflicting considerations that apply at the time of decision.
The evidence showed that the Home Secretary took into account the Foreign Secretary’s stance regarding the counter arguments for insisting on a death penalty assurance and he also took considered the fact that the previous Home Secretary had concluded that full assurances should be sought. The advice of his officials was also considered and having accounted for all of those matters Sajid Javid decided that it would be right to apply the exception for which the policy provides and to proceed without a full assurance.
(iv) ECHR rights of the claimant
As the claimant, Ms El Gizouli was within the jurisdiction for ECHR purposes but a parent making a claim based on the treatment of a child outside the jurisdiction had to show the existence of special factors giving their suffering a dimension and character distinct from the emotional stress inevitably caused to relatives of the victim of a serious human rights violation. The Divisional Court held that:
137. In our view such factors are absent in this case. First, Mr El Sheikh is an adult, not a child, who had left the family home long before the events in question. Secondly, he chose to leave his home in order to engage in jihad. He chose to put his life at risk in one of the most violent conflicts in recent history. Thirdly, the claimant has had only limited contact with her son since 2012.
The circumstances were totally different from those in cases such as Mayeka and Mitunga v Belgium  46 EHRR 23 where the child was only five years old and was detained and deported alone by the contracting state. Overall, the court concluded that there was no claim under article 3 or article 8 of the ECHR.
They held that the 2018 Act was a self-contained statutory scheme. It imposes various duties upon data controllers and processors and confers rights upon data subjects. An infringement of a right under the 2018 Act or a data controller or processor’s failure to comply with the statutory scheme had the stated remedy of an action in damages for infringement of a right. There was no claim for damages before the..
Brexit is a big mess. It is “a powerful acid” and is a huge economic and bureaucratic nightmare. Going through with it in the hope that normality can be restored to British politics is equated with “howling at the moon”. But Theresa May is “determined to deliver Brexit, and determined to deliver on time – on March 29 2019.” With very little time left, she emphasises that “the clock is ticking” and politicians must “put aside our differences” in the national interest. Nevertheless, on the international stage May intends to be belligerent and the crusader in her is keen “to battle for Britain in Brussels” because she is “armed with a fresh mandate”. Conversely, to avoid the impending calamity, a softer option does exist because the Wightman ruling permits the UK to freely and unilaterally revoke the 29 March 2017 notification of its intention to leave the EU: a sea change from the reasoning embraced by the Supreme Court in Miller  UKSC 5 which was decided on the basis that once notice under article 50 of the Lisbon Treaty/TEU was given the government pulled the trigger which caused the “bullet to be fired” with the result that it “will hit the target and the Treaties will cease to apply”. Yet the CJEU held that the revocation of notice, decided in line with the UK’s own national constitutional requirements, would mean that the UK remains in the EU under terms that are unchanged regarding its status as a member state.
Hence, the ruling presents a convenient escape of last resort for the UK if all else fails. Under article 50, after notifying the European Council, the withdrawing member state must negotiate and conclude a withdrawal agreement with the EU. The EU Treaties then no longer apply to the exiting member state from the commencement of the withdrawal agreement or, failing that, two years after giving notice of the intention to withdraw and any possible extension. These proceedings trace their roots to a petition for judicial review in Scotland and the referring court pointed out that the answer would enable members of the House of Commons to know, when exercising their vote on a withdrawal agreement, whether the third option of revoking notice under article 50 existed in addition to the two other options of withdrawing from the EU with a deal or withdrawing from the EU without a deal. The petitioners were maligned and portrayed as traitors to the UK and continue to be attacked for their political views on remaining in the EU. However, in reality they are true patriots who wish to end the ongoing insanity that is being manifested by the mafia blindly wanting to carry out Brexit at any cost.
Reference from the Court of Session
Essentially, the petitioners wanted to know whether it was still possible for the UK to unilaterally revoke the notice contemplated by article 50 before the expiry of the two-year period stipulated by that provision. Indeed the result would be that if the UK’s notice of withdrawal were revoked, the UK would remain in the EU. Some difficulties arose at first instance about the hypothetical nature of the question. Equally, concerns also arose that these proceedings encroached upon parliamentary sovereignty and that the matter was outwith the national court’s jurisdiction.
However, things were different on appeal and the Court of Session, Inner House, First Division took the view that it was neither academic nor premature to ask the CJEU whether it is legally possible, for a member state, to revoke unilaterally the notification made under article 50(2) and to remain in the EU. Uncertainty needed to be minimised and clarity provided by the CJEU would surely enable MPs to make an informed choice about exiting the EU without a deal, with the deal concluded or to revoke notice and remain in the EU. Therefore, the Court of Session, Inner House, First Division (Scotland), stayed proceedings and referred to the CJEU the following question for a preliminary ruling:
Where, in accordance with article 50 [TEU], a member state has notified the European Council of its intention to withdraw from the EU, does EU law permit that notice to be revoked unilaterally by the notifying member state; and, if so, subject to what conditions and with what effect relative to the member state remaining within the EU?
Since they are always extremely sore losers, the government sought to appeal the decision to make the reference for a preliminary ruling and the application was refused. Thereafter, the Supreme Court flatly declined to interfere with the Scottish court’s decision to make a reference. The court held that the Court of Session would give judgment in light of the preliminary ruling and only then will there be a final judgment in these proceedings.
Advocate General Campos Sánchez-Bordona
The AG proposed that the CJEU should rule that article 50 allows the unilateral revocation of the notification of the intention to withdraw from the EU and it is possible to revoke the notice until the negotiation of the withdrawal agreement is formally concluded.
He confirmed that the revocation of the withdrawal notice effectively opened up “a third way, namely remaining in the European Union in the face of an unsatisfactory Brexit.” Significantly, the availability of an avenue of this nature enabled Parliament to call upon the UK government to revoke notice of the intention to withdraw, so that the UK could remain party to the Treaties establishing the EU and a member state of the EU.
The Court of Justice (Full Court)
The full court ruled that when a member state, such as the UK, has notified the European Council of its intention to withdraw from the EU, it is totally free to revoke the withdrawal notification unilaterally. In other words, the UK can cancel Brexit to save its skin.
The possibility to do so exists as long as the withdrawal agreement concluded between the EU and the UK has not yet entered into force or, in the absence of such an agreement, for as long as the two-year period from the date of the UK’s notification of the intention to withdraw from the EU, and any possible extension of notice, has not expired. The CJEU’s conclusion was also corroborated by the Vienna Convention on the Law of Treaties 1969 whereby it is possible to revoke a treaty “at any time before it takes effect”.
Since no express provision governs revocation of the notification of the intention to withdraw, revocation is subject to the rules laid down in article 50(1) for the withdrawal itself. Consequently, the revocation may be decided unilaterally.
The revocation decision must be reached after a democratic process in line with national constitutional requirements. The revocation must be an unequivocal and unconditional decision. It must be communicated in writing to the European Council.
Overall, a revocation of this nature confirms the EU membership of the member state in question under terms that remain unchanged in relation to its status as a member state and concludes the withdrawal procedure by bringing it to an end. From that angle, despite all the ongoing chaos, the UK remained in command of its own destiny and could take back control at its own convenience.
Given that article 50(1) is clear that any member state may decide to withdraw from the EU in accordance with its own constitutional requirements, it was only natural that there was no need for the departing state to act “in concert with the other member states or with the EU institutions.” Therefore, departing from the EU is a decision for the UK alone, in accordance with its constitutional requirements, and “depends solely on its sovereign choice.” Revoking notice to exit the EU is a sovereign decision by a member state to retain its EU membership: this status is not suspended or altered by the notification, subject only to the requirements of article 50(4) TEU (i.e. that the withdrawing member state shall not participate in the EU decision-making process regarding the withdrawal agreement).
Observably, article 50(2) and (3) stipulate the clear procedure to be followed if a member state wants to withdraw. Essentially, this is a three-stage process and in RO (C‑327/18 PPU, EU:C:2018:733), the CJEU held that the procedure consists of (i) notification to the European Council of the intention to withdraw, (ii) the negotiation and conclusion of an agreement setting out the arrangements for withdrawal, taking into account the future relationship between the exiting state and the EU, and (iii) the actual withdrawal from the EU on the date of entry into force of that agreement or, failing that, two years after the notification given to the European Council – unless together with the exiting state, the European Council unanimously decides to extend the two-year period.
The CJEU rejected the analogy contended for by the Commission and the Council between revocation of withdrawal and extension of the two-year notice period in article 50(3) and held that revocation “is fundamentally different” and must not be confused with a request by which the UK might request the European Council to extend the two-year period. That course of action would require the unanimous consent of the EU27 in whom the specific power to extend is vested.
Two objectives are pursued by article 50. First, it enshrines the sovereign right of a member state to withdraw from the EU. Second, it establishes a procedure to enable such a withdrawal to take place in an orderly fashion. Significantly, the CJEU was of the view that:
55. After its withdrawal from the EU, the member state concerned may ask to rejoin, under the procedure set out in article 49 TEU.
The text of article 50 does not explicitly address the subject of revocation and it neither expressly prohibits nor expressly authorises revocation. As the AG noted it follows from the drafting of article 50(2) that a member state which decides to withdraw is to notify the European Council of its “intention”, a term which is “by its nature, neither definitive nor irrevocable.”
Observably, both the TEU and the TFEU have the purpose the creation of an ever closer union among the peoples of Europe and the EU also aims to eliminate the barriers which divide Europe. Similarly, the sacrosanct values of democracy and liberty are shared by the member states and, as held in Kadi and Al Barakaat International Foundation v Council and Commission (C‑402/05 P and C‑415/05 P, EU:C:2008:461), “form part of the very foundations of the EU legal order.”
As stated in article 2 TEU, the member states share a set of common values on which the EU is founded, namely respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Article 49 TEU is clear that the member states have freely and voluntarily committed themselves to those values. Reciprocity underpins the system and as shown by Minister for Justice and Equality–Deficiencies in the system of justice (C‑216/18 PPU, EU:C:2018:586):
63. … each member state shares with all the other member states, and recognises that those member states share with it, those same values.
Key in the ruling is the importance of the rights of all EU citizens. Invoking the decisions in Grzelczyk (C‑184/99, EU:C:2001:458), Zhu and Chen (C‑200/02, EU:C:2004:639) and Rottmann (C‑135/08, EU:C:2010:104), the court reiterated that EU citizenship is intended to be the fundamental status of nationals of the member states. Clearly the withdrawal of a member state from the EU inevitably produced a considerable impact on the rights of all EU citizens including, among other things, the right to free movement of both the nationals of the exiting state and nationals of other member states. With that in mind the CJEU judged that:
65. In those circumstances, given that a state cannot be forced to accede to the EU against its will, neither can it be forced to withdraw from the EU against its will.
Ultimately it would be inconsistent with the EU Treaties’ purpose of creating “an ever closer union” among the peoples of Europe to force the UK’s withdrawal if it elects to revoke the notification of its intention to withdraw from the EU after a democratic process. The court found that to make the right to revoke subject to the unanimous approval of the European Council, as the Commission and Council proposed:
72. … would transform a unilateral sovereign right into a conditional right subject to an approval procedure. Such an approval procedure would be incompatible with the principle that a member state cannot be forced to leave the EU against its will.
In presenting Seven Brexit Endgame scenarios, the Bingham Centre for the Rule of Law explains “revocation remains a live option in legal terms, despite seeming politically implausible.” While an “unequivocal and unconditional” letter to the European Council will suffice in order to revoke article 50, the outcome in Miller shows that the government is unlikely to be able to rely on the prerogative for the purposes of revocation. Moreover, since Parliament has already passed the EU (Withdrawal) Act 2018 showing its express legal intent to exit from the EU, it is likely that the government would need to enact legislation in order to gain the authority to submit a letter revoking notice to withdraw. However, it will still be possible for the UK to retrigger article 50 because the ruling in Wightman leaves no doubt that “revocation brings the withdrawal procedure to an end”.
The upshot of retriggering article 50 will be that the withdrawal period will run afresh and, as pointed out by the Bingham Centre, such repetitious and abusive behaviour will call the UK’s sincerity into question because co-operation among member states would be thwarted and multiple article 50 notifications may well result in proceedings against the UK in the CJEU.
On 15 January 2019, Parliament voted against the withdrawal agreement by 432/202 and May’s measly government made history by suffering the biggest ever defeat inflicted on a sitting government. But unfazed by all this, after licking her wounds, the prime minister managed to keep crashing out of the EU without a deal on the table. Mrs May is presently playing a game of chicken with the EU27 and by engaging in brinkmanship she is hoping that they will blink first.
However, EU leaders are not willing to reopen the withdrawal agreement and time is of the essence. Virtually every sphere of life will be adversely affected if the UK crashes out of the EU in a blind cliff-edge Brexit and there are no known benefits of a blind Brexit.
Despite the fact that the Brady amendment seeks to replace the backstop with alternative arrangements, the prime minister now knows that the EU will not bin the backstop but she does still insist that “changes” to the controversial mechanism must be made to avoid no-deal; dubbed the “mother of all messes” by its critics. Indeed, the majority of the House of Commons does not support leaving the EU without a deal but the government is making it clear that the only way to avoid no-deal is to vote in favour of a deal. The government is in difficulties because mass resignations in cabinet are also on the cards and so as to appease europhile ministers – who want to delay Brexit – the prime minister is expected to plead for more time so that she can procure changes to the withdrawal agreement. The problem posed by the mass resignations was kept at bay in the past by assurances that disgruntled ministers would have an opportunity to block no-deal. Now in the face of pressure by the shadow Brexit secretary Kier Starmer, the communities secretary James Brokenshire has said that MPs will have an opportunity to stop a no-deal departure by 27 February 2019: although this is different from a meaningful vote on a (new) deal.
Revocation looks unlikely because of the dictatorship of the 51.9 per cent and an extension of article 50 might be on the cards. Otherwise a hard Brexit is bound to become a reality. Indeed, extending article 50 requires the unanimous consent of European Council whose president Donald Tusk recently remarked that there is a “special place in hell” for those who stirred up emotions in favour of Brexit but had no plan to deliver it. Despite Tusk’s tantrum it is impossible to disagree with him that the likes of Nigel Farage, Boris Johnson and Jacob Rees Mogg and other charlatans of their ilk have no idea about how to limit the serious damage caused by Brexit. Farage, the high priest of no-deal, is vying for control of the new Brexit Party so that he can reclaim the political limelight. The divisive figure is adamant that the unprincipled and venal individuals subscribing to the no-deal option will vehemently oppose an extension of article 50 for further negotiations and he has wickedly predicated his political mumbo jumbo on the lie that: “In defence of democracy, we stand ready for battle.” Sadly the government’s stance is such that the voice of the 48.1 per cent has effectively been silenced and even remainers of the past have conveniently reinvented themselves as leavers in May’s cabinet.
Significantly, even with UK/EU deal, an extension of article 50 is necessary..
The crushing defeat suffered by Theresa May because of the rejection her Brexit Deal has left the UK in utter chaos. Uncertainty looms large in all spheres of UK life but the government is determined to carry through with Brexit at all costs. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill is an important piece of upcoming legislation because it makes provision to end free movement rights under retained EU law and to repeal other retained EU law relating to immigration. As introduced, the Bill is divided into three parts and apart from seeking to end free movement it seeks to empower the government so as to modify, using regulations subject to the affirmative procedure, retained EU legislation on social security co-ordination. According to the government a power of this nature is required to enable the delivery of a range of options from Brexit day, particularly to put into action its preferred approach to social security co-ordination in a no deal scenario. The Bill consists of seven clauses and operates in linkage with the new White Paper entitled The UK’s future skills-based immigration system. Clause 1 and schedule 1 contain provisions to terminate the law of free movement in the UK by repealing section 7 of the Immigration Act 1988 with the result that EU nationals and their non-EU family members will require permission to enter and remain here under the Immigration Act 1971.
This is said to enable the delivery of the future immigration system which is not specified in the Bill and will be implemented through future Immigration Rules relating to workers, students and family members. As things presently stand, free movement enables those from the European Economic Area (the “EEA”, i.e. the EU and Iceland, Liechtenstein and Norway) and Swiss nationals and their family members to (i) enter the UK and reside here for an initial period of three months, (ii) reside in the UK as a “qualified person”, such as a jobseeker, worker, self-employed person, self-sufficient person, or student, for as long as they have that status, and (iii) acquire permanent residence after completing five years lawful residence in the UK under the Citizens’ Directive (2004/38/EC). But all this will be history once free movement law is repealed and new Immigration Rules are erected to generally keep Europeans out of the UK unless they have obtained employment in advance and are remunerated £30,000 per annum. As seen earlier, all this spells out the end of two immigration systems in the UK and a single system will be operated in the future.
On the present footing, the Citizens’ Directive (2004/38/EC) or the “free movement directive” is implemented into domestic UK law by the Immigration (European Economic Area) Regulations 2016. The terms of the EU (Withdrawal) Act 2018 repeal the European Communities Act 1972 and convert current EU law into UK law (“retained EU law”) and preserve existing UK law that implements EU law, to ensure legal continuity until Parliament changes the law. In other words, the EU’s rules on free movement will survive in the UK after Brexit unless further legislation makes provision to the contrary. To that end, the Bill repeals retained EU law as regards free movement and the implementing regulations. Part 1 of schedule 1 revokes the EEA Regulations and omits section 7 of the Immigration Act 1988. The consequence will be to make EEA and Swiss nationals and their family members subject to UK immigration controls making their movements fall within the framework created by the Immigration Act 1971.
To fully signal the final end of free movement the Bill also repeals section 109 of the Nationality, Immigration and Asylum Act 2002 which provides a right of appeal for EEA and Swiss nationals and their family members against an immigration decision relating to free movement. As explained earlier, the deadline for the EU Settlement Scheme has been set as June 2021. Therefore EU citizens and their family members who do not apply to stay in the UK by the “grace period” ending on 30 June 2021 will not be in a position to demonstrate their rights to access work, benefits and services. The Bill also targets other areas of EU law that do not directly relate to free movement but impact immigration. Therefore, subject to negotiations about the UK’s future relationship with the EU, the Bill will also remove or amend other EU-based law which is incompatible with the future UK immigration system.
By inserting a new section 3ZA (Irish citizens) into section 3 of the Immigration Act 1971, clause 2 amends the Immigration Act 1971 to confirm that the rights of Irish citizens prevail. Therefore, irrespective of the end of free movement, Irish citizens will not require any leave to enter or remain in the UK. Significantly, this development seen as quite a positive step by the Immigration Law Practitioners’ Association because it enables “frontier workers” – i.e. Irish citizens working in Northern Ireland who cross the border frequently for work – to continue to carry on their activities without requiring leave. Clause 3 amends section 61 of the UK Borders Act 2007 to ensure that any references to “the Immigration Acts” across legislation include the Bill.
Clause 4 is a Henry VIII clause setting out the consequential provisions of the Bill. It very controversially allows the government to amend primary and secondary legislation by statutory instrument. ILPA has expressed great concern about the unrestricted manner in which the Home Office will be able to radically make a lot of changes to the future immigration system by repealing or changing primary legislation. Therefore, ILPA propose that clause 4 should expire on 31 December 2019 so that the opportunity for misuse can be limited. Overall, such sweeping provisions produce limitless scope for the government to change the law at will and the recent doubling of the Immigration Health Surcharge from £200 to £400 per year under the Immigration (Health Charge) (Amendment) Order 2018 very clearly exposes the weak parliamentary scrutiny under affirmative procedure for a statutory instrument to pass both Houses of Parliament. Indeed, the whole idea of an Immigration Health Surcharge is pretty dubious because migrants who are being forced to pay these charges are already paying large sums of money in tax and national insurance contributions.
Social security co-ordination is addressed in Part 2 of the Bill and clause 5 and schedules 2 and 3 will enable the government (and/or where appropriate, a devolved authority) to modify by regulations retained EU legislation on social security co-ordination. Clause 5 is also a Henry VIII power. The government’s rationale behind this power is that it is seen as necessary to enable the delivery of a range of options from Brexit day, particularly to implement its preferred approach to social security co-ordination in a no deal/hard Brexit situation. Yet again, any regulations in that regard would be subject to the affirmative procedure. But again according to ILPA:
any modification of the passporting of social security contributions, owing to the drastic effects that such modifications would have, should only be able to take place through primary legislation.
ILPA finds that the power sought by “clause 5(1) would threaten to remove full pension rights from possibly hundreds of thousands of EU citizens and British citizens alike who have contributed to both the UK and the EU by working in the UK and other EU Member States.” The Bill fails to provide a full and clear plan to co-ordinate “social security provision for new arrivals on and after the end of the transition period on 31 December 2020 (or after 29 March 2019 if there is no Withdrawal Agreement).” Therefore, an amendment is proposed to completely remove clause 5 from the Bill.
Amid all the ongoing chaos, the government still insists that in the event of a no deal Brexit the rights of EU citizens in the UK will be protected because “EU citizens are our friends, our neighbours, our colleagues, and we want them to stay”. In a huge victory for campaigners for EU citizens’ rights, the government has finally abandoned its plans to charge £65 for the EU Settlement scheme but it is far from friendly or neighbourly to require all the 3.5 million+ EU citizens present in the UK to comply with the onerous terms of the scheme to preserve residence rights they are already in possession of in any event. The strict nature of the scheme warrants that even those who have been living in the UK for more than 50 years must adhere to it or face being removed from the UK.
For example, Mrs Elly Wright came to the UK in 1967 from the Netherlands and worked for the NHS and local authorities for long years and paid her share of tax. Her late husband was British. However, she kept her Dutch passport because the acquisition of British citizenship would disentitle her from retaining her Dutch nationality. Apart from the indignity of having to make the application, Mrs Wright complains that the app for the EU Settlement Scheme is not compatible with apple devices and she is also very worried that no letter or residence permit is provided to successful applicants (and because the process is purely digital in nature). Mrs Wright thinks that many old people are terrified of the EU Settlement Scheme because they do not have the necessary technology related skills to manage the online process.
There is no requirement to actually hold a document certifying permanent residence to be in possession of the rights conferred by the Citizens’ Directive. For example, the CJEU held in Wolzenburg (C-123/08, EU:C:2009:616) that a person can qualify for and possess permanent residence even if he did not hold the formal documentation mentioned in Chapter III of the Directive. The document does no more than certify that the individual has acquired permanent residence.
The document itself does not produce the effect of conferring any status on the individual and in Wolzenburg the CJEU confirmed at paras 50-51 that article 19 of the Directive does not require EU citizens who have acquired a right of permanent residence to hold a residence permit of indefinite duration, that there is no obligation to apply for permanent residence and the “document has only declaratory and probative force but does not give rise to any right.” The same point was made at para 120 by Advocate General Kokott in Teixeira (C-480/08, EU:C:2009:642).
The scheme has opened today and will be fully functional by 30 March 2019. Campaigners such as Professor Tanja Bueltmann complain that all this is just another Windrush in the making. Equally, applicants such as Jakub Krupa are complaining that the IT systems deployed do not recognise their longstanding residence in the UK and demand additional documents for the processing of applications. Significantly, an important report by British Future, Getting it right from the start: Securing the future of EU citizens in the UK, makes the important point that even a five per cent rejection rate will translate into 175,000 people living in the without lawful status. British Future warns that the ongoing experiments with the EU Settlement Scheme risk triggering a “new Windrush scandal”.
The think-tank warned that EU nationals might be denied healthcare and be stopped from working because of confusion created by the Home Office. Most at risk are children in care and stay-at-home parents who could find it hard to prove their residence rights. Greater investment in the scheme is being urged and British Future called for greater transparency in procedures and proposed that naturalisation applications for British citizenship from EU nationals should cost only £300 rather than the £1,330 which is presently charged. Since the government has axed the £65 fee it will be interesting to see whether it will succumb to pressure from campaigners and reduce the fee for British citizenship from EU nationals.
In Dias (C-325/09, EU:C:2011:498), the CJEU held at para 49 that the declaratory character of residence permits means that those permits merely certify that a right already exists. It went on to hold at para 57 that periods of residence after 30 April 2006 take “effect from the actual moment at which they are completed.” The Directive creates rights rather than the documents issued by member states and perhaps just like the £65 fee the whole EU Settlement Scheme should be scrapped altogether. Waiving the £65 fee does not erase the overall hostility of the immigration environment.
In addition to the above amendments, schedule 1 of the Bill seeks to bring about numerous other changes and Part 2 of schedule 1 addresses retained direct EU legislation. In particular, paragraph 4 addresses Regulation (EU) No. 492/2011 relating to freedom of movement for workers within the Union (“the Workers Regulation”) which provides for the free movement of workers in various ways, including through rights to residency, equal treatment and access to education. In that regard, paragraph 4(1) revokes article 1 of the Workers Regulation, a provision specific to immigration providing a right to be in the territory of another member state to pursue employment.
Moreover, paragraph 4(2) ensures that other non-immigration specific aspects of the Workers Regulation do not have ongoing effects for UK immigration law but continue to have effect for other purposes. This change will stop people from claiming that they still have a right of residence in the UK within the meaning of article 10 of the Workers Regulation on the basis that their child is in education here. However, the government’s position is that this change does not stop the resident child of an EU national with legal residence and employment in the UK from being able invoke article 10 to access UK education on the same conditions as UK nationals.
Furthermore, paragraph 5 of schedule 1 revokes (i) Council Regulation (EC) No 1683/95 laying down a uniform format for visas, (ii) Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by member states to persons holding travel documents unrecognised by the member state drawing up the form, and (iii) Council Regulation (EC) No 377/2004 on the creation of an immigration liaison officers (ILO) network. The reason behind these changes is that after Brexit the UK will no longer have to meet the same requirements for issuing these documents as the EU and so these measures are unnecessary and are being revoked. Council Regulation (EC) No 377/2004 enabled the member states to send ILOs to non-EU countries for the purpose of establishing and maintaining contacts with the relevant authorities of that state, with a view to halting illegal immigration. After Brexit, the UK will no longer participate in the ILO network operated under the regulation which is therefore being revoked.
Paragraph 6 of schedule 1 revokes Commission Decision of 8 June 1988 setting up a prior communication and consultation procedure on migration policies in relation to non-member countries (88/384/EEC) and it also revokes Council Decision of 26 May 1997 on the exchange of information concerning assistance for the voluntary repatriation of non-EEA nationals (97/340/JHA). This type of information will no longer be required of the UK after Brexit. Other revocations under paragraph 6 include:
Council Decision of 23 February 2004 on the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of non-EEA nationals (2004/191/EC). After Brexit, the UK will no longer be able to request financial re-payment from EU member states, for persons who are being removed and so this measure is being revoked.
Council Decision of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member states of non-EEA nationals who are subjects of individual removal orders (2004/573/EC). This measure aims to set out the procedures for coordinating joint removal operations by air of non-EU nationals. After Brexit, the UK will no longer be able to operate this Decision unilaterally and so this measure is being revoked.
Council Decision of 16 March 2005 establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services (2005/267/EC) involves a secure web-based Information and Coordination Network for the exchange of information on irregular migration, illegal entry and immigration and the return of illegal residents. After Brexit, the UK will no longer have access to this EU web-based network.
Commission Decision of 29 September 2005 on the format for the report on the activities of immigration liaison officer networks and on the situation in the host country in matters relating to illegal immigration (2005/687/EC) which annexes a template for ILOs to use when reporting on the activities on illegal migration in host countries outside the EU. After Brexit, the UK will not participate in the ILO network and will therefore not have to provide reports on illegal migration in this format.
Council Decision of 14 May 2008 establishing a European Migration Network (EMN) (2008/381/EC). This measure establishes the EMN network, which aims to provide up-to-date, objective and comparable information on migration and asylum, with a view to supporting policymaking in the EU in these areas. After Brexit, this measure will no longer operate in domestic law because the UK will no longer participate in the EMN network as a member state.
Finding themselves trapped as minorities in countries such as Iran, Iraq, Syria and Turkey, the Kurds are dubbed “a people without a country” and comprise “the world’s largest stateless nation”. While answering the question whether a failed asylum seeker of Kurdish ethnicity will be at risk of persecution on return to Iran, the Upper Tribunal found in this country guidance decision that Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment. The appellant, HB, was of Kurdish ethnicity and he was a citizen of Iran. Born in 1988 in Betoosh, Sardasht, Iran, he was an only child whose parents (a shepherd and a housewife) disappeared in 1994 because of involvement in Kurdish nationalism. HB suffered burns injuries during a fire at his family home at the same time and his uncle took him to Iraq where he grew up undocumented. In Iraq, he was bullied and harassed by villagers because of a disability in his legs and his Iranian origins. Upon reaching adulthood he returned to Iran. With his uncle’s help, he raised money to pay for his journey abroad by selling his family land. He illegally exited Iran in September 2015 and arrived in the UK in early July 2016. He claimed that he was unable to live in Iraq undocumented and face discrimination without citizenship and residence rights.
Equally, he was unable to return to Iran to live because of his family’s claimed involvement with Kurdish separatists. HB’s protection claim was refused in December 2016. The FTTJ Nicholls dismissed his appeal in January 2017 but then UTJ Storey set the decision aside for it to be remade in the Upper Tribunal. Hitherto there had been 19 country guidance cases on Iran (from 2002 to 2016) and the present case became the twentieth case of this nature. In determining the appeal, the Upper Tribunal considered expert evidence from two expert witnesses, Ms Anna Enayat and Professor Emile Joffé. In imparting guidance, the Iranian regime’s poor record on human rights remained the tribunal’s point of departure. The Report of the UN Special Rapporteur on the situation of human rights in Iran to the Human Rights Council (17 March 2017) is very clear that the theocratic regime in Iran habitually abuses human rights and torture and other forms of cruel, inhuman and degrading treatment are prevalent. But the regime rejected all of the 20 recommendations on these issues made during the 2014 universal periodic review.
Kurds in Iran
Iran is a country of more than 81 million people of which at least 8 million are Kurdish making it the second largest Kurdish population outside Turkey and larger than the combined Kurdish population of Iraq and Syria. Iran reportedly executed 750 people in 2016 many of who were of Kurdish ethnicity. The Special Rapporteur observed that Kurdish political prisoners represent almost half of the total number of political prisoners in the country and executions are carried out for the crime of moharebeh (waging war against god and the state) and membership of a Kurdish political party. Speaking the Kurdish language is not banned in Iran. But the state prohibits schools from teaching it and anyone who campaigns for greater Kurdish autonomy is likely to get into trouble because the state uses security, media and other types of laws to arrest and prosecute Kurds for exercising their rights to freedom of expression and association.
Most at risk are the Kurdish kulbaran (back carriers) who are faced with blind and indiscriminate use of lethal force. They are seen as smugglers by the regime and in 2016 Iranian border security forces reportedly killed 51 kulbaran and injured 71 others, twice the casualties in 2015. Poor prospects of employment in Iran’s Kurdish regions mean that the kulbaran can only survive by taking goods across the border. They are also know as kolber, a term referring to workers who either on their own back or on horseback transport foreign goods to and from Iran by making journeys in and out of Iran’s border territories to the border areas of neighbouring Kurdish regions in Iraq and Turkey. Their plight has been widely documented. For example, in addition to the Special Rapporteur’s report, the Kurdistan Human Rights Network (KHRN) published a report which states that the Iranian state applies a shoot-to-kill policy to the kulbaran or kolber who are classified as “smugglers”. Unsurprisingly, in Iran’s Kurdish community there is widespread resentment at the soaring number of executions of Kurds and the endemic use of torture and related techniques by the Iranian regime.
Opposition to government policies has lead to the complete banning of Kurdish-language newspapers, journals, books, publishers, journalists and writers. Kurdish NGOs are routinely oppressed and the government does not allow Kurds to register most Kurdish names for their children in official registries. The expression of dissenting views and political activism are not capital offences in Iran but the case of Shahram Ahmadi demonstrates that a person can be sentenced to death for being a Kurd and a Sunni. Executions aside, life imprisonment is the norm for anyone who is suspected of Kurdish nationalism or political activism or dissent.
The country guidance in SSH and HR (illegal exit: failed asylum seeker) Iran CG  UKUT 308 (IAC), concerned Kurdish Iranians. The Upper Tribunal made two important observations in that case. First, an Iranian male whose return to Iran is sought but who does not possess an passport will be returnable on a laissez passer, which can be obtained by him from the Iranian Embassy on proof of identity and nationality. Second, an Iranian male in whom the Iranian state shows no adverse interest does not face a real risk of persecution/breach of his Article 3 rights on return to Iran on account of having left Iran illegally and/or being a failed asylum seeker. No such risk exists at the time of questioning on return to Iran nor after it has been established that the returnee exited illegally and is a failed asylum seeker. In particular, there is not a real risk of prosecution leading to imprisonment. SSH and HR is discussed at length here.
In the present case, the Upper Tribunal noted that there was a contradiction in SSH and HR because it was not suggested that a person would be exposed to the risk of persecution solely for being Kurdish, but that being Kurdish might be an exacerbating factor for a returnee otherwise of interest. There was agreement on the point that being Kurdish was relevant to how a returnee would be treated by the authorities. The Home Office submitted that that SSH and HR should be the “starting point” for the consideration of the country guidance issue in the instant case. Reliance placed in MY (Country Guidance cases, no fresh evidence) Eritrea  UKAIT 00158 was rejected by the Upper Tribunal because in SSH and HR the same country guidance issue arising in the instant case was not considered and the present appeal did not depend on the same or similar evidence. Overall, SSH and HR could not be taken as the point of departure because building upon it as a foundation would entail the implication that the “decision is authority on the issue of risk to Kurdish returnees as a distinct group, which it is not and does not purport to be.”
Both Anna Enayat and Professor Joffé were knowledgeable and experienced in Iranian and Middle Eastern matters and their vast expertise was recognised by courts and tribunals on numerous occasions in the past. But their views were non-binding on the tribunal. Anna Enayat opined that the Home Office Country Information and Guidance on Iran Kurds and Kurdish political groups version 2.0, July 2016 (CIG) only provides a “brief snapshot” of the situation in the Kurdish areas of Iran from 2012 and early 2016. She said that things have changed since then and Kurds removed to Iran are subjected to heightened suspicion and scrutiny. Her view was that the long war in Syria aroused a sense of national consciousness amongst Kurds. The result was that there was a resurgence of armed resistance by Iranian Kurdish groups affiliated to the PKK (Kurdistan Workers’ Party) in Turkey and Iraq.
This represented a major shift from the 1990s and the trend was supplemented by the mobilisation of the population in Iran’s Kurdish cities by the Iraqi Kurds in the abortive independence referendum in the Kurdistan Region of Iraq (KRI). Matters were made worse in July 2017 when Islamist Kurds attacked the Iranian parliament in Tehran and the Iranian security services conducted an operation in the Kurdish areas and increased security measures. However, Anna Enayat did not claim that Kurdish ethnicity automatically creates a risk of persecution or that all failed asylum seekers of Kurdish ethnicity were at such risk. Her oral evidence to the tribunal was that a Kurd who was not perceived in some way to be politically active would not necessarily be arrested. She also confirmed that her written report was clear that the targeting of civilians in Iran was not purely on the basis of Kurdish ethnicity.
Yet she was also suspicious of the adage that the Kurds are only at risk if they participate in political activity. She concurred with para 2.3.4 of the CIG that a range of activists or perceived activists, including cultural activists could be at risk by even expressing peaceful dissent or so much as speaking about Kurdish rights. Her views coincided with the observation in para 2.3.4 of the CIG that if a perceived sympathiser carries out an activity perceived to be against the regime then arbitrary arrest, detention and possible ill-treatment are likely for him and his family members. Perceived is an emphasised term because the Kurds are at particular risk of imputed political opinion if they somehow come to the adverse attention of the authorities.
On the other hand, despite sharing some of Anna Enayat’s views, Professor Joffé thought that the fact of Kurdish ethnicity creates a risk of persecution simply on the basis of membership of an ethnic group, quite apart from any specific threats created by illegal exit from Iran or the pendency of specific charges there. In his view, the discrimination against Iranian Kurds “is so severe that it amounts to persecution”. He said in his oral evidence that a real risk of persecution exists for an individual simply on the basis of being Kurdish. He said that was his inference from the evidence that he had seen and he asserted that Kurdish ethnicity alone would amount to a risk category as the term is propounded in TK (Tamils – LP updated) Sri Lanka CG  UKAIT 00049. HB sought to distance himself from the automatic nature of Professor Joffé’s expert view. But the Upper Tribunal did not agree with the diluted version of Professor Joffé’s evidence presented in HB’s skeleton argument which proposed that Kurdish ethnicity does not create a risk of persecution per se.
The Upper Tribunal rejected Professor Joffé’s evidence. It also rejected his view that he agreed with the outcome of SSH and HR was correct save that it did not generally address Iran’s present situation because of (i) the worsening security situation in parts of the country occupied predominantly by one of the many ethnic or religious minorities, and (ii) increased domestic tensions. The failure meant that the Upper Tribunal “has under-estimated the potential difficulties connected with the acquisition of laissez-passer documentation.” He also said that there is intensified repression of Kurds and that any suspicion of behaviour against the regime while abroad or prior to leaving Iran significantly diminishes a Kurdish returnee’s prospects of avoiding persecution upon return. Thus SSH and HR paid insufficient attention to these issues which became intensified by Iranian Kurdish reaction to the independence referendum in Iraqi Kurdistan.
Professor Joffé also said that the latest edition of the COI neglected such issues but the Upper Tribunal rejected the idea that SSH and HR is wrong in terms of its country guidance. First, it did not consider that his reasons provide a sufficient basis to reconsider the guidance in SSH and HR. Second, the present appellant had not argued such a point and it was not the basis upon which either party had advanced the appeal.
HB submitted that official figures show that asylum claims by Iranians in the UK dramatically increased from 3,242 claims in 2015 to 4,192 in 2016. However, the Upper Tribunal rejected the idea that a rise in asylum claims by Iranians was a corollary of more Iranians needing international protection. The spike in claims was a function of economic circumstances in Iran, or a change in destination of choice, or unknown factors in terms of the actions of people smugglers.
The numbers did not tell the story HB contended for because asylum claims by Iranians were not recorded by distributing them along the lines of ethnicity and so “little, if anything, of relevance can be deduced from the numbers in that context.” The idea that figures on voluntary returns to Iran assisted HB’s case was rejected because the Country Policy and Information note for Iran, version 4.0, December 2017 pointed out that poor economic conditions, soaring inflation and widespread unemployment deterred people from returning to Iran rather than persecution. The Upper Tribunal was quick to reject the submission that the Home Office deliberately concealed information by not providing a break up of Iranian asylum claims by ethnicity to hide the true number of claims made by Kurds rather than other Iranians. There was no bad faith by the Home Office in that regard and the government was simply trying to save the disproportionate costs of providing a full analysis of Iranian asylum claims by ethnicity. However, the overall effect of the methods employed to record information was such that nothing of evidential value could be deduced from the information regarding the numbers of asylum claimants from Iran or returnees.
Country guidance and conclusions
The Upper Tribunal refused to give any guidance on the risk of persecution where an individual is involved – online on social media networks whether in Iran itself or elsewhere – in the making, publicising or distributing critical, insulting satirical views about Islam, religious figures, the Qur’an, Iranian policies or the theocratic regime. Sizing up the situation against all the relevant issues in play, the Upper Tribunal imparted the following country guidance:
(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG  UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum seekers on account of their Kurdish ethnicity alone.
(2) Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.
(3) Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.
(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.
(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those ‘other factors’ will include the matters identified in paragraphs (6)-(9) below.
(6) A period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.
(7) Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.
(8) Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.
(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.
(10) The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.
The Upper Tribunal allowed HB’s appeal on asylum and human rights grounds with reference to Article 3 of the ECHR. It made some important observations about FTTJ Nicholls’s decision where the judge had accepted the core account of HB’s case as credible but had nevertheless dismissed the appeal because of other reasons. FTTJ Nicholls accepted that he was never involved in political activities despite being a supporter of Kurdish rights. Any dispute over how HB’s parents’ house was burnt down was resolved in his favour. The tribunal preferred the view that, rather than a Kurdish group, the Iranian authorities set the house on fire because of HB’s parents’ support for Kurdish peshmerga fighters to whom they had probably offered food and hospitality.
The Upper Tribunal also considered evidence in the form of HB’s social media profile, evidence that had not been put to FTTJ Nicholls. On Facebook he shared posts by the Democratic Party of Iranian Kurdistan (PDKI), Scotland and other Kurdish self-determination activists in Denmark. These shares were graphic in their depiction of Ayatollah Khomeini (who was shown as a dog, or with genitalia superimposed on him or being similarly demeaned) and made reference to the glory of Kurdish martyrs. Other content was such that it referred to the Iranian regime as a terrorist entity and celebrated the death of the former president of Iran Ali Akbar Rafsanjani. It was clear from AB and Others (internet activity – state of evidence)  UKUT 257 (IAC) that the Iranian authorities routinely look into returnees’ social media profiles and that they would be interrogated about their Facebook and email accounts, which would be checked upon return.
The petitioner, or claimant, Mr Collins Oji was a Nigerian national who applied for indefinite leave to remain (ILR) on 19 February 2016 along with his dependent spouse on the basis of five years residence as a highly skilled Tier 1 (General) migrant. On 3 November 2017 his application was refused principally by making reference to paragraph 322(5) of the Immigration Rules. In other words, owing to his character and conduct the decision-maker considered that it would be undesirable to allow him to remain in the UK. The refusal was predicated on the finding that in his antecedent application Mr Oji had declared different sums of income to Her Majesty’s Revenue and Customs (HMRC) and to UK Visas and Immigration (UKVI). The decision-maker also found that the earnings’ discrepancy meant that Mr Oji failed to prove his genuine earnings in the preceding 12 months with the result that he was treated as having had no earnings and hence failed to accumulate the requisite points to acquire ILR. An administrative review of the decision was refused on 6 December 2017. Upon challenge, Lord Tyre opined that paragraph 322(5) is not restricted to any certain “type” of case. But the court was equally attracted to Spencer J’s approach in R (Khan) v SSHD (Dishonesty, Tax Return, Paragraph 322(5))  UKUT 384 (discussed here) and it reduced (quashed) both the refusal of ILR and the administrative review upholding the refusal.
In refusing the application, the decision-maker relied on paragraphs 19(i) and (j) of Appendix A of the Immigration Rules which list factors that are relevant in assessing, on balance of probabilities, the genuineness of the earnings claimed by an ILR applicant. From 1 February 2015 to 31 January 2016, Mr Oji claimed earnings of £55,220 which consisted of salaried earnings and self-employed earnings. The decision-maker observed that in his Tier 1 application dated 25 January 2011 Mr Oji claimed total earnings of £56,140 (including £37,380 self-employed earnings) from 1 March 2010 to 10 January 2011. Moreover, in his application dated 29 January 2013 he had claimed total earnings of £56,331 (including £34,300 self-employed earnings from 21 January 2012 to 20 January 2013). The decision-maker observed that in 2010/11 and 2012/13 declared self-employed net profits of £5,310 and £5,350 were revised and Mr Oji subsequently declared self-employed net profits of £37,379 and £34,300 for those years.
The refusal said that he had made self-serving declarations to misrepresent his real earnings to HMRC in order to reduce his overall tax liability or that he gave false information about his earnings to UKVI in order to obtain leave to remain, or both. Relying on paragraph 322(5), the refusal said that his character/conduct made it undesirable for Mr Oji to remain in the UK. Although not mandatory, the refusal under paragraph 322(5) was deemed to be appropriate by the decision-maker in light of Mr Oji’s actions. The points scoring requirements stipulated that he needed 80 points for ILR but doubts over the genuineness of his earnings meant that he only scored 40 points and his application fell to be refused.
On 30 November 2016, Mr Oji was interviewed and the Home Office official who conducted the interview asked 37 questions. He was asked about his sources of income, the nature of his employment duties and his self-employed work, the organisation of his business, and the name and address of his accountant.
His declarations of income and any discrepancies between amounts declared to UKVI and to HMRC were not explored or raised and the interviewing official assessed Mr Oji as credible. His recommendation summary stated: “Credible based solely upon interview. Requires caseworker to place answers into context with rest of application in order to make full credibility assessment.” The refusal noted that the he had been invited to an interview, but no further reference was made to the details recorded in the “Temporary Migration Credibility Interview Template (Tier 1 General)”.
The UKVI guidance on paragraph 322(5) states that it should be applied cases involving criminality, a threat to national security, war crimes or travel bans. A criminal conviction is unnecessary for the provision to apply.
Outer House, Court of Session, Scotland
During the course of his Opinion, Lord Tyre considered a raft of authorities from England and Wales such as Sagar Arun Samant  UKAITUR JR65462016 (discussed here), Parveen and Saleem  UKAITUR JR94402016, Sandeep Kadian  UKAITUR HU117232016 and several others to conclude that while these cases turned on their own facts, he nevertheless found assistance of general principle from them. Lord Tyre did not agree with the view of the Upper Tribunal in Sandeep Kadian that “not declaring all relevant income, whilst highly regrettable, cannot properly be described as conduct such as that set out in the policy guidance.”
The Scottish court was attracted to Spencer J’s approach in Khan where he gave general guidance to avoid the mistake the Home Office and its lawyers had made, namely making the harsh finding of dishonesty without properly conducting the decision-making process. Setting out the guidance given by Spencer J in Khan in full, Lord Tyre did not associate himself with earlier cases such as Varghese and Abbasi which might have suggested that a lesser degree of inquiry was required of the Home Office in comparison to the views of Spencer J in Khan. He was also referred to the earlier authority of Ngouh  EWHC 2218 (Admin), an earlier paragraph 322(5) case with very different facts where Foskett J held that the balancing exercise required by paragraph 322(5) had not been carried out in a way that engaged with the true issues and reached a rational view. Thus, the decision-making process overall demonstrably failed to address fairly and fully the true issues. The decisions were quashed and remitted for reconsideration.
Ngouh concerned a Cameroonian national who had an otherwise distinguished army career that was blemished by an admitted sexual assault. His application for ILR was refused. Drawing attention to paragraph 120 of Ngouh – where Foskett J linked the use of by paragraph 322(5) to the spectrum of criminality and said that at the lower end the decision-maker’s reasoning would need to be focused and compelling – Lord Tyre held that:
17. … The passage emphasises that the respondent must, in such circumstances, adopt a balanced approach in determining whether it is desirable to grant ILR. It does not, however, in my opinion, cast doubt on the entitlement of the respondent to reach the view, in a particular case, that it is not desirable to grant ILR to an applicant who has deliberately submitted false information regarding his income to either HMRC or UKVI.
Mr Oji submitted that (i) on an ordinary and correct reading of paragraph 322(5) his conduct did not rationally fall within the scope of the rule because it did not meet the threshold of seriousness, (ii) the decision-maker had failed to discharge the burden of proving wrongdoing on his part, (iii) the decision was procedurally unfair because he had not been given an opportunity to respond to the allegation of wrongdoing before the decision was reached, and (iv) absenting the finding of deception against him his self-employed earnings would qualify for ILR. He argued that the rejection of the material provided in support of the ILR application was in any event inconsistent with the finding at interview that the petitioner was credible.
The government argued that (i) the decision was not unreasonable or irrational, it was based on big discrepancies in his tax declarations, (ii) his behaviour fell within the scope of paragraph 322(5) because it called into question his conduct and character, (iii) no evidence was provided to explain the discrepancy, mere assertion was insufficient, (iv) there is no absolute duty to put the matter to the applicant for comment before making a decision, given that the discrepancies were so large, (v) Ngouh was easily distinguishable as it concerned a soldier who served in Iraq and was honoured with a medal, and (vi) refusal of leave under paragraph 245CD did not stand or fall with the refusal under paragraph 322(5), the finding that the declaration of earnings in the ILR application was not genuine was freestanding, and did not depend upon any finding regarding character or conduct.
The court found that the reference at the end of paragraph 322(5) to a threat to national security does not impact the approach that must be taken to the more general notions of conduct, character or associations preceding it. Rejecting the submission that the circumstances of the present case were not capable of falling within paragraph 322(5) because they were of insufficient seriousness, Lord Tyre held that:
25. There is nothing in the wording of paragraph 322(5) itself to restrict the respondent’s discretion in this way. There is no “type” of case to which the paragraph is restricted. The reference at the end of paragraph 322(5) to a threat to national security does not, in my view, colour the approach that must be taken to the more general notions of conduct, character or associations which precede it. Viewing the matter through a Wednesbury lens, it would not, in my opinion, be appropriate for a court to hold that it is necessarily unreasonable or irrational for the respondent to decide that it is undesirable for an applicant to remain in the UK because he has deliberately submitted false information about his earnings to either HMRC, with a view to evading his income tax liability, or to UKVI, with a view to providing false information in support of his application.
The Court of Session did not think that it would be right to treat the guidance on paragraph 322(5) as restricting its scope. Guidance on “the main types of cases” that might need consideration for refusal does not preclude the possibility of there being other types of cases where paragraph 322(5) might be used. In any event, on the wording of the guidance, deliberate tax evasion involves criminality despite the fact that offenders commonly pay financial penalties rather than be prosecuted in a criminal court. But any wrongdoing cannot simply be assumed and very different considerations apply where an incorrect tax declaration is made because of carelessness or inadvertence. Refusing ILR to someone who acted carelessly would be much more difficult to justify and therefore Spencer J stressed in Khan the necessity of conducting a proper fact-finding process so as to be satisfied that there has been deliberate foul play.
A finding that a person has attempted either to evade tax or to falsely inflate his income for ILR purposes is a serious one, with potentially very grave practical consequences if it results in refusal of leave. It must be established on a balance of probabilities that an incorrect declaration has been intentionally made to HMRC or UKVI. Without a plausible explanation regarding the discrepancy, the decision-maker might reasonably conclude that there has been intentional underreporting of income to HMRC. The court explained that:
27. … The fact that the under-declaration has subsequently been corrected will not necessarily tip the balance in favour of the applicant, especially if the correction took place at or around the same time as the submission of an application for ILR. As mentioned earlier, Appendix A to the Immigration Rules gives express notice that the respondent may carry out a process of verifying previous earnings claims with declarations made to other government departments. The respondent might well form the view, in a particular case, that it was the prospect of such a verification exercise that prompted the correction, rather than a belated and unconnected realisation that an error had previously been made.
Lord Tyre rejected the analysis developed out of Foskett J’s judgment in Ngouh that the decision-maker must always conduct a two stage process of (i) deciding whether there has been undesirable conduct and then, (ii) considering whether there are positive factors that outweigh the conduct and render it desirable to grant leave to remain. The court opined that if the decision-maker has properly considered the evidence and reached a rational conclusion that there has been a fraudulent attempt to evade tax, the decision whether that is sufficient to render it undesirable for an applicant to be granted ILR is a matter for the Home Office, and is not to be called into question by the court.
Examining the above against the facts of the present case, the decision-maker set out the full details of earnings claimed in the past years in Mr Oji’s earlier applications and the underreported self-employed earnings declared to HMRC. The decision-maker noted that the onus rested on the applicant to have correctly declared his earnings. Mr Oji’s lateness in seeing any errors cast serious doubt upon his credibility and so he had intentionally misrepresented his earnings to either HMRC or UKVI. However, Lord Tyre held that:
30. In my opinion the mere fact that different amounts were declared to HMRC and to UKVI did not constitute a sufficient basis for the conclusion that the petitioner had acted dishonestly and that it was accordingly undesirable to grant him permission to remain. The letter does not contain any indication that the respondent addressed her mind to the question whether the discrepancy indicated inadvertence on the one hand or intentional wrongdoing on the other.
He further judged that:
No reason is given for the conclusion that there was a deliberate under-statement or over-statement of income in one or other of the declarations. In the circumstances of the present case, one would have expected the respondent to explain why an inference of dishonesty was to be drawn despite not having afforded the petitioner an opportunity to explain how it came about that he declared such small amounts of self-employed income by comparison with the amounts declared to UKVI and subsequently to HMRC when the amendments were submitted.
The refusal of ILR had to be reduced as it was unreasonable according to Wednesbury principles. Although the decision-maker was not bound to any explanation as plausible or satisfactory, the difficulty with the decision letter was that failed to demonstrate that any consideration was given to the finding of credibility in interview at which the discrepancy was not put to Mr Oji. All this reinforced the need for a balanced assessment in the light of all of the evidence, including any explanation offered by Mr Oji. Overall, without any assessment of whether there was evidence of deliberate misdeclaration as opposed to innocent error, the refusals could not stand.
Similarly, the refusal under paragraph 245CD that Mr Oji had insufficient points to qualify for ILR was unsustainable because it was flawed because of the failure to consider whether the discrepancies could be explained in a way which did not cast doubt upon the genuineness of the figures submitted in the ILR application. Overall, Lord Tyre granted the motion to reduce the refusal decision and the administrative review decision.
Significantly, Lord Tyre preferred Spencer J’s approach in Khan and remained suspicious of the approach in Varghese where the Upper Tribunal rejected the submission that any procedural unfairness occurred as a consequence of no prior consultation with the applicant. But he also made it plain that the national security aspect of paragraph 322(5) does not cancel out the conduct, character or associations dimensions of the rule.
In its recent review of paragraph 322(5) cases, the Home Office is adamant that decision-makers acted quite reasonably in approaching Tier 1 (General) cases by refusing ILR where there were significant discrepancies and self-serving and dishonest declarations were made. The review asserted that paragraph 322(5) cases are not generally “minor tax errors” matters and in 88 per cent of cases the discrepancies between the total earnings declared to the UKVI and those shown by HMRC records were well over £10,000.
However, the present case provides a different perspective because the discrepancies in Mr Oji’s records were greater than £30,000. But in light of the overall circumstances and the manner in which the decision-making was delivered left a lot to be desired and Lord Tyre did not hesitate to grant relief to Mr Oji and his dependent wife Mrs Oji. The outcome of the case shows the importance of maintaining fair and effective procedures in immigration decision making without which the Home Office is likely to lose even open and shut cases.