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Kousar & Ors v Secretary of State for the Home Department [2018] EWCA Civ 2462 (07 November 2018)

Giving guidance on the scope of the earlier Basnet [2012] UKUT 113 (IAC) principle concerning the rejection of applications as invalid, the Court of Appeal has unanimously held that the rejection of an application owing to the applicant’s failure to tick the right box was lawful and the evidential flexibility policy did not apply. Irwin LJ said that the FTT had no jurisdiction to hear an appeal against an application in the Tier 1 (Entrepreneur) category of the Points-Based System (PBS) that had been declared invalid where the applicant had not been able to show that the necessary steps were taken to authorise and effect payment of the application fee because of a failure to tick the correct box authorising the Home Office to take payment. The court took the opportunity to reiterate that the PBS is a deliberately complex set of rules. Significantly, the system is intentionally bureaucratic with the result that “the process of acquiring or demonstrating the acquisition of the relevant points is painstaking.” Prior to attempting to switch into the Tier 1 (Entrepreneur) category, Mrs Shabana Kousar entered the UK as a Tier 4 (General) student in December 2010 and renewed her student leave for a further two years until August 2014. Upon making her last minute Tier 1 (Entrepreneur) application, Mrs Kousar correctly completed the form but she overlooked the essential requirement that she needed to tick the box giving authority for the £1,093 fee to be paid.

No dispute arose about her ability to pay the fee or regarding the fact that her dependant husband and two children’s linked applications did not suffer from this defect. Whereas the last minute Tier 1 (Entrepreneur) application was made on 14 August 2014 – a day prior to the expiry of Kousar’s student leave – the Home Office for once acted dutifully and corresponded with her on 15 August 2014 advising her that the requirements of the relevant fees regulations had not been met and therefore her application was invalid. The clearance of her family’s fees did not matter and the sum of £3,279 was refunded into her account since the main applicant’s application had not been charged owing to the failure to tick the right box. A fresh application, which was refused on the merits, was validly made after Kousar’s leave had run out. She also unsuccessfully challenged the first refusal by way of judicial review and the UT found that she had no right of appeal and that her application was not validly made but that the refusal of the second application on the merits was arguably not unlawful. The judicial review claim was eventually struck out in January 2016 but in December 2014 Kousar had also quietly filed an appeal against the first refusal to the FTT.

Tribunal Proceedings

FTTJ Lewis heard the appeal in October 2015 and Kousar’s representatives failed to inform him that UTJ Rintoul had already determined in the course of judicial review proceedings that the refusal of the first application did not attract a right of appeal.

Significantly, six months in advance the tribunal gave directions for the Home Office to provide evidence of steps taken to access the fee from Kousar’s bank account. Failure to comply with these directions led the HOPO to concede that he was not in a position to identify any evidence or otherwise make any other argument to overcome the evidential burden resting on the Home Office identified in Basnet. Therefore FTTJ Lewis found that a valid fee was submitted along with the in-time applications, which in his view attracted a right of appeal. He disagreed with the second refusal that she had provided no evidence that she had been continuously engaged in business activity or met the requirements of the Immigration Rules under paragraph 41-SD(e)(iii)(1) of Appendix A. He allowed the appeal in light of the oral evidence.

However, the UT overturned the FTT’s decision because the first application was not an “immigration decision” under section 82(2) of the Nationality, Immigration and Asylum Act 2002 and therefore there had been no right of appeal to the FTT. Moreover, it held that was no right of appeal arose in relation to the second application because it had been made when K did not have leave to remain. UTJ Hanbury was critical of Mrs Kousar’s representatives since they failed to disclose to the FTT that she had been unsuccessful in an earlier application for judicial review where it was held that there was no jurisdiction for a statutory appeal. Applying Ved and Another (Appealable Decisions: Permission Application: Basnet) [2014] UKUT 150 (IAC), the approach and principles developed by the UT in Basnet depended on there being “an appealable immigration decision”.

The Appeal

UTJ Hanbury’s decision was appealed further on “discursive” grounds and three issues needed to be addressed. First, whether the rejection of the original Tier 1 (Entrepreneur) application for further leave to remain was reasonable, fair, rational and/or proportionate, in light of the evidence and the consequential effects on Kousar’s rights. Second, whether she should have benefited from the Basnet principle – unfairness of treatment and the postal application – in line with the evidential flexibility policy under paragraph 245AA of the Immigration Rules. Third, whether in the context of the present case, as distinguished from other cases relied on by the Home Office, the facts and context showed that Kousar had been treated unfairly.

The Home Office relied on the UT’s decision. The first application was invalid and not an immigration decision. The second was out of time and generated no right of appeal. Basnet failed to bite and the complaint on evidential flexibility was not sustainable in light of Mudiyanselage [2018] EWCA Civ 65 which demonstrated the wafer thin extent and effect of the concept in any event.

An important consideration in the processing of immigration applications is that the “tick in the box” is much more than just a mere formality because in reality it represents the applicant’s necessary authority to the Home Office’s “commercial partner” who is provided the detached financial pages of applications in order to process payment separately from consideration of the merits of an application. Omitting to tick the box is not triviality. Guidance notes and the application form itself stress the importance of ticking the box.

The Court of Appeal

Lindblom, Baker and Irwin LJJ remained unconvinced on the merits of any aspect of the appeal and therefore dismissed it in its entirety. Giving the only judgment, Irwin LJ gave guidance on the reasonableness, fairness and proportionality of the rejection of the original application. He further addressed the present status of Basnet and evidential flexibility. The court’s point of departure remained that the Home Office could not be stopped from taking a jurisdictional point because it had not been taken in the FTT.

Overall, tribunals are creatures of statute and so there either is or is not jurisdiction before them and it cannot simply be created by consent or waiver of a point, let alone a failure by the respondent Home Office to take the point before the FTT. Irwin LJ explained that it was uncontroversial that the PBS is “detailed, objective and bureaucratic” and it thus seeks “to reduce the exercise of discretion” because “the system promotes clarity over flexibility.”

(i) Fairness, Reasonableness, Proportionality

Insofar as the fairness, reasonableness and proportionality of the rejection and invalidity of the original application for leave to remain were concerned, Irwin LJ held that Kousar had failed to give authority to transfer the relevant fee in the form specified. He also agreed with the Home Office that such specification was necessary since the financial pages of the form relating to the fee must be sent to a “commercial partner” for processing. In Mudiyanselage it was Underhill LJ’s view that authorities such as Mandalia [2015] UKSC 59 leave no doubt at all that “occasional harsh outcomes are a price that has to be paid for the perceived advantages of the PBS process” and thus it was crucial to remember that the onus is upon applicants to ensure that the full requirements of the PBS are diligently discharged.

While the complexity of the PBS is “regrettable” it is nevertheless true that “a good deal of care and attention to detail” will usually make “it possible to get it right.” Observing that trained officials, who are not lawyers, process very large volumes of PBS applications, Irwin LJ held that:

39. … Given that fairly large sums of money are involved, I do not find it at all surprising that there is a clear and specific procedure for authorisation: anything else would be a likely source of confusion and risk. I see nothing unfair or disproportionate about such a process and certainly nothing unlawful about it.

40. Nor do I see that correcting such an error could possibly fall within the “evidential flexibility” policy as set out above. This is not “missing information” which is present in other parts of the form. It is a missing authority.

The eleventh hour nature of the application compounded the problem and the court commended the authorities for the speed of their reaction because they had informed Kousar of the problem with three days. Irwin LJ noted that had the application been made a week in advance of the expiry of her leave, this problem would have been rectified in time. There was nothing unfair or disproportionate about the process. There was also an obligation on Kousar’s lawyers to draw the FTT’s attention to the existence of the stayed judicial review proceedings and the extant ruling. It was likely that events would have taken a different course if that had happened. Had the HOPO been informed of the ruling, they would have also been obliged to alert the FTT to it.

(ii) Analysis of Basnet

The court held that Basnet must be considered alongside the later decision in Mitchell (Basnet Revisited) [2015] UKUT 562 (IAC). The tribunal in Basnet held that a right of appeal does not arise unless the applicant first makes a “valid application within his period of leave”. Irwin LJ noted that even in Basnet the “evidential burden” only shifted since clear evidence existed that payment had been authorised and the funds were available but that crucially the Home Office system destroyed the evidence which would corroborate or contradict that the payment had been authorised. It was only on those clear facts that the tribunal declined to “assume that processing is infallible” and therefore decided that the application was valid. Afterwards, the Home Office altered its system of record-keeping to retain the copy forms for eighteen months. The overall context led Irwin LJ to reason that:

49. In my view, the approach of the Upper Tribunal in Mitchell (Basnet Revisited) was entirely correct. It is only when an Appellant can demonstrate that he or she has taken the necessary steps to authorise and effect payment that it falls to the Secretary of State to show, by further evidence, that the application was nevertheless invalid on the ground that the application fee was not “paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes”, as Rule 34A stipulates.

In the present case, Kousar could not demonstrate that she had met all the above criteria because she had not authorised payment. It was possible for her to do so and if she had authorised payment then it would have been effective because she had sufficient funds at her disposal. Irwin LJ reiterated the point that “if the error had been made earlier, it could have been corrected” but that since “it was all done at the very last minute” the application was invalid; it attracted no right of appeal and the FTT had no jurisdiction to hear an appeal.

(iii) Evidential Flexibility

Evidential flexibility also failed to save the day because the present case did not involve missing information; for example, a missing document in a sequence of bank statements or something similar. Since it concerned a missing authorisation, it was clear from the authority of Mudiyanselage at paragraph 54 that there is no longer a general policy to allow correction of minor errors because evidential flexibility will only apply in the particular cases provided for by paragraph 245AA.

Comment

This judgment shows that applicants must ensure that payment is properly authorised because any excuses in that regard are unlikely to save them from the fate that befell Mrs Kousar and her family. It is difficult to disagree with the Court of Appeal’s view that payment can only be made if an applicant has authorised it. The fact that the fee is charged by a third party organisation partnering with the Home Office also stacked things up against the appellant in this case.

Making the application at the very last minute sealed the fate of this family and it is worth taking Irwin LJ’s free advice that the best thing to do is to apply a little bit in advance of the expiry of one’s leave rather than on the last day. It is always a good idea to be very clear and precise in completing the payment page because devastating consequences can arise by providing the wrong details or failing to provide authority for the fee to be paid. If an applicant has instructed solicitors, then surely the buck must stop with them because it is pretty darn negligent not to spot that the authority for payment to be made has not been ticked off. Rather than being sorry, it is best to be safe and tick all the right boxes.

This judgment involved the rigid and bureaucratic PBS, which erases any discretion and permits occasional harsh outcomes because such sacrifices must be made in exchange for the advantages of an efficient system. Despite the extremely harsh outcome in the present case, it is very hard to fault the court’s approach. Notably, most application forms clearly advise applicants “if no fee is ticked we cannot take a payment and your application will be rejected as invalid.” Therefore, the principle in this case must surely apply all across the board. One way to get past this problem is to make an online application so that the fee can be paid in real time saving the need for a payment authority box to be ticked.

Overall, in the crucial guidance imparted in this judgment, the Court of Appeal makes it very clear indeed that nothing short of a strict liability rule applies to correctly filling out the payment details and authorising payment to be taken. Therefore, if you fail to ensure that the box is ticked, then it is your problem and not the problem of the Home Office or the courts. One thing is for sure. Ticking the right box and making an early application are simple and easy things to do rather than litigating the omission in a multiplicity of venues.

Anyone can make a mistake. Indeed, as the case of Professor Mariana Mazzucat rather vividly demonstrates just a simple mistake such as making “4” look like “9” in the credit card details can produce unexpected and harsh consequences for even one of the world’s leading economists. So it is probably a safe bet to get all your numbers straight by being extremely accurate, diligent and sharp when completing and submitting your application.

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AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234 (12 October 2018)

The Court of Appeal has held that those alleging that they are stateless need to prove their case on the balance of probabilities. But if such persons are for good reason unable to produce documents or apply for nationality in the state with which they were most closely connected, the Home Secretary would make the necessary enquiries. Comparatively speaking, in refugee cases a different and lower standard of proof is appropriate. A Guinean national, AS clandestinely entered the UK on someone else’s passport and claimed asylum on the basis that he had opposed the Guinean government. He soon descended into drug abuse and resorted to crime to feed his habit and was convicted of robbery and theft in the UK. His asylum application was refused because it was considered that despite his opposition to the government, he was not at real risk of persecution upon return to Guinea. A deportation order was made and he asserted that even though he had been born and brought up in Guinea, he had never held any identity documents or a passport. He claimed to be stateless and the Guinean embassy refused to issue him an emergency travel document because embassy officials could not verify his identity. FFTJ Talbot concluded that AS had made no real attempt to establish his nationality. He had not contacted his family, the college where he studied, the Guinean birth registration authority or any agency for assistance.

In the Upper Tribunal, AS argued that FFTJ Talbot erred by imposing too high an evidential burden upon him and ought to have approached the appeal on the basis that he only had to establish a reasonable degree of likelihood or a real risk that he was stateless. He also complained that since the Guinean embassy did not provide him with an ETD, this key point alone established that he was stateless. The onus was not upon him to do more and FFTJ Talbot had set the bar too high by wrongly imposing upon him an obligation to establish that he was stateless on the balance of probabilities. He also contended that a person’s statelessness is capable of amounting to an exceptional circumstance for the purposes of the Immigration Rules or is at least capable of having a material bearing on whether exceptional circumstances exist. However, the Upper Tribunal (Ockelton VP and UTJ Blum) remained unpersuaded and held that the question whether a person is stateless for the purposes of the Immigration Rules can only be determined by reference to the meaning of that term in the Convention Relating to the Status of Stateless Persons 1954

The fact that the Convention is silent on the burden or standard of proof that a person is stateless says nothing about how an application for a determination whether a person is stateless is to be assessed. Even though the Handbook gives guidance that the lower standard of proof should be applied, this guidance is merely advisory. The Upper Tribunal held that by contrast, the question whether a person is stateless raises similar issues to when someone asserts he is unable to obtain documents establishing nationality or enabling return to a state, this question must be answered on the balance of probabilities. The appeal was therefore dismissed. The Upper Tribunal said if it was wrong on the applicable standard of proof, it was still satisfied that any error by FTTJ Talbot could not have made a material difference to the exercise of discretion under paragraph 390A of the Immigration Rules. It therefore dismissed the appeal.

The Court of Appeal

UNHCR intervened in these proceedings. AS relied on two grounds of appeal, namely that (i) the tribunal misdirected itself in holding that the onus was on him to prove that he was stateless on the balance of probabilities, and (ii) the tribunal erred in law in finding that, if the he was stateless, his predicament could make no material difference to the assessment of exceptional circumstances under paragraph 390A of the Immigration Rules. However, Lord Kitchin and McCombe and Lindblom LJJ dismissed the appeal on both grounds.

Standard of Proof

AS and UNHCR’s point of departure was that guidance issued in the Handbook requires that parties should (a) apply a shared burden of proof, and (b) adopt the same standard of proof as that applied in refugee cases, such that statelessness must be established to a reasonable degree. The submission’s rationale was twofold. It stressed, first of all, the fundamental importance of the substantive rights conferred on stateless persons by the 1954 Convention and the severe consequences of incorrectly rejecting an application for statelessness. Secondly, it also concerned the recognition of the practical difficulties inherent in proving statelessness. It was argued that these reasons are one and the same as those that give steer to the standard and burden of proof in refugee cases. So no policy basis existed for setting the bar to protection under the 1954 Convention higher than that under the Refugee Convention 1951.

Seven sub-grounds were developed out of the above analysis. Firstly, it was said that as an international treaty, the 1954 Convention must have an autonomous and international meaning because diverging interpretations would frustrate a uniformity of approach. Secondly, the point was made that the 1954 Convention must be interpreted in the light of its human rights and humanitarian objectives. Thirdly, it was said that the 1954 Convention contemplates that any individual person is either stateless or possesses the nationality of a nation state. Fourthly, a person seeking to establish statelessness is faced with the difficulty of trying to prove a negative, i.e. prove that he is not a national of any state. Fifthly, it was appropriate to consider the practice of other states in interpreting and applying the 1954 Convention.

Sixthly, jurisprudence dealing with the standard of proof in refugee cases was unhelpful because it was decided without reference to or consideration of the 1954 Convention and its objects and purposes. Seventhly, it was also the case that the Home Office’s own statelessness guidance was unambiguous that “where the available information is lacking or inconclusive, the caseworker must assist the applicant by undertaking relevant research and, if necessary, making enquiries with the relevant authorities and organisations”. Therefore, it was argued that the UK recognised the importance of a shared burden which alone pointed to a lower standard of proof than the balance of probabilities. Against the foregoing, the Home Office simply stated that the tribunal was correct in its approach.

Analysis

Notably, article 1(1) of the 1954 Convention defines a “stateless person” as one “who is not considered a national by any state under the operation if its law” and paragraph 401 of the Immigration Rules adopts this definition. In Adan [2000] UKHL 67, guidance issued by UNHCR concerning the application of the Refugee Convention was seen as having “high persuasive authority” but nonetheless “much relied on by domestic courts and tribunals”. Similarly, in the case of Robinson [1997] EWCA Civ 3090 the same guidance was also dubbed “particularly helpful as a guide to what is the international understanding of the Convention obligations, as worked out in practice”. Moreover, “law” in article 1(1) is to be read broadly to include, not just legislation, but also customary practice. Furthermore, in Pham [2015] UKSC 19 (discussed here), considering this aspect of the guidance the Supreme Court expressed some concern that parts of it were not easy to reconcile with the words of article 1 itself. Since the executive did not question authority of the guidance, the court considered it appropriate to take the guidance into account.

Lord Kitchin found that the Upper Tribunal was right to according considerable weight to the guidance and to treat it as advisory. He unreservedly accepted the UNHCR’s submission that the 1954 Convention must be interpreted in light of its objectives and the consequences of an incorrect assessment of whether a person is or is not stateless may be serious. Yet his Lordship took the view that both the issue needed adjudication and the steps that a person needs to take in order to establish statelessness are broadly very distinct from those that arise in relation to seeking recognition of refugee status. As he said:

46. … The steps necessary to establish statelessness will usually be steps that an applicant can readily take without any risk of harm. The applicant can gather together all reasonably available evidence about his or her identity and residence in the state in issue. Further, the applicant may make an application to the embassy or other representatives of that state for formal recognition of his or her status and may request the necessary documents to enable his or her return.

Someone who undertook all reasonable efforts to put their case evidentially and was refused can put his case to the tribunal. Those unable to take the necessary steps for good reason will, pursuant to official policy, be assisted by the Home Office in researching their matters and making the necessary enquiries with the relevant authorities. Therefore, unnecessary speculation as to whether someone is or is not stateless was pointless that person’s status is ascertainable. Those seeking to establish refugee status are in a different situation because such a person will generally find it very difficult to establish anything beyond a reasonable degree of likelihood that persecution will occur upon return. Indeed, a mistake in that regard results in very severe consequences.

Jurisprudence and Outcome

Stemming from Valentina Bradshaw [1994] Imm Ar 359, a series of decisions concerning statelessness and the closely related concept of inability to return confirmed the validity of the court’s analysis. Bradshaw, a Soviet citizen, had been granted indefinite leave to remain using fraudulent misrepresentations but asserted that she was stateless and so could not be removed. It was held that she had failed to establish that she was stateless and that before she could be said to be stateless within the meaning of article 1 of the 1954 Convention, she would have had to apply to those states which might consider her to be and might accept her as a national, and that she had not done. Later in Revenko [2000] EWCA Civ 500, the so-called the Bradshaw principle was referred to without criticism and it was applied, with slight qualification, in Tewolde [2004] EWHC 162 and YL (Nationality, Statelessness, Eritrea, Ethiopia) [2003] UKIAT 00016.

In MA (Ethiopia) [2009] EWCA Civ 289, an Ethiopian of Eritrean origin claimed a real risk of persecution if were returned to Ethiopia. But it turned out that she would not suffer persecution if the Ethiopian authorities were prepared to allow her to return. The issue before the court was whether the Home Office could rely upon the findings the tribunal had made about the prospects of the appellant being authorised to return, and whether the tribunal had applied the right test when considering that question. Speaking unanimously for the Court of Appeal, Elias LJ rejected the submission that the tribunal simply had to determine this question to the usual standard of proof. The question needed to be put to the test and the court saw no reason why the appellant should not herself make a formal application to the embassy to try to obtain the relevant documents. According to the court:

49. … If she were refused, or she came up against a brick wall and there was a failure to respond to the request within a reasonable period such that a refusal could properly be inferred, the issue would arise why she had been refused. Again, reasons might be given for the refusal.

Elias LJ stressed that it was unnecessary for the tribunal to speculate about the embassy’s likely response. Equally, reliance on expert evidence designed to assist the tribunal to speculate in a more informed manner about that question was also unnecessary. Prior to claiming the protection of a surrogate state, an asylum claimant must first take all possible steps to secure protection from the home state. Bradshaw confirms this point and Elias LJ held that any alternative and speculative approach produces “absurd results”.

In Nhamo [2012] EWHC 422, Sales J found that the fact the authorities of a state declined to accept that someone was its national was not determinative of the question of nationality. Although the evidence led to the conclusion that the claimant was indeed a South African national, she failed to put the matter to the test by applying for a South African passport or travel document. Bradshaw again supported the court’s conclusion.

Abdullah [2013] EWCA Civ 42 concerned an appellant who claimed to be Bidoon but the Home Office wished to return him to Saudi Arabia where he accepted he was born but would be persecuted upon return. The Upper Tribunal held that there was no reasonable likelihood that he was Bidoon. However, that there was a reasonable likelihood that he was Palestinian and not Saudi. Arguably Saudi Arabia would not admit him but that did not mean that he would be at risk of persecution if returned. The Court of Appeal held that it was for him to prove on a balance of probabilities that he was a Palestinian and for that reason unable to return to Saudi Arabia.

In RM (Sierra Leone) [2015] EWCA Civ 541, the appellant claimed Sierra Leonean nationality and resisted deportation to Nigeria on grounds of sexual orientation. The First-tier Tribunal held on the balance of probabilities that he was Nigerian and it was unlikely that he was homosexual. Subsequently, the Upper Tribunal allowed his appeal because the Home Office conceded that the appellant only needed to show that there was a reasonable likelihood that he did not come from Nigeria and did come from Sierra Leone and that he would face the persecution he feared there. The Court of Appeal took a rather different view in light of MA (Ethiopia) and Abdullah – and indeed in the absence of authority – to hold that what standard of proof applies to the question of an applicant’s nationality depends on the legal issue to which it is relevant. Whereas the lesser standard of proof applies to whether a person will suffer persecution, the standard is the balance of probabilities for questions such as the factual possibility in practice for him to be returned.

Thus, the risk of persecution in Nigeria for homosexuality did not depend on whether RM was a Nigerian national because of the tribunal’s finding that there was no reasonable likelihood that he was a homosexual. There was no evidence that in the event of onward removal to Sierra Leone he would face persecution there. Lord Kitchin therefore held that:

57. These authorities reveal a consistent line of reasoning. A person claiming to be stateless must take all reasonably practicable steps to gather together and submit all documents and other materials which evidence his or her identity and residence in the state or states in issue, and which otherwise bear upon his or her nationality. The applicant ought also to apply for nationality of the state or states with which he or she has the closest connection. Generally, these are steps that can be taken without any risk. If, in the words of Elias LJ, the applicant comes up against a brick wall, then, depending on the reasons given, the adjudicator will decide whether the applicant has established statelessness, and will do so on the balance of probabilities.

In cases where an applicant unable to take the necessary steps for good reason then the Home Office would undertake research on his behalf and make the necessary enquiries with the relevant authorities. Overall, Lord Kitchin could find no reason why the issue of statelessness could not be decided on the balance of probabilities. In comparative perspective, in refugee cases, it was necessary to evaluate what might occur in the future in another country, and whether the applicant faced a real risk of persecution there. In Lord Kitchin’s view, that is a very different kind of assessment and justifies the adoption of a different and lower standard of proof.

His Lordship was not convinced that the conventional balance of probabilities test created a material problem. Even though it was appropriate to consider the practice of other states in interpreting the 1954 Convention, such practice was not a particularly persuasive factor because fewer than 25 signatory states had statelessness procedures and only six signatory states had adopted a standard of proof lower than the balance of probabilities.

The decision-maker and both tiers of the tribunal had approached the standard of proof correctly. Overall, AS was required to establish that he was stateless on the balance of probabilities. He had failed to do so and he “had been remarkably inactive about establishing his nationality and had failed to take many of the quite straightforward steps that he could have taken.” The court did not find it necessary to rule on the second ground concerning the relevance of a finding of statelessness to the assessment called for by paragraph 390A of the Immigration Rules. Both AS and UNCHR accepted that where paragraph 399 or 399A are not engaged, the weight attaching to the public interest in deportation can only be outweighed, applying a proportionality test, by very compelling circumstances as held in Hesham Ali [2016] UKSC 60 (discussed here). Therefore, it was best to leave for another – more suitable – case the question of whether a finding of statelessness is capable of amounting to very compelling circumstances and, if so, the weight that should be attached to it.

Comment

Interestingly, Pham’s case returned to the Court of Appeal as Pham [2018] EWCA Civ 2064 where Arden, Singh and Coulson LJJ unanimously held that it is possible to deprive a person of British citizenship on the ground that it was conducive to the public good, pursuant to section 40(2) of the British Nationality Act 1981 , on the basis that he had repudiated his obligation of loyalty, even where he did not pose a current risk to national security. Obligations accompanied the right to nationality and it derived from feudal law where the obligation of the liege was to protect, and the obligation of the subject was to be faithful. After considering Rottman (C-135/08, EU:C:2010:104), the court held that the reciprocal right of citizenship meant that it is legitimate for a member state to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties which forms the bedrock of the bond of nationality.

Arden LJ said that the right to nationality was an important and weighty right which carried obligations. It was properly described as the right to have other rights, such as the right to reside in the country of residence and to consular protection. The court held that the words “conducive” in section 40 of the 1981 Act did not necessarily imply a current threat because in the case of Bouchereau (30/77, EU:C:1977:172) it was held that there may be circumstances in which past conduct alone is enough to constitute a present. This was the approach of Singh LJ in Robinson (Jamaica) [2018] EWCA Civ 85 (discussed here), a ruling being appealed to the Supreme Court. It will be interesting to learn whether AS and UNHCR will take their fight over the correct evidential threshold applicable for statelessness applications to the apex court as well. Finally, Lady Arden and Lord Kitchin were both sworn in as Justices of the Supreme Court on 1 October 2018. And Sales LJ will be

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Pathan & Islam v Secretary of State for the Home Department [2018] EWCA Civ 2103 (02 October 2018)

Fairness in official decision-making is an important virtue in public law. Dismissing the judicial review claim involving Tier 2 (General) of the points-based system (PBS), the Court of Appeal held in this case that the complaint that the claimants had not been given time to seek alternative employment after the revocation of their sponsor’s licence was properly characterised as a substantive matter rather than an issue of procedural unfairness. The court held that UTJ Allen had been quite right to hold that questions of procedural fairness were to be determined by reference to the standard of rationality. Pathan, an Indian citizen, was granted leave to enter the UK as a Tier 4 (General) student from September 2009 until December 2012. His student leave was extended in December 2010 until April 2014. He then obtained leave as a Tier 2 (General) migrant in March 2013 until mid-October 2015 to work for Submania Limited. Pathan then made an in-time application to extend his leave under the Tier 2 (General) category. But while his application was pending the Home Office revoked Submania’s sponsorship licence and then subsequently refused his Tier 2 (General) application without any prior notice that his sponsor Submania’s licence had been revoked. Administrative review of the refusal was refused and so judicial review proceedings were therefore commenced. The Home Office defended the claim and it doubted Pathan’s credibility, saying that his proposed employment was not genuine.

His wife and child’s immigration status was a function of his own entitlements. Islam, a Bangladeshi, arrived in the UK in September 2009 with Tier 4 (General) leave until mid-2011. He extended his student leave for another year and then switched into the Tier 1 (Post-Study Work) category from August 2012 to August 2014. He was then refused further leave as a Tier 1 (Entrepreneur) migrant. He exercised his right of appeal and his appeal was dismissed in July 2015. Drifting into overstayer status he applied for further leave to remain as a Tier 2 (General) migrant to work for a restaurant. His employer assigned him a valid Certificate of Sponsorship (CoS) but its sponsorship licence was revoked in April 2016 without notice to Islam whose own actions played no part in the reasoning behind the revocation. Consequently, his Tier 2 (General) application was refused in June 2016. Thereafter, an administrative review of the decision failed and judicial review proceedings were instituted and were defended. When filing the detailed grounds of defence in both Pathan and Islam’s cases the respondent Home Office served “supplementary” decision letters which were expressed in similar terms.

The Upper Tribunal

Pathan and Islam claimed that they were entitled, as a matter of fairness, to be given notice of the revocation of the sponsor’s licence and they demanded a reasonable opportunity to reorganise their affairs. Upon hearing the two linked judicial review applications, UTJ Allen distinguished Patel [2011] UKUT 211 (IAC) and held that unlike the situation for Tier 4 applicants, a person whose sponsor’s Tier 2 licence was revoked for non-compliance with the Immigration Rules is not entitled to challenge a decision not to provide him/her with a period of 60 days in which to secure an alternative sponsor. The UT found merit in the point that it may be relatively easy for a Tier 4 student to find another sponsor.

In comparison, with even a 60-day grace period a Tier 2 (General) applicant would probably be unable to find another labour market gap existing which could not be filled by a resident worker. UTJ Allen expressed sympathy with the Home Office’s position that logistical problems would arise if a 60-day grace period were to be implemented for Tier 2 applicants.

The Appeal

Pathan and Islam contended that UTJ Allen (i) applied the wrong test and erred in law in assuming the issue was whether the Home Office decision was a rational one as opposed to whether the decision was procedurally fair, (ii) erred in law in holding that there was no obligation on the Home Office to provide notification as to the revocation of their respective sponsors’ licence so as to provide an opportunity to find an alternative sponsor before refusing leave to remain in the Tier 2 (General) category, and (iii) erred in law by attaching weight to potential “logistical problems” identified by Home Office officials and in failing to give any consideration to each appellants’ particular circumstances.

The Court of Appeal

Sir Andrew McFarlane, Coulson and Singh LJJ unanimously dismissed Pathan and Islam’s appeals. Giving the leading judgment, Singh LJ shed further light on the difference between procedural fairness and substantive fairness. The court also addressed the position of Tier 4 (General) students and Tier 2 (General) workers under the points-based system (PBS).

(i) Procedural Fairness v Substantive Fairness

The Court of Appeal held that substantive fairness enables the court to ensure that a public authority acts lawfully and does not abuse its powers. However, the doctrine does not give the court a wide-ranging discretion to simply overturn the decision of a public authority where it considered it to be unfair.

Pathan and Islam argued that the result in Patel had been approved by the Court of Appeal’s decisions in EK (Ivory Coast) [2014] EWCA Civ 1517 and Raza [2016] EWCA Civ 36. The argument that the outcome in Patel was wrong was rejected in Raza but the court nevertheless found that Patel failed to assist Hammad Raza because he had overstayed. Singh LJ reminded us that only recently in Citizens UK [2018] EWCA Civ 1812 (discussed here), along with Asplin and Hickinbottom LJJ, he examined the duty of procedural fairness at common law in light of Osborn [2013] UKSC 61 which led to conclusion that the test for whether there has been procedural fairness or not is an objective question for the court to decide for itself. As Lord Reed explained in Osborn the function of the court is “not merely to review the reasonableness of the decision-maker’s judgment of what fairness required.”

Highlighting the distinction between procedural fairness and substantive fairness, in Talpada [2018] EWCA Civ 841 the court warned against generically raising “public law fairness” and Singh LJ said that practitioners must distinguish between procedural fairness and substantive fairness. Procedural fairness, or the duty to act fairly, is the new term for “natural justice” which is accompanied by the rule against bias and a need to hear the other side. In Kaur [2015] EWCA Civ 13, Lord Burnett took the view that the PBS is “prescriptive” because it is designed to achieve predictability, administrative simplicity and certainty. These virtues come at the expense of discretion and failure to earn points warrants refusal. To these principles, Singh LJ added that an alternative purpose of the PBS is to “achieve consistency of treatment as between different applicants”, something which is equally in the interests of applicants and the state.

The court also remained suspicious of Blake J’s approach in Patel where the UT had conflated “common law fairness” and “the principle of treating applicants equally”, the former expression in Singh LJ’s chosen terminology constituting “the rules of procedural fairness” or what earlier generations knew as “the rules of natural justice”. In his Lordship’s view, the problem with the approach in Patel was that it ignored the controversial status of the principle of equal treatment which on proper analysis concerns the substance of decisions and not the procedure by which they are made. In other words, it is not concerned with procedural fairness at all. Singh LJ did not find it necessary to dwell on the outcome of Patel per se. Instead, the court noted that the issue in the instant appeals revolved around whether the reasoning in Patel should be extended to the Tier 2 context.

In recognition that only in the context of procedural fairness can the court itself decide the question for itself as an objective matter, both appellants invoked the doctrine of procedural fairness and distanced themselves from substantive fairness. They therefore attacked UTJ Allen’s decision by relying on the concept of rationality. Yet despite the calculated nature of the appellants’ arguments, Singh LJ rejected their submissions because their cases were analogous with the recent case of Talpada where the court roundly rejected the complaint that a used CoS should be accepted by the decision-maker. As in the instant appeals, the scenario in Talpada had no connection at all with procedural fairness and concerned a substantive requirement of the rules which needed to be adhered to in making a relevant application.

The thrust of Talpada is that public law is not normally concerned with the substance of public decisions and the role of the courts is limited to correcting errors of law committed by public authorities and ensuring that fair procedures have been complied with. Courts will rarely substitute their own view on what the substantive decision should actually be and, unless human rights and EU law are at stake, irrationality is usually the only basis on which the judiciary can concern itself with the substance of the decision.

The reserved approach to substantive fairness in Talpada sought to maintain the important dividing line between the court’s functions and those of the executive. The terms of infringing on the executive’s territory needed to be clear. Overall, the principle of legal certainty and the need to correct abuse of power were equally important aspects of the rule of law. However, the analysis in Talpada must now need be read in light of Gallaher Group v CMA [2018] UKSC 25 where the Supreme Court held that, while the principle of equal treatment could be regarded as an aspect of rational behaviour, it was not itself a freestanding ground for judicial review. Therefore, Singh LJ held that:

70. In all the circumstances it seems to me that the essential question then becomes whether there was in the present context such unfairness as to amount to irrationality. I am unable to accept the submission that there was.

Lord Carnwath said in Gallaher that substantive unfairness “is not a distinct legal criterion” and cannot be converted into one by emphasising an “abuse of power” because such terminology “adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation.” The other Justices agreed. Overall, the approach in Gallaher undermined the reasoning in Patel because the UT relied on the principle of equal treatment in the same context as the principle of procedural fairness. Overall, it could not be accepted in Pathan and Islam’s cases that there was such manifest unfairness as to amount to irrationality.

(ii) Tier 4 and Tier 2 of the PBS

The court also imparted guidance on Tier 4 and Tier 2 as two distinct areas of the PBS. The latter enabled foreign students to come to the UK for their studies. If the Home Office revoked an educational institution’s sponsorship licence, it was understandable why a period of grace should be allowed to enable affected students to seek to pursue their studies at another UK institution. No good public interest reason existed to refuse them that opportunity.

On the other hand, the Tier 2 regime for migrant workers functioned to match a worker’s application for leave to remain with a particular vacancy in the UK in circumstances where the local labour market did not offer a suitable worker for such employment. Singh LJ found that, as a matter of law, a court cannot possibly stigmatise as being irrational the executive’s decision. As his Lordship held:

71. … In those circumstances, it is pre-eminently a political judgment on the part of the Secretary of State whether people should be able to put forward an alternative sponsor if the particular sponsor has had its licence revoked. People may reasonably disagree on whether that would be a good thing or a bad thing.

The court also pointed out that guidance available to applicants gave them fair notice of the regime that would apply to them. Singh LJ found that the relevant guidance was unambiguous that migrants’ applications would be refused in the event of withdrawal of their sponsor’s licence. His view was that applicants were able to leave the UK, so as to avoid the potential consequences of overstaying, and apply for leave to enter from overseas through an alternative sponsor. It was therefore clear to his Lordship that:

75. It follows that, in my view, the UT Judge did not fall into error (as submitted by the Appellants) when he referred to the standard of review being rationality.

Overall, UTJ Allen did not err by referring to the logistical difficulties that the authorities would face, evidenced in the witness statements filed on behalf of the Home Office. In the court’s view, it was permissible for the UT to consider this evidence and to such difficulties.

Comment

The appellants tried their best to disguise their complaint about not being given notice of revocation of their respective employers’ sponsorship licence – an issue of substantive fairness – as procedural fairness. Yet they failed to swing Singh LJ onside and the court dismissed their claims.

At first blush, this judgment seems to have erased the footprint of substantive fairness in judicial review proceedings. On the other hand, it is equally clear from Singh LJ’s analysis that the Court of Appeal was quite careful to distinguish that irrationality is usually the only basis on which the court can concern itself with the substance of the decision unless human rights and EU law are at stake.

Judges and practitioners will know only too well that human rights and EU law are engaged in a plethora of cases. Thus, at the very least, it should nevertheless be possible for judicial review applicants to raise human rights and EU law and still mount arguments embedded in substantive fairness. Equally, judicial review applicants relying on human rights and EU law may also raise arguments relating to both substantive fairness and procedural fairness, albeit the latter concept will inevitably be more helpful to their cases as this judgment shows only too well. Finally, as seen in past analysis and as confirmed by the present ruling, the key decision in Citizens UK is very helpful to applicants seeking to challenge unlawful behaviour by the Home Office in a wide variety of situations.

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SL (St Lucia) v The Secretary of State for the Home Department [2018] EWCA Civ 1894 (07 August 2018)

The important judgment in Paposhvili v Belgium [2016] ECHR 1113 caused quite a stir when it was delivered. However, its effects in the UK courts have been caged by the doctrine of precedent which means that at any rate the restrictive approach in N (Uganda) v Secretary of State for the Home Department [2005] UKHL 31 must prevail over any other authorities. In the present case, the Court of Appeal refused to grant a national of St Lucia permission to appeal against the refusal of her application for leave to remain in the UK. Moreover, Hickinbottom LJ certified that the court’s judgment might be cited in other cases and reminded us that recently in AM (Zimbabwe) [2018] EWCA Civ 64, it was clear to Sales LJ that, in substantive terms, Paposhvili only intended to make a very modest extension of the protection under article 3 of the ECHR in medical cases. Hickinbottom LJ found that Paposhvili had no effect on the threshold or approach to private life claims pursuant to article 8 of the ECHR where a person’s health and medical treatment was the only, or only material, issue. The correct approach was that an absence of medical treatment in the country of return would not in itself engage article 8. SL was born in 1970 and lived in St Lucia until she was 32 and arrived in the UK in October 2002 as a visitor.

In April 2003, she was a student visa, which she successively renewed until 31 May 2011. After eight-and-a-half-years of being in the UK lawfully she unlawfully overstayed. In July 2012, SL applied for leave to remain on private life grounds under paragraph 276ADE(vi) of the Immigration Rules. The then version of the rule required that she was aged 18 years or above, had lived continuously in the UK for less than 20 years but had “no ties (including social, cultural or family)” with St Lucia. In March 2013, her application was refused both under paragraph 276ADE and outside the rules. Judge Grant found that, where someone was receiving treatment in the UK, a mental health condition and suicide risk that was not severe enough to engage article 3 might still engage article 8, at least in principle. The judge concluded that since appropriate mental health services and support facilities were available in St Lucia, SL’s return to that country would not have such grave consequences that article 8 was engaged with respect to the right for private life encompassing mental stability. The Upper Tribunal upheld the First-tier judge’s decision on appeal.

Background

Judge Grant accepted that SL was seriously mentally ill and unable to give oral evidence. Consequently, it was not possible to test the account she gave in her witness statement, and the tribunal proceeded on the basis that her account was true. SL was subjected to harsh physical and emotional ill-treatment at school and within her family. Born with a severe squint, she was mistreated. She was shunned by her mother who would not allow her to wear glasses and suffered headaches as a result. Her squint was surgically fixed but a local pastor, who she trusted, abused and exploited her. The tribunal therefore found that SL suffered from chronic mental health problems requiring ongoing treatment. It was also the case that a serious risk of suicide and self-harm existed in her case which was increased by the prospect of removal to St Lucia.

Yet it was also clear that treatment for mental illness is available in St Lucia and that SL’s suicide risk could be minimised by utilising medical escorts during her removal and her immediate admission to a mental health clinic in St Lucia. So it was clear that article 3 was not in play and SL did not rely on article 8 as she was estranged with her UK relatives and had no contact with them. Judge Grant found that SL had no network of friends. She did not make or retain friends easily and the case on private life was thin and the two witnesses who gave evidence for SL had lost contact with her several years earlier. Judge Grant held that any social support and assistance could be obtained upon return in St Lucia.

Deputy Upper Tribunal Judge Ramshaw found that Judge Grant was incorrect to consider the medical basis of the article 8 claim separately from the rest of the private life claim. However, the error was immaterial since SL’s private life claim was very weak and centred inevitably upon the medical strand. The appeal had no real prospect of success. Thus, the First-tier Tribunal’s determination did not contain any material error of law and the appeal was dismissed.

The Court of Appeal

Principally, SL submitted that when considering the materiality of Judge Grant’s failure to consider the totality of article 8 factors – medical and non-medical – the Deputy Judge Ramshaw erred by not viewing the issue with the Paposhvili principles in mind.

Paposhvili post-dated the Deputy Judge’s decision and SL submitted that the Grand Chamber’s judgment extended the protection of article 3 against removal in medical cases, thereby lowering the evidential threshold for the engagement of article 8 if the relevant individual’s mental health is the only or a material issue as it was in her case.

She alleged that Paposhvili demonstrated that GS (India) [2015] EWCA Civ 40 was wrongly decided and the faulty guidance, whereby if a medical claim failed under article 3 it was unlikely to succeed under article 8, imparted by the Court of Appeal in relation to article 8 needed to be revisited.

(i) Paposhvili

Paposhvili, a Georgian national, suffered from chronic lymphocytic leukaemia. Belgium wished to return him to Georgia but he asserted that his removal to Georgia would breach article 3 because he would not receive effective medical care upon return and would therefore suffer “degrading treatment” within the meaning of article 3. By definition “degrading treatment” means treatment “such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical and moral resistance”. It was held in Pretty v United Kingdom (2002) 35 EHRR 1 that for treatment to amount to a breach of article 3, it requires a “minimum level of severity”.

In N v United Kingdom (2008) 47 EHRR 39, the ECtHR endorsed the decision of the House of Lords in N whereby the protection of article 3 against removal in medical cases was confined to “deathbed” cases where death is already imminent when the applicant is in the removing country. The ECtHR subsequently relaxed the stringency of the test and held in Paposhvili that the protection of article 3 extended to cases where:

183. … substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.

In AM (Zimbabwe) the Court of Appeal made it clear that the decision in N was binding and it represented the authoritatively settled legal criteria and Sales LJ said that in substantive terms, Paposhvili only intended to make a very modest extension of the protection under article 3 in medical cases.

(ii) GS (India)

In GS (India) the Court of Appeal considered the relationship between the article 3 criteria and the article 8 criteria in the context of healthcare cases. Significantly, Sales LJ said in AM (Zimbabwe) that the decision “brought the test under article 3 and the approach under article 8 into close alignment” because if a medical claim failed under article 3, it was unlikely to succeed under article 8. In GS (India) the court followed the decision in MM (Zimbabwe) [2012] EWCA Civ 279 and held that “article 8 cannot prosper without some separate or additional factual element which brings the case within the article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm.”

On the other hand, “degrading treatment” within the meaning of article 3 must have “a minimum level of severity” and the threshold is high, something with which Paposhvili was concerned. By contrast, as Laws LJ had held in GS (India), article 8 seeks to protect family and private life and is concerned with the quality of life. It is a very wide provision and rights conferred by it inevitably conflict with the rights and interests of others, including those derived from the ECHR, and the public interest. The threshold of engagement of article 8 is low but as Lady Hale said in Razgar [2004] UKHL 27 there must be a strong healthcare case before article 8 is even engaged. Once article 8 is engaged, a balancing exercise must be conducted. Because interference by the state on lawful and necessary grounds is possible, the focus and structure of article 8 is distinct from article 3.

(iii) Judgment of Hickinbottom LJ

In light of the approach taken by Sales LJ’s approach in AM (Zimbabwe), it was clear to Hickinbottom LJ that in substantive terms, Paposhvili had made only a very modest extension to the protection under article 3 in medical cases. It was therefore obvious that Paposhvili shifted the boundary of protection from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely “rapid” experience) of intense suffering or death in the receiving state, which may only occur because of the unavailability of the treatment in the receiving state which had previously been available in the removing state. Roundly rejecting the complaint about the incorrectness of GS (India), the court held that:

27. … However, there is no reason in logic or practice why that should affect the threshold for, or otherwise the approach to, article 8 claims in which the relevant individual has a medical condition … In particular, article 8 is not article 3 with merely a lower threshold: it does not provide some sort of safety net where a medical case fails to satisfy the article 3 criteria. An absence of medical treatment in the country of return will not in itself engage article 8.

Hickinbottom LJ opined that the absence of such treatment has on article 8 is that it only constitutes an additional factor in the balance with other factors which themselves engage article 8. Indeed, the approach of the court in MM (Zimbabwe) confirmed this point. It was clear from GS (India) that article 8 claims have a different focus and are based upon entirely different criteria. Therefore the Court of Appeal held that:

27. … Where an individual has a medical condition for which he has the benefit of treatment in this country, but such treatment may not be available in the country to which he may be removed, where (as here) article 3 is not engaged, then the position is as it was before Paposhvili, i.e. the fact that a person is receiving treatment here which is not available in the country of return may be a factor in the proportionality balancing exercise but that factor cannot by itself give rise to a breach of article 8.

Significantly, as Lady Hale had held in Razgar, in striking that balance, only the most compelling humanitarian considerations are capable of prevailing over legitimate aims of immigration control. Therefore, in Hickinbottom LJ’s view the approach delineated in MM (Zimbabwe) and GS (India) is unaltered by Paposhvili and remained intact and appropriate. A contrary argument was unarguable.

Therefore, SL stood no real prospect of success on appeal. Equally, there was no other substantive reason why her appeal should proceed. Turning to an eleventh hour argument aired in relation to fairness – namely that the tribunals failed to translate the procedural requirements imposed by article 3 in a healthcare case into their consideration of article 8 – the Court of Appeal found no breach of any procedural requirements because SL was given every opportunity to put forward her article 8 claim, including the healthcare element of it. Deputy Judge Ramshaw was right to hold that SL’s article 8 claim was “very weak” and revolved round the medical claim.

The court also rebuffed the claim that the Deputy Judge erred in holding that Judge Grant correctly approached section 117B of the Nationality Immigration and Asylum Act 2002, by treating the SL’s English speaking ability and financial independence as neutral rather than factors positively in her favour. Rhuppiah [2016] EWCA Civ 803 had been followed and the tribunals and the Court of Appeal were bound by it despite the appeal to the Supreme Court (discussed here) and in any event it was not argued before Judge Grant that SL’s English speaking ability financial independence ought to be treated as positive factors, but only as neutral. Bean LJ concurred with Hickinbottom LJ.

Comment

Paposhvili symbolises the reluctance of the UK courts to depart from inflexible domestic approach in N – which binds all UK courts save the Supreme Court – and the legal benchmark it established. In EA & Ors (Article 3 Medical Cases: Paposhvili Not Applicable: Afghanistan) [2017] UKUT 445, the Upper Tribunal held that the Paposhvili test “is not a test that it is open to the Tribunal to apply by reason of its being contrary to judicial precedent.”

Indeed, the divergence of the approaches in N and Paposhvili is the subject of ongoing debate in the courts. However, in MM (Malawi) [2018] EWCA Civ 1365, an overly cautious Hickinbottom LJ used the rarely used power in CPR rule 52.20(2)(b) to refer to the Upper Tribunal for redetermination a Malawian HIV sufferer’s case despite the fact that a pressing need exists for the Supreme Court to adjudicate upon the true impact of Paposhvili on domestic jurisprudence.

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Aziz & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1884 (08 August 2018)

Abdul Aziz, Abdul Rauf and Adil Khan – the appellants – were convicted in 2012 of the grooming, sexual exploitation and trafficking of several girls teenaged in Rochdale. All three men were naturalised British citizens and also citizens of Pakistan. The important issue in the present appeal was whether the decision-maker and the FTT made a proper and lawful assessment at the deprivation stage of the consequences of deprivation of citizenship upon the three men and their children in relation to their rights under article 8 of the ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009. The present proceedings only concerned the decision to make an order to deprive the appellants of their British citizenship pursuant to section 40 of the British Nationality Act 1981. Each appellant had children in the UK and an established private life. Depriving them of their British citizenship, which would be conducive to the public good in light of their serious offending, was the first step in their deportation to Pakistan. The Court of Appeal held that in determining an appeal against deprivation of British citizenship, a tribunal only needs to examine the reasonably foreseeable consequences of such deprivation, including the likelihood of deportation, insofar as it is necessary to assess those consequences in order to determine whether the making of the deprivation order itself was lawful and compatible with ECHR rights.

When a decision is made to deport them, they will be in a position to raise article 8 and section 55 insofar as they relate to deportation itself. In the present proceedings, the FTT followed the guidance of the Upper Tribunal in Deliallisi (British Citizen: Deprivation Appeal: Scope) [2013] UKUT 439 (IAC), and gave extensive consideration to the impact upon the appellants and their families’ rights under article 8 and section 55, should they be deported after being deprived of their citizenship. It was the view of the FTT that, given their serious offending, the appellants’ rights would not be violated by the deprivation of citizenship or by any future deportation measure. They argued that the FTT’s approach was not “entirely consistent” with Delialissi. They further argued that the decision to deprive them of their citizenship was not compatible with the executive’s policy as set out in paragraph 55.4.4 of the Home Office Nationality Instructions whereby “conduciveness to the public good means depriving in the public interest on grounds of involvement in terrorism, espionage, serious organised crime, war crimes or unacceptable behaviours.”

The Upper Tribunal

In Ahmed and Others (Deprivation of Citizenship) (Pakistan) [2017] UKUT 118 (IAC), McCloskey J dismissed their appeals. On the Delialissi point he held that the FTT had been correct to direct itself by reference to that decision and that it had lawfully and sufficiently considered the interests of the appellants and their children in relation to the appellants’ deportation.

In relation to paragraph 55.4.4, the UT held that it was rationally open to the Home Office and the FTT to rightly conclude that the appellants’ offending was covered by the words “unacceptable behaviours” in the policy. The ultimate question to consider was whether the conclusion that deprivation of British nationality is conducive to the public good was one reasonably open to the Home Secretary, which it was. Moreover, it was accepted by the appellants’ counsel that criminality of the type of which they had been found guilty could in principle be characterised as “serious organised crime” within the meaning of paragraph 55.4.4 and whether or not it should be so characterised was an evaluative judgment involving a wide margin of appreciation on the part of the relevant decision-maker (the Home Office or the FTT). The evaluative assessments by the Home Office and the FTT were lawful that the offending in each case did constitute “serious organised crime” within the meaning of paragraph 55.4.4.

The Court of Appeal

Dismissing the appeal, Sir Terence Etherton MR, Sir Stephen Richards and Sales LJ remained unsympathetic with the appellants who continued to protest their innocence even after being convicted of their appalling crimes.

The sentencing judge was clear that trafficking and sexually abusing young girls was repugnant behaviour in society’s eyes. Thereafter, the Home Office sought to deprive them of British citizenship because it is privilege and the public interest lies in not allowing serious criminals who flagrantly abuse British values to enjoy entitlements and benefits such as the right to a British passport and the right to vote in general elections. Giving the court’s unanimous judgment, Sales LJ dealt with the points in issue in the following way.

(i) The Guidance in Delialissi

Sales LJ recalled that in Delialissi the UT imparted guidance on the approach to be followed as regards an appeal under section 40A of the 1981 Act against a decision to deprive an individual of British citizenship. The UT noted that, in distinction to section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, an appeal under section 40A did not involve any statutory hypothesis that an appellant would be removed from the UK in consequence of the deprivation decision. Nonetheless, the UT held that a FTT must determine the reasonably foreseeable consequences of deprivation which may, depending on the factual context, include removal.

In Delialissi itself the likelihood of the appellant’s removal, upon him ceasing to be a British citizen, was so remote as to be disregarded. In the present cases the FTT interpreted the UT’s guidance to mean that an assessment had to be made in each case whether it was likely that the appellant would really be deported eventually and to consider his article 8 rights and those of his family and the impact of section 55 in linkage to such hypothetical future deportation, when assessing the lawfulness of the prior step of deprivation of British citizenship.

In the round, the FTT’s approach was in keeping with the decision in AB (British Citizenship: Deprivation Delialissi Considered) Nigeria [2016] UKUT 451 (IAC) which involved a similar proleptic analysis regarding what might ultimately happen in relation to deportation. Sales LJ observed an uncomfortable tension between the correct recognition that there might be a removal decision in the future subject to its own separate appeal which the tribunal ought not to pre-judge and the decision in Delialissi which seemed to suggest that an attempt should indeed be made to pre-judge what would happen in those future proceedings.

In Sales LJ’s view, the guidance in Delialissi and AB on this point is liable to mislead tribunals in relation to how they should approach consideration of article 8, other Convention rights and section 55 in appeals concerned with deprivation of citizenship. Therefore he said:

26. … Although in a sense it is of course difficult to quibble with the formula in Delialissi that regard should be had to the reasonably foreseeable consequences of deprivation of citizenship, an examination of such consequences is only required insofar as it is necessary to make an assessment in relation to them in order to rule upon whether the making of the deprivation order itself will be lawful and compatible with Convention rights, in particular article 8, and section 55. That will depend in turn upon the reasons put forward by the Secretary of State to justify the making of the deprivation order (as distinct from any deportation or removal order which might be made at a later time).

Thus, the Court of Appeal held that in assessing the lawfulness of the deprivation decision, it had been unnecessary for the FTT to proceed further and conduct a proleptic analysis on the likelihood of a lawful deportation taking place. But the fact that the FTT did so testified to the care with which it considered the case and there was no indication that the tribunal had committed any error of law. Nevertheless, the court said that the FTT should “resist having tribunal time taken up with unnecessary and inevitably speculative evidence and argument about whether a deportation order will in fact be made at the end of the day, if all that needs to be shown is that there is a real prospect that a deportation order may eventually be made.”

(ii) Policy Guidance: Paragraph 55.4.4

The appeal was also dismissed on the second ground and the court held that the Home Office had been entitled to characterise the three appellants’ offending as participation in serious organised crime within the meaning of that expression in Paragraph 55.4.4. The FTT had been entitled to find that the deprivation of citizenship in the case of each appellant would be compliant with the policy contained in paragraph 55.4.4.

Comment

Given the terrible crimes committed by these appellants it is very unlikely that anyone will have any sympathy with them. However, had the conduct of the appellants not been “serious organised crime” covered by the policy guidance, the government might just have lost in these proceedings. Therefore, the Home Office took no chances that way and instructed a leading silk and a junior against three self-representing appellants who had no access to legal aid. The justice gap was filled by slowing down the pace of proceedings to allow the appellants to understand what was going on. The court also had the benefit of examining their skeleton argument which was drafted by counsel in earlier proceedings.

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K (A Child) v The Secretary of State for the Home Department [2018] EWHC 1834 (Admin) (18 July 2018)

Importantly, the Administrative Court has recently held that the scheme in section 50(9A) of the British Nationality Act 1981 which deemed a child’s father to be the man the mother was married to at the time of the birth rather than the child’s biological father for the purposes of establishing nationality is incompatible with article 14 of the ECHR read with article 8. The court held that even though it was reasonable for legislation to prescribe a child’s deemed paternity, the law did not strike a fair balance because it did not permit the child to acquire the biological father’s nationality as of right on proof of paternity as it only conferred a right to ask the Home Secretary to exercise a discretion to grant such nationality. K was born in London in May 2014 and showing her British father as SK and her Pakistani mother as MT, her birth was registered in June 2014. She is SK’s biological child and that they have lived together since her birth. MT did not enjoy settled status in the UK when K was born so she was unable to claim British nationality through her. Notably, prior to entering into a committed relationship with SK, it was the case that MT had broken off ties with her Pakistani husband RS because of domestic violence. The situation was such that only SK, a British national who had always lived in the UK, was able to provide an avenue for K to attain British nationality.

An application for a British passport for K was made using her birth certificate and evidence that SK, her father, is British and a British passport valid from October 2014 to October 2019 was granted. In July 2016, K’s mother, MK, made an application for leave to remain, based on her family relationship with SK and K. The application stated that she had entered the UK with a son from her first marriage on 24 April 2013 and made an asylum application based on her fear of her then husband, RS. The application also relied on the fact that she had a British child. In July 2016, MT applied for leave to remain relying on her family relationship with SK and K. She said that she had a British child and that she entered the UK in April 2013 with a son from her first marriage and claimed asylum owing to fear of her then husband RS. In June 2017, Her Majesty’s Passport Office (HMPO) revoked K’s British passport because of “a change of circumstances”. Enquiries about MT’s application for leave to remain showed that at the time of K’s birth, she was married to RS, something previously unknown to HMPO.

For the purposes of establishing her nationality, K was deemed to be RS’s child by virtue of section 50(9A)(a) of the 1981 Act and not MT’s child as recorded on her birth certificate. Thus, her British passport was issued in error, in the mistaken belief that she was a British national which the decision-maker subsequently found that she was not. Judicial review proceedings were instituted as a result and permission was granted on the papers in October 2017. Since numerous other cases raised the same or similar points of law, K’s case became the lead case and the other claims were stayed behind the present matter. Clarification was provided by the law to children born as a result of In Vitro Fertilisation (IVF) and other forms of assisted conception licensed under the Human Fertilisation and Embryology Act 1990 and section 50(9A) was further amended in 2009 to take account of the Human Fertilisation and Embryology Act 2008.

The Administrative Court

Helen Mountfield QC held that the scheme in section 50(9A) of the 1981 Act – which for the purposes of establishing nationality deemed a child’s father to be the man the mother was married to at the time of the birth rather than the child’s biological father – was incompatible with article 14 read of the ECHR read with article 8. The court made a declaration of incompatibility using its powers under section 4 of the Human Rights Act 1998. It was reasonable for legislation to prescribe who was deemed to be a child’s father. However, the law did not achieve a fair balance because it stopped the child from acquiring the biological father’s nationality as of right on proof of paternity and it only conferred a right to ask the Home Secretary exercise a discretion to grant such nationality.

(i) British Nationality by Birth 

The court began its judgment with Lord Denning’s analysis of the law in Re M (An Infant) [1955] 2 QB 479 where he had opined that “the law of England has from time immemorial looked upon a bastard as the child of nobody, that is to say, the child of nobody except its mother”.

Changing social attitudes and scientific advancement led to statutory changes not to penalise a child for the accident of birth by way of section 1 of the Family Law Reform Act 1987 but the general rule of social policy did not extend to British nationality law because the 1987 Act was limited only to England and Wales. Prior to the enactment of section 50(9A) of the 1981 Act it was the case that although a person could acquire British nationality by descent from a parent was himself or herself a British citizen, a father who was not married to a child’s mother at the time of her birth did not count as a parent at common law and so could not pass on his British nationality to his natural child. In Crew [1982] Imm AR 94, the Court of Appeal followed Lord Denning’s approach (by which it was bound) and held that for the purposes of section 2 of the Immigration Act 1971, the father of an illegitimate child did not count as a child’s parent for the purposes of conferring nationality by descent.

The parties agreed that children who have a natural father who cannot be not recognised as their father by virtue of the provisions of section 50(9A) have no right to British citizenship, even upon providing satisfactory proof of paternity. However, under section 3 of the 1981 Act a person who has not acquired British nationality as of right by birth may apply to register for it at a later date and the Home Secretary “may if he thinks fit, cause him to be registered as such a citizen”.

(ii) Article 14 and Discrimination

Observably, the ECHR, pursuant to article 14, require contracting states to secure equal enjoyment of rights without discrimination on the grounds of “birth … or other status”. Marckx v Belgium (1979) 2 EHRR 330 clearly established that birth outside wedlock is a “status” for the purpose of article 14. But the government maintained that article 14 was not engaged because there was no discrimination as between children depending on whether their mother was married or unmarried. The government did not accept that being treated differently as the child of a woman who was married to a man other than one’s biological father at the time of one’s birth amounted to discrimination on grounds of “birth”.

Rejecting the submission, Helen Mountfield QC found it highly probable that when article 14 was drafted the principal meaning of discrimination on grounds of “birth” was discrimination between those born inside and outside marriage. Reminding us that “the Convention is a living instrument”, she said that:

66. … I see no reason of principle why, for the purposes of a provision intended to secure equal enjoyment of other Convention rights, and to require justification for unequal enjoyment, the characteristic of ‘birth’ should not be wide enough to include other unchosen circumstances of one’s birth (such as whether or not one is a child of IVF; being born to a mother not free to marry someone else). Treating a person differently, in the enjoyment of other Convention rights, by virtue of such a characteristic appears obviously to be a matter which calls for justification.

It was clear to the court that being born to a mother married to someone other than one’s biological father was an “other status” for the purposes of article 14 and as demonstrated by the case of Mathieson [2015] UKSC 47 courts took a broad approach to recognising “other status” as a reflection of each person’s fundamental equality in dignity and rights. Importantly, a child had no choice over whether or to whom their parent was married at the time of their birth. Some statuses may be chosen but a “core” status usually includes “personal characteristics which the complainant did not choose and either cannot or should not be expected to change”. Therefore, following Lady Hale’s approach in AL (Serbia) [2008] UKHL 42 the absence of choice was a significant factor in assessing if there was a “core” status in relation to which the right to equal enjoyment of Convention rights would be particularly strongly protected.

(iii) Article 14: Whether Engaged?

Key in the present context was the point of legal principle that the Equality Act 2010 implies that there must be a detriment in order for the domestic concept of discrimination to be engaged. By contrast, the issue under article 14 of the ECHR is only whether there has been a failure to “secure” equal treatment of people who are in otherwise analogous circumstances, either by failing to treat like cases alike or by failing to treat different cases differently. The Supreme Court confirmed in Steinfeld and Keidan [2018] UKSC 32 that only a difference in treatment needs to be established to engage article 14 and not “less favourable” treatment.

In these proceedings there was a contrast between the way the law treated a child whose mother is not married to anyone at the time of its birth, who is deemed to be the child of the biological father under section 50(9A)(c) of the 1981 Act (provided the fact of paternity is proved), and a child whose mother is married at the time of its birth, who is deemed to be the child of the husband, even if it is subsequently proved that the child is not his child. Therefore, the law did not secure equal enjoyment of the right to acquire one’s natural father’s citizenship to children whose mothers were married and unmarried at the time of their birth. Therefore, unless it was justified, there was a breach of article 14 and Helen Mountfield QC reasoned that:

74. In any event, in the present case, there is a clear detriment to K in not being able to acquire her birth father’s nationality as of right. It deprives her of a link to her father and his country, and it imposes specific practical difficulties upon her. Unless and until the Secretary of State exercises a discretion in her favour under section 3(1) of the 1981 Act, if she travels abroad – presumably on a Pakistani passport – she will be subject to immigration control on her return home.

Next, the court dealt with the issues of justification and the structured approach that is found in a line of Supreme Court authorities.

(vi) Justification

Following the approach in Quila [2011] UKSC 45, Lord Kerr reiterated at para 41 in Steinfeld the four-stage test designed to establish whether an interference with a qualified Convention right can be justified: (a) is the legislative objective – legitimate aim – sufficiently important to justify limiting a fundamental right, (b) are the measures which have been designed to meet it rationally connected to it, (c) are they no more than are necessary to accomplish it, and (d) do they strike a fair balance between the rights of the individual and the interests of the community?

Helen Mountfield QC accepted that ensuring that there were only two parents from whom one could obtain nationality was a reasonable aim of social policy, and the legislature was entitled to create provisions to ensure certainty as to who those people were. She therefore found it reasonable and proportionate for legislation to dictate who was deemed to be a child’s father. She further accepted that it is also a legitimate aim of social policy that there should be reasonable legal certainty and clarity as to whom the law treats as parents. The provisions of section 50(9) and 50(9A) were rationally connected to those goals. Yet they were not the least restrictive means of achieving them. The big problem was that they prevented certain children (but not all) from the benefit of being able to acquire their biological father’s nationality simply because of an unchosen characteristic, i.e. having been born to a mother who was, at the time of their birth, married to a man other than their biological father. On the other hand, those children whose mothers were married to their biological fathers at the time of their birth, or who were not married at all, did not suffer this problem.

The court made some telling points in its analysis. Upon provision of satisfactory proof of paternity to have her natural father recognised as such of right, a child whose mother was not married to another man at the time of her birth would have the right to citizenship. It made no sense to the court why a child whose mother applies, on her behalf, on the basis of the same proof of paternity, should not have the same right to have that man recognised as her father; merely on the basis that as a matter of fact her mother was married to someone else at the relevant time (something over which the child had no control, and which may mean nothing to her).

The child whose mother was married to someone other than her biological father at the time of her birth has no right to her father’s nationality and she must instead rely on the executive’s discretion to decide whether to confer it upon her. Various circumstances arise whereby a person may wish to displace the presumption that a mother’s husband is a child’s father.

Significantly, in Mizzi v Malta [2008] 46 EHRR 27 a woman’s husband sought to expunge his name from official registers as being the father of a child who was not, in reality, his biological child. Both parties invoked Mizzi in aid of their case.

In the claimant’s view, Mizzi demonstrated that to comply with article 8, the requirement that a legal presumption or designation should be capable of being displaced by proof. The approach was said to support the submission that the provisions as to who is deemed to be a father by section 50(9A)(a) of the 1981 Act should be capable of being displaced, as of right, by proof that another man is actually the child’s father. In the executive’s view, it was not possible to directly read across between the facts of Mizzi and the facts of the present case. Thus the government claimed that along with other cases Mizzi showed that all that was required under article 8 was a procedure by which a legal presumption of this type could be rebutted in an appropriate case, and the provisions of section 3(1) of the 1981 Act provided such a procedure. Helen Mountfield QC held:

87. In my judgment, however, the current procedure in section 3 of the 1981 Act is insufficient to fill this gap, because it does not permit a child who can prove that the presumed fact of paternity in section 50(9A)(a) of the Act is false to displace it as of right: it confers only a right to ask the Secretary of State to exercise a discretion to grant such nationality. In my judgment, in this respect, the current law does not achieve a fair balance between the interests of the child wishing to acquire his or her father’s nationality and the Defendant’s identified social policy goals.

88. A child whose mother is not married to someone else at the time of their birth, and who is not a child of an IVF arrangement governed by sections 50(9A) (b) or (ba) of the 1981 Act, may acquire their British father’s nationality through that father as of right; whatever the child’s character, or the father’s character or associations may be, and however committed – or otherwise – the relationship which resulted in the child’s conception. Nothing other than proof of the fact of paternity is relevant.

89. By contrast, a child whose mother is married to someone else at the time of their birth may only apply to the Defendant to exercise a discretion to confer British nationality on them, which discretion can take into account any other considerations the Secretary of State rationally considers to be relevant. If the Secretary of State considers either biological father or child, or indeed associates of such persons, to be of bad character, she could – on application under section 3(1) of the 1981 Act – refuse to grant the child British citizenship, even if satisfactory proof of paternity has been provided.

The court rejected the proposition that the outcome was “a good thing” where for instance if the child of a married mother was conceived because of a rape and real distress or difficulty were caused by treating the biological father as the father under the law and maintaining a discretion to refuse to confer the natural father’s nationality on the child of the rape was sensible. The point was wholly unpersuasive and instead Helen Mountfield QC held that an application for an exercise of discretion, and consideration of wider social factors by the executive in contemplating how that discretion should be exercised is necessarily a more complex, and costly, process than the mere process of considering whether satisfactory proof of paternity has been provided. Overall, concluding on the discrimination issue she held that:

93. In my judgment, this distinction between two different classes of children discriminates between them on grounds of status, because it fails to secure them equal enjoyment of their right to acquire their biological father’s nationality, irrespective of whether their mother was married to a man other than their biological father at the relevant time. This distinction is not rationally explained or proportionately justified in the case of a biological child who was not born through licensed assisted conception under the 1990 or 2008 Acts.

The court found that the scheme of section 50(9A) as it was currently read and applied breached K’s right under article 14 read with article 8 of the ECHR to enjoy equal access to the ability to acquire her biological father SK’s nationality which she would enjoy if her mother MT had not been married to a man other than her biological father at the time of her birth.

(v) Remedy

The natural reading of statute – and indeed the only reading – was to deny K British citizenship. The court rejected the proposition that section 3 of the 1998 Act allowed it to “read down” the terms of section 50(9A) in order to ensure compliance and compatibility with article 14 of the ECHR read with article 8.

The language of section 50(9A)(c) created a clear order of priority whereby a biological father could only be treated as a father under that provision “where none of the paragraphs (a) to (ba) applies”. As held in Re S (A Care Plan) [2002] UKHL 10, ignoring those statutory words would “cross the boundary between interpretation and amendment” and it was not possible to erase them without doing violence to the 1981 Act’s structure and the legislature’s intention.

The operation of statute had therefore precluded HMPO from treating the claimant as her natural father’s daughter. A declaration of incompatibility was appropriate and the court exercised its discretion under section 4(2) of the 1998 Act and made a declaration that the provision preventing a child, except a child born under a licensed IVF arrangement mentioned in sections 50(9A)(b) or (ba), as being recognised as the child of his or her real biological father for the purposes of acquiring his nationality (if the child’s mother was married to another man at the time of the child’s birth) was incompatible with article 14 of the ECHR read with article 8.

(vi) Totally Without Merit

The court had been invited to refuse permission for judicial review and certify the case as totally without merit. Permission had been granted on the papers and the case was a lead case. The totally without merit provisions worked as a filter to save court time in connection to cases which were obviously hopeless or abusive. Helen Mountfield QC added in clarification that it was an abuse of process to assert that a case was totally without merit where it was apparent that a point was arguable and she stated that the government should not as a matter of routine invite judges to certify cases as being totally without merit. Pleading the point as a matter of course devalued the concept. Hopefully the Home Office and their lawyers in the Government Legal Department will take these helpful points on board and stop behaving unreasonably in judicial review proceedings.

Comment

Declarations of incompatibility are an integral part of UK constitutional law and in the present case, the court made a declaration of incompatibility despite being asked to do so...

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In his recent opinion in R O (C‑327/18 PPU, EU:C:2018:644), Advocate General Szpunar lamented that “we know that we know next to nothing about the future legal relationship between the EU and the United Kingdom of Great Britain and Northern Ireland”. But one thing that we do know is that Statement of changes to the Immigration Rules: CM 9675 (20 July 2018) ensures that Appendix EU to the Immigration Rules will come into force on 28 August 2018, for the purposes of an initial test phase of the EU Settlement Scheme which will be rolled out on a phased basis from late 2018 and will be fully open by 30 March 2019. The scheme aims to implement a simple three-step process that tests the core criteria of identity, eligibility and suitability and these criteria serve the purpose of measuring the merits of individual applications. However, problematically, the scheme will confer immigration status in digital form and this is likely to result in the victimisation of EU nationals and their families because of the right to rent checks and the ability to prove one’s right to work in the UK. In that regard the House of Commons Exiting the European Union Committee has made it clear in The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens (Eighth Report of Session 2017–19) that “documents, such as endorsed passports or biometric cards, are understood as forms of identification and are likely to be the default document requested by a landlord or employer.”

Without such documents, employers and landlords will readily ostracise and exclude EU citizens from renting property and working and they will suffer because of the hostile environment policy which cannot so easily be turned off or reset by pressing a button or flicking a switch. So understandably the three million EU citizens in the UK want a hard document to be issued rather than a digital code. The Home Office insists the digital code system will be less resource intensive, reduce fraud and be simple to use. However, MPs are concerned that the Home Office is introducing a new system on a large scale and relies upon employers and landlords to be open to understanding and embracing a new way of working. Employers and landlords will want to avoid the consequences of breaching the law and therefore the Brexit Committee has called on the government to issue a physical document to EU citizens. The Immigration and Nationality (Fees) (Amendment) (EU Exit) Regulations 2018 will specify fees for applications under Appendix EU and provide for exceptions in respect of those fees. Applications will cost £65 and costs for children under 16 will be £32.5. Biometric data will be enrolled within the meaning of the Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018.

Barriers to Applications

Existing holders of valid permanent residence will be able to swap for settled status free of charge. People considered to be “resident in the UK” will include those present in the UK before midnight on 31 December 2020.

However, the Migration Observatory identifies certain barriers to applications under the scheme in its report Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit? Significantly, there are several categories such as children whose parents do not themselves apply, do not realise that children need to apply, or mistakenly believe that their UK-born children are automatically UK citizens.

Others categories include very long-term residents, people who have already applied for permanent residence and people who believe they are ineligible, such as people who have previously been refused permanent residence or those with minor criminal convictions or cautions. Indeed, the scheme involves proof of identity, checks for serious criminality and evidence of residence in the UK.

Special Interest to Parliament

The changes to the rules under CM 9675 mean that Appendix EU will govern the basis on which resident EU citizens and their family members, and the family members of certain British citizens, can apply for leave to remain in the UK under UK immigration law.

Where resident EU citizens and their family members are concerned, this is in line with the draft Withdrawal Agreement with the EU and will not affect their existing rights derived from EU law.

EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for “settled status”, enabling them to stay permanently because indefinite leave to remain (ILR) will be conferred on them. Those with less than five years residence will be eligible for pre-settled status or “limited leave to remain for five years”.

CM 9675 explains that those eligible under the scheme will be able to apply on a voluntary basis for the UK immigration status which they will require to remain in the UK beyond the end of the planned post-exit implementation period on 31 December 2020. It is said that this is consistent with articles 17 and 17a of the draft Withdrawal Agreement in relation to EU citizens and their family members, On the present state of the law, under section 7(1) of the Immigration Act 1988, an individual who is entitled to remain in the UK under EU law is not required to have leave to remain. Appendix EU will enable individuals to apply for leave to remain. However, any leave granted under Appendix EU shall have no effect on existing rights under EU law.

The Changes in Summary

EU citizens who have been continuously resident in the UK for five years will be eligible for “settled status” or ILR. EU citizens and their family members who arrive by 31 December 2020, but will not by then have been continuously resident in the UK for five years, will generally be eligible for “pre-settled status” or five years’ limited leave to remain in the UK, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status.

Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will be able to join an EU citizen resident in the UK after 31 December 2020, where the relationship existed on that date and continues to exist when the person wishes to come to the UK. Provision for future children will be made, in line with the Withdrawal Agreement.

The government has decided, as a matter of domestic policy, that a family member of a British citizen who is lawfully resident in the UK by 31 December 2020 by virtue of regulation 9 of the Immigration (European Economic Area) Regulations 2016 will be eligible to apply for status under the EU Settlement Scheme contained in Appendix EU.

The requirements in Appendix EU are in accordance with the conditions agreed under the Withdrawal Agreement. The exception is where the UK is applying more favourable criteria: for example, in deciding that the main eligibility requirement for status to be granted under the scheme will be residence in the UK, generally in line with current free movement rules on the continuity of that residence. According to the Home Office, there will not be any further discretion to refuse a valid application made under the scheme beyond the conditions agreed under the Withdrawal Agreement. Administrative burdens will be minimised by not requiring more information than is necessary to determine whether the requirements set out in Appendix EU have been met.

Appendix EU essentially provides a self-contained set of Immigration Rules for the purposes of the EU Settlement Scheme. The following points are notable:

Paragraphs EU2 to EU8 set out the overall requirements for indefinite leave to remain or five years’ limited leave to remain to be granted under it, and the procedure for granting that leave.

Paragraph EU9 sets out the requirements for making a valid application under Appendix EU.

Paragraph EU11 sets out the eligibility requirements for ILR (“settled status”) for EU citizens and their family members, and paragraph EU12 does so for the family members of certain British citizens.

Paragraph EU14 sets out the eligibility requirements for five years’ limited leave to remain (“pre-settled status”).

Paragraphs EU15 and EU16 set out the basis on which an application under Appendix EU will or may be refused on grounds of serious criminality, other public policy considerations or deception, as reflected in the draft text of the Withdrawal Agreement.

The draft Withdrawal Agreement with the EU does not cover the citizens of the non-EU European Economic Area states (Iceland, Liechtenstein and Norway) and Switzerland. However, the government is eager to strike a similar deal for such citizens living in the UK, and for UK nationals living in those states.

We are informed that talks with all four states are progressing and if agreement is reached the UK intends that the settlement scheme set out in Appendix EU will, through a further Statement of Changes in Immigration Rules, be made available to other EEA citizens and Swiss citizens (and their family members) on a similar basis as for EU citizens.

Importantly, Irish citizens enjoy a right of residence in the UK that is not reliant on the UK’s membership of the EU. They will not be required to apply for status under Appendix EU (but may do so if they wish), and their eligible family members (who are not Irish citizens or British citizens) will be able to obtain status under it on their own account, without the Irish citizen doing so.

Zambrano Carers?

Notably, Appendix EU provides coverage those with rights under the judgment in Chen (C-200/02, EU:C:2004:639), Teixeira (C-480/08, EU:C:2010:83) and also Ibrahim (C-310/08, EU:C:2010:80). A Chen carer is a primary carer of a self-sufficient EU citizen child or children in the UK. An Ibrahim and Teixeira child is a child of a former EU citizen worker and is in education in the UK, and an Ibrahim and Teixeira carer is the primary carer of such a child.

But a question mark hangs over the important judgment in Ruiz Zambrano (C-34/09, EU:C:2011:124) which gave rise to the articulation of the “substance of rights” test and produced the concept of a Zambrano carer. Although the Home Office says it will provide further details in due course on the status of Zambrano carers, there are serious concerns about this vulnerable cohort of people whose future hangs in the balance. The actual number of Zambrano carers in the UK is unknown and they have been excluded from the Withdrawal Agreement. If the rights of Zambrano carers are not fully addressed in advance then this can only mean that many British citizen children will be banished from their own country.

Comment

The Brexit Committee has said that citizens’ rights must be ringfenced in the event of a no deal Brexit. It welcomed positive statements from ministers that they would honour their commitments to the EU in the UK in a no deal situation but found that “more could be done to provide reassurances as to how this would be put into legal effect.”

Since the Withdrawal Agreement has not yet been finalised, a no deal scenario would create uncertainty around establishing the right to reside and work and the right to return after a period of absence. Protections such as the right to refer cases to the CJEU for eight years would also be lost.

Overall, the Brexit Committee welcomed Sajid Javid’s clear commitment that EU citizens living lawfully in the UK will be able to stay if there is no deal. It called on member states to make similar public commitments to assure all UK citizens living in EU countries that their rights will be safeguarded without a deal.

In The Future Relationship Between the United Kingdom and the European Union (CM9593) – or Theresa May’s Chequers plan of 12 July 2018 – the government stresses that the UK will leave the Single Market and the Customs Union, end free movement and the CJEU’s jurisdiction, leave the Common Agricultural Policy and the Common Fisheries Policy, and end paying money to the EU every year. Theresa May is adamant that “we will take back control of our money, laws, and borders, and begin a new exciting chapter in our nation’s history.” However, according to a new YouGov survey, 42 per cent of Britons support having a second referendum on the terms of the Brexit deal compared to 40 per cent who would oppose it.

The UK relies heavily on EU workers to get the job done. Indeed, one out of 10 workers in London, Oxford and Cambridge come from the EU and in its With or Without EU? report the Centre for Cities is calling on the government to ensure that there is a minimum two-year implementation period in place whether the UK leaves the EU with a deal or not.

The report finds that EU citizens, whose concentration is mainly in the urban areas and predominantly in London, are a benefit to the UK economy and that they are younger, more qualified and more likely to be in work than the native population. According to the Brexit Secretary Dominic Raab, who once advocated that the UK should leave the ECHR, the UK will “move swiftly” to safeguard the future of EU citizens if there is no deal. Raab thinks that the UK owes a “moral obligation” to EU citizens and commented that it was “inconceivable” they would be “turfed out”.

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