Archives For October 2008

Proxy marriages

Free Movement — 

The Tribunal have just issued a determination holding that proxy marriages in Brazil must be recognised in English law. The case is called CB (Validity of marriage: proxy marriage) Brazil [2008] UKAIT 00080.

There seem to be a lot of these Brazilian proxy marriages about at the moment. I had an email query about them a few weeks ago and suddenly several cases landed on my desk a week ago or so.

A marriage by proxy is where one of the parties to the marriage is represented at the ceremony, rather than being present in person. It is a rather odd concept but it is legal in Brazil, and quite a few other countries for that matter.

There is a rule in international private law that a marriage that was valid in the country in which it took place will be recognised as valid everywhere else in the world. There is a famous dictum by Viscount Dunedin in Berthiaume v. Dastous [1930] AC 79 to this effect that I won’t quote here and it is also covered at Rule 67 of Dicey 14th edition. In fact there do seem to be exceptions to it, as the French, for example, have a provision in their law that prohibits recognition of marriages in certain circumstances. We have no equivalent laws here, though.

It also means that a party to a polygamous marriage can enter the UK as a spouse. However, immigration rule 278 prevents a second wife (it always a question of multiple wives, not husbands, in my experience) entering the UK as long as the first wife is still the wife of the sponsor. If the first wife dies or is divorced, though, another wife is allowed to enter.

The one case that I’ve come across that does not make much sense in this regard is a very sad one called KC & Anor v City of Westminster Social & Community Services Dept. & Anor [2008] EWCA Civ 198. In it, the courts declared as invalid a telephonic marriage (as in one that was conducted by telephone) between a severely mentally disabled adult in the UK and a woman in Bangladesh. The grounds for holding it invalid were capacity, and an unusual new legal rule that a marriage valid in the country in which it took place could nevertheless be struck down in the UK if “sufficiently offensive to the conscience of the English court that it should refuse to recognise it.” Rather than relying on this novel approach, I always wondered why they held that the marriage had taken place in Bangladesh when one of the parties was physically present in the UK. It was also a point flagged up by the Court of Appeal in their judgment.

Expert apology

Free Movement — 

There has been a fascinating little story unfolding around a case called SD (expert evidence) Lebanon [2008] UKAIT 00078. The Guardian picked up the story and ran an article on it on Monday.

Dr Alan George is a respected academic and a specialist in the Middle East. He has been doing expert reports for asylum cases for years. Like many other academics writing expert reports, though, he has received somewhat rough treatment at the hands of the Asylum and Immigration Tribunal and its predecessors.

This treatment is in my opinion often unfair. Expert evidence is routinely rejected in the tribunal if it is considered to be biased or partial in some way. This is not the same as saying that the expert is acting as an advocate for the client, which would be a breach of the expert’s duty to the court. But who can say they are truly neutral or impartial, and do not have views or opinions about a subject about which they know a great deal? Expert evidence is intended to be opinion evidence, after all: that is its very function. And yet it is rejected for fulfilling that function.

One of the frustrations for expert witnesses is that they have no right of reply to the sometimes very unfair things that are said about them in the tribunal and which could be perceived as damaging their professional reputation. It is a very one-sided affair.

On this occasion, though, because the tribunal published what they said was a draft determination, the normal rules of court privilege did not apply and Dr George was able to take things further. He instructed Carter-Ruck Solicitors, in fact, and the AIT settled out of court and issued a public apology.

The Tribunal certainly overstepped the mark, but what was actually said (I had better not repeat it) did not, frankly, go far beyond what is often said about experts in other cases. The tribunal really needs to get over its dysfunctional approach to expert evidence. The expert evidence is only one part of the evidence the tribunal has to consider in any given case, and what most experts say is bound to be important and relevant. It may not end up being determinative of the case, for various reasons, but there is no need to ‘trash’ experts. It makes the tribunal look rather intellectually insecure, apart from anything else.

Landmark case on children

Free Movement — 

In the case of EM (Lebanon) v SSHD [2008] UKHL 64 the House of Lords looked at Article 8 again (having done so earlier this year as well) and delivered another landmark judgment. It is believed to be the first time in European legal history that a higher court has found that a future, foreign breach of a non-absolute human right would be sufficiently serious so as to prohibit the victim’s removal to the country where there is a real risk the breach would take place.

The Lords were hearing an appeal from the judgment of the Court of Appeal in EM (Lebanon) [2006] EWCA Civ 1531. The facts were that the appellant had uncontradicted expert evidence that her child would automatically be removed from her care should she be returned to the Lebanon and given into the care of the father or the father’s family. She resisted removal to Lebanon on the basis that this would breach her Article 8 right to family life. The Court of Appeal had, with misgivings, dismissed the appeal on the basis that there would not be a complete nullification of the mother’s family life with the child as there was no evidence she would not be allowed contact with the child.

In the House of Lords, one novel feature of the case was that the child in question was permitted to intervene in the proceedings and was represented by a leading family QC and family and immigration juniors. Argument was heard by their Lordships from the child’s perspective and because of the earlier judgment in Beuko-Betts the effect on the child was to be considered directly. There was suggestion (see paragraph 46 of Baroness Hale’s judgment) that the breach caused by separation would have more of an impact on the child even than on the mother because the child was more dependent on the mother than the mother on the child.

The Lords held that the test in such cases, i.e. an extra-territorial or foreign breach of a non-absolute human right such as Article 8, is that of flagrant denial, gross violation or complete nullification. These phrases were all reflections of the same test, they did not suggest different standards.

The Lords also emphasised that in Article 8 family life cases (this would apply equally in many private life cases) the issue is the effect on the relationship that will be affected by the decision under challenge. Substitution of an alternative relationship in the future is no answer to the termination of the relationship the claimant seeks to protect. This offers useful authority to answer the common Home Office submission that a person can start up new family life relationships with other people if they are removed from the UK.

The judgments make the point that the rights of children need to be separately considered and also contemplate that it may be appropriate for children to be separately represented in some immigration proceedings. This is already commonplace in family law proceedings. Both Lord Bingham and Baroness Hale stress that this will be appropriate infrequently, and only where the interests of the child and adult are potentially or actually in conflict. In this particular case the mother had serious credibility issues whereas the child was not tainted in the same way and arguably the effect of separation would be greater on the child than on the mother. See paragraphs 43 and 49 of the judgments of Lord Bingham and Baroness Hale respectively. Baroness Hale goes as far as to encourage CAFCASS and social services departments to get involved in immigration proceedings where appropriate.

This is a fascinating judgment and should have a significant effect on all cases where a child is a party to proceedings or is otherwise going to be affected by the immigration decision under challenge.

Third party support

Free Movement — 

[UPDATE: case overturned by Supreme Court]

In a case called AM (Ethiopia) & Ors v Entry Clearance Officer [2008] EWCA Civ 1082 the Court of Appeal has just upheld the Asylum and Immigration Tribunal’s approach to the question of what lawyers call ‘third party support’.

Third party support is financial support offered to a potential immigrant in order to enable them to meet the adequate maintenance without recourse to public funds part of most immigration rules. The person offering the support will often be a close relative or family member, but is not the actual ‘sponsor’ as such, i.e. the UK-based spouse or the person sometimes nominated in the Visa Application Form (VAF).

The Court of Appeal say that third party support cannot be taken into account in rules 281, 297 or 317, the rules for spouses, children or other dependent relatives. The reasoning, however, also applies to all other immigration categories. Laws LJ finds that the immigration rules should not be constued in a strict legal sense, nor in a purposive way to enable family unity, nor to be compliant with Article 8 ECHR. The implication is that the rules mean pretty much whatever the Secretary of State wants them to mean, as they are an expression of the Secretary of State’s own policy.

The door is left open for support to be provided by a named sponsor or sponsors (the idea of joint sponsors is endorsed), but only if the sponsor is specifically referred to on the VAF. This is no use for those currently pursuing appeals. Interestingly Carnwath LJ disagrees with this and considers it overly formalistic, but finds himself in a minority on that point. Carnwath LJ will be the head of the new tribunals system which very much looks like it will include immigration and asylum work in future.

I imagine this issue will go to the Lords. Laws LJ takes a very hard and rather surprising line on how the immigration rules should be interpreted, gaily abandoning any of the aides on which lawyers would normally rely. It isn’t as if the meaning is exactly clear, quite often, so some sort of aide is usually considered useful. The argument turning on the question of when money becomes your own isn’t addressed and I would have throught there was scope for this point to be explored. Money earned from employment belongs to the recipient, as does money from a trust fund or money that is gifted to a person. One would pay tax on any of this income, in fact. What makes money regularly gifted by a third party so different? Why isn’t that considered to be part of the recipient’s resources?

Finally, though, I feel I should eat humble pie. I recently started a new category for lines of tribunal case law that have been overturned on appeal. This isn’t one of them, sadly.

Visitor proliferation

Free Movement — 

The new Immigration Minister, Phil Woolas, yesterday announced the announcement of new rules for visitors. Spot the deliberate tautology? The Home Office seems to have improved the amount of warning it now gives us when making planned changes to the rules (although the debacle around the no return rule might lead one to speculate that this is not yet universal and they’ll slip something under the radar when it suits them), but the way the press release is written might lead Joe Public/Plumber to think that these rules were coming into force immediately. It will all no doubt be re-announced in due course.

A classic Gordon Brown and New Labour-ism this – announcing the same ‘new’ money for a worthy cause over and over again.

There is irony in the proliferation of types of visitor, which is specifically said by Woolas to be in sympathy with the Points Based System. The PBS allegedly roles up 80+ migration routes into a mere five ‘tiers’ and is therefore simpler. Meanwhile, we are continuing down the road from one visitor rule that encompasses everyone with some basic minimum requirements to… I can’t quite work out how many, to be honest.

There will be general visitors still, which seem to be being renamed ‘tourist’ visitors, but also business visitors (encompassing academic visitors, who benefit from a generous 12 month visa), sportsperson and entertainer visitors and ‘special’ visitors, which will somehow incorporate marriage, child, parent of child at school, private medical treatment and prospective students and will still have flexibility to include more types in future.

There are more changes ahead. Back in June the Home Office announced it will go ahead with another new visitor category, the ‘sponsored family visitor’. The press release yesterday was silent on this, but it involves background and financial checks on a specified UK sponsor and liability for a fine of up to £5,000 if the visitor bunks off. There is also dark muttering of a potential 14 year prison sentence, but that is where criminality is proven, and they aren’t proposing to change the law (yet again). Being as there are no prosecutions on this basis now, I rather doubt there will be any in future. It’s just some standard disingenuity to make the scheme sound even tougher than it really is. Proposed implementation date is before the end of 2009.

COIS to revert to CIPU

Free Movement — 

The Country of Origin Information Service (COIS) at the Home Office is the successor to the generally derided Country Information and Policy Unit (CIPU). CIPU reports were poorly researched and outright biased against asylum seekers, although many immigration judges mistakenly treated them as the whole truth. In 2004 the Immigration Advisory Service did an excellent report on CIPU. They checked every quote against the purported source. Often the source simply didn’t say anything resembling the alleged quote, or the first half of a sentence would be included but the qualifier omitted. For example, “The human rights situation in x country is generally good” would be quoted but the second half of the original sentence, “apart from for x, y and z minorities, who are subject to government persecution”, would not. Rather misleading, some might think.

CIPU was eventually broken up into an information section and a policy section. The information section was renamed COIS and became part of the (relatively) reputable and professional RDS within the Home Office, rather than remaining within what was then the Immigration and Nationality Directorate and is now UKBA.

In the last few years the Advisory Panel on Country Information (APCI) has done sterling work looking over COIS reports and the quality of the reports has improved dramatically. COIS undoubtedly sometimes get things wrong, and the last Afghanistan report was slated by the APCI, but generally things are much improved and the information is reliable and balanced.

Now, the information and policy arms are apparently to be reunited. All of the good work by COIS staff over the last few years is set to be undone. It should be clear to anyone that there is no way that policy and information can be combined without the quality and impartiality of the information being compromised. This is definitely a retrograde step.

The penny drops

Free Movement — 

UPDATE: It would seem that Mark Ockelton has been sitting in the Administrative Court as a deputy high court judge and has not been promoted to the High Court bench.

A while ago I posted some gossip I had heard at the end of the summer: that Mark Ockelton, a deputy president of the Asylum and Immigration Tribunal, had been appointed a high court judge. The penny has finally dropped as to why.

Mr Justice Henry Hodge

It is a legal requirement that the president of the tribunal be a high court judge. Mr Justice Henry Hodge (right – he looks friendlier than this in real life!), the current president, is known to be ill, very sadly, and his wife stepped down from her ministerial job to spend time with him at the last reshuffle. It suddenly very much looks as if Ockelton will be the next president, if Hodge J has to stand down.

While Mark Ockelton is clearly a clever man and can be a pleasure to appear before, there are undoubtedly criticisms to be made of him. The most important, though, given this development, is that he would likely reinforce rather than resolve the problems that many would perceive in the tribunal: incivility, the institutional adoption and then defence of legal positions as if the tribunal was a party to proceedings, the dysfunctional approach to expert evidence and the astoundingly high level of successful appeal of tribunal decisions to the higher courts.

Hopefully Henry Hodge will be fighting fit soon anyway, and I certainly wish him well. Tall, jovial and genial, he is a decent man and as one of the founders of Hodge, Jones and Allen has done good for many individuals over the years.

Either way, the tribunal looks like it will soon be abolished and integrated into the two-tier Tribunals Service, with Carnwath LJ at its head.

Further to my last post on this subject, it turns out that my surprise was entirely justified, as a different and more senior panel of the tribunal has decided, basically, that Metock changes nothing and it should be business as usual. The case is SM (Metock; extended family members) Sri Lanka [2008] UKAIT 00075.

Rick Scannell

Rick Scannell

It seems to me that the tribunal is behaving increasingly like a party to proceedings. Collectively, through the reported and starred determinations system and probably through training and the online judicial discussion forums, the tribunal adopts somewhat tenuous but almost always conservative legal positions and then seeks to argue and defend them. This case is a classic example of this tendency. The tribunal is simply unwilling to let go of a legal stance that is clearly in conflict with a binding judgment from the European Court of Justice. The arguments relied on by the tribunal show no recognition of the basic principles of EC law. On whether that is through ignorance or is wilful I will not comment, but in this case the tribunal had the benefit of advocacy by one of immigration law’s leading barristers, Rick Scannell, who is a particular expert on EC free movement law.

The recent Court of Appeal case of GOO highlights another example of a stance that the tribunal has sought to maintain against higher court authority but finally seems to have lost, in that instance. See – I find myself referring to the tribunal ‘losing’ an argument. How can that be right for an impartial and neutral tribunal?

Thanks to those who left comments on my original Metock post.

Fee cheque bounces

Free Movement — 

Since the introduction of fees for immigration applications in 2003, the Home Office has become fanatical about collection of these fees. If the fee isn’t included with the application, no application is considered to have been made, so your leave to remain might expire while you think the Home Office is considering your new application. In fact, they are just taking their sweet time to let you know that as far as they are concerned, you haven’t even made an application.

This is exactly what happened in the recent case of R (on the application of Forrester) v SSHD [2008] EWHC 2307 (Admin), decided by Mr Justice Sullivan. The immigrant had applied for an extension of stay at a time when she still had current leave to remain and was lawfully present in the UK. However, the cheque to pay the (outrageously high) fee bounced. The application was rejected by the Home Office purely on the grounds that the fee was unpaid, by which time the immigrant’s leave to remain had expired. A new application was then submitted, and the fee was enclosed and was accepted by the Home Office. However, the Home Office then rejected the application solely on the basis that it was made when the immigrant had no leave to remain.

Sensible? Hardly. It was a crass decision, particularly as they took the fee the second time. £395 is quite a lot of money for such an appallingly rubbish ‘service’. Or, as Mr Justice Sullivan put it:

“This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question.”

He goes on to allow the case, referring to the reasoning in Chikwamba as he does so. However, the extent of the decision seemed to be that the decision to refuse solely on non-possession of leave grounds was quashed and the Home Office have to think again, not that leave should now be granted on the basis of ECHR Article 8 family and private life.

Still, it is refreshing to see a sensible decision like this every now and then.

As a postscript, I include a warning that I know of one case where the applicant included too much money and effectively overpaid the fee. The Home Office gallantly refused to accept it, but with the effect that the applicant was left in the same position as Ms Forrester: leave had expired and when the applicant re-applied the Home Office refused the application purely on the basis that leave had expired.

Bonkers.

In the selfless pursuit of immigration-related gossip and news, last Friday I went along to a gathering at a wine bar that was formerly the office of the Refugee Legal Centre. The surroundings have been somewhat improved since the RLC days, it turned out.

The gathering was organised by two ex members of staff and there was quite an impressive turn out. A single bomb, collapsing roof or similar would have wiped out some of the country’s finest asylum lawyers. The Home Office and Legal Services Commission would have been distraught, I’m sure.

Barry Stoyle was not there, sadly. Before his departure in 2005, he was perceived to be very remote by many staff. Nevertheless, he set up RLC, he negotiated its funding from the Home Office and he led it while it became a breeding ground for excellent asylum lawyers.

RLC has quite a history and some remarkable people have worked for the organisation over the years. Even now RLC is still responsible for a number of leading cases and for pushing the boundaries on behalf of their clients.

Someone said to me that it was amazing to see what everyone had gone on to do. Well, it wasn’t that amazing. With some impressive exceptions, we are all immigration lawyers or judges, basically. There were five immigration judges there who had formerly worked at RLC. Despite their past work on behalf of asylum seekers, some of them have far from liberal reputations. I’m not aware of anyone who has tried to run this type of argument in immigration law yet, against membership of either a ‘pro’ immigration group or an ‘anti’ one, although I have previously posted my opinion of immigration judges who later join an anti-immigration lobby group like Migration Watch.

I wish I could report that David Chirico was seen leaving with Razia Kekic, or that Marks Symes and Henderson had a fist fight over who was the Daddy, but everyone was really quite well behaved. Shame, really.