There can be few immigration practitioners who do not presently encounter decisions in relation to applications made on the basis of peoples’ private and family life which do not carry the right of appeal. In recent years the prevailing tendency has become to segregate decisions, where the applicant is an overstayer or illegal entrant, such that refusals to vary leave to remain are made without further steps to enforce removal, leaving migrants without an appealable immigration decision which would gain them access to a merits appeal in the First-tier Tribunal (because overstayers do not enjoy the right of appeal given section 82(2)(d) of the Nationality Immigration and Asylum Act 2002, and absent any duty to make speedy removal directions when refusing applications, see Daley-Murdock  EWCA Civ 161). Numerous considerations arise in these cases as to the remedies available and their scope. Continue Reading…
Archives For ECHR
Stricter conditions for applying to European Court of Human Rights
This just in from someone at the European Court of Human Rights:
I write in the context of your position as editor of the Free Movement Blog. Please be advised that some important changes are to take place as of 1 January 2014 with regards to Rule 47 and the submission of applications to the European Court of Human Rights.
A press release was issued on 11 December 2013, the text of which can be found here.
I would be grateful if you could issue a note on the blog drawing attention to the forthcoming changes.
Human rights medical treatment expulsion cases are perhaps some of the most stark, most difficult and most challenging cases faced by a human rights lawyer. They concern life itself and will often involve a miserable, painful death if unsuccessful. The claimant and his or her family will be understandably desperate to succeed.
Politicians, civil servants and even judges characterise these cases as ‘health tourism’ and reply that individual cases are very sad but the NHS cannot provide universal health care for the entire world.
Human rights lawyers instructed by those reliant on medical treatment in the UK who resist removal face the difficult task of attempting to achieve a good outcome for the client in a very hostile environment amid some very unhelpful case law.
However, recent developments offer hope to some individuals. Continue Reading…
As noted in last week’s lengthy missive, the challenges to removals to Greece continued after the decision of the ECtHR in KRS v United Kingdom  ECHR 1781 culminating in the decision that such removals were unlawful in MSS v Belgium and Greece  ECHR 108. The news of the referral of a case challenging removal to Italy to the Grand Chamber of the European Court of Human Rights is yet another sign that the Italian cases are following the same path as the Greek cases did. Continue Reading…
The London-based research group Corporate Watch has just published a 20-page briefing examining the lawfulness the UK’s mass deportation charter flights. Part of a forthcoming report by Corporate Watch and the campaign group Stop Deportations, it aims to provide campaigners and legal practitioners with some arguments and tools with which to challenge the legality of these flights. This post provides a short summary of the main arguments and findings.
The main focus of the briefing is Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits the “collective expulsion of aliens.”
The Court of Appeal in the UK has very recently granted stays preventing the removal of asylum-seekers to Cyprus under Dublin II. The proceedings have been stayed pending the appeal against the judgment in EM (Eritrea) & Ors v SSHD  EWCA Civ 1336.
The cases are:
- MD (Guinea) v SSHD C4/2012/3166 (Order granted on the 7th March 2013)
- ZJ (Iran) v SSHD C4/2012/2988 (Order dated the 8th March 2013)
- FJ (Iran) v SSHD C4/2012/3361 (Order dated the 14th March 2013)
EM concerns Dublin returns to Italy. In that case, the appellants challenged their removal to Italy on the basis that the conditions there for asylum-seekers and refugees breached Article 3 of the European Convention on Human Rights (prohibition of torture).
The Court of Appeal dismissed the appellants’ challenge because they had not shown there were systemic deficiencies in the conditions for asylum-seekers and refugees in Italy. It was held that:
62. [T]he sole ground on which a second state is required to exercise its power under article 3(2) Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter’s asylum or reception procedures. Short of this, even powerful evidence of individual risk is of no avail.
The judgment in EM impacts upon Dublin cases generally. This is because it confirmed that the test in challenging removal to a Dublin State is to show systemic deficiencies in the general conditions, not ‘simply’ a real risk of a breach of ECHR rights.
Further, individual risk is insufficient to challenge removal.
The Court considered that this was the test set out by the Court of Justice of the European Union (“CJEU”) in NS (European Union law)  EUECJ C-411/10.
The Court proceeded to grant a stay on the removal of the appellants in that case pending their applications for permission to appeal to the Supreme Court.
In making the Order, the Court seemed to doubt the correctness of its own judgment by stating that:
[I]t should be for the Supreme Court to decide whether to grant permission to appeal, but this Court recognises it as problematical that NS and MSS may pull in different directions and that, whilst NS binds the Court, so does the EU principle of not undercutting ECHR rights such as those articulated in MSS.
NS and MSS v Belgium and Greece – 30696/09  ECHR 108 both concerned the removal of asylum-seekers to Greece under Dublin II.
In MSS the European Court of Human Rights found that the conditions for asylum-seekers in Greece breached Article 3 ECHR. In turn, Belgium had violated Article 3 by returning an asylum-seeker to Greece under Dublin II. The Court held:
[T]he existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention” (§35).
NS was a referral to the CJEU by the Court of Appeal on points of law regarding the application of the Dublin II Regulation. The Court endorsed the approach in MSS and held:
[I]f there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision” (§86).
Permission to appeal was granted by the Supreme Court in EM on the 6th March 2013.
The Court of Appeal’s recent stays in the Cyprus cases shows that EM has implications for Dublin cases generally and not just for returns to Italy.
In the Cyprus cases, an Article 3 ECHR challenge is made. Removal is also challenged under Article 5 ECHR (right to liberty and security) and Article 13 (right to an effective remedy.
Clarification of the test by the Supreme Court would shed light on the test for other ECHR rights.
A further issue is whether the systemic deficiencies test (if correct) applies where there is an individual risk to the asylum-seeker, for instance a suicide risk.
The High Court has previously decided that there is no risk of refoulement and/or breach of Article 3 ECHR rights for asylum-seekers in Cyprus, in . However the applicants are relying on fresh evidence, which post-dates that judgment.
We are here dealing with a fast developing area of law, which is in part a response to the changing fortunes of the European Union.
This was the observation of Jackson LJ in AB (9th January 2013), which concerned Dublin returns to Italy. The Court of Appeal in that case has granted permission to appeal against an order of the High Court refusing to grant stays pending EM.
In the Cyprus cases, the SSHD has applied to the Court of Appeal for the Orders to be discharged.
Claire Physsas is Counsel for the Applicants, instructed by Duncan Lewis Solicitors.
In the case of Eweida v UK  ECHR 37 the European Court of Human Rights famously dismissed three out of four religious discrimination applications while managing to appear sympathetic to the cause of religious freedom. The case concerned the right to manifest one’s religious views at work. The only claimant to succeed was Ms Eweida, the British Airways staff member who had been prohibited from wearing a small, simple religious symbol in the course of her employment.
My interest is whether Eweida has any wider significance in what might be described as behavioural persecution protection claims, one of the most interesting areas of refugee law development in Europe at the moment.
To begin with, the judgment reinforces the importance of manifestations of religious belief including the importance of communal worship:
“…freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions…” [para 80]
In Iran communal worship by converted Christians (as opposed to the ethnic Christian community) is either difficult or impossible. Is it therefore persecutory and/or a breach of Article 9 for a person to be returned to a country where he or she will be prohibited from a key aspect of religious adherence? Arguably, yes.
Further, the Court suggests that a State should be wary of making judgments about what another person considers that their faith requires:
“The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance … Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed” [para 81]
The same might be said of UK Border Agency officials and immigration judges. The Court returns to this point in the next paragraph of the judgment, again warning that an external observer must be cautious before making judgments about what another person’s faith requires:
“In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question…”
This is surely all the more so with regard to people from very different cultural and educational backgrounds. For example, in Western Europe many churches or faiths emphasise the importance of textual study as an aspect of faith and its expression. Even for the same religion, or even the same branch of religion, that is less likely to be so in other countries. Christianity, for example, has been very adaptable over the years in the way that the message has been preached to different groups. Missionaries and evangelists responsible for converting people with little education probably do not emphasise the textual aspects of the faith, preferring to concentrate on emotion and feeling.
Lastly for my purposes here, there is a further valuable lesson, and it comes from an interesting source:
The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual’s beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime.
This quote comes from paragraph 45 of the Court’s judgment, but the Court is in fact itself quoting from Lord Nicholls of Birkenhead giving the majority judgment in R (Williamson and Others) v. Secretary of State for Education and Employment  UKHL 15. It is good to see European judges bringing rights home, as Lord Lester would say, in these politically charged times.
The passage is a useful reminder that trying to assess the religious beliefs or faith or religious identity of another person is an extremely difficult, if not impossible, task. This is a problem in asylum cases because a case may turn on whether a conversion to another religion is genuine and whether a person’s religious identity will be compromised in important ways in the country of origin. Faith is axiomatically a matter of feeling and emotion. The UK Border Agency’s preferred ‘Trivial Pursuit’ style of Wikipedia-based religious questions is no way to evaluate another person’s faith.
The passage above from Lord Nicholl’s judgment in Williamson finds an echo in the judgment of Lord Rodger in the HJ (Iran) v Secretary of State for the Home Department  UKSC 31 case:
“To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.” [para 78]
Lord Rodger’s real point is that we should not presume to know the inner life or inner identity of another. He goes on:
“Where would the tribunal find the yardstick to measure the level of suffering which a gay man – far less, the particular applicant – would find reasonably tolerable? How would the tribunal measure the equivalent level for a straight man asked to suppress his sexual identity indefinitely?” [para 80]
The same point is made by Lord Dyson in RT (Zimbabwe) v Secretary of State for the Home Department  UKSC 38 at paragraph 46 before he goes on to conclude:
“What matters for present purposes is that nothing that was said in the Authority’s decision or by us in HJ (Iran) supports the idea that it is relevant to determine how important the right is to the individual. There is no scope for the application of the core/marginal distinction (as explained above) in any of the appeals which are before this court.” [para 51]
How on earth, then, should UK Border Agency staff and immigration judges assess the faith of another person? Or their political opinions, or their sexuality? This unenviable task is required by our asylum system.
The answer is surely provided by HHJ Gilbart QC in the case of R (on the application of SA (Iran)) v Secretary of State for the Home Department  EWHC 2575 (Admin):
It is a dangerous thing for anyone, and perhaps especially a judge, to peer into what some call a man or woman’s soul to assess whether a professed faith is genuinely held, and especially not when it was and is agreed that she was and is a frequent participant in church services. It is a type of judicial exercise very popular some centuries ago in some fora, but rather rarely exercised today. I am also uneasy when a judge, even with the knowledge one gains judicially in a city as diverse as Manchester, is bold enough to seek to reach firm conclusions about a professed conversion, made by a woman raised in another culture, from the version of Islam practised therein, to an evangelical church in Bolton within one strand of Christianity. I am at a loss to understand how that is to be tested by anything other than considering whether she is an active participant in the new church.
The reference to ‘other fora’ I take as one to the Inquisition, when similar doctrinal questions would be used to determine adherence to or deviance from ‘true’ religious doctrines. It seems to be a human trait that many of is like to delve into the lives of others where we get a chance, gossiping and judging friends and family, colleagues and celebrities. The current state of refugee law on future behaviour is widely interpreted as requiring a rather distasteful judgment about whether a person’s sexuality, political opinion (or lack of it) or faith is genuine or affected. This can have a terrible impact on those on whom judgment is passed: it is hard enough being gay and from a country where that is considered anathema without also being rejected by the UK Border Agency and feeling compelled to submit pornographic home movies as evidence. Eweida is a useful reminder that decision makers should not rush to judgment on another person’s inner identity.
After seeing the Strasbourg case of Singh v Belgium (33210/11) highlighted here on Free Movement, Balkrishna Gurung of Howe + Co Solicitors (with assistance from David Saldanha) has commissioned a translation and offered to share it with blog readers. Many thanks!
The key paragraphs concerning the authentication of the documents are at paragraphs 101 to 105. The commissioned translator is not familiar with the house style of Strasbourg, but it is clear that the failure to attach any weight to the documents submitted led to a finding that the national authorities had breached the right to an effective remedy protected by a combination of Articles 3 and 13 of the Convention.
Where document authentication by a national authority would be ‘easy to do’ and is highly material to the outcome, as in this case, the ‘careful and rigorous investigation’ always required of national authorities in protection cases requires that authentication process to take place, otherwise effective protection is not given against treatment contrary to Article 3.
The recent case of the Afghan interpreter who had been blown up on active service with UK forces provides a striking example of the total passivity of the UK Border Agency when it comes to verification, even where it would be simple to do. Media pressure happily brought about a good outcome to that case, but that level of interest is very rare. The Singh case clearly requires a rethink of the old and much criticised Tanveer Ahmed tribunal case, which pushes the burden to the claimant to authenticate any document relied on. Assuming that the UK Border Agency remains unwilling and incapable of even basic investigations or verification, the solution would seem to lie in barring the Agency from asserting that easily verifiable documents are inauthentic and in a new statement of principle from the tribunal disavowing or at least modifying Tanveer Ahmed.
The Upper Tribunal has rejected the Government’s attempt exhaustively to define the scope and meaning of Article 8 private and family life in the controversial new immigration rules introduced in July 2012. The case is MF (Article 8 – new rules) Nigeria  UKUT 00393 (IAC) and the result will be no surprise to any lawyer.
In short the tribunal holds that immigration judges must start their determination of a human rights case by deciding the case under the immigration rules, including the rules that purport to define Article 8. If the case does not succeed under the rules the judge must go on and decide the case under what we might term ‘real Article 8′, as required by s.6 of the Human Rights Act 1998 and the Convention itself. However, the changes to the rules and measures such as the introduction of time periods before residence will be granted do shift the terms of the debate and make clear the added importance the Secretary of State now attaches to deporting foreign criminals.
The determination only deals implicitly with the Home Office’s contention that the new rules also define the best interests of children. No reference is really made to this silly argument other than to record that the tribunal did in fact have to assess the best interests of the affected child and to treat these best interests as a primary consideration.
The headnote to the case is quite comprehensive:
- Prior to the new immigration rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights.
- The new immigration rules set out a number of mandatory requirements relating to claims reliant on Article 8 (“Article 8 claims”) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met.
- Whenever the new rules have application judges are obliged to consider whether an appellant can show he meets the relevant requirements (s.86(3)(a) of the Nationality, Immigration and Asylum Act 2002). Where the new rules afford some related discretion, judges are obliged to consider whether that discretion should have been exercised differently (s. 86(3)(6)). However, what judges are doing when they are conducting this exercise is simply applying the rules: the rules are the rules: see paragraph 10 Mahad UKSC 16. The fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental. The fact that as a result of these changes the rules are longer and incorporate some of the vocabulary of Article 8 makes no difference.
- Because for most purposes the immigration rules must be given legal effect (see Odelola  UKHL 25), their requirements for applicants making an Article 8 claim to show “exceptional circumstances” or “insurmountable obstacles” are to be understood as legal requirements in the same way as any other mandatory requirements of the rules.
- However, the new rules only cover Article 8 claims brought under some, not all, Parts of the Rules and only accommodate certain types of Article 8 claims.
- Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act ( see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person’s Convention rights (s.33(2) UK Borders Act 2007). Thus in the context of deportation and removal cases the need for a 2 stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov v Austria App no.1683/03  ECHR 546, which has been endorsed by the higher courts.
- When considering Article 8 in the context of an appellant who fails under the new rules, it will remain the case, as before, that “exceptional circumstances” is not to be regarded as a legal test and “insurmountable obstacles” is to be regarded as an incorrect criterion.
- However, as a result of the introduction of the new rules, consideration by judges of Article 8 outside the rules must be informed by the greater specificity which they give to the importance the Secretary of State attaches to the public interest. For example, the new rules set out thresholds of criminality by reference to terms of imprisonment so that Article 8 private life claims can only succeed if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds.
The tribunal also for good measure rejects the supposedly retrospective effect of the new rules, which purport to apply new rules to decisions that had already been taken but without issuing new decisions or reason.
The appeal was allowed in this case under the real Article 8.
In a case that in some ways exceptional but in many ways entirely ordinary, the UK Border Agency this week rejected an asylum claim by a young Afghan man. The reason the case was exceptional is that he had previously worked with the British armed forces and been horrendously injured in a Taliban attack that killed a British serviceman. The reason that the case is entirely ordinary is that the UK Border Agency followed its normal processes and approach. The fact the man was covered in scars was irrelevant as there was no ‘proof’ of what caused them. This reasoning is standard even for very serious injuries. The easily authenticated documents presented by the man were rejected out of hand as being capable of being forged. This is standard practice at UKBA who refuse to attempt to check any original document (and yet always demand originals). The easily verifiable account given was rejected as featuring ‘inconsistencies’, even though it took a Newsnight journalist 20 minutes to find two independent sources to confirm the account. This total absence of forensic ability or, frankly, interest by UKBA officials is also typical.
The pernicious, poisonous culture of disbelief that pervades the UK Border Agency is well documented. The Children Society recently reported the effect on children. Asylum Aid published a report last year showing that women were disproportionately refused asylum by officials for arbitrary and unsustainable reasons. This blog has in its own way sought to highlight some of the absurdities of the standard template reasons for refusal that feature in too many decisions.
However, The Daily Mail has been horrified by the man’s ‘astonishing’ and ‘farcical’ treatment at the hands of asylum officials and report that the decision has been withdrawn:
Last night the Agency said it would look again at the case after it appeared that the most basic checks had not been made by officers investigating the 26 year-old’s claim despite it having been lodged 14 months ago.
It is nice to have the Mail on board, and the strength of the campaign run by that newspaper can teach everyone a few lessons in how such things are done.
In an almost unbelievably serendipitous bit of timing, the European Court of Human Rights also this week held that it is a breach of the European Convention on Human Rights to dismiss an asylum claim without even attempting to verify documents presented by the asylum seeker that go to the heart of the issues in the case. Many thanks to the AIRE Centre’s excellent Adam Weiss for flagging it up on Twitter yesterday. The case is Singh and Others v Belgium (application no. 33210/11) and it is a Chamber judgment that is not necessarily final. The Court finds a combined breach of Article 3, freedom from torture or inhuman or degrading treatment or punishment, taken with Article 13, the right to an effective remedy. Unfortunately the judgment is in French (mais non!) but the Court has prepared a press release in English that seems to provide a good summary.
The case was also an Afghan one where the applicant’s nationality was not accepted, this time by the Belgian authorities. The applicants appealed the initial refusal and by the time of the appeal had managed to obtain new evidence showing they had been under the protection of UNHCR in India (suggesting circumstantially that they were Afghan) and that one of them had at that time been delivered a genuine Afghan passport by the Afghan embassy in New Delhi.
The new documents were rejected on appeal on the basis that the UNHCR documents were easy to falsify and without originals the documents had no probative value.
The failure by both the initial decision maker and the appeal body to attempt to verify the authenticity of the highly pertinent documents “was at odds with the close and rigorous scrutiny that the Court would have expected of the domestic authorities, which had thus failed to ensure effective protection against treatment in breach of Article 3.”
The case potentially signals the end of the unedifying era of Tanveer Ahmed (the case deciding that documents stand or fall with the general credibility of the document holder) and should be a wake up call for both the UK Border Agency and the immigration tribunal: the shared burden of proof in asylum cases is real and does not allow for the passive shirking of responsibility. If pertinent documents are capable of quite easy verification then that verification must be undertaken before the documents are rejected as potentially false.