Archives For Article 8

Court of Appeal grants permission on Article 3 and 8 health cases

Important grant of permission from the Court of Appeal in six linked cases addressing issues arising from D and N cases at Strasbourg and subsequent treatment by the UK courts. For some legal background see this earlier blog post. In granting permission Maurice Kay LJ says:

I have indicated that I propose to grant permission to appeal in this case. I do so for a number of reasons. The first is that I accept the submissions on behalf of the applicants that there are arguable issues as to the precise scope of D and N, given the factual circumstances in which those decisions were made. They concern effectively illegal entrants who can properly be described as “health tourists”. None of these six applicants falls into that category, although BA has never enjoyed lawful status in this country.

The second point is that not only are there features in the cases such as lawful residence prior to diagnosis and treatment, or long and mainly lawful residence, there is room for clarification of the criterion of exceptionality which derives from D and N. For example, virtually certain death within two weeks on return following a period of lawful and sometimes lengthy residence in this country may be susceptible to accommodation within exceptionality. It may be that Lady Hale’s judgment in N permits such an approach. In any event it seems to me that there is room for a decision providing clarification.

My colleague Rebecca Chapman is acting for one of the appellants and Duran Seddon for another.

Shahzad (Art 8: legitimate aim) Pakistan [2014] UKUT 85 (IAC)

Like a bad itch that it can’t help but scratch, the tribunal returns again to the subject of Article 8 and ‘the proper approach’. Regretfully the distasteful, injudicious and simply impolite phrase “a run of the mill case” is again deployed, albeit this time in the context of a student rather than a pensioner and his wife. The Home Office appeal succeeds against an allowed First-tier Tribunal determination. Headnote as follows: Continue Reading…

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It is sad when a judge tasked with deciding whether a British pensioner should live out his last days with his wife or without comments that

this was a very run of the mill case

Maybe for the judge. In which case the judge should consider his or her position as a judge. It certainly is not ‘run of the mill’ for those affected. Unfortunately, this patrician insouciance when determining other people’s lives infects many who work in immigration law.

In this case Cranston J goes on to comment that the pensioner concerned only “relatively recently became a British citizen”. He is but a ‘Plastic Brit‘, as The Daily Mail would say.

Continue Reading…

blood transfusion

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…

blood transfusion

The Court of Appeal has held that a different test applies to children in human rights health cases. These difficult cases involve a person seeking to remain in the UK in order to receive life-saving medical treatment not available in his or her home country. The recent case of Rose Akhalu is one well known example and we discussed this type of challenge recently here on Free Movement.

In a new judgment, R (on the application of SQ (Pakistan) & Anor) v The Upper Tribunal Immigration and Asylum Chamber & Anor [2013] EWCA Civ 1251 the Court of Appeal holds that the Article 3 high test of exceptionality does apply in cases involving children, but that the threshold for meeting that test may nevertheless be lower: Continue Reading…

CRAZY May

Theresa May spent over a year saying her new immigration rules would weaken Article 8 rights for “foreign criminals” but conceded the point within a day at the Court of Appeal.

MF (Nigeria) v SSHD [2013] EWCA Civ 1192 makes clear that the Immigration Rules governing deportation now provide a ‘complete code’ for the Article 8 rights of foreign criminals. But they do not change the substantive law relating to Article 8 proportionality assessments and do not create a legal test of exceptionality for succeeding where the Rules are not met.

Continue Reading…

limbodanceparty

Many migrants and their families get caught in a situation where they apply to the Home Office for permission to stay, are rejected but then are unable to appeal the decision to the immigration tribunal. This has long been a problem (‘Refusal with no right of appeal revisited‘) but is becoming even more acute given the terms of Appendix FM and the huge number of arbitrary refusals it is generating.

Although it may well seem counterintuitive, a good outcome can be a formal removal decision from the Home Office. Continue Reading…

gravestones

The case of Rose Akhalu (health claim: ECHR Article 8) [2013] UKUT 400 (IAC) offers a glimmer of hope to some migrants dependent on health care in the UK facing removal. These cases can involve people being sent to their country of origin to die an avoidably early and unpleasant death. It is an extraordinarily difficult and emotive subject and has been covered here on this blog before (GS (India) and medical treatment cases). Continue Reading…

Divided Families day of action

Divided Families day of actionFollowing the All Party Parliamentary Group on Migration’s report published on 10 June 2013 – covered on Free Movement earlier last month - the ‘new’ family migration rules have been debated twice in Parliament.  First, within a Westminster Hall debate on 19 June 2013 (Hansard & video footage) and more recently, in the House of Lords on 4 July 2013 (Hansard & video footage).  The latter was rather ominous, as we now know, that was the day before Mr Justice Blake’s judgment in MM & Ors v SSHD [2013] EWHC 1900 (Admin) handed down on Friday in relation to the income threshold of £18,600 and covered on Free Movement here.

In the first debate, numerous references were made to the fact that the minimum wage amounts to a gross annual income of £12,850 or thereabouts – well below the current threshold in the Rules of £18,600.  In addition, that the average wage in both the private and the public sectors is around £13,000 to £14,000.  The innumerable difficulties experienced under the new rules were described as “perverse outcomes” and comparing the new rules with the old, Sarah Teather, Liberal democrat MP for Brent Central, gets is spot on:

The first thing that is very apparent about the new rules is that they represent a distinct philosophical shift in approach from the old rules. The system used to be tilted in favour of family life, subject to certain basic conditions being met, such as the ability to support a spouse coming into the UK and the ability to meet a basic income threshold, which was pretty much tantamount to a basic income threshold that we would expect around income support levels. Now, the system is tilted entirely in the opposite direction, and against family life, unless someone can meet certain requirements to demonstrate that their spouse who is coming into the UK is desirable in some way and meets some extra criteria. So rather than having a system that was very much about keeping families together, the system now is about serving an overall objective on immigration policy, with family life being significantly relegated in importance. Of course, it is not only family life that is being relegated in importance, but relationships, children’s best interests, basic human compassion and a certain level of common sense.

(…)

Why are the rules being so rigidly and inflexibly enforced? It is because income probably has nothing to do with it. It is not really about trying to prevent a burden on the taxpayer; it is actually about the Government trying to demonstrate that we are reducing the number of foreigners coming into the UK. That is driving it. If anything else were driving it, it would be implemented in a far more common-sense way, there would be much more flexibility around it, and it would not have been set at a level to keep out as many people as possible.

If anything else were driving it, the Rules would simply have not been changed…

In respect of the new elderly dependent relative rules, these are described as a ban masquerading as a rule” and the powerful evidence from the British Medical Association was repeated in relation to the impact of these on consultants and senior doctors, many of whom are second-generation South Asian, and upon whom the NHS is heavily dependent.

The momentum was carried over to the House of Lords debate which took place last week.  Many many passionate contributions were made.  Including this particular outlook from Lord Taylor of Warwick :

“No blacks, no Irish, no dogs”; that was the sign in many windows in Britain in the late 1940s when my father was looking for accommodation. Growing up in Jamaica, he had thought of Britain as the mother land. After fighting for the British Army in the Second World War, he was shocked to be asked, when he came to Britain, when he would be going back home to the Caribbean. But after scoring a century for Warwickshire County Cricket Club he changed overnight from being described in the local Sports Argus as a “Jamaican immigrant” to “local Brummie hero”.

Let us fast forward to August of last year. Instead of racist signs in windows, millions of British TV viewers and thousands in the Olympic stadium cheered a Somali immigrant running to double Olympic gold. What was also significant was that the man from Mogadishu, Mo Farah, was wearing a British vest. Today, many of Britain’s high flyers in public life, business, entertainment and sport are from immigrant backgrounds. This is why the all-party parliamentary group report is so important. It is not an inquiry just about a minority group; it is about the Britain of the future.

To both debates, the Home Office’s representatives (Mark Harper, Immigration minister in Westminster Hall debate and Lord Taylor of Holbeach, Parliamentary Under-Secretary of State, Home Office) very much followed the same mantra:  the new rules are there to safeguard against abuse and to save the tax-payers from sponsoring other people’s family member coming to the UK.

As if from a parallel universe, we are told by Lord Taylor of Holbeach that:

The new family rules are intended to bring a sense of fairness back to our immigration system. The public are rightly concerned that those accessing public services and welfare benefits have contributed to their cost. The changes we have made are having the right impact and they are helping, I hope, to restore public confidence in the immigration system.

The rules themselves were not struck down as unlawful by Mr Justice Blake in MM & Others and instead a variety of less intrusive responses were identified as being available [Paragraph 147 of judgment].  These include:

  • Reducing the minimum income required of the sponsor alone to £13,500; or thereabouts;
  • Permitting any savings over the £1,000 that may be spent on processing the application itself to be used to supplement the income figure;
  • Permitting account to be taken of the earning capacity of the spouse after entry or the satisfactorily supported maintenance undertakings of third parties;
  • Reducing to twelve months the period for which the pre estimate of financial viability is assessed.

It remains the case therefore of maintaining pressure upon the government so that the SSHD heeds the numerous observations made by Mr Justice Blake and makes the necessary adjustments to the Immigration Rules as a matter of urgency.

Tomorrow is the Divided Families Day of Action, which will take place in London.  It’s already been a year since the new rules were introduced and on the first anniversary, Migrants Rights Network, BritCits, JCWI, the Family Immigration Alliance and others have organised two main events:

  • Afternoon demonstration outside the Home Office with speakers and street performers – 4pm – Home Office, 2 Marsham Street, London SW1P 4DF
  • Evening meeting in Parliament chaired by Baroness Ruth Lister bringing together campaigners, supporters and parliamentarians to hear about the impacts of the new rules.  The meeting will welcome valuable supporters including Maggie Atkinson, the Children’s Commissioner for England, and will be a chance for families to share their stories and build the campaign for a change in the rules – 6pm – Parliament, Committee room 10, London SW1A 0AA

Hope to see you there.