In R (on the application of P (DRC) v Secretary of State for the Home Department  EWHC 3879 (Admin), handed down on 9 December 2013, Mr Justice Philips held that P would be at risk of treatment in breach of Article 3 of the ECHR if deported to the Democratic Republic of the Congo. He stated that he reached this conclusion “with considerable regret” [paragraph 54] but was persuaded by the objective material. The risk does not extend to failed asylum seekers for whom the position remains the same as in BK (Failed Asylum Seekers) DRC CG  UKAIT 00098. Continue Reading…
Archives For Deportation
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  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.
At two and three years old respectively, it is considered that x and y are of an age where they would be able to readjust to life without you.
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 Met Police website tells us that:
Operation Nexus, designed and delivered by the MPS and UKBA, aims to maximise intelligence, information and world wide links to improve how we deal with and respond to foreign nationals breaking the law.
AC Rowley, in charge of Specialist Crime and Operations at the Met also states that:
Nexus is dealing with those people who we catch offending, but also takes a long term preventative approach by stopping people from returning or being able to arrive in the first place.
Last week Friday, Operation Nexus featured on the front page of The Times newspaper (for those with the subscription) as the focus of the Operation seemed to be gathering momentum in assisting with the deportation of not only those who have committed crimes but also worryingly, those who may only have been suspected of having done so. This follows in particular the case of Mr Farquharson, who was apparently deported last month. Readers of the blog may recall that his case was recently the subject of a reported determination from the Upper Tribunal: Farquharson (removal – proof of conduct) Jamaica  UKUT 146 (IAC).
The issues considered by Mr Justice Blake and Sir Jeffrey James were that the appellant, Mr Farquharson, had been disadvantaged at the FTT hearing, being a litigant in person and having been served with a lot of police material by the Home Office Presenting Officer on the day of the hearing without being given sufficient opportunity to address this in response. Furthermore, the Upper Tribunal considered the issue of conduct and when and how this can be established in the context of a deportation appeal.
When considering the various factors under Para 395C of the Immigration Rules in relation to the appellant’s case, the Upper Tribunal stated on Mr Farquharson’s ‘Personal history, including character, conduct and employment record’:
We have extensively reviewed his personal conduct above. We are satisfied to the appropriate civil balance that he has used violence and inflicted injury on women when his wishes are frustrated. We are further satisfied that he is forceful in making his sexual demands and his conduct leaves many partners very frightened and anxious to get away from him. We note the persistence of his conduct despite a number of arrests, charges and criminal trials. We note the opinions expressed by his neighbours in the 2011 incident. This occurred at a time when his application for discretionary leave was outstanding. Taken together, we are entirely satisfied that his past treatment of women strongly supports an assessment that he presents a real risk of future harm to women, in particular women are who are vulnerable by reason of addiction, mental capacity or personal circumstances.
The matter was then listed for a ‘re-hearing’ and presumably, Mr Farquharson’s appeal was dismissed resulting in his deportation.
Renaissance Chambers is proud to see that Colin Yeo was called upon by The Times’ Crime Editor, Sean O’Neill, and quoted in Friday’s article drawing the readers’ attention to Operation Nexus’ practice, in the context of those merely suspected of committing a crime. Colin stated as follows:
There is a lower standard of proof in the immigration tribunal and it is easier for the authorities to dispose of a person via that system than using the criminal justice system. The concern is that this offloads the problem to another country. There is also a worry that the immigration tribunal does not provide the same safeguards for a defendant that are built into the criminal justice system. People can be deported on quite limited evidence.
The Times article highlights that Mr Farquharson was tried for one incident in February 2007 but the jury failed to reach a verdict. In May 2007, he was tried for another alleged rape but again the jury could not reach a verdict and a re-trial in October of the same year resulted in another hung jury. This is in contrast with the findings set out above by the Upper Tribunal, which of course would have been on the lower civil standard of proof.
In addition, the social and cultural ramifications of these practices are incredibly worrying and are highlighted by Rita Chadha, Chief Executive of the Refugee and Migrant Forum of East London, cited in the Guardian article on Operation Nexus published on 6 June 2013:
When Nexus first began we were reassured it was only about people who had criminal convictions in this country or in their home countries and who were very high risk.
What we are seeing now is that they are targeting all crimes and low level criminality. This is going to stop victims coming forward in the black and ethnic minority communities because they fear they will be targeted by Nexus. If you have a woman suffering domestic violence in a household of overstayers she is not going to come forward.
This is totally going to mess up local policing and any trust communities have in the police.
A batch of new Upper Tribunal cases have been approved as safe for general consumption by the reporting committee. I posted up three of them yesterday as new short-form ‘link format’ posts with no real commentary, but I wanted to highlight the case of Farquharson (removal – proof of conduct)  UKUT 146 (IAC).
This was a human rights deportation appeal and the decision is signed by President Blake, who says:
“…it is important that legal representation should be available in such cases. The appellant told us that his reading ability is not great. He was able to read back parts of his statement to us to our satisfaction, but absorbing the detail in the CRIS reports would undoubtedly have been a challenge without professional assistance. The appellant will also have been disadvantaged by a long period of pre-appeal detention. We hope that legal aid is granted readily in such cases whatever the apparent weight of the case against him. Without it there is a very real risk that his common law right to a fair hearing will be undermined.”
As a class of case, legal aid was ended for such appeals last week. There is a possibility exceptional funding but the prospects of that being granted are very uncertain. If not, the President makes clear that the common law right to a fair hearing will be in jeopardy if no alternative legal representation can be found. Some organisations and chambers have been meeting to discuss provision of pro bono representation in these cases, but many are concerned that this merely props up a fundamentally unjust system and is akin to offering a sticking plaster for a serious flesh wound. I myself had favoured setting up something like BID but for Article 8 and deportation cases but I am starting to wonder.
A further point of interest arises from the nature of the error of law, which from the determination of the Upper Tribunal seems to have been a blatantly unfair hearing conducted by First-tier Judge Clayton in which all sorts of new evidence from the Home Office was admitted with no notice on the day of the hearing against an unrepresented litigant in person who had difficulty reading. The Home Office made no attempt to argue that there was no error of law. There will of course be many more litigants in person in the coming months and years and judges need to accept that hearings need to be conducted differently in such cases.
The case concerns allegations of bad behaviour that fall short of criminal convictions or even criminal behaviour. The Home Office / police evidence was problematic in places as it was based on assertions and hearsay rather than sources or evidence. The headnote reads thus:
(1) Where the respondent relies on allegations of conduct in proceedings for removal, the same principles apply as to proof of conduct and the assessment of risk to the public, as in deportation cases: Bah  UKUT 196 (IAC) etc applicable.
(2) A criminal charge that has not resulted in a conviction is not a criminal record; but the acts that led to the charge may be established as conduct.
(3) If the respondent seeks to establish the conduct by reference to the contents of police CRIS reports, the relevant documents should be produced, rather than a bare witness statement referring to them.
(4) The material relied on must be supplied to the appellant in good time to prepare for the appeal.
(5) The judge has a duty to ensure a fair hearing is obtained by affording the appellant sufficient time to study the documents and respond.
(6) Where the appellant is in detention and faces a serious allegation of conduct, it is in the interests of justice that legal aid is made available.
Theresa May this weekend launched a blistering and unprecedented attack on ‘a minority of judges’, accused them of ignoring the will of Parliament by refusing to deport foreign criminals. Remarkably, she said that:
A minority think it is their role to determine whether or not foreigners who commit serious crimes shall be deported.
A lawyer’s answer is that this is exactly what judges have been appointed to do and indeed instructed to do by primary legislation passed by Parliament. It is not their role to do as May demands in every single case. This is not North Korea.
Back in June 2012 I wrote that:
May wants judges always to answer ‘yes’ to [the question of whether removal should take place] in every case, but in law they cannot. Our judges remain independent and must carry out an independent assessment. The only ways to achieve what May wants are:
1. Modify the Human Rights Act
2. Withdraw from the Council of Europe
3. Remove access to the courts, or
4. Do away with an independent judiciary.
The nature of her attack on the judges comes perilously close to number 4 on the list. Fortunately, Chris Grayling, the Lord Chancellor, acted swiftly to uphold the continued independence of the judiciary, as is his obligation under s.3 of the Constitutional Reform Act 2005, and issued a statement clarifying May’s myriad misconceptions. It is such a relief to have him in post standing up for the rule of law, otherwise things might have gotten nasty.
As Mr Grayling has done such a fine job, there is no need to repeat the exercise here. May’s claims are clearly nonsense in a legal sense. But it is wrong to see this attack on judges as remotely legal in nature. It is a very effective piece of political posturing that cements her position as a Conservative Party leadership contender.
I wrote previously that the recent human rights cases dealing with the contentious new rules ‘represent a demolition of the Government’s attempts to gain exclusive ownership over Article 8′ (emphasis added to original). I stand by that statement. Parliament has not abolished or modified the Human Rights Act, which continues to bind judges. The debate in the Commons so heavily relied on by May was a farce (read it for yourself, as well as the scrutiny committee report linked yesterday). We still more or less have separation of powers in this country. The judges must continue to rule according to laws passed by Parliament, not according to Government dictat.
If May’s attack can be taken at face value, though, it looks like a time is coming when Parliament will modify the Human Rights Act by passing primary legislation. I doubt many if any politicians would be willing to side against her on behalf of foreign criminals. Once the principle of exception is established, which unpopular group will be next? Foreigners generally? Terrorist suspects? Home grown criminals? Benefits claimants? The disabled? Some religious, ethnic or racial groups? Human rights cease to be universally human when some humans are pushed into the cold outside the tent.
This instrument is drawn to the special attention of the House on the grounds it may inappropriately achieve its policy objective.
House of Lords Secondary Legislation Scrutiny Committee, 6th Report of Session 2012-13, Statement of Changes in Immigration Rules (HC 194)
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.