Are some rights to private life just not cricket?
9 January 2012
Mr Abdullah Manuwar and Secretary of State for the Home Department IA26/543/2010 – Read decision
We have posted on this blog previously on some of the poor reporting of human rights cases. Alarm bells were ringing as the Sunday Telegraph reported student Abdullah Munawar’s appeal on human rights grounds against a refusal to grant him leave to stay in the UK, citing his playing cricket as a reason he had a private life under Article 8 of the ECHR.
However, considering the judgment, the Telegraph article makes a valid point on the limits provided by human rights on immigration decisions, and shows that not all journalism critical of the Human Rights Act is inaccurate.
Article 8 & immigration
The basis of the appeal is a familiar one. Mr Munawar came to the UK as a student, and applied for leave to remain after his three year course finished. This application refused by the Home Office, and his appeal was initially dismissed by the first-tier immigration and asylum Tribunal because he did not satisfy a procedural requirement of the Immigration Rules.
He was granted permission to appeal on human rights grounds, to the Upper Tribunal, which hears appeals from the first-tier. The specific issue was whether the Home Office decision was unlawful under Article 8 of the European Convention on Human Rights – which protects the right to respect for private and family life.
The process to be followed in Article 8 claims is straightforward, and is summarised by Immigration Judge Pitt in this case at paragraph 15, which mentions the leading case of R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27. The Tribunal must decide if there is a private or family life for which the applicant has a right to respect, then whether the decision interferes with it, to a degree that engages Article 8. If it does, the interference must be in accordance with the law, necessary and proportionate to the legitimate aim for which the interference is made.
Mr Munawar’s case
An unusual aspect of this decision was that the appellant did not claim to have family ties in the UK, and relied exclusively on the private life limb of Article 8. In deciding whether Mr Munawar had a private life, Judge Pitt said:
In addition to his studies, the appellant has formed friendships with fellow students and work colleagues. He has been living with student friends. He plays cricket at the weekends and trains in the week. He attends his mosque regularly and follows a personal development course there. His mother and siblings remain in Bangladesh and his father is working in Iraq. He has a paternal aunt and cousins in the UK. He sees them most weekends. His grandmother also lived in the UK but, sadly, she died last year.
It is clear that many factors were considered here. But having a circle of friends, and, yes, playing cricket, were amongst the considerations.
These factors, along with his commitment to study in the UK, may just about be enough to establish a private life. What is more surprising is that the interference was then judged to be a disproportionate violation of this private life because Mr Munawar is someone
who has been studying successfully for 3 years, who has obtained a degree, who has a clear intention to continue his studies in order to obtain a professional qualification and who has demonstrated that he has the requisite language skills and ample funds available to enable him to progress further.
It is surprising because after all, as Judge Pitt acknowledged, Mr Munawar spent most of his life in Bangladesh and would have the social ties constituting a family life there as well. This could certainly form part of the grounds for an appeal of the decision and so the importance of the case might be subject to change.
The case seems to demonstrate the importance of objectively administered rules on immigration: all involved, including the judge, the Home Office’s representative, and articles critical of the case, acknowledged that Mr Munawar is a thoroughly decent person. But of course, this alone should not decide his case.
The reporting
From this analysis, it seems that the Sunday Telegraph was near enough spot on in its article. David Barrett, who wrote the piece, notes that the case may leave open the possibility of many other students using the same argument, “open[ing] the way for thousands of less deserving applicants.” Although of course this is a Upper Tribunal decision and so may well be overturned on the inevitable appeal, it certainly seems that after three years at university most students are likely to make friends and have hobbies, which might flippantly be considered the primary aim for going to university.
However, not all articles were as fair. In the Daily Express, Stephen Polllard provided a rather more extreme interpretation the case: “there is now, it turns out, no such things as a student visa.” Not only this, but he suggests the case can be added to the Bolivian ‘cat case’ (refuted here) and Somalian criminals case (see our post here) to show we no longer control who lives in our own country, due to the “cancer at the heart of British democracy“, the Human Rights Act.
Never mind that the top court in the country makes statements like “the power to admit, exclude and expel aliens was among the earliest and most widely recognised powers of the sovereign state” (Huang v SSHD [2007] UKHL 27) paragraph 5) showing the importance the judiciary places on immigration control.
The cricket case is destined to sit alongside the Bolivian cats and KFC-eating prisoners as another example of human rights gone wrong. It seems, however, that unlike the Bolivian cat case, the case really does throw up important issues and may well be overturned on appeal.
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I thought that Henry’s post on Mulberry Finch post was great and I agree with freemovement that judges have a hard job.
But just to get this into perspective – and I was discussing this with Colm O’Cinneide (of UCL and the UKCLG) when we met in Europe House in December 2011 – exactly how many people actually win on Article 8 when they rely on the private life limb?
First Tier Tribunal judges just throw a fit when they get a whiff that a PBS applicant relied on Article 8 on appeal! Mr Abdullah Manuwar was not different.
In any event most people just leave when their application is refused by the UKBA. It’s not like everyone is willing to take on the authorities and the government knows that expense will be an issue for most applicants whose visas are refused: people leave by the droves when the UKBA tells them to; some, of course, are less scared than others and remain!
Mr Abdullah Manuwar’s case was not all that “contentious”. Chronic overstayers, entering on a 6 month visit visa, who have been in the UK for 6-8 years, win on Article 8 and on Regulation 8(2) of the 2006 Regs too: just as well that these cases are not pounced upon by the press!
FM: “There is a public interest in allowing a hard working, socially engaged, British-educated and well integrated young person to remain in the UK, irrespective of his or her country of origin. Ask his or her friends and family and local community” is too right.
Also @AdamWagner1’s reply to “Simon – why should family pets and recreational sport not be potentially useful to prove that a person has established family / private life? Are you saying that they should be excluded from the exercise completely? If so, on what basis?” is quite right. Animals are living things and are known to have feelings too!
Did he apply to renew his student visa? Well if he did, and as you reported (maybe more info needed) the facts of the case and the judge confirm that he meets the necessary requirements i.e. funds, progress in previous studies etc then rather than talk about HRA, we should be talking about whether the Home Office’s decision was fair and reasonable, not arbitary as they’ve been know for. Unfortunately, in most cases, the HO decisions create the bad press for HRA as most lawyers have no choice/way to defeat the HO with limited means other than use HRA -which serves its essence regardless of (who you are)/nationality of that human being.
No, he didn’t qualify under the Immigration Rules, and fell outside the group of people that qualify because of the Pankina case. So it’s a fair point but in this case, human rights grounds were the only ones available to overturn the original decision.
The concept of private life protected by Article 8 of the ECHR, to which Parliament has committed the courts, is an incredibly broad concept. In the landmark case of Razgar the late Lord Bingham tried to offer some elucidation, based on previous judgments and academic work: “Elusive though the concept is, I think one must understand “private life” in article 8 as extending to those features which are integral to a person’s identity or ability to function socially as a person … Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people’s moral worth by taking account of their need for security.”
The public interest is not all one way in favour of removal. There is a public interest in allowing a hard working, socially engaged, British-educated and well integrated young person to remain in the UK, irrespective of his or her country of origin. Ask his or her friends and family and local community. Local press coverage of deportation stories is often very positive these days. When immigration laws wrench a person from their local community, the local community often isn’t terribly happy about it. On a national stage, where the argument is a generalised one of hard principle rather than specific person the coverage is often much more negative.
Judges have to engage with the specific person and the hard principle, and it isn’t an easy job.
I’ve been meaning to write a post on the regular dredging out of old human rights stories for campaigning purposes for a while and this may finally goad me into it.
Adam – I don’t think I have expressed a view (and my own view is irrelevant). My point on these pages has been that one can choose to disagree with press and politicians on the grounds that the courts don’t factor cats and cricket into the equation OR on the grounds that possession of a cat and a cricket bat are perfectly reasonable factors to consider. But it’s not a good argument to castigate your opponents on both grounds simultaneously.
Simon, what about the intermediate position to the dichotomy you present above (@4.41) – a small amount of weight?
I think the problem is that you are suggesting judges should either ignore this material or they, and we, accept negative press. Adam and others seem to be saying that cricket etc may be considered, but not necessarily given a lot of weight. If this is the situation then it doesn’t seem right to expect judges to use their judgments to stop newspapers exaggerating the importance of peripheral considerations
With respect I think there is a third line of criticism as well as the two you mention @5.00: that the media regularly exaggerate the importance of trivial considerations in human rights judgments, often to criticise the whole HRA.
Sorry to single you out here but I think you’ve raised a good point that deserves a thought-out response. Back to work!
If the catgate page of this blog had said “critics have exaggerated the importance the court attached to the cat” (or something along those lines), I would have been quite content with that page and with this one.
As to your second paragraph, I am not presuming to tell judges to do anything. It’s (some of) the legal commentators I have been taking issue with.
An interesting piece and subsequent discussion.
I must say that I have to agree with Adam and Rachit.
Decisions are to be taken on their particular facts and it is proper to consider all the circumstances and attribute such weight as the tribunal sees fit. I would be inclined to agree with Adam on the cricket/cat point.
In relation to courts stating that particular factors were dismissed as irrelevant, my answer would be the following. It may be pragmatic for a Judge to state that certain factors were not given any weight when arriving at a particular decision, to aid greater understanding of the decision, both public and within the profession. However in relation to ‘practical politics’ it would not be proper for a judge to attempt to avoid negative press for the HRA when evidence of being a part of the local community – in this case the cricket team – formed part of the decision.
I was going to add to the exchange but you’ve made the two points I was going to, Lyndon! I wouldn’t be happy if someone made a representation on my behalf to a judge and it wasn’t considered. And I would be far more worried if judges, in whichever court, saw judgments as akin to PR for a particular law. The media are clearly entitled to publish negative stories following this, but it is the distortion/manipulation that is criticised. The issue ties in with the media ethics part of the ongoing Leveson inquiry.
Did I say that a judge should “attempt to avoid negative press for the HRA”? No I didn’t.
What’s the bottom line in all this? If the courts do NOT consider cricket and cats to be evidential matters which they attach any weight at all to, it would be helpful to lawyers and to the public at large that to be made clear. If, on the other hand, the courts DO attach (non-zero) weight to these matters, there are many (in the press, in parliament and members of the public) who will point derisively at the judgements. I can’t believe that I have three lawyers lined up against me on this!
Simon – why should family pets and recreational sport not be potentially useful to prove that a person has established family / private life? Are you saying that they should be excluded from the exercise completely? If so, on what basis?
Thanks Adam and Simon – I’d like to say that if there was a mistake here, I would take the blame as I wrote the piece! But I gratefully adopt Adam’s defence. I’d also add that there’s criticism here of another article, in the Express, which did suggest cricket was the only reason for making this decision (“Mr Munawar has been granted permission to remain here. Why? Because he plays cricket on Sundays.”) So I’d echo Adam’s point that this is a blatant misrepresentation, though even this perhaps not as much as the ‘cat case’.
Inevitably, headline writers will concentrate on the most interesting point in a case. I don’t think there’s anything wrong with that as long as the underlying case/story is not distorted or misrepresented.
Adam, you seem to be conflating the process point (following its own guidance) with the substantive issue (grounds for the applicant to remain).
If applicants (and their lawyers) adduce cricket and cats as part of their evidence, it is going to attract a negative press for the HRA – unless and until the courts say that these factors were dismissed as irrelevant (which they didn’t).
It’s just practical politics.
But that wasn’t my criticism of the cat case – it was the way the Home Secretary represented it which was the problem.
As to whether courts can consider family pets or recreational sports in assessing family and private life, why shouldn’t they be able to? Indeed, I would argue that a judge would be wrong to ignore that evidence if adduced. I say nothing about the weight such evidence should be afforded.
The negative press is generated by (a) newspapers and politicians mischievously misrepresenting the weight which such factors are given by immigration judges, and (b) judges placing too much weight on them.
I would argue that Catgate is an example of (a), and Wicketgate potentially (let’s see what is said on appeal) of (b)
Adam writes: “As to whether courts can consider family pets or recreational sports in assessing family and private life, … I would argue that a judge would be wrong to ignore that evidence if adduced.”
And I would argue that it’s fair game for others to point to such cases as examples of the HRA (and “human rights” as a chrished concept) being brought into disrepute.
This current debate all started because I failed to spot that the blog above was written by Rachit and not by Adam. Apologies for that, but I infer that no offence has been taken (and no animals harmed) during the writing of these exhanges.
Simon – thanks for the comment.
The cat was a passing reference in the Catgate case. The problem was that the Home Secretary referred to: “The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.”
That is a world away from the Telegraph report in this case:
“a trainee accountant from Bangladesh who came to Britain to study has been granted permission to remain in the country after successfully claiming that he had made friends and played cricket on Sundays.”
The former is a blatant misrepresentation of the case. And the problem went further. It wasn’t just that the cat was one factor considered as part of the overall picture in relation to family rights, as I posted at the time:
“why did the Home Office lose the reconsideration? Because it had failed to follow its own guidance, specifically paragraph 53.4.1: Procedures when dealing with an offender who is the unmarried partner of a person present and settled in the UK of the United Kingdom Border Agency enforcement instructions and guidance.”
So the cat was of vanishingly little relevance, and I’m not sure that even “It is clear that many factors were considered here. But having a relationship and, yes, buying a cat, were amongst the considerations” would have been appropriate in that case. In any event, my criticism was of the Home Secretary’s citation of the cat as the sole reason for the failed deportation, which on any reading was wrong.
I’m intrigued by your observation above: “It is clear that many factors were considered here. But having a circle of friends, and, yes, playing cricket, were amongst the considerations.”
It intrigues me because, in “catgate”, you could just as appropriately have written: “It is clear that many factors were considered here. But having a relationship and, yes, buying a cat, were amongst the considerations.”
But that would have undermined your criticism of those who cited the case with disapproval.
Hope Cricket will not be made unlawful as a result. If Imran wins the Pakistan election he will be angry if the game is outlawed.
Not that it was related to the appeal but it might be a good idea for Tier 4 (General) to be open to people whose visas have expired so that they don’t have to rely on article 8.
Closing up the PBS to people without visas leaves them with no choice but to rely on the ECHR, especially the much battered and maligned article 8 (poor thing!).