After the flurry of excitement we were treated to earlier in October, last week afforded observers of the Supreme Court and legal news an opportunity to relax and catch their breath. However, the Court of Appeal proved to be a bountiful source of judgements, and reliable as always, Brexit continued to occupy the minds of journalists, politicians and lawyers alike.
However, perhaps the biggest story of the week originated in Pakistan. The case of Asia Bibi raises not only profound questions regarding the protection of human rights in the country, but also more substantial concerns about the rule of law, constitutional balance and ability of the government and courts to impose their will in a nuclear armed state at the forefront of some of the world’s most acute geo-political challenges.
Christian Asia Bibi was this week acquitted of blasphemy having spent eight years on death row. However, in a move to disperse ongoing street protests calling for her execution organised by Tehreek-i-Labaik, a conservative political party, the government agreed to refrain from opposing court motions aimed at reversing her release. It also agreed to take steps to prevent her leaving the country. She had initially been found guilty of making offensive statements about the prophet Muhammad after arguing with neighbours.
Over the course of this weekend, her defence lawyer fled to Europe citing concerns about his safety and Mrs Bibi’s husband petitioned the United States, Canada and the United Kingdom for asylum on the grounds of the risk posed to her life if she is required to stay in Pakistan.
In other news this week, Arron Banks, businessman and co-founder of the Leave.EU movement, was reported by the electoral commission to the National Crime Agency in relation to political donations and funding surrounding the 2016 campaign to leave the European Union. Concerns surround the source of an £8 million donation made by Banks’ companies to the campaign. Whilst now the subject of an ongoing investigation, the case raises fascinating questions about the sourcing of political campaigns and democratic legitimacy which will no doubt persist beyond its resolution.
Meanwhile in the courts, recent immigration cases featured strongly amongst the notable judgements…
- The Court of Appeal clarified the rights of unmarried partners of EU nationals to residency – Secretary of State for the Home Department v Christy [2018] EWCA Civ 2378. An American national in a durable relationship with a British gentleman was held to have a right to a residence card derived through his right to exercise freedom of movement pursuant to Article 21(1) of the Lisbon Treaty. The couple had formed their relationship in Poland before they attempted to return to the UK. The Secretary of State opposed her residency application through a narrow interpretation of the judgement in the similar case of Secretary of State for the Home Department v Banger, holding that such rights could only arise when prior residency in a different member state was predicated on the exercise of treaty rights under Article 3(2)(b) of Directive 2004/38EC. However, the court refused such fetters on the free movement of people and invited the Home Secretary to reconsider Christy’s application in light of the established right. You can read more about the decision in Banger from Jonathan Metzer here.
- In another immigration case, a former student’s appeal against the Immigration Tribunal’s judgement that future applications to enter the UK be rejected for 5 years was dismissed by the Court of Appeal – Chanda v The Secretary of State for the Home Department [2018] EWCA Civ 2424 (31 October 2018). The appellant had applied for extended leave to remain as a skilled migrant and relied in doing so on a forged degree certificate implying he had graduated from University College London. After making enquiries to the university, the Home Office rejected his application and refused further applications to enter the UK under the provisions of paragraph 320(7B) of the Immigration Rules. The appellant unsuccessfully challenged the findings of the tribunal that this document was fake or that, crucially for the purpose of paragraph 320(7B), he used deception in his application. He also submitted that such a ban interfered with his article 8 rights given his nine years living in the UK. All such arguments were rejected by the court.
- The Court of Appeal rejected an appeal by an Afghan national against the decision of the Upper Tribunal (Immigration and Asylum Chamber) to deny him asylum on the grounds of a well founded fear of persecution should he be returned to Afghanistan. Instead, it was held that relocation to another area of the country was a reasonable alternative – ST (Afghanistan) v Secretary of State for the Home Department [2018] EWCA Civ 2382 (31 October 2018). Two questions influenced such an analysis, namely a) would the individual face a real risk of persecution in the place of the proposed relocation and b) would it be unduly harsh to expect the individual to relocate in that area. It was found that the individual in question would face a lesser risk in Kabul than his home region and so the judgement of the Immigration Tribunal to deport was upheld.
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