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There has, in recent years, been a proliferation of case law on appeals against deportation by foreign national criminals on grounds of private and family life. The statutory scheme is complex enough, but the various tests (“unduly harsh”, “very compelling circumstances”) have also been subject to extensive judicial gloss, leaving practitioners and judges to wade through a confusing sea of alphabet-country soup case names.
It will come as welcome news, then, that the Court of Appeal has greatly simplified things by encouraging tribunals to focus on just a handful of key authorities. In doing so, it has also somewhat softened the approach to determining whether separating a foreign national criminal from his settled child or partner is “unduly harsh.”
This judgment concerns the definition of “an offence that has caused serious harm” for the purpose of an appeal against deportation on private and family life grounds under Article 8.In this set of cases, the Court of Appeal took a broad view as to the meaning of this provision, but also held that there must be evidence that the offender has actually caused serious harm.
Foreign national criminals and Article 8
The Immigration Act 2014 made various amendments to immigration law for the purpose of introducing a “structured approach” to the application of article 8 of the European Convention on Human Rights.
These changes included inserting new sections 117C-D into the Nationality, Immigration and Asylum Act 2002, which heavily prescribe the criteria for the assessment of the Article 8 rights of “foreign criminals.”
R (W, a child) v Secretary of State for the Home Department, Project 17 intervening [2020] EWHC 1299
Does the common law protect the right of foreign residents to relief from destitution?
In this judgment on the Home Secretary’s “no recourse to public funds” (NRPF) policy, the Divisional Court of the Queen’s Bench Division has confirmed that it does, citing authority going back to the time of the poor laws.
The judgment will come as a welcome relief to migrants with human rights visas who may be struggling in the wake of the Covid-19 pandemic. It also provides insight into the interaction between the common law and the Human Rights Act 1998.
Another year passes, with another series of higher court cases on human rights in the immigration context.
As in previous years, the courts in 2019 were particularly concerned with Theresa May’s attempts as Home Secretary to codify the Article 8 proportionality exercise into legislation. Those changes have had a significant impact on the approach of tribunals to appeals against deportation and removal on grounds of private and family life. Judges now have to apply a series of prescribed tests under the immigration rules, before going on to consider whether there are exceptional circumstances requiring a grant of leave.
The Supreme Court has rejected a challenge by lone parents with young children to the reduced benefit cap, holding by a majority of 5-2 that its discriminatory effects are justified. Although disappointing for campaigners, the judgment helps to clarify many aspects of discrimination law in the context of social and economic policy.
Background: the benefit cap
The benefit cap was first introduced in the Welfare Reform Act 2012. It applies as a limit on the total amount of welfare benefits that one household can receive if they are out of work, initially set at £500 per week (or £26,000 per annum) for families with children. As the limit applies irrespective of family composition, it has a severe effect on larger families and those such as lone parents with young children who may find it difficult to avoid it by finding work.
KV (Sri Lanka) v Secretary of State for the Home Department[2019] UKSC 10
How likely is it that an asylum seeker, in order to support a false asylum claim, invited another person to inflict him with serious burn wounds under anaesthetic?
This startling possibility – wounding “self-inflicted by proxy” (SIBP) in the jargon – was the subject of this extraordinary appeal. The Supreme Court concluded that injury SIBP was “likely to be extremely rare.” In the process, it gave important guidance on the treatment of expert medical evidence in asylum cases.
Michael Spencer is a pupil barrister at One Crown Office Row.
The fate of Shamima Begum, the British teenager who joined the Islamic State in Syria (ISIS) and has asked to return home, has divided opinion.
Home Secretary Sajid Javid’s
decision to deprive the 19-year-old mother of her citizenship is apparently
popular: a recent poll
found that 78% support the move.
But others have raised concerns about the propriety of using such a draconian power against a British citizen by birth in circumstances where she may be rendered stateless, also leaving the fate of her child uncertain.
From Bethnal Green schoolgirl to
ISIS bride
Ms Begum was born in the UK to
parents of Bangladeshi heritage. She was
one of three 15-year-old schoolgirls from the Bethnal Green Academy who
travelled to Syria via Turkey in 2015 to join ISIS.
The Metropolitan Police
subsequently apologised to the
families for failing to warn them that the schoolgirls were at risk and
suggested that they would not face criminal charges if they returned to the UK.
After arriving in Raqqa, Syria, Ms
Begum married ISIS fighter Yago Riedijk, a Dutch national. She had three children with him, two of whom
died. Her youngest son, Jarrah, was born
in a Syrian refugee camp in February 2019.
The press caught up with Ms Begum just before she gave birth and she has given a series of incendiary interviews. She claimed that she had been “just been a housewife for the entire four years” and that she had not done anything “dangerous” or made propaganda. However, she also said she had “no regrets” about joining ISIS and suggested that the Manchester Arena bombings were justified because of the bombing of civilians in Syria.
In the latest in the protracted investigation into the death of Pearse Jordan, the Northern Ireland Court of Appeal has upheld the verdict of a Coroner who found himself unable to decide all the relevant facts – Re Theresa Jordan [2018] NICA 34. The case raises issues around the appropriate burden and standard of proof in inquests, particularly after a significant passage of time.
The Inquests
On 25 November 1992, Patrick Pearse Jordan was shot and killed at Falls Road, Belfast, by an officer of the Royal Ulster Constabulary, referred to in proceedings as “Sergeant A.” Mr Jordan was unarmed and was shot in the back. Three inquests have subsequently been held into his death. Continue reading →
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