Media By: Michael Spencer


When is it too harsh to separate a child from their parent?

16 October 2020 by

Image: Wikipedia

HA (Iraq) [2020] EWCA Civ 1176 and AA (Nigeria) [2020] EWCA Civ 1296

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.”


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When does a crime cause “serious harm”? Court of Appeal considers the application of Article 8 to foreign national offenders

15 June 2020 by

R (Mahmood and Ors) v Upper Tribunal and Ors [2020] EWCA Civ 717

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.”


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“The Law of Humanity”: Home Office no recourse to public funds policy ruled unlawful

3 June 2020 by

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.


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Immigration and Article 8: what did we learn in 2019?

17 January 2020 by

 human rights in immigration
Field House, seat of the Upper Tribunal

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 general principles having already been established by the Supreme Court (see e.g. in Agyarko [2017] UKSC 11, covered by the Blog here, KO (Nigeria) [2018] UKSC 53, covered by the Blog here, and Rhuppiah [2018] UKSC 58, covered by the Blog here), 2019 saw the Court of Appeal flesh out those principles and clarify the relevant legal tests.

So, for your ease of reference, here are 10 things we learnt about human rights in the immigration context in 2019.


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Supreme Court: capping benefits does not breach human rights of children

12 June 2019 by

R (DA & Ors) v Secretary of State for Work and Pensions; R (DS & Ors) v Secretary of State for Work and Pensions [2019] UKSC 21

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.


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Self-inflicted torture by proxy: inherently unlikely

15 March 2019 by

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.


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Shamima Begum: is stripping her of her citizenship the right response?

1 March 2019 by

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.


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The third inquest into the death of Pearse Jordan: when “don’t know” is the only available answer

28 November 2018 by

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.
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