Unlawful detention: Court grapples with the problem of Zimbabwe’s refusal to accept enforced removals from the UK

robert_mugabe_1154591cUndeniably, there  are long standing  “problems”  between the  Zimbabwean  and UK  authorities but  these  are spilling  over and affecting   whether and how soon the  UK authorities can  deport or remove  affected  Zimbabwean nationals to Zimbabwe.

 

The case of JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773, dealt  with several issues,  ranging from discussion on the  demise  of President Mugabe; whether the Home Office   could   lawfully require the  Claimant, under section 35 of the 2004 Act, to tell Zimbabwean officials that he agreed  to return voluntarily; whether the claimant’s refusal  to  sign  a disclaimer that he would return to Zimbabwe could be seen as deliberate obstruction  rather that a refusal to return voluntarily; whether the Secretary of State  can use section 35 serially, “for as many times as it takes”;  whether  the pursuit of a section 35 prosecution amounted to improper pressure and/or an uncovenanted exercise of the power to detain and whether section 35 can be legitimately used by the Secretary of State both to secure compliance and to justify detention.

 

Continue reading

Of Surinder Singh, McCarthy and exercise of treaty rights: Insufficient evidence defeats damages claim for breaches of EU law

EU familyThe case of Benjamin & Anor, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1626 (Admin)  considers the Surinder Singh  principles,  both in the context of an entry clearance application for an EEA family permit as well as subsequent attempts  to  seek to assert a  right  of entry at port itself.

In Case C-370/90 R v Immigration Appeal Tribunal and Surinder Singh ex parte SSHD [1992] ECR I-4265, the CJEU held that where a national of one EU Member State exercises an EU law right to work or pursue self-employed activity in another EU Member State, she is entitled (on her return to her “home” Member State) to be joined or accompanied by a spouse who is a third-country national, on terms no more onerous than those that would apply if she were seeking to have her spouse join her in a Member State other than her home Member State.

Continue reading

7 Year Children Rule: Court of Appeal Clarifies the Correct Approach to the Reasonableness Test

It has taken all of 3years and 7months for there to be clarification  from the higher Courts as regards the correct  approach to the reasonableness test in Paragraph  276ADE(1)(iv) of the  Immigration Rules. The  Court of Appeal’s judgment on the issue  in MA (Pakistan) & Ors, R (on the application of) v Upper Tribunal (Immigration and Asylum Chamber) & Anor [2016] EWCA Civ 705, makes very interesting reading.

Continue reading

A Letter to the Home Office: Dilemma of An Undocumented Prospective Article 8 FLR(FP) Applicant

Dears Sirs,Home office

You will note from the details I have provided above   as regards  my name and date of  birth that I currently have no  leave to remain in the UK.  As you will also  be aware, I was  granted  leave to enter as a visitor  at Heathrow Airport   in  2001, with such leave being valid  for 6months  at a  time when Zimbabwean nationals were not required to obtain prior  entry clearance  in this category.

Continue reading

Court of Appeal’s Further Guidance On The Correct Approach To Deportation Appeals

deportedIn addition to noting that the  Court of Appeal has  provided  yet further guidance   in relation to deportation appeals in NA (Pakistan) v Secretary of State for the Home Department & Ors [2016] EWCA Civ 662,  legal practitioners  need to brace themselves  for yet further  wordplay  in relation   to newly introduced  deportation  lingo.  We are  now  familiar with  and have   grown  fairly comfortable   with  regularly used  terms such as, “ a free standing Article 8 analysis”  and “ through the lens of the immigration rules”.  The Court of Appeal  in  NA (Pakistan) has  gone further; as noted at paragraph  14 of their  judgement, when considering  the Immigration Rules on deportation, foreign criminals are divided into two categories: those with sentences of between one and four years’ imprisonment and those sentenced to four years or more. The Court of Appeal  then  decided for the sake of “simplicity”,   that the  first category shall be referred to  as ‘medium offenders’ and the second category as ‘serious offenders’.

Continue reading