Monthly Archives: June 2021

Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside

Posted on by Standard Reply

 “It’s is now time for the Home Office to remove the offending parts in Guidance Derivative rights of residence. The Guidance appears misleading and results, as intended, in a discouragement of or an unlawful bar on entitled would- be applicants from relying upon the EEA Regulations”, so concluded a blog post of nearly one and half years ago- Automatic/Blanket Zambrano refusals: FTT Judge finds amended Zambrano Guidance an inaccurate reflection of the 2016 EEA Regulations | UK Immigration Justice Watch Blog

Following Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin), that is what the Secretary of State may well have to do, ie amend or publish new Guidance affecting those with  a Zambrano right to reside.

Zambrano and Appendix EU

As is widely known, since 1 May 2019, a ‘person with a Zambrano right to reside’ has been able to apply for settled status (indefinite leave to enter or remain in the UK) or pre-settled status (limited leave to enter or remain in the UK) under the EU Settlement Scheme.

In the case of Zambrano, the CJEU found that a European Union (EU) Member State cannot refuse a person the right to reside in that State, where to do so would deprive their dependent EU citizen children (who reside and are nationals of that State) of genuine enjoyment of the substance of their EU citizenship rights by forcing them to leave the European Economic Area (EEA).

The primary carer of a British citizen will have a derivative right to reside in the UK based on Zambrano if both the following apply:

  • the British citizen is also residing in the UK
  • the British citizen would be unable to reside in the UK or in an EEA Member State or Switzerland, if the primary carer left the UK for an indefinite period

The conditions to be satisfied for a derivative right to reside based on Zambrano are set out in regulation 16(5) of the 2016 EEA Regulations.

Appendix EU refers partly to the relevant provisions of the EEA Regulations when defining a ‘person with a Zambrano right to reside’. Therefore, the applicant will be a ‘person with a Zambrano right to reside’ under Appendix EU where, they are resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, satisfying several criteria.

The Akinsanya litigation

The case of Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin) (09 June 2021), concerned the decision of the Secretary of State on 29 September 2020 refusing Ms Akinsanya’s application under the EU Settlement Scheme (“EUSS”) as a ‘person with a Zambrano right to reside‘.

Deliberately calculated amendments to the Regulations and Guidance:

The Court made references to the following:

  • Regulation 15A of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) was noted to have been impeccably drafted and accurately reflected the true legal scope of the decision in Zambrano, namely that holding indefinite leave to remain in the UK, and nothing but such indefinite leave, would automatically debar an application from being made for a Zambranoderivative right of residence under Regulation 15A. Regulation 15A, as well as the Guidance issued at that time accurately stated that a person with limited leave would be entitled to apply for a Zambrano derivative right of residence. For this reason such a person was not designated as “exempt”.
  • The Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) replaced the 2006 Regulations.  When making the 2016 Regulations the Secretary of State decided to maintain in Regulation 16(7)(c)(iv) only indefinite leave as the criterion for an exempt person; there was no hint that at that point she considered that the definition of exempt person should be expanded to catch all those with limited leave to remain.
  • On 7 March 2019 Secretary of State promulgated the EUSS. She laid before Parliament on that same day the Immigration (European Economic Area Nationals) (EU Exit) Regulations (SI 2019/468), which came into force three weeks later on 28 March 2019. These made amendments to the 2016 Regulations. Specifically, a new Regulation 16(7A) was added which stated: “(7A) Leave to enter, or remain in, the United Kingdom under the 1971 Act which has been granted by virtue of Appendix EU to the immigration rules is not to be treated as leave for the purposes of paragraph (6)(b) or (7)(c)(iv)”. Therefore, on 7 March 2019 the Secretary of State modified the definition of an exempt person to exclude someone who has been granted leave to remain in the UK under the EUSS. It was noted by the Court that the Secretary of State modified the definition of leave to allow someone granted leave under the EUSS nonetheless to apply for a Zambrano derivative right to reside, yet she chose not to modify any other aspect of the regime governing leave
  • Paragraph (b) in Annex 1 of Appendix EU to the Immigration Rules was promulgated on 7 March 2019 and defined a person with a Zambrano right to reside as a:  “a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:
    …. (b) without leave to enter or remain in the UK, unless this was granted under this Appendix
  • On 2 May 2019, the Secretary of State issued Guidance documents under challenge namely “Free Movement Rights: derivative rights of residence” (version 5.0). This stated that people with limited leave to remain could not apply for a Zambranoderivative right to reside and provided that: “A derivative right to reside is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer.…Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.…This means that a Zambrano application must be refused if the applicant: has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available; has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.” The Court stated that it was it troubling, to say the least, that this instruction should have been issued requiring staff to ignore the clear terms of the 2016 Regulations, and therefore to act unlawfully.
  • Home Office Guidance, “EU Settlement Scheme: person with a Zambranoright to reside” (version 4.0 of 27 April 2021) states: “A Zambrano right to reside is only available to a person who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or as a dependant of that primary carer. As set out in sub-paragraph (b) of the definition of a ‘person with a Zambrano right to reside’ in Annex 1 to Appendix EU, an applicant cannot meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain in the UK, unless this was granted under Appendix EU. An applicant cannot therefore meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain granted under another part of the Immigration Rules (such as Appendix FM) or on a discretionary basis outside the Rules”.

How the litigation arose

It was established that Ms Akinsanya, a sole carer of a British citizen child was granted 30 months limited leave to remain under Appendix FM until 11 January 2022, with no condition preventing recourse to public funds. Her subsequent application of 29 January 2020, under the EU Settlement Scheme for indefinite leave to remain under Appendix EU of the Immigration Rules, on the basis that she was a Zambrano carer with five years’ continuous residence was refused by the Secretary of State in September 2020. The Secretary of State decided that the claimant was not eligible for the EUSS because she had already been granted limited leave to remain, and so was barred by paragraph (b) of the definition of ‘person with a Zambrano right to reside’ in Appendix EU.

Ms Akisanya sought an order in the Administrative Court quashing the decision made by the Secretary of State on 29 September 2020 refusing her application under the EU Settlement Scheme (“EUSS”) as a ‘person with a Zambrano right to reside‘. She also sought other declaratory and quashing relief.

The question the Court had to decide, was whether the right to reside was automatically extinguished if there was, at the time that it is claimed, a concurrent limited leave to remain.

The Secretary of State’s position was that the true meaning of Zambrano is that any national award of limited leave to remain acts to thwart an application for a Zambrano derivative right to reside.

A win in the Administrative Court

In allowing the Claimant’s application for judicial review, the Court concluded:

  • The Zambrano principle is simple and clear. An EU citizen, who happens to be a small child, is entitled to enjoy the full benefits of EU citizenship, of which the principal one is living in EU territory. If her primary carer were to be expelled from EU territory, and if in the real world the EU citizen would have to accompany the carer, then the EU citizen is denied the benefits of her citizenship. Therefore, her carer has to be granted residence in the relevant EU state.
  • In the Court’s judgement, a proper analysis of the EU cases clearly demonstrates that the court did not consider a limited leave to remain under national law to be a Zambranoextinguishing factor
  • Nothing decided in the CJEU or domestically since the decision in Zambranosupports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano On the contrary, it is clear from the facts of Zambrano itself that the CJEU tacitly acknowledged that a limited national leave to remain, and a wider Zambrano right to remain, in many cases can and will coexist.
  • The Secretary of State erred in law when she formulated paragraph (b).

In relation to issues raised as regards amendment of the 2016 EEA Regulations, the following came under consideration:

  • It was noted that the argument advanced on behalf of the Secretary of State was that the Court should construe the 2016 Regulations so that they conform with what she maintains to be the true scope of the Zambrano The Court indicated that it had already rejected the Secretary of State’s argument that the true scope of the Zambrano jurisprudence does not extend to people with limited leave to remain.
  • If the natural meaning of the words in the domestic measure appears to grant its users an uncovenanted bonus then the corrective remedy lies in the hands of the rule makers and Parliament, and not in the hands of the judges.
  • Even if the Court was wrong about the juridical scope of the Zambrano decision, its judgment nonetheless was that neither a textual nor a contextual construction of Regulation 16 can yield a meaning which so radically reduces its reach.  It would amount to judicial amendment not interpretation.
  • What was being suggested was to add words( i.e limited leave) to a domestic statutory instrument which have the effect of stripping away rights from what may be a substantial cohort of applicants.
  • It was the Court’s judgment that, irrespective of the true scope of the Zambrano jurisprudence, the natural, fair, reasonable and plain meaning of the words of Regulation 16 entitle an applicant under the 2016 Regulations for a derivative right to reside to have the application determined by reference to the prescribed eligibility criteria in that Regulation rather than being struck out peremptorily. The existing words in Regulation 16 are clear and the proposed amendments go well outside the permissible range of meaning of those words.

Why the Secretary of State has not yet made the amendments to the Regulations herself

In Akinsanya, the Court asked why the Secretary of State was asking the Court to do her amending for her: if the Secretary of State was so anxious that persons with limited leave to remain should also be designated as exempt persons, it would be the easiest thing for the 2016 Regulations to be amended again.

The Court was informed by those representing the Secretary of State that this would not be straightforward as the 2016 Regulations had in fact been revoked by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Sch.1(1) para.2(2) with effect from 31 December 2020, but the revocation has effect subject to savings specified in two statutory instruments made pursuant to that Act.

The Court noted in summary, that the effect of the savings is to allow people in the position of the claimant whose rights had vested prior to implementation day on 31 December 2020 to make their claim, however, it was apparently, not straightforward to make amendments to these preserved provisions.

Declarations by the Court and a quashing order

The Court made the following declarations:

  • The Secretary of State erred in law when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a “person with a Zambrano right to reside” includes paragraph (b) “a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix.”
  • The Guidance issued by the Secretary of State (1) “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and (2) “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) is legally erroneous insofar as it states that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) Regulations 2016, by satisfying the criteria in regulation 16(5) of those Regulations.

The Secretary of State’s decision of 29 September 2020 refusing the Claimant’s indefinite leave to remain under Appendix EU of the Immigration Rules was quashed.

Developments: The Consent Order of 17 June 2021

The Claimant’s application for further relief was adjourned to 17 June 2021.

Appended to the Akinsanya judgement published on 9 June 2021, is a Consent Order dated 17 June 2021.

The Consent Order provides as follows, amongst other matters:

a.The Secretary of State is to reconsider the relevant provisions of Appendix EU of the Immigration Rules (“Appendix EU”);

b.The Secretary of State will not determine applications made under Appendix EU on the basis that the applicant is or was a person with a Zambrano right to reside (‘Zambrano application’) and is affected by the Court’s judgment, until after she has completed her reconsideration of Appendix EU;

c.In paragraph (a)(v) of the definition of ‘required date’ in Annex 1 to Appendix EU the reference to “limited leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which has not lapsed or been cancelled, curtailed or invalidated” includes leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which is extended by operation of section 3C of the Immigration Act 1971;

d.To the extent that paragraph 34BB of the Immigration Rules applies to a Zambrano application, it will be disregarded where there is (i) an outstanding valid Zambrano application for leave to remain under Appendix EU and a valid application for leave to remain is subsequently made under Appendix FM based on the same circumstances; and (ii) an outstanding valid application for leave to remain under Appendix FM and a valid Zambrano application for leave to remain is subsequently made under Appendix EU based on the same circumstances as the Appendix FM application;

e.The Secretary of State intends to implement and publicise a policy under which, for a reasonable period of time which she will specify, but which will be for a period of not less than six weeks after publication of the outcome of her reconsideration referred to at a. above, Zambrano applications made on or after 1 July 2021 will be deemed, under the definition of ‘required date’ in Annex 1 to Appendix EU, to have reasonable grounds for the person’s failure to make that application at the earlier date relevant under that definition;

f.In accordance with paragraph (c) of the definition of “EEA Regulations” in Annex 1 of Appendix EU, the question of whether an applicant is a person with a Zambrano right to reside as defined in Appendix EU in respect of a period on or after 1 July 2021 is to be determined on the basis of the Immigration (European Economic Area) Regulations 2016 as they had effect immediately before they were revoked, and, where the context requires it, on the basis that they had not been revoked;

g.Where a valid Zambrano application is made on or before 30 June 2021, the Secretary of State provides the applicant with a certificate of application confirming their entitlement to work, study and rent a place to live, until final determination of their Zambrano application;

h.The Secretary of State is considering the position in relation to the issue of similar certificates for applications made under Appendix EU on or after 1 July 2021, including in relation to Zambrano applications;

i.Before expiry of the period referred to in e., above, where persons are encountered by Immigration Enforcement on or after 1 July 2021 who may be eligible for leave as potential Zambrano applicants under Appendix EU in light of the judgment, such persons will be provided with written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.

**In relation to further information as to the effect of the Consent Order and other helpful clarifications as well as a further point of reference in relation to the Akinsanya litigation, the information provided by Hackney Community Law Centre is of assistance: www.hclc.org.uk/2021/06/zambrano-carers-and-the-euss-scheme-what-you-need-to-know/

Conclusion

What the Secretary of State has since 2019 been hard at work on, i.e a deliberate thwarting of would-be Zambrano applicants, has been stalled. Whatever the outcome of the pending litigation in the Court of Appeal, for now at least, the Secretary of State should accept that the Akinsanya litigation has opened the door wide open for applications from hundreds or even thousands of Zambrano primary carers of British citizens- not only from those with limited leave to remain, but applicants without any leave, including third country primary carers subject to deportation.

Court of Appeal: 7year provisions do not create a presumption in favour of a 7year child being granted leave to remain

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The Court of Appeal in NA (Bangladesh) & Ors v Secretary of State for the Home Department [2021] EWCA Civ 953 (24 June 2021)  has just decided that the “powerful reasons doctrine”  in R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, [2016] 1 WLR 5093 no longer remains good law, following KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273.

Not only that, but NA(Bangladesh) concludes that the seven-year provision does not create a presumption in favour of a seven-year child and their parents, being granted leave to remain.

Summary background

In summary, the appeal in NA(Bangladesh) concerned two Bangladeshi nationals, who having overstayed in the UK since 2005 and 2009 respectively, submitted a leave to remain application based on the 7year Rule in reference to the relevant qualifying child(YS), who was born in the UK on 21 July 2010.

The application of 5 April 2018 was refused on16 August 2018. On appeal, both the First Tier Tribunal and Upper Tribunal dismissed the appeal.

Relevant provisions

The Court of Appeal noted that permission to appeal had been given as it was considered that the appeal raised an issue of general importance about the correct approach to paragraph 276ADE (1) (iv) of the Immigration Rules and section 117B (6) of the Nationality, Immigration and Asylum Act 2002 (which falls under Part 5A of the Act).

YS ‘s claim was based on paragraph 276ADE (1) (iv) of the Rules, under which a person under the age of 18 will be entitled to leave to remain if they have lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect them to leave the UK. YS had at the time of the Secretary of State’s decision lived in the UK for more than seven years, and it was his case that it would not be reasonable to expect him to leave the UK.

Section 117B (6) of the 2002 Act states:

“……………………….

In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a) the person has a genuine and subsisting parental relationship with a qualifying child, and

(b) it would not be reasonable to expect the child to leave the United Kingdom.”

“Qualifying child” is defined by section 117D (1) as:

“a person who is under the age of 18 and who—

(a) is a British citizen, or

(b) has lived in the United Kingdom for a continuous period of seven years or more.”

YS’s parents and his younger sibling, were not entitled to leave to remain under the Rules. The parents relied on section 117B (6).

The Court noted that YS had at all material times been a qualifying child under alternative (b) because he had lived in the UK for more than seven years. There was no dispute that both parents had a genuine and subsisting parental relationship with him, and accordingly that element (a) in subsection (6) was satisfied. The only issue, as regards the parents’ claim, was whether, as required by element (b), it was reasonable to expect YS to leave the UK. If it was not, the parents would be entitled to leave to remain, and YA would have to be given leave to remain with them.

Caselaw considered:

Runa v Secretary of State for the Home Department [2020] EWCA Civ 514, [2020] 1 WLR 3760

Secretary of State for the Home Department v AB (Jamaica) [2019] EWCA Civ 661, [2019] 1 WLR 4541

KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53, [2018] 1 WLR 5273

SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245, [2017] ScotCS CSOH 117

R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) [2016] EWCA Civ 705, [2016] 1 WLR 5093

PD (Sri Lanka) v Secretary of State for the Home Department [2016] UKUT 108 (IAC)

EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874

Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690

Appellant’s argument

It was the Appellants’ case that in considering the reasonableness question the Upper Tribunal should have proceeded on the basis that it would not be reasonable for a seven-year child to be expected to leave the United Kingdom unless there were “powerful reasons to the contrary” –, ie “the powerful reasons doctrine”. It was submitted that such an approach was required by the decision of the Court of Appeal in (MA (Pakistan).

It was submitted that it was an error of law for the Upper Tribunal to hold that “the powerful reasons doctrine” did not survive KO (Nigeria).

MA(Pakistan)’s approach to the “reasonableness test”

The Court in NA(Bangladesh) stated that the main issue of principle decided in MA(Pakistan), in which Elias LJ gave judgement, was whether, in considering whether it was reasonable to expect a child to leave the UK when he or she had lived here continuously for seven years, the focus should only be on factors relating to the child (“the narrower approach”) or should incorporate all matters bearing on the public interest, including the conduct and immigration history of the parents (“the wider approach”).

Elias LJ in MA(Pakistan):

  • rejected at paragraph 40 of his judgement a potential argument in favour of the wider approach that since it is generally in a child’s best interests to live as part of the family unit, it will generally be reasonable to expect the child to leave the United Kingdom with the parents if they do not have leave to remain
  • at paragraph 45 of his judgment stated that the then very recent decision in MM (Uganda) v Secretary of State for the Home Department[2016] EWCA Civ 450 constituted binding authority in favour of the wider approach

Having adopted the wider approach, Elias LJ referred to how “the reasonableness test” should be applied:

“46.Even on the approach of the Secretary of State, the fact that a child has been here for seven years must be given significant weight when carrying out the proportionality exercise. Indeed, the Secretary of State published guidance in August 2015 in the form of Immigration Directorate Instructions entitled “Family Life (as a partner or parent) and Private Life: 10 Year Routes” in which it is expressly stated that once the seven years’ residence requirement is satisfied, there need to be “strong reasons” for refusing leave (para. 11.2.4). These instructions were not in force when the cases now subject to appeal were determined, but in my view they merely confirm what is implicit in adopting a policy of this nature. After such a period of time the child will have put down roots and developed social, cultural and educational links in the UK such that it is likely to be highly disruptive if the child is required to leave the UK. That may be less so when the children are very young because the focus of their lives will be on their families, but the disruption becomes more serious as they get older. Moreover, in these cases there must be a very strong expectation that the child’s best interests will be to remain in the UK with his parents as part of a family unit and that must rank as a primary consideration in the proportionality assessment.”

The “powerful reasons doctrine” emanates from Paragraph 48 of Elias LJ’s judgment:

“48. Although this was not in fact a seven year case, on the wider construction of section 117B(6), the same principles would apply in such a case. However, the fact that the child has been in the UK for seven years would need to be given significant weight in the proportionality exercise for two related reasons: first, because of its relevance to determining the nature and strength of the child’s best interests; and second, because it establishes as a starting point that leave should be granted unless there are powerful reasons to the contrary”.

What the Supreme Court in KO(Nigeria) said regarding the approach to the “reasonableness test”

Lord Carnwath delivered the only judgment in KO(Nigeria). He referred to the decision of the Upper Tribunal, in PD (Sri Lanka) and stated at paragraph 10, referring to an Immigration Directorate Instruction:

“The President … cited … relevant guidance contained in an Immigration Directorate Instruction (‘IDI’) of the Home Office entitled ‘Family Life (as a partner or parent) and Private Life: Ten Year Routes’, published in August 2015, extracts of which were appended to the judgment … . They included a section headed ‘Would it be unreasonable to expect a non-British citizen child to leave the UK?’, under which were set out a number of ‘relevant considerations’, such as risk to the child’s health, family ties in the UK and the likelihood of integration into life in another country and:

‘b. Whether the child would be leaving the UK with their parent(s)

It is generally the case that it is in a child’s best interests to remain with their parent(s). Unless special factors apply, it will generally be reasonable to expect a child to leave the UK with their parent(s), particularly if the parent(s) have no right to remain in the UK.’

There was no reference in the list to the criminality or immigration record of the parents as a relevant factor.”

At paragraphs 16 to 17 of his judgement, Lord Carnwath considered the interpretation of paragraph 276ADE (1) (iv) and section 117B (6). The Court in NA(Bangladesh) summarised the effect of Lord Carnwath’s considerations in those paragraphs:

  • the reasonableness question must be approached in the same way under both paragraph 276ADE (1) (iv) and section 117B (6); and
  • agreeing with Elias LJ’s preferred narrower approach in MA(Pakistan)and over-ruling MM (Uganda), both provisions are concerned only with “what is ‘reasonable’ for the child”, and accordingly that the conduct of the parents is irrelevant.

At paragraph 18 of his judgement in KO(Nigeria), Lord Carnwath stated:

“18. On the other hand, as the IDI guidance acknowledges, it seems to me inevitably relevant in both contexts to consider where the parents, apart from the relevant provision, are expected to be, since it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material, if it leads to their ceasing to have a right to remain here, and having to leave. It is only if, even on that hypothesis, it would not be reasonable for the child to leave that the provision may give the parents a right to remain. The point was well-expressed by Lord Boyd in SA (Bangladesh) v Secretary of State for the Home Department 2017 SLT 1245, [2017] ScotCS CSOH 117:

’22. In my opinion before one embarks on an assessment of whether it is reasonable to expect the child to leave the UK one has to address the question, “Why would the child be expected to leave the United Kingdom?” In a case such as this there can only be one answer: “because the parents have no right to remain in the UK”. To approach the question in any other way strips away the context in which the assessment of reasonableness is being made …”

Lord Carnwath went on to state at paragraph 19 in KO(Nigeria):

“He noted (para 21) that Lewison LJ had made a similar point in considering the ‘best interests’ of children in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 in EV (Philippines) v Secretary of State for the Home Department [2014] EWCA Civ 874, para 58:

’58. In my judgment, therefore, the assessment of the best interests of the children must be made on the basis that the facts are as they are in the real world. If one parent has no right to remain, but the other parent does, that is the background against which the assessment is conducted. If neither parent has the right to remain, then that is the background against which the assessment is conducted. Thus the ultimate question will be: is it reasonable to expect the child to follow the parent with no right to remain to the country of origin?’

To the extent that Elias LJ may have suggested otherwise in MA (Pakistan) para 40, I would respectfully disagree. There is nothing in the section to suggest that ‘reasonableness’ is to be considered otherwise than in the real world in which the children find themselves.”

In relation to paragraphs 18 and 19 set out above, the Court in NA(Bangladesh) sought to simply matters and stated that Lord Carnwath’s point was that, notwithstanding his conclusion that the parents’ conduct is not material as such, to the extent that it has led to their not having leave to remain it will still have been “indirectly” material to the reasonableness question because:

  • the reasonableness question has to be considered on the “hypothesis” that the parents will have to leave (that is the so-called “real world” point supported by the citation of SA (Bangladesh)and EV (Philippines), and
  • it will normally be reasonable for a child to be with their parents.

“powerful reasons doctrine” in MA(Pakistan) inconsistent with Lord Carnwath’s reasoning in KO (Nigeria)

In NA(Bangladesh), the Court of Appeal emphasised the following:

  • for the purpose of the specific point that Lord Carnwath was making in paragraph 18, it was only necessary for him to establish that the fact that the parents had no leave to remain couldaffect the outcome, not that it normally would.
  • Although Lord Carnwath’s reasoning is expressed in terms of it normally being reasonable for a child to bewith their parents, not of it normally being reasonable for him or her to leave with them, it was not right to read his judgment in so limited a sense.
  • The upshot is that the effect of Lord Carnwath’s reasoning in KO (Nigeria)is that, even on the narrower approach, in a case falling under the seven-year provision where neither parent has leave to remain the starting-point for a decision-maker is the common-sense proposition that it will be reasonable to expect the qualifying child to leave the UK with their parents. That is necessarily inconsistent with the so-called “powerful reasons doctrine” apparently endorsed by Elias LJ in MA (Pakistan). 

The seven-year provision does not create a presumption in favour of a seven-year child and their parents being granted leave to remain

In dismissing the appeal in NA(Bangladesh), the Court of Appeal concluded:

  • It followed from the analysis provided that the Upper Tribunal Judge was right to reject the submission that “the powerful reasons doctrine” remained good law
  • the seven-year provision does not create a presumption in favour of a seven-year child, and thus their parents, being granted leave to remain.
  • It was important, however, to emphasise that the approach approved by Lord Carnwath in KO (Nigeria)does not provide for a presumption in the opposite direction. It represents no more than a common-sense starting-point, adopted for the reasons given at paragraphs 18 to19 of his judgment.
  • It remains necessary in every case to evaluate all the circumstances in order to establish whether it would be reasonable to expect the child to leave the UK, with his or her parents.
  • If the conclusion of the evaluation is that this would not be reasonable, then the “hypothesis” that the parents will be leaving has to be abandoned and the family as a whole will be entitled to leave to remain: in the case of a qualifying child that will be under paragraph 276ADE (1); in the case of the parents it will be under article 8, applying section 117B (6); and in the case of any non-qualifying child it will derive from the fact that the parents have leave.
  • It was made clear that the Secretary of State acknowledged that in that evaluation the fact that the child had been in the UK for more than seven years would be a material consideration,
  • A question posed on behalf of the Appellant was noted: if the effect of passing the seven-year milestone is not to create some kind of presumption against removal what is its significance?  In response, the Court indicated that it agreed with the Secretary of States submission that the question failed to take into account the fact that the seven-year provision is, as it is put in Runa, a one-way provision which, if it is satisfied, definitively answers the public interest question in favour of the child (and his or her parents) without the need to undertake a general proportionality exercise. That means that other considerations weighing in favour of removal (such as the conduct of the parents) are excluded, as the endorsement in KO (Nigeria)of the “narrower approach” confirms.
  • In relation to the submission that on the facts of the case if the Upper Tribunal Judge had applied the “powerful reasons doctrine” he would have had to allow the appeal, the Court concluded that there was no such doctrine meant that that question does not arise.
  • It was noted that the Appellant’s case in the First-tier Tribunal was that the return of the family to Bangladesh would cause difficulties and disruption for the children, and particularly for YS, who had some medical problems. The Court of Appeal however stated that the conclusion of both tribunals was that those difficulties were not such that it would be unreasonable to expect YS to return or to render his removal otherwise disproportionate.

Conclusion

Many a case has been won relying on the “powerful reasons doctrine” in MA(Pakistan). Unfortunately, that “doctrine” has now been laid to rest.

Unless there is more to the facts, the parents in NA(Bangladesh) seem to have remained in the UK without leave for a considerable number of years, during which time it seems, no applications to regularise their status were made to the Home Office until after YS was well over the age of 7years.  Many applicants relying on the 7year rule will similarly have remained under the “radar” for many years. Unless able to establish that it would be reasonable to expect the relevant child to leave the UK, NA(Bangladesh)’s restatement of principles relevant to the “reasonableness test” has potentially devastating consequences.

The Court of Appeal did note that on 11 November 2020 YS became a British citizen, but stated that was common ground that that fact was immaterial since it post-dated the decision which was the subject of the original appeal.

If YS’s parents were to submit a further application relying on the fact that they now have a British citizen child, would that application have a better chance of success? In such circumstances, the application itself to the Home Office would no longer include reliance on the 7year rule, but on exceptional circumstances(section 117B(6) would however kick in again at appeal if the application is refused, with the result that the same conclusions could be reached even if reliance is being placed upon family life with a British child).

On raising exceptional circumstances, the provisions of Appendix FM would be relevant:

“GEN.3.2.(1) Subject to sub-paragraph (4), where an application for entry clearance or leave to enter or remain made under this Appendix, or an application for leave to remain which has otherwise been considered under this Appendix, does not otherwise meet the requirements of this Appendix or Part 9 of the Rules, the decision-maker must consider whether the circumstances in sub-paragraph (2) apply.

(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application”.

Family Policy, Family life (as a partner or parent), private life and exceptional circumstances, relevantly defines the meaning of “relevant child”, “exceptional circumstances” and ‘unjustifiably harsh consequences’.

Alternatively, as YS is a British citizen child, an application may be made under the EU Settlement Scheme by the parents as a “person with a Zambrano right to reside”.

Zimbabwean Embassy re-documentation interviews: How the practice has led to a grant of refugee status

Posted on by Standard Reply

Three weeks following written notification from the Home Office that leave as a refugee had been granted, a shiny new BRP card has just been received.

It has been a battle lasting two years, but finally the claimant has been recognised as a refugee, achieving vindication following their public outcry that the practice the Home Office had adopted, working together with Zimbabwe Embassy officials, exposed them to persecution on return to Zimbabwe.

Much has been said in the media since 2018 regarding the Home Office practice of permitting Zimbabwean Embassy officials access to undocumented Zimbabweans in the UK.  A few blog articles delve into the effects of this practice:

The Home Office’s general position in response to refugee sur place claims arising out of Zimbabwean Embassy re-documentation interviews

An undocumented Zimbabwean claimant may seek to put forward a fresh claim for asylum arguing that following Home Office action in facilitating a re-documentation interview with Embassy officials, the consequence is that:

  • he has been exposed to an increased/enhanced risk on return to Zimbabwe;
  • he will be identified as a person who has claimed asylum in the UK;
  • he will have an anti – regime stance imputed to him; and
  • he will be viewed as someone unable to demonstrate loyalty to the Zimbabwean regime.

The Home Office’s general responses to such claims includes the following:

  • Interviews to obtain the information required for Emergency Travel Documents (ETD) are a common practice of the Home Office.
  • The Home Office regularly arranges such events, both in person and over the telephone, in order to facilitate the removal of individuals, who have no leave to remain, from the United Kingdom to their home country.
  • ETD interviews are purely to establish nationality of a subject.  They are mandatory part of the returns process and conducted for a large majority of countries when seeking to return those with no legal right to remain in the UK
  • The ETD would be issued by the Zimbabwean authorities. It does not necessarily follow that there is a reasonable likelihood that the individual will be at risk on return.
  • No evidence has been provided to support the claim that the Home Office may have provided details of the claimant’s asylum claim to the Zimbabwean officials.
  • Upper Tribunal country guidance has found that an individual would not be at risk on return to Zimbabwe, as failed asylum seeker or as a returnee from the United Kingdom.

How to counter

Whatever else submissions were advanced by the recently recognised refugee, their fresh asylum claim arose directly out of being subjected to a mandatory re-documentation interview with Zimbabwean Embassy officials.

Such an interview was at the behest of the Home Office.

The Court of Appeal in MS (Zimbabwe) v Secretary of State for the Home Department [2021] EWCA Civ 941 (22 June 2021), observed that the Upper Tribunal in that case was prepared to accept that Zimbabwe, ‘remains a society where brutality and human rights abuses continue to take place”.

That is the starting point when seeking to emphasise that subjecting potential returnees directly to agents of  such a brutal regime for prior “vetting” exposes them to risk on return.

What however must be addressed by the claimant’s statement, the written representations and supportive documentary evidence, is exactly how and why it is being said that particular claimant will be at risk on return following such an interview.

A Subject Access Request may need to be obtained. It is important to request a copy of the ETD application package that was given by the Home Office to the Zimbabwean Embassy official either in advance of the interview or on the day of the interview itself.

As matters progress, a relevant and appropriate country expert may(funding permitting) need to be instructed.

Are re-documentation interviews still being rolled out?

A relevant question currently might be whether Zimbabwe Embassy re-documentation interviews are still being rolled out by the Home Office.

In early May 2021, an undocumented Zimbabwean was provided a standard letter requiring that they provide information and documentary evidence to establish their nationality and identity to the Home Office at an appointment. The form of this letter is provided to persons of any nationality who no longer have pending representations or claims and are therefore liable to removal or deportation. Prior to the onset of the Covid-19 pandemic, this “first stage” of the re-documentation processes would have ordinarily been followed up by a further appointment to enable an interview with Embassy officials.

It currently seems since early 2020, following announcement of the first lockdown, that Embassy interviews with undocumented Zimbabweans have not been taking place. Indeed, generally across the country, some individuals of different nationals subject to reporting requirements have had these conditions temporarily suspended in light of the pandemic.

Nonetheless, the Country Returns Guidance: 2021 still indicates the following in relation to the ETD application process relating to Zimbabwean returnees:

“All ETD applications should be submitted to the Returns Logistics Team 1.

A mandatory face to face interview will then be arranged through RL Country Liaison and Documentation team 1. This will be through interview schemes at IRC’s, Reporting Centres and prisons. Interview outcomes will be notified via CID.
Only voluntary cases can be interviewed at the High Commission in London. In such cases the ETD application should be signed by the subject and submitted direct to the HC. RL team 1 will arrange an interview”.   

Mandatory face- to-face interviews therefore continue to be the practice to be followed to enable the issue of an ETD.

Following lifting of lockdown, undocumented returnees may find themselves face- to-face with a Zimbabwean Embassy official, subject to a mini interrogation and being prompted to speak a language other than English( i.e Shona or Ndebele).  It is important immediately thereafter for affected individuals to re-visit their case and circumstances so as to ascertain whether they are in a position to put forward a fresh claim for asylum.

 

Revocation of Refugee Status: Reliance on submitted country expert report not sufficient to depart from CM(Zimbabwe) says Court of Appeal

Posted on by Standard Reply

Is MS (Zimbabwe) v Secretary of State for the Home Department [2021] EWCA Civ 941 (22 June 2021) entirely unwelcome “bad news” for Zimbabwean asylum claimants in the UK, or

  • does it merely maintain the status quo in refusing to depart from CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 59 (IAC)?
  • in refusing to depart from CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 59 (IAC), is the decision in MS(Zimbabwe) merely reflective of the particular evidence that was before the Upper Tribunal and Court of Appeal?
  • is there room for other categories of Zimbabwean claimants( i,e those not in MS’s position) to continue to seek protection in the UK, without being restricted to showing a “significant MDC profile”?

Background

MS arrived in the United Kingdom in 2004, when he was 14. He had indefinite leave to enter to join his mother. She had been recognised as a refugee after a successful appeal against the Secretary of State’s decision to refuse her claim for asylum. MS’s mother had been recognised as a refugee because of her actual or imputed political opinion as a supporter of the Movement for Democratic Change (‘the MDC’). When she applied for asylum, even low-level supporters of the MDC were at risk. MS’s refugee status was linked to his mother’s. MS’s father had stayed in Zimbabwe. He died in 2012. MS went back to Zimbabwe for the burial. MS also returned for about ten days in 2015, with his two sisters, to visit their father’s grave.

On 11 June 2012, MS was convicted, on his plea of guilty, of a count of robbery, for which he received a sentence of eight years’ imprisonment.

The Secretary of State decided to revoke his refugee status and to deport him to Zimbabwe. The First Tier Tribunal(FTT) allowed MS’s appeal from  the decision of the Secretary of State to revoke his refugee status and to deport him to Zimbabwe. However the Upper Tribunal allowed the appeal of the Secretary of State from the decision of the FTT, deciding that the Refugee Convention had ceased to apply to MS.

MS’s reliance on a country expert report

It was argued on MS’s behalf that the Upper Tribunal failed to give ‘proper consideration to crucial aspects of expert evidence’ about the risk faced by people who cannot show their loyalty to ZANU PF.

The appeal was noted by the Court of Appeal to raise a short point about the Upper Tribunal’s approach to the evidence in the Report.

The following arose in relation to the Report:

  • It was contended that the Upper Tribunal had failed, without explanation, to adopt the conclusions in paragraph G of the Report’s ‘Brief Summary of Findings, which stated:‘With due consideration to the profile of [MS], the evidence available to me, and my own in-country knowledge, it is my opinion that it is plausible that [MS] will be identified as a person of adverse interest to SSF and a person with an imputed political opinion. It is my opinion that those who are identified at the airport as being of sufficient interest to merit further interrogation are at real risk of harm. As a person who has benefitted from refugee status in the UK and is the son of a political refugee, it is plausible that [MS] is at risk of persecution by the CIO on his arrival at Harare International Airport, including arbitrary arrest, detention, torture and ill-treatment as a result of his imputed political opinion and his inability to demonstrate loyalty to ZANU PF’.
  • The purpose of the Report was to support MS’s claim that he had a fear of persecution on Convention grounds if he were deported to Zimbabwe.
  • It was noted that the Report had two premises: MS will have a political opinion imputed to him, and he will not be able to show that he is loyal to ZANU PF.
  • Those representing MS submitted on his behalf that a premise of the Report was that he had no personal political profile, but that it showed that the state now targets all those who are not supporters of ZANU PF.

Issues of concern noted by the Court of Appeal in relation to the Report

The Court of Appeal raised the following issues concerning the expert Report:

  • The first two sentences of paragraph 56 of the Report stated that the police were out ‘in full force’ in Bulawayo and Harare on 30 July 2020. They blocked streets and they did ‘random searches’ of commuters. The Court noted that those representing the Secretary of State pointed out that no context for this incident was provided and no checkable source.
  • Paragraph 57 of the Report stated that on 2 August 2020, an armed convoy of the police and the army drove through the Central Business District in Bulawayo, and prevented the people who lived there from buying food or using cash points. The source for this, referred to in a footnote, was ‘Telephone interviews 2 August 2020 with research respondents who are also residents of suburbs of Bulawayo’.
  • The source for the second part of paragraph 57 of the Report was a telephone interview with a ‘former Scottish police constable who was director of a charity in Zimbabwe’, on 17 October 2018. The person was not identified. The Court stated that source was relied on for this sweeping assertion: ‘The current country conditions in Zimbabwe leave human rights campaigners, government critics, political opposition, those suspected of being members of the political opposition, or those unable to demonstrate affiliation with ZANU PF, at higher risk of state violence including torture, rape and death than was the case in 2007/2008, or, indeed, since 1999’.
  • In paragraph M, the ‘Brief Summary’ asserted that ‘having to demonstrate loyalty to ZANU PF to obtain food aid is country wide and not restricted to rural communities.’ MS was said to be ‘at risk of serious harm and persecution if he is unable to demonstrate loyalty to ZANU PF in exchange for food aid. This is contrary to paragraph 29 of the Home Office Notice of Decision of 13 December 2013.’ The Court of Appeal noted that this sweeping assertion was based on one example: an incident which as described in the Report when, on 10 July 2019, a ZANU PF activist demanded, before giving food aid to villagers (in one particular village) that they showed that they were loyal to ZANU PF.  The Court also observed that it had not been able to find a relevant Home Office decision dated 13 December 2013 in the papers for MS’s case, which led the Court to wonder whether this paragraph had been copied from a report in a different case.
  • Paragraph 47 of the Report referred to an attack by security forces on an MDC MP in Bulawayo in August 2019. That attack was said to be ‘contrary to the claims of paragraph 30 of the Home Office Notice of Decision dated 13 Dec 2018, which states that “the country guidance caselaw demonstrates that even high-profile MDC members face no risk of persecution in Bulawayo. It is considered therefore that you could settle in Bulawayo and your claimed interaction with Mr Ncube six years ago would not place you at risk of persecution”‘. The Court of Appeal enquired of the Secretary of State whether there was any decision by the Secretary of State in MS’s case dated 13 December 2018, and whether MS had ever claimed to have had an interaction with Mr Ncube.  It was noted that the answer to both questions was ‘No’. Those representing the Secretary of State offered the explanation that this paragraph had been cut and pasted from a report in a different case.
  • Paragraph 74 of the Report cited two sources (the dates of which were not obvious in the footnotes) for a claim that:‘The CIO meet flights arriving in Harare when British Immigration officers’ [sic] or their representatives shand [sic] over failed asylum seekers to their Zimbabwean counterparts. Over the past 15 years there have been reports of failed asylum seekers being victimised, including being beaten upon their arrival at Harare Airport. It is my opinion that the country situation has not changed since the reports dating back to 2002 and the CIO have continued to detain asylum deportees at Harare Airport and interrogate them’.
  • The Court observed that the reasoning in paragraph 74 seemed to be the basis of the expert’s view, expressed in Report, that ‘the current country conditions indicate that it is plausible that on his return to Zimbabwe [MS] may be identified as a person with an imputed political opinion in line with that of his mother.’

Relevance of country guidance case of CM(Zimbabwe) and the Upper Tribunal’s response to the submission that it be departed from

The Court of Appeal noted that the Upper Tribunal took the decision in CM (EM country guidance: disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) (‘CM‘) as its starting point.

In CM(Zimbabwe) the Upper Tribunal confirmed earlier country guidance that there had been ‘durable’ changes since the previous country guidance, RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The Upper Tribunal in MS ‘s appeal was noted to have cited the guidance in CM extensively.

The following was considered by the Court:

  • In sum, the Upper Tribunal decided in CM(Zimbabwe)that there was significantly less political violence than in 2008. The mere fact that a person was returning from the United Kingdom as a failed asylum seeker, would not, if he had no significant MDC profile, expose him to a risk of having to prove his loyalty to ZANU PF. It would be otherwise if a person with no connections with ZANU PF returned to a rural area (other than Matabeleland) after a long absence in the United Kingdom. The situation was not uniform in rural areas. A person returning to Matabeleland was, in general, unlikely to face difficulty even if he supported the MDC. A person returning to a low or medium density area in Harare was unlikely to face significant difficulties. If he returned to a high density area, in general, a person without ZANU PF connections would not face difficulties, such as a loyalty test, unless he had a significant MDC profile. A person returning to Bulawayo would face no difficulty, even if he had a significant MDC profile.
  • The Upper Tribunal in MS’s appeal described, by reference to paragraphs 11 and 12 of the Upper Tribunal’s Guidance Note 2011 No 2, the circumstances in which it could depart from country guidance.
  • The Upper Tribunal recorded MS’s submission that the background evidence and the expert Report were ‘very strong grounds supported by cogent evidence’ for departing from CM(Zimbabwe).
  • The Upper Tribunal in MS’s appeal accepted that the Expert had expertise in ‘Zimbabwean social and political matters’. The Upper Tribunal was noted to have given ‘due weight’ to her opinions. Her view was that the current situation was comparable to that considered in RN (Returnees). Those at risk were not simply those who are seen to support the MDC, but also those who cannot show positive support for ZANU PF, or alignment with the regime.
  • In considering MS’s appeal, the Upper Tribunal however rejected the claim that the current political climate was comparable with the situation [in RN (Returnees)], and that anyone who cannot demonstrate positive support for ZANU PF or alignment with the regime is at risk in Zimbabwe.
  • Although the Upper Tribunal accepted that there was evidence of a ‘spike in violence’ around the time of the 2018 elections, and of a crackdown on opposition leaders, there was, however, no evidence that the decline in violence reported in CM(Zimbabwe) had reversed in the previous six years. Spikes in violence at election times were nothing new in Zimbabwe, and did ‘not necessarily affect the overall downward trend’. They were not inconsistent with a finding of ‘significant and durable change in Zimbabwe’.
  • The Upper Tribunal described some of the submitted material and concluded that ‘The evidence is not necessarily indicative of ZANU PF politically motivated human rights violations against simple supporters of the opposition or MDC’.
  • The Upper Tribunal stated that 16 years after he had left Zimbabwe, no-one would have any particular memory of or interest in MS by reason of his relationship with his mother. He had returned to Zimbabwe in 2012, and he and his sisters, in 2015. There was no evidence that they had been targeted in any way because of an imputed political reason, or because of their relationship with their mother.

Court of Appeal’s reasoning and conclusions

In dismissing MS’s appeal, the Court of Appeal concluded that:

  • A Tribunal of fact is not bound to accept expert evidence if it disagrees with that evidence. That is so even if the expert witness is not cross-examined. The tribunal of fact is entitled, and obliged, to examine the analysis and reasoning in the expert’s report. It is obliged to reach its own conclusions on any questions of fact, or mixed questions of fact and law, which it must decide in order to determine a case. It may accept guidance from an expert on those questions, but is not obliged to accept it.
  • The Upper Tribunal was not obliged to accept the conclusions in paragraph G of the Brief Summary, just because they were the conclusions of an experienced expert. The Upper Tribunal was entitled, and obliged, to ask itself whether those conclusions were rational conclusions, and whether, and if so, to what extent, they were supported by the material cited in the Report. The more inscrutable an expert’s conclusion is, the less likely it is that a tribunal of fact will be obliged to accept it.
  • The Upper Tribunal was entitled to decide that old reports which pre-dated CM(Zimbabwe)did not amount to cogent evidence enabling it to depart from CM. The Upper Tribunal was plainly entitled to reject paragraph G, to the extent that it suggested that MS would be identified at Harare Airport as a person with an MDC profile.
  • The Upper Tribunal was entitled, and obliged, to ask itself what material in the Report supported a general proposition that a person generally who cannot show that he is loyal to ZANU PF, or a person who, in particular, needs food aid, and who cannot show that he is loyal to ZANU PF, is at risk of ill treatment in Zimbabwe. On analysis, paragraph 91 of the Report was the only material which supported that proposition. The Upper Tribunal was entitled to conclude that that material did not support the general proposition that a person who cannot show his loyalty to ZANU PF is at risk of ill treatment in Zimbabwe
  • There was no suggestion in the Report that MS would be entitled to the protection of the Convention if the only risk he would be exposed to in Zimbabwe would be a risk of random state violence which was not connected with, or caused by, his political profile (either, an MDC profile, or an inability to show, when required, his loyalty to ZANU PF). Ill treatment which is meted out randomly is not connected with, or caused by, a particular political profile, or by the absence of political profile. It is simply not related to the political profile of its victims in any way.
  • The Upper Tribunal recognised that there were examples of random attacks, and was entitled and right to say that a common thread to many of the incidents referred to by the expert is that the attacks were upon supporters of the political opposition, leaders, and those perceived as critics of the government.
  • Paragraphs 56 and 57 of the Report were the foundation for MS’s argument that the Upper Tribunal was obliged to depart from CM(Zimbabwe). This material did not meet the relevant test. It was not cogent, because it was wholly irrelevant to the question whether or not MS continued to need the protection of the Convention.

The Court of Appeal dismissed MS’s appeal.

Still seeking to argue a departure from CM(Zimbabwe)?

Where the decision in MS(Zimbabwe) is considered substantially reflective of the particular evidence that was before the Upper Tribunal and Court of Appeal, MS(Zimbabwe) does not signal the end of the argument that CM(Zimbabwe) should be departed from (and also that new country guidance caselaw should be promulgated).

What then should properly researched and sourced background evidence address?

Having regard to the Court of Appeal’s judgment in MS(Zimbabwe), the answer is clear with reference to the basis upon which the Upper Tribunal dismissed MS’s appeal and from the submissions put forward on behalf of the Secretary of State.

There is a need therefore:

  • to show evidence of attacks on people who are not just political activists, journalists, or active supporters of the opposition.
  • To show much much more than just two incidents (see paragraphs 56 and 57 of the Report above) on seeking to establish cogent evidence to justify a departure from the country guidance
  • in relation to evidencing random violence against civilians by the government, where possible by way of an expert report, to analyse trends in violence since CM(Zimbabwe). Show evidence (if possible) that violence has increased since CM(Zimbabwe) to the levels which existed in 2008. Show the incidents are supported by checkable sources.

What MS(Zimbabwe) leaves open to argue

Had MS been able to show a potential risk arising from the profile his mother had had, some 20 years previously and/or MS’s inability to show that he was loyal to ZANU PF, his protection claim might have had some chance of success.

The Court of Appeal observed that those representing MS accepted that there were three relevant groups of people at risk in Zimbabwe:

(a) those who had an MDC profile (a group which did not include MS),

(b) those who could be attacked randomly (and whose political profile was irrelevant) and

(c) those who could not show that they were loyal to ZANU PF (and there was only one example of ill treatment on that basis in MS’s appeal).

For those not in MS’s position and for example able to fall into categories (a) or (c) and with the Upper Tribunal in MS having accepted that Zimbabwe  “remains a society where brutality and human rights abuses continue to take place”, rather than seek to argue that levels of violence have increased since RN(Zimbabwe) was published in 2008 etc, an option argument might be, as per a recent successful claim, that following the publication of CM(Zimbabwe) itself:

  • the Secretary of State’s background evidence makes it clear that anti-regime activity continues to be met by human rights abuses and repression in Zimbabwe.
  • the background evidence (and the expert report where prepared) make it abundantly clear that a person with the claimant’s profile will be at real risk of ill-treatment from the authorities for his anti-regime activity. The option of internal relocation does not apply as the claimant will be at risk on arrival at the airport in Zimbabwe.

Lessons learned

In submissions, on behalf of the Secretary of State, it was stated in relation to the Report that, “overall, there was nothing in paragraphs 56 or 57 which showed that test for departing from CM was met. That material, far from satisfying the test, was ‘very thin indeed’”.

It is worth considering drawing MS(Zimbabwe) to the attention of any country expert instructed to address issues of risk on return related to Zimbabwean claimants.

Proof -reading and double-checking the contents of a prepared expert report before submission to the Tribunal is a must. It is not unusual to find one or two brief erroneous references in some expert reports which may be highly indicative of copying and pasting from elsewhere, however experts will quickly amend a report and remove inapplicable sentences or paragraphs where their attention is drawn to it.

It is important not to rely substantially or wholly upon the researched background evidence referred to within an expert report to support arguments on matters of risk on return related to persecution of opposition or suspected opposition supporters. In reference to a country such as Zimbabwe, there is a multitude of reliable background evidence that can be sourced online to support an asylum application or appeal. A mere two hours dedicated to research of relevant and reliable background evidence is not sufficient. Where a legal representative does not have regularly updated extracts of background evidence including sources links accrued over time, then, so as to “catch-up”, 4hours or more hours dedicated to delving  into research  on risk matters will be required.

 

Overstaying visitor parents: Requirements of Adult Dependent Rules a powerful factor in Article 8 proportionality assessment

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“When people from overseas choose to make a life in the UK they are not entitled to expect that they will later be able to bring their parents to join them. The Government has decided as a matter of considered policy that that right should generally be restricted to cases satisfying the strict criteria set out in the sections denoted EC-DR and ILR-DR under Appendix FM to the Immigration Rules; and in Britcits this Court has found that policy to be legitimate. The Appellant did not apply under those rules, no doubt because she could not on the evidence have satisfied their requirements. That is not in itself conclusive that the refusal of leave to remain would be proportionate; but, as Carr LJ explains, it is highly material, and like her I can see no error of law in the Judge’s evaluation.

I should say that the Appellant has not assisted her cause by overstaying for almost two years between the expiry of her visitor’s visa in July 2015 and her making of the present application….”,  as per Lord Justice Underhill Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021)

On the basis of Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 (14 June 2021), parents  or other dependant adult relatives viewed as  having sought to circumvent the  demanding entry clearance Adult Dependent Relative route by coming as  visitors to the UK, overstaying and then applying for leave to remain outside the Immigration Rules, are unlikely to succeed in their Article 8 family life claims.

 

BACKGROUND

The appellant, a 66-year-old widow of Pakistan nationality, had been a frequent visitor to the UK from September 2007 and last entered the UK in June 2014 on a visitor’s visa.

She had a son and two daughters, in the UK all of whom are residents in the UK and are British citizen.  The appellant visited her children in the UK, spending only 12 months in Pakistan after 2011 and the rest of her time in the UK.

On 14 July 2017 the appellant made an application for leave to remain on the basis of her family and private life in the UK on the basis that it was unreasonable to expect her to leave the UK on account of her circumstances. She was living with her son and financially dependent on her children, in particular her son. The children were all financially independent and supported her with private healthcare insurance and accommodation in the UK. She would not be relying on public funds or NHS services. Her daughter, was also very dependent on the appellant for childcare for her young son, the appellant’s grandson. The appellant suffered from arthritis and high blood pressure. Her application was refused by decision dated 11 January 2018.

Both the First Tier Tribunal and Upper Tribunal dismissed her appeal against the refusal decision.

 

COURT OF APPEAL’S SUMMARY OF PRINCIPLES RELATING TO FAMILY LIFE IN THE CASE OF ADULTS

As regards the Court of Appeal’s summary of the relevant principles relating to family life in the case of adults, the following flows from their judgement:

“43.As set out above, the appellant’s application for leave so far as relevant to this appeal was not made under either of the above routes, but rather outside the Immigration Rules on the basis of Article 8 which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

44.The relevant principles relating to family life in the case of adults have been explored in a line of well-known authorities including Kugathas; Singh v ECO New Delhi [2004] EWCA Civ 1075 (“Singh 1”); ZB (Pakistan) v SSHD [2009] EWCA Civ 834 (“ZB”); Singh v SSHD [2015] EWCA Civ 630 (“Singh 2”); Britcits; AU v SSHD [2020] EWCA Civ 338 (“AU”). The position can be summarised as follows.

45.Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.

46.However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions. Indeed, in a case where the focus is on the parent, the issue is the extent of the dependency of the older relative on the younger ones in the UK and whether or not that dependency creates something more than the normal emotional ties.

47.The ultimate question has been described as being whether or not this is a case of “effective, real or committed support” (see AU at [40]) or whether there is “the real existence in practice of close personal ties” (see Singh 1 at [20]).

48.Assuming that family life is established and Article 8 thus engaged, the relevant question (when dealing with the application of Article 8 to the removal of non-settled migrants who have developed a family life with someone while residing unlawfully in the host state) can be put in one of two ways, one positive and one negative:

  1. i) Whether or not the applicant’s right to respect for his/her family life under Article 8 imposes on the host country an obligation to permit him/her to continue to reside there (a positive obligation); or
  2. ii) Whether or not removal would be a disproportionate interference (a negative obligation).

As was remarked in Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799 (by Lord Reed at [32]), however, the mode of analysis is unlikely in practice to make any difference to the outcome. One is essentially asking the same question and considerations of onus of proof are unlikely to be important where the relevant facts have been established. Ultimately, whether the case is considered to concern a positive or negative obligation, the question is whether a fair balance between the relevant competing interests has been struck.

49.A central consideration when assessing the proportionality of the removal of non-settled migrants from a contracting state in which they have family life is whether the family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be “precarious”. In such cases, it is likely only to be in exceptional circumstances the removal of the non-national family member will constitute a violation of Article 8 (see Agyarko at [49] approving Jeunesse (at [108]))

50.What was meant by “exceptional circumstances” was made clear at [54] to [60] in Agyarko, namely circumstances in which a refusal would result in unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate. This is to be assessed in the context of a proportionality exercise which gives appropriate weight to the policy in the Immigration Rules, considers all factors relevant to the specific case in question, and ultimately assesses whether, giving due weight to the strength of the public interest in the removal of the person in the case before it, the Article 8 claim is sufficiently strong to outweigh it. In general, in cases concerned with precarious family life, a very strong or compelling claim is required to outweigh the public interest in immigration control.

………………..

52.Thus, in considering the question of proportionality, the courts must, albeit at a general level, take the SSHD’s policy (as reflected in the Immigration Rules) into account and give it considerable weight, alongside a consideration of the relevant facts of the case in question”.

 

Court of Appeal’s conclusion on whether a family life existed between the Appellant and her adult children

In finding that a family life existed between the Appellant and her adult children in the UK, the Court reasoned as follows:

  • The First Tier Tribunal Judge (FTT Judge)’s conclusion that family life did not exist was unsustainable as a matter of principle.
  • That family life existed was apparent on the basis of the FTT Judge’s own findings of fact, with which there was no need to interfere for this purpose.
  • In reaching his conclusion that the appellant had not established family life for the purpose of Article 8, the FTT Judge appeared to have been influenced by his view that, were the appellant to be in Pakistan, her children could still provide for her, house her, pay for carers, check that she had taken her medication and “in effect either directly or indirectly do all of the things they currently do”. The Court of Appeal however concluded that put the cart before the horse: the question of whether or not arrangements would be the same or similar in Pakistan, whilst potentially relevant to the question of proportionality, was immaterial to the question of whether or not family life in the UK existed in the first place.
  • Further, whilst the FTT Judge recognised the practical support provided by her children, he appeared to have failed to take proper account of additional key features, in particular: the fact that the appellant had co-habited with her son (and younger daughter) in the UK since 2014. This was not necessarily sufficient to establish family life of itself but it was certainly a very powerful factor; the fact that the appellant’s children provided not just practical and financial support but also emotional support in circumstances where the appellant, already widowed, had recently lost her family home in Pakistan to fire; the fact that the appellant provided support to her daughter and care for her grandson.
  • These were all matters which, at least cumulatively, went beyond the existence of normal emotional ties; they provided clear grounds for a finding that the appellant’s children provided their mother with real and effective support and that she in turn had a real dependency on them. Thus, the FTT Judge was wrong to hold that family life did not exist, and the Upper Tribunal Judge, who was clearly troubled by that finding, was wrong to uphold the FTT Judge’s decision to this effect.
  • The Court of Appeal indicated that to this extent, they would allow the appeal.

 

APPLICABLITY OF THE ADULT DEPENDANT RULES

The Court of Appeal set out the requirements of the Entry Clearance Adult Dependant Relative Rules (ADR ECR):

“37.The ADR ECR came into force on 9 July 2012 as part of changes to the Family Migration Rules. They provide for the granting of entry clearance as an ADR. To meet the eligibility requirements for entry clearance as an ADR all of the requirements in E-ECDR.2.1 to 3.2 must be met (see E-ECDR.1.1). Those requirements so far as material are as follows:

“Relationship requirements

2.1 The applicant must be the-

(a) parent aged 18 years or over;…

of a person (“the sponsor”) who is in the UK.

…

2.3 The sponsor must at the date of application be-

(a) aged 18 years or over; and

(b) (i) a British citizen in the UK; or

(ii) present and settled in the UK;…

2.4 The applicant…must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

2.5 The applicant…must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

Financial requirements

3.1 The applicant must provide evidence that they can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds.

3.2 If the applicant’s sponsor is a British citizen or settled in the UK, the applicant must provide an undertaking signed by the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted indefinite leave to enter.”

38.If the applicant meets the requirements for entry clearance as an ADR of a British Citizen or person settled in the UK they will be granted indefinite leave to enter; if not, the application will be refused (see D-ECDR.1.1 and D-ECDR.1.3)”.

 

Following that the Court summarised relevant principles:

“39.These rules were considered in Britcits upon a judicial review challenge to their lawfulness. The claimant charity contended, amongst other things, that the rules were incompatible with Article 8. The claim failed. As for Article 8, it was held i) that family life engaging Article 8 did not exist in every case where a UK sponsor wanted to bring an elderly parent to the UK in order to look after him/her; ii) that the new rules would not result in a disproportionate outcome in virtually all cases where Article 8 was engaged; and iii) that significant weight was to be given to the prior consultation, parliamentary debate and approval of the policy and objectives of the new rules (see [72] to [80], [82], [83], [86] to [88] and [90])

40.At [58] Sir Terence Etherton MR identified the policy behind the ADR ECR as follows:

“…It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their own country; and, secondly, to ensure that those ADRs whose needs can only reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances once settled here.”

41.The test now imposed for entry as an ADR has rightly been described as “rigorous and demanding” (see Ribeli (at [43]).

42.The Immigration Rules also provide a route by which an ADR may apply for indefinite leave to remain as an ADR (see Section E-ILRDR of Appendix FM) under which an applicant must, amongst other things, meet all of the requirements of Section E-ILRDR (see E-ILRDR.1.1). Those requirements include that the applicant must be in the UK with valid leave to remain as an ADR and provide evidence of non-recourse to public funds (see E-ILRDR.1.2 and 1.4)”.

 

Court of Appeal’s approach to Article 8 proportionality considerations on the Appellant’s claim:

The Court considered as follows:

  • The flaw in the appellant’s approach was to ignore the fact that the FTT Judge’s consideration of proportionality proceeded (necessarily) on the express premise that he was wrong in his conclusion on family life and that, contrary to his earlier finding, family life existed.
  • His approach or conclusion on proportionality was not flawed.
  • The FTT Judge considered and identified the law accurately-he stated correctly that the issue was ultimately one of proportionality in all the circumstances.
  • The FTT Judge had read the evidence founding the existence of family life and relating to the appellant’s circumstances in the UK, including as to her health, dependence on her children, relationship with her grandson and pastimes. He also heard and saw the appellant and two of her children give evidence; he set out and assessed the reliability of that evidence carefully. He was also aware of the death of the appellant’s husband, the loss of the family home in a fire, and the appellant’s broader family circumstances in Pakistan. There was no reason to think that these were not all matters that he properly weighed in the balance when considering proportionality.
  • At the same time, he was aware that the appellant was an educated person who could even now live independently in Pakistan where she had grown up, married, had children and spent all of her married life (and beyond). She would be financially supported and provided with accommodation by her children were she to return; she could also receive practical and emotional support from them (even if only from a distance). She had no significant health issues.
  • Further, as the authorities referred to make clear, the FTT Judge was entitled to place considerable weight on the fact that the appellant’s relevant family life (that is to say, her family life in the UK) was established at a time when her status here was precarious. She never had indefinite leave to remain in the UK (see Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536at [44]), and from 23 July 2015 onwards had no right whatsoever to remain. The FTT Judge was entitled to conclude that a refusal to allow the appellant to remain would not result in unjustifiably harsh consequences for her and that, accordingly, exceptional circumstances had not been established.
  • Whilst the grandson’s interests fell to be considered, it is clear that they were not seen by the parties as being of material significance in the context of the proportionality exercise overall. Without underplaying the potential importance of a grandparental relationship, the facts here were far removed from those in Jeunessefor example, where the three children involved were the children of the applicant who was their “primary and constant carer”. The FTT Judge’s approach reflected the appellant’s apparent position before him as to the weight to be attached to the grandson’s interests in the balancing exercise to be carried out.

 

Relevance of the Adult Dependent Relatives Rules to the Article 8 proportionality assessment in the Appellant’s claim:

The Court of Appeal concluded that:

  • The FTT Judge was self-evidently aware of the relevant context, namely that the appellant had not pursued an application under the ADR ECR and was applying outside the Immigration Rules under Article 8.
  • It was common ground that whether or not the appellant would have qualified for entry under the ADR ECR was not determinative of the question of whether or not the refusal decision was compatible with Article 8. However, the fact that the Secretary of State, in the discharge of her statutory duty to regulate immigration, has set out a clear policy, reflected in the ADR ECR, as to the requirements to be met by ADRs seeking to settle in the UK will be a powerful factor in any Article 8 assessment of proportionality. This proposition is clearly established on the authorities (for example in Agyarko (at [47])
  • Whilst those representing the appellant were not in a position formally to concede the position, it could not realistically be suggested that the appellant would have met the requirements in 2.4 and 2.5 of the ADR ECR. Her physical condition came nowhere near the threshold (of requiring long-term personal care to perform everyday tasks) and she could obtain the required level of care in Pakistan. The fact that the appellant may not burden the UK taxpayer’s purse because she could access private healthcare in the UK was no answer to the Secretary of State’s position, in the sense that she would still not meet the relationship requirements of the ADR ECR. In any event, the appellant’s reliance on the fact that her children were wealthy was at odds with the second limb of the Secretary of State’s policy as identified in Britcitsat [58], which is to avoid disparity between ADRs depending on their wealth.
  • The ADR ECR, reflecting the Secretary of State’s policy as approved by Parliament and upheld as lawful in Britcits, provide the conventional pathway for entry to the UK as an ADR. Whether deliberately or otherwise, the appellant circumvented that route by coming as a visitor to the UK, overstaying and then applying for leave to remain outside the Immigration Rules. She presented the Secretary of State with the sort of “fait accompli” referred to by Lord Reed in Agyarko at [54]: “…. the Convention is not intended to undermine [a state’s right to control the entry of non-nationals into its territory and their residence there] by enabling non-nationals to evade immigration control by establishing a family life while present in the host state unlawfully or temporarily, and then presenting it with a fait accompli. On the contrary, “where confronted with a fait accompli the removal of the non-nationals family member by the authorities would be incompatible with article 8 only in exceptional circumstances”: Jeunesse, para. 114.”
  • In these circumstances, the FTT Judge’s finding on proportionality was fully justified. Indeed, taking the strength of the family life at its highest on the facts, there was really only ever one realistic answer on the question of proportionality, namely that the refusal decision was not incompatible with the appellant’s right to respect for her family life under Article 8.
  • This was a case where the appellant will be cared for in Pakistan by one or more of her children (who will move to live with her), were she to have to return to Pakistan. The appellant acknowledged that one or more of them would return to live with her and each child stated that he/she would do so (albeit reluctantly). Ribeliconfirms that the willingness of a child to return abroad with the parent can be an important factor in favour of refusal of leave to remain. However, unlike the position in Ribeli, there has been no finding here that it would be reasonable for one or more of the appellant’s children to return to join her in Pakistan (even if, as a matter of fact, they would be prepared to do so). In these circumstances, the Court did not lay any material weight on what would in any event be only an additional factor in favour of an already justified refusal.

The Court of Appeal therefore rejected the challenge to the FTT Judge’s conclusion on proportionality and upheld the Upper Tribunal Judge’s dismissal of the appeal against it.