Update: immigration

Expulsion from the UK continues to exercise the AIT (now the IAC) and the higher courts specifically in relation to article 8. Three recent cases set out clearly the factors to be considered and the approach to be taken and will be of great assistance to practitioners.

Entry to the UK as a family member has had a bumpy ride over the last few years, specifically with regards to maintenance. This has now, hopefully, been laid to rest with an important decision by the Supreme Court at the end of last year. But entry to the UK has been delayed for spouses and civil partners under the age of 21; a challenge to the vires of that rule change has been dismissed and the rule change does not violate article 14 when read with article 8.

Expulsion

The material difference between removal and deportation is the legitimate aim pursued by the secretary of state '“ the prevention of disorder or crime in deportation cases and the maintenance of effective immigration control in removal cases. Although for the individual concerned the outcome may be the same, the weight to be placed on potentially similar factors will be viewed differently when considered against the legitimate aim to be pursued. Clearly if a person is to be removed both to prevent disorder and crime and to maintain effective immigration control, this should be made clear in the decision because it affects the way in which criminal offending is factored into the analysis.

JO (Uganda) & JT (Ivory Coast) v SSHD [2010] EWCA Civ 10 and KB (Trinidad and Tobago) v SSHD [2010] EWCA Civ 11 were handed down together and considered the compatibility of decisions to deport on grounds of criminal offending and whether the application of article 8 requires a different approach in a deportation case to a removal case.

The three appeals set out in detail a very useful summary and overview of previous case law and the principles to be applied in deportation and removal cases. JO was a deportation case; JT concerned the removal of an illegal entrant who also committed criminal offences; KB was a deportation case.

JO was aged 27 at the date of the proceedings and had come to the UK aged four. He had indefinite leave to remain. Aged 20 he was convicted of various serious drugs offences and sentenced to three and a half years' imprisonment. Three years later, while on licence, he was sentenced to a further five years for possession of firearms and ammunition. In February 2008, the SSHD decided to make a deportation order against him under section 3(5) of the Immigration Act 1971. His appeal to the AIT was dismissed.

JT was 19 at the time of the proceedings and claimed to have come to the UK aged about five. Aged 15 he committed a number of criminal offences. Aged 18 he was arrested on suspicion of having entered the UK illegally. His appeal against a decision to remove him as an illegal entrant was eventually dismissed by the AIT.

KB was aged over 40 and had come to the UK aged 22 when he had been granted leave to enter for six months. He had then overstayed, but eventually was granted indefinite leave to remain in 2000. He was convicted of various drug offences for which he received a six-year sentence in 2005. His appeal was allowed by the AIT.

The Court of Appeal referred to the criteria listed at paragraph 57 of Uner v The Netherlands [2007] 45 EHRR 14 as a starting point for the principles to be taken into account in determining deportation for criminal offending (paragraph 9 of JO and JT). Maslov v Austria [2009] INLR 47 was referred to as reiterating that although the criteria set out in that judgment are meant to facilitate the application of article 8 in expulsion cases, 'the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case'. Grant v UK (Application number 10606/07, 8 January 2009) was referred to, distinguishing Maslov in that although Grant's offences were mostly non-violent, he had a much longer pattern of offending, the offences he committed were not acts of juvenile delinquency and it examined the strength of his family life and his ties to the UK and Jamaica.

The Court of Appeal set out some general observations:

• All the Strasbourg cases were concerned with the deportation ongrounds of criminal offending of aliens who were otherwise lawfully present in their host country.
• Where it is considering whether deportation is proportionate to the legitimate aim of the prevention of disorder or crime it is necessary to consider family and private life.
• Settled immigrants will have ties with the community that constitute part ofthe concept of private life, even if the individual has no family.
• The Strasbourg court rejects the concept of absolute protection from expulsion of long-term residents but a balance has to be struck with proper appreciation of the special situation of those in the host country since childhood.
• Age is an important part of the analysis; for a settled migrant who has spent all or a major part of his or her childhood and youth in the UK very serious reasons for expulsion are required, all the more so where the person concerned committed the offences as a juvenile.
• All cases are fact sensitive.
• In considering the position of family members, the material question is whether they cannot be reasonablyexpected to follow the deportee (VW (Uganda) and AB (Somalia) v SSHD [2009] EWCA Civ 5).
• Administrative removal operates within the same legal framework and requires essentially the same approach but the difference in legitimate aim is 'potentially important because the factors in favour of expulsion'¦ capable of carrying greater weight in a deportation case than in a case of ordinary removal'¦ the maintenance of effective immigration control is an important matter but the protection of society against seriouscrime is even more important and can properly be given correspondingly greater weight in the balancing exercise'.
• The factors must be looked at as a whole.

These judgments show the need for clarity of thought and process in determining the proportionality of a decision to deport or remove an individual from the UK. They provide a clear analysis on how to approach these decisions and all practitioners should read them carefully and address each element comprehensively.

Third-party support

At last the definitive word on whether or not third-party support is permissible in accordance with the Immigration Rules for applicants seeking entry clearance under paragraph 281 (spouses or civil partners), 297 (children) and 317 (parents, grandparents or other dependant relatives). Ahmed Mahad (Ethiopia) v ECO; Sahro Ali & Amal Wehelia (Somalia) v ECO; Malyun Ismail & Khadra Abdillahi (Somalia) v ECO; Vettivetpillai Sakthivel (Sri Lanka) v ECO; Abdi-Malik Muhumed (Somalia) v ECO [2009] UKSC 16 considered the requirement in the rules that those seeking entry clearance are able to maintain and accommodate themselves without recourse to public funds and concludes that the rules as presently drafted permit third-party support. The judgment of the Supreme Court sets out the history of the case law and rule changes.

The judgment reaffirms the proper approach to the construction of the rules (paragraph 10) (as set out in Odelola v SSHD [2009] UKHL 25): 'The rules are not to be construed with all the strictness applicable to the construction of statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the secretary of state's administrative policy'¦ that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the secretary of state's intention to be discovered from the Immigration Directorates' Instructions (IDIs) issued intermittently to guide immigration officers in their application of the rules.'

The Supreme Court held that the governing consideration in all the provisions was the requirement that there be no recourse to public funds. The court recognises that there may be difficulties in investigation as to the genuineness and longevity of the proposed third-party support, and thus the potential future liability on recourse to public funds, but that is a matter for investigation and decision on the facts.

Spouses under 21

Paragraph 277 of the Immigration Rules was changed in November 2008 to prevent entry clearance being issued to spouses or civil partners under the age of 21. The reasons given for the rule change were that it was part of the policy of the SSHD to tackle forced marriages where one or both parties are unwilling participants coerced into marriage. Quila (and Aguilar interested party) v SSHD [2009] EWHC 3189 (Admin) considered the claim that the SSHD's policy was irrational and thus not permitted by section 3(2) Immigration Act 1971 (rule making power), that the policy was in conflict with article 8 because it was disproportionate and that it was discriminatory for the purposes of article 14. The judgment sets out the relevant rule changes, refers to research undertaken and the policy considerations that lay behind the rule change.

The judgment states: 'There is no question of the policy preventing regular marriages. Its impact is limited to prevent enjoyment of married life in this country as opposed to elsewhere. The policy is softened by the availability of leave outside the rules in compelling compassionate circumstances.

It is not, in my view, irrational to increase the age limit. The policy judgment was that the adverse impact on marriages that are not forced was justified to meet the overall objective. That was a reasonable view.'

The judgment goes on to state that the mischief the policy and rule were designed to meet was proportionate to the legitimate aim of discouraging forced marriage and comments 'the violation of individual rights of those forced into marriage is particularly serious, reasonably calling for a more vigorous policy response' than, for example, marriages of convenience.

In assessing whether article 14 is breached, reference is made to the analysis in R (Carson) v Work and Pensions Secretary [2006] 1 AC 173 that article 14 does not apply unless the alleged discrimination is in connection with a convention right and on a ground stated in article 14; if so, the question is whether the difference in treatment '“ i.e. the alleged discrimination can withstand scrutiny.

The judgment refers to the SSHD assertion that in exceptional compassionate circumstances leave to enter may be granted, and that such circumstances may exist outwith article 8, but finds that on the facts of this particular case, those circumstances are not met.