Tribunal obliged to seek out representation in Country Guidance cases

Source: Free Movement

The Court of Appeal last week handed down a very interesting judgment on the need for ‘proper argument’ in Country Guidance cases, the obligation on the tribunal itself to seek to secure that proper argument and how far the tribunal determination process can morph from an adversarial to an inquisitorial one. The case is HM (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1536 and Richards LJ gives the leading judgment.

This was the case where the tribunal decided to plough ahead with a CG case on Iraq despite the appellants being unrepresented, in controversial circumstances, at the hearing. See previous blog coverage here and here.

On the need for proper argument, Richards LJ said as follows:

39. Whether or not country guidance determinations can properly be described as “declaratory” in nature, they have a status and significance comparable to that which declarations can have in public law cases, and it is just as important that there should be proper argument in them. “Proper argument” in this context encompasses not just argument on the law but also the drawing of relevant materials to the attention of the tribunal and the making of submissions as to the effect of those materials, so that the determination is based on as full and informed an analysis as possible. In the ordinary course that is achieved through both sides being legally represented. Indeed, on the analysis provided to us by Mr Fordham, there has been such representation for every country guidance determination save the one now before us.

…

42. The tribunal did what it could to try to secure legal representation for the appellants. It sought to have the question of public funding reconsidered and it asked the appellants’ former representatives whether they would act pro bono in the absence of public funding, but in each case it was met with a negative response. The tribunal might have approached the LSC directly, but there is nothing to suggest that it would have been any more successful than the appellants’ former representatives had been. The features of the legal aid system which precluded the continuation of public funding before the tribunal are deeply regrettable, all the more so when it is borne in mind that public funding was granted for the appeal to this court and that the overall cost to public funds will have been far greater than if funding had been continued at the time for the proceedings before the tribunal. Unsatisfactory as it was, however, the tribunal was faced with a position where none of the appellants was represented. It was also clear that none of the appellants would be in a position to make any material contribution of their own to the proceedings.

However, this wasn’t enough, apparently. Richards LJ goes on to suggest two further possibilities. The first was to ask UNHCR to make submissions, something UNHCR themselves said they would not normally do but had not technically ruled out. Anyone familiar with UNHCR London might think this was a somewhat unlikely possibility. More interestingly and potentially usefully Richards LJ then goes on:

45. The second possibility was to request the Attorney General to consider appointing an amicus curiae (advocate to the court). Those appearing before us were not aware of any instance in which an amicus has been appointed for the purpose of proceedings in the tribunal. I see no reason in principle, however, why such an appointment should not be made in an appropriate case. A memorandum from the Lord Chief Justice and the Attorney General on requests for the appointment of an advocate to the court is set out in Civil Procedure, vol.1, at pages 1144-1145. Even though it does not apply in terms to tribunal proceedings, its contents can readily be transposed to such proceedings. It states:

“3. A court may properly seek the assistance of an Advocate to the Court when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. In those circumstances the Attorney General may decide to appoint an Advocate to the Court.

4. It is important to bear in mind that an Advocate to the Court represents no-one. His or her function is to give to the court such assistance as he or she is able on the relevant law and its application to the facts of the case. An Advocate to the Court will not normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts ….”

46. The situation before the tribunal in this case would in my view have been a suitable one for the appointment of an advocate to the court, though the decision would have lain with the Attorney General. The application of Article 15(c) to conditions in Iraq involved consideration of important issues of law and fact on which such an advocate could make a helpful contribution, in particular by testing the position taken by the Secretary of State on the law and its application to the materials before the tribunal. In addition, whilst an advocate to the court would not normally lead evidence, I take the view that he could properly have drawn the tribunal’s attention to, and made submissions on, relevant background material not otherwise before it.

This is certainly an interesting possibility. Back in 2005 I and others argued in an IAS pamphlet that a specially appointed court advocate would be useful in Country Guideline cases, for example to address evidence and issues not arising on the facts of the particular cases under consideration. However, Richards LJ is proposing such an advocate only where there is no advocate at all for the appellants.

The court’s conclusion is in fact not that ‘proper argument’ is a prerequisite in a country guidance case but that the tribunal erred in failing to do more to secure proper argument. It would appear that had UNHCR and the Attorney General both declined to provide some sort of submissions, the tribunal would have been entitled to do as it did.

The judgment ends by leaving the question open whether the tribunal might properly adopt an inquisitorial role and by quashing the CG case.

As the Court of Appeal once said in a previous case, all that time and learning was ‘desert air’.

Second appeal criteria tighter than expected

Article first published 15 August 2011 (Free Movement)

Mark Symes has posted an article over at the HJT Immigration Blog on a new case from the Court of Appeal on the ‘second appeal criteria’. The case is PR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 988. These criteria are the legal gateway not only to the Court of Appeal on appeal from the Upper Tribunal but also, following Cart and Eba, also to judicial review of the Upper Tribunal.

The criteria are:

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it.

Mark writes that the Court of Appeal concludes as follows:

“[T]here is no case for contending that the nature of an asylum-seeker’s case which has failed twice in the Tribunal system is a compelling reason for giving permission for a further appeal. So, what is ruled out post PR? Certainly the Court does not accept that the question whether an established point of principle or practice has been properly applied in an individual case itself raises an important point of principle or practice. Thus it would not be a sensible use of judicial resources for judges to replicate the assessment of evidence in an individual case within the context of a Country Guidance determination or a Strasbourg Court authority. On the other hand, permissible challenges would include those identified in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60: where the first decision was “perverse or otherwise plainly wrong”: importantly, an example of being “plainly wrong” is where the decision is “inconsistent with authority of a higher court” (at least where such authority was referred to by the Applicant’s legal team). Alternatively a procedural failure in the Upper Tribunal might make it “plainly unjust” to refuse a party a further appeal. The prospects of success must be very high, save for in the cases of procedural irregularity (see Uphill at [24]).”

There is a HJT Training half day conference on judicial review of and in the Upper Tribunal on 28 September 2011 at which this and other subjects will be discussed in more depth. Click here for more details.

Refusal with no right of appeal revisited

Article first published 28/02/11 (Free Movement)

By Free Movement

This is a problem that has been addressed previously on the blog: what can be done when a person makes an immigration application but for technical legal reasons is not granted a right of appeal to the tribunal? See this previous post.

The problem has now been addressed in two linked cases in the Court of Appeal, R (on the application of Mirza & Ors) v Secretary of State for the Home Department [2011] EWCA Civ 159 and R (on the application of Daley-Murdock) v Secretary of State for the Home Department [2011] EWCA Civ 161.

In Mirza, the claimants had all made immigration applications while they still had current leave. They had not overstayed. UKBA had refused the applications but set no removal directions. The claimants were able to appeal but because of the absence of the decision to remove they were not able to rely on paragraph 395C of the Immigration Rules. In all these cases that was their best hope of success.

The Court holds that the failure to make a removal decision is unlawful in this context:

40. It is evident that each of these appellants is being denied a removal decision, following a legitimate refusal of leave to remain, as part of a generalised practice, either manifested in or deriving from the internal organisation of the Border Agency, of separating the two decisions by a frequently substantial period of time.

41. Such a practice is in my judgment contrary to the policy and objects of the legislation, which are, as nearly as can be done, to deal compendiously with all issues concerning the lawfulness of a person’s continued residence in the United Kingdom. A practice of deferral for a short period may meet a legitimate rationale of allowing or encouraging foreign nationals who no longer have leave to remain to depart voluntarily, but this cannot extend to a contravention of statutory policy or to the application of unfair pressure on individuals to forfeit what may be their legal rights.

Read more

New Zimbabwe fact finding report

UKBA has published a new fact finding report on the situation in Zimbabwe. It is, probably not by co-incidence, just in time for the new test case on Zimbabwe, due to begin on 20 October 2010 and in which the Immigration Advosory Service are again acting.

Presumably, UKBA will be seeking to argue that events have moved on since the RN case and the peak in the violence around the elections in 2008. My brief reading of the report suggests nothing unsurprising. On the one hand, casual political violence has declined. On the other, intimidation, repression and lack of protection continues, and there are concerns about what will happen in the run-up to the next elections, which must be held in 2012 but may be held early. It is no proper basis to go behind RN, which was based in part on properly tested oral evidence and some evidence heard in private.

UKBA is alarmingly keen on sending people back to Zimbabwe when the situation there is so unstable and there has certainly been no lasting political change that might establish what UNHCR call a durable change of circumstances. It is hardly the behaviour of a body with a genuinely inquisitorial function, as the tribunal suggested in the recent Sprakab case. Why not grant status now and then, in accordance with the Refugee Convention, review it later if there is a genuinely durable change?

Source: Free Movement

Post flight spouses of refugees

By Free Movement

Some tremendously good news for many refugees: in the new case of FH (Post-flight spouses) Iran [2010] UKUT 275 (IAC) the tribunal has found that Article 8 appeals by the spouses of refugees who married the refugee after the refugee left the country of origin should normally be allowed. Ever since refugees started being granted only five years leave to remain rather than ILR back in August 2005, this has been a real problem for some refugees. After all, why should a businessman or work permit holder with limited leave have the right to bring a spouse to the UK but a refugee should not?

See paragraph 25:

Unless there is some justification, of which we have not been made aware, of the Rules’ treatment of post-flight spouses, we think that the Secretary of State ought to give urgent attention to amending the Rules, by extending either paragraph 281 or, (perhaps preferably) paragraph 194, so as to extend to the spouses of those with limited leave to remain as refugees. In the mean time, it seems to us that although a decision based on Article 8 does have to be an individual one in each case, it is most unlikely that the Secretary of State or an Entry Clearance Officer will be able to establish that it is proportionate to exclude from the United Kingdom the post-flight spouse of a refugee where the applicant meets all the requirements of paragraph 281 save that relating to settlement.

It is unusual for the tribunal explicitly to go beyond the facts of the particular case, so the panel (which included Lord Justice Sedley) must have felt quite strongly about the issue and clearly wanted to give a strong steer to Immigration Judges.

This is one of several very interesting cases that have just emerged from the shadowy reporting committee of the Upper Tribunal Immigration and Asylum Chamber.

Immigration lawyers seek guidance for children involved in appeals

A professional body for immigration lawyers has called for specific guidance to asylum and immigration tribunals on treatment of children involved in appeals.

The call came while Immigration Law Practitioners’ Association (ILPA) was responding to a consultation on the procedures for tribunals deciding appeals against Home Office decisions.

ILPA asserted while guidance for child and vulnerable witnesses in family courts was good, it wanted further guidance for tribunals that takes into account the range of circumstances for the children involved.

A solicitor and member of ILPA’s children’s sub-committee Syd Bolton said it was important that everything that is put in place makes the court a place where a child could be made to feel as comfortable as possible and be given the opportunity to be heard.

Immigration and Asylum Chamber of the new Upper Tribunal President Announced

The new president of the Immigration and Asylum Chamber of the new Upper Tribunal has been announced: Mr Justice Nicholas Blake QC. The appointment is effective as of 15 February 2010, when the unlamented Asylum and Immigration Tribunal is merged into the rest of the tribunal system.

The choice of appointment comes as a pleasant surprise to many. Nick Blake, as many in immigration law will continue to think of him, was primarily a claimant Counsel and was based at 2 Garden Court then latterly at Matrix Chambers (see his profile here). He was tirelessly active and very well regarded both as a man and as a brilliant lawyer.

Anyone expecting liberal decisions from him should not hold their breath, though. Andrew Collins was considered a liberal before his appointment as President but immigration lawyers were disappointed by many of his decisions. However, I would hope that this will put an end to some of the more obviously reactionary trends in the modern tribunal. The third party support saga, for example, was an unfortunate and personal legacy from the late Sir Henry Hodge. It seems a fair assumption that Nick Blake would never have gone off in that wrongheaded direction.

We should be grateful that someone of Mr Justice Blake’s calibre is willing to serve in this capacity. Most High Court judges find immigration and asylum cases an annoyance and this office is hardly a fast track to judicial advancement.

Free Movement

‘SADC mustn’t tolerate Zim’s abuse of Tribunal’

African lawyers have warned that Zimbabwe’s blatant disregard of regional court rulings was setting a bad precedence for respect of continental bodies and called on the African Union and the Southern African Development Community (SADC) to take decisive measures to defend their institutions of justice before they become irrelevant.

Reacting to Zimbabwe’s decision last month to withdraw from all cases involving the Windhoek-based SADC Tribunal, representatives of African bar associations and rule of law organisations castigated the announcement by Justice Minister Patrick Chinamasa that Harare did not recognise the authority of the regional court.

Chinamasa told the Tribunal that Harare would recognise its authority only after a protocol establishing the court was ratified by at least two-thirds of the 14-nation bloc’s members as is required under rules and procedures governing the regional grouping.

The African lawyers urged the AU and SADC to “encourage the government of Zimbabwe to comply with the decisions of the SADC Tribunal rather than to use disingenuous and convoluted legal arguments to destroy the Tribunal, in an apparent quest to avoid submitting to the rule of law”.

The regional and continental bodies should also strengthen and defend its institutions of justice when they make decisions, which are within their competencies, according to the lawyers who concluded an annual meeting in the Tanzanian town of Arusha last week.

“Failure by the SADC and AU leadership to vigorously defend regional and sub-regional judicial organs from such a blatant assault is likely to have a contagion effect throughout the continent,” the lawyers said in a communiqué.

The communiqué was signed by the SADC Lawyers Association, East Africa Law Society, West African Bar Association, Pan-African Lawyers’ Union, the Coalition for an Effective African Court on Human Rights, African Regional Forum of the International Bar Association and the International Commission of Jurists.

The SADC Tribunal last November dealt a heavy body blow to President Robert Mugabe’s controversial programme to seize white-owned farmland for redistribution to landless blacks when it ruled that the chaotic and often violent programme was discriminatory, racist and illegal under the SADC Treaty.

The regional court ordered Harare not to evict the 78 farmers and that it pays full compensation to those it had already forced off farms.

Mugabe publicly dismissed the ruling by the Namibia-based Tribunal, while his followers in the military and in his ZANU PF party defied the court order by continuing to seize more land from the few white farmers remaining in Zimbabwe.

Government farm seizures which started in 2000 have resulted in the majority of the about 4 000 white commercial farmers being forcibly ejected from their properties without being paid compensation for the land, which Mugabe has refused to pay for saying it was stolen from blacks in the first place.

Land redistribution, that Mugabe says was necessary to correct a “unjust and immoral” colonial land ownership system that reserved the best land for whites and banished blacks to poor soils, is blamed for plunging Zimbabwe into food shortages after Harare failed to support black villagers resettled on former white farms with inputs to maintain production. – ZimOnline

Minor crime doesn’t justify deportation, judges say

By Frances Webber

The government’s tabloid-driven policy to get tough on refugees who commit minor criminal offences has been dealt a blow by a recent legal ruling.

For the past few years, human rights lawyers and refugee support groups have expressed increasing concern over Home Office policy to treat refugees who commit minor offences as ‘foreign national criminals’ and deport them. Now, the Court of Appeal has held that regulations issued by the Home Office authorising deportation of refugees for relatively minor offences are illegal. A legal challenge was brought by a Serbian national, EN, who was a child when he arrived in the UK and was granted refugee status.[1] When he was sentenced to twelve months in a young offenders’ institution for burglary, the Home Office told him they proposed to deport him despite his status as a refugee, and the Asylum and Immigration Tribunal dismissed his appeal. The Court of Appeal allowed EN’s appeal and sent his case back to be reconsidered.

The Refugee Convention, to which the UK and most other countries are signatories, says that those recognised as refugees should not be sent home unless they are convicted of a ‘particularly serious’ crime and are a danger to the community of the country in which they live. The issue has been who defines what is a particularly serious crime. Refugee law experts, including one of the original drafters of the Convention and a judge on the International Court of Justice (the only legal body with the authority to interpret the Convention), say that only extremely serious crimes, such as murder, would justify withdrawing the protection of the Refugee Convention. But in 2002, parliament passed the Nationality, Immigration and Asylum Act, which deemed as ‘particularly serious crime’ any offence attracting a punishment of two years’ imprisonment or more, or any offence specified in Home Office regulations. In 2004, the Home Office issued the Specification of Particularly Serious Crime Regulations, which listed offences from genocide and hijacking to theft and criminal damage (which could be stealing a milk bottle or scratching the paintwork of a car) as ‘particularly serious crimes’.

In its recent ruling, the Court of Appeal said that these trivial offences could not rationally be considered ‘particularly serious’, and struck down the regulations as unlawful. The judges made the further point that even an offence carrying two years’ imprisonment may not be ‘particularly serious’ – so that the presumption of the section could be rebutted by the proposed deportee, like the further presumption that he or she represented a danger to the community. A presumption which could not be rebutted would, they said, not be compatible with the Refugee Convention.

The ruling offers hope to a considerable number of young refugees who have been threatened with deportation on the strength of petty crimes – which themselves are frequently an unacknowledged by-product of the traumas which caused them and their families to flee their countries of origin.

British Red Cross accused of discrimination

By John Plummer

A former British Red Cross employee has claimed she was unfairly dismissed by the humanitarian organisation and suffered race, age and disability discrimination.

Rutherford, who lives and worked in Essex, was offered the opportunity to apply for other positions at the charity’s centre at Beckenham, Kent but refused to apply.

She claimed the move would add three hours to her daily commute and £76 per month travel costs and that she should have been offered more suitable opportunities that made it easier for her to care for her disabled husband.

She also claimed that the London branch of the British Red Cross was getting rid of a lot of older women and that the consultation period for redundancies, which affected 17 other members of staff, was “a sham”.

Rutherford, a black woman of Guyanese origin, claims she would have been treated differently had she been a white woman.

Two former British Red Cross employees have agreed to support her as witnesses.

Pamela Chapman, operations manager for the London area of the British Red Cross, told the tribunal at Stratford, East London, that Rutherford had been treated no differently than any other member of staff. “A genuine redundancy situation appeared to exist,” said Chapman. “The claimant alleges the consultation was a sham. It was not.”

She said the charity had extended the consultation period and appointed an independent manager to oversee the restructuring process. “I absolutely refute any allegation of discrimination,” said Chapman.

The hearing is scheduled to finish on Friday.

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