News & Views Monday 7th October to Sunday 13th October 2019


Victim of Trafficking Challenges Home Office Policy That Creates Barriers To Effective Identification

Today Friday 11t October 2019, The High Court (sitting in Bristol) will hear a challenge to the lawfulness of the Defendant’s policy on human trafficking and modern slavery, the Victims of Modern Slavery: Competent Authority Guidance, specifically in relation to the process for reconsidering negative trafficking decisions in the NRM (National Referral Mechanism).

Deighton Pierce Glynn is acting for the Claimant, who is (now) a recognised victim of modern slavery/human is trafficking.  Initially, the Home Office Competent Authority (the body responsible for making decisions on an individual trafficking status) rejected her trafficking claim.  She obtained new evidence that was highly material to her claim to have been the victim of sexual exploitation and human trafficking and provided that to the Home Office.  However, the Home Office refused to even look at the evidence she produced or the representations made in support of her request for reconsideration, citing their policy in force at the time that only a First Responder or NRM support provider can make the request. The Claimant challenged this policy and in the course of proceedings, the Defendant agreed to reconsider the Claimant’s case. The Claimant subsequently received a positive decision.

Whilst proceedings were ongoing, and without notice to the Claimant, the Defendant Home Office published an even more restrictive policy which stated that only the specific First Responder or NRM support provider involved in the case could request a reconsideration. This policy change was not subject to any policy announcement and was not accompanied by any explanation.

Read more: DPG,

High Court Upholds Immigration Control Exemption to Personal Data Rights

Campaigners have lost a High Court case challenging the “immigration exemption” to personal data rights. The judgment is R (Open Rights Group & the3million) v Secretary of State for the Home Department [2019] EWHC 2562 (Admin).

Paragraph 4, Schedule 2 of the Data Protection Act 2018 says that certain rights protected by the now famous GDPR do not apply when data is processed for the following purposes:

(a) the maintenance of effective immigration control, or

(b) the investigation or detection of activities that would undermine the maintenance of effective immigration control.

The rights that can be flouted under this immigration exemption include the right to a subject access request, where the Home Office can be compelled to hand over the file it holds on an immigrant. As Nick puts it, this is “often the only way to find out what the bloody hell is going on” with a client’s immigration history.

The judgment records that the Home Office invoked the immigration exemption in 59% of the 18,000 subject access requests it processed in the first year of the Data Protection Act’s operation. But it insisted that in the vast majority of cases, “the exemption has been used to prevent disclosure of only small elements of the overall case file, not the whole set of information”.

The campaign groups argued that the exemption should be struck down as contrary either to GDPR itself (which as an EU regulation takes priority over UK legislation) or to the EU Charter of Fundamental Rights. They suggested, among other things, that it was “open-ended and vague” and that there were “insufficient safeguards to constrain the exercise of a very broad discretion”.

But Mr Justice Supperstone found that it was all above board:

Read more: Freemovement,

Dilip Rai v Entry Clearance Officer

1. The appellant is a Nepalese national who was born on 17 May 1987. As long ago as 10 November 2015, he was refused entry clearance as the adult dependent child of a former Gurkha soldier. He appealed against that decision to the First-tier Tribunal and his appeal was dismissed by Judge Harris. The judge concluded that the appellant and his parents in the United Kingdom continued to enjoy a family life despite their separation since 2011 but that the respondent's decision represented a lawful and proportionate interference with that family life.

2. Permission to appeal was refused by First-tier Tribunal Judge Andrew and by Upper Tribunal Judge Kebede. An application under CPR 54.7A (a 'Cart' judicial review) was refused by HHJ McKenna but was granted by Hamblen LJ on renewal to the Court of Appeal. On 30 April 2019, therefore, permission to appeal was granted by Mr Ockelton VP, who reminded the parties that the Upper Tribunal's task was that set out in s12 of the Tribunals, Courts and Enforcement Act 2007.

The Submissions of the Parties

3.  At the outset of the hearing before us, we expressed some concern that Judge Harris had cited Ghising [2012] UKUT 160 (IAC) and had concluded in reliance on that authority, at [49], that the respondent had provided a scheme for remedying the historic injustice identified in the earlier authorities. As has been asserted in the grounds presented at all stages in this case, Judge Harris erred in relying on that decision of Lang J and UTJ Jordan in so concluding because that aspect of the Upper Tribunal's decision had been over-ruled by the Court of Appeal in Gurung [2013] EWCA Civ 8; [2013] 1 WLR 2546 and the Upper Tribunal had returned to consider the weight to be accorded to the historic injustice in Ghising [2013] UKUT 567 (IAC) (" Ghising No 2)"). In Ghising No 2, the Tribunal held that the historic wrong suffered by ex-Gurkha servicemen was to be given substantial weight and that

"where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant's favour, where the matters relied on by the Secretary of State/ entry clearance officer consist solely of the public interest in maintaining a firm immigration policy."

4. We observed at the hearing that Judge Harris had erred in law in failing to apply the 'but for' test set out above and that his conclusion, at [52], that the historic injustice was not in itself sufficient to tip the balance in this appellant's favour was wrong in law.

Notice of Decision

The decision of the First-tier Tribunal was materially erroneous in law and is set aside. We remake the decision on the appeal, allowing it on Article 8 ECHR grounds.

CJEU: Child Self-Sufficient if Supported By Parent Working Without Work Permit

The Court of Justice of the European Union has found that a child is self-sufficient in EU law even if supported only by the earnings of a parent who is working without permission to do so. The case is C-93/18 Bajratari.

The case involved an Albanian family living in Northern Ireland where the father and husband had held a residence card enabling him to work. He had ceased to meet the requirements for that card but it had not been revoked and he had carried on working. He continued to do so even after it did eventually expire.

In the meantime he had been joined by his wife and they had three children together, all born in Northern Ireland. Two of the children had obtained certificates of Irish citizenship, meaning that they were EU citizens.

The wife and mother applied for a residence card of her own based on derivative rights of residence, arguing that her continued presence in the United Kingdom was necessary if her two EU citizen children were to remain within the EU. Her argument was based on the case of C-200/02 Zhu and Chen, which required her to show that her EU citizen children were self-sufficient.

The family was supported by the father’s earnings, but these earnings were unlawful. The question for the court was whether the children were “self-sufficient” in EU law and therefore whether the parents might derive an EU law right of residence from the children.
For all practical purposes, the free legal database run by the British and Irish Legal Information Institute (BAILII) is an official source of judgments from senior courts that any member of the public or any journalist can use. But while anyone can read individual judgments and quote bits of them elsewhere, what are the rules about downloading and re-using the content in bulk? Is it public open data or are there restrictions on its re-use? There seems to be some confusion about this, which this article aims to unpick.

Read more: Freemovement,

Refusing Journalist Access to a Reception Centre For Asylum-Seekers Breach of Article 10

In today’s Chamber judgment1 in the case of Szurovecz v. Hungary (application no. 15428/16) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The case concerned media access to reception facilities for asylum-seekers. The applicant in the case, a journalist for an Internet news portal, complained about the authorities’ refusal of his request to carry out interviews and take photographs at the Debrecen Reception Centre, thus preventing him from reporting on the living conditions there.

The Court stressed that research work was an essential part of press freedom and had to be protected.

It was not convinced that restricting the applicant’s ability to carry out such research work, which had prevented him from reporting first-hand on a matter of considerable public interest, namely the refugee crisis in Hungary, had been sufficiently justified.

In particular, the authorities had only given summary reasons, namely possible problems for the safety and private lives of asylum-seekers, for their refusal, without any real weighing up of the interests at stake.

Read the full judgement: ECtHR,

GM (Sri Lanka) v Home Office
  1. This is the judgment of the Court.

  2. The Appellant appeals against the dismissal of her appeal by the Upper Tribunal ("UT") on 2nd December 2015 upholding the decision of the First-Tier Tribunal ("FTT") of 25th August 2015 upholding the decision of the Secretary of State of 20th February 2015 ("the Decision" and "the Respondent" respectively), refusing her application for asylum and for leave to remain on human rights grounds outside the Immigration Rules ("IR") and seeking to remove her from the United Kingdom.

  3. The judgment under appeal was made in 2015. Since then the Supreme Court has clarified a series of issues relating to the test to be applied under Article 8 in relation to the IR and section 117B Nationality, Immigration and Asylum Act 2002 ("the NIAA 2002" and "section 117B"). The main judgments are: Agyarko v SSHD [2017] UKSC 11 ("Agyarko"); Ali v SSHD [2016] UKSC 60 ("Ali"); KO (Nigeria) v SSHD [2018] UKSC 53 ("KO"); and, Rhuppiah v SSHD [2018] UKSC 58 ("Rhuppiah").

  4. These judgments clarify such matters as: the application of the applicable proportionality test and the relative weight to be attached to various factors in the balancing and weighing exercise; the relationship between the IR, the NIAA 2002 and Article 8; the meaning of "little weight" in sections 117B(4) and (5); the extent to which the "little weight" test applies to family rights; the relevance of a person's immigration status in a family life assessment; and the relevance of "insurmountable obstacles" to return in the family life context.

  5. The FTT Judge in the present case did not have the benefit of these judgments. She plainly adopted considerable care in her approach to the evidence and the law. And it is right to note that the focus of the appeal before her was on the asylum claim of the Appellant. The Article 8 family rights issues were secondary, albeit, as is evident from the material before the FTT and included in the bundles before us, they were not advanced merely as a makeweight. A serious argument was advanced.

  6. It is our judgment that (not having had the benefit of the Supreme Court rulings to guide her) the Judge erred in the approach that she adopted to the issue relating to Article 8 family life rights. This is the context in which we have concluded that the Decision, and the judgment and decisions of both the FTT and the UT must be set aside.

  7. The position of the family has materially changed in the period elapsing between the FTT judgment and this appeal. This means that in this appeal we must consider to what extent the decision we take reflects the most up to date position. This raises a point of principle. When a Court is required to address an issue relating to fundamental norms or human rights that Court must ensure that any order that it makes is also compliant with such rights. Under section 6 Human Rights Act 1998 all public bodies, including courts, must apply the Act and thereby the ECHR. It follows that if an appellate court finds that a lower court or tribunal acted lawfully by reference to the evidence before it but that based upon the facts now known to the appeal court to uphold the decision would violate fundamental norms, then the appellate court must ensure that the decision it takes is compliant with the law. This was made clear by Lord Reed in Agyarko (ibid) paragraph [5]. In this case there has been a material change of circumstances brought about primarily by fresh decisions made by the Respondent which have fundamentally altered the legal position of the Appellant's husband and children by conferring settled status upon them. Mr Jafferji, for the Appellant, argued that the sensible way to proceed was to address the impugned FTT decision upon the basis of the evidence that was before the Judge but, in the light of our conclusion, then to consider the up to date evidence in relation to what follows by way of relief, in other words, to defer consideration of the changed circumstances. Ms Apps, for the Respondent, did not demur that there would need to be a two stage process, but reserved the Secretary of State's position on relief as subject to instructions. This is the course we have adopted.

  8. We therefore consider the present-day evidence when it comes to relief. We set out our conclusions on this at section F below. In short, to give effect to our conclusion that the FTT erred we will simply set aside the Decision and relevant judgments. We will not remit the matter back to the FTT. We direct that the Respondent considers the position of the Appellant afresh, in the light of the altered circumstances. We leave it, in the first instance, to the Appellant and the Respondent to discuss and agree the best way in which this can be achieved.

  9. We heard argument in this case on 25th July 2019. We are grateful to both counsel for their careful written and oral submissions which raised a series of interesting and difficult points about the scope and effect of the test to be applied in cases such as this, in the light of the recent guidance of the Supreme Court. We indicated the result of this appeal at the end of the hearing, namely that the appeal would be allowed. However, we reserved judgment in order that we could consider carefully the points arising.

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