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Category Archives: Immigration Law

1297 And All That: how to impress a Brexit judge

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Turned down the chance to take the option on Medieval Law during your time as a legal scholar? Bad move. Ancient precedents are now cool – and the best way to impress our top judges when they are considering tricky matters such as the Brexit wrangle.

One of the teams in the Gina Miller/Dos Santos Brexit case came up with material going all the way back to 1297 to support their contention that Theresa May didn’t have power to start Brexit by issuing an Article 50  notification. But were they, how can one say it, a little economical with the historicité?

Helen Mountfield QC, for the People’s Challenge, said Henry IV had tried to suspend a 1297 Act which allowed foreigners to trade in London:

“So this is an example, which is right on point, an Act which provides for freedom of movement and establishment of foreign merchants. The Crown doesn’t purport to repeal this act; it simply frustrates its purpose by a decree which makes the intended purpose of the Act unenforceable for a particular period of time. The law itself which is referred to there has been, I think, tracked down by the industries of my friend Ms Simor QC, the law of 1297 at bundle E1, and it is perhaps unsurprising that it was Henry IV who wanted to ‘kill all of the lawyers’.”  Second day of case; digest here

This writer, of course, cannot pretend to have access to their lordships bundles. However one assumes that the 1297 Act must be Magna Carta – the Edward I inspeximus* re-issue, not the 1215 original. Strictly speaking it is a treaty (between the King and his people – or those who mattered) rather than an Act of Parliament but it was also enacted into law. It remains on the statute books, what’s left of it, and can be found here. But it wasn’t exactly the act of a “sovereign parliament” as we know it today. Read the rest of this entry

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The Brexit court case (Miller/Santos): Link to extracts

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Our sister blog Thinking Legally has published digested versions of the Brexit High Court case R (Miller and Santos) v Secretary of State for Exiting the European Union. 

First day: Thinking Legally 1

Second day: Thinking Legally 2

Third day: Thinking Legally 3.

Here are some Brexit pieces on Al’s Law.

The High Court case: full (uncorrected) transcripts
The first day transcript 13 Oct of the Miller/Santos court case is here (MoJ pdf).
• The second day transcript: Full day transcript for 17 October 2016.
• Third day Full day transcript for 18 October 2016.
• All available at the Ministry of Justice

The High Court case has now been superseded by the Supreme Court case (December 2016). Transcripts and other material can be found here on the Supreme Court site. A report/analysis of the Supreme Court case is here: What if James Eadie was right?

Home Office plays the long – and costly – game to deport 70-year-old widow

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In these straitened times the Ministry of Justice has had to crack down on the costs of the UK legal system. But there is one area where apparently money is no object: chasing 70-year-old Pakistani widows from Britain’s shores.

Even when their chums at the Home Office are on a two-year losing streak during which judges twice rejected the case for removing Razia Begum as “disproportionate” given she retains no ties in Pakistan, one last desperate (and expensive) throw of the dice was bankrolled by the public purse. 

Thus it was that Home Office lawyers fetched up at the Court of Appeal a couple of weeks ago demanding another go at removing Mrs Begum, even though they had missed an appeal deadline a year and a half ago – owing to “mere oversight”. Their claim for an extension was based on the notion that they “had a good case” against Mrs Begum.

But “the need for litigation to be conducted efficiently and at proportionate cost” is a principle of legal procedure far pre-dating current MoJ rigours. So the notion that the Home Office could, at great expense, lay out its case before two Lord Justices to persuade them it was good enough for it to proceed, then at some later point lay out the whole case again before yet more learned justices during the substantive appeal was not one likely to find favour in the Court.
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The Extradition Act law reform that could – but won’t – help Assange

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Why on earth isn’t the UK Home Secretary banging on the doors of the UK Supreme Court, the European Court of Human Rights, the Swedish Högsta domstolen – whatever it takes – to get Julian Assange released from his (somewhat self-imposed) “arbitrary detention” in the Ecuadorian embassy in London? Theresa May and the Government she serves knows a terrible travesty of justice has occurrred – so much so that they have passed a law to ensure it should never happen to anyone else again.

This, at least, is how the UN Working Group on Arbitrary Detention (UNWGAD) explains a new section, 21A of the 2003 Extradition Act, inserted “as a result of perceived abuses raised by Sweden’s European Arrest Warrant” in the Assange case. It adds that, since the Section was added in 2014 “if requested, Mr. Assange’s extradition would not [now] have been permitted by the UK”. The section, added by S.157 of the Anti-social Behaviour, Crime and Policing Act allows for a “proportionality test” before someone can be extradited under a European Arrest Warrant. So a judge can ask whether there might be a less coercive alternative to extradition – such as interviewing a suspect in Britain rather than in the “requesting state” (ie the one that wants the extradition – Sweden in Assange’s case).

But there is more. Section 156 of the 2014 Act also introduced a new Section 12A to the Extradition Act (below) – which allows a UK judge to assess whether the supect’s presence in the requesting country is really necessary – specifically if investigations have not come close enough to completion to require that presence. This is eerily like Assange’s case since the EAW was issued by prosecutors seeking to interview him, not by judges wishing to arraign him on a criminal charge.

Sadly for Assange, he was not apparently the inspiration for the new legislation – and the Government has insisted it is not retrospective so is unavailable to his cause – though the UNWGAD panel believes it should be. Their thinking, presumably is that if a terrible injustice to suspects has been discovered it should be put right for those who continue to be embroiled in that injustice, not just for the future.

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Eviction without court order: irrational answer to the wrong question

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First they came for the squatters. Then they came for the illegal immigrants. Soon they will come for everyone in rented accommodation. The Government’s apparent intention in the forthcoming Immigration Bill to allow landlords (in England) to throw illegal immigrants out without a court order matters less in practical legal terms (arguably it doesn’t make that much practical difference) than in terms of incursions into the principle that courts should oversee the relationships between landlord and tenant because of their inherent inequality. 

The legislation is intended to deal with landlords who find their tenants do not have the “right to rent” (under the Immigration Act 2014) or that their perfectly legal right to remain has come to an end. Eviction would thus become a summary matter. Except that, in realistic scenarios, it wouldn’t.

The proposed legislation means that the right to evict summarily will be triggered when the Home Office issues a notice that the tenant “no longer has the right to rent in the UK”. The usual two-month notice period for an assured shorthold tenancy does not apply.  Read the rest of this entry

Judge criticises Home Office after failure to deport Jamaican drug dealer

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A UK Court of Appeal judge has criticised the Home Office for delays in dealing with the expulsion of a convicted Jamaican drug dealer which could increase his chance of staying in Britain. A decision to deport the man, known as KD, was made in 2007 after he served a five-year sentence for dealing in class A drugs. But failings by the Home Office mean he is still in the UK with an improved chance of remaining as time passes.

The Upper Tribunal (Immigration and Asylum) had ruled that his deportation would breach his Article 8 family rights because he had had a relationship with a British woman since 2001 and they had three children. Now Lord Justice Richards in the Court of Appeal has granted the Government a right to appeal against that judgment – but said “the passage of time is likely to strengthen rather than weaken the respondent’s Article 8 claim in the event that the matter falls to be decided afresh”.

Problems in the procedure started because the Home Office failed to serve the deportation order on KD in 2007. The Secretary of State had treated KD’s Article 8 application for leave to remain as if it was an application to revoke the non-existent deportation order – and had rejected it.
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Judge fails to release foreign sex offender shock

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“Judge frees illegal immigrant sex offender in human rights shocker”. That’s a story. “Judge leaves failed asylum seeker in jail without charge for potentially two years or more.” That, apparently, is not a story. But it is worth looking at the case, not least to dispel the notion that unaccountable UK judges spend much of their time releasing foreign criminals at the drop of a cat because of the Human Rights Act.

The case is R (Abdulrahman Abunasir) v Secretary of State. Abunasir had been released from an 18-month sentence for an attempted sexual assault by digital penetration, a “very serious and frightening sexual offence, committed against a young woman, while she was on her own in the street, by a man unknown to her and who had been in the country in all probability less than a fortnight” in April 2013.

While in jail he made an asylum claim saying he was a refugee from Syria. Langage tests suggested he might actually be from Egypt. Bio tests did not. Served with a deportation notice he argued in November 2013 that he could not be returned to Syria “as to do so would breach the UK’s obligations under the Refugee Convention”. He completed his  sentence on the 13 January 2014 and was immediately detained under s. 36(1) UK Borders Act 2007 pending a decision whether to deport him. He is held under The Immigration Act 1971 Schedule 3 para 2(1).

Abunasir thus fell into a common limbo: foreign nationals whom the government does not want to release onto the streets of Britain but who cannot be deported because of fear of torture back home, for example or simply because of the seriousness of troubles in their own country. Here there was no way of engaging with authorities amid the Syrian chaos to establish Abunasir’s claim to nationality. The result has been he has remained in jail for 18 months beyond his prison sentence. He was deemed as being of high risk of offending, likely to abscond and had no family ties in Britain. Much work was done by investigators and the probation service to resolve the issues – the possibility of release under probation or return to Syria under the Facilitated Return Scheme (which involves the individual disclaiming rights to pursue legal action, which Abunasir seemed for a time willing to do). To no avail.
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