Written and recorded by Ben Amunwa
Hello and welcome to this Webinar. My name is Ben. Um, Anwar Andi. I'm an immigration barrister. The title of this webinar is child rights in the immigration context, future developments and the idea off today's webinar is to have a broad discussion off several key trends within child rights litigation in the immigration context and in particular focusing on two recent landmark cases, but also for us to consider. What do we do with these cases? How can you, as a practitioner, make use off these landmark cases to assist the clients that you see whose cases concern at the effect off immigration decisions on Children? And so, hopefully, by the end of this webinar, you should be able not only to identify the significance off the two landmark cases, which I discuss in greater detail in an earlier webinar on this same issue, but also be able to consider some new approaches to how you can help promote and protect the interests off child rights in immigration matters and also help you to think about some of the potential pitfalls to avoid or the potential advantages off taking legal points in the higher courts. When it comes to litigating on child rights. I think this course will also help to strengthen your ability to spot the strategic points and the strategic cases where there is potential to litigate further and perhaps assisting, developing and strengthening the law in this area. So the first thing that will do is have a quick overview off the two cases. I've mentioned the first being the case off Hesham Ali and the secretary of state for the Home Department on the second case being MM Lebanon. And again, greater detail on those cases is available in my earlier webinar with data law. Secondly, we're going to consider that scope for potential future litigation, and this is where I think it gets pretty exciting. In some ways, this is slightly speculative, but in many other ways, what I hope it will do is cause practitioners to reflect on the structure of the immigration rules and the policies that they deal with on a day to day basis, and to consider the extent to which those actual structures of law are compliant with the U. K's obligations under international law to respect and promote the rights off Children. So firstly, then and very briefly addressing the massive case off Hesham Ali. This, to recap is a deportation appeal on the Supreme Court dismissed the idea from the secretary of state that essentially the full assessment off Article eight rights to private and family life has to be conducted within the immigration rules. For a long time now, the sector states position has bean at just that that the immigration rules provide. I quote a complete code, a system in which Article eight has to be fully assessed within on. There's no going outside the rules. You don't do that don't go outside the rules because that can lead to errors of law. Well, Hashem Ali is authority for the proposition that that is essentially nonsense. It in law there has to be at flexibility to consider Article eight cases. Outside of the rules, however, the balancing exercise is always in deportation cases stacked heavily against the deportee due to the heavy and substantial public interest in the deportation off foreign criminals. Moving incredibly swiftly onto mm Lebanon, which was the legal challenge against the minimum income requirements laid out in Appendix FM off the immigration rules on the Supreme Court. Facing a judicial review challenge, which is quite ambitious challenge to those rules based on the idea that those rules were inherently unfair, offended common law notions of legality and also breached human rights. The Supreme Court concluded, among other things, that the secretary of state's immigration rules and the policy guidance surrounding the rules failed to give effect to the Children duty to the duty contained in Section 55 of the borders, Citizenship and Immigration at 2009 which domestically in codes the United Nations Charter for the Rights of the Child Convention for the Rights of the Child Story, 1989. And the Supreme Court held that those provisions within the immigration rules and policy guides were effectively too stringent. They were too tough on Children. The effect off them was having a massive impact on a very large number off Children separated from their families. Andi, essentially, the court left open the question of, well, how do the rules, or how to the policies properly give effect to the Children duty? That is a matter for the secretary of state and currently we are awaiting. As of the time of recording this webinar further updates on what the secretary of state is going to do to bring her rules and her policies into compliance with the duty under Section 55 to protect and promote and safeguard the welfare off Children. So this is a bit of a cliffhanger, really, when you think about it, because there's no clear answer here as to what language or what procedure or what requirements are needed within the rules to satisfy compliance with Section 55 and to litigators in the immigration sphere. This is, in a sense, brilliant news because it opens up the scope for innovative creative arguments around what should be the content in the substance off Section 55 duty. What should it look like in the immigration rules? It's a totally open question. Exciting times for litigators taking stock there. So far, we've considered two cases. The case of Hesham Ali in the Supreme Court on the case of mm Lebanon in the Supreme Court. And what I say is the combined effect off these two cases is that when you're looking at a provision in the immigration rules or related policies that fails to give sufficient protection to the best interests off Children, if when you're reading the rules, it doesn't appear to actually give weight to and treat these best interests as a primary consideration. Then these rules and policies may well be vulnerable to public law challenge, and they'll be vulnerable on potentially two bases. The first base would be under the Human Rights Act, Section six, off the Human Rights Act 1998 and, by extension, Article eight, off the European Convention on Human Rights. The Right to Private and Family Life. Alternatively, these rules and policies may well be vulnerable to challenge on the basis that they failed to comply with and give effect to the Children duty. And that is the duty contained in Section 55 of the Borders Citizenship and Immigration Act 2009. Where do we go from? Here is the big question. Andi. In order to address that question, I'm going to talk about it in two parts. The first part is a discussion off the practicalities off what you need to be looking for in terms off potential clients in terms of funding on also some of the practical requirements needed to make a success of these challenges because there's no real point taking a sophisticated point of law on the validity of the immigration rules or policies. If ultimately you're not going to win, you don't want to be wasting time or clients, resources or public funds on challenges that are simply going to fail. So what makes a successful challenge? Well, there's a lot to be learned from studying and detail the actual evidence based that was put forward in cases such as mm Lebanon and going back to that judgment. It's fairly clear, I believe, around paragraph 81. Also eighties 81 that the Supreme Court was quite impressed by the evidence that they were provided with. That suggested that some 15,000 Children have bean affected by the minimum income requirements by the harsh and stringent exceptions written into the policy. And they also had evidence that not not many applications at all succeeded. Under these exceptions, you've got to build the evidence base, and I think that has become clearer as the level of sophistication in generic public law challenges to the rules has evolved over time. Indeed, you can look at, for instance, the detained fast track litigation, the highly successful litigation brought to challenge the procedural rules and the structures in place that allowed the secretary of state to detain asylum seekers into process their claims quickly again. In those challenges, just like or similar to M m Lebanon, the court was provided with quite compelling and detailed research, essentially research based evidence which showed that these procedures under the detained fast track were leading to unacceptable high levels of unfairness. The statistics spoke to that At the evidence. Off lawyers and of NGOs who are engaging work in that process also spoke to that issue. So build the case first. One shouldn't be rushing lightly into public law challenges against the rules. They have to be built up from scratch on the basis off hard evidence on hard facts that will actually impress that senior judges when they meet that sort of information. And of course, it's also relevant, as I've indicated earlier, that the numbers matter the scale of any injustices that you are trying to draw attention to, that you're trying to invite the court to find our unfair, disproportionate or unlawful if it's only going to affect a very small number restricted category of people or Children than it might be harder to challenge, then something which is going to effect a very large number of people. So you've got to think about strategically selecting and presenting the information in a way that is going going to emphasize those strengths and draw attention to the scale off any problem. But what about funding? Who's going to pay for all this? Well, that's another question Andi, regrettably, in in private immigration practices, many of you will well know where your client is either ineligible for legal aid or you don't hold illegal a contract. Then, essentially, the client will be looking at funding their legal challenge against the rules themselves. That's not a particularly attractive proposition for anyone off limited means and also people with means, because it does potentially mean both many years of litigation or at least several years to take cases up to the court of appeal, possibly even beyond. It also means cost risk. It means that your client on a judicial review, for instance, may well face the prospect off having to pay the other science costs, having to pay the defendant's legal bill again. That building could be quite substantial on clients need to be fully advised on their potential costs risk. It may be worth considering different funding arrangements, such as conditional fee agreements as well. But again, that doesn't remove the challenge off potential risk of paying legal costs. If they lose, though, it may lower the initial outlay to the client. There are other potential sources of funding for public interest based litigation, and it might be worth considering. For instance, crowdfunding this idea of putting out an appeal a sort of campaign based appeal, honest websites such as a crowd, Justice and others like it, which have Bean pretty effective raising the funds needed to bring legal challenges that are perceived as being in the public interest. And, of course, the issue of Children is at times particularly popular as a fundraising hook. So consider building the case, carefully assembling the evidence, assembling the statistics, doing your research. Consider also the practical hurdle of funding and what that means for your client. Then, of course, you've got toe. Consider how you formulate the case, and just before we go on to look at some examples within the rules, which I've identified as having some potential in terms off targeted future litigation, I just wanted to draw out one further aspect from the case of an M Lebanon. And that's this concept off effective protection, a phrase that you would have heard several times Hopefully if you were listening earlier. This concept of effective protection of Children's best interests is actually a quotation from the case off GNS on the Netherlands, a grand chamber decision of the European Court of Human Rights, and you can find the relevant passage at paragraph 109 off Jenness. There isn't really a definition off what amounts to effective protection. It's not really explained in the judgment. It hasn't been explained by the UK Supreme Court in any of its decisions. Quoting from GNS on Indeed, they quote from Genesis in both of the decisions which we've been discussing today Hesham Ali and Lebanon. But my question is this and this hopefully begin to stimulate some ideas as we go on to look through some provision in the rules. Can it be effective protection of Children's rights where the level of protection that is provided to Children's rights differs from one context to the other? For example, a different level of protection is applied to the Children of deportees of foreign criminals compared to the Children off other migrants. And I think it's arguable, with the very least that actually they should be afforded the same level of effective protection, even if that doesn't necessarily guarantee that the same outcome will be reached every time. And my second question just again to stimulate some thinking is well, can protection really be effective? Where the assessment conducted off a child's best interests in, for instance, a refusal decision only pays really quite brief attention to their needs, their interests on their situation. It's often the case, I think, for those of us reading refusal letters on a regular basis, that we see the Section 55 duty being effectively brushed over very briefly or given a kind of summary assessment again, there's an open question here is to what should the assessment really look like? How long should it be? What factors should it always consider, or what factors should it sometimes consider what type of consideration satisfies the requirements and that the expectations contained in Section 55 I suspect that the answer will vary from child to child, every child being a unique and presenting their own set of circumstances and also the context of the case, whether there's AH criminal element or not. But it's worth pondering, I think, in terms of what really would would practitioners see as an adequate and 2nd 55 compliant assessment and work backwards from there? Test the refusal letter that's in front of you against actually what you think would be a fair and reasonable and proportionate Section 55 assessment and see where you get to from there. So this final part of the talk is concerning picking your targets where in the rules, wherein the policies available to us the labyrinth off immigration provisions created by the sector state for the Home Department, Where can we find those provisions that do not comply with arguably fail to give sufficient protections? Children, I've identified a few for you just to get the ball rolling. In fact, I've got five to get through, so I'll deal with them relatively swiftly. And of course, there's more detail in the handout. So the first point actually is, is the absence of a rule. It's It's not natural rule itself, but but the lack of one. And it's this Children who come to the UK on who are recognised as refugees do not under the existing immigration rules that have any entitlement to bring over or to unify their family in the UK so they can't assist their parents or their their siblings or other close relatives to come over to the UK on the basis off their having refugee status in the UK on. And I am probably not alone in thinking that that is particularly unfortunate. An unsatisfactory situation. If one thinks off Children coming from Calais or Dunkirk, all from other parts off the world where areas are thorn by civil war and conflict. They are genuine refugees. They are most often alone. And so these are lone Children who have been granted refugee status and they are being held apart from their families. It is highly regrettable. Is it arguably unlawful? Well, there is a potential argument here that Section 55 applies and that any child who, for instance, might apply on a discretionary basis to the secretary of State Auto have sufficient certainty that the secretary of state is likely to grant the application in certain circumstances at the moment that as it stands, a child would have to be assisted to make a nap location or to have their parents or their relative making application to the secretary of state without really knowing what type of policy needs to follow or what guidance it has to satisfy. That is obviously going to create uncertainty for the child uncertainty for the family. Is that effective protection of that child's best interest? Well, given that the child's best interests are likely to be re unity with their family, I think thats unlikely. So any such application really falls outside of the immigration rules and into Article eight, where the test is that the applicant, the family, has to show compelling circumstances on whilst that's not the most demanding test. For instance, compared to the deportation threshold, which is significantly higher, it is a demanding test nonetheless, Andi, whether that is actually compliant with the needs of a child under Section 55 I think is open to question, but I'd be interested to hear your thoughts as well, then. Secondly, the seven year rule. So this is the rule that allows parents off parents with a subsisting and genuine relationship with a child who is either settled in the UK or is a British child to apply for leave to remain on that basis. And there is also provision for Children to use the seven year rule as well. Where they are settled in the UK, they can apply for leave to remain on the basis of having bean in the UK for seven years. But the problem is that if the relevant Children are not British or haven't been in the UK for seven years, let's say they've been in the U. K 6.5 6 and 3/4 or perhaps taken a break on lived somewhere else during the 1st 7 years. Then they don't fall within the seven year rule. Alternatively, even if they are British and even if or even if they've bean in the UK for seven years, where the secretary of state believes that it would be reasonable to expect them to leave the UK in order to continue family life, then they don't qualify under the seven year old. So it's not as if assumes you get to your seven years or as soon as the child becomes British, you automatically qualify. There is a further layer of legal test the test of reasonableness that has to be met. Some might say that this all looks rather dodgy when compared with or aligned with Section 55. This requirement of reasonableness, for instance, actually opens up the potential for the child's interest to be overridden by other factors. And indeed, that is exactly what has happened in the Court of Appeal on at least two occasions recently. The case off M A Pakistan and Secretary of state for the home Department. That's 2016 e W. C a sieve 705 On also the case off a. M. Pakistan and Secretary state for the Home Department. That's the 2017 case E W C a sieve 1 80 So both of those cases confirming the reasonableness test as it ought to apply when considering the seven year role. The difficulty here is that reasonable nous allows the secretary of state's to consider the conduct of the parents. And so we come back to what is quite a well established legal problem here because essentially, in Zet H Tanzania, the UK Supreme Court case where Lady Hale gave a path breaking judgment, emphasizing that the primary consideration should be the best interests of the Children in cases that affect them. One of the principals emerging from that case is that Children should not be held responsible for the conduct of their parents. They can't be. It's not their fault. It's that simple. What the Court of Appeal has done, though, is to rationalise taking into account the conduct of parents that immigration history, any crimes or alleged misconduct issues on the basis of that that firstly, you consider what the best interests are. And at that stage, you don't consider conduct to the parents. But then, after deciding on best interests, you go on to consider, then proportionality and reasonableness. And it's at that stage. The reasonableness test is a wide one. It allows the decision maker to consider all the factors in the case, and all the factors in the case include conduct and adverse immigration history. So this is a controversy that's clearly going to continue to vex immigration practitioners until perhaps it reaches the Supreme Court. The Court of Appeal is quite clear that conduct can be taken into account, and it can effectively bite against the interests of Children or override the interests of Children in a in an appropriate case, so further litigation on that is likely. Another point to make is that even if Children satisfy the seven year rule and they're given leave to remain, how long is that for How long is that leave to remain well under the existing immigration rules? In Paragraph 276 b e subsection one. What they're given is a chunk of 30 months leave to remain, and they have to reapply after 30 months. And then they get another chuck until they reach 120 months. And that's when they're eligible to apply for settlement. The question And it's a slightly unusual approach in this instance. The question is, Is that sort of chunking off leave and the requirement to reapply after such time? Is that really effective protection off the child's best interest? We all know that sometimes parents adults will fail to make applications before the expiry of their leave. We'll know that making these applications isn't for free. The fees are only ever, it seems, heading in an upwards direction, on the whole, in particular for applications for settlement. Is it fair or proportionate or compliant with Section 55 to require Children who could be a jyoung seven or eight years of age toe have to re apply through the system in order to settle in in order to, for instance, have an uncomplicated entry into the education system in order to obtain access to work opportunities and benefits. For instance, these are the questions, the sort of questions I think need to be thrashed out, potentially on a future litigation, because it's not immediately clear that structuring the installments of leave in this way is actually Section 55 compliant. There's simply no case law on the issue yet. So then, looking finally at two further examples, um, I noticed, for instance, that the nationality instructions, the rules that govern applications for naturalization and registration as a British citizen contain the good character requirement that this idea that in order to be granted or registered as British, you've got to prove that you're not a bad character, that you don't have criminal convictions or some other serious issues off misconduct attached to your name in this country. The difficulty with this requirement and it's contained in Chapter 18 of Annex D off the nationality instructions is that the same good character policy requirement applies to adults as it does apply to Children. In my view, that's arguably disproportionate. And arguably, that does not adequately reflect the fact that it should take a different approach to Children. That the policy should not apply with its full force, perhaps, and full rigor on Children as young, for instance, is 11 as it would apply to a 36 year old adult, it simply seems, in some inherent way problematic, possibly irrational. Finally, I've highlighted that the Home Office's policy on what's known as the Deport now appeal later provisions. This idea that in some cases where interim removal before an appeal is brought, is the way forward this provision, which has been largely marginalized now by the new Supreme Court case off Chiari and Blend loss that's 2017 u. K. C. 42. This provision is also problematic when it comes to Children's rights. It may be that Section 55 doesn't need to do its work on the Deport now. Appeal later policy because the UK Supreme Court has already rendered it effectively redundant in the context, off legally, well, in the context solve appeals against deportations, which is based on Article eight and where there is no legal aid under exceptional case funding and where the tribunal has not provided an adequate way off hearing the appeal out of country, for instance, by an adequate video link or by Skype on and at an affordable rate a rate which the appellants can actually pay for it. These are some of the problems discussed in Chiari and Blend Loss, which effectively concluded that on the facts of those cases, the Deport now appeal later. Policy did not comply with the procedural requirements of Article 82 off the European Convention, but a further argument should it be necessary against the Deport now appeal policy is that, well, it does refer to the Section 55 duty, the policy document that the secretary state currently maintains refers to it. But the difficulty is it also lays down some very stringent exceptions within that policy. So it says, for example, that where the person who's the second state wants to remove before they have their appeal has a parental relationship with a child who has, I quote a serious illness and requires full time care by the claimant. That's a scenario where it won't be appropriate to deport the person now and let them appeal later from out of country. But if it's that type of stringent exception, Andi only that type of stringent exception that gets passed the deport now appeal later policy. It is arguably difficult to see how that accords with the duty under Section 55 to promote and safeguard the welfare off Children. For instance, there might be a child who has a serious illness but doesn't require full time care but nevertheless requires significant care from the claimant or a child who is particularly attached to the claimant but doesn't have a serious illness in these scenarios. Is it right that the deport now appeal Pope appeal later policy should simply override and discount the interests off that child in maintaining personal contact with the claimant again, arguably no. But of course, the context of the Deport now appeal later policy as it waas under the case of Chiari and Blend loss was that of deportation cases. The power has now been broadened to all immigration cases, and we're yet to see how the secretary of state continues to try and use this power if it will do in order to remove people with immigration based appeals before they can actually get their appeal heard in the UK. But if that practice is ongoing, Section 55 issues may well crop up and it will be in the interests of all litigators to be able to spot thes strategic points. So in conclusion, then all of these examples which I've given off rules and policies demonstrate the far reaching nature off the UK Supreme Court's decisions in M m Lebanon and also Hesham Ali. And it suggests that there may be some pretty fundamental consequences arising out of these decisions which essentially broadened the scope off the protection of Children's rights in the UK in the immigration context, all of the requirements and the rules which I've just been discussing in this final part of the talk on one reading, disregard or failed to give effect to the interests of Children. If those Children don't satisfy again arguably stringent requirements, and it remains to be seen whether these rules in their current formats and the policies in their current format are actually section 55 compliant or not, that is the challenge facing litigators in this area. I hope this has been useful in stimulating some ideas in terms off the future developments arising out of these landmark cases. Thank you very much.
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