Month: November 2020

Introduction to The European Convention on Human Rights

Human rights is a subtle and complex area, and much litigated. It is therefore constantly evolving and practitioners must take particular care to ensure their knowledge of case law is up to date.

Although human rights concerns arise in many fields, they have particular relevance to immigration law. The most significant aspects of human rights law for the purposes of the LPC course are Article 3 (often in conjunction with an asylum claim, but capable of being argued alone); and Article 8 (often in conjunction with an application based on private or family life under the Immigration Rules, but again, capable of being argued alone.

The full title of the Convention is: Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4.XI.1950)

The Convention It came into force in September 1953. In October 2000 – only 47 years later! – it was directly incorporated into UK law by the Human Rights Act 1998.

Article 1 of the Convention: Obligation to respect human rights: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

The main rights and freedoms of Section 1

Article 2 – Right to life

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a) in defence of any person from unlawful violence;
b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 4 – Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article the term forced or compulsory labour shall not include:
a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
d) any work or service which forms part of normal civic obligations.

Article 5 – Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court;
b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

Article 6 – Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b) to have adequate time and facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 7 – No punishment without law

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 9 – Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11 – Freedom of assembly and association

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 14. Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

[*Article 13 – right to an effective remedy – built into Human Rights Act 1998]

There are a number of protocols to the Convention e.g. the First Protocol contains rights in relation to protection of property, a right to education and to free elections. The Sixth Protocol abolishes the death penalty subject to certain limitations.

“Since the Convention’s entry into force thirteen Protocols have been adopted. Protocols Nos. 1, 4, 6, 7, 12 and 13 added further rights and liberties to those guaranteed by the Convention, while Protocol No. 2 conferred on the Court the power to give advisory opinions. Protocol No. 9 enabled individual applicants to bring their cases before the Court subject to ratification by the respondent State and acceptance by a screening panel. Protocol No. 11 restructured the enforcement machinery. The remaining Protocols concerned the organisation of and procedure before the Convention institutions” (ECHR website – historical background).

Despite not requiring leave to enter or remain in the UK, it is possible for an EEA national to be excluded or removed from the UK. The restrictions described below derive from the Treaty of Rome (Article 39(48)) (see also Council Directive 64/221) and are repeated in the Immigration (EEA) Regulations 2006 which provide for the exclusion or deportation from the UK of EEA nationals.Regulations 23to 27 provide that a person may be removed from the UK if:

• he is not or has ceased to be a qualified person (or the family member of a qualified person) under the regulations; or
• he is a qualified person (or the family member of a qualified person) but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health or on the grounds of misuse of rights.

What issues may constitute public policy grounds?

The decision must be taken on the basis of the personal conduct of the individual concerned: previous criminal convictions do not in themselves justify a decision. Clearly a decision to exclude or deport is contrary to the principles of free movement and the person concerned must be informed of the grounds on which a decision is taken. Case law suggests that criminal conduct (either very serious or where there is a likelihood of re-offending) and conduct considered a threat to the interests of society / national security may give rise to such cases.

British nationals who have travelled to another EEA Member State and exercised Treaty rights in that state (often, but not always, by working there) will be able to return to the UK accompanied by non-EEA family members and will be able to rely on the Treaty rights/EU law. This principle (also described as the ‘Surinder Singh principle’) was established in the case of R v IAT and Surinder Singh ex p SSHD [1992] 3 CMLR 358. Regulation 9 of the Immigration (EEA) Regulations 2006 incorporated the Surinder Singh judgment. The requirements are:
a) that the British national resided in an EEA state as a worker, student, self-employed, self-sufficient person or acquired the right of permanent residence in an EEA state;
b) the family member and the British national resided together in the EEA state and their residence was genuine;
c) the British citizen would satisfy the conditions for residence if they were an EEA national (e.g. they are within their first 3 months of residence (initial rights of residence) or are a qualified person);

d) the purpose of the residence in the EEA host country was not to avoid
any U.K immigration law applying to non-EEA nationals.

Definition of family member

The applicant must provide evidence of their relationship as a direct family member (reg 7) of the British citizen sponsor.

The UKVI guidance titled ‘Free Movement Rights: family members of British citizens’ (October 2017) states that ‘Applicants claiming to be extended family members (for example, durable partners or dependent relatives) of British citizens do not have a right of residence under the 2016 regulations. If the applicant is an extended family member, you must refuse the application.’

Genuine residence

Following the introduction of the tough financial requirements in July 2012 in relation to family applications under the Immigration Rules (see Chapter 5), there was a significant rise in the number of applications made via the Surinder Singh route, as this was a far easier route than via the domestic law.

The provisions subsequently introduced in the ‘genuine residence test’ made it harder for couples to return to the UK under the EEA route.

Factors relevant to whether the residence was genuine are set out in regulation 9 (3):

• whether the centre of the British national’s life transferred to the EEA state;
• the length of the family members and the British national’s joint residence in the EEA state.
• the nature and quality of the parties’ accommodation in the EEA state, and whether it is or was the British national’s principle home. For example, a mortgaged home or long-term rented accommodation is more likely to indicate genuine residence than living at a hotel or a bed and breakfast, or short stays with friends.
• the parties’ degree of integration in the EEA state, for example proof of speaking the language, having children born or living there, or involvement in the local community;
• whether the family member’s first lawful residence in the EU with the British national was in the EEA state.

However, in ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC), the Upper Tribunal found that there is no basis in EU law for the centre of life test. It further found that the test is not to be applied when Judges assess Surinder Singh cases that appear before them.

Where a negative decision has been made in relation to an EEA right, for example, where the family member of an EEA national has been refused entry to the UK, or where the authorities have refused to issue such a person with an EEA family permit, there are rights of appeal. EEA decisions attract a right of appeal. Where there is a national security dimension to the case the appeal will lie to the Special Immigration Appeals Commission (‘SIAC’).

Regulation 36 of the 2016 Regs requires an EEA national and/or a family member or an extended family member of an EEA national wishing to assert a right of appeal to produce evidence of identity and nationality. In addition family members must produce either an EEA family permit or a qualifying EEA state residence card or (in some circumstances) proof of their relationship with the EEA national.

However, applications under the EU Settlement Scheme do not carry a right of appeal. This is because they are not, formally, EEA decisions, but decisions under the Immigration Rules (and not within the range of appealable decisions set out in s.82 Nationality, Immigration and Asylum Act 2002).

Challenges to decisions under the Scheme are therefore by Administrative Review and by Judicial Review.

In anticipation of Britain leaving the EU, the Home Office set up an application programme called the EU Settlement Scheme to which EEA nationals may apply.

This was done by amending the Immigration Rules (an easier process than creating new regulations). The relevant section of the Rules is Appendix EU.

The scheme confers two forms of status: settled and non-settled status.

Settled status is effectively equivalent to permanent residence, as described above. The application requires EU citizens to prove that they have been living in the UK for five years – not necessarily that they have been a qualified person continuously for five years.

Pre-settled status is effectively equivalent to a registration certificate, as described above. The application requires EU citizens to prove that they were resident in the UK on or before 31 December 2020. Again, there is no specific requirement that they were a qualified person.

Both statuses afford access to the labour market and to state benefits and services in the same way as under the 2016 Regs.

Both statuses allow family members to accompany or join the EEA national in the UK.

At the time of writing, the deadline for applying is 31 December 2020 if the United Kingdom leaves the EU with no deal, and 30 June 2021 if there is a deal.

Failure to apply by the deadline will mean that an EEA national would end up with no legal right to live in the UK.

The application process and grant

An app has been designed for the application, with which applicants scan and upload ID documents, and relevant documents to prove their residence in the UK. In many cases it is sufficient to provide a National Insurance number, if that shows evidence of work (or of receipt of benefits).

Family members also need to upload evidence of their relationship to the EEA national.

There is no fee for the application.

At the time of writing, no documentary confirmation of status is issued. A person granted status must rely on the Home Office’s records of their status being accurate and accessible.

Number of applications under the scheme

During 2019, 2.7 million applications were received under the scheme. (This may not equate to 2.7 million applicants. Some applications may have included family members. Conversely, some may have been repeat applications where an initial application was rejected, e.g. for insufficient evidence.)

In the same period, 2.45 million applications were successful.

Of those, 58% were given settled status. 41% were given pre-settled status.

Timeline following exit day

Any future changes will depend on the nature of the UK’s relationship with the EU, which in turn will depend on negotiations to take place during the first half of 2020.

At the time of writing, significant dates are as follows; some may well be subject to change.

1 March 2020	The EU is aiming to have its negotiating mandate agreed by this date (to be confirmed at a meeting on 25 February 2020.) This would give the European Commission the legal authorisation to open talks with the UK. A priority will be to hammer out a free trade agreement that will be the core of a future economic relationship.
June 2020	A summit should take place to assess the progress of the talks. June is also the final month for Britain to request an extension of its transition period beyond 2020 (which the Prime Minister has said he will not do).
26 November 2020	A trade deal must be negotiated, checked, translated and presented to the European Parliament by this week if it is to be ratified by the end of the year.
31 December 2020	If a trade deal is not in place, then Britain will fall back on to basic World Trade Organization terms, meaning tariffs on goods and little practical co-operation to smooth border checks. The outcome would effectively be the same as a no-deal Brexit and both sides would need to make preparations for how they cope with the economic fallout in 2021.
31 December 2022	The final date to which the transition period could be extended (though, as noted above, the Prime Minister has ruled this out).

Where an EEA national exercised Treaty rights, their spouse and children, and in some cases other relatives, would generally be entitled to accompany them to the UK. The right of the family members to remain in the UK was contingent upon the EEA national exercising their rights (i.e. remaining a qualified person).

It is also important to remember that both family members who are EEA nationals themselves and non-EEA family members could accompany or join the EEA national in the UK.

Family members are defined in regulations 7 and 8 of the 2016 Regs. Regulation 7 essentially deals with:

• spouses and civil partners;
• children;
• parents; and
• grandparents.

Regulation 2 makes it clear that a person will not be regarded as the spouse, civil partner or durable partner of another person for the purposes of the regulation where another spouse, civil partner or durable partner of either person is already present in the UK. Also, unsurprisingly, a spouse does not include a party to a marriage of convenience.

Regulation 8 deals with extended family members. An extended family member is essentially someone who does not come within regulation 7 and is:

a) a relative of the EEA national, and is also one of the following;

• the person is residing in a country other than the UK and is dependent on the EEA national or is a member of his household;
• a relative who on serious health grounds requires care from the EEA national, his spouse or civil partner; or
• a partner of the EEA national (other than civil partner) who can prove to the UKVI that he/she is in a durable relationship with the EEA national.

Documentation

Non-EEA family members

Non-EEA family members were obliged to get an EEA family permit before they travelled to the UK if they were visa nationals (i.e. citizens of countries who always need visas to enter the UK), or if they were coming to live with the EEA national permanently or on a long-term basis.

The EEA family permit was a form of entry clearance, issued free of charge. The permit allowed non-EEA family members to travel with the EEA national or join them in the UK.

A non-EEA national (who was the family member of an EEA national) could also apply for a residence card as confirmation of their rights derived from the EEA national’s rights, once in the UK.

Note that family members could come to the UK independently of the EEA national – but in those circumstances the normal UK immigration rules would apply, including visa requirements.

EEA family members

EEA family members could simply enter the UK in their own right. They would simply require some form of ID or a passport. As an EEA national they would have an initial right of residence of 3 months. If they wished to remain beyond the 3 month period as a family member of a EEA national (who must be qualified) they could apply for a registration certificate to confirm their right to reside.

It was also possible for an EEA family member to apply for a EEA family permit prior to entry to the UK.