Case Previews: ZM v SSHD and another case; R (O) v SSHD; Abd Ali Hameed Al-Waheed v Ministry of Defence & another case; and R ((MM) Lebanon) v SSHD and other cases.
07 Thursday Apr 2016
ZM v Secretary of State for the Home Department; HA (Iraq) v Secretary of State for the Home Department, heard 12-14 January 2016.
These conjoined appeals consider whether the rules that enable the Home Secretary to make a decision to deport foreign national offenders are compatible with the ECHR, art 8.
In ZM, the appellant married a UK national, had a daughter in 1997 and subsequently came to the UK where he later received indefinite leave to remain in 1999. He separated from his partner but remained in the UK and later had a son with another partner.
In 2005 he pleaded guilty to offences of assault causing GBH under the Offence Against the Person Act 1861, s 20, and possession of an offensive weapon. The Secretary of State made a deportation order against the appellant in October 2012 on the basis of his 2005 conviction and rejected his claim that it would infringe his rights under the ECHR, art 8, particularly because of his 2 children.
The FTT, UT and Court of Appeal dismissed the appeal against his deportation order. The appellant brought his challenge to the Supreme Court, arguing that the respondent had not properly considered his rights under art 8 and the best interests of his children.
In HA (Iraq), the appellant had arrived in the UK in 2000 but his asylum claim was refused. He remained in the UK without leave and was imprisoned for 4 years in 2005 for possessing class A drugs with intent to supply. In 2010 the Secretary of State made an automatic deportation order which the appellant challenged under the ECHR, art 8, relying largely on his longstanding relationship with his fiancée. The UT concluded that there was an interest in his deportation, but that the combination of his length of time in the UK, his positive attitude to future behaviour and the effect his removal would have on his relationship was compelling.
The Court of Appeal concluded that the UT’s conclusions did not reflect the need to give great weight to the strong public interest in removing foreign criminals, nor did they engage with the need to identify countervailing factors that were very compelling. The appellant has now challenged the Court of Appeal’s decision in the Supreme Court.
R (O) v Secretary of State for the Home Department, heard 19-20 January 2016.
The appellant was imprisoned for cruelty to her child and deportation was recommended. As she had previously absconded while on bail, she was detained in immigration detention following her release from prison. She was not deported due to mental health concerns.
The appellant was diagnosed with severe post-traumatic stress disorder and claimed her immigration detention was contrary to the Hardial Singh principles and contrary to the Secretary of State’s policy in respect of detaining persons suffering with mental illness. Her appeal was dismissed by the High Court and the Court of Appeal. The Court of Appeal ruled that the decision as to whether detention was lawful could only be impugned on traditional public law grounds, and it was not for the court to act as the primary decision maker. The court further noted that paragraph 55.10 only required the Secretary of State to ‘satisfactorily’ mange her condition. Although the Court criticised the Secretary of State’s failure to take account of her medical reports during detention reviews, given her risk of absconding and the risk of harm to others her detention was justified and at best she may have received nominal damages if the court let the case proceed.
Abd Ali Hameed Al-Waheed v Ministry of Defence heard 14 February 2016.
The appellant is an Iraqi citizen and was detained without charge by the British Armed Forces between 11 February 2007 and 28 March 2007. He alleged this detention and the treatment he received was unlawful and an infringement of his rights under the ECHR, art 5(1). The respondent contended that one of the grounds for detaining the appellant was that it was necessary for imperative reasons of security.
The High Court ruled that it must follow the House of Lords’ decision in Al-Jedda v Secretary of State for Defence  UKHL 58 which stated detention without charge in that case was necessary for reasons of security and was therefore authorised by the United National Security Council Resolution 1546, and by reason of the United Nations Charter, art 103, that obligation prevailed over the detainee’s rights under art 5(1). However the court stated the fact that the ECtHR subsequently reached a different decision in Al-Jedda was clearly a matter for the Supreme Court to take into account and justified an application for leave to appeal.
R (MM) & Ors v Secretary of State for the Home Department and another case
These cases concerned joined applications for judicial review challenging the defendant secretary of state’s amendments made to the Immigration Rules concerning the maintenance requirements for the admission of spouses to the UK. Previously a non-EEA partner wishing to reside in the UK with a UK citizen had to demonstrate that they could maintain themselves adequately without the recourse of public funds. Under the defendant’s amendments the UK partner now had to have a minimum income level of £18,600, savings of £16,000 were required before they could be said to contribute to rectify an income shortfall, and a 30 month period to forward income projection.
The claimants contended that the restrictions introduced by the new amendments were an unjustified interference with their right to respect for private and family life under the ECHR, art 8, and were discriminatory under art 14(1). The High Court held that the interference was serious enough to require compelling justification. It stated that the amendments had a legitimate aim and were rationally connected with that aim. However the combination of the measures in the amendments was so onerous in effect as to be an unjustified and disproportionate interference with a genuine spousal relationship. It stated that setting the income figure significantly higher than even the £13,400 gross annual wage identified by the Migration Advisory Committee as the lowest maintenance threshold effectively denied many people the ability to join their foreign spouses, frustrating the rights of refugees and British citizens to live with their chosen partner.
The Court of Appeal overturned the decision on appeal, ruling that the Secretary of State had analysed the effect of immigration of non-EEA partners on the benefits system and reached a rational conclusion on the link between income and integration. She had also demonstrated that the interference was the minimum necessary. It stated that the court should not impose its own view unless the levels chosen were irrational, inherently unjust or unfair. The claimants’ are now challenging this decision in the Supreme Court.