Human Rights

In November of 2008 the government’s Identity and Passport Service issued draft regulations to be implemented as secondary legislation to the Identity Cards Act 2006, which received royal assent on 30 March 2006.   The regulations were published and comments were invited as part of the consultation process – which lasted for three months, ending on Friday 13 February 2009.   The draft legislation is expected to be laid before Parliament in March.  

For many years the Court of Appeal’s judgment in R (Mahmood) v Home
Secretary [2001] 1 WLR 840 represented what often seemed like a very solid and very thick brick wall preventing anyone who had established a family life in the United Kingdom from succeeding in showing that his or her rights protected by Article 8 of the European Convention on Human Rights were unnecessarily and disproportionately violated by a decision to remove him or her from the United Kingdom.  

In a landmark decision issued on 25 July 2008 the European Court of Justice’s Grand Chamber has found that the people married to or in a civil partnership with a citizen of the European Union (the “EU”), and who are not themselves EU citizens, must be allowed to remain in their spouse or partner’s home country.  

In its consultation document entitled Fair decisions; faster justice (dated 21-8-2008) the UKBA has indicated its determination to tackle what it sees as “the heavy burden being placed upon the higher courts by the immigration system”

In YB (EEA reg 17(4) - proper approach) Ivory Coast [2008] UKAIT 00062 (13-08-2008) the Asylum and Immigration Tribunal considered the proper approach to be taken by the UKBA in considering an application for a residence card made by an extended family member of “an EEA national” (an national of one of the countries comprising the European Economic Area).  

On 30 July 2008 the House of Lords dismissed the Secretary of State’s appeal against the Court of Appeal’s judgment in R (on the application of Baiai and others) v Secretary of State for the Home Department  [2008] UKHL.  Mr Baiai and the other Claimants had successfully applied for judicial review of the Secretary of State’s decisions to refuse to issue them with a Certificate of Approval, enabling them to get married in the United Kingdom.  As was reported on this site at the time the Court of Appeal in May of 2007 dismissed the Secretary of State’s appeal against their successful applications for judicial review.  

The government yesterday published a draft version of its immigration and citizenship Bill.  Back in February we reported the government’s Green Paper Path to Citizenship.  The consultation period announced then closed at the end of May.   The Bill’s consultation period now begins.  If the timetable announced in February is met the Bill will commence its passage through parliament at the end of this year. 

In B v Secretary of State for the Home Department [2008] UKHL 39 (one of four highly significant judgments issued by the House of Lords’ Appellate Committee on 25-6-2008) the issue was whether when somebody appeals against a decision to remove him or her from the UK and says that the decision violates his right to respect for family life protected by Article 8 of the European Convention on Human Rights (the “ECHR”) – is the effect of his removal on other members of his family relevant to the question of whether the decision is contrary to Article 8?  

In Maslov v Austria (Application no. 1638/03) the European Court of Human Rights, sitting as a Grand Chamber at the request of the Austrian government, decided the case of a young Bulgarian man who had been made the subject of an order excluding him from Austria for ten years.   Mr Maslov had won his case at first instance before the European Court sitting as a Chamber.  In its judgment released on Monday of this week  (23 June 2008) the Grand Chamber found by a majority of sixteen judges to one that the expulsion order was a breach of his rights protected by Article 8 of the European Convention on Human Rights.  

One of Gherson’s clients, a 10 year old girl living in Moscow and hoping to accompany her mother to the United Kingdom, has won her appeal against an Entry Clearance Officer’s (“ECO”) decision to refuse to allow her to come to the UK.  The ECO had refused the client’s application for entry clearance because he or she had not been satisfied that her mother had “sole responsibility” for the client’s upbringing.  The ECO has not sought to challenge the Asylum and Immigration Tribunal’s decision allowing the client’s appeal.