Nasim and Others (Article 8)

JurisdictionUK Non-devolved
JudgeUpper Tribunal Judge Peter Lane
Judgment Date19 December 2013
Neutral Citation[2014] UKUT 25 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date19 December 2013

[2014] UKUT 25 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

Before

UPPER TRIBUNAL JUDGE Allen

UPPER TRIBUNAL JUDGE Peter Lane

Between
(1) Mr Muhammad Nasim
(2) Mr Tahir Mahmood
(4) Mr Ahsan Khalid
(5) Mr Ahsan Naeem
(6) Mr Rizwan Bashir
(7) Mr Muhammad Arif Mughal
(8) Mr Muhammad Zulgarnain Arif
(9) Miss Noor Ul Huda Arif Mughal
(10) Miss Maham Arif
(11) Mrs Safia Arif
(12) Mr Muhammad Afif Arif
(13) Mr Danisha Ejaz Qureshi
(17) Mr Kazi Mosharrof Hossain
(18) Mr Androo Haji Rafeek
(19) Mr Qummer Aziz
(20) Mr Abhilash Mukundhakshan
(21) Ms Sandeep Kaur
(22) Mr Sajid Abdul
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:

Appellant (1): No appearance and no representation

Appellants (2), (13), (17), (21) and (22): Mr A Baddar, Representative, of Farani Javid Taylor Solicitors LLP

Appellant (4): Mr A Mehta, Representative, of Malik & Malik Solicitors

Appellant (5): Ms A Mohsin, Counsel, instructed by Primax Solicitors

Appellants (6) to (12): Mrs J Heybroek, Counsel, instructed by Morgan Mark Solicitors

Appellant (18): Mr A Sreevalsalan, Solicitor, of Legend Solicitors

Appellant (19): In person

Appellant (20): In person

Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

Nasim and others (Article 8)

The judgments of the Supreme Court in Patel and Others v Secretary of State for the Home Department [2013] UKSC 72 serve to re-focus attention on the nature and purpose of Article 8 of the ECHR and, in particular, to recognise that Article's limited utility in private life cases that are far removed from the protection of an individual's moral and physical integrity.

A person's human rights are not enhanced by not committing criminal offences or not relying on public funds. The only significance of such matters in cases concerning proposed or hypothetical removal from the United Kingdom is to preclude the Secretary of State from pointing to any public interest justifying removal, over and above the basic importance of maintaining a firm and coherent system of immigration control.

DETERMINATION AND REASONS
A. Introduction
1

This determination completes the Upper Tribunal's decision-making in the appeals of the appellants listed above. In Nasim and Others (Raju: reasons not to follow?) [2013] UKUT 00610 (IAC) we made findings in respect of a number of issues advanced by the appellants, in support of their submissions that they should be entitled to succeed in appeals brought against decisions of the respondent to refuse to vary their leave to remain in the United Kingdom, notwithstanding the judgment of the Court of Appeal in Raju and Others v Secretary of State for the Home Department [2013] EWCA Civ 754. At [115] to [118] of Nasim and Others it was explained that, in certain of the appeals, the Upper Tribunal would reconvene to complete proceedings by reference to a single matter, which could not conveniently be dealt with at the hearing on 8 th October 2013; namely, whether, in each case, the appellant was entitled to succeed in his or her appeal on the ground that his or her hypothetical removal, pursuant to the decision to refuse to vary leave, would violate the United Kingdom's obligations under Article 8 of the ECHR.

2

On 19 th December 2013 we reconvened in order to consider any evidence and submissions which the relevant appellants and/or their representatives wished to put forward, and to hear Mr Jarvis make submissions on behalf of the respondent.

B. Procedural matters
3

Mr Nasim (appellant (1)) did not appear on 19 th December; nor was he represented. On 16 th December 2013 his advisors, Immigration Aid, wrote to the Upper Tribunal to say that Mr Nasim wished

“to withdraw his above appeal which is pending with the Upper Tribunal … our client's circumstances have changed and he intends to submit a fresh application in a different category. We understand that the decision of the Court of Appeal in Raju is not in our client's favour and as such he does not intend to continue with this appeal anymore (sic).”

4

Pursuant to rule 17(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008, we consent to the withdrawal of Mr Nasim's case before the Upper Tribunal. That case comprises his appeal against the decision of the respondent, taken on 28 th December 2012, to refuse to vary his leave to remain in the United Kingdom. That appeal is, accordingly, hereby recorded as withdrawn.

5

On behalf of Mr Naeem (appellant (5)), Primax Solicitors had on 12 th December 2013 applied for an adjournment of the hearing of his case on 19 th December, citing as a reason the fact that “Article 8 issues need to be prepared in full”. It was also requested that the hearing of his case be transferred to Manchester. At the hearing on 19 th December, Ms Mohsin of Counsel appeared on behalf of Mr Naeem, who was also present. Ms Mohsin renewed her application for an adjournment, which had been refused in writing by the Upper Tribunal on 17 th December.

6

Having heard Ms Mohsin, we refused the adjournment application. Mr Naeem and his legal advisors had been aware since 8 th October 2013 that there would be a further hearing concerning any Article 8 ground which he wished to advance. There had, accordingly, been ample time to prepare for this purpose. Since the appellant and his Counsel had been present at the Field House hearing on 8 th October, and since Mr Naeem was again present on 19 th December, together with Counsel (albeit a different individual), we found no merit in the application that the remaining proceedings should be transferred to a hearing centre in Manchester.

7

We gave Ms Mohsin an opportunity to take instructions from her client on the issue of Article 8. Following refusal of her adjournment request, at 12.30pm we offered Ms Mohsin the opportunity of delaying her submissions to us until 2pm, if she needed further time. Ms Mohsin indicated that she did not and that she was able to address us on Article 8 (as to which, see below).

8

On 11 th December 2013, Farani Javid Taylor Solicitors applied on behalf of Mr Hossein (appellant (17)), Ms Kaur (appellant (21)) and Mr Abdul (appellant (22)) for an adjournment of their cases, citing “short notice” and the unavailability of Counsel who had attended on 8 th October. The Tribunal did not consider that, given the limited nature of the matters to be considered on 19 th December, any proper case had been given for the adjournment, which was refused. In the event, Mr Baddar, a legal representative with that firm, attended on 19 th December and put forward the Article 8 case for each of the appellants we have mentioned (as well as for appellants (4) and (13)).

9

By agreement, Mr Jarvis addressed us by reference to his written skeleton argument, following which we heard from the representatives and those unrepresented appellants who wished to address us. Mr Jarvis then replied, before the appellants and their representatives were given the opportunity to make closing submissions.

C. Article 8 in the context of work and studies
10

Mr Jarvis's stance, on behalf of the respondent, was uncompromising. In the respondent's view, none of the appellants could demonstrate that removal in pursuance of the decision to refuse to vary leave would have “consequences of such gravity” as to engage Article 8(1) of the ECHR; that is to say, none could demand a positive answer to the second of the five questions posed by Lord Bingham in Razgar v Secretary of State for the Home Department [2004] UKHL 27, at [17] 1, with the result that it was unnecessary to determine whether such removal constituted a disproportionate interference with Article 8 rights.

11

In this regard, Mr Jarvis placed particular emphasis upon the following part of the judgment of Lord Carnwath in Patel and Others v Secretary of State for the Home Department [2013] UKSC 72:-

“57. It is important to remember that article 8 is not a general dispensing power. It is to be distinguished from the Secretary of State's discretion to allow leave to remain outside the rules, which may be unrelated to any protected human right. The merits of a decision not to depart from the rules are not reviewable on appeal: section 86(6). One may sympathise with Sedley LJ's call in Pankina for

‘common sense’ in the application of the rules to graduates who have been studying in the UK for some years … However, such considerations do not by themselves provide grounds of appeal under article 8, which is concerned with private or family life, not education as such. The opportunity for a promising student to complete his course in this country, however desirable in general terms, is not in itself a right protected under article 8.”
12

In her submissions, Mrs Heybroek, upon whom the other representatives substantially relied as regards their common Article 8 arguments, contended that, in this passage, Lord Carnwath was doing no more than pointing out that a right to education is not per se covered by Article 8. We regard the passage, however, as having a wider import, in seeking to re-focus attention upon the core purposes of Article 8.

13

In order to explain why, the following passage from Human Rights Law and Practice, 3rd Edition 2009 (Lester, Pannick and Herberg, Eds), under the heading “the scope of the right”, is instructive:-

“Of all of the Convention rights, art 8 has by far the widest scope. Like other international human rights guarantees, it demands respect for a broad range of loosely allied personal interests: physical or bodily integrity; personal identity and lifestyle (at least in some respects), including sexuality and sexual orientation; reputation; family life; the home and home environment; and...

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