Immigration Barristers' Blog

In this case, the Court of Appeal discussed whether or not there is a 'near miss principle' in Article 8 cases.

People refused leave to remain in the country due to not meeting the requirements of the Immigration Rules often argue on appeal that their removal would breach their human right to respect for private life. Since 2010, an increasingly common argument has been that if someone nearly meets the requirements of the Rules but has fallen just short, it would be disproportionate to remove them, and so a breach of Article 8. This approach can be very useful, for example, for appellants under the Points Based System whose bank accounts fell a few pence below the required balance for a short time.

In Miah, the Court of Appeal stated that there is no near miss principle, and that the previous case law that suggested there was is not binding because the statements in question weren't part of the ratio decidendi - the reasons why the case was decided the way that it was. At first glance, this appears to be bad news for appellants who nearly meet the Immigration Rules but still fall just short. However, a careful reading indicates that the consequences are not actually as far reaching as that.

To understand the implications of Miah, it is essential to appreciate what Article 8 involves. To win under this Article, an appellant must show that removing them from the UK would be disproportionate to the Home Secretary's aim in removing them. Apart from in cases about the deportation of criminals, the aim will almost always be the economic wellbeing of the country through the maintenance of effective immigration control. In simple terms, assessing proportionality is a balancing act; the court must decide how much weight is to be placed on the Home Secretary's aim, and how much weight is to be placed on the reasons cited for not removing the appellant. If the appellant's reasons carry more weight, then removing them would be disproportionate and would breach Article 8.

In Miah, the main appellant fell just short of meeting the Immigration Rules; it was therefore a 'near miss' case. He argued that the near miss meant that less weight should be placed upon the Home Secretary's aim of immigration control. The Court of Appeal rejected this argument and in doing so said that there is no 'near miss' principle.

However, this does not mean that a near miss can never be relevant to an Article 8 case. As explained above, there are two sides to the proportionality balancing act - the Home Secretary's aim and the appellant's interests. The Court of Appeal discussed the first of these, but not the second. It is therefore still possible to argue that, even if a near miss does not reduce the weight to be attached to immigration control, it may increase the weight to be attached to the interests of the appellant. This may seem just a case of semantics, but it is in fact a very important distinction in practice. All things being equal, someone who complies with some of the Rules that the Home Office wants them to comply with surely has a better claim to stay in the UK than someone who complies with none of them.

The European Court of Human Rights has ruled that Omar Othman (Abu Qatada) cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him.

The applicant, Omar Othman, is a Jordanian national who was born in 1960 near Bethlehem, then part of Jordan. He is currently detained in Long Lartin prison, Worcestershire, England. He is suspected of having links with al-Qaeda.

Mr Othman arrived in the United Kingdom in September 1993 and made a successful application for asylum, in particular on the basis that he had been detained and tortured by the Jordanian authorities in 1988 and 1990-1. He was recognised as a refugee in 1994, being granted leave to remain until June 1998.

While his subsequent application for indefinite leave to remain was pending, he was detained in October 2002 under the Anti-Terrorism, Crime and Security Act, and in August 2005 he was served with a notice of intention to deport him to Jordan.

Mr Othman appealed against that decision. He had been convicted in Jordan, in his absence, of involvement in two terrorist conspiracies in 1999 and 2000. Mr Othman claimed that, if deported, he would be retried, which would put him at risk of torture, lengthy pre-trial detention and a grossly unfair trial based on evidence obtained by the torture of his co-defendants.

The UK Special Immigration Appeals Commission (SIAC) dismissed his appeal, holding in particular that Mr Othman would be protected against torture and ill-treatment by the agreement negotiated between the UK and Jordan, which set out a detailed series of assurances. SIAC also found that the retrial would not be in total denial of his right to a fair trial.

The case then went to the Court of Appeal and the House of Lords, and in February 2009 Mr Othman lodged an application with the European Court of Human Rights. The European Court has now ruled that in the absence of any assurance by Jordan that the torture evidence would not be used against Mr Othman, his deportation to Jordan to be would be a violation of Article 6 (right to a fair trial).

A lecturer at Glasgow Caledonian University is to undertake a study into the public’s attitude towards the problem of human trafficking – and how consumers’ spending habits contribute towards it.

Acording to Dr Kiril Sharapov, there is a widespread misconception that human trafficking is only associated with the illegal sex trade, where people are forced into prostitution after being trafficked across borders.

He believes a growing demand for cheap goods and services, and lack of public awareness of trafficking, obscure our concern for the welfare of the migrant workers involved.

Such demand and lack of awareness fuel the exploitation of migrant workers, many of whom work in a wide variety of everyday situations, including care homes, hotels, and construction.

“Trafficking is not just the issue of badly controlled borders, or economic migrants or criminals,” said Dr Sharapov. “It should be looked at from the perspective of why people are smuggled and trafficked here – there is a demand for cheap and exploitable labour. The rising costs of energy and raw materials and the continuing economic downturn are having a direct impact on the price of consumer goods.”

“This creates downward pressure on wages and an increasing demand for cheap labour that can be easily intimidated, for example by physical violence, threats of deportation or to the security of family back home, and exploited.”

Dr Sharapov’s work will focus on the UK (where people are trafficked to), Ukraine (where people are trafficked from) and Hungary (where people are trafficked through).

He will be based at Central European University in Budapest for the duration of his two-year study, which it is hoped will lead to policy changes relating to human trafficking at national as well as international level.

UN Secretary-General, Ban Ki-moon, has published a message for International Migrants Day, which was observed on 18th December.

In his message he said:

“Migration affects all countries — and so do myths and misperceptions about its impact. There are many false assumptions surrounding migration.

One such myth is that migrants are a burden. In reality, migrants make vast contributions to host countries. As workers, they bring skills. As entrepreneurs, they create jobs. As investors, they bring capital. In advanced and emerging economies, they play an indispensable role in agriculture, tourism and domestic work.  Migrants often care for the youngest and oldest members of society.

People view irregular migration as a crime. Many think migrants who lack proper documents are a danger to society and should be detained, or that all women who migrate to take up low-skilled jobs have been trafficked. These and other unfounded beliefs lead to the adoption of migration policies that are irrelevant at best, or even dangerous.

States have the sovereign prerogative to manage their borders. But, they also have the duty to abide by their international legal obligations. Under international human rights law, all persons, without discrimination and regardless of nationality or legal status, are entitled to enjoy fundamental human rights. No migrant should be sent back to a place where he or she will be tortured. Every migrant woman should have access to health care, including reproductive health care. Every migrant child should be able to go to school.

Human rights are not a matter of charity, nor are they a reward for obeying immigration rules. Human rights are the inalienable entitlement of every person, including the world’s 214 million international migrants, as well as their family members.

Forty-five countries have ratified the International Convention on the Rights of All Migrant Workers and Members of their Families. I call on all others to join this important treaty as a concrete affirmation of their commitment to protect and promote the human rights of all migrants on their territories.

When their rights are violated, when they are marginalized and excluded, migrants will be unable to contribute either economically or socially to the societies they have left behind or those they enter. However, when supported by the right policies and human rights protections, migration can be a force for good for individuals, as well as for countries of origin, transit and destination.

Let us give meaning to International Migrants Day by taking constructive steps to leverage this global phenomenon into a force for progress.”

The European Parliament has approved the Commission's proposal to amend the Qualification Directive which will enhance the rights granted to refugees and beneficiaries of subsidiary protection in the EU. The Directive guarantees uniform rights when it comes to health care and access to the labour market.

Responding to the UK Border Agency consultation on family migration, the Law Society has raised concerns about government proposals aimed at preventing ‘sham’ or forced marriages and abuse of the family immigration route.

The European Court of Human Rights has recently ruled that a local authority was justified in not treating with priority a social housing request by an immigrant, whose son was conditionally allowed to stay in the UK.