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Where’s the beef? Court criticises quality of Article 8 applications


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The Court of Appeal’s decision in Parveen v Secretary of State for the Home Department [2018] EWCA Civ 932 seems to be an additional nail in the coffin for the once renowned (and now shut down) Malik Law Chambers, with the court repeatedly criticising the firm’s preparation of the application in this case. The judgment is also interesting for its (brief) discussion on the interpretation of paragraph 276ADE(1)(vi) of the Immigration Rules and the meaning of “very significant obstacles to integration”.

Given the nature of the case, the preceding facts were (meaning no disrespect to the appellant) strangely unremarkable. Rather than the usual flurry of applications, appeals and judicial reviews, the position was simply that Mrs Parveen entered the UK in May 2000 with a spouse visa valid for one year but never renewed. It was only in 2014 that an application for leave to remain was finally made and subsequently refused.

Prior to the introduction of the Immigration Act 2014, there was in most cases no right of appeal for those applicants whose application was simply refused whilst they had no leave. A right of appeal was only triggered where a removal decision was made. As a result, Mrs Parveen pursued judicial review proceedings in the Upper Tribunal. The two main submissions were that:

  1. There would be “very significant obstacles” to Mrs Parveen’s integration into Pakistan within the meaning of paragraph 276ADE(1)(vi);
  2. The Secretary of State should have given “independent and proper consideration” to Mrs Parveen’s Article 8 claim outside the Immigration Rules.

The court had initially granted permission because the case potentially raised an important point of practice on the proper interpretation of paragraph 276ADE(1)(vi). Because of the passage of time, the Court of Appeal had already delivered judgment in Kamara v Secretary of State for the Home Department [2016] EWCA Civ 813 which looked at the meaning of the phrase in the context of section 117C(4) of the Nationality, Immigration and Asylum Act 2002.

In that case, Lord Justice Sales had said that the concept of “integration” required a “broad evaluative judgment” as to whether the foreign offender would be able to understand life in the society; whether they would be accepted in their community; and whether they would be able to operate on a day-to-day basis within a reasonable timeframe.

In addition, the Upper Tribunal had considered the meaning of “very significant obstacles” in Treebhawon v Secretary of State for the Home Department [2017] UKUT 13 (IAC) which had said:

The other limb of the test, ‘very significant obstacles’, erects a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context.

The Court of Appeal expressed reservations about whether the passage from Treebhawon was simply placing a “gloss” on the words of the rule. Lord Justice Underhill observed that the task of the decision maker is:

simply to assess the obstacles to integration relied on, whether characterised as hardship or difficulty or anything else, and to decide whether they regard them as “very significant”.

All of this discussion was very interesting; until the court realised that only one paragraph of Malik Law Chambers’ letter actually purported to set out what the “very significant obstacles” were. The court also noted that the application of paragraph 276ADE had not been challenged in pre-action correspondence with the Secretary of State either. The sole relevant paragraph in the letter accompanying the application claimed that Mrs Parveen had lost all ties to Pakistan and was “worthy” of being granted compassionate leave.

Unimpressed, Underhill LJ explained that the “bare assertion” was “plainly insufficient”. There was a total failure to explain why she had lost ties; why she would face problems reintegrating to Pakistan; what her educational or other qualifications were; and what she had been doing in Pakistan before she had come to the UK.

Zane Malik, on behalf of Mrs Parveen, did his best to advance the submission that the paragraph in the covering letter was enough for Ms Parveen to succeed, or at the very least, required further analysis by the Secretary of State. But as the court noted

there was almost no straw in the original application with which he could make the necessary brick.

Ultimately, this lack of specificity proved to be fatal to both Mrs Parveen’s submissions. The court specifically noted that the “letter summarises the Appellant’s immigration history and expatiates at some length, through with almost no particularity”. This was also the problem in the Upper Tribunal below which had refused the judicial review and said:

the circumstances put forward by the applicant in the cover letter that accompanied the application for leave to remain were vague and there is no evidence in the applicant’s bundle to support any of the assertions.

Underhill LJ did not hesitate to make those concerns known in his judgment. He considered that Ms Parveen “may well have a good case for leave to remain” but the absence of any detail did not allow the Secretary of State to make an informed judgment. He concluded with this:

I wish to add that this Court sees too many cases in which applicants for leave or their advisers – particularly in cases depending on article 8 outside the Rules – devote their energies to setting out extracts from the case-law rather than to demonstrating a compelling case based on the details of the applicant’s particular circumstances. The latter exercise may require more work, but it is what the Secretary of State, and if necessary the Tribunal, will be more concerned with. Cases of this kind generally turn on their facts, and the applicable law does not require elaborate exposition.

It is disappointing and concerning to see immigration practitioners being brought into disrepute yet again. Lessons are apparently not being learnt despite the courts reiterating time and time again that severe consequences can follow.

The most common signs of a poor advisor are exactly the ones identified by the court: quoting huge chunks of already well-established authority with almost zero particularisation. For these types of advisors, the tactic seems to be quantity over quality.

A well-prepared covering letter is the heart of an application and can be the difference between persuading a caseworker one way or the other. It is imperative that practitioners learn this now rather than in front of a Hamid court.


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Bilaal Shabbir

Bilaal Shabbir

Bilaal is an Advocate at the Scottish Bar and practises in both Scotland and Jersey, focusing on public law, commercial dispute resolution and offshore trust litigation. He is a Panel Member on the Football Association’s (FA) National Serious Case Panel.