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Tribunal President says bus drivers and brain surgeons to be treated the same


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Thakrar (Cart JR; Art 8: value to community) [2018] UKUT 336 (IAC) is a rare example of a case where permission to appeal to the Upper Tribunal was only granted by a High Court judge after a Cart judicial review of the Upper Tribunal. To put it another way, the Upper Tribunal did not think there was merit in the case but was forced to hear it anyway by a High Court judge.

Reading the determination, it seems fair to say that the Upper Tribunal is not impressed with said High Court judge. So unimpressed, in fact, that he or she is not named, which is always a bad sign.

President Lane, now a High Court judge himself, takes the opportunity to put his fellow judge right on the second appeals test that applies in Cart cases and on the fact that immigration cases do quite often involve removal from the UK.

First, all appeals to the First-tier Tribunal against the respondent’s refusal of a human rights or a protection claim involve the prospect of removal… it therefore cannot be correct that the so-called second limb of the second appeal criteria is always engaged in these circumstances. If it were, then those criteria would lose their function, as a restriction on the power to grant permission to appeal in immigration cases.

One can see his point.

The judicial grumpiness continues, with the President making it clear that he was unimpressed by the grounds for judicial review, stating simply that one of them “should not have featured in the application for judicial review.”

The appellant gets both barrels for advancing a ground of appeal that really wasn’t very well supported by the evidence:

I find it not only spurious but also indicative of a lack of candour on the part of the appellant and her family.

Little weight given to grandparent/grandchild relationship

President Lane also sets little store, in legal terms, on the role of a resident grandparent in the lives of their grandchildren:

As a general matter, the relationship between grandparent and grandchild, beneficial though it may be, is unlikely to carry material weight in terms of Article 8, unless the grandparent has stepped into the shoes of a parent.

This may well seem harsh but case law justification for this statement is not hard to find (Kugathas), even if it does not actually feature in the determination. Unfortunately the President then dismisses the arguments advanced by the appellant on the relationship between grandparents and grandchildren as “hyperbole”.

This is arguably goes too far. The relationship in question no doubt is very important indeed for all concerned, even if seems evident to a judge that the rules are not met. The phrasing recalls the unhappy “run of the mill” turn of phrase once infamously deployed by Mr Justice Cranston before his retirement.

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Most people increasingly recognise the importance of grandparents. Family law judges would probably be surprised to hear that Article 8 does not extend to grandparents and government policy is supposedly all in favour of promoting the grandparent-grandchild relationship. Unless they are migrants, I guess, in which case tough luck for the kids.

On the issue of the rights of overstayers and illegal entrants, President Lane states boldly that other than in cases of delay, no weight can be attached to their unlawful residence when considering private and family life (para 67). Given that the governing legislation itself says “little” weight this seems to go a little far.

Bus drivers, brain surgeons and contribution to the community

The President then turns to the issue of how far a positive contribution to the community can be considered in human rights cases. He reviews the case law, expresses pretty clear disagreement with former President McCloskey’s decision in Lama [2017] UKUT 16 (IAC), and argues that there should be no distinction in human rights law between the rich and everyone else:

Let us assume a judge is faced with two human rights appeals in respect of individuals whose situations are entirely the same, save for the fact that one is a bus driver and the other a brain surgeon. The judge might have his or her own view as to which occupation is of more value to the United Kingdom. But that view, alone, should not lead the judge to treat them differently under Article 8. Were the judge to do so, he or she would be seriously trespassing upon the respondent’s policy realm.

The reason given for equal treatment is that if judges do not exercise “restraint” then “there is a danger that the public’s perception of human rights law will be adversely affected.”

Given that many members of the public would actually hope that a brain surgeon would be treated differently to a bus driver, as we regularly see in the many “good migrant” media stories, I’m not sure this argument really flies. The public might have a point, as well. Brain surgery is apparently quite difficult to do, although no doubt not as difficult as being an immigration judge, and the cost to the public purse of training brain surgeons is probably somewhat higher than training bus drivers. Arguably a failure to exercise “common sense” (a concept as dangerously flexible as that of the General Will, some might well think) is what actually undermines the public’s perception of human rights laws.

President Lane recognises that, in truth, wealth does confer some immigration advantages, for example through the investor and entrepreneur routes. The retired persons of independent means route was abolished in 2008 but still gets a mention for some reason. These are matters of policy, though, and in judge-decided human rights cases for the masses, the wealth of the appellant or family is not to be considered a positive factor.

The President’s proposed test for “public benefit” arguments in human rights cases is to assess “whether the removal of the person concerned will lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it.”

I leave you with the official headnote:

(1) The fact that an application for permission to appeal involves the assertion that a person’s removal from the United Kingdom would violate his or her human rights does not, without more, engage that part of the second appeal criteria, which allows permission to appeal (or permission for a ‘Cart’ judicial review) to be granted, on the basis that removal constitutes a ‘compelling reason’ for the appeal to be heard. If the position were otherwise, the second appeal criteria would lose their function as a restriction on the power to grant permission to appeal in immigration cases.

(2) Before concluding that submissions regarding the positive contribution made by an individual fall to be taken into account, for the purposes of Article 8(2) of the ECHR, as diminishing the importance to be given to immigration controls, a judge must be satisfied that the contribution is very significant. In practice, this is likely to arise only where the matter is one over which there can be no real disagreement. One touchstone for determining this is to ask whether the removal of the person concerned would lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it.

(3) The fact that a person makes a substantial contribution to the United Kingdom economy cannot, without more, constitute a factor that diminishes the importance to be given to immigration controls, when determining the Article 8 position of that person or a member of his or her family.

(4) If judicial restraint is not properly maintained in this area, there is a danger that the public’s perception of human rights law will be significantly damaged.

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Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.