An interesting case has come to our attention, which raises serious questions about how immigration cases involving Article 8 issues will be handled in the future.
The case concerned a Bangladeshi student, Abdullah Munawar, who came to study in the UK in 2008. He applied for further leave to remain as a Tier 4 (General) Student in February 2010, but this was refused because he did not have the requisite funds in his account when he made the application. The appeal against the refusal was dismissed in October 2010, but an error of law was found in this decision and the case came before the Upper Tribunal (Immigration and Asylum Chamber) and Judge Pitt, who handed down judgment at the end of last year. She allowed the appeal, on the basis that deporting him would be a disproportionate interference with Mr Munawar’s right to respect for his private life under Article 8 of the European Convention on Human Rights.
This decision invoked strong comments from media outlets such as the Telegraph, because Judge Pitt listed friendships with students and work colleagues and playing cricket at the weekends, as factors in determining that Mr Munawar had built up a private life which deserved respect in the UK.
We commented previously on the balancing act that judges face when assessing deportation cases where Human Rights issues have arisen. First, judges must determine whether the applicant has established a private or family life in the UK which must be respected. It must then be considered whether or not the applicant’s right to respect for his private or family life would be interfered with by his deportation. This case deviated from the norm since the applicant did not attempt to prove that he had created a family life in the UK, which offers a stronger basis from which to argue that removal of the applicant would be disproportionate. Instead, Mr Munawar submitted oral evidence to the effect that he had established a private life here, which included accountancy training in the week and attending mosque regularly, as well as playing cricket at the weekends.
Immigration Judge Pitt then needed to determine whether interference with Mr Munawar’s private life would have ‘consequences of such gravity as potentially to engage the operation of Article 8’ and consider whether the interference would be in accordance with the law, necessary in a democratic society and ‘proportionate to the legitimate public end sought to achieved.’
This decision is so unusual because making friends in the UK and participating in sporting activities do not seem the most convincing arguments that Mr Munawar had established a private life here. Almost every foreign student who comes to the UK will form similar ties during their time here. Furthermore, it is not clear why Judge Pitt decided that sending Mr Munawar back to Bangladesh, where he still has family and friends, would amount to a disproportionate interference with his right to a private life.
What is quite evident from reading Judge Pitt’s decision is that Mr Munawar is indeed an ‘intelligent, hard-working and courteous 23 year old,’ and that in February 2010 he satisfied all criteria for being granted permission to remain as a Tier 4 student, bar the financial requirement. The fact that he was refused approval to stay and complete his training due to this lack of requisite funds when his application was submitted could be seen as procedurally unfair, since he produced evidence to the Upper Tribunal which showed that he currently has more than the required amount of funds and has had so in the past.
However, we wonder whether this may open the floodgates for many more cases of a similar nature which involve foreign nationals who are refused approval to stay in the UK due to failure to meet the immigration requirements, but appeal on Human Rights or specifically Article 8, grounds. We cannot quite understand the reasoning behind the decision in this case and it has caused serious consternation in the press and from the Home Office. At the moment, it seems as though Parliament and the judiciary are pulling in two opposite directions on the issue of handling Human Rights claims in immigration cases. We look forward to clarification on these important issues in the year ahead.
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