Mark’s work in 2021: ECHR & EU

Mark’s work as a barrister in 2021

Family migration & human rights, EU law and nationality issues

?When my mother needed surgery recently I reviewed the CVs and recent experience of several consultants to see who’d be best for the job. Experience tells me that immigration lawyers seeking counsel may well conduct the same exercise.

So to help out any such enquiries, I thought it might be interesting to review the work I carried out as a barrister in 2021. I can see I worked on around 203 cases. Involvement in such a breadth of cases gives useful insight that carries over to new matters. I’ve named colleagues and the instructing lawyer where the cases made significant progress, where that is practical; a number of these were public access instructions.

Family migration & human rights?

-?????????Deportation - Assisted in submissions for JCWI’s intervention in the ECtHR in Otite v UK on the proper approach to s117C NIAA 2002 for serious offenders with 4 years+ prison sentences and whether the “very compelling” threshold leads to unduly abbreviated reasoning – watch this space for the ruling!

-?????????Seeking entry clearance for an Afghan judge with Mishcon de Reya: query ambit of the ARAP and ACRS schemes, plus leave outside Rules, can the law of humanity (“anterior to all other laws”) give any extra-territorial bite to SSHD's duties in these cases?

-?????????Leading Ubah Dirie in the UT re arguments as to SSHD's appeal being estopped for unspotted lateness (UT essentially dismissed SSHD's appeal for want of diligent prosecution) (with James Elliott at Wilsons LLP)

-?????????Innumerable deportation issues: relevance of a child attaining majority in a deportation appeal, the relationship between considerations inside and outside the Rules in deport appeals

-?????????Interesting points in human rights appeals regarding periods of overstaying within settlement routes and derailment from spouse ILR due to brief relationship breakdown (with Faisal Jamil at Lawmatic Solicitors)

-?????????Numerous delay JRs seeking speeding up of SSHD decision making: key issues being concrete evidence of detriment, proof of damage to private and family life & childrens’ best interests, query if indications of decision-making time lines could ever found a legitimate expectation

-?????????Permission to appeal granted to Court of Appeal re relevance of voluntary work to ECHR Art 8 and on the relevance of the SSHD's non-challenge of witnesses’ evidence (with Mahbubul Alam of Legit Solicitors)

-?????????Arguing in UT re meaning of “frivolous applications” in relation to the “contriving to frustrate the Immigration Rules” general refusal reason

-?????????A challenge to the SSHD's treatment of statelessness in a human rights fresh claim with Legit Solicitors

-?????????Analysing the inter-relationship between the various possible refugee family reunion routes

-?????????Various citizenship deprivation appeals: very challenging territory, quite what role does ECHR Art 8 play in these cases?

-?????????JR permission granted re the Appendix FM parent route and the meaning of “eligible to apply for leave to remain as a partner” – perhaps Khattak in CoA isn’t the last word on this (with Novruz at Nova Legal)

-?????????Debating whether limited leave or ILR should be granted to vulnerable individuals

-?????????Part of the legal team in P3 (CoA) re the ambit of private and family life in nationality deprivation proceedings in the SIAC

-?????????Obtaining ILR for a Zimbabwean long resident in the UK due to combination of possible ostracism for cultural & social reasons, & political beliefs

-?????????Arguments re transitional provisions for DLR and whether ILR is available after 6 or 10 years (with Mark Lilley-Tams at OTB Legal)

-?????????Diverse complex appeals – multiple adult dependent relative appeals amazingly 3 of which were allowed this year, refugee family reunion appeal success for a Syrian family with Lale Kuzu at Birnberg Pierce, appeal allowed for a vulnerable child’s much-loved nanny with Kinza Rana at Connaught Law, discrimination and obstacles to integration for same sex couples, several cases involving liaison with independent social workers in the context of blended families and children with learning difficulties, debating the ambit of “very significant obstacles to integration”, demonstrating a father’s sole responsibility for their child’s upbringing (with Alice Boyle at Prospect Law) (worked on a few other of these cases too, there are certain forms of professional, official and personal evidence that are likely to be persuasive), relevance of Devaseelan principles on appeal post-recognition of a fresh claim by SSHD, demonstrating that there were very significant obstacles to integration to Sri Lanka for a vulnerable failed asylum seeker, tricky case on capacity of young person with developmental issues to enter into marriage – pre-hearing concessions are becoming much more common, eg SSHD accepted Article 3 violation for a successful former businessperson with serious brain disorder

?EU law and its legacy

?-?????????Rather a lot of EEA dependency cases – the trick is to think of every possible line of enquiry re proving historic dependency/cohabitation

-?????????Arguing re the ambit of EEA derivative rights in Court of Appeal application with Hayk Sayadyan at Gulbenkian Andonian

-?????????Relevance of general principle of proportionality to EUSS applications with Nollienne Alparaque of OTS Solicitors

-?????????Whether delays in EUSS scheme decision making are compatible with Withdrawal Agreement requirement for smooth, transparent and simple procedures

-?????????Establishing past entitlement to permanent residence via complex investigations into sickness insurance payments and study/work/self-employment history

-?????????Musing on the ambit of available arguments in Citizens Rights Appeals against refusal of EUPSS/EUSS

-?????????Working with ILPA on SSHD's non-implementation of successful EEA appeals for dependent family members

?Nationality

?-?????????Permission granted in JR of naturalisation refusal due to failure to properly consider relevance of British citizenship to a child’s best interests and to scope of s3 BNA 1981 discretion (Novruz at Nova Legal)

-?????????Numerous JRs in relation to “good character” naturalisation refusals

-?????????Considering the lawfulness of the SSHD's approach to naturalisation of EEA nationals in context of historic “lawful” residence (with Tamina Aziz at Duncan Lewis)?