Are some rights to private life just not cricket?

Given previous poor reporting of human rights cases, alarm bells began to ring when the Sunday Telegraph recently reported student Abdullah Munawar's appeal on human rights grounds against a refusal to grant him leave to stay in the UK, citing his playing cricket as a reason he had a private life under Article 8 of the European Convention on Human Rights.

However, considering the judgment, the Telegraph article makes a valid point on the limits provided by human rights on immigration decisions, and shows that not all journalism critical of the Human Rights Act is inaccurate.

Article 8 and immigration

The basis of the appeal is a familiar one. Mr Munawar came to the UK as a student, and applied for leave to remain after his three-year course finished. This application was refused by the Home Office, and his appeal was initially dismissed by the first-tier immigration and asylum Tribunal because he did not satisfy a procedural requirement of the Immigration Rules.

He was granted permission to appeal on human rights grounds, to the Upper Tribunal, which hears appeals from the first tier. The specific issue was whether the Home Office decision was unlawful under Article 8 of the European Convention on Human Rights - which protects the right to respect for private and family life.

The process to be followed in Article 8 claims is straightforward, and is summarised by Immigration Judge Pitt in this case at paragraph 15, which mentions the leading case of R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27. The Tribunal must decide if there is a private or family life for which the applicant has a right to respect, then whether the decision interferes with it, to a degree that engages Article 8. If it does, the interference must be in accordance with the law, necessary and proportionate to the legitimate aim for which the interference is made.

Mr Munawar's case

An unusual aspect of this decision was that the appellant did not claim to have family ties in the UK, and relied exclusively on the private life limb of Article 8. In deciding whether Mr Munawar had a private life, Judge Pitt said:

"In addition to his studies, the appellant has formed friendships with fellow students and work colleagues. He has been living with student friends. He plays cricket at the weekends and trains in the week. He attends his mosque regularly and follows a personal development course there. His mother and siblings remain in Bangladesh and his father is working in Iraq. He has a paternal aunt and cousins in the UK. He sees them most weekends. His grandmother also lived in the UK but, sadly, she died last year."

It is clear that many factors were considered here. But having a circle of friends, and, yes, playing cricket, were amongst the considerations.

These factors, along with his commitment to study in the UK, may just about be enough to establish a private life. What is more surprising is that the interference was then judged to be a disproportionate violation of this private life because Mr Munawar is someone:

"who has been studying successfully for three years, who has obtained a degree, who has a clear intention to continue his studies in order to obtain a professional qualification and who has demonstrated that he has the requisite language skills and ample funds available to enable him to progress further."

It is surprising because after all, as Judge Pitt acknowledged, Mr Munawar spent most of his life in Bangladesh and would have the social ties constituting a family life there as well. This could certainly form part of the grounds for an appeal of the decision and so the importance of the case might be subject to change.

The case seems to demonstrate the importance of objectively administered rules on immigration: all involved, including the judge, the Home Office's representative, and articles critical of the case, acknowledged that Mr Munawar is a thoroughly decent person. But of course, this alone should not decide his case.

The reporting

From this analysis, it seems that the Sunday Telegraph was near enough spot on in its article. David Barrett, who wrote the piece, notes that the case may leave open the possibility of many other students using the same argument, "open[ing] the way for thousands of less deserving applicants." Although of course this is a Upper Tribunal decision and so may well be overturned on the inevitable appeal, it certainly seems that after three years at university most students are likely to make friends and have hobbies, which might flippantly be considered the primary aim for going to university.

However, not all articles were as fair. In the Daily Express, Stephen Polllard provided a rather more extreme interpretation the case: "there is now, it turns out, no such thing as a limited student visa." Not only this, but he suggests the case can be added to the Bolivian 'cat case' (refuted here) and Somalian criminals case to show we no longer control who lives in our own country, due to the 'cancer at the heart of British democracy' - the Human Rights Act.

Never mind that the top court in the country makes statements like "the power to admit, exclude and expel aliens was among the earliest and most widely recognised powers of the sovereign state" (Huang v SSHD [2007] UKHL 27) paragraph 5) showing the importance the judiciary places on immigration control.

The cricket case is destined to sit alongside the Bolivian cats and KFC-eating prisoners as another example of human rights gone wrong. It seems, however, that unlike the Bolivian cat case, the case really does throw up important issues and may well be overturned on appeal.

Rachit Buch is a pupil barrister at 1 Crown Office Row and contributor to the UK Human Rights Blog, which is written by members of 1COR. Click here to follow Rachit on Twitter.