Posted on January 3, 2012

New Human Rights Row over ‘Cricket’ Case

David Barrett, Telegraph (London), December 31, 2011

In what is being seen by lawyers as a test case, a trainee accountant from Bangladesh who came to Britain to study has been granted permission to remain in the country after successfully claiming that he had made friends and played cricket on Sundays.

While the Home Office turned down Abdullah Munawar’s initial bid to stay on in the UK after graduating, the courts overturned the decision and ruled that he could continue to enjoy a “private life” in this country under Article 8 of the European Convention of Human Rights.

Last night Damian Green, the Immigration Minister, said he was “disappointed” with the ruling.

Critics accused the courts of “gold-plating” human rights legislation and undermining the Government’s attempts to control Britain’s borders.

They warned that whilst Mr Munawar, 23, had proved diligent and hard-working since coming to Britain in 2008, his legal victory could open the way for thousands of less-deserving applicants — because almost every foreign student who had completed a degree course will have made a circle of friends and taken part in social activities.

The test case comes at a time when the Coalition is attempting to cut net immigration and limit students’ rights to settle at the end of their education.

Normally, foreign students are granted a visa of up to three years and are expected to leave the country at the end of the period.

In the 12 months to June, 271,000 student visas were issued. Students are not included in the Coalition’s pledge to reduce net migration to tens of thousands a year.

Mr Munawar, who lives in Limehouse, east London, told the Upper Tribunal of the Immigration and Asylum Chamber he should be granted a new visa because he had partially completed his training and had established a social life in Britain.

Judge Susan V Pitt said that Mr Munawar had shown he played cricket at weekends, attends mosque regularly and has “formed friendships with fellow students and work colleagues”.

The judge ruled the Home Office’s refusal of a visa “amounted to a disproportionate interference with private life that deserved respect”.

She did not find that he had established the stronger category of “family life” with his aunt and cousins who also live in London, but ruled that “private life” was enough to win his appeal.

Mr Munawar’s legal adviser Tamij Uddin said he believed the appeal, brought under the Human Rights Act, was a significant test case.

“There is a strong possibility that we will be able to refer back to this case in the future,” said Mr Uddin.

“Although this court’s decision is not binding on other judges there is a possibility to argue the significant points from this case in other appeals. In other words it is a test case.

“This was an impressive result and we were very pleased.”

He added: “The judge took into account my client’s impressive educational background and combined with his sporting pastimes, his friendships and the fact that he is a practising Muslim, she agreed to rule in his favour.”

However, the grounds on which Mr Munawar persuaded the court that he should be allowed a visa under Article 8 grounds were described as “absurd” by politicians and campaigners.

Mr Green said: “We are disappointed with this ruling. It shows how Article 8 is being used to place the private life of those without a right to remain in the UK above the rights of the British public, who want to see our immigration rules enforced.

“It is unacceptable that the Human Rights Act is being used to prevent the removal of people with no right to be in this country and we are changing immigration rules to stop them being abused.”

Lord Tebbit, the former Tory Cabinet minister who in 1990 proposed that a “cricket test” could help identify whether immigrants had integrated into British life, said: “The grounds on which he has won are absurd.

“This may be an outstanding young man who in many ways deserves to be here, but unfortunately the decision will have created case law which can be exploited by people infinitely less deserving than him. Either parliament decides these things or judges do, and it appears to me that judges are making up the law as they go along.”

A leading immigration solicitor expressed surprise at the terms of Mr Munawar’s victory.

Sean Mcloughlin, of TRP Solicitors, said: “If he has won purely on his private life — his links to the community and his hobbies — it is quite surprising to me that someone with such links would succeed in a case like this.

“It’s unusual to win on ‘private life’ at all. The Home Office will not be happy losing a case on private life in these circumstances.”

The Home Office refused Mr Munawar’s original application because he did not have enough money in his bank account to reach the requirements of the points-based system used to determine visa applications.

The legal implications of Mr Munawar’s case build on a previous decision in the Supreme Court in 2010 which ruled part of the points-based system unlawful.

Crucially, Mr Munawar’s victory hinged on the use of Article 8 and means it is more likely that other applicants will use the same approach in the future.

Mr Munawar said: “It was a big relief to win my case because it had been going on for two years.

“At first I was going to return to Bangladesh because it is easier to get into the big accountancy firms there.

“But I have begun studies at my mosque which are very important to me and access to religious education is much better in Britain than at home.”

Mr Munawar, a fast bowler for Southgate Cricket Club, said his playing of the sport in Britain helped to demonstrate to the court that he was committed to life in this country.

“Cricket is our national sport in Bangladesh. I’ve been playing since I was 10 or 11,” he said.

“I haven’t really been following English cricket but now that I live in England I hope to get more familiar with it.”

Mr Munawar has now applied for a work permit and intends to seek a job with a medium-sized accountancy firm. He is also hoping to wed in an arranged marriage after his imam suggested a potential suitor last month, he said.

His brothers and sister have studied subjects such as pharmacy and computer science at university, and his aunt is a hospital doctor in London.

Immigration by numbers

271,000 — student visas granted in the 12 months to June 2011

33,985 — foreign students allowed to convert to work visas at the end of their studies in 2010

470 — colleges barred from accepting students from outside the EU in the six months before November

75% — the proportion of Britons who believe immigration is a problem according to an Ipsos Mori poll, February 2011

26% — the proportion of foreign students at private colleges who could not be accounted for in a Home Office survey

5 — the number of years a foreigner has to live in Britain before they can apply to settle here permanently

4 — months until the Home Office closes the “post-study work” visa system for foreign students, as part of reforms to limit non-EU migration