East African Asians - Righting the Historical Wrong

The Court of Appeal’s decision in Patel, Modha and Odedra v ECO [2010] EWCA Civ 17 (25 January 2010) is another notch in the continuing saga of righting the effects of the historical wrong of excluding East African Asians from the UK when they were expelled from East Africa in 1968.

In 1973 the European Commission of Human Rights concluded that the UK Government’s decision was racially discriminatory. The case raised major issues of international law and human rights and states’ duties of protection to its nationals. However, apart from a special quota voucher scheme (abolished in 2002) and which was itself sex-discriminatory, little happened to enable affected families to enter the UK. In 1999 Manjit S Gill QC took this issue to the European Court of Justice arguing unsuccessfully that the UK’s decision to define its nationals for the purposes of EC law in a manner which excluded East African Asians was contrary to principles of EC law. The ECJ disagreed but did not deal with human rights considerations. Since the Human Rights Act 1998 came into force in 2000, the arguments in this area have shifted so that human rights arguments, successfully advanced by Manjit S Gill QC in NH (India) [2007] EWCA civ 1330, have been used to assist families of affected persons, where family life continues to exist, to enter the UK. This builds on the long delayed official recognition by the UK Government in 2002 that it had committed a shameful act in 1968. However, the cases remain difficult. In Patel, Modha and Odedra v ECO, the Court of Appeal considered three appeals on these issues (Mr Gill leading for the appellants). It allowed two appeals but a third failed as family life was no longer subsisting. Advisers dealing with such cases should note the importance of proper preparation of the evidence at first instance to demonstrate the existence of family life.