I am very honoured to be able to say a few words about Khurshid, on behalf of the Immigration and Asylum Chamber of the Upper Tribunal.
As you know, Khurshid was the first Muslim judge in this country. He was already an established and respected judicial figure at Field House when I arrived there in 2003 to join him as a Vice President of the Immigration Appeal Tribunal.
Both Khurshid and I, along with our colleagues, carried out our judicial duties under a number of different titles, as the immigration jurisdiction underwent frequent change. Those who had been immigration adjudicators became immigration judges, whilst Vice Presidents of the Immigration Appeal Tribunal became senior immigration judges, before becoming Upper Tribunal judges.
Prior to being appointed as a judge, Khurshid had been a redoubtable advocate in the immigration jurisdiction. His work on behalf of clients meant that he came up against QCs, who later went on to have their own illustrious careers on the bench. They include Gordon Slynn, who became the United Kingdom’s judge in Europe, John Laws, who became a highly distinguished Court of Appeal judge and David Pannick, who became a life peer.
One gets the distinct impression that Khurshid was not “phased” by them, or by anyone else, for that matter. On the contrary, he was entirely fearless in putting forward his case; a quality that he took with him to the Judicial Bench.
During his time as an advocate, Khurshid was particularly effective in persuading the Immigration Appeal Tribunal to overturn its previous decisions. As my colleague Hugo Storey remarks, that was something the Tribunal rarely liked to do.
Several important things that we, as lawyers, take for granted today were as a result of battles that Khurshid had to fight. For example, in 1984, he persuaded the Tribunal that an appeal should lie against the refusal of a decision to vary a person’s leave to remain in the United Kingdom. That may sound dry and technical but it made a great difference to the lives of very many people.
Also in 1984, he persuaded the Tribunal to take a view about the meaning of “lawfully resident” in the Refugee Convention which anticipated the judgment of the House of Lords, many years later.
Once on the bench as a judge, Khurshid brought to bear the same clarity of thought and fearlessness which had served him so well as an advocate.
Looking through his decisions, which you can find online, I am struck by how often he anticipated decisions of the Court of Appeal and the House of Lords. This was particularly evident in his approach to issues involving Article 8 of the European Convention on Human Rights, which is the provision that protects a person’s private and family life.
A person’s private life includes his or her friends. Khurshid had a gift for friendship and it is, therefore, wonderful to see so many of Khurshid’s friends here today. As we also know, and as we can see today, Khurshid also set great store by family life.
Years before the landmark cases of Huang and Razgar, which those of us in the trade regard as breaking new ground, Khurshid can be seen in his decisions to be already applying the test of proportionality which, on the one hand, pays due regard to the importance of maintaining immigration controls and, on the other, has regard to the nature and extent of the private and family life in question. That test was, in effect, approved in the cases I have just mentioned.
Khurshid was utterly true to his judicial oath in doing right, according to the law, regardless of where his personal sympathies might lie. The Home Office won only when it should. The same was true of the individual appellants, whose cases he heard.
Reading his decisions, I became nostalgic for a number of reasons. First, Khurshid’s own, very distinctive voice comes through clearly from what is on the page.
Secondly, I am reminded of how good a colleague he was. In 2005, when I had to undergo a significant operation, he was the first to show concern and wish me well. Many other colleagues can tell similar stories, which attest to his deep humanity.
Finally, reading those published decisions of Khurshid, one is reminded of conflicts and upheavals that generated many claims for asylum, but which, happily, are largely if not entirely now resolved. I am thinking here particularly of the appalling events that followed from the break-up of the former Yugoslavia, particularly in relation to Kosovo.
However, as we know all too well, as one conflict or crisis in the world resolves, another tends to rise to take its place.
I am certain that, if Khurshid was serving today as a judge, he would be bringing his wisdom to bear on cases involving Syria, Afghanistan, Iran and Iraq, as well as gearing himself up to deal with the immigration consequences of Brexit.
I am proud to be here today to join you in celebrating the life of this remarkable man.
The Hon Mr Justice Lane, President, Upper Tribunal, Immigration and Asylum Chamber
This is a slightly edited version of the eulogy delivered in London at Judge Khurshid Drabu CBE Memorial on 23 June
