The procedural issue: appeals under section 11 of the TCEA 2007 (1) The appellate regime established by the Nationality, Immigration and Asylum Act 2002, as amended, is concerned with outcomes comprising the determination of available grounds of appeal; (2) A party who has achieved the exact outcome(s) sought by way of an appeal to the … Continue reading Binaku (S 11 TCEA; S 117C NIAA; Para 399D): UTIAC 27 Jan 2021
UTIAC Head note 3 of the Upper Tribunal’s decision in Ogundimu (Article 8 – new rules) Nigeria [2013] UKUT 60 (IAC) applies to the version of para 399(a) of the Immigration Rules that was in force as at 27 July 2014. It does not apply to the current version of para 399(a) of the Immigration … Continue reading AB (Para 399(A)): UTIAC 20 Nov 2015
1. For courts and tribunals, the coming into force of Part 5A of the Nationality, Immigration and Asylum Act 2002 (ss.117A-D) has not altered the need for a two-stage approach to Article 8 claims. 2. Ordinarily a court or tribunal will, as a first stage, consider an appellant’s Article 8 claim by reference to the … Continue reading Bossade (Ss117A-D-Interrelationship With Rules): UTIAC 16 Jul 2015
1. The phrase ‘unduly harsh’ in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact … Continue reading MAB (Para 399; ‘Unduly Harsh’): UTIAC 16 Jul 2015
UTIAC The term ‘valid leave’, as appears at paragraph 399(b)(i) of the Immigration Rules, means leave to enter or remain under the Immigration Act 1971. Periods of temporary admission cannot be counted when calculating whether a person has achieved the necessary 15 years residence under that rule. Kebede, Kopieczek, Reeds UTJJ [2013] UKUT 310 (IAC) … Continue reading Pembele v Secretary of State for The Home Department (Paragraph 399(b)(i) – Valid Leave – Meaning) Democratic Republic of Congo: UTIAC 10 Jun 2013
UTIAC 1 The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of time. Where, in such a case, a judge is minded to grant permission, the preferable course … Continue reading Ogundimu (Article 8 – New Rules) Nigeria: UTIAC 8 Feb 2013
The court considered the meaning of the term ‘unduly harsh’ in paragraph 399 of the Immigration Rules and section 117C(5) of the Nationality, Immigration and Asylum Act 2002. . .
The correct approach, where an appeal on human rights grounds has been brought in seeking to resist deportation, is to consider: i. is the appellant a foreign criminal as defined by s117D (2) (a), (b) or (c); ii. if so, does he fall within paragraph 399 or 399A of the Immigration Rules; iii. if not … Continue reading Chege (Section 117D D Article 8 D Approach : Kenya): UTIAC 5 Mar 2015
(1) In its application to a ‘qualifying child’ within the meaning of section 117D of the Nationality, Immigration and Asylum Act 2002, section 117C(5) imposes the same two requirements as are specified in paragraph 399(a)(ii) of the Immigration Rules; namely, that it would be unduly harsh for the child to leave the United Kingdom and … Continue reading Patel (British Citizen Child – Deportation): UTIAC 29 Jan 2020
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums advanced, saying he need not return it because the contract was for an … Continue reading Patel v Mirza: SC 20 Jul 2016
Article 8 requires that an appeal against a deportation order by reference to it should be effective. The court (a) cited at para 65 the decision of the ECtHR in W v United Kingdom (1988) 10 EHRR 29, para 64, to the effect that article 8 required that parents who had sought contact with a … Continue reading Gudanaviciene and Others, Regina (on The Application of) v The Director of Legal Aid Casework and Others: CA 15 Dec 2014
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’ Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the reference to exceptional circumstances (an expression which had been derived from the Jeunesse line of case … Continue reading MF (Nigeria) v Secretary of State for The Home Department: CA 8 Oct 2013
Hong Kong. Held: The applicant could not invoke any right under the rule of international law which placed upon a state a duty to receive its own national, because that rule was inconsistent with the domestic law. In modern times the idea of even a Government ship being a ‘floating island,’ belonging to and retaining … Continue reading Chung Chi Cheung v The King: PC 2 Dec 1938
The first applicant, his wife and her children had been granted leave to stay in the UK. At the time the leave was withdrawn the children were settled in schools, and were granted indefinite leave. The second applicant was the mother of children who also acquired leave. They each appealed refusal of leave to stay. … Continue reading Baumbast and Another v Secretary of State for the Home Department: ECJ 17 Sep 2002
For the purposes of applying to para 399A of the Rules and s. 117C of the 2002 Act a definition of ‘lawfully resident’ analogous to that in para 276A (as mandated by SC (Jamaica)), the invalidation provisions of s. 5(1) of the 1971 Act are to be ignored. Citations: [2018] UKUT 199 (IAC) Links: Bailii … Continue reading Tirabi (Deportation: ‘Lawfully Resident’: S5): UTIAC 9 May 2018
(i) In cases involving convictions for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, the Secretary of State’s policy, as expressed in paragraph 391(a) of the Immigration Rules, is that the public interest does not require continuation of a deportation order after a period of … Continue reading Smith (Paragraph 391(A) – Revocation of Deportation Order : Jamaica): UTIAC 17 Mar 2017
UTIAC (i) The exercise of considering whether there are very compelling circumstances over and above those described in paragraphs 399 and 399A of the Immigration Rules must, logically, be preceded by an assessment that the appellant’s case does not fall within paragraph 399 or 399A. (ii) At the stages of both granting permission to appeal … Continue reading Greenwood (No 2) (Para 398 Considered): UTIAC 16 Nov 2015
UTIAC The Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 … Continue reading KMO (Section 117 – Unduly Harsh): UTIAC 25 Sep 2015
An individual sentenced to a hospital order following a finding under section 5 (1) (b) of the Criminal Procedure (Insanity) Act 1964 that he ‘is under a disability and that he did the act or made the omission charged against him’ is neither subject to section 117C of the 2002 Act (as amended) nor to … Continue reading MZ (Hospital Order: Whether a ‘Foreign Criminal’): UTIAC 15 Jun 2020
1. Paragraph A398 of the immigration rules governs each of the rules in Part 14 that follows it. The expression ‘foreign criminal’ in paragraph A398 is to be construed by reference to the definition of that expression in section 117D of the Nationality, Immigration and Asylum Act 2002: OLO and Others (para 398 – ‘foreign … Continue reading SC (Paras A398 – 339D: ‘Foreign Criminal’: Procedure) Albania: UTIAC 27 Apr 2020
The Court considered linked issues as to the treatment of ‘qualifying children’ and their parents, under the statutory regime contained in Part 5A of the Nationality, Immigration and Asylum Act 2002. Three appellants (KO, IT and NS) argued that when . .
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
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