Category: Immigration

Shahzad (Art 8: Legitimate Aim) Pakistan: UTIAC 26 Feb 2014

(i) Failure on the part of the Secretary of State to identify in her decision any legitimate aim under Article 8(2) of the ECHR does not prevent a court or tribunal from seeking to do so on the basis of the materials before it.
(ii) ‘Maintenance of effective immigration control’ whilst not as such a legitimate aim under Article 8(2) of the ECHR can normally be assumed to be either an aspect of ‘prevention of disorder or crime’ or an aspect of ‘economic well-being of the country’ or both.
(iii) ‘[P]revention of disorder or crime’ is normally a legitimate aim both in expulsion cases where there has been criminal conduct on the part of the claimant and in expulsion cases where there have only been breaches of immigration law.
(iv) MF (Nigeria) [2013] EWCA Civ 1192 held that the new immigration rules regarding deportation of a foreign criminal are a complete code. This was because of the express requirement in them at paragraph 398 to have regard to exceptional circumstances and other factors.
(v) It follows from this that any other rule which has a similar provision will also constitute a complete code;
(vi) Where an area of the rules does not have such an express mechanism, the approach in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin) ([29]-[31] in particular) and Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC) should be followed: i.e. after applying the requirements of the rules, only if there may be arguably good grounds for granting leave to remain outside them is it necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under them.

Storey, Pitt UTJJ
[2014] UKUT 85 (IAC)
Bailii
European Convention on Human Rights 8
England and Wales

Immigration, Human Rights

Updated: 01 December 2021; Ref: scu.522262

MD (Same-Sex Oriented Males: Risk) India CG: UTIAC 12 Feb 2014

UTIAC a. Section 377 of the Indian Penal Code 1860 criminalises same-sex sexual activity. On 2 July 2009 the Delhi High Court declared section 377 IPC to be in violation of the Indian Constitution insofar as it criminalises consensual sexual acts between adults in private. However, in a judgment of 11 December 2013, the Supreme Court held that section 377 IPC does not suffer from the vice of unconstitutionality and found the declaration of the Delhi High Court to be legally unsustainable.
b. Prosecutions for consensual sexual acts between males under section 377 IPC are, and have always been, extremely rare.
c. Some persons who are, or are perceived to be, same-sex oriented males suffer ill treatment, extortion, harassment and discrimination from the police and the general populace; however, the prevalence of such incidents is not such, even when taken cumulatively, that there can be said in general to be a real risk of an openly same-sex oriented male suffering treatment which is persecutory or which would otherwise reach the threshold required for protection under the Refugee Convention, Article 15(b) of the Qualification Directive, or Article 3 ECHR.
d. Same-sex orientation is seen socially, and within the close familial context, as being unacceptable in India. Circumstances for same-sex oriented males are improving, but progress is slow.
e. It would not, in general, be unreasonable or unduly harsh for an open same-sex oriented male (or a person who is perceived to be such), who is able to demonstrate a real risk in his home area because of his particular circumstances, to relocate internally to a major city within India.
f. India has a large, robust and accessible LGBTI activist and support network, mainly to be found in the large cities.

Eshun, O”Connor UTJJ
[2014] UKUT 65 (IAC)
Bailii
England and Wales

Immigration, Human Rights

Updated: 01 December 2021; Ref: scu.522260

Sabir (Appendix FM – Ex1 Not Free Standing) (Pakistan): UTIAC 31 Jan 2014

UTIAC It is plain from the architecture of the Rules as regards partners that EX.1 is ‘parasitic’ on the relevant Rule within Appendix FM that otherwise grants leave to remain. If EX.1 was intended to be a free- standing element some mechanism of identification would have been used. The structure of the Rules as presently drafted requires it to be a component part of the leave granting Rule. This is now made plain by the respondent’s guidance dated October 2013.

Coker UTJ
[2014] UKUT 63 (IAC)
Bailii
England and Wales

Immigration

Updated: 01 December 2021; Ref: scu.522259

B v Secretary of State for The Home Department (Deportation – Hardial Singh – Dismissed): SIAC 29 Jan 2014

[2014] UKSIAC 09/2005
Bailii
England and Wales
Citing:
Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .

Lists of cited by and citing cases may be incomplete.

Immigration, Crime

Updated: 01 December 2021; Ref: scu.522152

Syed and Another, Regina (on The Application of) v Secretary of State for The Home Department: CA 4 Mar 2014

Both cass raised issues concerning the qualifications necessary for the grant of leave to remain as a Tier 1 (General) Migrant or a Tier 1 (Post-Study Work) Migrant under the points based system in Part 6A of the Immigration Rules.

Richards, Patten, Gloster LJJ
[2014] EWCA Civ 196
Bailii
England and Wales

Immigration

Updated: 01 December 2021; Ref: scu.521953

TVN, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 11 Nov 2021

Application for judicial review on behalf of TVN against a decision made by the Single Competent Authority acting on behalf of the Secretary of State for the Home Department in which the SCA reached the decision that the Claimant was, on the balance of probabilities, not a victim of modern slavery.

Mr David Lock QC
[2021] EWHC 3019 (Admin)
Bailii
England and Wales

Immigration

Updated: 01 December 2021; Ref: scu.669806

BH (Policies/Information: SOS’s Duties) Iraq: UTIAC 14 May 2020

(a) The Secretary of State has a duty to reach decisions that are in accordance with her policies in the immigration field. Where there appears to be a policy that is not otherwise apparent and which may throw doubt on the Secretary of State’s case before the tribunal, she is under a duty to make a relevant policy known to the Tribunal, whether or not the policy is published and so available in the public domain. Despite their expertise, judges in the Immigration and Asylum Chambers cannot reasonably be expected to possess comprehensive knowledge of each and every policy of the Secretary of State in the immigration field.
(b) In protection appeals (and probably in other kinds of immigration appeals), the Secretary of State has a duty not to mislead, which requires her to draw attention to documents etc under her control or in the possession of another government department, which are not in the public domain, and which she knows or ought to know undermine or qualify her case.
(c) There is a clear distinction between information and policy: the fact that country information is contained in a COI (country of origin) document published by the Secretary of State does not, without more, make that information subject to the duty in sub-paragraph (a) above.

[2020] UKUT 189 (IAC)
Bailii
England and Wales

Immigration

Updated: 30 November 2021; Ref: scu.653921

MZ (Hospital Order: Whether a ‘Foreign Criminal’): UTIAC 15 Jun 2020

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 paragraphs A398-399 of the Immigration Rules. He is excluded from the statutory provisions by section 117D(3)(a) and from the Immigration Rules concerning deportation.
[Note: The difference between OLO and Andell to which the judge refers at paras [10] to [13] is now resolved in SC (paras A398-339D: ‘foreign criminal’: procedure) Albania [2020] UKUT 187 (IAC).]

[2020] UKUT 225 (IAC)
Bailii
England and Wales

Immigration

Updated: 30 November 2021; Ref: scu.653927

L, Regina (on The Application of) v Secretary of State for The Home Department: UTIAC 10 Jul 2020

(1) A decision to remove a person (P) from the United Kingdom under immigration powers will not be unlawful by reason of the fact that it is predicated upon an earlier decision which has not, at the time of removal, been found to be unlawful, but which later is so found: AB v Secretary of State for the Home Department [2017] EWCA Civ 59; Niaz (NIAA 2002 s.104: pending appeal) [2019] UKUT 399 (IAC).
(2) The fact that P’s removal was not unlawful will not necessarily preclude a court or tribunal on judicial review from ordering P’s return. The fact it was lawful will, however, be a ‘highly material factor against the exercise of such discretion’: Lewis v Secretary of State for the Home Department [2010] EWHC 1749 (Admin).
(3) Where P’s removal was unlawful, by reference to the position at the time of removal, that fact should not only constitute the starting point for the Tribunal’s consideration of the exercise of its discretion to order return, but is also likely to be a weighty factor in favour of making such an order. The same is true where the effect of P’s removal has been to deprive P of an in-country right of appeal.

[2020] UKUT 267 (IAC)
Bailii
England and Wales

Immigration

Updated: 30 November 2021; Ref: scu.653930

SC (Paras A398 – 339D: ‘Foreign Criminal’: Procedure) Albania: UTIAC 27 Apr 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 criminal’) [2016] UKUT 56 affirmed; Andell (foreign criminal – para 398) [2018] UKUT 198 not followed.
2. A foreign national who has been convicted outside the United Kingdom of an offence is not, by reason of that conviction, a ‘foreign criminal’ for the purposes of paragraphs A398-399D of the rules.
3. In the absence of a material change in circumstances or prior misleading of the Tribunal, it will be a very rare case in which the important considerations of finality and proper use of the appeals procedure are displaced in favour of revisiting and varying or revoking an interlocutory order: Gardner-Shaw (UK) Ltd v HMRC [2018] UKUT 419 followed.

[2020] UKUT 187 (IAC)
Bailii
England and Wales

Immigration

Updated: 30 November 2021; Ref: scu.653920

Kariharan and Others v Secretary of State for the Home Department: Admn 5 Dec 2001

The claimants had applied for asylum, being Tamils from Sri Lanka. The applications had been rejected, and they sought to challenge the decisions to return them as a breach of their human rights. The new Act and transitional provisions created a new right of appeal, but the applicants fell outside the policy which added certain other categories. The Home Secretary said that the issues which might be raised by such an appeal were identical with those which had already been considered. The claimants asserted that different issues did arise, and that a legitimate expectation had been created.
Held: The section creating the right of appeal was intended to refer to decisions ‘in relation to that person’s entitlement to enter or remain’, and not to decisions to remove. The restriction of the policy to decisions after a certain date was neither unlawful nor irrational. No legitimate expectation had been created and broken. The cases was rejected save as to the suggestion that differing issues arose.

Justice Stanley Burnton
[2001] EWHC Admin 1004
Bailii
Immigration and Asylum Act 1999 65, Human Rights Act 1998 6(1), Immigration and Asylum Act 1999 (Commencement No. 6, Transitional and Consequential Provisions) Order 2000 (2000 No. 2444)
England and Wales
Citing:
Cited – St Brice and Another v Southwark London Borough Council CA 17-Jul-2001
The council having obtained a possession order, suspended on terms, through court proceedings, later sought to enforce the order by a warrant for possession issued without first giving notice to the tenant. The tenant alleged that the grant of the . .
Cited – Regina v London Borough of Newham and Manik Bibi and Ataya Al-Nashed CA 26-Apr-2001
CS The housing authority had mistakenly thought that it was obliged to re-house the applicants under the Act with secure accommodation, and promised them accordingly.
Held: That promise had created a . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 30 November 2021; Ref: scu.167282

Hiri v Secretary of State for The Home Department: Admn 18 Feb 2014

The Claimant applied for judicial review of the Defendant’s decision to refuse his application for naturalisation as a British citizen, and subsequently confirmed on review. The reason for refusal was that the Defendant was not satisfied that he met the ‘good character’ requirement for naturalisation because of his conviction for a speeding offence which would not be ‘spent’ under the Rehabilitation of Offenders Act 1974 until 17th November 2016. He had been driving at 81mph in a temporary 50mph section of a motorway.
Held: The claim succeeded. The decision was not irrational, but had erred on concentrating solely on the conviction: ‘ in deciding whether an applicant for naturalisation meets the requirement that ‘he is of good character’, for the purposes of the British Nationality Act 1981, the Defendant must consider all aspects of the applicant’s character. The statutory test is not whether applicants have previous criminal convictions – it is much wider in scope than that. In principle, an applicant may be assessed as a person ‘of good character’, for the purposes of the 1981 Act, even if he has a criminal conviction. Equally, he may not be assessed as a person ‘of good character’ even if he does not have a criminal conviction. ‘ The respondent had ignored unusually strong evidence of good character.

Lang DBE J
[2014] EWHC 254 (Admin)
Bailii
Rehabilitation of Offenders Act 1974, British Nationality Act 1981 6(1)

Immigration, Crime

Updated: 29 November 2021; Ref: scu.521402

Ahmed v Secretary of State for The Home Department: Admn 14 Feb 2014

Application for judicial review of decisions of the Secretary of State for the Home Department refusing the Claimant’s application for leave to remain in the United Kingdom, having regard to spousal rights and the circumstances when an applicant who fails to adhere to the basic requirements in the Immigration Rules should nonetheless be entitled to rely on Article 8 to found a basis to remain.

Green J
[2014] EWHC 300 (Admin)
Bailii
Immigration Rules

Immigration, Human Rights, Family

Updated: 29 November 2021; Ref: scu.521234

Procura Della Repubblica v M: ECJ 6 Feb 2014

ECJ Opinion – Article 54 of the Convention Implementing the Schengen Agreement (CISA) – Ne bis in idem principle – Pre – trial finding of ‘non-lieu’ (‘no case to answer’) barring further prosecution of the same person for the same facts – Finding subject to the possibility of new facts and/or evidence emerging – Criminal prosecution in another Member State for an offence arising out of the same facts

Sharpston AG
C-398/12, [2014] EUECJ C-398/12
Bailii
European

Immigration

Updated: 29 November 2021; Ref: scu.521192

IA (Iran) v The Secretary of State for The Home Department (Scotland): SC 29 Jan 2014

The appellant Iranian challenged refusal of his claim for asylum. He had been granted refugee status in Iraq and in Turkey by the United Nations commission, but on arrival in the UK, his asylum claim had been rejected on the basis of the credibility of his assertions.
Held: The appeal failed. Those making such decisions had an independent responsibility to make their own assessments, and were not bound by decisions of the UN Commissioners. A decision of the Commissioner should be departed form only after close inspection, but there was no burden on him to justify any such departure.
‘Although little may be known about the actual process of decision-making by UNHCR in granting refugee status in an individual case, the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision-making in the field of refugee status determinations must invest its decisions with considerable authority.’

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Hughes, Lord Hodge
[2014] UKSC 6, [2014] 1 WLR 384, 2014 SC (UKSC) 105, [2014] WLR(D) 36, 2014 SCLR 366, 2014 GWD 4-86, 2014 SLT 598, [2014] 1 All ER 1015, [2014] Imm AR 613, UKSC 2012/0157
Bailii, WLRD, Bailii Summary, SC Summary, SC
Convention and Protocol relating to the Status of Refugees (1951)
Scotland
Citing:
Leave – IA, Re Leave To Appeal SCS 1-Apr-2011
Extra Division, Inner House – The applicant sought leave to appeal against a decision of the Asylum and Immigration Tribunal rejecting his appeals. The latter decision dismissed the applicant’s appeal against a decision of the respondent, the Home . .
Cited – KK (Recognition Elsewhere As Refugee) Democratic Republic of Congo IAT 25-Feb-2005
Ouseley J P said: ‘As I have noted, independent documentary evidence regarding the procedures used to issue the appellant the refugee certificate in Iraq and refugee status in Turkey by the UNHCR was not before me, nor evidence regarding on what . .
Cited – MM (Iran) v The Secretary of State for The Home Department CA 17-Nov-2010
Appeal against the order of the Asylum and Immigration Tribunal following a reconsideration hearing that the tribunal’s earlier determination promulgated dismissing the appellant’s appeal against the Secretary of State’s refusal of his asylum claim . .
Cited – E v Secretary of State for the Home Department etc CA 2-Feb-2004
The court was asked as to the extent of the power of the IAT and Court of Appeal to reconsider a decision which it later appeared was based upon an error of fact, and the extent to which new evidence to demonstrate such an error could be admitted. . .

Cited by:
Cited – EM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 19-Feb-2014
SSHD must examine safety of country for return
The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 29 November 2021; Ref: scu.521154

Khan v Secretary of State for The Home Department: CA 11 Feb 2014

The claimant appealed against rejection of his request for judicial review of a adecision of the respondent not to revoke a deportation order.
Held: The appeal failed.

Moore-Bick, Tomplinson, McCombe LJJ
[2014] EWCA Civ 88, [2014] 2 All ER 973, [2014] WLR(D) 60, [2014] 1 WLR 3173, [2014] Imm AR 768
Bailii, WLRD
Nationality Immigration and Asylum Act 2002 96(1)
England and Wales

Immigration

Updated: 29 November 2021; Ref: scu.521135

HE v Secretary of State for The Home Department: CA 20 Nov 2013

Appeal against a costs order in an immigration case. The claimant, who is the appellant in judicial review proceedings, asserts that he was substantially successful in his claim and that therefore he ought to have recovered the costs of the action. The claimant says that the judge erred in principle in only awarding him a small proportion of those costs.

Jackson, Black LJJ
[2013] EWCA Civ 1846
Bailii
England and Wales

Costs, Immigration

Updated: 29 November 2021; Ref: scu.521063

S, Regina (on The Application of) v Secretary of State for The Home Department: Admn 28 Jan 2014

The claimant, ‘S’, claimed damages for his alleged unlawful immigration detention in Corby Police Station and Colnbrook and Harmondsworth IRCs between 3 December 2011 and 21 March 2012 and for the alleged series of significant breaches by the defendant, of the policies relating to immigration detention, the detaining of those suffering from serious mental illness and of the treatment and conditions of detention of such immigration detainees.
The background facts
The claimant, a Ghanaian, had been unlawfully resident in the UK since 19 February 2005. He had lawfully entered the UK on a 6-month visitor’s visa and a valid passport. He remained as an unlawful overstayer and in the nearly 7 years he had overstayed, he is not recorded as having worked, drawn any benefits or committed any crime. He was arrested by the police in Corby where he was living in accommodation provided for free by his Church on 3 December 2011 having been brought to their attention on 2 December 2011 behaving in a strange fashion in the street. His unlawful status came to light when one of the officers who had observed him in the street checked his details against the UKBA computerised details and ascertained that he was an unlawful overstayer.
No passport, valid or invalid, was found in the claimant’s possession and, from the outset, he was considered to be subject to and fit for administrative removal and his arrest and detention were made and maintained on that basis. There were four separate stages in his detention: his arrest and acceptance into police custody in Corby Police Station (‘CPS’) between 3 and the early hours of 5 December 2011- a total of about 34 hours whilst enquiries were made and the decision was being taken to detain him by officers of the Cambridgeshire and Northamptonshire Local Immigration Team (‘CNLIT’) and then arrangements were being made to transfer him to an Immigration Removal Centre (‘IRC’); between 5 and the early hours of 14 December 2011 in Colnbrook IRC when he was transferred to Harmondsworth IRC; between 14 December 2011 and 10 February 2012 when he was detained in Harmondsworth whilst CNLIT was responsible for his case and between 10 February and 21 March 2012 when he was detained in Harmondsworth in the Detained Fast Track whilst the Harmondsworth DFT team was responsible for his case.
He was released from detention on the orders of an Immigration Judge who had been listed to hear his asylum appeal in the DFT in Harmondsworth at the outset of the hearing on discovering from his appearance, behaviour, demeanour and from reading the two psychiatric reports that had been prepared for the hearing that he was unfit to participate in the hearing, was lacking in capacity and was incapable of representing himself – he was unrepresented at the hearing.
S’s mental illness
S’s behaviour immediately prior to his arrest and behaviour whilst in detention are now known to have been symptoms of florid and largely untreated psychosis which has been diagnosed as paranoid Schizophrenia with symptoms of cognitive impairment, perplexity, suspiciousness and severe depressive symptoms requiring stabilisation with the use of antipsychotic and mood stabilisation medication and other appropriate treatment following a lengthy period of assessment in a hospital setting. This illness had, it can now been seen, started to develop some months earlier but was, until his arrest, wholly untreated and its florid and fluctuating state had become active just before, or as a result of, his arrest. The illness was only finally brought under control after S had been released from detention and had been treated by a community-based psychiatric team between March and October 2012.
Unlawful detention
S’s claim is based on a series of allegations to the effect that his detention from the outset and throughout was unlawful because it infringed the SSHD’s related and intertwined policies of detention and detention of those suffering from mental illness. In short, S was suffering from a serious mental illness which could not be managed satisfactorily or at all by either Colnbrook or Harmondsworth IRCs and which clearly precluded his being removed from the UK in the foreseeable future. In order to consider this case, it has been necessary to examine in considerable detail the entire periods of detention – which lasted for 110 days counting the day of arrest and of release from detention. In essence, S’s case was that he was never properly assessed save on two occasions by an independently instructed psychiatrist who attended at Harmondsworth IRC on 21 December 2011 and 6 March 2012 but whose reports were completely ignored by those responsible for his detention until the Immigration Judge who considered his second report which had been included in the hearing bundle for his appeal hearing on 21 March 2012. He was considered from the outset to be fit for detention, for participation in his – as it turned out – lengthy immigration and asylum claims and proceedings, for removal and for flying and, although unfit for all of those activities, was left virtually untreated throughout the period of detention.
The findings
The inevitably lengthy and factually complex judgment examines the claimant’s claims in four stages: (1) a consideration with specific findings of fact of each of the four stages of detention; (2) an analysis of the claimant’s claim and of the various legal issues that arose in the consideration of the claim; (3) a consideration of the general features of the claim and (4) a detailed discussion and series of findings.
The result
The overall conclusion is that the claimant’s detention was throughout unlawful and that each of the decisions taken to detain and to confirm his detention were also unlawful as being Wednesbury unreasonable, and unlawful as having failed to take into account highly significant facts related to the claimant’s mental health.
Particular failings arose from the failure by Immigration Officers to visit or interview the claimant whilst he was in CPS; by Colnbrook Healthcare Centre to report, and to ensure that its locum psychiatrist, who correctly assessed the claimant but whose assessment was never reported to anyone or acted upon, issued or caused to be issued a revised IS91 and a Rule 35 report (these were never issued); by Harmondsworth Healthcare Centre who failed to treat or manage the mental illness of the claimant throughout his time in Harmondsworth; and by the various Immigration Officers who failed to pick up and give effect to the evidence of S’s serious mental illness and to obtain further details from all three detention locations which would have highlighted it.
In addition to establishing that his detention was unlawful, the claimant has established that those responsible for his detention and for his assessment, treatment and illness management in detention were in breach of his rights that were protected by articles 3 and 8 of the ECHR.
The claimant is entitled to substantial damages for his unlawful detention, since he would not have been held in detention for any part of the claimed period had the SSHD operated its policies lawfully, and if necessary additional damages for the sustained breaches of articles 3 and 8 of the ECHR. The damages for unlawful detention will need to reflect not only the period of unlawful detention but also the conditions under which the claimant was detained and an additional award to provide just satisfaction will be needed for the breaches of articles 3 and 8 if and to the extent that the claimant’s damages for unlawful detention do not fully and fairly reflect satisfaction for the matters giving rise to those breaches.
Damages
The claimant’s damages will now have to be assessed if these cannot be agreed. Given the complexity of that assessment process, I will myself undertake that assessment – either by a paper assessment following the receipt of further evidence and submissions or at an oral hearing if that is sought and granted. I will give directions for this assessment at the handing down hearing of this judgment which will have built into them an initial period during which the parties are to attempt to reach agreement on the award figure and thereby avoid a further hearing altogether.

[2014] EWHC 50 (Admin)
Bailii
England and Wales

Torts – Other, Immigration, Prisons

Updated: 29 November 2021; Ref: scu.520773

Dabrowski and Others, Regina (on the Application of) v Secretary of State for the Home Department: CA 7 Apr 2003

Does the Home Secretary’s announced policy of not necessarily proceeding with removal or deportation of parents of young children who have seven or more years of continuous residence in the United Kingdom apply to port cases — that is to say, cases where no more than temporary admission has been granted to persons who have claimed asylum at the port of entry?

Lord Justice Simon Brown,
(Vice President of the Court of Appeal, Civil Division),
Lord Justice Laws,
Lord Justice Sedley
[2003] EWCA Civ 580
Bailii
England and Wales

Immigration

Updated: 29 November 2021; Ref: scu.181309

Kanyenkiko v Secretary of State for the Home Department: CA 25 Feb 2003

Appeal brought with permission against a decision of the Immigration Appeal Tribunal to the effect that the appellant’s appeal to the IAT fell to be treated as abandoned by force of section 58(9) of the Immigration and Asylum Act 1999.

Lord Justice Pill,
Lord Justice Laws,
Lady Justice Arden
[2003] EWCA Civ 542
Bailii
Immigration and Asylum Act 1999
England and Wales

Immigration

Updated: 29 November 2021; Ref: scu.181301

Secretary of State For The Home Department v MG (Judgment of The Court): ECJ 16 Jan 2014

ECJ Request for a preliminary ruling – Directive 2004/38/EC – Article 28(3)(a) – Protection against expulsion – Method for calculating the 10-year period – Whether periods of imprisonment are to be taken into account

R. Silva de Lapuerta (Rapporteur), P
C-400/12, [2014] EUECJ C-400/12, [2014] 2 CMLR 40, [2014] Imm AR 561, ECLI:EU:C:2014:9, [2014] WLR(D) 4, [2014] 1 WLR 2441
Bailii, WLRD
Directive 2004/38/EC 28(3)(a)

European, Immigration

Updated: 28 November 2021; Ref: scu.520172

Secretary of State for The Home Department v Rodriguez: CA 20 Jan 2014

The applicants each sought entry under the points based system tostudy. They failed to accompany the applications with the necessary evidence of financial means, though that could have been supplied. The applications were rejected, and the complained that the Appellant should have applied the ‘Evidential Flexibility Policy’ rather than to immediately reject the application.
Held: The claimant’s appeal failed.

Pitchford, Davis LJJ, Sir Stanley Burnton
[2014] EWCA Civ 2
Bailii
England and Wales
Citing:
Appeal from – Rodriguez (Flexibility Policy) UTIAC 31-Jan-2013
UTIAC Since August 2009 UKBA has operated a policy relating to the processing and determination of applications under the Points Based System (‘PBS’). This was revised with effect from May 2011. In its policy . .

Cited by:
Appeal from – Mandalia v Secretary of State for The Home Department SC 14-Oct-2015
The Court considered the guidance given to UK Border Agency case workers when considering document submitted by persons applying for leave to enter or stay in the UK as foreign students. M had applied to study here, but had not accompanied his . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 28 November 2021; Ref: scu.519974

NK v France: ECHR 19 Dec 2013

7974/11 – Chamber Judgment, [2013] ECHR 1321
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – NK v France (LS) ECHR 19-Dec-2013
ECHR Article 3
Expulsion
Risk of ill-treatment in Pakistan owing to applicant’s conversion to Ahmadism: deportation would constitute a violation
Facts – The applicant, who was from a Sunni . .

Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Immigration

Updated: 28 November 2021; Ref: scu.519537

Hamzeh and Others v Secretary of State for The Home Department: Admn 20 Dec 2013

The five Claimants, failed asylum seekers from Iran, claimed to be entitled to the benefit of a grant of indefinite leave to remain (or some other grant of leave) arising from the Secretary of State’s programme for the resolution of a large backlog of unresolved asylum cases announced in July 2006, the ‘Legacy Programme’.

Simler J
[2013] EWHC 4113 (Admin)
Bailii

Immigration

Updated: 28 November 2021; Ref: scu.519337

Ismail, Regina (on The Application of) v Secretary of State for The Home Department: Admn 13 Dec 2013

The Claimant, a national of Somalia, applies for judicial review of the Defendant’s decision to detain him in immigration detention with a view to deportation under section 32, UK Borders Act 2007, following his conviction for assault. He seeks a declaration that his ongoing detention is unlawful and that his rights under Art. 5 ECHR have been breached. He has applied for a mandatory order for his release, and damages for false imprisonment.

Lang DBE J
[2013] EWHC 3921 (Admin)
Bailii
England and Wales

Immigration

Updated: 27 November 2021; Ref: scu.518995

The Secretary of State for The Home Department v Ali: CA 14 Sep 2021

Narrow question of construction of the phrase ‘in-time’ for the purposes of paragraph 39E(2) of the Immigration Rules in the context of applications for leave to remain in the United Kingdom. The question arises in relation to the Tier 1 (Entrepreneur) Migrant route but applies equally to many other leave to remain routes where applications for leave are made after the expiry of existing leave.

Lady Justice Simler
[2021] EWCA Civ 1357
Bailii, Judiciary
England and Wales

Immigration

Updated: 27 November 2021; Ref: scu.667887

TN (Afghanistan) and Another v Secretary of State for The Home Department: CA 12 Dec 2013

The applicants had arrived in the UK as minors fleeing Afghanistan. They now challenged grant of a discretionary leave to remain limited to expire withiin one year.

Maurice Kay VP, Beatson, Briggs LJJ
[2013] EWCA Civ 1609, [2013] WLR(D) 483, [2014] INLR 542, [2014] 1 WLR 2095, [2014] 2 CMLR 31
Bailii, WLRD
Nationality, Immigration and Asylum Act 2002 83, Directive 2003/9/EC
England and Wales
Citing:
Appeal from – TN v Secretary of State for The Home Department Admn 16-Dec-2011
‘The claimant, an unaccompanied child, challenges the Secretary of State’s decision of 12 November 2010 refusing his claim for asylum and for humanitarian protection and granting him discretionary leave to remain in the United Kingdom for a shorter . .

Cited by:
Appeal from – TN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .

Lists of cited by and citing cases may be incomplete.

Immigration, Children

Updated: 26 November 2021; Ref: scu.518937

AA (Afghanistan) v Secretary of State for The Home Department: CA 11 Dec 2013

McFarlane, Beatson, Underhill LJJ
[2013] EWCA Civ 1625
Bailii
England and Wales
Cited by:
Appeal from – TN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 26 November 2021; Ref: scu.518903

Abdullahi v Bundesasylamt: ECJ 10 Dec 2013

ECJ Request for a preliminary ruling – Common European Asylum System – Regulation (EC) No 343/2003 – Determination of the Member State responsible for examining an asylum application – Review of compliance with the criteria for determining responsibility for examining the asylum application – Scope of judicial review

C-394/12, [2013] EUECJ C-394/12
Bailii
Regulation (EC) No 343/2003
European

Immigration

Updated: 26 November 2021; Ref: scu.518890

Nouazli, Regina (on The Application of) v Secretary of State for The Home Department: CA 10 Dec 2013

The appellant sought to challenge an order for his detention pending his deportation by the respondent. A national of a non EU state he had married an EU national resident in the UK. He had been convicted of offences here and detained pending deportation on grounds of publicpolicy.
Held: the Court of Appeal dismissed the appellant’s appeal against the amended order of Eder J: ‘Equality of treatment among EU nationals is one of the cornerstones of the European Union but [article 18 TFEU] is not concerned with the way in which member states treat nationals of other countries who reside within their territories, provided that they do not undermine the laws of the Union . Consistently with the purpose of the Treaty, which is to establish the fundamental legal architecture of the Union, article 18 TFEU is concerned only with the way in which citizens of the Union are treated in member states other than those of which they are themselves nationals. The argument therefore falls down at the first hurdle.’
Moore-Bick LJ said that article 18 TFEU is not concerned with the way in which member states treat nationals of other countries who reside in their territories, adding: ‘However, the difficulties do not end there. In seeking to compare the position of EEA nationals with that of nationals of other countries [the appellant] sought to focus exclusively on the Secretary of State’s power of detention, but that is to view the matter too narrowly. As the judge pointed out, the provision for detention in each case forms part of a wider regime dealing with removal. Unlike nationals of other countries, nationals of the EEA are entitled to reside in this country and enjoy the protection from removal afforded by the Treaty and the Directive. They are subject to a different legal regime which cannot be directly compared to that which applies to other foreign nationals, who can be deported if the Secretary of State deems their removal to be conducive to the public good: see section 3(5)(a) of the 1971 Act. For both these reasons I agree with the judge that [the appellant’s] argument is fundamentally flawed and that there is no substance in this ground of appeal.’
Lord Thomas CJ said: ‘Each deprivation of liberty pending deportation requires proper scrutiny of all the facts by the SSHD in accordance with the Hardial Singh principles. Those principles are the sole guidelines.’

Moore-Bick, Briggs, Christopher Clarke LJJ
[2013] EWCA Civ 1608, [2014] 1 All ER 1144, [2014] 1 WLR 3313
Bailii
Immigration (European Economic Area) Regulations 2006, Parliament and Council Directive 2004/38/EC 27
England and Wales
Citing:
At Admn – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department Admn 15-Mar-2013
Challenge to power of the SS to detain the claimant a national of the European Economic Area pending a decision to deport. The claimant was a third country national married to an EU national. He was detained pending deportation on the grounds of . .

Cited by:
At CA – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .

Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 26 November 2021; Ref: scu.518804

KU, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 9 Dec 2013

The claimant was a British Overseas Citizen, but without a right of abode here. He had renounced his Malaysian citizenship, and on being returned there, had been refused entry and returned to the UK.

Timothy Brennan QC
[2013] EWHC 3881 (Admin)
Bailii
British Nationality Act 1981 4B

Immigration

Updated: 26 November 2021; Ref: scu.518791

P (DRC), Regina (on The Application of) v Secretary of State for The Home Department: Admn 9 Dec 2013

The court was asked whether persons returned to the Democratic Republic of Congo against their will are at real risk of ill-treatment contrary to Article 3 of the European Convention on Human Rights simply by reason of their status as either (a) failed asylum seekers or (b) criminal deportees.

Phillips J
[2013] EWHC 3879 (Admin)
Bailii

Human Rights, Immigration

Updated: 26 November 2021; Ref: scu.518793

Pokhriyal v The Secretary of State for The Home Department: CA 5 Dec 2013

Appeals by foreign students agaonst rejection of requests for entry to pursue further studies
Jackson LJ observed of the Pointe Based System Rules that they had ‘now achieved a degree of complexity which even the Byzantine emperors would have envied’.

Longmore, Jackson, Vos LJJ
[2013] EWCA Civ 1568, [2013] WLR(D) 471, [2014] PTSR D4, [2014] INLR 291
Bailii, WLRD
England and Wales
Cited by:
Cited – Mandalia v Secretary of State for The Home Department SC 14-Oct-2015
The Court considered the guidance given to UK Border Agency case workers when considering document submitted by persons applying for leave to enter or stay in the UK as foreign students. M had applied to study here, but had not accompanied his . .
Cited – AA069062014 and Others AIT 30-Aug-2017
Several appellants, all from the same judge, complained of his handling of their cases.
Held: The complaints about the decisions were entirely well-founded: ‘Nobody reading them could detect how the judge reached the conclusion he did, acting . .

Lists of cited by and citing cases may be incomplete.

Immigration, Education

Updated: 26 November 2021; Ref: scu.518771