Category: Immigration

McLarty (Deportation – Proportionality Balance): UTIAC 16 Jun 2014

(1) There can be little doubt that, in enacting the UK Borders Act 2007, Parliament views the object of deporting those with a criminal record as a very strong policy, which is constant in all cases (SS (Nigeria) v SSHD [2013] EWCA Civ 550). The weight to be attached to that object will, however, include a variable component, which reflects the criminality in issue. Nevertheless, Parliament has tilted the scales strongly in favour of deportation and for them to return to the level and then swing in favour of a criminal opposing deportation there must be compelling reasons, which must be exceptional.
(2) What amounts to compelling reasons or exceptional circumstances is very much fact dependent but must necessarily be seen in the context of the articulated will of Parliament in favour of deportation.
(3) Where the facts surrounding an individual who has committed a crime are said to be ‘exceptional’ or ‘compelling’, these are factors to be placed in the weighing scale, in order to be weighed against the public interest.
(4) In some other instances, the phrase ‘exceptional’ or ‘compelling’ has been used to describe the end result: namely, that the position of the individual is ‘exceptional’ or ‘compelling’ because, having weighed the unusual facts against the (powerful) public interest, the former outweighs the latter. In this sense ‘exceptional’ or ‘compelling’ is the end result of the proportionality weighing process.

Citations:

[2014] UKUT 315 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.536208

DN (Student; Course’Completed’; ‘Established Presence’) Kenya: UTIAC 15 Nov 2010

In order to show only two months’ worth of ‘Maintenance’ under Appendix C, rather than being required to show nine months’ worth, a student must have been studying on a course within the last four months, and that course must itself have lasted for more than six months. The course may still be continuing, but if it came to an end within the last four months, and the student is embarking on another course (or repeating the same course), it matters not whether he was successful on the previous course. Appendix C requires the course to have been ‘completed’ no more than four months before, but that should not be taken to mean ‘successfully completed’. The notion of ‘established presence’ for Maintenance purposes requires presence as a student, not success as a student.

Citations:

[2010] UKUT 443 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.444063

EK (Ankara Agreement – 1972 Rules-Construction) Turkey: UTIAC 10 Nov 2010

1. There is nothing in the 1972 Immigration Rules (HC 510) that provides that a person who cannot come within one of the categories of the Immigration Rules is to be refused an extension of stay for that reason alone. Rule 4 sets out the ‘main categories’ of people who may be given leave, recognising the possibility that there are other categories not specifically set out that can be dealt with on a discretionary basis. Accordingly, it was open to the Home Office to grant an extension of stay as a businesswoman to someone who had entered as an au pair. The finding in OT (Turkey) [2010] UKUT 330 (IAC) that HC 510 prohibited switching to business status by anyone other than a visitor is not considered correct. (See also now LE (Turkey) [2010] CSOH 153).
2. Paragraph 28 of HC 510 does not require a person who had been given leave as a businessman to demonstrate as a pre-condition for the exercise of discretion that in each or any year in which they had been given leave in that capacity they had complied with particular requirements of paragraph 21. Those requirements are directly relevant only to the first application for permission to remain and the first extension of stay.
3. There is no precise code in HC 510 distinguishing between maintenance and accommodation and precluding third party contributions to living expenses.

Citations:

[2010] UKUT 425 (IAC), [2011] Imm AR 212

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.444064

Medical Justice, Regina (on The Application of) v Secretary of State for The Home Department: Admn 21 May 2010

The claimant challeged as unlawful the respondent’s policies as to expedited removals of persons from the United Kingdom.

Judges:

Cranston J

Citations:

[2010] EWHC 1425 (Admin), [2010] ACD 70

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Medical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
See Also – Medical Justice, Regina (on The Application of) v Secretary of State for The Home Department CA 16-Mar-2011
The defendant appealed against a decision allowing the claimant to apply for judicial review of its policy relating to the giving of notice of removal from the United Kingdom, and in particular, the alleged absence of any or sufficient notice to . .
Cited – Hussain, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 21-May-2020
No interim relief for Mosque Services
The claimant Chairman of a mosque challenged the Regulations in so far as they prohibited communal prayers. He now sought interim relief so as to allow Friday prayers. Social distancing was proposed, and a contrast was made with other activities . .
Lists of cited by and citing cases may be incomplete.

Immigration, Administrative

Updated: 27 November 2022; Ref: scu.431931

Ariemuguvbe, Regina (on the Application of) v London Borough of Islington: Admn 24 Feb 2009

The issue in this judicial review is whether Islington London Borough Council were entitled to ignore the claimant’s adult children, who are subject to immigration control, when considering the allocation of accommodation under Part VI of the Housing Act 1996. In particular, the question arises as to whether Islington Council may conclude that the claimant’s adult children are not part of her household under their allocation policy.

Judges:

Cranston

Citations:

[2009] EWHC 470 (Admin), [2009] PTSR CS39

Links:

Bailii

Jurisdiction:

England and Wales

Housing, Immigration

Updated: 27 November 2022; Ref: scu.324651

NG (Pakistan) v Secretary of State for the Home Department: CA 4 Dec 2007

A Pakistani mother, with two young children, who was to be deported after separating from her husband, a British citizen of Pakistani origin. Contact between father and children would thereby be broken.
Held: ‘There was no prospect of the father actually caring for the children. The children would travel with their mother if she were removed. It was the mother’s article 8 rights that were under scrutiny, not the father’s or even the children’s (see the decision of the IAT in Kehinde).’

Citations:

[2007] EWCA Civ 1543

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Beoku Betts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 27 November 2022; Ref: scu.266579

HSMP Forum Ltd, Regina (on the Application of) v Secretary of State for the Home Department: Admn 8 Apr 2008

The claimants challenged the alteration of the Highly Skilled Migrants Program saying that the changes undermined legitimate expections created by the respondent.
Held: The new regime adversely affected mant people who had already come to work here. They had come with expectations of residencey created by the respondent. The withdrawal of those promises in the new scheme was unlawful.

Citations:

[2008] EWHC 664 (Admin), Times 29-May-2008, [2008] INLR 262

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.266508

PB, Regina (on the Application of) v Secretary of State for the Home Department: Admn 6 Feb 2008

The claimant contended firstly, that the defendant breached her duties under the Detention Centre Rules 2001; secondly, breached her policy by failing to consider referring the claimant to the Medical Foundation for the Care of Victims of Torture; and thirdly, deprived the claimant of a fair hearing before the Immigration Judge.

Citations:

[2008] EWHC 364 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.266225

Krasniqi v Secretary of State for the Home Department: CA 10 Apr 2006

The appellant sought to challenge a finding of the adjudicator.
Held: The Asylum and Immigration Appeal Tribunal should allow an appeal on facts alone only in exceptional circumstances. However the tribunal might also itself raise as an issue a point of law which might challenge the adjudicator’s decision even though this had been missed by the appellant.

Judges:

Lord Justice Chadwick Lady Justice Arden Lord Justice Sedley

Citations:

Times 20-Apr-2006, [2006] EWCA Civ 391

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 27 November 2022; Ref: scu.240174

SD (British Citizen Children – Entry Clearance) Sri Lanka: UTIAC 23 Jan 2020

1. British citizenship is a relevant factor when assessing the best interests of the child.
2. British citizenship includes the opportunities for children to live in the UK, receive free education, have full access to healthcare and welfare provision and participate in the life of their local community as they grow up.
3. There is no equivalent to s.117B(6) of the Nationality, Immigration and Asylum Act 2002 in any provision of law or policy relating to entry clearance applicants.
4. In assessing whether refusal to grant a parent entry clearance to join a partner has unjustifiably harsh consequences, the fact that such a parent has a child living with him or her who has British citizenship is a relevant factor. However, the weight to be accorded to such a factor will depend heavily on the particular circumstances and is not necessarily a powerful factor.
5. When assessing the significance to be attached to a parent’s child having British citizenship, it will also be relevant to consider whether that child possesses dual nationality and what rights and benefits attach to that other nationality.

Citations:

[2020] UKUT 43 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650777

MY (Refusal of Human Rights Claim : Pakistan): UTIAC 27 Feb 2020

(1) The Secretary of State’s assessment of whether a claim by C constitutes a human rights claim, as defined by section 113 of the Nationality, Immigration and Asylum Act 2002, is not legally determinative. The Secretary of State’s Guidance is, however, broadly compatible with what the High Court in R (Alighanbari) v Secretary of State for the Home Department [2013] EWHC 1818 (Admin) has found to be the minimum elements of a human rights claim.
(2) The fact that C has made a human rights claim does not mean that any reaction to it by the Secretary of State, which is not an acceptance of C’s claim, acknowledged by the grant of leave, is to be treated as the refusal of a human rights claim under section 82(1)(b) of the 2002 Act, generating a right of appeal to the First-tier Tribunal. The Secretary of State is legally entitled to adopt the position that she may require human rights claims to be made in a particular way, if they are to be substantively considered by her so that, if refused, there will be a right of appeal.
(3) There is, accordingly, no justification for construing section 82(1)(b) otherwise than according to its ordinary meaning, which is that the Secretary of State decides to refuse a human rights claim if she:
(i) engages with the claim; and
(ii) reaches a decision that neither C nor anyone else who may be affected has a human right which is of such a kind as to entitle C to remain in the United Kingdom (or to be given entry to it) by reason of that right.

Citations:

[2020] UKUT 89 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650784

Imran (Section 117C, Children, Unduly Harsh : Pakistan): UTIAC 11 Feb 2020

To bring a case within Exception 2 in s.117C(5) of the Nationality, Immigration and Asylum Act 2002, the ‘unduly harsh’ test will not be satisfied, in a case where a child has two parents, by either or both of the following, without more: (i) evidence of the particular importance of one parent in the lives of the children; and (ii) evidence of the emotional dependence of the children on that parent and of the emotional harm that would be likely to flow from separation.
Consideration as to what constitutes ‘without more’ is a fact sensitive assessment.

Citations:

[2020] UKUT 83 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650782

MH (Review; Slip Rule; Church Witnesses) Iran: UTIAC 11 Mar 2020

(i) Part 4 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 contains a ‘toolkit’ of powers, the proper use of which saves time and expense and furthers the overriding objective.
(ii) A judge of the FtT who is minded to grant permission to appeal on the basis of a seemingly obvious error of law should consider whether, instead, to review the decision under appeal pursuant to rule 35.
(iii) A decision which contains a clerical mistake or other accidental slip or omission may be corrected by the FtT under rule 31 (the ‘slip rule’). Where a decision concludes by stating an outcome which is clearly at odds with the intention of the judge, the FtT may correct such an error under rule 31, if necessary by invoking rule 36 so as to treat an application for permission to appeal as an application under rule 31. Insofar as Katsonga [2016] UKUT 228 (IAC) held otherwise, it should no longer be followed.

Citations:

[2020] UKUT 125 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650790

Birch (Precariousness and Mistake; New Matters : Jamaica): UTIAC 26 Feb 2020

1. The observations about a person’s misapprehension, found in paragraph [53] of Agyarko are, despite their context in a discussion of precariousness, capable of being applicable also to a person who has no leave.
2. The prohibition on considering new matters in s 85 of the 2002 Act does not apply to proceedings in the Upper Tribunal.

Citations:

[2020] UKUT 86 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650779

AXB (Art 3 Health: Obligations; Suicide) Jamaica: UTIAC 15 Nov 2019

1. In a case where an individual asserts that his removal from the Returning State would violate his Article 3 ECHR rights because of the consequences to his health, the obligation on the authorities of a Returning State dealing with a health case is primarily one of examining the fears of an applicant as to what will occur following return and assessing the evidence. In order to fulfil its obligations, a Returning State must provide ‘appropriate procedures’ to allow that examination and assessment to be carried out. In the UK, that is met in the first place by an examination of the case by the Secretary of State and then by an examination on appeal by the Tribunal and an assessment of the evidence before it.
2. There is no free-standing procedural obligation on a Returning State to make enquiries of the Receiving State concerning treatment in that State or obtain assurances in that regard. Properly understood, what is referred to at [185] to [187] of the Grand Chamber’s judgment in Paposhvili concerns the discharge of respective burdens of proof.
3. The burden is on the individual appellant to establish that, if he is removed, there is a real risk of a breach of Article 3 ECHR to the standard and threshold which apply. If the appellant provides evidence which is capable of proving his case to the standard which applies, the Secretary of State will be precluded from removing the appellant unless she is able to provide evidence countering the appellant’s evidence or dispelling doubts arising from that evidence. Depending on the particular circumstances of the case, such evidence might include general evidence, specific evidence from the Receiving State following enquiries made or assurances from the Receiving State concerning the treatment of the appellant following return.
4. Where an individual asserts that he would be at real risk of committing suicide, following return to the Receiving State, the threshold for establishing Article 3 harm is the high threshold described in N v United Kingdom [2008] ECHR 453, unless the risk involves hostile actions of the Receiving State towards the individual: RA (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1210; Y and Z v Secretary of State for the Home Department [2009] EWCA Civ 362.

Citations:

[2019] UKUT 397 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650796

Ejiogu (Cart Cases) Nigeria: UTIAC 13 Nov 2019

An addition to the grounds of appeal requires the permission of the Upper Tribunal. That is so even if the case has been granted permission following a Cart Judicial Review under CPR 54.7A.
In deciding whether to grant permission to rely upon additional grounds, the Tribunal will follow the same procedure as in relation to any other procedural default, in particular considering the length of the delay (beginning with the date on which time for appeal to the Upper Tribunal expired).
It is becoming increasingly clear that a substantial number of Cart Judicial Review claims are succeeding in circumstances where it is difficult to imagine that the Full Court that decided Cart [2011] UKSC 28 intended that the litigation should be prolonged in this way.

Citations:

[2019] UKUT 395 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650798

Ellis, Regina (on The Application of) v Secretary of State for The Home Department (Discretionary Leave Policy; Supplementary Reasons): UTIAC 5 Feb 2020

(1) Extra-statutory immigration policies should be interpreted in accordance with the objective meaning that a reasonable and literate person would ascribe to them.
(2) The Home Office discretionary leave policy should not be read as saying that, once it is decided that an individual continues to qualify for further leave on the same basis as before, he must automatically be granted indefinite leave to remain after 6 years’ continuous discretionary leave unless at the date of decision he falls within the restricted leave policy. The word ‘normally’ is used advisedly, so as to maintain the maximum possible discretion. Where a policy governs what is to happen in the normal case, it remains open to the decision-maker to take a different course in a particular case, provided he or she takes account of the policy and has reason for considering the case to be abnormal.
(3) There are four categories of cases in which supplementary reasons, supplied in response to an actual or threatened legal challenge, may be relied upon: first, to ‘elucidate’ reasons previously given; secondly, to constitute a ‘fresh decision’; thirdly, to consider material not before the decision-maker at the time when the earlier decision was taken; and fourthly, to acknowledge that the original decision was flawed but simultaneously make a new one to the same effect.
(4) Even if the original decision is held to be unlawful, relief must be withheld pursuant to s.31(2A) of the Senior Courts Act 1981 if a further decision shows that it is highly likely that the outcome would not have been substantially different, unless the proviso in s.31(2B) applies.

Citations:

[2020] UKUT 82 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650781

Abbasi (Rule 43; Para 322, : Accountants’ Evidence) Pakistan: UTIAC 8 Jan 2020

(1) The Upper Tribunal can apply rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 of its own motion.
(2) The use of fraud before the Upper Tribunal constitutes an abuse of process such as to amount to a ‘procedural irregularity’ for the purposes of rule 43(2)(d).
(3) In a case involving a decision under paragraph 322(5) of the immigration rules, where an individual relies upon an accountant’s letter admitting fault in the submission of incorrect tax returns to Her Majesty’s Revenue and Customs, the First-tier or Upper Tribunal is unlikely to place any material weight on that letter if the accountant does not attend the hearing to give evidence, by reference to a Statement of Truth, that explains in detail the circumstances in which the error came to be made; the basis and nature of any compensation; and whether the firm’s insurers and/or any relevant regulatory body have been informed. This is particularly so where the letter is clearly perfunctory in nature.

Citations:

[2020] UKUT 27 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650774

AS (Safety of Kabul) Afghanistan (CG): UTIAC 1 May 2020

Risk on return to Kabul from the Taliban
(i) A person who is of lower-level interest for the Taliban (i.e. not a senior government or security services official, or a spy) is not at real risk of persecution from the Taliban in Kabul.
Risk of serious harm in Kabul
(ii) There is widespread and persistent conflict-related violence in Kabul. However, the proportion of the population affected by indiscriminate violence is small and not at a level where a returnee, even one with no family or other network and who has no experience living in Kabul, would face a serious and individual threat to their life or person by reason of indiscriminate violence.
Reasonableness of internal relocation to Kabul
(iii) Having regard to the security and humanitarian situation in Kabul as well as the difficulties faced by the population living there (primarily the urban poor but also IDPs and other returnees, which are not dissimilar to the conditions faced throughout many other parts of Afghanistan) it will not, in general, be unreasonable or unduly harsh for a single adult male in good health to relocate to Kabul even if he does not have any specific connections or support network in Kabul and even if he does not have a Tazkera.
(iv) However, the particular circumstances of an individual applicant must be taken into account in the context of conditions in the place of relocation, including a person’s age, nature and quality of support network/connections with Kabul/Afghanistan, their physical and mental health, and their language, education and vocational skills when determining whether a person falls within the general position set out above. Given the limited options for employment, capability to undertake manual work may be relevant.
(v) A person with a support network or specific connections in Kabul is likely to be in a more advantageous position on return, which may counter a particular vulnerability of an individual on return. A person without a network may be able to develop one following return. A person’s familiarity with the cultural and societal norms of Afghanistan (which may be affected by the age at which he left the country and his length of absence) will be relevant to whether, and if so how quickly and successfully, he will be able to build a network.
Previous Country Guidance
(vi) The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to Article 15(c) of the Qualification Directive remains unaffected by this decision.
(vii) The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to the (un)reasonableness of internal relocation to Kabul (and other potential places of internal relocation) for certain categories of women remains unaffected by this decision.
(viii) The country guidance in AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC) also remains unaffected by this decision.

Citations:

[2020] UKUT 130 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650793

MBT, Regina (on The Application of) v Secretary of State for The Home Department (Restricted Leave; ILR; Disability Discrimination): UTIAC 13 Dec 2019

(i) A decision of the Secretary of State not to grant indefinite leave to remain to a person subject to the restricted leave policy (‘the RL policy’) does not normally engage Article 8 of the European Convention on Human Rights. However, Article 8 may be engaged by a decision to refuse to grant indefinite leave to remain where, for example, the poor state of an individual’s mental and physical health is such that regular, repeated grants of restricted leave are capable of having a distinct and acute impact on the health of the individual concerned.
(ii) Once Article 8 is engaged by a decision to refuse indefinite leave to remain under the RL policy, the import of Article 8 will be inherently fact-specific, and must be considered in light of the criteria set out in MS (India) and MT (Tunisia) v Secretary of State for the Home Department [2017] EWCA Civ 1190. The views of the Secretary of State attract weight, given her institutional competence on matters relating to the public interest and the United Kingdom’s reputation as a guardian of the international rule of law.
(iii) To obtain indefinite leave to remain under the Immigration Rules on the basis of long (partially unlawful) residence in cases involving no suitability concerns, paragraph 276ADE(1)(iii), taken with paragraph 276DE, requires a total of 30 years’ residence. A person who satisfies paragraph 276ADE(1)(iii) following 20 years’ residence is merely entitled to 30 months’ limited leave to remain on the ten year route to settlement.
(iv) Paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against disability discrimination contained in section 29 of the Act in relation to a decision to grant restricted leave that is taken in connection with a decision to refuse an application for a more beneficial category of leave in the circumstances set out in paragraph 16(3).
(v) To the extent that paragraph 16 of Schedule 3 to the Equality Act 2010 disapplies the prohibition against discrimination on grounds of disability, there is a corresponding modification to the public sector equality duty imposed on the Secretary of State by section 149 of the Act.

Citations:

[2019] UKUT 414 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650804

Nmai, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 12 May 2020

Application for Judicial Review of a decision of the Defendant (‘the SSHD’) declining to issue the Claimant with a British passport.

Judges:

Anthony Elleray QC Deputy High Court Judge

Citations:

[2020] EWHC 1139 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 November 2022; Ref: scu.650738

ZA (Reg 9 EEA Regs; Abuse of Rights) Afghanistan: UTIAC 31 Jul 2019

(i) The requirement to have transferred the centre of one’s life to the host member state is not a requirement of EU law, nor is it endorsed by the CJEU.
(ii) Where an EU national of one state (‘the home member state’) has exercised the right of freedom of movement to take up work or self-employment in another EU state (‘the host state’), his or her family members have a derivative right to enter the member state if the exercise of Treaty rights in the host state was ‘genuine’ in the sense that it was real, substantive, or effective. It is for an appellant to show that there had been a genuine exercise of Treaty rights.
(iii) The question of whether family life was established and/or strengthened, and whether there has been a genuine exercise of Treaty rights requires a qualitative assessment which will be fact-specific and will need to bear in mind the following:
(1) Any work or self-employment must have been ‘genuine and effective’ and not marginal or ancillary;
(2) The assessment of whether a stay in the host state was genuine does not involve an assessment of the intentions of the parties over and above a consideration of whether what they intended to do was in fact to exercise Treaty rights;
(3) There is no requirement for the EU national or his family to have integrated into the host member state, nor for the sole place of residence to be in the host state; there is no requirement to have severed ties with the home member state; albeit that these factors may, to a limited degree, be relevant to the qualitative assessment of whether the exercise of Treaty rights was genuine.
(iv) If it is alleged that the stay in the host member state was such that reg. 9 (4) applies, the burden is on the Secretary of State to show that there was an abuse of right

Citations:

[2019] UKUT 281 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.644393

Durueke (PTA: AZ Applied, Proper Approach) Nigeria: UTIAC 7 Jun 2019

(i) In reaching a decision whether to grant permission to appeal to the Upper Tribunal on a point that has not been raised by the parties but which a judge considering such an application for permission considers is arguably a Robinson obvious point or other point falling within para 3 of the head-note in AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC), the evidence necessary to establish the point in question must be apparent from the grounds of appeal to the Upper Tribunal (whether or not the appellant is represented at the time) and/or the decision of the judge who decided the appeal and/or the documents on file. The permission judge should not make any assumptions that such evidence was before the judge who decided the appeal. Furthermore, if permission is granted on a ground that has not been raised by the parties, it is good practice and a useful aid in the exercise of self-restraint for the permission judge to indicate which aspect of head-note 3 of AZ applies.
(ii) Permission should only be granted on the basis that the judge who decided the appeal gave insufficient weight to a particular aspect of the case if it can properly be said that as a consequence the judge who decided the appeal has arguably made an irrational decision. As the Court of Appeal said at para 18 of Herrera v SSHD [2018] EWCA Civ 412, it is necessary to guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors, particularly if the judge who decided the appeal had the advantage of hearing oral evidence.
(iii) Particular care should be taken before granting permission on the ground that the judge who decided the appeal did not ‘sufficiently consider’ or ‘sufficiently analyse’ certain evidence or certain aspects of a case. Such complaints often turn out to be mere disagreements with the reasoning of the judge who decided the appeal because the implication is that the evidence or point in question was considered by the judge who decided the appeal but not to the extent desired by the author of the grounds or the judge considering the application for permission. Permission should usually only be granted on such grounds if it is possible to state precisely how the assessment of the judge who decided the appeal is arguably lacking and why this is arguably material.

Citations:

[2019] UKUT 197 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.644390

Rehman (EEA Regulations 2016 – Specified Evidence : Pakistan): UTIAC 8 Apr 2019

The principles outlined in Barnett and Others (EEA Regulations; rights and documentation) [2012] UKUT 142 are equally applicable to The Immigration (European Economic Area) Regulations 2016. Section 1 of Schedule 1 to these regulations provides that the sole ground of appeal is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom. The provisions contained in regulations 21 and 42 must be interpreted in the light of European Union law. In some cases, this might involve ignoring the requirement for specified evidence altogether if a document is not in fact required to establish a right of residence.

Citations:

[2019] UKUT 195 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.644389

SS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department: CA 15 Jun 2018

The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence and the date of the FTT’s decision renders the decision unsafe.
Held: There is no such rule. In tribunal cases, as in court proceedings, excessive delay in making or promulgating a decision is not itself a reason for setting the decision aside. The correct approach is to ask whether the delay has caused the decision to be unsafe so that it would be unjust to let it stand. The only significance of the fact that delay between the hearing and the decision in an asylum case has exceeded three months is that, where the decision is challenged on an appeal, the Upper Tribunal should examine the FTT judge’s factual findings with particular care to ensure that the delay has not caused injustice to the appellant.

Citations:

[2018] EWCA Civ 1391

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Sambasivam v Secretary of State for the Home Department CA 10-Nov-1999
Where an Immigration Appeal Tribunal heard a case and the judgment would depend upon an assessment of the applicant as to his credibility, a delay of three months between the hearing and the delivery of the judgment was too long. The impression made . .
Cited – Arab Bank Plc v John D Wood Commercial Ltd (In Liquidation) and others CA 25-Nov-1999
Having once recovered damages against a valuer for a negligent survey, there was nothing to stop a lender recovering also under a policy of insurance under a mortgage indemnity guarantee, and so the lender was not required to give credit for monies . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Cobham v Frett PC 18-Dec-2000
(British Virgin Islands) Two issues arose. First, what was the consequence of inordinate delay between a judge hearing a case and giving his decision, and secondly, how was the law of adverse possession to be applied in cases of interrupted or . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Albacruz (Cargo Owners) v Albazero ‘The Albazero’ HL 1977
The House was asked as to the extent to which a consignor can claim damages against a carrier in circumstances where the consignor did not retain either property or risk. To the general principle that a person cannot recover substantial damages for . .
Cited – London and South of England Building Society v Stone CA 1983
A claim was by lenders against negligent valuers after they failed to spot subsidence. They sought for the difference of pounds 11,880 between the amount advanced and the amount which would have been lent upon a proper valuation. The borrowers’ . .
Appeal from – SS (Sri Lanka), Regina (On the Application of) v Secretary Of State for the Home Department Admn 17-Feb-2009
. .
Lists of cited by and citing cases may be incomplete.

Immigration, Litigation Practice

Updated: 26 November 2022; Ref: scu.618390

Fayyaz (Entrepreneurs: Paragraph 41-Sd(A)(I) – ‘Provided To’): UTIAC 13 Jun 2014

UTIAC The words ‘provided to’ in paragraph 41-SD(a)(i) (9) of Appendix A (Attributes for Tier 1 (Entrepreneur) Migrants) have the same meaning as ‘available to.’ Whilst the Rule has now been amended to this effect, the previous wording of the Rule did not give rise to any absurdity or doubt in construction.

Citations:

[2014] UKUT 296 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.534252

NA (UT Rule 45: Singh v Belgium) Iran: UTIAC 8 May 2014

(1) Rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 confers discretionary, procedural case management powers. It does not require the First-tier Tribunal to undertake evidence-gathering. Any direction given under rule 45 to the Secretary of State to seek out or validate evidence must be exercised sparingly and in a fact-sensitive way, bearing in mind CM (Zimbabwe) v Secretary of State for the Home Department [2013] EWCA Civ 13. When considering whether to exercise its power under rule 45 to direct a party to produce evidence, the First-tier Tribunal should also be alert to its duty of impartial and independent adjudication and the essentially procedural nature of this rule.
(2) Neither Article 47 of the Charter of Fundamental Rights of the European Union nor the decision of the CJEU in MM v Minister for Justice, Equality and Law Reform, Ireland [Case – 277/11], BAILII: [2012] EUECJ C-277/11 establishes anything to the contrary. Similarly, neither of the ECtHR decisions in Singh and Others v Belgium [Application number 33210/11] and RC v Sweden [Application number 41827/07], BAILII: ([2010] ECHR 307 is authority to the contrary.
(3) The decision of the Upper Tribunal in MJ (Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 254 (IAC), that in relation to assessing the reliability of documentary evidence the Tanveer Ahmed [2002] Imm AR 318* principles continue to apply, is reaffirmed.

Citations:

[2014] UKUT 205 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 26 November 2022; Ref: scu.525940

RK (OFM – Membership of Household – Dependency) India: UTIAC 16 Nov 2010

Other family Member – Article 3(2) of the Citizens Directive – to be interpreted in the light of Article 10(2) – distinction between membership of household and dependency – meaning of country from which they have come – any requirement to have resided with EEA national or spouse shortly before the application doubted – case remitted for re-examination by Secretary of State.

Citations:

[2010] UKUT 421 (IAC), [2011] Imm AR 227

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.444069

MU (‘Statement of Additional Grounds’; Long Residence; Discretion) Bangladesh: UTIAC 18 Nov 2010

1. As held in AS (Afghanistan) and NV (Sri Lanka) [2010] EWCA Civ 1076, there is no time limit on serving a Statement of Additional Grounds in response to a ‘section 120 notice’. Thus, an appellant may accrue ten years’ lawful leave (including leave extended by section 3C of the 1971 Act) while his appeal is pending. The Tribunal may then be asked to decide whether the appellant qualifies for indefinite leave under the Long Residence Rule.
2. An application cannot be made under the Long Residence Rule for only limited leave to remain. Two years’ leave may be granted under paragraphs 276A1-4, but only to people who have applied for indefinite leave, and who are ineligible for it solely because their knowledge of English or of life in the UK is not good enough.

Citations:

[2010] UKUT 442 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.444066

C, Regina (on The Application of) v Secretary of State for The Home Department: Admn 23 Sep 2008

Claim by ‘C’ to challenge the failure of the Secretary of State for the Home Department to grant him humanitarian protection but instead to grant only discretionary leave for a period of six months.

Citations:

[2008] EWHC 2448 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.408836

SS (Sri Lanka), Regina (On the Application of) v Secretary Of State for the Home Department: Admn 17 Feb 2009

Citations:

[2009] EWHC 223 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – SS (Sri Lanka), Regina (on The Application of) v The Secretary of State for The Home Department CA 15-Jun-2018
The court was asked whether, in cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) where the credibility of the appellant is in issue, there is a rule that a delay of more than three months between the hearing of oral evidence . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 26 November 2022; Ref: scu.373969

VN (Uganda) v Entry Clearance Officer: CA 19 Mar 2008

Citations:

[2008] EWCA Civ 232

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Beoku Betts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 26 November 2022; Ref: scu.266394

Yogachandran, Regina (on the Application Of) v Secretary of State for the Home Department: Admn 7 Feb 2006

The applicant appealed rejection of his claim for asylum.
Held: ‘the claimant has wholly failed to demonstrate, even to the very low level of possibility which suffices to quash a certificate, that there is any risk to him if he is returned to Colombo. ‘

Judges:

Munby J

Citations:

[2006] EWHC 392 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina (ZL and VL) v Secretary of State for the Home Department and Lord Chancellor’s Department CA 24-Jan-2003
The applicants’ claims for asylum had been rejected as bound to fail, and under the new Act, they were to be removed from the UK. If they wanted to appeal, they they would have to do so from outside the jurisdiction. The section had been brought . .
Cited – PS (Ltte, Internal Flight, Sufficiency of Protection) Sri Lankan CG IAT 28-Oct-2004
. .
Cited – Sinnarasa, Regina (on the Application of) v Secretary of State for the Home Department Admn 19-May-2005
Mitting J said: ‘The question which I have to consider is whether on the assumed facts I have recited the claimant cannot, on any view, succeed or her claim is so wholly lacking in substance that it is bound to fail.’ and ‘I have found this a far . .
Cited – Nadanasikamani v Secretary of State for the Home Department CA 25-Jan-2006
. .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 26 November 2022; Ref: scu.239260

Hariri v Secretary of State for the Home Department: CA 23 May 2003

It would be inappropriate to order the return of a failed asylum seeker to a country where there was a consistent pattern of gross and systematic violation of fundamental human rights.

Judges:

Laws LJ

Citations:

[2003] EWCA Civ 807, [2003] AlI ER (D) 340

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Clarified – Zorig Batayav v the Secretary of State for the Home Department CA 5-Nov-2003
The case of Hariri had set too high the threshold for the level of threat which would need to apply as to the propriety of returning an asylum applicant to his home country. The correct test is that the applicant need show a ‘real risk’ of har. This . .
Cited – Regina (Kpangni) v Secretary of State for the Home Department QBD 21-Apr-2005
The asylum seeker appealed rejection of her request not to be returned home. The decision letter had applied the test under Hariri.
Held: The decision letter invoked the wrong test. Since the Hariri case the case of Batayav had clarified the . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 26 November 2022; Ref: scu.183637

Bajracharya, Regina (on The Application of) v Secretary of State for The Home Department (Para 34 – Variation – Validity): UTIAC 20 Nov 2019

(1) Paragraph 34 [A-F] of the Immigration Rules is to be construed by the application of the ordinary principles of statutory construction, which start from the natural meaning of the words in their context.
(2) Paragraph 34 requires applicants to make an application for leave to remain in accordance with the provisions of 34.
(3) If a second application is submitted when the first application is outstanding, the second application will be treated as a variation of the first application [34BB(2)].
(4) If the variation does not comply with the requirements in paragraph 34 ‘the variation will be invalid and will not be considered’ (paragraph 34E). Invalidity does not extend to the original application.

Citations:

[2019] UKUT 417 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.650797

FMB (EEA Regulations – Reg 6 (A) – ‘Temporarily Unable To Work’) Uganda: UTIAC 16 Nov 2010

A state of affairs is ‘temporary’ if it is not permanent. Accordingly, for the purposes of reg 6(2)(a) of the Immigration (European Economic Area) Regulations 2006, a person whose inability to work as a result of illness or accident is not permanent is temporarily unable to work.

Citations:

[2010] UKUT 447 (IAC), [2011] Imm AR 236

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.444065

MK (Iran), Regina (on the Application Of) v the Asylum and Immigration Tribunal and others: CA 3 May 2007

Judges:

Lord Judge Dyson

Citations:

[2007] EWCA Civ 554

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – MK (Iran), Regina (on The Application of) v Secretary of State for The Home Department CA 26-Nov-2009
. .
See Also – MK (Iran), Regina (on The Application of) v Secretary of State for The Home Department CA 25-Feb-2010
The appellant claimed damages arising from the delay in the processing his asylum application. . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 26 November 2022; Ref: scu.263635

MB (Somalia) v Entry Clearance Officer: CA 20 Feb 2008

Questions as to the proper interpretation of para 317(i) of the Immigration Rules (‘the Rules’) and the application of articles 8 and 14 of the European Convention on Human Rights (‘the Convention’) to that paragraph

Citations:

[2008] EWCA Civ 102, [2008] Imm AR 490, [2008] INLR 590

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 26 November 2022; Ref: scu.264634

Georgios Orfanopoulos and Others v Land Baden-Wurttemberg.: ECJ 29 Apr 2004

When considering a claim to resist deportation ‘the requirement of the existence of a present threat must, as a general rule, be satisfied at the time of the expulsion.’
Europa On the interpretation of Article 39(3) EC and Article 9(1) of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition, 1963-1964, p. 117) (C-482/01), and of Article 39 EC and Article 3 of the same directive (C-493/01).

Citations:

C-482/01, [2004] EUECJ C-482/01, C-493/01, [2004] EUECJ C-493/01, [2005] 1 CMLR 18

Links:

Bailii, Bailii

Jurisdiction:

European

Cited by:

Cited – Machado v Secretary of State for the Home Deptment CA 19-May-2005
At issue was a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue was whether the decision of the IAT to uphold . .
Cited – Prix v Secretary of State for Work and Pensions SC 31-Oct-2012
The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 26 November 2022; Ref: scu.213799

Sharma v Entry Clearance Officer (New Delhi): CA 20 Jan 2005

The applicant sought to be admitted for settlement to the UK as the adopted child of a parent settled in the UK.
Held: The relevant rule required the reason for the adoption to be the inability of the natural parents to care for the child. That included the lack of skill, means or opportunity to care for the child, but did not include a mere unwillingess to care for her.

Judges:

Pill LJ, Mance LJ, Keene LJ

Citations:

[2005] EWCA Civ 89, Times 23-Feb-2005, [2005] INLR 564

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 26 November 2022; Ref: scu.222610