The court was asked whether the appellant’s deportation as a foreign convicted prisoner is or is not proportionate despite its effect on his Article 8 rights.
Longmore, Hughes, Aikens LJJ
[2013] EWCA Civ 288
England and Wales
Updated: 17 November 2022; Ref: scu.472631
ECJ (Opinion) EEC-Turkey Association Agreement – Article 41(1) of the Additional Protocol – Standstill clause – Freedom to provide services – ‘Passive’ freedom to provide services – Entry for Turkish nationals without a visa – Whether the ‘passive’ freedom to provide services extends to visiting relative
Cruz Villalon AG
C-221/11, [2013] EUECJ C-221/11
Opinion – Leyla Ecem Demirkan v Federal Republic of Germany ECJ 24-Sep-2013
ECJ EEC-Turkey Association Agreement – Additional Protocol – Article 41(1) – ‘Standstill’ clause – Visa requirement for admission to the territory of a Member State – Freedom to provide services – The right of a . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 November 2022; Ref: scu.472563
The applicant appealed against refusal of her challenge to the regulations requiring certain standards of spoken English in foreign spouses seeking to come here to be with their settled or British Citizen spouse.
Held: The imposition of the requirement was a proportionate response.
Maurice Kay VP, Toulson LJJ, Sir David Keene
[2013] EWCA Civ 322, [2013] 3 All ER 778, [2014] 1 WLR 208, [2013] HRLR 28, [2013] INLR 613, [2013] Imm AR 1007, [2013] WLR(D) 139
England and Wales
Appeal From – Chapti and Others, Regina (on The Application of) v Secretary of State for The Home Department and Others Admn 16-Dec-2011
Challenge to the amendments to paragraph 281 of the Immigration Rules requiring the foreign spouses and partners of British citizens or persons settled in the UK applying for what I shall refer to as ‘spouse visas’, that is for leave to enter the UK . .
Appeal from – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 November 2022; Ref: scu.472571
Application for judicial review of a decision to make an exclusion order against the claimant preventing him from entering the United Kingdom.
Stuart Catchpole QC
[2012] EWHC 4130 (Admin)
Updated: 14 November 2022; Ref: scu.472513
The court gave its reasons for allowing the defendant’s appeal against his conviction for entering into the UK without a passport. He had given his passport to an agent purporting to arrange his entry and under whose control he was. He claimed refugee status from Eritrea.
Held: The question was whether this amounted to a reasonable excuse for not having it. The judge had been wrong to decide that this could not amount to a reasonable excuse. Firstly, the judge should have awaited the completion of the evidence before such a ruling.
Toulson LJ, MacKay J, Sir David Calvert-Smith
[2013] EWCA Crim 435
Asylum and Immigration (Treatment of Claimants etc) Act 2004
England and Wales
Cited – Khalif, Regina (on The Application of) v Isleworth Crown Court Admn 31-Mar-2015
The defendant appealed against his conviction under the 2004 Act on his plea of guilty saying that he had been given erroneous legal advice as to section 2(4)(c). . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.472538
44539/11 – Chamber Judgment, [2013] ECHR 298, 70073/10
European Convention on Human Rights
Updated: 14 November 2022; Ref: scu.472461
Mr Justice Wyn Williams
[2008] EWHC 2968 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.278426
The appellant challenged rejection of her asylum application made on human rights grounds. Medical evidence said that ‘There was a body of evidence before the senior immigration judge on the subject of the appellant’s mental health. It is sufficient to refer to a report by Dr David Bell, a consultant psychiatrist, who was in agreement with earlier diagnoses and gave a full assessment of the appellant’s condition. Dr Bell said that the appellant was suffering from severe depressive disorder, with typical symptoms of objective features of depression, pervasive apathy, pervasive depressed mood, very poor appetite, guilt and self-blame, history of suicide attempts, disturbed sleep and morbid existential preoccupations. There were also typical symptoms of post-traumatic stress disorder, with a typical pattern of intrusive thought, noise sensitivity, flash-back phenomena, hallucinatory experiences, nightmares, avoidance of stimuli that might trigger anxiety attacks, and paranoid ideation.’
Held: The appeal failed. Richards LJ looked at the requirements under Article 3: ‘The senior immigration judge was also right to stress the particularly high threshold that has to be crossed for a claim of this nature to succeed under article 3.’
Rix LJ, Richards LJ, Lawrence Collins LJ
[2008] EWCA Civ 1210
England and Wales
Cited – McKinnon, Regina (On the Application of) v Secretary Of State for Home Affairs Admn 31-Jul-2009
Assurances for Extradition
Extradition of the defendant was sought to the US to face allegations of hacking into defence computers there. He said this would infringe his article 3 rights, saying that he suffered Autism Spectrum Disorder.
Held: The application failed. US . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.277565
Blake J
[2008] EWHC 3044 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.278834
[2007] EWCA Civ 774
England and Wales
Updated: 14 November 2022; Ref: scu.258388
[2007] EWCA Civ 801, [2008] 2 All ER 28
England and Wales
Updated: 14 November 2022; Ref: scu.258468
The applicant had had his application for asylum rejected. Pending deportation, he had been held in custody. The court had found his detention unlawful.
Held: The Home Secretary’s appeal succeeded. The power to detain in such circumstances had to be for the purpose for which the power had been created, and the detention must not be unreasonable in time. The time period here had been lengthy, but the applicant had refused to be returned to Somalia, and there had been a very high risk of his absconding if released. It is for the court, and not for the Secretary of State, to determine the legal boundaries of administrative detention, apart possibly from incidental questions of fact which the court may recognise that the Secretary of State is better placed to decide than itself.
Toulson LJ set out the core principles as he saw them: ‘There is no dispute that the word ‘pending’ in schedule 3, paragraph 2(2) . . and paragraph 2(3) . . simply means ‘until’ . . However, the Home Secretary’s exercise of the statutory power to detain a prospective deportee until the making of the deportation order or until his removal or departure is not unfettered. It is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists. Secondly, it may be exercised only during such period as is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the case.
Those principles were first established by Woolf J in his judgment in Hardial Singh . . which has been cited with approval in subsequent cases . . After stating those principles, Woolf J continued: ‘What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.’
In some later judgments that sentence has been treated as a third principle. It seems to me that it is really a facet or consequence of the first and second. Be that as it may, a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle.’
Keene LJ, Longmore LJ, Toulson LJ
[2007] EWCA Civ 804, Times 05-Sep-2007
England and Wales
Cited – Bashir, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Nov-2007
B complained of the unreasonable length of time (32 months) for which had been detained pending deportation.
Held: Mitting J said: ‘What Toulson LJ did not address, because it was not necessary to address it on the facts, was whether or not a . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – Rostami, Regina (on the Application of) v Secretary of State for the Home Department QBD 7-Aug-2009
The claimant had been detained for nearly three years while his application for asylum was determined. He sought judicial review, saying that the detention was unlawful. Whilst in detention he had self harmed and said: ‘I will stay in detention for . .
Cited – Saleh, Regina (On the Application of) v Secretary Of State for the Home Department Admn 5-Oct-2009
The claimant challenged his past and continuing detention pending deportation. He had a long series of convictions for dishonesty.
Held: ‘it is indeed disconcerting to find that a non-violent person subject to immigration control has been in . .
Cited – Anam v Secretary of the State for the Home Department Admn 13-Oct-2009
The claimant said that his detention pending deportation was unlawful being in his case in breach of the respondent’s policy of not detaining those with mental health problems. He had committed various offences but was receiving a treatment which . .
Cited – MH, Regina (on The Application of) v Secretary of State for The Home Department CA 14-Oct-2010
The claimant complained that his administrative detention for over 40 months had been unlawful. He now appealed against a finding that it had been lawful save for the final two months.
Held: The appeal failed. The period of time for which he . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.258454
The applicant, a former minister in the Government of Kenya challenged the revocation of entry visas. This had been done on the basis of evidence withheld from him, and the court considered the way in which that evidence could be used by the use of special counsel.
Mitting J
[2006] EWHC 3726 (Admin)
England and Wales
See Also – Murungaru v Secretary of State for the Home Department and others Admn 4-Oct-2006
The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with . .
Appeal from – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.263478
Appeal against rejection of asylum claim. The claimant had produced T-shirts for opposition party. He alleged a serious assault by police. He appealed saying that the court had not allowed for the weak presentation of his case.
[2007] EWCA Civ 831
England and Wales
Updated: 14 November 2022; Ref: scu.259141
Munby J
[2006] EWHC 456 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.239258
The appellant a foreign national, had been convicted of very serious sex offences, and as his sentence came to an end was ordered to be deported. He appealed saying this infringed his right to a family life.
Held: The court had to balance the public revulsion at his crimes with the need for compassion. The adjudicator exercised an original discretion and had to take into account all individual factors, and give appropriate weight to the Home Secretary’s considered opinions. Even so, the adjudicator was in no better position to the critical public interest than was the court. Given the need to allow for the public good and interest, it was right for the adjudicator to include in his exercise the nature of the offence. The Article 8 issues and deportation issues merged. Proper weight must be given to the Secretary of State’s policy on deportation, and in particular to the fact that she has taken the view, in the public interest that crimes of violence such as that committed by the appellant are sufficiently serious to warrant deportation.
Lord Justice May Lord Justice Judge Lord Justice Sedlay
[2004] EWCA Civ 1094, Times 13-Sep-2004, [2004] INLR 612
European Convention on Human Rights 8, Immigration Act 1971 3(2)
England and Wales
Appeal from – Secretary of State for the Home Department v N (Kenya) IAT 3-Feb-2004
. .
Cited – OH (Serbia) v Secretary of State for the Home Department CA 30-Apr-2008
Wilson LJ considered N (Kenya) and said: ‘Primary responsibility for the public interest, whose view of it is likely to be wide and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal . .
Cited – OP (Jamaica) v Secretary of State for the Home Department CA 1-May-2008
The applicant had been granted leave to stay. He was convicted of manslaughter and ordered to be deported on release. The Home Secretary appealed an overturning of the AIT decision in his favour, and the applicant in turn now appealed saying there . .
Cited – Secretary of State for The Home Department v HK (Turkey) CA 27-May-2010
The SS appealed against the successful appeal by the respondent against a deportation order. He had come to England in 1994, been granted indefinite leave to stay, and made a family here. In 2007 he was convicted of grievous bodily harm.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.199883
[2000] ScotCS 251
Scotland
Updated: 14 November 2022; Ref: scu.163991
[2021] UKAITUR PA119342019
England and Wales
Updated: 14 November 2022; Ref: scu.660029
A. Historic injustice
(1) For the future, the expression ‘historic injustice’, as used in the immigration context, should be reserved for cases such as those concerning certain British Overseas citizens or families of Gurkha ex-servicemen, which involve a belated recognition by the United Kingdom government that a particular class of persons was wrongly treated, in immigration terms, in the past; and that this injustice should be recognised in dealing with applications made now (eg Patel and Others v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17; AP (India) v Secretary of State for the Home Department [2015] EWCA Civ 89).
(2) The fact that the injustice exists will be uncontroversial. It will be generally recognised. It will apply to a particular class of persons. Unlike cases of what might be described as ‘historical injustice’, the operation of historic injustice will not depend on the particular interaction between the individual member of the class and the Secretary of State. The effects of historic injustice on the immigration position of the individual are likely to be profound, even determinative of success, provided that there is nothing materially adverse in their immigration history.
B. Historical injustice
(3) Cases that may be described as involving ‘historical injustice’ are where the individual has suffered as a result of the wrongful operation (or non-operation) by the Secretary of State of her immigration functions. Examples are where the Secretary of State has failed to give an individual the benefit of a relevant immigration policy (eg AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12); where delay in reaching decisions is the result of a dysfunctional system (eg EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41); or where the Secretary of State forms a view about an individual’s activities or behaviour, which leads to an adverse immigration decision; but where her view turns out to be mistaken (eg Ahsan v Secretary of State for the Home Department [2017] EWCA Civ 2009). Each of these failings may have an effect on an individual’s Article 8 ECHR case; but the ways in which this may happen differ from the true ‘historic injustice’ category.
C. Part 5A of the Nationality, Immigration and Asylum Act 2002 and the weight to be given to the maintenance of effective immigration controls
(4) In all cases where, for whatever reason, the public interest in the maintenance of effective immigration controls falls to be given less than its ordinary weight, the usual course should be for the judge so to find in terms, when addressing section 117B(1) of the 2002 Act. The same result may be achieved, at least in some situations, by qualifying the consideration in section 117B(4) that little weight should be given to a private life formed when the person concerned is in the United Kingdom unlawfully. Judicial fact-finders should, however, avoid any recourse to double-counting, whereby not only is the weight to be given to effective immigration controls diminished but also, for the same reason, a private life is given more weight than would otherwise be possible by the undiluted application of section 117B(4).
(5) The weight to be given to the public interest in the maintenance of effective immigration controls is unlikely to be reduced because of disappointments or inadequacies encountered by individuals from teaching institutions or employers.
[2020] UKUT 351 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.660038
[2021] UKAITUR HU202132018
England and Wales
Updated: 14 November 2022; Ref: scu.659990
[2021] UKAITUR PA112652019
England and Wales
Updated: 14 November 2022; Ref: scu.660026
[2021] UKAITUR PA008672020
England and Wales
Updated: 14 November 2022; Ref: scu.659998
[2021] UKAITUR PA010432020
England and Wales
Updated: 14 November 2022; Ref: scu.660000
[2021] UKAITUR PA011522020
England and Wales
Updated: 14 November 2022; Ref: scu.660001
[2021] UKAITUR PA022362020
England and Wales
Updated: 14 November 2022; Ref: scu.660003
[2021] UKAITUR PA081822019
England and Wales
Updated: 14 November 2022; Ref: scu.659610
[2021] UKAITUR IA000492019
England and Wales
Updated: 14 November 2022; Ref: scu.659996
[2020] EWCA Civ 494
England and Wales
Updated: 14 November 2022; Ref: scu.649795
[2019] EWHC 2196 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.642690
UTIAC FGM has been practised upon about three quarters of the female population of The Gambia historically. The most recent scientific evidence, based on data from 2005, showed no significant change in its incidence. There are ongoing campaigns, principally by GAMCOTRAP (Gambia Committee on Traditional Practices Affecting the Health of Women and Children), aiming to reduce and eventually to eliminate FGM. There has been some increase in published opinion in the Gambia against FGM, and there have been local declarations of renunciation, but there has been no scientific evaluation of GAMCOTRAP’s effectiveness in establishing a decline.
Incidence of FGM varies by ethnic group. Within the four main ethnic groups there are subgroups, within which the incidence may vary – see the table below. In no ethnic group is the practice universal; in some ethnic groups the practice is absent. Ethnic groups are thoroughly interspersed. The country is small and highly interconnected. (Where reference is made to ethnic group we include sub-groups save where specified)
The evidence as at November 2012 falls short of demonstrating that intact females in The Gambia are, as such, at real risk of FGM. The assessment of risk of FGM is a fact sensitive exercise, which is likely to involve ethnic group, (whether parental or marital), the attitudes of parents, husband and wider family and socio-economic milieu.
There are significant variables which affect the risk:
(i) the practice of the kin group of birth: the ethnic background, taking into account high levels of intermarriage and of polygamy;
(ii) the education of the individual said to be at risk;
(iii) her age;
(iv) whether she lived in an urban or rural area before coming to the UK;
(v) the kin group into which she has married (if married); and
(vi) the practice of the kin group into which she has married (if married).
Also relevant is the prevalence of FGM amongst the extended family, as this may increase or reduce the relevant risk which may arise from the prevalence of the practice amongst members of the ethnic group in general.
In assessing the risk facing an individual, the starting point is to consider the statistical information currently known about the prevalence of the practice within the ethnic group that is the relevant ethnic group in the individual’s case, as follows:
If the individual is unmarried and given that ethnicity is usually taken from the father in The Gambia, the relevant ethnic group is likely to be the ethnic group of the father.
If the individual is married to a man from an ethnic group that is different from her father’s ethnic group, then the relevant ethnic is the ethnic group of the husband.
The statistics from which the prevalence of the practice of FGM within the ethnic groups in the Gambia is drawn, vary considerably given the lack of detailed research and analysis undertaken in The Gambia. From the material before the Upper Tribunal, those statistics indicate as follows:
Ethnic group – Prevalence of FGM/C
Mandinka – May be as high as 80-100%
Fula (Overall) – 30%
Hobobehs (sub group of Fula) – 0%
Jama (sub group of Fula) – 0%
Toranks, Peuls, Futas, Tukuleurs, Jawarinkas, Lorbehs, Ngalunkas and Daliankos (sub groups of Fula) – Practise but % unknown
Serehule – May be as high as 100%
Njefenjefe (within the Serehule ethnic grouping) – 0%
Niumikas (within the Serehule ethnic grouping) – Practise but % unknown
Jola and Karonikas – 90 to 100%
Jola Foni – Practise but % not known
Jola Casa – 0%
Others – Variable
Wolof – those who migrated from Senegal Oriental – 0%
Wolof – those who migrated from Sine Saloum – Practise but % not known
The next step is to consider the various other factors mentioned in paragraph 4 above as some may increase the risk, whilst others may reduce the risk. Whist each case will turn on it own facts, the following are of general application:
In the case of an unmarried woman, parental opposition reduces the risk. In the case of a married woman, opposition from the husband reduces the risk. If the husband has no other ‘wives’, the risk may be reduced further. However, it should be borne in mind that parental/spousal opposition may be insufficient to prevent the girl or woman from being subjected to FGM where the extended family is one that practises it, although this will always be a question of fact.
If the prevalence of the practice amongst the extended family is greater than the prevalence of the practice in the ethnic group in question, this will increase the risk. Conversely, if the prevalence of the practice amongst the extended family is less than the prevalence of the practice in the ethnic group in question, this will reduce the risk.
If the woman is educated (whether she is single or married), the risk will reduce.
If the individual lived in an urban area prior to coming to the United Kingdom, this will reduce the risk. Conversely, if the individual lived in a rural area prior to coming to the United Kingdom, this will increase the risk.
The age of a woman does not affect the risk measurably; it is an issue upon marriage. Amongst the Fula, FGM has been carried out on babies as young as one week old. The average age at which FGM is carried out appears to be reducing and this may be due to concerns about the international pressure to stop the practice. Although there are statistics about the average age at which FGM is carried out on girls and women for particular ethnic groups, the evidence does not show that,in general, being above or below the relevant average age has a material effect on risk. It would therefore be unhelpful in most cases to focus on the age of the girl or woman and the average age at which FGM is carried out for the ethnic group of her father (if unmarried) or that of her husband (if married).
Thus, it is possible to arrive at a conclusion that the risk faced by an individual is less than, or more than, the rate of incidence of FGM in the ethnic group of the individual’s father (if unmarried) or her husband (if married). The rate of incidence of FGM in an ethnic group must therefore be distinguished from the degree of likelihood of infliction on an individual against her will or against the will of her parents. Some individuals from ethnic groups with a high incidence may not be at risk, while some individuals from ethnic groups with a low incidence may be at risk.
State protection: FGM is not specifically criminalised in The Gambia although it may be covered by the existing criminal law on assault or in The Gambia’s Children’s Act 2005. However, there are no known cases of prosecutions under the general criminal law or under the 2005 Act. There is no reliable evidence to suggest that a female who may be at real risk of FGM can avail herself of effective State protection or that her father or husband could invoke such protection on her behalf.
Internal flight: As a general matter, an individual at real risk of FGM in her home area is unlikely to be able to avail herself of internal relocation, although this is always a question of fact. Cogent reasons need to be given for a finding that the individual would be able to relocate safely, especially given the evidence that ethnic groups are thoroughly interspersed, the country is small and ethnic groups in different parts of the country are highly interconnected.
[2013] UKUT 62 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472254
UTIAC (1) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge.
(2) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.
Blake J P, Eshun UTJ
[2013] UKUT 85 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472147
The applicant asylum seeker asserted that he was a child. He appealed against an assessment that his fears were fabrications.
Lane, Perkins UTJJ
[2013] UKUT 122 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472145
UTIAC 1. A judge may depart from existing country guidance in the circumstances described in Practice Direction 12.2 and 12.4 and the UT (IAC) Guidance Note 2011, no. 2, paragraphs 11 and 12.
2. The evidence before the judge in the present case justified his departure from the country guidance in SL and Others (Afghanistan) CG (Returning Sikhs and Hindus) [2005] UKIAT 00137.
Allen, Storey UTJJ
[2013] UKUT 148 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472150
UTIAC (1) Those writing medical reports for use in immigration and asylum appeals should ensure where possible that, before forming their opinions, they study any assessments that have already been made of the appellant’s credibility by the immigration authorities and/or a tribunal judge (SS (Sri Lanka) [2012] EWCA Civ 155 [30]; BN (psychiatric evidence discrepancies) Albania [2010] UKUT 279 (IAC) at [49], [53])). When the materials to which they should have regard include previous determinations by a judge, they should not conduct a running commentary on the reasoning of the judge who has made such findings, but should concentrate on describing and evaluating the medical evidence (IY (Turkey) [2012] EWCA Civ 1560 [37].
(2) They should also bear in mind that when an advocate wishes to rely on their medical report to support the credibility of an appellant’s account, they will be expected to identify what about it affords support to what the appellant has said and which is not dependent on what the appellant has said to the doctor (HE (DRC, credibility and psychiatric reports) Democratic Republic of Congo [2004] UKAIT 000321). The more a diagnosis is dependent on assuming that the account given by the appellant was to be believed, the less likely it is that significant weight will be attached to it (HH (Ethiopia) [2007] EWCA Civ 306 [23]).
(3) The authors of such medical reports also need to understand that what is expected of them is a critical and objective analysis of the injuries and/or symptoms displayed. They need to be vigilant that ultimately whether an appellant’s account of the underlying events is or is not credible and plausible is a question of legal appraisal and a matter for the tribunal judge, not the expert doctors (IY [47]; see also HH (Ethiopia) [2007] EWCA Civ 306).
(4) For their part, judges should be aware that, whilst the overall assessment of credibility is for them, medical reports may well involve assessments of the compatibility of the appellant’s account with physical marks or symptoms, or mental condition: (SA (Somalia) [2006] EWCA Civ 1302). If the position were otherwise, the central tenets of the Istanbul Protocol would be misconceived, whenever there was a dispute about claimed causation of scars, and judges could not apply its guidance, contrary to what they are enjoined to do by SA (Somalia). Even where medical experts rely heavily on the account given by the person concerned, that does not mean their reports lack or lose their status as independent evidence, although it may reduce very considerably the weight that can be attached to them.
Storey, Pitt UTJJ
[2013] UKUT 145 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472152
a) ‘Sodomy’ and ‘acts against nature with a member of the same sex’ are illegal under Penal Code Article 388 and 333 in Algeria and on conviction carry a criminal sentence of up to 3 years imprisonment and/or a fine.
b) Criminal prosecutions of gay men under Articles 388 and 333 are, however, extremely rare.
c) The evidence does not suggest that, as a general matter, societal and familial disapproval of male gay identity in Algeria reaches levels that are persecutory, within the meaning of Article 9 of the Qualification Directive or which otherwise reach the threshold required for protection under Article 15(b) of that Directive or Article 3 of the ECHR.
d) That conclusion is reinforced by the evidence that the admittedly small number of gay men who live openly as such in Algeria do not, in general, suffer serious harm amounting to persecution.
e) If somebody is able to establish that their behaviour was shaped by more than disapproval amounting to serious harm, they may be able to establish a need for protection. Each case should be determined on the evidence specific to that particular case.
[2013] UKUT 63 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472153
UTIAC (1) The Immigration (Notices) Regulations 2003 do not apply to a decision under the Immigration Act 1971, which is not an immigration decision within the meaning of section 82 of the Nationality, Immigration and Asylum Act 2002.
(2) There is no statutory instrument under the 1971 Act dealing with the means of giving notice for the purposes of section 4(1) of a decision under that Act, which is not an immigration decision.
(3) Accordingly, the Secretary of State has to be able to prove that notice of such a decision was communicated to the person concerned, in order for it to be effective. Communication will be effective if made to a person authorised to receive it on that person’s behalf: see Hosier v Goodall [1962] 1 All E.R. 30; but the Secretary of State cannot rely upon deemed postal service.
Spencer UTJ
[2013] UKUT 144 (IAC)
Nationality, Immigration and Asylum Act 2002 82, Immigration (Notices) Regulations 2003, Immigration Act 1971
England and Wales
Cited – Hosier v Goodall QBD 1962
A notice of intended prosecution was sent to the defendant in connection with an allegation of driving without due care and attention. When the matter came before the court, the defendant argued that the prosecution had failed to meet the . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.472149
UTIAC A non-EU citizen, who is residing in the United Kingdom by reason of a derived right of residence (eg as the primary carer of an EU citizen child), cannot thereby acquire a permanent right of residence in this country
Balke J P, Farrelly UTJ
[2013] UKUT 83 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472139
UTIAC i) The exercise of the duty by the Entry Clearance Officer to assess an application under the Immigration Rules as to whether there are family or other considerations making the child’s exclusion undesirable inevitably involves an assessment of what the child’s welfare and best interests require.
ii) Where an immigration decision engages Article 8 rights, due regard must be had to the UN Convention on the Rights of the Child. An entry clearance decision for the admission of a child under 18 is ‘an action concerning children . . undertaken by . . administrative authorities’ and so by Article 3 ‘the best interests of the child shall be a primary consideration’.
iii) Although the statutory duty under s.55 UK Borders Act 2009 only applies to children within the UK, the broader duty doubtless explains why the Secretary of State’s IDI invites Entry Clearance Officers to consider the statutory guidance issued under s.55.
iv) Family considerations require an evaluation of the child’s welfare including emotional needs. ‘Other considerations’ come in to play where there are other aspects of a child’s life that are serious and compelling for example where an applicant is living in an unacceptable social and economic environment. The focus needs to be on the circumstances of the child in the light of his or her age, social backgrounds and developmental history and will involve inquiry as to whether:-
a there is evidence of neglect or abuse;
b. there are unmet needs that should be catered for;
c. there are stable arrangements for the child’s physical care;
The assessment involves consideration as to whether the combination of circumstances are sufficiently serious and compelling to require admission.
v) As a starting point the best interests of a child are usually best served by being with both or at least one of their parents. Continuity of residence is another factor; change in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939 .
Blake J P, Dawson UTJ
[2013] UKUT 88 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472143
UTIAC 1 No party to proceedings before the Upper Tribunal is entitled to withdraw its case without permission under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008. A case may be withdrawn with permission but a case is not withdrawn until the Tribunal has notified the parties in writing that permission to withdraw has been granted.
2 The Tribunal is not required to determine an appeal when an appellant’s case has been withdrawn and the respondent has not been given permission to appeal. For administrative purposes an appeal is disposed of by recording that a party’s case has been withdrawn.
3 A party that seeks to persuade the Upper Tribunal to replace a decision of the First-tier Tribunal with a decision that would make a material difference to one of the parties needs permission to appeal. The Upper Tribunal cannot entertain an application purporting to be made under rule 24 for permission to appeal until the First-tier Tribunal has been asked in writing for permission to appeal and has either refused it or declined to admit the application.
Eshun, Goldstein, Perkins LJJ
[2013] UKUT 143 (IAC)
Tribunal Procedure (Upper Tribunal) Rules 2008 17
England and Wales
Updated: 14 November 2022; Ref: scu.472141
Challenge to age assessment
[2013] UKUT 87 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472144
UTIAC (1) Self-employed persons were eligible for leave to remain under paragraph 21 of HC 510 if they made an investment in the provision of services of their personal skill provided that they were not engaging in disguised employment or would not have to supplement their business activities by taking employment for which a work permit was required.
(2) The distinction between employment and self-employment is a question of fact to be assessed in the light of the evidence as a whole. A relevant and potentially decisive issue is whether the person to whom services are provided controls the relationship.
(3) The UKBA May 2011 IDI accurately reflects the fact that a person may work part time for a number of employers and not be self employed.
Blake J P, Wood UTJ
[2013] UKUT 121 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472140
Application for judicial review by a national of Afghanistan, against a decision by the Respondent of refusing his further representations as a fresh claim. One relatively unusual feature of it wa that the Applicant was removed from the United Kingdom prior to being granted permission to apply for judicial review at the oral renewal stage.
Storey UTJ
[2013] UKUT 86 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.472142
Application for judicial review of the lawfulness of certain additions to the Immigration Rules.
Sales J
[2013] EWHC 720 (Admin)
Updated: 14 November 2022; Ref: scu.472093
The applicant said that his proposed deportation to Ethiopia would infringe his article 3 rights, and in particular whether SIAC was entitled to conclude that assurances given by the Ethiopian Government were a satisfactory safeguard, even though not all the arrangements for monitoring fulfilment of those assurances were in place.
Jackson, Elias, Treacy LJJ
[2013] EWCA Civ 279
European Convention on Human Rights 83
England and Wales
At SIAC – J1 v Secretary of State for The Home Department SIAC 15-Apr-2011
Deportation – Substantive (National Security) – Dismissed . .
Appeal from – J1 v Secretary of State for The Home Department SIAC 11-Jul-2011
Deportation – Substantive (Safety On Return) – Dismissed . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.472065
The appellant sought the deportation of the respondent to his home country of Jordan to face trial on terrorism related charges. The respondent said that evidence against him would have been obtained by torture, and challenged re-assurances accepted by the respondent as to the conduct of the trial. He said there was a real risk of a flagrantly unfair trial.
Held: The appeal failed: ‘to succeed in this appeal, the Secretary of State has to show that SIAC erred in law. It is not sufficient to persuade us that we would have reached a different conclusion on the facts and Mr Eadie rightly recognised the difficulty of such an exercise. The Secretary of State accepts that SIAC directed itself properly as to the general legal test to apply. Her case that SIAC nevertheless erred in law is based on a detailed examination of a careful and comprehensive judgment. As we have stated . . criticisms of this kind of a decision by a specialist tribunal are particularly difficult to sustain. For the reasons that we have given, we are satisfied that SIAC did not commit any legal errors.’
Lord Dyson MR, Richards, Elias LJJ
[2013] EWCA Civ 277
England and Wales
See Also – Omar Othman v The United Kingdom ECHR 26-May-2009
Statement of Facts. The applicant resisted deportation to Jordan to face trial on on terrorism related charges, saying that there was a real risk that the evidence to be presented against him would include evidence obtained by torture. . .
At ECHR – Omar Othman (Abu Qatada) v The United Kingdom ECHR 17-Jan-2012
The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that . .
SIAC Bail Application – Othman v Secretary of State for The Home Department SIAC 6-Feb-2012
Application for bail. . .
SIAC Baill – Othman v Secretary of State for The Home Department SIAC 28-May-2012
SIAC (Deportation – Bail Application – Refused) The applicant was held in immigration detention pending a proposed deportation to his native Jordan to face retrial on terrorist charges. Having resisted his . .
Admn Reasons – Othman, Regina (on The Application of) v Special Immigration Appeals Commission (SIAC) and Others Admn 9-Aug-2012
The court gave its reasons for refusing the claimant’s applications for habeas corpus and permission to seek judicial review of his detention. He was detained pending deportation to Jordan. He resisted saying that if retried in Jordan, the evidence . .
At HL – RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
Appeal from – Othman (Abu Qatada) v Secretary of State for The Home Department SIAC 12-Nov-2012
The applicant challenged his proposed deportation to Jordan to face perrorism related charges. He said that there was a real risk that the evidence used against him would have been obtained by torture.
Held: His appeal was allowed . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.472067
The appellants each challenged rejection of their asylum appeals in the light of changed country guidance for Zimbabwe.
Pill, Davis LJJ, Warren J
[2013] EWCA Civ 237
England and Wales
Updated: 14 November 2022; Ref: scu.472068
The claimant sought judicial review of the Defendant’s failure to assess her son’s needs for the purposes of providing accommodation and support under section 17 of the 1989 Act. While the case is specific to its particular facts, it raises the question of the extent to which the Defendant could rely upon the Secretary of State’s power to provide facilities for accommodation under section 4 of the 999 Act in deciding whether or not to carry out an assessment of need.
Robin Purchas QC
[2013] EWHC 691 (Admin)
Children Act 1989 17, Immigration and Asylum Act 1999 4
Updated: 14 November 2022; Ref: scu.472074
Application for judicial review of the decision of the Secretary of State, acting by her officials, to authorise the detention of the Claimant on 7 November 2011 with a view to her removal from the United Kingdom and to maintain that detention until the Claimant was granted bail by an Immigration Judge and released from detention on 12 January 2012. The Claimant seeks a declaration that all or part of that period of detention was unlawful and claims damages for false imprisonment.
Sales J
[2013] EWHC 682 (Admin)
Updated: 14 November 2022; Ref: scu.472038
[2013] EWCA Civ 238
England and Wales
Updated: 14 November 2022; Ref: scu.472027
ECJ Area of freedom, security and justice – ‘Local border traffic’ at the external land borders of the Member States – Regulation (EC) No 1931/2006 – Regulation (EC) No 562/2006 – Maximum duration of stay – Rules for calculation
C-254/11, [2013] EUECJ C-254/11
Regulation (EC) No 1931/2006, Regulation (EC) No 562/2006
Updated: 14 November 2022; Ref: scu.471952
The applicants complained of the refusal of a visitors permit by the respondent to an eminent Iranian dissident.
Held: The appeal was dismissed. Although the decision was an interference in the human rights of the applicants, that intereference had been supported by clear justification.
Arden, Patten, McCombe LJJ
[2013] EWCA Civ 199
Terrorism Act 2000 3, European Convention on Human Rights 9 10
England and Wales
Appeal from – Lord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
See Also at POAC – Lord Alton of Liverpool and Others v Secretary of Dtate for the Home Department POAC 30-Nov-2007
The Mujaheddin-e-Khalq had been proscribed under the 2000 Act by the respondent. It now appealed against such proscription.
Held: The organisation had in the past used terrorist methods, but had repeatedly now renounced the use of violence. . .
Appeal from – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.471916
The claimant sought asylum saying he had been tortured in Syria. He now appealed against the respondent’s decision to return him to Bulgaria where he had first fled.
Holman J
[2013] EWHC 496 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.471934
49734/12 – HECOM, [2013] ECHR 202
European Convention on Human Rights
Updated: 14 November 2022; Ref: scu.471844
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 public policy after criminal convictions. He aid that the pwer granted to detain pending deportation was incompatible with EU law.
Held: Eder J refused part of the appellant’s claim for judicial review challenging his administrative detention by the SSHD. Article 27 of the Directive did not restrict, but rather expressly permitted a member state to restrict the freedom of movement of a third country national within the limits stated.
Eder J
[2013] EWHC 567 (Admin), [2013] WLR(D) 109
Immigration (European Economic Area) Regulations 2006, Parliament and Council Directive 2004/38/EC 27
England and Wales
At Admn – 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 . .
At Admn – 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.
Updated: 14 November 2022; Ref: scu.471759
Taynor QC
[2013] EWHC 565 (Admin)
Updated: 14 November 2022; Ref: scu.471757
Moore-Bick LJ
[2012] EWCA Civ 1922
England and Wales
Updated: 14 November 2022; Ref: scu.471675
In each case the applicant, a company based in Ireland had employed in its restaurants, Chinese nationals who were unlawfully present here. The company sought judicial review of the arrest of its employees.
Held: ‘None of the claimants had any entitlement to rely on Article 49 and the posted workers cases because the third party nationals are not resident in Ireland. The UK, in any event, would be justified under EC law in taking proportionate measures to ensure that third party nationals are legally employed and lawfully resident in the member state of establishment. As the third country nationals are not lawfully resident in the Republic of Ireland, the defendant’s decisions not to regularise their status and to detain and remove them were proportionate and were not in breach of EC law.’
Pearl David J
[2009] EWHC 35 (Admin), [2009] 2 CMLR 22
EC Treaty 49, Directive 96/71/EC: Posted Workers Directive
England and Wales
Cited – Commission v Germany (Freedom To Provide Services) ECJ 19-Jan-2006
Europa Failure of a Member State to fulfil obligations -? Article 49 EC -? Freedom to provide services -? Undertaking employing workers who are nationals of non-?member States -? Undertaking providing services in . .
Cited – Regina (Vetterlein) v Hampshire County Council Admn 2001
The claimants challenged a planning permission granted to a waste disposal site, saying that it violated their article 8 rights.
Held: The court asked whether there was reasonable and convincing evidence that the claimants quality of life . .
Cited – Raymond Vander Elst v Office des Migrations Internationales ECJ 1994
A Belgian service provider brought its Moroccan workers to France in order to carry out a demolition contract. The workers had been ‘lawfully and habitually employed’ in Belgium and they intended to return to Belgium after completion of the project. . .
Cited – Rush Portuguesa Ld v Office National d’immigration ECJ 27-Mar-1990
ECJ Articles 59 and 60 of the EEC Treaty and Articles 215 and 216 of the Act of Accession of Portugal must be interpreted as meaning that an undertaking established in Portugal providing services in the . .
Cited – Commission v Luxembourg C-445/03 ECJ 21-Oct-2004
ECJ Failure of a State to fulfil obligations – Freedom to provide services – Requirements imposed by the host Member State on undertakings which deploy within its territory salaried workers who are nationals of . .
Cited – Commission v Austria (Freedom To Provide Services) ECJ 21-Sep-2006
Europa Failure of a Member State to fulfil obligations – Article 49 EC – Freedom to provide services – Undertaking employing workers who are not nationals of a Member State- Undertaking providing services in . .
Cited – Carpenter v Secretary of State for the Home Department ECJ 11-Jul-2002
The applicant had come to England on a six month visitor’s visa. She then married an English national, but her visa was not extended.
Held: The husband had business interests and activities throughout the community. The deportation of the . .
Cited – Regina (on the application of Loutchansky and Others) v The First Secretary of State 2005
The court considered the right of a worker claiming a community right to work here: ‘the underlying principle is that, in order to render a community right effective, it may be necessary to recognise a derivative right in a non-national who has no . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.280071
Renewed application for permission to appeal from Asylum and Immigration Tribunal after dismissal the applicant’s appeal from the Secretary of State’s refusal to grant him asylum and related humanitarian relief. Suspicion of involvement with terrorist activity in Sri Lanka.
[2007] EWCA Civ 961
England and Wales
Updated: 14 November 2022; Ref: scu.259897
[2007] EWCA Civ 868
England and Wales
Updated: 14 November 2022; Ref: scu.259127
Bennett J
[2006] EWHC 1514 (Admin), [2007] BLGR 274
England and Wales
Updated: 14 November 2022; Ref: scu.244685
The appeal is claimed to give rise to a general issue about the treatment of persons with Eritrean ancestral connections who have left the state of Ethiopia.
[2007] EWCA Civ 809, [2008] 3 WLR 1188, [2008] INLR 33, [2009] QB 1, [2008] Imm AR 128
England and Wales
Updated: 14 November 2022; Ref: scu.258470
[2007] EWCA Civ 770, [2007] 1 WLR 2891
England and Wales
Updated: 14 November 2022; Ref: scu.258391
[2007] EWCA Civ 315
England and Wales
Updated: 14 November 2022; Ref: scu.251384
The Asylum Support adjudicators had allowed appeals by the asylum failed seekers, and had awarded them support. The Secretary of State now appealed. The failed asylum seekers had been unable to leave the country and having been refused support were destitute.
Held: The decisions had been wrong. The decision fell to be made in stages. First, was he but no longer, an asylum seeker, and his claim for asylum was rejected. Secondly, was he destitute? Third, did he meet any of the conditions under regulation 3(2). Reg 3(2)(b) asked that the applicant be unable to leave the country ‘by reason of a physical impediment to travel or for some other medical reason’, and the limb is sub-divided by reference to the alternatives of ‘a physical impediment to travel’, or ‘some other medical reason’. The decision maker must take a two stage approach, asking first whether he was unable to leave, and then as to the reason. The words were to be given their ordinary meaning. ‘Unable’ means the same as ‘not able’ but is different from ‘impossible’: ‘To substitute an absolute test of impossibility in the literal sense of that word would be to put it too high. ‘
Holman J
[2006] EWHC 1248 (Admin), Times 11-Jul-2006
Immigration and Asylum Act 1999, Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 (SI 2005/930) 3
England and Wales
Cited – Moore v Electoral Registration Officer for Borders ScSf 1980
(Sheriff Court of Lothian and Borders) The court considered the construction of the words ‘unable or likely to be unable to go in person to the polling station’, so as to qualify somebody to apply for a postal vote under the 1949 Act. This led to . .
Cited – Leeder v The Mayor, etc, of the Town of Ballarat East 1908
(Supreme Court of Victoria in Australia) The court considered the requirement of giving notice within a certain period of time to the municipality as a precondition of a person recovering damages from the municipality as a result of the state of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.242301
[2004] EWCA Civ 1726
England and Wales
Updated: 14 November 2022; Ref: scu.220571
Jaclson J
[2005] EWHC 3194 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.241531
Munby J
[2006] EWHC 799 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.241727
[2001] EWCA Civ 2094, [2002] Imm AR 356
England and Wales
Updated: 14 November 2022; Ref: scu.218672
[2001] EWCA Civ 2054
England and Wales
Updated: 14 November 2022; Ref: scu.218667
The Respondent had authorised immigration officers to act in a way which would otherwise be a discrimination against Tamils under the 1976 Act. They complained that authorisations had been effectively and unlawfully delegated.
Held: The evaluations would in practice be carried out by individual immigration officers, and the decisions would be theirs. The authorisation therefore involved an improper delegation of the respondents powers. It was not justified as a legitimate way of achieving the respondents targets. A licence to discriminate should be expected to be subject to strict control, and parliament had intended that it be exercised by the respondent personally.
Forbes J
Times 30-Oct-2002, Gazette 14-Nov-2002, [2002] EWHC 2155 (Admin)
Race Relations Act 1976 19D, Race Relations (Amendment) Act 2000 1
England and Wales
Updated: 14 November 2022; Ref: scu.177842
[2004] EWHC 541 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.195544
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of State of the claim for asylum as having been determined. There is no reference to notification. The reference to ‘recorded’ is a formal criterion to be applied by looking at the records kept by the Secretary of State. It is used in contrast and contradistinction to any concept of notification.
Lord Justice Hobhouse, Lord Justice Brooke, Sir John Balcombe
Times 18-Mar-1998, [1998] EWCA Civ 409, [1999] QB 805
Income Support (General) Regulations 1987 70(3)(a)
England and Wales
Cited – Regina v Secretary of State for Social Security Ex Parte B and the Joint Council for the Welfare of Immigrants CA 27-Jun-1996
The Secretary of State had introduced regulations which excluded the statutory right to payment of ‘urgent case’ benefits for asylum seekers who had not claimed asylum immediately upon arrival, or whose claims for asylum had been rejected, and who . .
Cited – Regina v Secretary of State for Home Department ex parte Bawa Admn 27-Oct-1997
The court considered the effect of a decision letter issued by the Secretary of State but which was not sent to the applicant. Nevertheless it had the effect of stopping his benefits.
Held: The letter was clear and unambiguous; it is in no way . .
Cited – Regina v Secretary of State for Home Department ex parte Karaoui Admn 11-Mar-1997
The court considered the withdrawal of benefits for asylum seekers once their application had been determined. The court could see no significant difference between withdrawing benefits once the decision is made, even if the decision and/or the . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Onibiyo CA 28-Mar-1996
More than one asylum claim may be made, but they must be sufficiently different to justify a second claim. The court considered when an application could be treated as having been finally determined and when it was necessary for the Secretary of . .
Cited – Regina v Secretary of State for the Home Department ex parte Thirakumar and others CA 1989
After asylum application files had been considered by the Asylum Directorate the papers were returned to the immigration authorities at the relevant port of entry for the holding of a further interview with each of the applicants and the handing to . .
See Also – Regina v Secretary of State for Home Department ex parte Salem CA 19-Dec-1997
This was an appeal against refusal of leave to apply for a judicial review. The issue raised was parallel to issues raised in the Rafiq case which had been heard but on which judgment was presently reserved. The case revealed a real issue of law, . .
Cited – Regina v Secretary of State for the Home Department ex parte Anufrijeva HL 26-Jun-2003
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several . .
On appeal from – Regina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
Appealed to – Regina v Secretary of State for Home Department ex parte F S Salem Admn 11-Dec-1997
The applicant sought judicial review of a decision refusing him asylum. The decision had been made and his benefits stopped, but he was not given any detail of the notice for several months.
Held: The decision did appear to have been made and . .
See Also – Regina v Secretary of State for Home Department ex parte Salem CA 19-Dec-1997
This was an appeal against refusal of leave to apply for a judicial review. The issue raised was parallel to issues raised in the Rafiq case which had been heard but on which judgment was presently reserved. The case revealed a real issue of law, . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.143887
This was an appeal against refusal of leave to apply for a judicial review. The issue raised was parallel to issues raised in the Rafiq case which had been heard but on which judgment was presently reserved. The case revealed a real issue of law, and leave was granted.
Lord Justice Hirst, Lord Justice Robert Walker, Mr Justice Harman
[1997] EWCA Civ 3072
England and Wales
Appeal from – Regina v Secretary of State for Home Department ex parte F S Salem Admn 11-Dec-1997
The applicant sought judicial review of a decision refusing him asylum. The decision had been made and his benefits stopped, but he was not given any detail of the notice for several months.
Held: The decision did appear to have been made and . .
See Also – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Appealed to – Regina v Secretary of State for Home Department ex parte F S Salem Admn 11-Dec-1997
The applicant sought judicial review of a decision refusing him asylum. The decision had been made and his benefits stopped, but he was not given any detail of the notice for several months.
Held: The decision did appear to have been made and . .
See Also – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.143471
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are particular. There must be a good reason in the public interest for hearing such a case, and the House cited, as an example, a case: ‘where a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exists or are anticipated so that the issue will most likely need to be resolved in the near future.’
Lord Slynn of Hadleigh said: ‘My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v Millington (and the reference to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordships’ House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.’
Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Jauncey of Tullichettle, Lord Steyn and Lord Clyde
Gazette 03-Mar-1999, Times 12-Feb-1999, [1999] UKHL 8, [1999] 1 AC 450, [1999] 2 All ER 42, [1999] 2 WLR 483
England and Wales
On appeal from – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Cited – Ainsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
Cited – Sun Life Assurance Co of Canada v Jervis HL 1944
The parties had disputed the terms of an insurance policy. The House considered whether it could hear the case once the dispute had been settled.
Held: There was no remaining dispute for the House to settle. Viscount Simon LC said: ‘My Lords, . .
Cited – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Regina, (Ultraframe (UK) Ltd) v Central Arbitration Committee CA 22-Apr-2005
Two trade unions had sought recognition. Ballots had been held which almost secured recognition but fell a handful of votes short. The Unions criticised the way the ballots had been conducted, saying that a number of employees had not received . .
Cited – Harb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005
The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Cited – AVS v A NHS Foundation Trust and Another CA 17-Jan-2011
The claimant contracted sporadic Creutzfeldt Jakob’s Disease disease. He executed a Lasting Power of Attorney in favour of his brother, expressing to him that he should do whatever was possible to protract his life. The brother now sought treatment . .
Applied – Dolan and Others, Regina (on The Application of) v Secretary of State for Health and Social Care and Another CA 1-Dec-2020
Lockdown Measures not Ultra Vires the 1984 Act
The appellants, a businessman, and mother, appealed from refusal of leave to challenge regulations made in response to the Covid-19 pandemic on 26 March 2020 and since which introduced what was commonly known as a ‘lockdown’ in England. They . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.85536
The court considered the withdrawal of benefits for asylum seekers once their application had been determined. The court could see no significant difference between withdrawing benefits once the decision is made, even if the decision and/or the reasons have not yet been communicated to the applicant, and withdrawing them while the applicant pursues an appeal which in law he has a right to do. The purpose of the l996 Regulations was to deprive asylum seekers of benefits once a decision had been made by the Secretary of State. The only qualification was the requirement that the decision should be recorded. An asylum seeker was to be afforded benefits while the matter was being decided by the Secretary of State but not thereafter.
[1997] EWHC Admin 247
England and Wales
Cited – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.137192
[2021] UKAITUR DA002412019
England and Wales
Updated: 14 November 2022; Ref: scu.659939
[2021] UKAITUR HU129712019
England and Wales
Updated: 14 November 2022; Ref: scu.659970
[2021] UKAITUR PA032622019
England and Wales
Updated: 14 November 2022; Ref: scu.660004
[2021] UKAITUR PA125162017
England and Wales
Updated: 14 November 2022; Ref: scu.660032
[2021] UKAITUR PA132012018
England and Wales
Updated: 14 November 2022; Ref: scu.660033
[2021] UKAITUR HU088882019
England and Wales
Updated: 14 November 2022; Ref: scu.659962
[2013] EWCA Civ 125
England and Wales
Updated: 14 November 2022; Ref: scu.471650
The defendant appealed against his conviction in a case concerning the use of a false passport. The central issue was whether the appellant had a defence based upon the proposition that he was a refugee entitled to asylum in this country. He had been deported to Jamaica, but returned with a forged passport which was detected on entry. The court had rejected his argument that he was a refugee entitled to protection after fleeing gangs in Jamaica.
Held: On the evidence before the jury, there was no possible basis for classifying the appellant as a refugee.
Jackson LJ, Wyn Williams J, Beaumont QC HHJ
[2013] EWCA Crim 125, [2013] WLR(D) 22
Convention Relating to the Status of Refugees made at Geneva in 1951, Identity Documents Act 2010 4, Immigration and Asylum Act 1999 31
England and Wales
Cited – In re Acosta 1985
US Board of Immigration Appeals –
Held: ‘We find the well-established doctrine of ejusdem generis, meaning literally, ‘of the same kind,’ to be most helpful in construing the phrase ‘membership in a particular social group.’ That doctrine . .
Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Cited – Regina v Immigration Appeal Tribunal and Another ex parte Shah HL 25-Mar-1999
Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as . .
Cited – Regina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.471585
Maurice Kay VP began: ‘It is well-known that asylum applications, even when made promptly on arrival in this country, can take months or even years before final determination through the decision-making and appellate process. This causes familiar problems. Applicants require support and accommodation for substantial periods of time. When the time is particularly prolonged, features of private and family life may develop which themselves have to be considered as aspects of the applicant’s legal position. During the significant period of time when an applicant cannot be removed from the country, the question arises as to whether he should be permitted to take employment here. Different policy issues are in play. On the one hand, if he is permitted to work, the burden on the public finances will be relieved and he will have a more normal existence. On the other hand, British nationals and others with a right to seek employment here, including citizens of the European Union, will face increased competition for scarce jobs. Until recently, this aspect of asylum was largely a matter of domestic law, including any entitlement arising from the Human Rights Act 1998. However, the law now has a specific EU dimension. ‘
Maurice Kay VP, Rimer LJJ, Sir Stanley Burnton
[2013] EWCA Civ 151
England and Wales
Cited – ZO (Somalia) and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 28-Jul-2010
The Directive gave certain rights to asylum applicants. The claimants had applied for asylum, and on failing in their applications, renwewed them, claiming the rights under the Directive again. The respondent said that the rights applied only on a . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.471504
Pill, Richards, Davis LJJ
[2013] EWCA Civ 144
England and Wales
Appeal from – Aladeselu and Others (2006 Regs – Reg 8) Nigeria UTIAC 1-Jul-2011
UTIAC 1. For the purposes of establishing whether a person qualifies as an Other Family Member (OFM)/extended family member under regulation 8 of the Immigration (European Economic Area) Regulations 2006, the . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.471298
[2012] EWHC 3997 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.471256
[2013] EWHC 380 (Admin)
Updated: 14 November 2022; Ref: scu.471237
Outer House, Court of Session – The petitioner, from Afghanistan, sought asylum. The respondent decided to refuse the claim and remove the appellant to Afghanistan. He appealed to the First-tier tribunal on the grounds that he had a genuine fear of persecution if he were returned to Afghanistan, that he was a refugee and that his rights in terms of articles 2 and 3 of the Human Rights Convention would be breached if he were returned to Afghanistan.
Lord Bannatyne
[2013] ScotCS CSOH – 32
Updated: 14 November 2022; Ref: scu.471188
ECJ Regulation (EC) No 343/2003 (Dublin II) – Determining the Member State responsible for examining asylum applications lodged by unaccompanied minors who are third-country nationals – Several applications – Best interests of the minor
Cruz Villalon AG
C-648/11, [2013] EUECJ C-648/11
Updated: 14 November 2022; Ref: scu.471214
Residence and presence conditions – right to reside
[2013] UKUT 21 (AAC)
Updated: 14 November 2022; Ref: scu.471146
[2012] EWCA Civ 1894
England and Wales
Updated: 14 November 2022; Ref: scu.470977
[2013] EWHC 120 (Admin)
England and Wales
Updated: 14 November 2022; Ref: scu.471014
UTIAC 1. Azerbaijan is a country with high levels of corruption and there is clear evidence that political dissent is not tolerated.
2. There is nothing to indicate that the State would in any way penalise unmarried mothers (approximately 10% of mothers) or those who have mixed race children. There are in place some support mechanisms for single parents.
3. In order to access benefits, accommodation or work, a residence permit (a propiska) is required. There is nothing to indicate that Azerbaijanis who have lost their propiska would be unable to obtain a replacement. Children have access to education. There is some evidence that Government officials may require blat – a system of favours, from those who need to obtain housing or other benefits but there is nothing to suggest that that system is universal and would mean that those who refused to offer blat would be shut out from accommodation, schooling or other benefits.
4. Although the Azerbaijani Government has ratified most Conventions relating to human rights and the compliance with the norms therein is improving, the reality is that the improvement is from a low starting point. Many NGOs dealing with human rights exist in Baku and there is also an Ombudsman to whom complaints can be made.
5. Although in the early 1990’s there was discrimination against those of Russian ethnicity the situation for them was normalised by 1996. Ethnic Russians make up approximately 8% of the population. Prejudice may still exist but 80% of Ethnic Russians are in work – only slightly fewer than those in work in the population as a whole (83.7%).
6. There is some discrimination against Christians but there is freedom for Christians to practice their religion.
7. Azerbaijani society, particularly in rural areas, is traditional and attitudes to women are conservative – nevertheless approximately 10% of mothers are unmarried. Family support networks (krisha) are a strong feature of family life and benefit family members, for instance when obtaining work.
8. Although the concept of family honour among more traditional families in Azerbaijan (namus) exists there is nothing to indicate that there is a real risk of honour killings or other ill-treatment of those who are considered by members of their families to have brought dishonour on the family. Nor is there any indication that there would not be a sufficiency of protection for those women.
9. Azerbaijan is a traditional society and those who do not fit in, such as those of mixed race may well face discrimination and prejudice. Armenians and Lezghins are particularly likely to face discrimination.
10. There is nothing to indicate that a single parent without parental support or her child would face treatment which would either amount to persecution or cross the threshold of Article 3 ill treatment.
Freeman, McGeachy UTJJ
[2013] UKUT 46 (IAC)
England and Wales
Updated: 14 November 2022; Ref: scu.471000
The applicant challenged the defendant’s refusal of his naturalisation application.
Lang J
[2013] EWHC 279 (Admin)
Updated: 14 November 2022; Ref: scu.471023
Lord MacKay of Drumadoon, Lady Dorrian, Lord Marnoch
[2013] ScotCS CSIH – 8
Updated: 14 November 2022; Ref: scu.470957
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 letter of 19th May 2011, UKBA states that during an unspecified trial stage applicants will be contacted where mandatory evidence is missing from their applications and given the opportunity to provide this. UKBA is under a public law duty to give effect to this policy in all cases to which it applies.
As regards all other applications, to which the policy letter does not apply, UKBA case workers and decision makers must be aware of and give full effect to its ‘Evidential Flexibility’ policy document. This requires due appreciation of the discretionary powers enshrined therein to request further information from applicants in any case and the exercise thereof in accordance with established legal principles viz the duties to appreciate the existence of and correctly understand and give effect to the policy; to act fairly and rationally; to take into account all material considerations; to disregard immaterial considerations; to observe the requirements of a procedurally fair decision making process; and to act compatibly with such ECHR rights as may be engaged in a particular case, in accordance with section 6 of the Human Rights Act 1998.
McCloskey J, Spencer UTJ
[2013] UKUT 42 (IAC), [2013] INLR 467
England and Wales
Appeal from – 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 . .
At UTAA – 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.
Updated: 14 November 2022; Ref: scu.470861
[2012] UKSIAC 106/2011)
England and Wales
Updated: 14 November 2022; Ref: scu.470893
The appellant was vietnamese by birth, but had later been granted British Citizenship. The Secretary of State came to seek to deprive him of that citizenship on conducive grounds for reasons of national security, and his deportation to Vietnam. The appellant appealed saying that the notice would leave him stateless.
Held: If the result of the decision wold be to make him stateless, then an order could not be made. The court considered the state of Vietnamese law and practice in such circumstances: ‘Now that the Vietnamese government has received adequate information about the appellant, we are satisfied that it does not consider him to be a Vietnamese national under the operation of its law. Its decision may, to western eyes appear arbitrary. Nevertheless, for reasons which are more fully explained in the closed judgment, we are satisfied that that is the stance of the Vietnamese government. Given that both Vietnamese law and state practice give it that power, we must accept that it is effective. Accordingly, the answer to the preliminary question is that the decision of the Secretary of State to deprive the appellant of his citizenship on 22nd December 2011 did make him stateless and so is not permitted under section 40(4) of the 1981 Act.’
Mitting J, Allen UTJ, P Nelson
[2012] UKSIAC 114/2012)
British Nationality Act 1981 40(2), Immigration Act 1971 3(5)(a)
England and Wales
Appeal from – B2 v Secretary of State for The Home Department CA 24-May-2013
Appeal from the Special Immigration Appeals Commission in which the issue was whether the Secretary of State for the Home Department was entitled to deprive a British Citizen originating from Vietnam of British nationality following his alleged . .
See Also – Pham v The United States of America Admn 12-Dec-2014
The defendant appealed against an order for his extradition to the USA to face extra-territorial terrorist charges.
Held: The court dismissed the appeal: ‘whether the appellant is a British citizen or not makes no difference to his relevant . .
At SIAC – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 November 2022; Ref: scu.470891
[2012] UKSIAC 116/2012)
Updated: 14 November 2022; Ref: scu.470892
(Refusal of Entry – Dismissed)
[2012] UKSIAC 106/2011 – 2
Updated: 14 November 2022; Ref: scu.470898