Category: Immigration

Izuazu (Article 8 – New Rules) Nigeria: UTIAC 30 Jan 2013

UTIAC 1. In cases to which the new Immigration Rules introduced as from 9 July 2012 by HC 194 apply, judges should proceed by first considering whether a claimant is able to benefit under the applicable provisions of the Immigration Rules designed to address Article 8 claims. Where the claimant does not meet the requirements of the rules it will be necessary to go on to make an assessment of Article 8 applying the criteria established by law. The Upper Tribunal observation in MF (Article 8-new rules) Nigeria [2012] [2012] UKUT 00393 (IAC) to the same effect is endorsed.
2. The procedure adopted in relation to the introduction of the new Rules provided a weak form of Parliamentary scrutiny; Parliament has not altered the legal duty of the judge determining appeals to decide on proportionality for himself or herself.
3. There can be no presumption that the Rules will normally be conclusive of the Article 8 assessment or that a fact-sensitive inquiry is normally not needed. The more the new Rules restrict otherwise relevant and weighty considerations from being taken into account, the less regard will be had to them in the assessment of proportionality.
4. When considering whether a decision is in accordance with the law, it has been authoritatively established by the higher courts that the test to be applied is not exceptional circumstances or insurmountable obstacles.
5. The UKBA continues to accept that EU law prevents the state requiring an EU law citizen from leaving the United Kingdom, although contends with good reason, that this is to be distinguished from a case where an independent adult can choose between continued residence in the United Kingdom or continued cohabitation abroad.

Judges:

Blake J P, Bannatyne L, Storey UTJ

Citations:

[2013] UKUT 45 (IAC)

Links:

Bailii

Statutes:

European Convention on Humane Rights 8, Immigration Rules

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 14 November 2022; Ref: scu.470860

Farshid Shirazi v Secretary of State for the Home Department: CA 6 Nov 2003

The applicant had commenced an appeal against the decision of the Immigration Appeal Tribunal, but left the country to try to visit Holland. He had been turned back,
Held: This action was not governed by the Part IV of the 1999 Act, and his appeal was not to be treated as abandoned.

Judges:

Lord Justice Mummery Lord Justice Sedley Mr Justice Munby

Citations:

[2003] EWCA Civ 1562, Times 27-Nov-2003, Gazette 02-Jan-2004

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 13 November 2022; Ref: scu.187559

Yerokun (Refusal of Claim; Mujahid) Nigeria: UTIAC 16 Dec 2020

The reasons given by the President in R (Mujahid) v First-tier Tribunal and SSHD [2020] UKUT 85 (IAC) are reinforced by two further factors: (1) Under s 104(4A) a human rights appeal is deemed to be abandoned if a period of leave, however short, is granted after the appeal is brought. It is inconceivable that it was intended that a refusal of an application accompanied by a grant of leave was intended to generate a right of appeal. (2) There is an inherent difference between an application and a claim and the refusal of the one does not imply or entail the refusal of the other, even where the application includes a claim.

Citations:

[2020] UKUT 377 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 13 November 2022; Ref: scu.660040

Mahmood (Paras S-LTR16 and S-LTR42; Scope) Bangladesh: UTIAC 7 Oct 2020

Paragraph S-LTR.1.6. of Appendix FM does not cover the use of false representations or a failure to disclose material facts in an application for leave to remain or in a previous application for immigration status.
Paragraph S-LTR.4.2. of Appendix FM is disjunctive with two independent clauses. The Home Office is consequently obliged to plead and reason her exercise of discretion to refuse an application for leave to remain based on one or both of those clauses.
The natural meaning of the first clause in paragraph S-LTR.4.2 requires that the false representation or the failure to disclose any material fact must have been made in support of a previous application and not be peripheral to that application.
The use of the words ‘required to support’ in the second clause in paragraph S-LTR.4.2 confirms a compulsory element to the use of the document(s) within the application or claim process, and the obtaining of the document(s) must be for the purposes of the immigration application or claim.

Citations:

[2020] UKUT 376 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 13 November 2022; Ref: scu.660037

Khatel and Others (S85A; Effect of Continuing Application) Nepal: UTIAC 28 Jan 2013

UTIAC (1) An application for further leave to remain is to be treated as a continuing application, starting with the date when it was first submitted and ending on the date when it is decided: AQ (Pakistan) v SSHD [2011] EWCA Civ 833.
(2) It follows that an appellant is not precluded by section 85(5) of the Nationality, Immigration and Asylum Act 2002 (as amended) from relying in an appeal upon evidence that was notified to the Secretary of State before the date of her decision.
(3) Where, in an application for leave as a Post-Study Work Migrant, the obtaining of the academic award needed to gain the requisite points is notified to the Secretary of State after the date when the application was first submitted but before a decision is made on the application, the requirement of Table 10, that the qualification is obtained within 12 months of making the application, is satisfied because the application is a continuing one until a decision upon it has been made.

Judges:

Blake J, Coker UTJ

Citations:

[2013] UKUT 44 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 13 November 2022; Ref: scu.470612

Samir (FTT Permission To Appeal: Time) Afghanistan: UTIAC 4 Jan 2013

UTIAC In a case where, following Boktor and Wanis (late application for permission) Egypt [2011] UKUT 00442 (IAC), a grant of permission has to be regarded as conditional upon a decision whether time should be extended, the latter decision is part of the original decision on the application. If the application was to the First-tier Tribunal, the decision as to time is therefore made by the First-tier Tribunal, and if the application is not admitted there is the possibility of renewal to the Upper Tribunal.

Judges:

CMGOckleton VP, Gill UTJ

Citations:

[2013] UKUT 3 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 13 November 2022; Ref: scu.470614

Dang (Refugee – Query Revocation – Article 3) Vietnam: UTIAC 28 Jan 2013

UTIAC A decision to revoke or refuse to renew a grant of asylum under paragraph 339A of the Immigration Rules only relates to the individual’s status under the Qualification Directive (European refugee status) and not his status under the Refugee Convention; further, it can only apply to cases in which the asylum application was made on or after 21 October 2004 and at least one of the provisions in sub-paragraphs (i)-(vi) of para 339A of the Immigration Rules applies.
If an individual was granted refugee status some time ago, there is no legal or evidential presumption that, for so long as he is a refugee under the Refugee Convention, removal would be in breach of Article 3. Whilst the past may be relevant in shedding light on the current situation and the prospective Article 3 risk, it remains the case that the question whether there is a real risk of Article 3 ill-treatment must be answered at the date of the hearing and is forward-looking.

Judges:

Ockleton VP, Gill UTJ

Citations:

[2013] UKUT 43 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 13 November 2022; Ref: scu.470611

Mohamad Zakaria: ECJ 17 Jan 2013

ECJ Regulation (EC) No 562/2006 – Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) – Alleged violation of the right to respect for human dignity – Effective judicial protection – Right of access to a court

Judges:

T. von Danwitz, P

Citations:

C-23/12, [2013] EUECJ C-23/12

Links:

Bailii

Statutes:

Regulation (EC) No 562/2006, Charter of Fundamental Rights of the European Union 47

Jurisdiction:

European

Immigration

Updated: 13 November 2022; Ref: scu.470207

Regina (Q) v Secretary of State for the Home Department; Regina (D) v Same; Regina (J) v Same etc: Admn 19 Feb 2003

The several applicants challenged the implementation of the section, which required an asylum seeker to make his application at the very first opportunity on arriving in the UK, and denied all benefit and support to those who did not do so. A form was completed by the officer, and followed strictly. They complained that the scheme had been introduced in a way which was unfair, and that it was unfair in not allowing any appeal.
Held: The system did not allow the collection of full information about the circumstances of the arrival, and did not give to the applicant a chance to respond to any doubts raised by the answers. The system provided no proper appeal, and the readiness of the respondent to listen to any further information was not a sufficient response.

Judges:

Collins J

Citations:

Times 20-Feb-2003, [2003] EWHC 195 (Admin), Gazette 19-Apr-2003, [2003] 3 WLR 365

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 55

Jurisdiction:

England and Wales

Citing:

Appealed to – Regina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .

Cited by:

Appeal from – Regina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 12 November 2022; Ref: scu.179541

ZS (Jamaica) and Another v Secretary of State for The Home Department: CA 13 Dec 2012

On a review of the legality of the Home Secretary’s application of a policy, the nature of the review is the traditional public law inquiry into whether the application of it was rational.

Citations:

[2012] EWCA Civ 1639

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – O, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Apr-2016
The appellant failed asylum seeker had been detained for three years pending deportation. She suffered a mental illness, and during her detention the medical advice that her condition could be coped with in the detention centre changed, recommending . .
Lists of cited by and citing cases may be incomplete.

Immigration, Administrative

Updated: 12 November 2022; Ref: scu.467103

MD Sagor: ECJ 6 Dec 2012

ECJ Area of freedom, security and justice – Directive 2008/115/EC – Common standards and procedures for returning illegally staying third-country nationals – National legislation providing for a fine which may be replaced by an order for expulsion or home detention

Judges:

A. Tizzano, P

Citations:

C-430/11, [2012] EUECJ C-430/11

Links:

Bailii

Statutes:

Directive 2008/115/EC

Jurisdiction:

European

Immigration

Updated: 12 November 2022; Ref: scu.467086

EG (Russia) and Another v Secretary of State for the Home Department: CA 3 Apr 2007

The claimant and her daughter sought asylum. She had fled Russia saying that she was in fear after refusing to sign medical certificates which would protect the sons of powerful Russians from conscription. The judge had criticised the continued involvement of the claimant in activities which put her at risk. That criticism had been built on by the AIT. That was wrong. The applicants might be encouraged to add these as additional grounds of appeal.

Judges:

Ward LJ, Sedley LJ

Citations:

[2007] EWCA Civ 354

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 12 November 2022; Ref: scu.251411

Ndwanyi (Permission To Appeal; Challenging Decision On Timeliness) Rwanda: UTIAC 30 Dec 2020

If a decision of the First-tier Tribunal that an application for permission to appeal was in time represents the clear and settled intention of the judge then, as it is an ‘excluded decision’ (see the Appeals (Excluded Decisions) Order 2009 (SI 2009/275, as amended), it may only be challenged by way of judicial review; that remains so even if both parties agree that the decision is wrong in law. Only if the judge has overlooked the question of timeliness and any explanation for delay will the grant be conditional upon the Upper Tribunal exercising a discretion to extend time (see Boktor and Wanis (late application for permission) Egypt [2011] UKUT 442 (IAC)).

Citations:

[2020] UKUT 378 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 11 November 2022; Ref: scu.660039

G M A (Demandeur D’Emploi) (Judgment): ECJ 17 Dec 2020

Reference for a preliminary ruling – Free movement of persons – Article 45 TFEU – Citizenship of the Union – Directive 2004/38 / EC – Right of residence for more than three months – Article 14 (4) (b) – Job seekers – Reasonable time to take note of job offers that may be suitable for jobseekers and to take measures enabling them to be hired – Requirements imposed by the host Member State on jobseekers during this period – Conditions of right of residence – Obligation to continue looking for a job and to have real chances of being hired

Citations:

ECLI:EU:C:2020:1037, C-710/19, [2020] EUECJ C-710/19

Links:

Bailii

Jurisdiction:

European

Immigration

Updated: 11 November 2022; Ref: scu.660723

DK and RK (Parliamentary Privilege; Evidence) India: UTIAC 27 Jan 2021

(1) Although the Upper Tribunal is not bound by formal rules of evidence, it cannot act in such a way as to violate Parliamentary privilege, whether that be to interfere with free speech in Parliament or by reference to the separation of powers doctrine. The Tribunal cannot interfere with or criticise proceedings of the legislature.
(2) Courts and tribunals determine cases by reference to the evidence before them and not by reference to the views of others, expressed in a non-judicial setting, on evidence which is not the same as that before the court or tribunal. Indeed, even if the evidence were the same, the court or tribunal must reach its own views, applying the relevant burden and standard of proof.

Citations:

[2021] UKUT 61 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 11 November 2022; Ref: scu.660042

SH (Serbia) v Secretary of State for the Home Department: CA 20 Feb 2007

There was a delay in processing the claimant’s asylum application before a decision was made to repatriate him. In the mantime he had come into a settled relationship with a woman here.

Judges:

Moses LJ

Citations:

[2007] EWCA Civ 314

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 10 November 2022; Ref: scu.251386

Ajoh, Regina (on the Application of) v Secretary of State for the Home Office: Admn 16 May 2006

Citations:

[2006] EWHC 1489 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appel from – AJoh, Regina (on the Application of) v Secretary of State for the Home Department CA 4-Jul-2007
The applicant complained of the delay in the processing of her asylum application.
Held: ‘It was reasonable to expect that both [the applicant] and her husband would be aware of her precarious immigration status’. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family

Updated: 10 November 2022; Ref: scu.242947

AH (Sudan) and Others v Secretary of State for the Home Department: CA 4 Apr 2007

Citations:

[2007] EWCA Civ 297, [2007] Imm AR 584, (2007) 151 SJLB 469

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – AH (Scope of S103A Reconsideration) Sudan IAT 19-Apr-2006
Mr Ockelton: ‘If (despite some material error of law) an issue or matter has been properly and satisfactorily dealt with in the first decision, there is no reason why further time should be spend on it in the reconsideration. Although the Tribunal . .

Cited by:

Appeal from – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 10 November 2022; Ref: scu.250984

Regina v Secretary of State for Home Department ex parte Ouanes: CA 7 Nov 1997

The phrase ‘particular social group’ in the Convention does not include groups which a person can choose to leave; It must be a fundamental characteristic of the person, not his job.

Citations:

Times 26-Nov-1997, Gazette 03-Dec-1997, [1997] EWCA Civ 2677

Statutes:

Convention and Protocol relating to the Status of Refugees 1951

Jurisdiction:

England and Wales

Immigration

Updated: 10 November 2022; Ref: scu.143076

Regina v Secretary of State for Home Department ex parte Danaei: CA 12 Nov 1997

An immigration adjudicator, after a hearing, had rejected the applicant’s asylum appeal, but accepted that he had left Iran because he had had an adulterous relationship;
Held: The Home Secretary was wrong to depart from the special adjudicator’s finding of fact without having good reason and where adjudicator had heard evidence in coming to his finding. The applicant’s subsequent application for special leave to remain could not be rejected by the Home Secretary on the ground that he did not accept that the applicant had had such a relationship.
Simon Brown LJ suggested that, unless ‘the adjudicator’s . . conclusion was . . demonstrably flawed’ or ‘fresh material has since become available’, the Home Secretary had to accept the adjudicator’s finding.

Judges:

Simon Brown LJ

Citations:

Times 03-Jan-1998, Gazette 10-Dec-1997, [1997] EWCA Civ 2704, [1998] INLR 124, [1998] Imm AR 84

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Secretary of State for Home Department ex parte Danaei Admn 20-Mar-1997
A Home Secretary must have evidence before rejecting special adjudicator’s findings of fact. . .
Appeal from – Regina v Secretary of State for Home Department ex parte Danaei Admn 8-Nov-1996
. .

Cited by:

Cited – Mackaill and Another, Regina (on The Application of) v Independent Police Complaints Commission Admn 6-Oct-2014
The three claimants were police officers. They met a senior MP at Sutton Coldfield. They emerged from the meeting and were said to have made misleading statements as to the content of the meeting. The IPCC referred the matters back to local forces . .
Cited – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 10 November 2022; Ref: scu.143103

Khattak, Regina (on The Application of) v Secretary of State for The Home Department (‘Eligible To Apply’- LTR – ‘Partner’): UTIAC 23 Feb 2021

An applicant is ‘eligible to apply for leave to remain as a partner’ within the meaning of para E-LTRPT.2.3 of Appendix FM only if it is readily apparent from the information contained in their application and any information available to the Secretary of State that they meet the autonomous definition of ‘partner’ in GEN.1.2. of Appendix FM unless the route under which the application is being made clearly provides for a different meaning of ‘partner’.

Citations:

[2021] UKUT 63 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 10 November 2022; Ref: scu.660046