Category: Immigration

Rajbhandari (PBS: Funds – Available) Nepal: UTIAC 8 Oct 2012

The court was asked as to the meaining of ‘having available’ in Appendix C of the Statement of Changes in Immigration Rules, HC 395 as amended, in its application to Tier 1 of the Points-Based Scheme.

Judges:

CMG Ockleton VP, Grubb UTJ

Citations:

[2012] UKUT 364 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466460

GS and EO (Article 3 – Health Cases) India: UTIAC 24 Oct 2012

UTIAC (i) The fact that life expectancy is dramatically shortened by withdrawal of medical treatment in the host state is in itself incapable of amounting to the highly exceptional case that engages the Article 3 duty.
(ii) There are recognised departures from the high threshold approach in cases concerning children, discriminatory denial of treatment, absence of resources through civil war or similar human agency.
(iii) Article 8 cases may also require a different approach and will do so where health questions arise in the context of obstacles to relocation.
(iv) Any extension of the principles set out in N v SSHD [2005] UKHL 31 and N v United Kingdom (2008) 47 EHRR 39 will be for the higher courts.

Judges:

Blake J P, Grubb, Kebede UTJJ

Citations:

[2012] UKUT 397 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Health

Updated: 09 November 2022; Ref: scu.466456

Regina (on The Application of Neisi) v Secretary of State for The Home Department: UTIAC 2 Nov 2012

Application for judicial review to challenge the decision of the Secretary of State refusing to treat his additional submissions as giving rise to a fresh claim under paragraph 353 of the Immigration Rules.

Judges:

Allen UTJ

Citations:

[2012] UKUT 367 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466466

Yarce (Adequate Maintenance: Benefits) Colombia: UTIAC 30 Nov 2012

UTIAC 1. The requirement to show that a person or persons can be maintained (or will maintain themselves) ‘adequately’ without recourse to public funds has long been a requirement of the immigration rules. It continues to be a requirement for various categories of person in the amended rules that came into force in July 2012. In order to establish that maintenance is ‘adequate’ under the rules as in force before 9 July 2012, an applicant needs to show that the resources available will meet or exceed the relevant income support level set by the United Kingdom government (KA (Pakistan) [2006] UKAIT 00065). A similar requirement is to be found in the definitions of ‘adequate’ and ‘adequately’ in paragraph 6 of the rules as amended in July 2012.
2. In calculating the level of resources that will be available to the applicant and any relevant family members, after the claimant’s hypothetical arrival in the United Kingdom, it may be necessary to consider the effect on such a member’s entitlement to benefits of income and/or capital.
3. Income support is a means-tested benefit. The general rule is that all income, including that from other social security benefits, is to be taken into account when calculating an individual’s entitlement to income support, unless a specific ‘disregard’ applies. A list of disregards is to be found in Schedule 9 to the Income Support (General) Regulations 1987. They include ‘voluntary payments’. For the purposes of the 1987 Regulations, a voluntary payment is a payment by a third party, without anything being obtained in return, tangible or otherwise (R v Doncaster Borough Council ex parte Boulton [1993] 25 HLR 195; R(H) 5/05).
4. Access to capital may have an effect upon a person’s means tested benefits, provided that the person concerned has a beneficial interest in the capital. At present, a person is not entitled to income support if he or she has such an interest in capital over andpound;16,000 (regulation 45 of the 1987 Regulations). Capital of less than andpound;6,000 has no effect on entitlement to income support. Capital of between andpound;6,000 and andpound;16,000 causes weekly income support to be reduced by andpound;1 for every andpound;250 or part of such capital (regulation 53).
5. If a person is given money in order for it to be used for a particular purpose and on condition that the money must be returned if not used for that purpose, then the money will be regarded as being held on trust by that person for that purpose and, if the purpose fails, on a resulting trust for the payer. It will accordingly, at least in general, not be treated as the person’s capital, since he or she has no beneficial interest in it (Barclays Bank Limited v Quistclose Investments Limited [1970] AC 567).
6. In considering the above matters in an immigration appeal, it is important to bear in mind (a) that the appellant carries the legal burden of proving that he or she meets the relevant requirements of the immigration rules; and (b) in the light of [19] of Mahad [2009] UKSC 16, any case that depends for its success upon a third party’s voluntary payment will need to be scrutinised with particular care. Much will turn on the credibility of the appellant, sponsor and third party, both generally and as to the specifics of the actual payments. The same is true in relation to any assertion that income paid to or capital or other sums held by a sponsor who is in receipt of benefits are to be treated as being subject to ‘Quistclose’ trusts. A specific decision in an individual’s favour by the Department for Work and Pensions (‘DWP’) will normally be determinative, unless it can be shown the DWP was materially misled. Conversely, the mere absence of an adverse DWP decision will not usually take the appellant’s case materially forward.
7. Because these issues involve mixed fact and law, an appellant in an immigration appeal must be able to demonstrate, either that the actual financial position, on arrival, will be such as to make it unnecessary to rely on benefits in order to provide a standard of living equivalent to that available on means tested benefits; or that the relevant law bears on the circumstances of the family in such a way that there will be no additional recourse to public funds in so relying.

Judges:

Storey, Peter Lane, Ward LJJ

Citations:

[2012] UKUT 425 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Benefits

Updated: 09 November 2022; Ref: scu.466468

Adamally and Jaferi (Section 47 Removal Decisions: Tribunal Procedures) Sri Lanka: UTIAC 15 Nov 2012

UTIAC When a removal decision purportedly under s 47 of the Immigration, Asylum and Nationality Act 2006 is made concurrently with a decision refusing further leave:
(i) the s 47 decision is unlawful, but
(ii) the decision refusing leave is a separate decision, that
(iii) requires determination;
(iv) s 85(1) of the Nationality, Immigration and Asylum Act 2002 brings the two decisions into one appeal, but
(v) s 86 of that Act allows and requires the determination to reflect differences in outcome.

Judges:

Ockleton VP, Hanson UTJ

Citations:

[2012] UKUT 414 (IAC)

Links:

Bailii

Statutes:

Immigration, Asylum and Nationality Act 2006 47

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466462

Kalidas (Agreed Facts – Best Practice) Tanzania: UTIAC 2 Nov 2012

UTIAC (1) Parties should assist the First-tier Tribunal at Case Management Review hearings (CMRs) to produce written confirmation of issues agreed and concessions made.
(2) If credibility is not in issue, it will often be unnecessary to submit a further statement by an appellant, or call her to give evidence. If this approach is taken, the judge should be told why.
(3) Any further statement should not be a rehash of what has already been said. It should be directed to the remaining live issues.
(4) Any skeleton argument should contain not just general law. It should be directed to the live issues.
(5) A judge who accepts and records an agreement is best placed to understand its scope, and should consider reserving the case to herself.
(6) Representatives are jointly responsible for drawing attention of the hearing judge to the agreement reached, and the nature of the decision still required.
(7) Judges look behind factual concessions only in exceptional circumstances. If the scope of a concession is unclear, or if evidence develops in such a way that its extent and correctness need to be revisited, the judge must draw that to attention of representatives. Adjournment may become necessary.

Judges:

Ockleton VP, MacLeman UTJ

Citations:

[2012] UKUT 327 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466464

HM and Others (Article 15(C)) Iraq CG: UTIAC 13 Nov 2012

UTIAC A. Law
a) The guidance as to the law relating to Article 15(c) of the Refugee Qualification Directive 2004/83/EC given by the Tribunal in HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) (‘HM1’) at [62]-[78] is reaffirmed. Of particular importance is the observation in HM1 that decision-makers ensure that following Elgafaji, Case C-465/07; [2009] EUECJ and QD (Iraq) [2009] EWCA Civ 620, in situations of armed conflict in which civilians are affected by the fighting, the approach to assessment of the level of risk of indiscriminate violence must be an inclusive one, subject only to the need for there to be a sufficient causal nexus between the violence and the conflict.
b) Given that country guidance cases may have an impact on a large number of asylum cases and appeals, their significance in saving costs in future cases, quite apart from their general importance, should require consideration of the grant of legal aid for representation in the public interest.
c) Whilst the Upper Tribunal will do all it can to ensure representation in a country guidance case, it cannot be excluded that in highly unusual circumstances such a case would proceed without claimant representation.
d) Though very considerable weight is almost always to be attached to UNHCR guidelines on risk categories in particular countries, it is not accepted that departure from the guidelines should only take place for a cogent and identified reason. Cases are to be decided on the basis of all the evidence and arguments presented to the Tribunal.
B. Country guidance
Whilst the focus of the present decision is the current situation in Iraq, nothing in the further evidence now available indicates that the conclusions that the Tribunal in HM1 reached about country conditions in Iraq were wrong.
As regards the current situation, the evidence does not establish that the degree of indiscriminate violence characterising the current armed conflict taking place in the five central governorates in Iraq, namely Baghdad, Diyala, Tameen (Kirkuk), Ninewah, Salah Al-Din, is at such a high level that substantial grounds have been shown for believing that any civilian returned there would solely on account of his presence there face a real risk of being subject to that threat.
Nor does the evidence establish that there is a real risk of serious harm under Article 15(c) for civilians who are Sunni or Shi’a or Kurds or have former Ba’ath Party connections: these characteristics do not in themselves amount to ‘enhanced risk categories’ under Article 15(c)’s ‘sliding scale’ (see [39] of Elgafaji).
Further evidence that has become available since the Tribunal heard MK (documents – relocation) Iraq CG [2012] UKUT 126 (IAC) does not warrant any departure from its conclusions on internal relocation alternatives in the KRG or in central or southern Iraq save that the evidence is now sufficient to establish the existence of a Central Archive maintained by the Iraqi authorities retaining civil identity records on microfiche, which provides a further way in which a person can identify themselves and obtain a copy of their CSID, whether from abroad or within Iraq.
Regarding the issue of whether there would be a risk of treatment contrary to Article 3 ECHR arising from returns from the UK to Baghdad Interna tional Airport (BIAP):
a. If a national of Iraq who has failed to establish that conditions inside Iraq are unsafe is compulsorily returned to Baghdad International Airport (BIAP) on either a current or expired Iraqi passport, there is no real risk of detention in the course of BIAP procedures (except possibly in respect of those who are the subject of a judicial order or arrest warrant). Nor is there such a risk if such a person chooses to make a voluntary return with a laissez passer document which can be issued by the Iraqi embassy in the UK.
b. If, however, such a person is compulsorily returned to BIAP without either a current or expired Iraqi passport, he may be at risk of detention in the course of BIAP procedures and it cannot be excluded that the detention conditions might give rise to a real risk of treatment contrary to Article 3 ECHR. Such a risk is however, purely academic in the UK context because under the current UK returns policy there will be no compulsory return of persons lacking such documents.

Judges:

Collins J, Storey, Allen UTJJ

Citations:

[2012] UKUT 00409 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466463

Mubu and Others (Immigration Appeals – Res Judicata) Zimbabwe: UTIAC 24 Oct 2012

UTIAC The principle of res judicata does not operate in immigration appeals.
The guidelines set out in Devaseelan [2002] UKIAT 00702; [2003] Imm AR 1 are always to be applied to the determination of a factual issue, the dispute as to which has already been the subject of judicial determination in an appeal against an earlier immigration decision involving the same parties. This is so whether the finding in the earlier determination was in favour, or against, the Secretary of State.

Judges:

Storey, O’Connor UTJJ

Citations:

[2012] UKUT 398 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466459

EH (Blood Feuds) Albania CG: UTIAC 15 Oct 2012

UTIAC While there remain a number of active blood feuds in Albania, they are few and declining. There are a small number of deaths annually arising from those feuds and a small number of adults and children living in self-confinement for protection. Government programmes to educate self-confined children exist but very few children are involved in them.
The existence of a ‘modern blood feud’ is not established: Kanun blood feuds have always allowed for the possibility of pre-emptive killing by a dominant clan.
The Albanian state has taken steps to improve state protection, but in areas where Kanun law predominates (particularly in northern Albania) those steps do not yet provide sufficiency of protection from Kanun-related blood-taking if an active feud exists and affects the individual claimant. Internal relocation to an area of Albania less dependent on the Kanun may provide sufficient protection, depending on the reach, influence, and commitment to prosecution of the feud by the aggressor clan.
International protection under the Refugee Convention, Qualification Directive or Articles 2 and 3 ECHR is not available to an appellant who is willing and intends to commit a revenge killing on return to his country of origin, by reference to that intention.
Where there is an active feud affecting an individual and self-confinement is the only option, that person will normally qualify for Refugee status.
In determining whether an active blood feud exists, the fact-finding Tribunal should consider:
(i) the history of the alleged feud, including the notoriety of the original killings, the numbers killed, and the degree of commitment by the aggressor clan toward the prosecution of the feud;
(ii) the length of time since the last death and the relationship of the last person killed to the appellant;
(iii) the ability of members of the aggressor clan to locate the appellant if returned to another part of Albania; and
(iv) the past and likely future attitude of the police and other authorities towards the feud and the protection of the family of the person claiming to be at risk, including any past attempts to seek prosecution of members of the aggressor clan, or to seek protection from the Albanian authorities.
In order to establish that there is an active blood feud affecting him personally, an appellant must produce satisfactory individual evidence of its existence in relation to him. In particular, the appellant must establish:
(i) his profile as a potential target of the feud identified and which family carried out the most recent killing; and
(ii) whether the appellant has been, or other members of his family have been, or are currently, in self-confinement within Albania.
Attestation letters from Albanian non-governmental organisations should not in general be regarded as reliable evidence of the existence of a feud.
Documents originating from the Albanian courts, police or prosecution service, if genuine, may assist in establishing the existence of a blood feud at the date of the document relied upon, subject to the test of reliability set out in A v Secretary of State for the Home Department (Pakistan) [2002] UKIAT 00439, [2002] Imm A R 318 (Tanveer Ahmed).
Unless factual, prompt and consistent, Albanian press reports will add little or no evidential weight in considering whether a feud exists.
Whether the feud continues and what the attitude of the aggressor clan to its pursuit may be will remain questions of fact to be determined by the fact-finding Tribunal.
This guidance replaces that contained in TB (Blood feuds – relevant risk factors) Albania CG [2004] UKIAT 000158.

Judges:

Gleeson, Peter Lane UTJJ

Citations:

[2012] UKUT 348 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466455

Jaff (S120 Notice; Statement of – Additional Grounds) Iraq: UTIAC 10 Sep 2012

UTIAC (i) In the absence of a s.120 notice and a statement of ‘additional grounds’, an appellant could not rely on the Immigration (European Economic Area) Regulations 2006 before the First-tier Tribunal as that had not formed part of his application for leave to remain made to the Secretary of State: Lamichhane v SSHD [2012] EWCA Civ 260 applied.
(ii) A statement of ‘additional grounds’ may be made in response to a s.120 notice at any time, including up to (and perhaps at the time of) the hearing of the appeal.
(iii) Although the legislative scheme prescribes no particular form in which a statement of ‘additional grounds’ must be made, such a statement must as a minimum set out with some level of particularity the ground(s) relied upon by the appellant as the foundation for remaining in the UK and upon which reliance has not previously been placed. It must ‘state’ the additional ground to be relied on in substance or, at least, in form.

Judges:

Grubb J

Citations:

[2012] UKUT 396 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466451

Ali (S120 – PBS) Pakistan: UTIAC 19 Oct 2012

UTIAC (1) In a PBS case the exception set out in section 85A(3) and (4) of the Nationality, Immigration and Asylum Act 2002 precludes a section 120 statement from being used in order to adduce evidence of compliance with a different requirement of the PBS.
(2) What is said in AQ (Pakistan) [2011] EWCA Civ 833 regarding the material date in respect of evidence adduced does not apply to s.85A cases.

Judges:

Allen, Chalkley UTJJ

Citations:

[2012] UKUT 368 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466454

MF (Article 8 – New Rules) Nigeria: UTIAC 31 Oct 2012

UTIAC Prior to the new immigration rules (HC 194) introduced on 9 July 2012, cases involving Article 8 ECHR ordinarily required a two-stage assessment: (1) first to assess whether the decision appealed against was in accordance with the immigration rules; (2) second to assess whether the decision was contrary to the appellant’s Article 8 rights.
The new immigration rules set out a number of mandatory requirements relating to claims reliant on Article 8 (‘Article 8 claims’) which make clear that if such requirements are not met, the Article 8 claim under the rules must be refused. They also contain related provisions which confer discretion but it is discretion to grant leave in response to an Article 8 claim only if the new mandatory requirements are met.
Whenever the new rules have application judges are obliged to consider whether an appellant can show he meets the relevant requirements (s.86(3)(a) of the Nationality, Immigration and Asylum Act 2002). Where the new rules afford some related discretion, judges are obliged to consider whether that discretion should have been exercised differently (s. 86(3)(6)). However, what judges are doing when they are conducting this exercise is simply applying the rules: the rules are the rules: see paragraph 10 Mahad [2009] UKSC 16. The fact that these rules in part refer expressly to Article 8 or to certain Article 8 concepts is incidental. The fact that as a result of these changes the rules are longer and incorporate some of the vocabulary of Article 8 makes no difference.
Because for most purposes the immigration rules must be given legal effect (see Odelola [2009] UKHL 25), their requirements for applicants making an Article 8 claim to show ‘exceptional circumstances’ or ‘insurmountable obstacles’ are to be understood as legal requirements in the same way as any other mandatory requirements of the rules.
However, the new rules only cover Article 8 claims brought under some, not all, Parts of the Rules and only accommodate certain types of Article 8 claims.
Even if a decision to refuse an Article 8 claim under the new rules is found to be correct, judges must still consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act ( see s.84(1)(c), (g) and (e) and s.86(2) and (3) of the 2002 Act) and, in automatic deportation cases, whether removal would breach a person’s Convention rights (s.33(2) UK Borders Act 2007). Thus in the context of deportation and removal cases the need for a 2 stage approach in most Article 8 cases remains imperative because the new rules do not encapsulate the guidance given in Maslov v Austria App no.1683/03 [2008] ECHR 546, which has been endorsed by the higher courts.
When considering Article 8 in the context of an appellant who fails under the new rules, it will remain the case, as before, that ‘exceptional circumstances’ is not to be regarded as a legal test and ‘insurmountable obstacles’ is to be regarded as an incorrect criterion.
However, as a result of the introduction of the new rules, consideration by judges of Article 8 outside the rules must be informed by the greater specificity which they give to the importance the Secretary of State attaches to the public interest. For example, the new rules set out thresholds of criminality by reference to terms of imprisonment so that Article 8 private life claims can only succeed if they not only have certain periods of residence but can also show their criminality has fallen below these thresholds.

Judges:

Storey, Coker UTJJ

Citations:

[2012] UKUT 393 (IAC)

Links:

Bailii

Statutes:

European Convention on Human Rights 8, Immigration Rules, Nationality, Immigration and Asylum Act 2002 86(3)(a)

Jurisdiction:

England and Wales

Citing:

Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 09 November 2022; Ref: scu.466458

HAA (S72: Overseas Conviction) Somalia: UTIAC 10 Oct 2012

UTIAC In cases where s 72 of the Nationality, Immigration and Asylum Act 2002 is invoked, it is important to see that the specific requirements of that section have been complied with. In particular, if the conviction was outside the United Kingdom, there must be either proof of the offence and sentence (s 72(3)), or certification under s 72(4)(b). It does not appear that the statute requires certification to be in the letter of refusal.

Judges:

CMG Ockleton VP, Grubb UTJ

Citations:

[2012] UKUT 366 (IAC)

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 72

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.466457

Bharadva, Regina (on The Application of) v Secretary of State for The Home Department: Admn 27 Oct 2010

Five separate applicants asked the court as to whether the Secretary of State had unlawfully failed to issue a removal decision. That removal decision might be a decision not to remove, it might be a decision to remove and to certify the removal decision as within the Act, or it may simply be a straightforward decision to remove which would carry with it an in country appeal to the Immigration and Asylum Tribunal.

Judges:

Burton J

Citations:

[2010] EWHC 3030 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.427008

Secretary of State for the Home Department v Regina (on the Application of) Lim and Another: CA 25 Jul 2007

The court considered the relationship between section 10 of the 1999 Act, and the appeal provisions in sections 82 and 92 of the 2002 Act and the extent to which, if any, a decision under section 10 of the 1999 Act could be challenged by judicial review rather than an out-of-country appeal.
Held: The court emphasised the appeal structure that Parliament had laid down in the 2002 Act with respect to various types of immigration decision. The courts had to respect that framework which was not open to challenge by way of judicial review unless there were special or exceptional factors at play.

Judges:

Sir Mark Potter P, Sedley LJ, Wilson LJ

Citations:

[2007] EWCA Civ 773

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 10, Nationality, Immigration and Asylum Act 2002 82 92

Jurisdiction:

England and Wales

Cited by:

Cited – RK (Nepal)), Regina (On the Application of) v Secretary Of State for the Home Department CA 30-Apr-2009
Different appeal channels should be distinct
The claimants had had conditional leave to enter and stay subject to conditions of which they were later in breach. Having been ordered to leave they now challenged the requirement that an appeal must be conducted from outside the UK.
Held: . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 November 2022; Ref: scu.258399

HA (Turkey) v Secretary of State for the Home Department: CA 29 Mar 2007

Renewed application for permission to appeal from a decision of the AIT allowing an appeal by the Secretary of State from decision of an adjudicator itself allowing the appeal on article 8 grounds alone being ‘a truly exceptional case’ in which removal of the applicants would not be within the range of reasonable assessments of proportionality, largely because the applicants had been in the United Kingdom for 14 years and 12 years respectively, and because of the strong ties between their children and this country and between the applicants and their children.

Citations:

[2007] EWCA Civ 337

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 09 November 2022; Ref: scu.251410

Atkinson v Secretary of State for the Home Department: CA 5 Jul 2004

The applicant sought judicial review of the respondent’s certification under s94 that his cliam for asylum was hopeless. He said that he had acted as an informer against criminal gangs in Jamaica, and that the state of Jamacia could not provide him effective protection if he was returned.
Held: Where a stste, though doing its best, fell below the basic standard of protecting its own citizens, it was arguable that a certificate should not be issued. The threshold to allow a certificate had not been crossed. The judge had to ask how an appeal to an adjudicator would be likely to fare.

Judges:

Lord Justice Thorpe Lord Justice Wall Lord Justice Scott Baker

Citations:

[2004] EWCA Civ 846, Times 20-Jul-2004

Links:

Bailii

Statutes:

Nationality Immigration and Asylum Act 2002 94

Jurisdiction:

England and Wales

Citing:

Appeal from – Atkinson, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Oct-2003
. .
Cited – Regina (on the application of L and another) v Secretary of State for the Home Department CA 2003
The court considered the circumstances under which a certificate that an asylum claim was clearly unfounded could be issued: ‘[In considering s115] the decision maker will (i) consider the factual substance and detail of the claim (ii) consider how . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .
Cited – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Regina on the Application of Ruslanas Bagdanavicius, Renata Bagdanaviciene v Secretary of State for the Home Department CA 11-Nov-2003
Failed Roma asylum applicants challenged an order for their return to Lithuania. There had been family objections to the mixed marriage leaving them at risk of violence from the local mafia, and an order for their return would infringe their article . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 November 2022; Ref: scu.198605

Regina ex parte Blackwood v Secretary of State for The Home Department: Admn 21 Jan 2003

The applicant had been brought to the UK in 1991 as a ten year old child with her asylum seeking parents. After mistreatment by her parents she had been brought up in care, and now had her own child. She had connections here. She resisted an order for her return to her country of origin.
Held: If any case was exceptional, this was, and she should not be subject to the system of forced dispersal. She had sought work, got a national insurance number and was on the electoral register. She would not now be regarded by the public as an asylum seeker.

Judges:

Collins J

Citations:

Times 10-Feb-2003, [2003] EWHC 97 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.179024

Regina v Immigration Appeal Tribunal, Secretary of State for Home Department ex parte Shah: Admn 25 Oct 1996

A wife, afraid with cause of being stoned to death for adultery if she returned home, was part of ‘a particular social group’ within the Convention, and was entitled to claim asylum. Commenting on the unique complexity of such cases: ‘Its adjudication is not a conventional lawyer’s exercise of applying a legal litmus test to ascertain facts; it is a global appraisal of an individual’s past and prospective situation in a particular cultural, social, political and legal milieu, judged by a test which, though it has legal and linguistic limits, has a broad humanitarian purpose.’

Judges:

Sedley J

Citations:

Times 12-Nov-1996, [1996] EWHC Admin 148, [1997] Imm AR 145

Statutes:

Geneva Convention and Protocol relating to the Status of Refugees 1951 (1951) (Cmd 9171) 1A(2), Asylum and Immigration Appeals Act 1993 8(2)

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.136696

Regina v Immigration Appeal Tribunal Secretary of State for Home Department ex parte Shah and Others: CA 23 Jul 1997

Even the justified fears of being stoned to death for adultery did not create a particular separate group from which protection from persecution could be claimed in support of an application for asylum. A ‘social group’ for refugee applicants, had to share common uniting characteristic which set that group apart from rest of that society. Unless the Convention is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism.

Judges:

Sedley J

Citations:

Times 13-Oct-1997, Gazette 24-Sep-1997, [1997] Imm AR 145, [1997] EWCA Civ 2173, [1998] 1 WLR 74

Statutes:

Geneva Convention and Protocol relating to the Status of Refugees 1951 (1951) (Cmd 9171) 1A(2), Asylum and Immigration Appeals Act 1993 8(2)

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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 – Sepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 November 2022; Ref: scu.86921

QC (Verification of Documents; Mibanga Duty): UTIAC 12 Jan 2021

Verification of documents
(1) The decision of the Immigration Appeal Tribunal in Tanveer Ahmed [2002] UKIAT 00439 remains good law as regards the correct approach to documents adduced in immigration appeals. The overarching question for the judicial fact-finder will be whether the document in question can be regarded as reliable. An obligation on the respondent to take steps to verify the authenticity of the document relied on by an appellant will arise only exceptionally (in the sense of rarely). This will be where the document is central to the claim; can easily be authenticated; and where (as in Singh v Belgium (Application No. 33210/11)), authentication is unlikely to leave any ‘live’ issue as to the reliability of its contents. It is for the tribunal to decide, in all the circumstances of the case, whether the obligation arises. If the respondent does not fulfil the obligation, the respondent cannot challenge the authenticity of the document in the proceedings; but that does not necessarily mean the respondent cannot question the reliability of what the document says. In all cases, it remains the task of the judicial fact-finder to assess the document’s relevance to the claim in the light of, and by reference to, the rest of the evidence.
The Mibanga duty
(2) Credibility is not necessarily an essential component of a successful claim to be in need of international protection. Where credibility has a role to play, its relevance to the overall outcome will vary, depending on the nature of the case. What that relevance is to a particular claim needs to be established with some care by the judicial fact-finder. It is only once this is done that the practical application of the ‘Mibanga duty’ to consider credibility ‘in the round’ can be understood (Francois Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367). The significance of a piece of evidence that emanates from a third party source may well depend upon what is at stake in terms of the individual’s credibility.
(3) What the case law reveals is that the judicial fact-finder has a duty to make his or her decision by reference to all the relevant evidence and needs to show in their decision that they have done so. The actual way in which the fact-finder goes about this task is a matter for them. As has been pointed out, one has to start somewhere. At the end of the day, what matters is whether the decision contains legally adequate reasons for the outcome. The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder’s overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome.

Citations:

[2021] UKUT 33 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 November 2022; Ref: scu.660043

BB, Regina (on The Application of) v Special Immigration Appeals Commission and Another: CA 19 Nov 2012

The Secretary of State wished to deport the applicant on the basis of his suspected involvement in acts of terrorism. An order for his deportation had been revoked by the respondent, but he had remained on very stringent bail conditions, since 2007.
Held: The case failed on the article 6 issue because (i) the decision to deport the appellant did not involve a determination of his civil rights and (ii) the grant of bail pending deportation (being ancillary to the deportation) did not do so either.

Judges:

Lord Neuberger MR, Hallett, McFarlane LJJ

Citations:

[2012] EWCA Civ 1499

Links:

Bailii

Statutes:

Immigration Act 1971 3(5)(a), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Maaouia v France ECHR 5-Oct-2000
A deportation order, made against a Tunisian, was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to . .
Cited – Ferrazzini v Italy ECHR 12-Jul-2001
(Grand Chamber) The court had to decide whether tax proceedings brought by the state against an individual involved the determination of a civil right within the meaning of article 6(1). It was argued by the Government that the existence of an . .
Cited – BB v Secretary of State for the Home Department SIAC 2-Nov-2007
The applicant had been made subject to orders restricting his freedom, being suspected of involvement with terrorist activity.
Held: He should be granted bail, but subject to stringent conditions. . .
Cited – Pomiechowski v The District Court In Legnica, 59-220 Poland Admn 9-Nov-2012
. .
Lists of cited by and citing cases may be incomplete.

Immigration, Crime, Human Rights

Updated: 06 November 2022; Ref: scu.465879

JE (Uganda) v Secretary of State for The Home Department: CA 14 Nov 2012

The short point raised by this appeal is whether an employer’s pension contributions form part of a person’s ‘earnings’ for the purpose of calculating whether he meets the requirements for leave to remain as a Tier 1 (General) Migrant under paragraph 245C of the Immigration Rules.

Judges:

Richards, Kitchin LJJ, Peter Smith J

Citations:

[2012] EWCA Civ 1437

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 November 2022; Ref: scu.465798

KA (Afghanistan) v Secretary of State for The Home Department: CA 6 Nov 2012

Citations:

[2012] EWCA Civ 1420

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – KA (Afghanistan) and Others v Secretary of State for The Home Department CA 25-Jul-2012
Child asylum applicants will be treated as young people and their whole history will be considered. . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 06 November 2022; Ref: scu.465558

AA, Regina (on The Application of) v Secretary of State for The Home Department: CA 26 Oct 2012

The applicant had been detained for immigration purposes, but it then transpired that, though unaccompanied on arrival, he was under 18, and should not have been detained. He was released after 13 days, but now sought judicial review.

Judges:

Arden, David LJJ, Baron J

Citations:

[2012] EWCA Civ 1383

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – AA, Regina (on The Application of) v Secretary of State for The Home Department SC 10-Jul-2013
The issue on this appeal is the effect of section 55 on the legality of the appellant’s detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he . .
Lists of cited by and citing cases may be incomplete.

Children, Immigration

Updated: 06 November 2022; Ref: scu.465366

Regina v Secretary of State for Home Department Immigration Appeals Tribunal ex parte Robinson: CA 11 Jul 1997

Where an asylum seeker was seeking to escape from persecution in one area of his home country, the court must ask if an escape to a safe area in his country of origin is available and appropriate. A failure of the country to which an asylum seeker would be returned to provide for the basic norms of civil political and socio-economic human rights would not constitute persecution under the Convention.

Judges:

Lord Wool MR, Potter, Brooke LJJ

Citations:

Times 01-Aug-1997, [1997] EWCA Civ 2089, [1998] QB 929, [1997] Imm AR 568, [1997] 3 WLR 1162, [1997] 4 All ER 210, [1997] INLR 182

Jurisdiction:

England and Wales

Cited by:

Cited – AE and FE v Secretary of State for the Home Department CA 16-Jul-2003
The appellants challenged orders denying them asylum status. The result would be to require them to return home but subject to relocation within a different geographical area.
Held: For the purposes of considering refugee status, the . .
Cited – MJ (Angola) v Secretary of State for The Home Department CA 20-May-2010
The applicant had been ordered to be deported and returned to Angola, but at the same time he was a detained mental patient. He argued that a return would breach his Article 8 rights.
Held: The respondent was entitled to decide to deport the . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 06 November 2022; Ref: scu.142486

HKK (Article 3: Burden/Standard of Proof): UTIAC 22 Oct 2018

(1) It has long been a requirement, found in the case law of the European Court of Human Rights (‘ECtHR’), for the government of a signatory state to dispel any doubts regarding a person’s claim to be at real risk of Article 3 harm, if that person adduces evidence capable of proving that there are substantial grounds for believing that expulsion from the state would violate Article 3 of the ECHR.
(2) This requirement does not mean the burden of dispelling such doubts shifts to the government in every case where such evidence is adduced, save only where the claim is so lacking in substance as to be clearly unfounded.
(3) Article 4.5 of the Qualification Directive (Council Directive 2004/83/EC) provides that, where certain specified conditions are met, aspects of the statements of an applicant for international protection that are not supported by documentary or other evidence shall not need confirmation.
(4) The effect of Article 4.5 is that a person who has otherwise put forward a cogent case should not fail, merely because he or she does not have supporting documentation. Nowhere in the Directive is it said that a person who has documentation which, on its face, may be said to be supportive of the claim (eg an arrest warrant or witness summons), but whose claim is found to be problematic in other respects, has nevertheless made out their case, so that the burden of disproving it shifts to the government.
(5) When national courts and tribunals are considering cases in which the ECtHR has decided to embark on its own fact-finding exercise, it is important to ensure that the ECtHR’s factual conclusions are not treated as general principles of human rights law and practice.

Citations:

[2018] UKUT 386 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 November 2022; Ref: scu.633769

Secretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union): ECJ 13 Sep 2016

The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom of movement, a right of residence must nevertheless be granted to a third-country national who is a family member of his since the effectiveness of citizenship of the Union would otherwise be undermined, if, as a consequence of refusal of such a right, that citizen would be obliged in practice to leave the territory of the European Union as a whole, thus denying him the genuine enjoyment of the substance of the rights conferred by virtue of his status.’

Citations:

C-304/14, [2016] EUECJ C-304/14, [2017] Imm AR 429, [2016] WLR(D) 482, [2017] INLR 400, [2017] QB 558, [2017] 1 CMLR 31, [2017] 2 WLR 180, ECLI:EU:C:2016:674

Links:

Bailii, WLRD

Jurisdiction:

European

Citing:

Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .

Cited by:

Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Cited – HC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 November 2022; Ref: scu.569383

Sanneh and Others v Secretary of State for Work and Pensions: CA 10 Feb 2015

The appeals concerned the question of whether ‘Zambrano carers’, who are non-EU citizens responsible for the care of an EU citizen child, are entitled to social assistance (that is, non-contributory welfare benefits) on the same basis as EU citizens lawfully resident here. Currently, Zambrano carers who are in need and unable to work receive benefits on a different and less generous basis, namely that on which social assistance is granted to third country nationals to whom the UK has not given unconditional leave to enter the UK or remain (i.e. leave without a restriction on access to public funds).

Judges:

Arden, Elias, Burnett LJJ

Citations:

[2015] EWCA Civ 49, [2015] 3 WLR 1867, [2016] QB 455, [2015] 2 CMLR 27, [2015] HLR 27, [2015] Imm AR 669, [2015] WLR(D) 61, (2015) 18 CCL Rep 5

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Sanneh, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 30-Apr-2012
Challenge to payment of Zambrano Income Support . .
Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .

Cited by:

Appeal from – HC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
Lists of cited by and citing cases may be incomplete.

Immigration, Benefits

Updated: 05 November 2022; Ref: scu.542442

George, Regina (on The Application of) v Secretary of State for The Home Department: CA 23 Oct 2012

The claimant had had indefinite leave to remain. He was convicted of a serious offence and ordered to be deported. He successfully appealed against that order, but now said that the effect of that was to revive his indefinite leave to remain.
Held: His appeal succeeded.

Judges:

Maurice Kay, Stanley Burnton LJJ, Sir Stephen Sedley

Citations:

[2012] EWCA Civ 1362, [2012] WLR(D) 290, [2013] Imm AR 197, [2013] 1 WLR 1319, [2013] INLR 281

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – George v Secretary of State for The Home Department Admn 9-Dec-2011
The claimant sought judicial review of the refusal to reinstate his indefinite leave to remain after successfully appealing against a deportation order.
Held: The claim failed. Bidder QC J said: ‘the wording of section 5 is tolerably clear and . .

Cited by:

Appeal from – George, Regina (on The Application of) v The Secretary of State for The Home Department SC 14-Mar-2014
The court was asked: ‘If a criminal who previously had leave to remain in this country is liable to deportation because of his offences, but cannot actually be deported because to remove him would infringe his rights under the European Convention . .
Lists of cited by and citing cases may be incomplete.

Immigration, Crime

Updated: 05 November 2022; Ref: scu.465111

Bhavyesh and Others, Regina (on The Application of) v Secretary of State for The Home Department: Admn 26 Jul 2012

Rolled up hearing for permission and, if permission be granted, the substantive hearing of a challenge to an amendment made in November 2010 to the Immigration Rules laid before Parliament by the respondent, Secretary of State. In essence, these claimants challenge those parts of the rules that require a person seeking entry clearance to join a spouse settled in the United Kingdom having to demonstrate an understanding of the English language and the British way of life subject to certain exceptions that are not material.
Held: Blake J said: ‘… members of such a class are the beneficiaries of a special legal regime, in a different position from either aliens or generally, or British citizens who fall altogether outside the scope of EU law. They are thus incapable of being a comparator class, or a group who are analogously situated with the claimants.’

Judges:

Blake J

Citations:

[2012] EWHC 2789 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Immigration, European

Updated: 05 November 2022; Ref: scu.464958

EM (Eritrea) and Others v Secretary of State for The Home Department: CA 17 Oct 2012

In each case asylum applicants, after losing their applications, resisted return to Italy, the country of first entry to the EU, saying that they faced inhuman or degrading treatment if returned. Each asserted that they would face destitution owing to inadequate medical care and welfare support in Italy.
Held: Their appeals failed. Whilst the court felt some discomfort with the result, it was a requirement that an person asserting such a risk must show that the risk resulted from systemic failures of the system in the receiving country.

Judges:

Richards, Sullivan LJJ, Sir Stephen Sedley

Citations:

[2012] EWCA Civ 1336, [2013] HRLR 1, [2012] WLR(D) 282, [2013] 1 WLR 576

Links:

Bailii, WLRD

Statutes:

Council Regulation (EC) 343/2003

Jurisdiction:

England and Wales

Cited by:

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

Immigration, Human Rights

Updated: 05 November 2022; Ref: scu.464935

Hristo Byankov v Glaven Sekretar Na Ministerstvo Na Vatreshnite Raboti: ECJ 4 Oct 2012

ECJ Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 27 – Administrative prohibition on leaving the territory on account of failure to pay a debt owed to a private legal person – Principle of legal certainty with regard to administrative acts which have become final – Principles of equivalence and effectiveness

Judges:

J.N. Cunha Rodrigues, P

Citations:

ECLI:EU:C:2012:608, [2013] QB 423, [2012] WLR(D) 269, [2013] 1 CMLR 15, [2013] 2 WLR 293, C-249/11, [2012] EUECJ C-249/11

Links:

WLRD, Bailii

Statutes:

Directive 2004/38/EC 27

European, Immigration

Updated: 05 November 2022; Ref: scu.464806

European Commission v Republic of Austria C-75/11: ECJ 4 Oct 2012

ECJ Failure of a Member State to fulfil obligations – Citizenship of the Union – Right to move and reside freely – Articles 20 TFEU and 21 TFEU – Discrimination on grounds of nationality – Article 18 TFEU – Directive 2004/38/EC – Article 24 – Derogation – Scope – Member State in which reduced fares on public transport are granted only to students whose parents are in receipt of family allowances in that Member State

Judges:

JN Cunha Rodrigues, P

Citations:

C-75/11, [2012] EUECJ C-75/11

Links:

Bailii

Jurisdiction:

European

Immigration

Updated: 05 November 2022; Ref: scu.464800

AAM (A Child) v Secretary of State for The Home Department: QBD 27 Sep 2012

The claimant sought damages, alleging false imprisonment and breach of article 5 of the European Convention on Human Rights. The defendant conceded that the detention had been unlawful because officers had wrongly applied a presumption that an asylum seeker who arrived clandestinely should be detained, but disputed that other grounds on which the claimant alleged that his detention were unlawful. The judgment was concerned with that dispute, which was thought to have a potential bearing on the assessment of compensation.
The police were called when the claimant went into a petrol station asking for food. He told the police through an interpreter that he was 15 years old and came from Iran. He was detained and the police notified the social services department of the local county council. A social worker conducted an age assessment and concluded that he was over 18. The police called the Border Agency and an immigration officer took the decision that he should be detained. The immigration officer gave evidence. The judge found that the decision to detain was unlawful because the immigration officer failed to ask herself the right questions or to take reasonable steps to acquaint herself with the information needed to make her decision. She did not know the requirements of a Merton-compliant assessment. A later re-assessment by social services concluded that the appellant was 17. At the trial it was accepted as a fact that he was 15 and that the way in which the first assessment had been carried out was defective.
Held: Lang J accepted that the proper interpretation of the policy set out in EIG paragraph 55.9.3.1, was did not impose a pre-condition that a Merton-compliant age assessment had been carried out. An immigration officer was required to make an independent evaluation and exercise his judgment in deciding whether or not the criteria in the paragraph were met. On the judge’s findings, the immigration officer lacked the training to have done so and failed the test. Her factual findings were sufficient to justify the conclusion that the decision to detain was unlawful.
Lang J concluded: ‘Unfortunately, the immigration officers did not have regard to the claimant’s status as a child, and the need to safeguard and promote his welfare as a child, when they made the decision to detain him, because they were under the mistaken belief that he was not a child.
However, he was in fact a child, within the meaning of the definition of ‘child’ in sub-section (6), and it is not possible to interpret this definition as if Parliament had included the words ‘appears to be a child’ or ‘is reasonably believed to be a child’. . My conclusion is that, by failing to have regard to the need to safeguard and promote his welfare as a child, the immigration officers erred in law, rendering the decision to detain unlawful.’

Judges:

Lang J

Citations:

[2012] EWHC 2567 (QB)

Links:

Bailii

Cited by:

Cited – AA, Regina (on The Application of) v Secretary of State for The Home Department SC 10-Jul-2013
The issue on this appeal is the effect of section 55 on the legality of the appellant’s detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he . .
Lists of cited by and citing cases may be incomplete.

Immigration, Children, Torts – Other, Human Rights

Updated: 05 November 2022; Ref: scu.464574

HID, BA v Minister For Justice, Equality And Law Reform, Ireland, Attorney General: ECJ 6 Sep 2012

ECJ Opinion – Application of a national of a third country seeking to obtain refugee status – National procedure applying an accelerated or prioritised procedure for examining applications by persons belonging to a certain category defined on the basis of nationality or country of origin

Judges:

Bot AG

Citations:

C-175/11, [2012] EUECJ C-175/11

Links:

Bailii

Jurisdiction:

European

Immigration

Updated: 05 November 2022; Ref: scu.464452

VT (Dublin Regulation: Post-Removal Appeal) Sri Lanka: UTIAC 10 Sep 2012

UTIAC (1) An out of country appeal may be made to the First-tier Tribunal by a person who has been removed to an EU member State pursuant to the Dublin Regulation (Council Regulation 343/2003/EEC). However, paragraph 6 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 precludes the appellant from bringing the appeal on any grounds that relate to the Refugee Convention, including human rights grounds which effectively ‘overlap’ with Refugee Convention issues. If the substance of a ground involves persecution for a Refugee Convention reason, paragraph 6 excludes that ground, whether or not the ground makes actual reference to the Refugee Convention.
(2) The effect of NS v Secretary of State for the Home Department [2011] EUECJ C-411/10 (21 December 2011) is to require paragraph 6 of Schedule 3 to be ‘read down’, where the EU State to which the appellant has been sent pursuant the Dublin Regulation is shown to be one whose asylum processes are experiencing major operational problems, involving systemic flaws in the asylum procedure and reception conditions for asylum applicants, resulting in inhuman or degrading treatment of asylum seekers transferred to that State. In order to establish such a state of affairs, there needs to be material of the kind referred to at [90] of NS, such as regular and unanimous reports of international non-governmental organisations bearing witness to the practical difficulties in the receiving State, UNHCR high-level pronouncements and EU Commission reports.
(3) Where such a ‘systemic deficiency’ in the asylum processes of the receiving State is found to exist, paragraph 6 of Schedule 3 is to be read down, so as to be compatible with EU law. In such circumstances, the Tribunal would, accordingly, allow the appeal, to the extent that the removal decision is held to be not in accordance with the law. It would then be for the respondent to secure the appellant’s return to the United Kingdom, where his or her claim to be in need of international protection would be substantively considered by the respondent and, if necessary, determined on appeal.
(4) Unless such a systemic deficiency can be shown, paragraph 6 of Schedule 3 applies, without qualification. It is not permissible to read down that provision on the basis only of evidence concerning the individual appellant.
(5) The effect of (2) to (4) above means that the same area of enquiry applies in appeals governed by Schedule 3, where a systemic deficiency is being asserted, as it does in a judicial review of the respondent’s decision to certify under paragraph 5 of Schedule 3, prior to a person’s removal from the United Kingdom. Where the Administrative Court has specifically addressed the issue in such proceedings, prior to the person’s removal, the Tribunal, in considering the out of country appeal brought by that person, should regard the Court’s findings as a starting point and as likely to be authoritative on the issue of systemic deficiency in the receiving State, insofar as those findings were based on the same or similar evidence as that before the Tribunal.

Judges:

Lane, McGeachu UTJJ

Citations:

[2012] UKUT 308 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 November 2022; Ref: scu.464260

Abdin (Domicile – Actually Polygamous Marriages) Bangladesh: UTIAC 10 Sep 2012

UTIAC Whilst the Private International Law (Miscellaneous Provisions) Act 1995 amended section 11(d) of the Matrimonial Causes Act 1973 so that a potentially polygamous marriage would not be void if either party was at the time of the marriage domiciled in England and Wales, it did not alter the position regarding actually polygamous marriages. Under section 11(d) of the 1973 Act a polygamous marriage entered into outside England and Wales shall still be void if either party at the time of the marriage was domiciled in England and Wales.

Judges:

Storey UTJ

Citations:

[2012] UKUT 309 (IAC)

Links:

Bailii

Statutes:

Private International Law (Miscellaneous Provisions) Act 1995, Matrimonial Causes Act 1973 11(d)

Jurisdiction:

England and Wales

Immigration, Family

Updated: 05 November 2022; Ref: scu.464258

Ferrer (Limited Appeal Grounds; Alvi) Philippines: UTIAC 1 Aug 2012

UTIAC (1) In deciding an application for permission to appeal the Upper Tribunal against the decision of the First-tier Tribunal, Immigration and Asylum Chamber, a judge of that Chamber should consider carefully the utility of granting permission only on limited grounds. In practice, such a limited grant is unlikely to be as helpful as a general grant, which identifies the ground or grounds that are considered by the judge to have the strongest prospect of success. In this way, the judge identifies the likely ambit of the forthcoming Upper Tribunal proceedings, which – if that Tribunal concurs – can then form the backdrop for the Upper Tribunal’s subsequent case management directions.
(2) Where the First-tier Tribunal judge nevertheless intends to grant permission only in respect of certain of the applicant’s grounds, the judge should make this abundantly plain, both in his or her decision under rule 25(5) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 and by ensuring that the Tribunal’s administrative staff send out the proper notice, informing the applicant of the right to apply to the Upper Tribunal for permission to appeal on grounds on which the applicant has been unsuccessful in the application to the First-tier Tribunal.
(3) If an applicant who has been granted permission to appeal to the Upper Tribunal on limited grounds only applies to the Upper Tribunal on grounds in respect of which permission has been refused, the Upper Tribunal judge considering that application should not regard his or her task as merely some form of review of the First-tier Tribunal’s decision on the application.
(4) Whatever may be the position in other Chambers of the Upper Tribunal, in the Immigration and Asylum Chamber the overriding objective of the Tribunal Procedure (Upper Tribunal) Rules 2008 is unlikely to be advanced by adopting a procedure whereby new grounds of appeal can be advanced without the permission of the Upper Tribunal under rule 5 of those Rules.
(5) The test enunciated by the Supreme Court in Alvi [2012] UKSC 33, for deciding whether material not contained in immigration rules can be relied upon by the Secretary of State in making decisions on the grant of leave to enter or remain, probes deeper than the ‘substantive/procedural’ test articulated in the wake of Pankina [2010] EWCA Civ 719, in that it articulates what makes a particular provision one that has to be included in immigration rules: namely, does it amount to a condition of succeeding under those rules? However, there may still be difficulties in determining whether a particular requirement amounts to such a condition or is merely a ‘procedural’ requirement.
(6) Applying Philipson (ILR – not PBS: evidence) [2012] UKUT 00039 (IAC), where the provisions in question are ambiguous or obscure, then it is legitimate to interpret the provisions by assuming that Parliament is unlikely to have sanctioned rules which (a) treat a limited class of persons unfairly; and (b) disclose no policy reason for that unfairness.

Judges:

Stoery, Peter Lane UTJJ

Citations:

[2012] UKUT 304 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 November 2022; Ref: scu.464255