Category: Immigration

N v Her Majestys Revenue and Customs (CHB) (European Union Law – Free Movement): UTAA 31 Jan 2021

A conventional street musician or `busker’, who solicits donations from passers-by, cannot be treated as a self-employed person for the purposes of Council Directive 2004/38/EC, and cannot, therefore, establish a right to reside as a self-employed `qualified person’ under the Immigration (EEA) Regulations 2006. A conventional street musician cannot satisfy the test for self-employment in Jany (ECJ Case C-268/99) due to the absence of any agreement as to remuneration.

Citations:

[2021] UKUT 28 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

European, Immigration

Updated: 06 October 2022; Ref: scu.659498

Bizimana, Regina (on The Application of) v Secretary of State for The Home Department: CA 2 Apr 2012

Appeal by a foreign national, who contends that his detention pending possible deportation was, or at least became, unlawful.

Judges:

Pill, Jackson, Sullivan LJJ

Citations:

[2012] EWCA Civ 414

Links:

Bailii

Statutes:

Immigration Act 1971 3(5)

Jurisdiction:

England and Wales

Torts – Other, Immigration

Updated: 06 October 2022; Ref: scu.452409

Al-Jedda v Secretary of State for The Home Department: CA 29 Mar 2012

The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order.

Judges:

Richards, Stanley Burnton, Gross LJJ

Citations:

[2012] EWCA Civ 358

Links:

Bailii

Statutes:

British Nationality Act 1981 40

Jurisdiction:

England and Wales

Citing:

At CA (1) – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
At Admn (1) – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
At HL – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
At SIAC (1) – Al-Jedda v Secretary of State for the Home Department SIAC 23-May-2008
The appellant had been granted british citizenship. He now appealed against a an order under section 40(2) of the 1981 Act depriving him of his British citizenship on the ground that the respondent was satisfied that deprivation was conducive to the . .
At SIAC (2) – Al-Jedda v Secretary of State for the Home Department SIAC 22-Oct-2008
The Court was asked whether or not the procedural protections afforded by Article 6(1) ECHRR as identified by the House of Lords in Secretary of State for the Home Department v MB [2007] UKHL 46 [2008] 1 AC 440 apply to the Appellant’s appeal . .
(at ECHR (1) – Al-Jedda v The United Kingdom ECHR 2-Mar-2009
The claimant, an Iraqi and British national complained of his arrest and internment on suspicion of terrorist involvement. . .
See Also – Al-Jedda v Secretary of State for Defence QBD 5-Mar-2009
The claimant, an Iraqi/British national complained of his detention in Iraq by the defendant without any due process. . .
At SIAC (3) – Al-Jedda v Secretary of State for the Home Department SIAC 7-Apr-2009
The appellant challenged an order made under the 1981 Act revoking his British citizenship, saying that it infringed his article 8 rights to family life. . .
See Also – Al-Jedda v Secretary of State for The Home Department CA 12-Mar-2010
The claimant appealed against a decision withdrawing his British citizenship, saying that this would leave him stateless. . .
See Also – Al-Jedda v Secretary of State for Defence CA 8-Jul-2010
Al Jedda, who had both Iraqi and British nationality, sought damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. . .
See Also – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
See Also – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
At SIAC (3) – Al-Jedda v Secretary of State for The Home Department (Deprivation of Citizenship Directions – Oral Ruling ) SIAC 7-Feb-2014
Order . .

Cited by:

Appeal from – Secretary of State for The Home Department v Al-Jedda SC 9-Oct-2013
The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .
At CA – Al-Jedda v Secretary of State for the Home Department SIAC 7-Apr-2009
The appellant challenged an order made under the 1981 Act revoking his British citizenship, saying that it infringed his article 8 rights to family life. . .
At CA – Al-Jedda v Secretary of State for Defence CA 8-Jul-2010
Al Jedda, who had both Iraqi and British nationality, sought damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. . .
At CA – Al-Jedda v Secretary of State for The Home Department CA 12-Mar-2010
The claimant appealed against a decision withdrawing his British citizenship, saying that this would leave him stateless. . .
At CA – Hilal Al-Jedda SIAC 18-Jul-2014
lSIAC Deprivation of Citizenship : Preliminary Issue . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 06 October 2022; Ref: scu.452361

Baylan (Turkish ECAA – ‘Identical’ Applications) Turkey: UTIAC 13 Mar 2012

UTIAC In dealing with Turkish ECAA cases, decision-makers must bear in mind the guidance given in EK (Ankara Agreement – 1972 Rules – construction) Turkey [2010] UKUT 425 (IAC).
Identicality or near-identicality in Turkish ECAA applications is not in itself a reason to find an applicant cannot succeed. However, it is apparent from the wording of paragraph 21 of HC510 and the underlying objective of the Association Agreement that the business plan must be shown to be viable in the context of an applicant’s own personal circumstances.

Judges:

Storey J

Citations:

[2012] UKUT 83 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 October 2022; Ref: scu.451920

Arusha and Demushi (Deprivation of Citizenship – Delay) Albania: UTIAC 13 Mar 2012

UTIAC (i) The following rulings made by the First-tier Tribunal on the nature and scope of an appeal against the deprival of citizenship under s.40 of the British Nationality Act 1981 were not challenged by either party before the Upper Tribunal:
(a) The Tribunal has a wide-ranging power to consider, by way of appeal not a review, what the decision in an appellant’s case should have been. The Tribunal has to ask itself ‘does the evidence in the case establish that citizenship was obtained by fraud?’ If it does then it has to ask ‘do the other circumstances of the case point to discretionary deprival?’
(b) In terms of the proof of fraud, the Tribunal will consider any evidence, whether or not available to the respondent at the time he made his decision, which is relevant to the determination of that question.
(c) It is for the respondent to prove that the appellant’s conduct comes within the scope of s.40 of the 1981 Act.
(d) The appellant can raise general human rights grounds but they must be framed to deal with the breach alleged to be caused by the decision to deprive the appellant of his nationality, and giving effect to that decision, and not framed to deal with the fiction that the appellant would be removed.
(ii) To establish that a delay in the promulgation of a decision has led to an error of law it has to be shown that the decision was not safe and therefore unlawful. There must be a nexus between the delay and the safety of the decision: see Secretary of State v RK (Algeria) [2007] EWCA Civ 868.

Judges:

Latter UTJ

Citations:

[2012] UKUT 80 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 October 2022; Ref: scu.451919

Dauhoo (EEA Regulations – Reg 8, ) Mauritius: UTIAC 13 Mar 2012

UTIAC Under the scheme set out in reg 8 (2) of the Immigration (European Economic Area) Regulations 2006, a person can succeed in establishing that he or she is an ‘extended family member’ in any one of four different ways, each of which requires proving a relevant connection both prior to arrival in the UK and in the UK:
i. prior dependency and present dependency
ii. prior membership of a household and present membership of a household
iii. prior dependency and present membership of a household;
iv. prior membership of a household and present dependency.
It is not necessary, therefore, to show prior and present connection in the same capacity: i.e. dependency- dependency or household membership-household membership ((i) or (ii) above). A person may also qualify if able to show (iii) or (iv).

Judges:

Storey P

Citations:

[2012] UKUT 79 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 October 2022; Ref: scu.451921

Shahzad (S 85A: Commencement) Pakistan: UTIAC 13 Mar 2012

UTIAC On its true construction, Article 2 of the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 amends s85 of the Nationality, Immigration and Asylum Act 2002 and introduces s85A in the 2002 Act only in relation to applications made to the Secretary of State on or after 23 May 2011.

Judges:

Ockleton VP

Citations:

[2012] UKUT 81 (IAC)

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 85A

Jurisdiction:

England and Wales

Immigration

Updated: 05 October 2022; Ref: scu.451923

Latif (S 120 – Revocation of Deportation Order) Pakistan: UTIAC 13 Mar 2012

UTIAC An individual who is the subject of a deportation order must apply for revocation of the order before making an application for entry clearance if he/she is not to be subject to a mandatory refusal under paragraph 320(2). He/she is not able to raise revocation in the grounds of appeal and rely on sectio 120 of the Nationality, Immigration and Asylum Act 2002, since, whilst sectio 120 requires the Tribunal to consider all of the grounds upon which an appellant wishes to rely, it is not a mechanism which permits an appellant to make an entirely new application to the Tribunal.

Judges:

Taylor UTJ

Citations:

[2012] UKUT 78 (IAC)

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 120

Jurisdiction:

England and Wales

Immigration

Updated: 05 October 2022; Ref: scu.451922

Abisoye (Entry Clearance Appeal – Tier 2) Nigeria: UTIAC 13 Mar 2012

UTIAC The effect of section 88A of the Nationality, Immigration and Asylum Act 2002 and the Immigration, Asylum and Nationality Act 2006 (Commencement No.8 and Transitional and Saving Provisions) Order 2008 is that a person refused entry clearance as a Tier 2 Migrant has a right of appeal limited to race discrimination and human rights grounds only.

Judges:

Kopieczek UTJ

Citations:

[2012] UKUT 82 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 October 2022; Ref: scu.451918

Sanade and Others (British Children – Zambrano – Dereci): UTIAC 7 Feb 2012

Section 32 of the UK Borders Act 2007 provides that where a person is sentenced to imprisonment of 12 months or more, he must be deported unless he falls within one of the statutory exceptions.
Article 8 provides one such exception but there is no justification for saying that it will only be in exceptional circumstances that removal will violate the family’s protected Article 8 rights or that the claim itself must be exceptional: the issue is whether the State can justify the interference as necessary, that is say a proportionate and fair balance in pursuit of a legitimate aim.
The more serious the offending, the stronger is the case for deportation, but Parliament has not stated that every offence serious enough to merit a penalty of twelve months or more imprisonment makes interference with human rights proportionate.
ZH (Tanzania) v SSHD [2011] UKSC 4 considered in what circumstances it was permissible to remove or deport a non-citizen parent where the effect would be that a child who is a citizen of the United Kingdom would also have to leave. The fact the children are British was a strong pointer to the fact that their future lies in the United Kingdom.
Case C-34/09 Ruiz Zambrano , BAILII: [2011] EUECJ C-34/09, now makes it clear that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, as a matter of EU law it is not possible to require the family as a unit to relocate outside of the European Union or for the Secretary of State to submit that it would be reasonable for them to do so.
Where in the context of Article 8 one parent (‘the remaining parent’) of a British citizen child is also a British citizen (or cannot be removed as a family member or in their own right), the removal of the other parent does not mean that either the child or the remaining parent will be required to leave, thereby infringing the Zambrano principle, see C-256/11 Murat Dereci, BAILII: [2011] EUECJ C-256/11. The critical question is whether the child is dependent on the parent being removed for the exercise of his Union right of residence and whether removal of that parent will deprive the child of the effective exercise of residence in the United Kingdom or elsewhere in the Union.
Where the claimant’s conduct is persistent and/or serious the interference with family life may be justified even it involves the separation of the claimant from his family who reasonably wish to continue living in the United Kingdom, Lee v SSHD [2011] EWCA Civ 348.
The principles for evaluating Article 8 claims in criminal deportation cases are to be found in the Strasbourg jurisprudence of Boultif v Switzerland (no.54273/00) [2001] ECHR 479; Uner v Netherlands (no 46410/99) [2006] ECHR 873 and Maslov v Austria (no. 1638/03) [2008] ECHR 546.
In cases of the importation and supply of significant quantities of Class A drugs, Strasbourg has recognised why states show great severity to such foreign offenders but there is no special principle in cases of importation or supply of drugs. Deportation must always be proportionate.

Judges:

Blake P

Citations:

[2011] UKUT 48 (IAC)

Links:

Bailii

Statutes:

UK Borders Act 2007 32, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Ruiz Zambrano (European Citizenship) ECJ 30-Sep-2010
ECJ Opinion – Articles 18, 20 and 21 TFEU – Fundamental rights as general principles of European Union law – Article 7 of the Charter of Fundamental Rights of the European Union – European citizenship – . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 05 October 2022; Ref: scu.451470

Fiaz (Cancellation of Leave To Remain – Fairness) Pakistan: UTIAC 22 Feb 2012

UTIAC i) An immigration officer has power to cancel a leave to remain which remains in force under article 13(5) of The Immigration (Leave to Enter) Order 2000 (SI 2000/1161).
ii) The provisions of that article are not unlawful for being ultra vires.
iii) A change of circumstances justifying cancellation exists where the basis for the grant of the leave has disappeared: SSHD v Boahen [2010] EWCA Civ 595 applied.
iv) It is possible that a change first occurring before and continuing after the grant of the leave may be ‘such a change in the circumstances of that person’s case since the leave was given that it should be cancelled’.
v) The powers of curtailment of leave to remain may overlap with the power to cancel leave.
vi) Where either power may be exercised it may be that the duty of fairness requires the leave to be curtailed rather than cancelled.
vii) It is material to whether fairness required curtailment rather than cancellation as to whether the change of circumstance was the responsibility of the claimant or not, and whether he had endeavoured to misrepresent the position during his examination.
viii) The jurisdiction to determine that a decision is not in accordance with the law because of a lack of fairness, is not to be degraded to a general judicial power to depart from the Rules where the judge thinks such a course appropriate, or to turn a mandatory factor into a discretionary one: fairness in this context is essentially procedural.

Judges:

Blake J, P

Citations:

[2012] UKUT 57 (IAC)

Links:

Bailii

Statutes:

Immigration (Leave to Enter) Order 2000 (SI 2000/1161) 13(5)

Jurisdiction:

England and Wales

Citing:

Cited – Secretary of State for The Home Department v Boahen CA 28-May-2010
The SSHD appealed against an order finding that its officer had acted without power in cancelling a valid visitor’s visa once granted. The officer had decided that the visit was not for the purpose stated.
Held: The appeal succeeded. The . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 October 2022; Ref: scu.451468

Kamran (UK NARIC – Incorporation In Rules) Pakistan: UTIAC 22 Feb 2012

UTIAC It cannot be said that UK NARIC has no role in judging the equivalence of a Tier 1 (General) Migrant applicant’s qualification if it is not a foreign qualification since paragraph 5 of Appendix A to HC 395, as amended, expressly gives it that role.

Judges:

Bannatyne L

Citations:

[2012] UKUT 58 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 October 2022; Ref: scu.451469

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 organisation which had in the past supported terrorism, and had first been excluded in 1997, but then the proscription had been quashed by the POAC.
Held: ‘It was a sad irony that, on the day following the tragic death of Marie Colvin, an intrepid journalist seeking to convey the truth of atrocities in Syria, this Court heard a case in which the Home Secretary seeks to uphold a restriction on the right of members of the Houses of Parliament to receive in the Palace of Westminster information from and the opinions of a prominent Iranian dissident whose country is an ally of the Syrian government. From the beginning, my heart has been with the Claimants, and I would dearly have liked to find in their favour. Reluctantly, however, I have concluded that it would be wrong to do so.
The Secretary of State is accountable for her decisions legally and politically. In my judgment, she has shown that her decisions are lawful. Her political accountability, for the wisdom or otherwise of her decisions, is to Parliament.’

Judges:

Stanley Burnton LJ, Underhill J

Citations:

[2012] EWHC 617 (Admin)

Links:

Bailii

Statutes:

Terrorism Act 2000 3, European Convention on Human Rights 9 10

Citing:

See Also – 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. . .
Cited – Tabernacle v Secretary of State for Defence CA 5-Feb-2009
The claimant sought judicial review to test the validity of the bye-laws which prohibited them from camping on public land to support their demonstration.
Held: The bye-laws violated the claimant’s right to freedom of assembly and of . .
Cited – The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) and Others CA 22-Feb-2012
The defendants sought to appeal against an order for them to vacate land outside St Paul’s Cathedral in London which they occupied as a protest.
Held: The application for leave to appeal failed. The only possible ground for appeal was on the . .
Cited – Vogt v Germany ECHR 1-Nov-1995
The German courts construed a teacher’s duty of loyalty as absolute and owed equally by every civil servant, regardless of his or her function and rank under national law. Every civil servant, whatever his or her own opinion on the matter, must . .
Cited – Ahmed And Others v The United Kingdom ECHR 2-Sep-1998
The restriction on local government officers and other against some political activities were not an infringement of their human rights and fell within the requirements for free expression and for free elections
‘The Court recalls that in its . .
Cited – Naik, Regina (on The Application of) v Secretary of State for The Home Department CA 19-Dec-2011
The claimant challenged the decision of the respondent to revoke his entry visa, saying ‘he was to be excluded ‘for engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred’.’
Cited – Matalulu v Director of Public Prosecutions 2003
(Supreme Court of Fiji) The court considered the nature of judicial control (if any) over decisions by authorities to commence prosecutions and said: ‘the polycentric character of official decision-making in such matters including policy and public . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – Zatuliveter v Secretary of State for The Home Department SIAC 29-Sep-2011
SIAC Deportation – The Hearing of An Application By The Appellant – Refused – the Court or Commission can make findings of primary facts from which it can decide the principal issue in controversy – recusal of . .

Cited by:

Appeal from – Lord Carlile of Berriew and Others, Regina (on The Application of) v Secretary of State for The Home Department CA 20-Mar-2013
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 . .
At Administrative Court – 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.

Immigration, Human Rights

Updated: 05 October 2022; Ref: scu.452181

Secretary of State for Work and Pensions v AS (CA) (Other Current Benefits, Residence and Presence Conditions): UTAA 4 Feb 2021

Can a person who would otherwise be a ‘person subject to immigration control’ under Immigration and Asylum Act 1999, s 115(9) rely on the provisions of SI 2000/636 which exempt a member of a family of a national of a state which is a party to the Oporto Agreement on the European Economic Area if the national has not exercised freedom of movement rights? CDLA/708/2007 followed, on additional grounds. JFP v Department for Social Development (DLA) [2012] NiCom 267 not followed.

Citations:

[2021] UKUT 24 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Benefits, Immigration, European

Updated: 04 October 2022; Ref: scu.659501

Goudey (Subsisting Marriage – Evidence) Sudan: UTIAC 16 Jan 2012

UTIAC i) GA (‘Subsisting’ marriage) Ghana * [2006] UKAIT 00046 means that the matrimonial relationship must continue at the relevant time rather than just the formality of a marriage, but it does not require the production of particular evidence of mutual devotion before entry clearance can be granted.
ii) Evidence of telephone cards is capable of being corroborative of the contention of the parties that they communicate by telephone, even if such data cannot confirm the particular number the sponsor was calling in the country in question. It is not a requirement that the parties also write or text each other.
iii) Where there are no countervailing factors generating suspicion as to the intentions of the parties, such evidence may be sufficient to discharge the burden of proof on the claimant.

Judges:

Blake J P, Juss DUTJ

Citations:

[2012] UKUT 41 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 October 2022; Ref: scu.450977

AA (Unattended Children) Afghanistan CG: UTIAC 1 Feb 2012

UTIAC (1) The evidence before the Tribunal does not alter the position as described in HK and Others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC), namely that when considering the question of whether children are disproportionately affected by the consequences of the armed conflict in Afghanistan, a distinction has to be drawn between children who were living with a family and those who are not. That distinction has been reinforced by the additional material before this Tribunal. Whilst it is recognised that there are some risks to which children who will have the protection of the family are nevertheless subject, in particular the risk of landmines and the risks of being trafficked, they are not of such a level as to lead to the conclusion that all children would qualify for international protection. In arriving at this conclusion, account has been taken of the necessity to have regard to the best interests of children.
(2) However, the background evidence demonstrates that unattached children returned to Afghanistan, depending upon their individual circumstances and the location to which they are returned, may be exposed to risk of serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection. Such risks will have to be taken into account when addressing the question of whether a return is in the child’s best interests, a primary consideration when determining a claim to humanitarian protection.

Judges:

Owen J, Jarvis UTJ

Citations:

[2012] UKUT 16 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 October 2022; Ref: scu.450982

OR (Student: Ability To Follow Course) Bangladesh: UTIAC 5 Nov 2011

UTIAC 1. The version of the rules in force on 6 February 2010 contained no general requirement that a student be able to follow the course for which he had been admitted.
2. The burden of proof as to change of circumstances since an entry clearance was granted lies on the respondent, and it is difficult to see that it can be discharged without some evidence of what the original circumstances were.

Judges:

Blake P J

Citations:

[2011] UKUT 166 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Education

Updated: 04 October 2022; Ref: scu.450985

Naz (Subsisting Marriage – Standard of Proof) Pakistan: UTIAC 16 Jan 2012

i) It is for a claimant to establish that the requirements of the Immigration Rules are met or that an immigration decision would be an interference with established family life. In both cases, the relevant standard for establishing the facts is the balance of probabilities.
ii) Post decision visits by a sponsor to his spouse are admissible in evidence in appeals to show that the marriage is subsisting: DR (ECO: post-decision evidence) Morocco * [2005] UKIAT 00038 applied.

Judges:

Blake J P, Juss DUTJ

Citations:

[2012] UKUT 40 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 October 2022; Ref: scu.450979

Mehmud (Timing of Deportation Notice) Bangladesh: UTIAC 19 Dec 2011

UTIAC (1) The Secretary of State may serve a deportation decision under s.32 of the UK Borders Act 2007 despite the fact that, unknown to her, the appellant had lodged a notice of application to appeal against conviction out of time.
(2) A notice of deportation can be revoked or the appeal adjourned pending an out of time challenge to the conviction on which automatic deportation depends.
(3) There is a strong public interest in deporting those whose entry has been obtained by fraud and who then participate in a large scale commercial fraud to facilitate illegal entry by use of fraudulent documents.

Judges:

Blake J P

Citations:

[2011] UKUT 486 (IAC)

Links:

Bailii

Statutes:

UK Borders Act 2007 32

Jurisdiction:

England and Wales

Immigration

Updated: 04 October 2022; Ref: scu.450986

Papajorgji (EAA Spouse – Marriage of Convenience) Greece: UTIAC 6 Jan 2012

i) There is no burden at the outset of an application on a claimant to demonstrate that a marriage to an EEA national is not one of convenience.
ii) IS (marriages of convenience) Serbia [2008] UKAIT 31 establishes only that there is an evidential burden on the claimant to address evidence justifying reasonable suspicion that the marriage is entered into for the predominant purpose of securing residence rights.
iii) The guidance of the EU Commission is noted and appended.
An Albanian woman who had been married to and living with a Greek man for 12 years and had two children with him was refused a visa to accompany him on a visit to this country on the ground that theirs was a marriage of convenience, a belief which, as the Upper Tribunal said, was on the information supplied with the application ‘simply ludicrous’ . There was no burden on the claimant in an application for a family permit to establish that she was not party to a marriage of convenience unless the circumstances known to the decision-maker gave reasonable ground for suspecting that that was the case. Where there was such a suspicion the matter required further investigation and the claimant should be invited to respond to by producing evidential material to dispel it. But suspicion was not enough. The claimant was only disqualified if it was established that the marriage was one of convenience. The question for the judge was ‘in the light of the totality of the information before me, including the assessment of the claimant’s answers and any information provided, am I satisfied that it is more probable than not this is a marriage of convenience?’

Judges:

Blake J P, Freemen UTJ

Citations:

[2012] UKUT 38 (IAC), [2012] Imm AR 3

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Sadovska and Another v Secretary of State for The Home Department SC 26-Jul-2017
The parties had applied to be married. S was a European citizen, and the intended groom was an overstayer from Pakistan. They were refused a licence, and taken into custody, and now appealed against refusal of a licence.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 04 October 2022; Ref: scu.450980

MT (Article 1F (A) – Aiding and Abetting) Zimbabwe: UTIAC 2 Feb 2012

UTIAC In the context of exclusion under Article 1F(a) of the 1951 Refugee Convention (Article 12(2)(a) of 2004/83/EC (the Refugee Qualification Directive):
i) The requirement set out at Article 7(1) of the International Criminal Court Statute (ICC Statute) that acts be ‘committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack’ (the ‘chapeau requirement’) is an essential element in the definition of a crime against humanity.
ii) In principle the question of whether acts are ‘committed as part of a widespread or systematic attacks directed against any civilian population’ is a matter that could be dealt with in future country guidance cases; although the question of whether there exist acts with such a nexus must ultimately be decided on a case-by-case basis.
iii) Commission of a crime against humanity or other excludable act can take the form of commission as an aider and abettor, as a subsidiary (or non-principal) form of participation. Drawing on international criminal law jurisprudence (as enjoined by R (JS) (Sri Lanka) v SSHD [2010] UKSC 15), aiding and abetting in this context encompasses any assistance, physical or psychological, that has a substantial effect on the commission of the crime, i.e. the contribution should facilitate the commission of a crime in some significant way.
iv) The fact that the Article 7(1)(a)-(g)list of acts capable of being crimes against humanity does not include the ‘cover-up’ of murders, whilst a surprising lacuna, should not be filled by judicial interpretation.
v) Duress is a defence to international criminal responsibility (see Article 31(1)(d) of the ICC Statute). Again, drawing on international criminal law jurisprudence, such a defence is confined to situations where the defendant’s freedom of will and decision is so severely limited that there is eventually no moral choice of counter activity available. It has four components: the threat must be of imminent death or continuing or imminent serious bodily harm; the threat must result in duress causing the crime; a threat results in duress only if it is otherwise avoidable (i.e. if a reasonable person in comparable circumstances would have submitted and would have been driven to the relevant criminal conduct); and the act directed at avoiding the threat must be necessary in terms of no other means being available and reasonable for reaching the desired effect.

Judges:

Latter SIJ

Citations:

[2012] UKUT 15 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights, Crime

Updated: 04 October 2022; Ref: scu.450984

Tabassum v The United Kingdom: ECHR 24 Jan 2012

Judges:

Lech Garlicki, P

Citations:

2134/10, [2012] ECHR 223

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Citing:

Appeal from – Tabassum, Regina (on The Application of) v Secretary of State for The Home Department Admn 15-Jul-2011
The claimant challenged his detention after completion of his sentence pending deportation to Pakistan. He said that he was in fact a British citizen, and Pakistan refused to accept that he was Pakistani. . .

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.

Human Rights, Immigration

Updated: 04 October 2022; Ref: scu.450707

Pham v The Secretary of State for The Home Department: CA 20 Sep 2018

Deprivation of citizenship – alleged involvement in terrorist training

Judges:

Arden, Singh, Coulson LJJ

Citations:

[2018] EWCA Civ 2064, [2018] WLR(D) 594, [2019] 1 WLR 2070, [2019] Imm AR 296, [2019] 4 All ER 199, [2019] INLR 327

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Immigration, Crime

Updated: 04 October 2022; Ref: scu.622625

Groupe D’Information Et De Soutien Des Immigres (Gisti) v Ministre De L’Interieur: ECJ 27 Sep 2012

ECJ Applications for asylum – Directive 2003/9/EC – Minimum standards for the reception of asylum seekers in the Member States – Regulation (EC) No 343/2003 – Obligation to guarantee asylum seekers minimum reception conditions during the procedure of taking charge or taking back by the responsible Member State – Determining the Member State obliged to assume the financial burden of the minimum conditions.

Judges:

J-C Bonichot P

Citations:

C-179/11, [2012] EUECJ C-179/11

Links:

Bailii

Statutes:

Directive 2003/9/EC, Regulation (EC) No 343/2003

Jurisdiction:

European

Immigration

Updated: 04 October 2022; Ref: scu.464583

New London College Ltd, Regina (on the application of) v Secretary of State for the Home Department: CA 2 Feb 2012

The court was asked whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non-EEA students lacked the necessary legislative authority because the system under which the decision was taken was contained in policy guidance, not in the Immigration Rules.
Held: Richards LJ looked at cases exploring the Pankina case, and held that the ratio had been correctly identified by Foskett J in English UK as relating to the substantive criteria for entitlement to leave to enter or remain. The particular issue was whether a substantive criterion laid down in the rules could be qualified by changeable policy guidance. Sedley LJ referred to ‘criteria affecting individuals’ status and entitlements’ saying this was the content of the substantive criteria themselves, not extraneous factors which might affect the ability of an applicant to fulfil the relevant criteria. The substantive criteria governing entitlement to leave to enter or remain as a Tier 4 (General) Student were laid down in the rules and were not supplemented or qualified by guidance. Whether the sponsor held a sponsor licence did have an indirect effect on an applicant’s entitlement, in that it affected his or her ability in practice to meet the criteria. It followed that the criteria for the grant, suspension or withdrawal of a sponsor licence would have that effect. But this was materially different from the substantive criteria and did not affect their content.

Judges:

Mummery, Richards, Rimer LJJ

Citations:

[2012] EWCA Civ 51, [2012] WLR(D) 21, [2012] PTSR D21

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Appeal from – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 7-Apr-2011
The respondent had suspended and revoked the licence of the claimant company to enrol non-EEA students on its courses. . .
Appeal from – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 19-Oct-2010
The claimant sought interim relief in relation to it’s Tier 4 Sponsor Licence (A rating). The Secretary of State through the UK Border Agency had suspended it, jeopardising the business of the claimant, which involved the provision of education to . .

Cited by:

Cited – 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 . .
Cited – Manchester College of Accountancy and Management, Regina (on The Application of) v Secretary of State for The Home Department Admn 1-Mar-2013
The college appealed against the revocation of its Tier 4 General (Student) Sponsor Licence.
Held: The challenge failed: ‘the Defendant was entitled on the evidence to conclude that the Claimant was not properly monitoring its students’ . .
Appeal from – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
Lists of cited by and citing cases may be incomplete.

Licensing, Immigration, Education

Updated: 04 October 2022; Ref: scu.450536

Secretary of State for The Home Department v SK (Sri Lanka): CA 19 Jan 2012

The secretary appealed against a decision quashing her refusal of a grant of citizenship to the respondent on the grounuds that she was not satisfied as to the respondent’s good character. He had been an active member of the Tamil Tigers who had been found responsible for the murder of prisoners or war and had been proscribed as a terrorist group.

Judges:

Richards, Hallett, Stanley Burnton LJJ

Citations:

[2012] EWCA Civ 16

Links:

Bailii

Statutes:

British Nationality Act 1981

Jurisdiction:

England and Wales

Immigration

Updated: 04 October 2022; Ref: scu.450424

Naik, Regina (on The Application of) v Secretary of State for The Home Department: CA 19 Dec 2011

The claimant challenged the decision of the respondent to revoke his entry visa, saying ‘he was to be excluded ‘for engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred’.’
Held: It is settled law that the Secretary of State has the power to make an exclusion decision.
Gross LJ set out the applicable principles: ‘(1) Principle and authority: As it seems to me, the legal framework for determining this issue is furnished by the principles or propositions which follow.
First, the State has the right to control the entry of non-nationals into its territory. This is hornbook law and requires no elaboration.
Secondly, where immigration control overlaps with or results in the engagement of Art. 10 rights of freedom of expression (as it does or as must be assumed here), such control must be exercised consistently with the State’s Convention obligations.
i) To the extent that authority is needed, this proposition enjoys the support of Farrakhan [2002] EWCA Civ 606 [2002] QB 1391, . . whatever the doubts as to the status of Farrakhan as a precedent on the question of whether Art. 10 is engaged in the case of an alien outside the country, I do not think that such doubts weaken the authority of Farrakhan where Art. 10 is (or is assumed to be) engaged.
ii) Mr. Husain QC, for Dr Naik, contended vigorously that this was not an immigration case at all. I respectfully disagree. To begin with, I prefer to focus on the substance of the matter, rather than the label to be attached to the case. More than that, this is undoubtedly an ‘immigration case’, at least in the sense that the SSHD was required to consider whether Dr Naik, a non-national, should be permitted entry into this country. The true analysis is that this is an immigration case but one where the exercise of immigration control overlaps with or results in the engagement of Art. 10 rights of freedom of expression. The task for the SSHD and the Courts – in their different spheres – is to consider both these important public interests.
Thirdly, Art. 10 rights of freedom of expression are of the first importance. These rights are not, however, absolute or unqualified, as Art 10.2 makes clear. The importance of rights of freedom of expression in a democracy requires no reiteration here. Likewise, the wording of Art. 10.2 speaks for itself.
Fourthly, resolution of any tension between the important interests of immigration control and freedom of expression is achieved by way of Art. 10.2. The application of the provisions of Art. 10.2 will determine whether or not the interference with freedom of expression is justified. The exceptions contained in Art. 10.2 must be construed strictly and the need for any restrictions must be convincingly established. This approach to the construction of Art. 10 is justified both by the structure of the Article and its context; it is moreover well-established in English authority and finds an echo in the Strasbourg jurisprudence cited to us . . Manifestly too, freedom of expression, if it is to have meaning, cannot be confined to those expressing palatable views; a degree of robustness is a healthy attribute of a democratic society.
Fifthly, decisions of the SSHD to refuse entry to this country to an alien on national security or public order grounds are entitled to great weight and must, by their nature, enjoy a wide margin of appreciation (or discretion). Let it be accepted that such decisions, when resulting in the engagement of Art. 10, warrant the most careful scrutiny on the part of the Court; crucially, even so, the decision-maker is the SSHD not the Court. As Carnwath LJ expressed it . . the Court is not substituting its own view for that of the SSHD. The Court’s task remains one of review. By way of elaboration:
i) The starting point is that the SSHD’s decisions in this area are entitled to ‘great weight’, to adopt, with respect, Lord Bingham’s wording in A v Secretary of State for the Home Department [2005] 2 AC 68, at [29]. For my part, I would regard this as self evident, given the subject-matter under consideration; the ‘cost of failure’ . . is a most pertinent consideration . .
ii) Given the nature of the decision, the SSHD must be accorded a wide margin of appreciation (or discretion). This is an area where, again adopting an observation of Lord Bingham (loc cit), ‘reasonable and informed minds may differ’. Take, for instance, the ‘Prevent’ strand in the UK government’s counter-terrorism strategy, to which reference was made in the evidence; judgment calls of no little difficulty will be required in determining the extent, nature and termination of engagement with those of extreme views. Further and as will be emphasised below, it is of the first importance that the Court does not substitute its views for those of the SSHD; a reminder that the SSHD enjoys a wide discretion serves as a useful warning to the Court against straying into territory more properly that of the SSHD.
iii) As it seems to me (and with great respect to the extensive discussion of such matters in the literature), it matters little whether an approach which accords great weight and a wide margin of appreciation to decisions of the SSHD in this area is best described in terms of ‘deference’ or ‘demarcation of functions’ (Lord Bingham, loc cit). The point is the same. Put simply and whether as a matter of ‘deference’ or ‘demarcation’, in areas such as national security or public order, the SSHD is likely to have advice and a perspective not or not readily available to the Court.
iv) Nothing in the above observations precludes the Court from reviewing the decision of the SSHD by reference to what Carnwath LJ has termed ([62] above) ‘public law and human rights principles’. Where Convention rights are involved, that review will be an ‘intensive review’: A v Secretary of State for the Home Department, supra, headnote at p.69. Such a review would (as appropriate, see Carnwath LJ at [48] above) extend to the rationality, legality, procedural regularity and proportionality of a Ministerial decision. If it is necessary, which I am not sure it is, to add descriptive phrases to ‘intensive review’, then, no doubt, intensive review will involve ‘the most careful scrutiny’: Cox v Turkey (supra), at [38].
v) But, whatever the intensity of the review, it is crucial that the Court should not substitute its views for those of the SSHD. The Court does not assume the role of the decision-maker; the Court’s task is and remains one of review. It follows that a measure of judicial reserve or restraint must be prudent in this sphere – serving to underline the Court’s proper role and to guard against usurping, however inadvertently, the role of the decision-maker. In any event, a Court will not lightly overturn a decision of the SSHD as to what is conducive to the public good, still less a decision made by the SSHD personally.’

Judges:

Carnwath, Jackson, Gross LJJ

Citations:

[2011] EWCA Civ 1546

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Naik v Secretary of State for The Home Department and Another Admn 5-Nov-2010
The claimant challenged an order preventing her visiting the UK on the grounds of it not being conducive to the public good. . .

Cited by:

Cited – Campbell (Exclusion; Zambrano) Jamaica UTIAC 21-Mar-2013
UTIAC 1. Exclusion decisions are not be confused with exclusion orders.
2. It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v . .
Cited – 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 . .
Cited – 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.

Immigration, Human Rights

Updated: 04 October 2022; Ref: scu.450110

Achughbabian v Prefet du Val-de-Marne: ECJ 6 Dec 2011

Achughbabia2ECJ2011

ECJ Area of freedom, security and justice – Directive 2008/115/EC – Common standards and procedures for returning illegally staying third-country nationals – National legislation making provision, in the event of illegal staying, for a sentence of imprisonment and a fine

Judges:

Skoris P

Citations:

[2011] EUECJ C-329/11, C-329/11

Links:

Bailii

Statutes:

Directive 2008/115/EC

Citing:

See Also – Alexandre Achughbabian v Prefet du Val-de-Marne ECJ 26-Oct-2011
ECJ Opinion – Directive 2008/115/EC – Return of illegally-staying third-country nationals – National legislation making provision for a term of imprisonment solely on the ground of illegal entry into or staying . .
Lists of cited by and citing cases may be incomplete.

European, Crime, Immigration

Updated: 04 October 2022; Ref: scu.450099

Daby (Forgery; Appeal Allowed; Subsequent Applications) Mauritius: UTIAC 16 Dec 2011

UTIAC Where an in-country application is refused on the ground that a document is false, and the respondent fails to prove the falsity before a Tribunal, with the result that an appeal against the refusal is allowed:-
(1) the respondent is obliged to comply with the terms of the Tribunal’s decision and make a grant in accordance with the original application;
(2) it may be open to a respondent to raise the question of the falsity of the document in response to any subsequent application.

Judges:

Ockleton VP, Jordan UTJ

Citations:

[2011] UKUT 485 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 October 2022; Ref: scu.450084

Haque (Adjournment for Asylum Interview) Bangladesh: UTIAC 16 Dec 2011

UTIAC An Immigration Judge is obliged to determine a ground of appeal brought under section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, even if the appellant raises for the first time in his grounds of appeal that he is a refugee. There is no obligation to adjourn any hearing before the First-tier Tribunal in order to allow the appellant to be interviewed by the Secretary of State.

Judges:

King J, Gill UTJ

Citations:

[2011] UKUT 481 (IAC)

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 84(1)(g)

Jurisdiction:

England and Wales

Immigration

Updated: 04 October 2022; Ref: scu.450085

Patel (Consideration of Sapkota – Unfairness) India: UTIAC 16 Dec 2011

UTIAC (1) There is no substantive segregation of considerations going to an extension of stay and removal where the appellant seeks leave to remain outside the rules on 395C factors and these are considered on their merits with the consequence that the respondent states removal will follow even if powers under s 47 of the Immigration, Nationality and Asylum Act 2006 are not formally used when the decision is made to refuse to vary leave to remain.
(2) The decision in Sapkota [2011] EWCA Civ 1320 is based on a public law duty to exercise s.47 powers where fairness requires it, having regard to the factors considered in Mirza [2011] EWCA Civ 159 and TE (Eritrea) [2009] EWCA Civ 174. It does not amount to an inflexible rule that the power must always be exercised.
(3) There was no unfairness where the Secretary of State and the judge considered the factors relevant to intended removal in the appeal against the decision to refuse to vary leave.
(4) It would be irrational to afford weight as a compassionate factor to the first appellant’s desire to continue to live and work in the United Kingdom when his leave had been as a working holiday-maker and he had obtained that leave by misrepresenting his true intentions.

Judges:

Blake J P, Perkins UTJ

Citations:

[2011] UKUT 484 (IAC)

Links:

Bailii

Statutes:

Immigration, Nationality and Asylum Act 2006 47

Jurisdiction:

England and Wales

Citing:

Cited – TE (Eritrea) v Secretary of State for the Home Department CA 11-Mar-2009
The applicant had been refused asylum, but because she was a minor had been given discretionary leave to remain. She applied for an extension, but after a two year delay, this was refused. She now said that both the respondent and the immigration . .
Cited – Sapkota and Another (Pakistan) v Secretary of State for The Home Department CA 15-Nov-2011
In each case, the respondent had refused an application for leave to remain, but had taken no prompt steps for their removal. The applicants now said that this rendered the original decision ‘not in accordance with the law’ under section 84(1)(e) of . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 04 October 2022; Ref: scu.450086

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 with a view to settlement, to produce a test certificate of knowledge of the English language to a prescribed standard.
Held: t Beatson J concluded that the fact that it might be possible to argue that the operation of the Rule was a disproportionate infringement of an individual’s article 8 rights did not render the Rule itself disproportionate.

Judges:

Beatson J

Citations:

[2011] EWHC 3370 (Admin), [2012] 2 All ER 653

Links:

Bailii

Statutes:

European Convention on Human Rights 8 12

Jurisdiction:

England and Wales

Cited by:

Appeal From – Bibi and Another, Regina (on The Application of) v Secretary of State for The Home Department CA 12-Apr-2013
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 . .
At first instance – 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.

Immigration, Human Rights, Discrimination

Updated: 01 October 2022; Ref: scu.450067

Alexandre Achughbabian v Prefet du Val-de-Marne: ECJ 26 Oct 2011

ECJ Opinion – Directive 2008/115/EC – Return of illegally-staying third-country nationals – National legislation making provision for a term of imprisonment solely on the ground of illegal entry into or staying in national territory – Compatibility

Judges:

Mazak AG

Citations:

C-329/11, [2011] EUECJ C-329/11

Links:

Bailii

Statutes:

Directive 2008/115/EC

Cited by:

See Also – Achughbabian v Prefet du Val-de-Marne ECJ 6-Dec-2011
Achughbabia2ECJ2011
ECJ Area of freedom, security and justice – Directive 2008/115/EC – Common standards and procedures for returning illegally staying third-country nationals – National legislation making provision, in the event of . .
Lists of cited by and citing cases may be incomplete.

European, Immigration, Crime

Updated: 01 October 2022; Ref: scu.449969

Thanigaikumaran and Others, Regina (on The Application of) v Secretary of State for The Home Department: Admn 20 Jun 2011

The court was asked whether the Secretary of State for the Home Department properly decided to grant leave to remain for five years, as opposed to indefinite leave to remain, to these claimants consequent upon their status as refugees being recognised; or whether such decision is flawed.

Judges:

David J

Citations:

[2011] EWHC 1701 (Admin)

Links:

Bailii

Immigration

Updated: 01 October 2022; Ref: scu.449860

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 the other statutory or regulatory provisions touching on the question of deportation and revocation strongly suggest that had it been Parliament’s intention that an appeal against the refusal to revoke a deportation order should automatically restore ILR it would have been a straightforward matter to achieve that. Instead, I am satisfied that, analogously to the position under rule 392, following a successful appeal, ILR remains revoked giving a discretion to the Secretary of State to determine whether to re-grant ILR or to give shorter discretionary leave.’
. . And ‘having concluded that the words of section 5 are clear and that there is no reason to imply that the effect of a successful appeal of a decision to refuse to revoke a deportation order is to revive ILR, neither do I find, either on principle, or in the particular circumstances of this case, that the Secretary of State was bound, once Immigration Judge Neuberger had allowed the Claimant’s appeal, to grant ILR. Indeed, having regard to the ‘borderline’ nature of that decision and the manifold uncertainties in and unpredictability of the Claimant’s private and family life and the question marks over his resolution to lead a law abiding life, the same policy reasons distinguished by successive judges in the cases I have cited above, convince me that the Secretary of State was acting lawfully and sensibly to confine her grant of leave to a discretionary six months in this case.’

Judges:

Bidder QC J

Citations:

[2011] EWHC 3247 (Admin)

Links:

Bailii

Statutes:

Immigration Act 1971 5, Nationality, Immigration and Asylum Act 2002 67 76

Cited by:

Appeal from – 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.
At first instance – 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: 01 October 2022; Ref: scu.449889

ABC (A Minor) (Afghanistan), Regina (on The Application of) v Secretary of State for The Home Department: Admn 6 Dec 2011

The application for judicial review raised issues about how the Home Secretary should deal with young persons who arrive in the United Kingdom and claim asylum when it is asserted they have committed a serious crime abroad.

Judges:

Jeremy Richardson QC J

Citations:

[2011] EWHC 2937 (Admin)

Links:

Bailii

Immigration

Updated: 01 October 2022; Ref: scu.449863

ST (Libya) v Secretary of State for the Home Department: CA 12 Jan 2007

Application for permission to appeal against the refusal of the Asylum and Immigration Tribunal to reconsider the adverse determination of an Immigration Judge itself given upon a reconsideration of the applicant’s asylum claim.

Citations:

[2007] EWCA Civ 24

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 October 2022; Ref: scu.248216

Regina v Diggines, ex parte Rahmani: CA 1985

R, had failed to attend the hearing of her appeal from a refusal to extend her stay in the UK. Her advisers had failed to note her new address and had been unable to notify her of the hearing. The appeal was dismissed in her absence. The adjudicator now appealed from the grant of judicial review of the decision.
Held: The adjudicator’s appeal failed. The decision to dismiss the claim had been made in breach of natural justice, and was accordingly void as being made without jurisdiction, and was properly quashed.
Although there was no error on the part of the adjudicator in holding that r 12 covered the case, the immigrants through no fault of their own had by his exercise of the r 12 power to dispense with a hearing suffered an infringement of the rule of natural justice.

Citations:

[1985] 2 WLR 611, [1985] 1 All ER 1073, [1985] QB 1109

Statutes:

Immigration Appeals (Procedure) Rules 1972 12

Jurisdiction:

England and Wales

Cited by:

Considered – Regina v Knightsbridge Crown Court, ex parte Johnson QBD 1986
J appealed from the magistrates court against his conviction. Due to a mix up at his solicitors, he was not informed of the hearing, and, on his non-attendance at the Crown Court, it refused an adjournment and decided the appeal against him. He now . .
Appal from – Rahmani and Others v Diggines HL 20-Mar-1986
The Court of Appeal had overturned the rejection of an administrative appeal from a deportation decision, on the ground that there had been a denial of natural justice when the person involved in an administrative appeal did not attend the hearing . .
Overruled – Al-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .
Lists of cited by and citing cases may be incomplete.

Immigration, Natural Justice

Updated: 01 October 2022; Ref: scu.646074

Rahmani and Others v Diggines: HL 20 Mar 1986

The Court of Appeal had overturned the rejection of an administrative appeal from a deportation decision, on the ground that there had been a denial of natural justice when the person involved in an administrative appeal did not attend the hearing through the negligence of her own immigration agents.
Held: The House affirmed the decision, but on the ground that the adjudicator had decided the case in purported exercise of a power which he did not have under the relevant statutory rules.
HL Immigration — Appeal — Immigration adjudicator — Jurisdiction to dispense with oral hearing — Conditions to be satisfied — No party to appeal requesting hearing — Applicants instructing Immigrants Advisory Service to lodge appeal and request oral hearing — Advisory service failing to record applicants’ change of address and unable to notify them of hearing date — Advisory service inviting adjudicator to dispense with oral hearing — Adjudicator dismissing appeal without hearing — Whether adjudicator entitled to dismiss appeal without hearing — Immigration Appeals (Procedure) Rules 1972, r 12.

Judges:

Lord Sarman

Citations:

[1986] 2 WLR 530, [1986] AC 475, [1986] 1 All ER 921, [1986] UKHL 12, [1986] Imm AR 195, [1986] 1 AC 475

Links:

Bailii

Statutes:

Immigration Appeals (Procedure) Rules 1972 12

Jurisdiction:

England and Wales

Citing:

Appal from – Regina v Diggines, ex parte Rahmani CA 1985
R, had failed to attend the hearing of her appeal from a refusal to extend her stay in the UK. Her advisers had failed to note her new address and had been unable to notify her of the hearing. The appeal was dismissed in her absence. The adjudicator . .

Cited by:

Overruled – Al-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .
Lists of cited by and citing cases may be incomplete.

Immigration, Natural Justice, Immigration

Updated: 01 October 2022; Ref: scu.559852

Small, Regina (on The Application of) v Secretary of State for The Home Department: Admn 18 Dec 2014

application for judicial review of a decision made by the Secretary of State to detain the claimant in immigration detention. The decision to detain the claimant was made against the background that just a week earlier, he had been released on bail from immigration detention subject to certain conditions. The first was a condition that he should report to the authorities on the day after the decision was made. The second condition was that he should reside and sleep overnight at a house that belonged to his aunt. His aunt stood as surety to his bail, and therefore had obligations to ensure that he adhered to those conditions.

Citations:

[2014] EWHC 4510 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Torts – Other

Updated: 01 October 2022; Ref: scu.542586

Mumtaz (S85A Commencement Order : Adjournment Hearing) Pakistan: UTIAC 2 Dec 2011

UTIAC The transitional provision in article 3 of the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011, concerning the commencement of s. 85A of the Nationality, Immigration and Asylum Act 2002 (Matters to be considered: new evidence: exceptions), adopts an unusual approach, in making the applicability of that section turn on whether there has been a hearing before the commencement date (23 May 2011). Whatever the problems such an approach may cause, it is plain that, for the purposes of article 3, an oral hearing at which an application for an adjournment was considered by a judge (and granted) was a hearing for the purposes of article 3, with the result that section 85A did not apply, so as to restrict the evidence that the judge could consider at the substantive hearing.

Judges:

Blake J, Macleman UTJ

Citations:

[2011] UKUT 472 (IAC)

Links:

Bailii

Statutes:

UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 3

Jurisdiction:

England and Wales

Immigration

Updated: 29 September 2022; Ref: scu.449425

MK (Best Interests of Child) India: UTIAC 2 Dec 2011

UTIAC i) The best interests of the child is a broad notion and its assessment requires the taking into account and weighing up of diverse factors, although in the immigration context the most important of these have been identified by the Supreme Court in ZH (Tanzania) [2011] UKSC 4, the Court of Appeal in AJ (India) [2011] EWCA Civ 1191 and by the Upper Tribunal in E-A (Article 8 -best interests of child) Nigeria [2011] UKUT 00315 (IAC).
ii) Whilst an important part of ascertaining what are the best interests of the child is to seek to discover the child’s own wishes and views (these being given due weight in accordance with the age and maturity of the child) the notion is not a purely subjective one and requires an objective assessment.
iii) Whilst consideration of the best interests of the child is an integral part of the Article 8 balancing exercise (and not something apart from it), ZH (Tanzania) makes clear that it is a matter which has to be addressed first as a distinct inquiry. Factors relating to the public interest in the maintenance of effective immigration control must not form part of the best interests of the child consideration.
iv) What is required by consideration of the best interests of the child is an ‘overall assessment’ and it follows that its nature and outcome must be reflected in the wider Article 8(2) proportionality assessment. Consideration of the best interests of the child cannot be reduced to a mere yes or no answer to the question of whether removal of the child and/or relevant parent is or is not in the child’s best interests. Factors pointing for and against the best interests of the child being to stay or go must not be overlooked.
v) It is important when considering a child’s education to have regard not just to the evidence relating to any short-term disruption of current schooling that will be caused by any removal but also to that relating to the impact on a child’s educational development, progress and opportunities in the broader sense.

Judges:

Storey, Kebede UTJJ

Citations:

[2011] UKUT 475 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 29 September 2022; Ref: scu.449424

Aswatte (Fiance (E)S of Refugees) Sri Lanka: UTIAC 2 Dec 2011

UTIAC 1. The Immigration Rules make no provision for the admission of fiance(e)s of refugees who are in the United Kingdom with limited leave. In FH (Post-flight spouses) Iran [2010] UKUT 275 (IAC), the Upper Tribunal found that the spouse of a refugee with limited leave was in an unjustifiably worse position than the spouses of students, businessmen etc, where the immigration rules make provision for a spouse to enter with limited leave. Unlike such persons, the refugee could not return home to enjoy married life there.
2. By the same token, a refugee cannot return home in order to marry the fiance(e) and it may be unreasonable to expect the couple to marry in a third country. Where that is the case, and where all the requirements of paragraph 290 of the rules are met, save that relating to settlement, it is unlikely that it will be proportionate to refuse the admission of the fiance(e).

Judges:

Jarvis UTJ

Citations:

[2011] UKUT 476 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 29 September 2022; Ref: scu.449422

AMM and Others (Conflict; Humanitarian Crisis; Returnees; FGM) Somalia CG: UTIAC 28 Nov 2011

UTIAC 1) Whilst section 2 of the Human Rights Act 1998 and its associated case law requires United Kingdom tribunals in general to give effect to the jurisprudence of the European Court of Human Rights, including that Court’s guidance on how to approach evidence in international protection cases, the weighing of evidence and the drawing of conclusions as to the relative weight to be placed on items of evidence adduced before a United Kingdom tribunal are ultimately matters for that tribunal. Whilst the factual finding the Strasbourg Court has made as a result of applying its own guidance is something to which the domestic tribunal must have regard, pursuant to section 2, it is not bound to reach the same finding.
2) There is nothing jurisprudentially problematic with the Strasbourg Court’s judgment in Sufi and Elmi v the United Kingdom [2011] ECHR 1045, as regards Article 3 of the ECHR. The Court’s finding, that the predominant cause of the humanitarian crisis in southern and central Somalia was due to the current warring parties, meant that the high threshold (identified, inter alia, in N v United Kingdom [2008] ECHR 453) for finding an Article 3 violation in the case of naturally occurring phenomena did not need to be met.
3) That high threshold is, however, still capable of being crossed in cases of sufficient exceptionality. In deciding what constitutes an exceptional case, regard must be had to all the factors, including the actions of the parties to a conflict, albeit that those actions are not the predominant cause of the humanitarian crisis.
4) Despite the suggestion in the judgment in Sufi and Elmi that there is no difference in the scope of, on the one hand, Article 3 of the ECHR (and, thus, Article 15(b) of the Qualification Directive) and, on the other, Article 15(c) of the Directive, the binding Luxembourg case law of Elgafaji [2009] EUECJ C-465/07 (as well as the binding domestic authority of QD (Iraq) [2009] EWCA Civ 620) makes it plain that Article 15(c) can be satisfied without there being such a level of risk as is required for Article 3 in cases of generalised violence (having regard to the high threshold identified in NA v United Kingdom [2008] ECHR 616). The difference appears to involve the fact that, as the CJEU found at [33] of Elgafaji, Article 15(c) covers a ‘more general risk of harm’ than does Article 3 of the ECHR; that Article 15(c) includes types of harm that are less severe than those encompassed by Article 3; and that the language indicating a requirement of exceptionality is invoked for different purposes in NA v United Kingdom and Elgafaji respectively.
UTIAC
5) Article 10 of the Qualification Directive requires the holding of some sort of belief, comprising a coherent and genuinely held system of values, whether these be theistic, non-theistic or atheistic, and is not satisfied in the case of a person who holds no such belief. Social restrictions, such as bans on watching football or television, do not comprise an interference with the right to religion, in the case of a person whose religious etc beliefs do not require him or her to participate in those activities. It is immaterial that a person may be permitted, according to those beliefs, to participate in the activities concerned.
6) Even where the motivation for a law is religious, the religious aspect will not, without more, lay the basis of a claim to international protection in relation to anyone who might fall foul of that law. However, the more such religiously motivated laws interfere with someone’s ability to hold and practise their religious or other beliefs, the more intense will be the scrutiny.
7) The necessary religious element to satisfy Article 1(A) of the Refugee Convention is not satisfied solely by reference to the persecutor; but that element can be satisfied if the persecutor ascribes to the victim a perceived religious opinion.
UTIAC
8) There is no general legal principle that, in determining a person’s entitlement to international protection, the Tribunal must leave out of account any possibility of that person’s carrying out an act in the country of proposed return, which – if carried out in the United Kingdom – would constitute a criminal offence. A genuine conscientious objection to complying with unjust laws or demands may, however, provide an entitlement to such protection.
9) On the assumption that Al-Shabab’s likely behaviour towards those who transgress its rules is as found in this determination, the position is as ‘extreme’ as the factual basis in RT (Zimbabwe) [2010] EWCA Civ 1285. In the light of RT, a person from an Al-Shabab area who can show they do not genuinely adhere to Al-Shabab’s ethos will have a good claim to Refugee Convention protection, once outside Somalia (subject to internal relocation and exclusion clause issues), regardless of whether the person could and would ‘play the game’, by adhering to Al-Shabab’s rules. As can be seen from a comparison with Sufi and Elmi, the effect of RT is, accordingly, to take the Refugee Convention beyond the comparable ambit of Article 3 ECHR protection.
UTIAC
10) There is no legal burden on the Secretary of State to prove that there is a part of the country of nationality etc of an appellant, who has established a well-founded fear in their home area, to which the appellant could reasonably be expected to go and live. The appellant bears the legal burden of proving entitlement to international protection; but what that entails will very much depend upon the circumstances of the particular case. In practice, the issue of internal relocation needs to be raised by the Secretary of State in the letter of refusal or (subject to procedural fairness) during the appellate proceedings.
11) It will then be for the appellant to make good an assertion that, notwithstanding the general conditions in the proposed place of relocation, it would not be reasonable to relocate there. In an Article 3 claim, a similar position pertains, in that, although the test of reasonableness/undue harshness does not formally apply, unduly harsh living conditions etc – albeit not themselves amounting to a breach of Article 3 – may nevertheless be reasonably likely to lead to a person returning to their home area, where such a breach is reasonably likely.
12) An appellant who pursues their appeal on asylum and humanitarian protection grounds, following a grant of leave, is entitled to have their appeal decided on the hypothetical basis (if the facts so demonstrate) that family members would be reasonably likely to return with the appellant and that potential harm to those family members would cause the appellant to suffer persecution or Article 15(b) harm.
UTIAC
13) A person is not entitled to protection under the Refugee Convention, the Qualification Directive or Article 3 of the ECHR, on the basis of a risk of harm to another person, if that harm would be willingly inflicted by the person seeking such protection.
14) Article 8(1) of the Qualification Directive provides that Member States may determine that a person is not in need of international protection ‘if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. Article 8(3) states that Article 8(1) applies ‘notwithstanding technical obstacles to return to the country of origin’. Although the Court of Appeal in HH and Others [2010] EWCA Civ 426 found that Article 8 was ‘to do principally with internal relocation’, there is nothing in that judgment or in the Qualification Directive that demonstrates the Article is so confined, and it would be illogical for it to be so. Accordingly, difficulties in securing documentation to effect a return to a person’s home area may not entitle that person to international protection, whether or not there are real risks to that person in some other area of the country concerned.
15) In assessing the effect of an appellant’s lies (whether to the Secretary of State or a judicial fact-finder), it is unnecessary to construct a prescribed set of steps from the judgments of the Supreme Court in MA (Somalia) [2010] UKSC 49, particularly if they might lead to a ‘mechanistic’ rather than a holistic approach. The significance or ‘negative pull’ of the lie will possibly depend not only on the strength of the background evidence but on whether the lie – looked at in its own terms – is about an issue that is central to the disposition of the appeal. Where a person tells lies about issues which that person thinks are important to their claim but which, because of the passage of time or otherwise, are not, it is open to the Tribunal, given the earlier lies, to approach with caution the person’s evidence regarding matters that are central to the current claim.
UTIAC
Country guidance
Mogadishu
1) Despite the withdrawal in early August 2011 of Al-Shabab conventional forces from at least most of Mogadishu, there remains in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.
2) The armed conflict in Mogadishu does not, however, pose a real risk of Article 3 harm in respect of any person in that city, regardless of circumstances. The humanitarian crisis in southern and central Somalia has led to a declaration of famine in IDP camps in Mogadishu; but a returnee from the United Kingdom who is fit for work or has family connections may be able to avoid having to live in such a camp. A returnee may, nevertheless, face a real risk of Article 3 harm, by reason of his or her vulnerability.
UTIAC
3) Except as regards the issue of female genital mutilation (FGM), it is unlikely that a proposed return to Mogadishu at the present time will raise Refugee Convention issues.
Southern and central Somalia, outside Mogadishu
4) Outside Mogadishu, the fighting in southern and central Somalia is both sporadic and localised and is not such as to place every civilian in that part of the country at real risk of Article 15(c) harm. In individual cases, it will be necessary to establish where a person comes from and what the background information says is the present position in that place. If fighting is going on, that will have to be taken into account in deciding whether Article 15(c) is applicable. There is, likewise, no generalised current risk of Article 3 harm as a result of armed conflict.
5) In general, a returnee with no recent experience of living in Somalia will be at real risk of being subjected to treatment proscribed by Article 3 in an Al-Shabab controlled area. ‘No recent experience’ means that the person concerned left Somalia before the rise of Al-Shabab in 2008. Even if a person has such experience, however, he or she will still be returning from the United Kingdom, with all that is likely to entail, so far as Al-Shabab perceptions are concerned, but he or she will be less likely to be readily identifiable as a returnee. Even if he or she were to be so identified, the evidence may point to the person having struck up some form of accommodation with Al-Shabab, whilst living under their rule. On the other hand, although having family in the Al-Shabab area of return may alleviate the risk, the rotating nature of Al-Shabab leadership and the fact that punishments are meted out in apparent disregard of local sensibilities mean that, in general, it cannot be said that the presence of family is likely to mean the risk ceases to be a real one.
UTIAC
6) Al-Shabab’s reasons for imposing its requirements and restrictions, such as regarding manner of dress and spending of leisure time, are religious and those who transgress are regarded as demonstrating that they remain in a state of kufr (apostasy). The same is true of those returnees who are identified as coming from the West. Accordingly, those at real risk of such Article 3 ill-treatment from Al-Shabab will in general be refugees, since the persecutory harm is likely to be inflicted on the basis of imputed religious opinion.
7) Although those with recent experience of living under Al-Shabab may be able to ‘play the game’, in the sense of conforming with Al-Shabab’s requirements and avoiding suspicion of apostasy, the extreme nature of the consequences facing anyone who might wish to refuse to conform (despite an ability to do so) is such as to attract the principle in RT (Zimbabwe). The result is that such people will also in general be at real risk of persecution by Al-Shabab for a Refugee Convention reason.
8) The same considerations apply to those who are reasonably likely to have to pass through Al-Shabab areas.
9) For someone at real risk in a home area in southern or central Somalia, an internal relocation alternative to Mogadishu is in general unlikely to be available, given the risk of indiscriminate violence in the city, together with the present humanitarian situation. Relocation to an IDP camp in the Afgoye Corridor will, as a general matter, likewise be unreasonable, unless there is evidence that the person concerned would be able to achieve the lifestyle of those better-off inhabitants of the Afgoye Corridor settlements.
UTIAC
10) Internal relocation to an area controlled by Al-Shabab is not feasible for a person who has had no history of living under Al-Shabab in that area (and is in general unlikely to be a reasonable proposition for someone who has had such a history – see above). Internal relocation to an area not controlled by Al-Shabab is in general unlikely to be an option, if the place of proposed relocation is stricken by famine or near famine.
11) Within the context of these findings, family and/or clan connections may have an important part to play in determining the reasonableness of a proposed place of relocation. The importance of these connections is likely to grow, as the nature of the present humanitarian crisis diminishes and if Al-Shabab continues to lose territory.
12) Travel by land across southern and central Somalia to a home area or proposed place of relocation is an issue that falls to be addressed in the course of determining claims to international protection. Such travel may well, in general, pose real risks of serious harm, not only from Al-Shabab checkpoints but also as a result of the present famine conditions. Women travelling without male friends or relatives are in general likely to face a real risk of sexual violence.
13) An issue that may have implications for future Somali appeals is the availability of air travel within Somalia (including to Somaliland). Flying into Mogadishu International Airport is sufficiently safe. There is no evidence to indicate a real risk to commercial aircraft flying to other airports in Somalia.
Somaliland and Puntland
14) The present appeals were not designed to be vehicles for giving country guidance on the position within Somaliland or Puntland. There is no evidential basis for departing from the conclusion in NM and others, that Somaliland and Puntland in general only accept back persons who were former residents of those regions and were members of locally based clans or sub clans. In the context of Somali immigration to the United Kingdom, there is a close connection with Somaliland.
15) A person from Somaliland will not, in general, be able without real risk of serious harm to travel overland from Mogadishu International Airport to a place where he or she might be able to obtain an unofficial travel document for the purposes of gaining entry to Somaliland, and then by land to Somaliland. This is particularly the case if the person is female. A proposed return by air to Hargeisa, Somaliland (whether or not via Mogadishu International Airport) will in general involve no such risks.
Female genital mutilation
16) The incidence of FGM in Somalia is universally agreed to be over 90%. The predominant type of FGM is the ‘pharaonic’, categorised by the World Health Organisation as Type III. The societal requirement for any girl or woman to undergo FGM is strong. In general, an uncircumcised, unmarried Somali woman, up to the age of 39, will be at real risk of suffering FGM.
17) The risk will be greatest in cases where both parents are in favour of FGM. Where both are opposed, the question of whether the risk will reach the requisite level will need to be determined by reference to the extent to which the parents are likely to be able to withstand the strong societal pressures. Unless the parents are from a socio-economic background that is likely to distance them from mainstream social attitudes, or there is some other particular feature of their case, the fact of parental opposition may well as a general matter be incapable of eliminating the real risk to the daughter that others (particularly relatives) will at some point inflict FGM on her.

Judges:

Latter, Lane, Kekic UTJJ

Citations:

[2011] UKUT 445 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 29 September 2022; Ref: scu.449421

Kabaghe (Removal- No Consideration of Paragraph 395C) Malawi: UTIAC 2 Dec 2011

UTIAC 1) A person who has been removed from the United Kingdom pursuant to an immigration decision may not appeal against that decision to the First-tier Tribunal on human rights grounds (except where a human rights/asylum claim has been certified as clearly unfounded.
2) The statutory jurisdiction to consider whether an immigration decision is in accordance with the law includes consideration of whether the decision has been made fairly, because there is a public law duty on the Secretary of State to act fairly.
3) Where an appellant challenges a removal decision on the basis that it is unlawful and unfair, and gives an apparently credible account of the treatment constituting the unfairness, the judge is entitled to expect some form of evidential response from the respondent, identifying what happened and what factors informed the decision making. As the AIT held in EO (Turkey) [2007] UKAIT 00062, the respondent should demonstrate that the relevant considerations in paragraph 395C of HC 395 were taken into account, in reaching the decision that the appellant should be removed.

Judges:

Blake J, P, Macleman UTJ

Citations:

[2011] UKUT 473 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 29 September 2022; Ref: scu.449423