UTIAC 1) Article 32 of the Refugee Convention applies only to a refugee who has been granted leave to enter and to stay in the United Kingdom in accordance with para 334 of the Immigration Rules: Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643 applied.
2) As Article 1A(2) of the Refugee Convention itself makes clear, in cases in which a claimant has more than one nationality, he will not qualify as a refugee if he can avail himself of the protection of another country of which he is a national.
3) In an asylum appeal in which the claimant has only one country of nationality (country A), it is permissible for the Secretary of State to propose more than one country of destination (country B etc): see JN (Cameroon) [2009] EWCA Civ 643 [23].
4) The question then, is whether by reference to A, the country of nationality, the claimant is a refugee. If he is not, the Refugee Convention does not apply to him. If he is, his appeal falls to be allowed only if his return to country B would be contrary to Article 33 of the Refugee Convention.
5) In any event, possible removal to a country not specified in the notice of decision under appeal is not a matter for the immigration judge.

Judges:

Storey, Latter SIJJ

Citations:

[2010] UKUT 422 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444070

UTIAC Judicial decision-makers should be careful to identify and reject arguments based on an alleged near-miss, which, on proper analysis, are an attempt to import extraneous qualifications into the immigration rules. The Article 8 proportionality balancing exercise is unlikely to be properly conducted if the judge has, in effect, substituted his or her own view of what the rules should say.
The requirement in paragraph 116 of Appendix A to the rules, that a Confirmation for Acceptance of Studies must be issued not more than 6 months before the application for leave is made, is not met by a letter issued after the application has been made.

Judges:

Lord Bannatyne, Lane SIJ

Citations:

[2010] UKUT 481 (IAC), [2011] Imm AR 351

Links:

Bailii

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 . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 19 September 2022; Ref: scu.444077

UTIAC 1. Funds are ‘available’ to a claimant at the material time if they are under his control in an overseas bank account.
2. Though, as is clear from Pankina v SSHD [2010] EWCA Civ 719, policy guidance that has not been laid before Parliament before the inception of the Points-Based System cannot be relied on by the Secretary of State, it can give rise to a legitimate expectation that the Secretary of State will adhere to that guidance when considering an appellant’s claim.

Judges:

Blake P J, Ockleton VP, Allen SIJ

Citations:

[2010] UKUT 446 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444071

UTIAC An Immigration Judge should not go behind evidence of a certificate of naturalisation as an Italian citizen on the basis of concerns about the bona fides of the marriage that resulted in the naturalisation. It would be contrary to public policy for the Immigration Judge to dispute Italian nationality or the legal validity of the marriage resulting from it.

Judges:

Kenneth Parker J, Waumsley SIJ

Citations:

[2010] UKUT 478 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444076

Appeal against the decision allowing the Respondent’s appeal against the decision of the Appellant to give directions for his removal from the UK.

Judges:

Taylor, Lane CJ SIJJ

Citations:

[2010] UKUT B1

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444075

UTIAC British citizen born in Northern Ireland prior to 2001 was an Irish national from birth; when he terminated his activity as a worker as a result of permanent incapacity to work he acquired a permanent right of residence under reg 15(1)(c) of the Immigration (European Economic Area) Regulations 2006; there was no requirement for him to have moved to the UK; on marriage his non-EEA national spouse acquired a permanent right of residence under reg 15(1)(d); McCarthy v SSHD [2008] EWCA Civ 641 considered.

Judges:

Blake P J, Ockleton VP, Deans SIJ

Citations:

[2010] UKUT 445 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444072

UTIAC Paragraph 134 of the Immigration Rules provides for indefinite leave to be granted to a work permit holder who has spent ‘a continuous period of 5 years lawfully in the UK’ in that capacity. Unlike the ‘long residence rule’ at paras 276A-D, no definition of this requirement is given in HC 395, and there is currently no guidance to be had from the Immigration Directorates’ Instructions. However, ‘a continuous period’must be construed sensibly, so as to allow periods of absence abroad. Where such absence has been required by the appellant’s employer in the course of his work permit employment, it need not impair the strength of connexion to the United Kingdom which is normally established by five years’ residence.

Judges:

Cranston J, McKee SIJ

Citations:

[2010] UKUT 418 (IAC)

Links:

Bailii

Statutes:

Immigration Rules 134

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444060

UTIAC Paragraph 245AA(b) of HC 395 does not require an adjournment for verification checks by the Secretary of State where what are said to be ‘specified documents’, called into question, are produced at the hearing or served so soon before the hearing as to provide no opportunity for the Secretary of State to take the reasonable steps to verify those documents contemplated by that paragraph.

Citations:

[2011] UKUT 353 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444055

UTIAC 1. The function of a court appointed interpreter is to interpret on behalf of the Tribunal what is said at the hearing, including the appellant’s evidence. It is no part of the interpreter’s function to be drawn into a position where he or she has to give ‘evidence’ at a hearing of anything, including the language being spoken by a witness. The AIT’s decision in AA (Language diagnosis; use of interpreters) Somalia [2008] UKAIT 00029 approved and applied.
2. Consequently, in a case where the language spoken by an appellant was relevant to establish his origins (and so to the claim), the judge had not erred in law when he had declined, when requested by the appellant’s representative, to ask the interpreter at the hearing what language the appellant was speaking.

Judges:

Ockleton P, Grubb SIJJ, Holmes IJ

Citations:

[2011] UKUT 337 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444046

UTIAC There is a right of appeal to the First-tier Tribunal under s.83 of the Nationality, Immigration and Asylum Act 2002 against a refusal of asylum triggered by a subsequent grant of more than one year’s leave to remain, even if there has been a previous unsuccessful asylum appeal.
There is a right of appeal to the Upper Tribunal against a decision of the First-tier Tribunal declining jurisdiction, when that decision has been made after full consideration and is embodied in a determination.

Judges:

Ockleton J

Citations:

[2011] UKUT 314 (IAC)

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 83

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444044

UTIAC The parties are bound by unappealed findings of fact in an immigration judge’s decision. It is therefore not open to the respondent following a successful and unchallenged appeal by an appellant to make a further adverse decision on the same issue relying on the same evidence as before unless there is evidence of fraud or one of the exceptions identified in para 35 of the judgment of the Court of Appeal in Secretary of State v TB [2008] EWCA 997 applies.

Citations:

[2011] UKUT 312 (IAC), [2011] Imm AR 813

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444043

UTIAC Someone who is married to a person settled in the United Kingdom but who only has discretionary leave to remain cannot, if his marriage breaks down because of domestic violence, claim an entitlement to indefinite leave by analogy with paragraph 289A of the Immigration Rules. There is no unlawful discrimination in terms of ‘other status’ under Article 14 of the ECHR. That the rule only benefits those given leave to enter or remain under Part 8 of HC 395 does not itself engage the Convention, although the circumstances of the marital breakdown may be relevant to the assessment of any Article 8 claim that removal would be disproportionate.

Judges:

Lord Matthews, McKee UTJ

Citations:

[2011] UKUT 352 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444056

UTIAC i. A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.
ii. In either case the dependency or membership of the household must be on a person who is an EEA national at the material time. For this reason it is essential that tribunal judges establish when the sponsor acquired EEA nationality.
iii. By contrast with Article 2(2) family members, an OFM must show qualification as such before arrival in the United Kingdom and the application to join the EEA national who is resident here.
iv. Membership of a household has the meaning set out in KG (Sri Lanka) [2008] EWCA Civ 13 and Bigia and Ors [2009] EWCA Civ 79; that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.
v. By contrast the dependency on an EEA national can be dependency as a result of the material remittances sent by the EEA national to the family member, without the pair of them having lived in the same country at that time before making those remittances.
vi. The country from which the OFM has come can be either the country from which he or she has come to the United Kingdom or his or her country of origin.
vii. Notwithstanding the preliminary reference to the Court of Justice made by the Upper Tribunal in MR and Ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) tribunal judges can proceed to determine OFM appeals in accordance with the guidance given by the Upper Tribunal in this and related cases, making sure to make findings of fact based on a rigorous examination of the evidence.
viii. Where relevant, findings need also to be made on whether it is appropriate to issue a residence card in accordance with the discretion afforded by regulation 17(4) of the Immigration (European Economic Area) Regulations 2006.
ix. In deciding whether a person falls within the material scope of regulation 8 of the 2006 Regulations, policy considerations relating to such matters as the appellant’s immigration history, the impact of an adverse decision on the exercise by the EEA national of his or her Treaty rights, etc are irrelevant. Such policy considerations are relevant, however, to the exercise of regulation 17(4) discretion.

Judges:

Blake J P, Storey SIJ

Citations:

[2011] UKUT 341 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444052

UTIAC 1. Ealing, Hammersmith and West London College (EHWLC) has an online management and record keeping system called Centime, operated from 2003 and still in current use. This system is so detailed, well operated and robust that evidence from EHWLC based on its records to the effect that a person made no application to the college, was not enrolled on a course there and was not awarded any qualification will, in general, be cogent evidence to that effect. Accordingly, it will in general be extremely difficult for a person who does not feature in the records to demonstrate that they were enrolled at EHWLC and studying there at the relevant time.
2. Evidence of academic achievement at EHWLC, relied upon by those claiming to have studied there, including certificates, results sheets and course work claimed to have been submitted for assessment, will, in general, include a student’s unique data number, assigned to him or her under the Centime system and the absence of such a number is, accordingly, likely to be an adverse factor of substantial weight.
3. Genuine postgraduate diploma certificates issued by EHWLC will include a logo showing the full name of the college rather than a single campus or a combination of sites not reflecting the full name.
4. Postgraduate courses in Hospitality Management and in Business and Management are of eighteen months duration and any work placement arranged as part of a course will begin after the commencement of studies and not beforehand; the catchment area for the 2008 course Hospitality Management course was Mumbai and the intake in that year was from that city and its environs and not elsewhere.

Judges:

Lane SIJ, Campbell IJ

Citations:

[2011] UKUT 295 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444051

UTIAC A person who has entry clearance that, under the provisions of the Immigration (Leave to Enter and Remain) Order 2000, takes effect as leave to enter, does not on arrival in the United Kingdom ‘seek’ leave to enter, and paragraph 321 therefore does not apply to him. Paragraph 321A does, but only if the circumstances set out in that paragraph can be shown to exist in his case.

Citations:

[2011] UKUT 350 (IAC)

Links:

Bailii

Statutes:

Immigration (Leave to Enter and Remain) Order 2000

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444057

UTIAC 1) In deciding whether to set aside the decision of the First-tier Tribunal under section 12 of the Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal can dispose of the appeal in one of two ways, either by remitting the case to the Fist-tier Tribunal or by re-making the decision. However, that choice is regulated by para 7 of Part 3 of the Practice Statements for the Immigration and Asylum Chamber of the Upper Tribunal, which only contemplates remittal in very limited circumstances.
2) Proper exercise of the discretion afforded by reg 17(4) of the Immigration (European Economic Area) Regulations 2006 requires the decision-maker to take into account whether or not the effect of refusal of a residence card to the claimant would hinder or frustrate the continuing exercise of the free movement rights of the EEA family member/Union citizen.

Judges:

Storey SIJ, Juss IJ

Citations:

[2010] UKUT 423 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444068

UTIAC In order to have made false representations or submitted false documents so as to attract a mandatory refusal under Part 9 of the Immigration Rules, an applicant must have deliberately practised ‘Deception’, as defined at para 6. Failing to disclose a material fact is also classed as ‘Deception’. It follows that such failure also requires dishonesty on the part of the applicant, or by someone acting on his behalf.

Judges:

McKee UTJ

Citations:

[2011] UKUT 351 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444053

UTIAC (i) The human rights situation in Cuba is dismal and the government continues to deny its citizens basic civil and political rights.
(ii) The authorities are intolerant of any form of unauthorised opposition to its political agenda and the law is used to criminalise dissent.
(iii) The term ‘dissident’ in the context of Cuba does not refer to a homogenous group of people but can refer to anyone engaging in activities regarded by the authorities as contrary to its political agenda.
(iv) The ‘dangerousness’ law is used as a political tool against those seen as dissidents or otherwise opposing the regime’s political agenda
(v) Those regarded by the Cuban authorities as opponents, dissidents or defectors can be at risk of treatment of sufficient severity to amount to persecution. Whether a particular individual will be at such risk depends upon his background and profile but in general terms an active political opponent who has come to the attention of the authorities or someone who has been openly disloyal to the regime is likely to be at such risk.
(vi) This guidance replaces that given in OM (Cuba returning dissident) Cuba [2004] UKAIT 00120 which is no longer to be regarded as providing country guidance.

Judges:

Letter SIJ

Citations:

[2011] UKUT 343 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444049

UTIAC 1. The First-tier Tribunal (Immigration and Asylum Chamber) is required to apply of its own motion the statutory presumptions in s.72 of the Nationality, Immigration and Asylum Act 2002 to the effect that Art 33(2) of the Refugee Convention will not prevent refoulement of a refugee where the factual underpinning for the application of s.72 is present even if the Secretary of State has not relied upon Art 33(2) and s.72.
2. Equally, the Secretary of State is entitled to take the point before the Upper Tribunal in the event of an appeal.
3. The obligation of the First-tier Tribunal (or Upper Tribunal) is subject to the common law requirement of fairness. If the Secretary of State has not raised the s.72 point in the refusal letter, then an unrepresented appellant may need to be warned of the statutory provisions which raise the rebuttable presumptions against him and be given the opportunity to deal with them.

Judges:

Ockleton VP

Citations:

[2011] UKUT 338 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444047

UTIAC 1. In MS (Ivory Coast) [2007] EWCA Civ 133 it was accepted, following Ciliz v Netherlands (Application no. 29192/95) [2000] ECHR 365; [2000] FLR 469, that a decision to remove an applicant in the process of seeking a contact order may violate Article 8 ECHR, in particular on the basis that removal of a parent/applicant during contact order proceedings would be unlawful because it prejudged the outcome of the contact proceedings and, more importantly, denied the applicant all possibility of any further meaningful involvement in the proceedings which may breach Article 6 ECHR.
2. A refusal to adjourn proceedings before the Tribunal may have similar consequences.
3. It is the respondent’s practice (consistent with the Human Rights Act 1998), not to remove or deport parent(s)/parties when family or other court proceedings are current and to grant short periods of discretionary leave, to extend temporary admission, or release a person pending the outcome of the family proceedings. The use of curtailment is discretionary in such circumstances (see Home Office Guidance re-issued in October 2010).
4. Where such a case arises before the Tribunal it is usual for the appeal to be allowed pursuant to Article 8 ECHR , rather than for the proceedings to remain within the Tribunal system to be adjourned, perhaps more than once. The respondent will normally then grant a short period of discretionary leave bearing in mind any relevant facts found by, or observations of an Immigration Judge. It is for the respondent to decide on the period of leave in each case.
5. Where an application for contact (or a residence order, or for other relief) is successful then a parent/party may make application for further leave to remain in the UK. If unsuccessful, then it will be for the respondent to consider what steps to take in relation to that individual.

Judges:

Jarvis SIJ

Citations:

[2010] UKUT 439 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444058

UTIAC 1. In establishing for the purposes of Art 1F(a) of the Refugee Convention that an individual was complicit under Art 25(3)(d) of the Rome Statute of the International Criminal Court (‘ICC Statute’) in crimes against humanity perpetrated by others in an organisation, it was necessary to consider all the circumstances of the appellant’s involvement in that organisation in order to determine whether what the appellant did made a significant contribution to the organisation’s ability to carry out crimes against humanity: R (on the application of JS) (Sri Lanka) v SSHD [2010] UKSC 15. (See also Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D [2011] Imm AR 190).
2. However, in establishing this (wider) form of complicity liability under international criminal law it was not necessary to establish that the appellant’s acts formed ‘part of’ a crime against humanity committed by others in the sense that the appellant’s acts were of such a character as, in themselves, to fall within one or more of the categories of acts which if committed as part of a widespread or systematic attack directed against any civilian population were capable of amounting to a crime against humanity under Art 7 of the ICC Statute.

Citations:

[2011] UKUT 339 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.444054

Citations:

[2019] UKAITUR HU061792017

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 September 2022; Ref: scu.648376

The claimant applied for judicial review of the decision to certify his asylum claim pursuant to the 2004 Act, on grounds that he might safely be removed to a third country, Cyprus, and to quash removal directions given to remove the Claimant to Cyprus.
Held: There is ‘a significant evidential presumption’ that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory.

Judges:

Sales J

Citations:

[2011] EWHC 2182 (Admin)

Links:

Bailii

Statutes:

Asylum and Immigration (Treatment of Claimants, etc) Act 2004

Cited by:

Cited – 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

Updated: 17 September 2022; Ref: scu.442723

Judges:

CMG Ockleton

Citations:

[2010] EWHC 1598 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.442704

Judges:

Thorpe, Longmore, Etherton LJJ

Citations:

[2011] EWCA Civ 872

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.442734

Citations:

[2009] ScotCS CSIH – 55

Links:

Bailii

Jurisdiction:

Scotland

Immigration

Updated: 17 September 2022; Ref: scu.347767

Citations:

[2005] UKIAT 00012

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.221758

Citations:

[2005] UKIAT 00004, [2005] UKIAT 4

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.221756

Citations:

[2002] UKIAT 00159

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.221778

Citations:

[2003] UKIAT 00101

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.221084

Citations:

[2002] UKIAT 06507

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.221780

Citations:

[2002] UKIAT 06500

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.221781

Citations:

[2004] EWCA Civ 1372

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.219143

Citations:

[2004] EWCA Civ 1553

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 September 2022; Ref: scu.219917

Citations:

[2015] EWCA Civ 1288

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.557080

Citations:

[2015] EWCA Civ 1223

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.558046

Citations:

[2015] EWCA Civ 917

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.551702

The claimant sought judicial review of the respondent’s decision not to allow his naturalisation as a British citizen.

Judges:

Nourse V P, Kennedy, Rix LJJ

Citations:

[2000] EWCA Civ 523

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.442022

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.

Judges:

Stephen Males QC

Citations:

[2011] EWHC 1821 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Tabassum v The United Kingdom ECHR 24-Jan-2012
. .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 16 September 2022; Ref: scu.441875

Citations:

[2002] UKIAT 02691

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.221868

Citations:

[2002] UKIAT 03085

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.221878

Citations:

[2002] UKIAT 02246

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.221850

Citations:

[2002] UKIAT 02583

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.221869

Citations:

[2002] UKIAT 02642

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.221857

Citations:

[2002] UKIAT 03140

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.221881

Citations:

[2003] UKIAT 00208

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.221085

Citations:

[2001] EWCA Civ 917

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.218204

Citations:

[2000] EWCA Civ 387

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 September 2022; Ref: scu.218694

Judges:

Lord Justice Leggatt

Citations:

[2019] EWCA Civ 2027

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.645530

Citations:

[2015] EWCA Civ 824

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.558705

Citations:

[2015] EWCA Civ 644

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.550193

Application for leave to appeal under the Tribunals, Courts and Enforcement Act 2007, section 13

Citations:

[2014] ScotCS CSIH – 104

Links:

Bailii

Jurisdiction:

Scotland

Immigration

Updated: 15 September 2022; Ref: scu.539852

Citations:

[2011] EWCA Civ 1284

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.448140

Citations:

[2011] EWCA Civ 1319

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.448379

UTIAC 1. The personal scope of the safeguards against expulsion which Article 27 of 2004/38/EC (the ‘Citizens Directive’) affords to ‘family members’ does not include ‘other family members'(OFMs).
2. Hence Exception 3 to s.32(4) and (5) of the UK Borders Act 2007 (which arises where the removal of a foreign criminal from the United Kingdom in pursuance of a deportation order would breach the rights of the foreign criminal under the EU treaties [previously ‘Community treaties’] cannot be invoked by OFMs.
3. However, a person who has been found to be an OFM/extended family member under the Immigration (European Economic Area) Regulations 2006 needs to be considered by the Secretary of State as a person in respect of whom the discretion to issue a residence card under regulation 17 may be exercised.
4. The result of the exercise of that discretion may be that regulations 20-21 apply to the appellant’s removal, and the decision would not be lawful without regard to them.
5. So if consideration has not been given to the exercise of the discretion, the assessment of criteria going to deportation or removal cannot be completed.

Citations:

[2011] UKUT 276 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441718

UTIAC Where the likely income of a family falls below the level of adequacy as established in the case of KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065 the shortfall can be met where there are sufficient savings. The assessment of the appropriate level of savings is not an arbitrary calculation and the proper reference is to the length of the initial visa. If an appellant is able to meet the requirements of adequacy for the period of the initial visa, and there is no reason to believe that he will not be able to meet the maintenance requirements in the longer term, then he is entitled to entry clearance.

Judges:

Taylor SIJ

Citations:

[2011] UKUT 246 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441710

UTIAC LAW
(A) There is nothing in MS (Palestinian Territories) [2010] UKSC 25 that overrules the judgments in MA (Ethiopia) [2009] EWCA Civ 289. Where a claim to recognition as a refugee depends on whether a person is being arbitrarily denied the right of return to a country as one of its nationals, that issue must be decided on an appeal under section 82 the Nationality, Immigration and Asylum Act 2002 (paragraphs 69 to 72).
(B) Although the question of whether a person is a national of a particular state is a matter of law for that state, the question whether a national of a particular state has been lawfully or unlawfully deprived of the nationality of that state is a legitimate issue for a court or tribunal to determine, in the course of deciding a person’s entitlement to international protection (paragraph 74).
(C) Whether arbitrary deprivation of nationality amounts to persecution is a question of fact. The same is true of the denial of the right of return as a national; although in practice it is likely that such a denial will be found to be persecutory (paragraphs 76 and 82 to 89).
COUNTRY GUIDANCE
(1) Although the process established by the Ethiopian authorities in 1998 for identifying ethnic Eritreans who might pose a risk to the national security of Ethiopia, following the outbreak of war between the countries, was not arbitrary or contrary to international law, in many cases people were arbitrarily expelled to Eritrea without having been subjected to that process. Those perceived as ethnic Eritreans, who remained in Ethiopia during the war, and who were deprived of Ethiopian nationality, suffered arbitrary treatment, contrary to international law. Those who left Ethiopia at this time or who were then already outside Ethiopia were arbitrarily deprived of their Ethiopian nationality. Also during this time, the Ethiopian authorities made a practice of seizing and destroying identification documents of those perceived as ethnic Eritreans in Ethiopia (paragraphs 60 to 65).
(2) A person whose Ethiopian identity documents were taken or destroyed by the authorities during this time and who then left Ethiopia is as a general matter likely to have been arbitrarily deprived on Ethiopian nationality. Whether that deprivation amounted to persecution (whether on its own or combined with other factors) is a question of fact (paragraphs 76 to 78).
(3) The practices just described provide the background against which to consider today the claim to international protection of a person who asserts that he or she is an Ethiopian national who is being denied that nationality, and with it the right to return from the United Kingdom to Ethiopia, for a Refugee Convention reason. Findings on the credibility and consequences of events in Ethiopia, prior to a person’s departure, will be important, as a finding of past persecution may have an important bearing on how one views the present attitude of the Ethiopian authorities. Conversely, a person whose account is not found to be credible may find it difficult to show that a refusal on the part of the authorities to accept his or her return is persecutory or based on any Refugee Convention reason (paragraphs 79 to 81).
(4) Although, pursuant to MA (Ethiopia), each claimant must demonstrate that he or she has done all that could be reasonably expected to facilitate return as a national of Ethiopia, the present procedures and practices of the Ethiopian Embassy in London will provide the backdrop against which judicial fact-finders will decide whether an appellant has complied with this requirement. A person who is regarded by the Ethiopian authorities as an ethnic Eritrean and who left Ethiopia during or in the immediate aftermath of the border war between Ethiopia and Eritrea, is likely to face very significant practical difficulties in establishing nationality and the attendant right to return, stemming from the reluctance of the Ethiopian authorities to countenance the return of someone it regards as a ‘foreigner’, whether or not in international law the person concerned holds the nationality of another country (paragraphs 93 to 104).
(5) Judicial fact-finders will expect a person asserting arbitrary deprivation of Ethiopian nationality to approach the embassy in London with all documentation emanating from Ethiopia that the person may have, relevant to establishing nationality, including ID card, address, place of birth, identity and place of birth of parents, identity and whereabouts of any relatives in Ethiopia and details of the person’s schooling in Ethiopia. Failing production of Ethiopian documentation in respect of such matters, the person should put in writing all relevant details, to be handed to the embassy. Whilst persons are not for this purpose entitled to portray themselves to the embassy as Eritrean, there is no need to suppress details which disclose an Eritrean connection (paragraph 105).
(6) A person who left Ethiopia as described in (4) above is unlikely to be able to re-acquire Ethiopian nationality as a matter of right by means of the 2003 Nationality Proclamation and would be likely first to have to live in Ethiopia for a significant period of time (probably 4 years) (paragraphs 110 to 113).
(7) The 2004 Directive, which provided a means whereby Eritreans in Ethiopia could obtain registered foreigner status and in some cases a route to reacquisition of citizenship, applied only to those who were resident in Ethiopia when Eritrea became independent and who had continued so to reside up until the date of the Directive. The finding to the contrary in MA (Disputed Nationality) Ethiopia [2008] UKAIT 00032 was wrong (paragraphs 115 and 116).
(8) The 2009 Directive, which enables certain Eritreans to return to Ethiopia as foreigners to reclaim and manage property in Ethiopia, applies only to those who were deported due to the war between Ethiopia and Eritrea and who still have property in Ethiopia (paragraphs 117 and 118).
(9) A person who left Ethiopia as described in (4) above, if returned to Ethiopia at the present time, would in general be likely to be able to hold property, although the bureaucratic obstacles are likely to be more severe than in the case of Ethiopian citizens. Such a person would be likely to be able to work, after acquiring a work permit, although government employment is unlikely to be available. Entitlement to use educational and health services is, however, much more doubtful. At best, the person will face a bureaucratic battle to acquire them. He or she will have no right to vote (paragraphs 119 to 124).
(10) Such a person would be likely to feel insecure, lacking even the limited security afforded by the 2004 Directive. Tensions between Ethiopia and Eritrea remain high (paragraph 125).
(11) The following CG cases on Ethiopia are superseded or replaced, as the case may be, by the present determination: GG (Return – Eritrean) Ethiopia CG [2002] UKIAT 05996; NB (Mixed Ethnicity – Ethiopian – Eritrean) Ethiopia CG [2002] UKIAT 06526; AA (Children – Eritrean) Ethiopia CG UKIAT 06533; TG (Mixed Ethnicity) Ethiopia CG [2002] UKIAT 07289; and DA (Ethnicity – Eritrean – Country Conditions) Ethiopia CG [2004] UKIAT 00046.

Judges:

Lane, Ward, SIJJ

Citations:

[2011] UKUT 252 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441720

UTIAC Where a residence card has been issued in a passport on an application duly made it becomes a valid document if it has not been cancelled before it is communicated to the applicant.
An application for a residence card cannot be lawfully refused it has already been issued.
A residence card may be revoked if it is shown that was issued by mistake to someone not entitled to it.

Citations:

[2011] UKUT 163 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441717

UTIAC The requirement in paragraph 11 of Appendix C of the Statement of Changes in the Immigration Rules HC 395 (as amended) is that the funds be ‘available’. It is unhelpful to try to paraphrase that.
Funds required by paragraph 11 of Appendix C can take the form of a credit card limit.

Judges:

Stacey J, Storey SIJ

Citations:

[2011] UKUT 244 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441703

UTIAC 1. For the purposes of establishing whether a person qualifies as an Other Family Member (OFM)/extended family member under regulation 8 of the Immigration (European Economic Area) Regulations 2006, the requirement that they accompany or join the Union citizen/EEA national exercising Treaty rights must be read as encompassing both those who have arrived before and those who have arrived after the Union citizen/EEA national sponsor.
2. The 2006 Regulations do not impose a requirement that an OFM/extended family member must be present in the United Kingdom lawfully.
3. But in the context of the exercise of regulation 17(4) discretion as to whether to issue a residence card, matters relating to how and when an OFM/extended family member arrives in a host Member State are not irrelevant.

Citations:

[2011] UKUT 253 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Aladeselu and Others v Secretary of State for The Home Department CA 1-Mar-2013
. .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 15 September 2022; Ref: scu.441714

UTIAC (1) Those who assert they were awarded postgraduate certificates in business management (and IT) by Cambridge College of Learning, after completing relevant courses there, will have to surmount the important and obvious problem that, if such certificate courses had been run and examined by CCOL, and certificates awarded to successful candidates, the witnesses who gave evidence to the Tribunal in NA and Others (Cambridge College of Learning) Pakistan [2009] UKAIT 00031 and who were found credible, would have said so. There was no credible evidence before the AIT in that case to suggest that any postgraduate courses in business management or IT were taught and examined by CCOL. It follows that, whilst the evidence in each case must be individually assessed, NA and Others is indicative of there being no such thing as a genuinely issued CCOL postgraduate certificate in those subjects and it is therefore necessary for a claimant seeking to rely on such a certificate to adduce cogent evidence in support.
(2) For the correct way to approach the use of the determination in NA and Others, see paragraphs 32 to 40 of the Upper Tribunal’s determination in TR (CCOL cases) Pakistan [2011] UKUT 33 (IAC).

Judges:

Lane SIJ

Citations:

[2011] UKUT 249 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441711

UTIAC (1) Jamaica is a deeply homophobic society. There is a high level of violence, and where a real risk of persecution or serious harm is established, the Jamaicans state offers lesbians no sufficiency of protection.
(2) Lesbianism (actual or perceived) brings a risk of violence, up to and including ‘corrective’ rape and murder.
(3) Not all lesbians are at risk. Those who are naturally discreet, have children and/or are willing to present a heterosexual narrative for family or societal reasons may live as discreet lesbians without persecutory risk, provided that they are not doing so out of fear.
(4) Single women with no male partner or children risk being perceived as lesbian, whether or not that is the case, unless they present a heterosexual narrative and behave with discretion.
(5) Because the risks arise from perceived as well as actual lesbian sexual orientation, internal relocation does not enhance safety. Newcomers in rural communities will be the subject of speculative conclusions, derived both by asking them questions and by observing their lifestyle and unless they can show a heterosexual narrative, they risk being identified as lesbians. Perceived lesbians also risk social exclusion (loss of employment or being driven from their homes).
(6) A manly appearance is a risk factor, as is rejection of suitors if a woman does not have a husband, boyfriend or child, or an obvious and credible explanation for their absence.
(7) In general, younger women who are not yet settled may be at less risk; the risk increases with age. Women are expected to become sexually active early and remain so into their sixties, unless there is an obvious reason why they do not currently have a partner, for example, recent widowhood.
(8) Members of the social elite may be better protected because they are able to live in gated communities where their activities are not the subject of public scrutiny. Social elite members are usually from known families, wealthy, lighter skinned and better educated; often they are high-ranking professional people.

Judges:

Gleeson, Spencer SIJJ

Citations:

[2011] UKUT 251 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441713

UTIAC (1) Immigration Judges have jurisdiction to determine whether decisions on variation of leave applications are in accordance with the law, where issues of fairness arise.
(2) Where a sponsor licence has been revoked by the Secretary of state during an application for variation of leave and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined.
(3) It would be unfair to refuse an application without opportunity being given to vary it under s.3C(5) Immigration Act 1971.
(4) Leave to remain granted by s.3C Immigration Act 1971 is relevant leave for the purposes of the Immigration Rules and the cases of QI (para 245ZX(1) considered) Pakistan [2010] UKUT 217 (IAC) and HM and others (PBS – legitimate expectation – paragraph 245ZX(I) [2010] UKUT 446 (IAC) have been overruled by QI (Pakistan) v SSHD [2011] EWCA Civ 614, 18 April 2011.
(5) Where the Tribunal allows an appeal on the grounds that the decision was not taken fairly and therefore not in accordance with the law, it may be sufficient to direct that any fresh decision is not to be made for a period of sixty days from the date of the reasoned decision being transmitted to the parties, in order to give the appellant a reasonable opportunity to vary his application.
(6) By analogy with the present UKBA policy on curtailment of leave where a sponsor licence is revoked a 60 day period to amend the application would provide such a fair opportunity.

Judges:

Blake P J, Batiste UTJ

Citations:

[2011] UKUT 211 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441712

UTIAC Where an application for entry clearance or leave to enter or remain in the United Kingdom is made before 3 March 2010 and has not been determined before that date, it will be decided in accordance with the Immigration Rules in force on 2 March 2010, rather than the Statement of Changes in Immigration Rules [HC 367] which came into operation on 3 March 2010. Paragraph 319C(i) of the Immigration Rules, which came into operation on the latter date, is a freestanding subparagraph, divorced from but following upon subparagraph (h) and is to be construed accordingly. It follows that where the dates set out above apply, a person who was last granted leave to remain as a student will not be able to switch from the student category to that of a dependant of a student unless he is applying for leave as the dependant of a person who has been granted, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory under paragraph 245ZQ(b)(ii).

Judges:

McCloskey J, Gill SIJ

Citations:

[2011] UKUT 248 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441708

UTIAC Proof of the requisite funds for ‘Maintenance’ under the Points Based System is retrospective. For example, a student must show that the funds were available for a continuous period of 28 days before the application for entry clearance or leave to remain was made. If, throughout that period, an overdraft facility could have been used to withdraw the requisite funds, there is nothing in principle or in the Rules to prevent that from demonstrating that the requisite funds were available. PO (points based scheme: maintenance: loans) Nigeria [2009] UKAIT 47, which takes the opposite view, was decided pre-Pankina on the basis of the Policy Guidance.

Citations:

[2011] UKUT 245 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441707

UTIAC Where it is found that an Ahmadi will be ‘discreet’ on return the reasons for such discretion will need to be considered in the light of HJ (Iran) [2010] UKSC 31.

Judges:

Stoery, Warr, SIJJ

Citations:

[2011] UKUT 277 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441716

(i) The figures relating to UK entry clearance applications since 2006 – particularly since September 2008 – show a very significant change from those considered by the Tribunal in MA (Draft evaders-illegal departures-risk) Eritrea CG [2007] UKAIT 00059 and are among a number of indications that it has become more difficult for Eritreans to obtain lawful exit from Eritrea.
(ii) The Eritrean authorities continue to envisage lawful exit as being possible for those who are above national service age or children of 7 or younger. Otherwise, however, the potential categories of lawful exit are limited to two narrowly drawn medical categories and those who are either highly trusted government officials or their families or who are members of ministerial staff recommended by the department to attend studies abroad.
(iii) The general position concerning illegal exit remains as expressed in MA, namely that illegal exit by a person of or approaching draft age and not medically unfit cannot be assumed if they had been found wholly incredible. However, if such a person is found to have left Eritrea on or after August/September 2008, it may be, that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of the adverse credibility findings.
(iv) The general position adopted in MA, that a person of or approaching draft age (i.e. aged 8 or over and still not above the upper age limits for military service, being under 54 for men and under 47 for women) and not medically unfit who is accepted as having left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, is reconfirmed, subject to limited exceptions in respect of (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case-specific analysis, is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the war of independence.
(v) Whilst it also remains the position that failed asylum seekers as such are not generally at real risk of persecution or serious harm on return, on present evidence the great majority of such persons are likely to be perceived as having left illegally and this fact, save for very limited exceptions, will mean that on return they face a real risk of persecution or serious harm.

Judges:

Lady Dorrian, Storey, Lane SIJJ

Citations:

[2011] UKUT 190 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441704

UTIAC The phrase ‘liable to deportation’ in s 3(5) of the Immigration Act 1971 includes, in the case of a person within s 3(5)(a), the notion of the Secretary of State’s deeming deportation to be conducive to the public good. The provision of s 32(4) of the UK Borders Act 2007, that a person subject to automatic deportation is a person whose deportation is conducive to the public good, is not identical. Such a person is ‘liable to deportation’ within the meaning of s3(5), so becoming a person whose leave may be revoked under s 76(1) of the Nationality, Immigration and Asylum Act 2002, only if the Secretary of State has deemed his deportation to be conducive to the public good.

Judges:

Ockleton VP J, Mcarthy SIJ

Citations:

[2011] UKUT 250 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441702

The claimant appealed against refusal of an extension to her Tier 4 student visa.

Judges:

Belcher J

Citations:

[2011] EWHC 1793 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 15 September 2022; Ref: scu.441591