Category: Immigration

Salad: IAT 2002

Citations:

[2002] UKIAT 06698

Jurisdiction:

England and Wales

Citing:

Cited – Advia / Advic v United Kingdom ECHR 6-Sep-1995
(Commission) In the ordinary course of events the fact that there are siblings in the same jurisdiction as an applicant does not establish a family life per se. There must be some genuine connection between siblings for family life to obtain, . .

Cited by:

Cited – Nadarajah Senthuran v Secretary of State for the Home Department CA 16-Jul-2004
The claimant appealed refusal of his claim for asylum, saying that an order for his removal would breach his article 8 rights in separating him from his family.
Held: The Tribunal was wrong to think that Advic said that family ties could never . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 13 August 2022; Ref: scu.200239

A, Regina (on the Application of) v National Asylum Support Service and Another: CA 23 Oct 2003

Citations:

[2003] EWCA Civ 1473, [2004] 1 WLR 752, [2004] 1 All ER 15

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – A, Regina (on the Application of) v National Asylum Support Service and Another Admn 24-Jun-2003
. .

Cited by:

Appeal from – Regina (on the Application of A) v National Asylum Support Service, London Borough of Waltham Forest CA 23-Oct-2003
A family of asylum seekers with two disabled children would be destitute without ‘adequate’ accommodation. What was such accommodation?
Held: The authority was under an absolute duty to house such a family. In satisfying such duty, it was . .
Lists of cited by and citing cases may be incomplete.

Immigration, Benefits

Updated: 13 August 2022; Ref: scu.187104

Benjamin and Another, Regina (on The Application of) v Secretary of State for The Home Department: Admn 15 May 2014

The Claimants seek judicial review of the Defendant’s refusal to grant an EEA family permit and entry clearance to enable the Second Claimant to enter and reside in the United Kingdom (‘UK’) with her husband, the First Claimant, and their three children.

Judges:

Lang DBE J

Citations:

[2014] EWHC 1396 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 11 August 2022; Ref: scu.525485

Mahajna (Salah) v Secretary of State for The Home Department: Admn 30 Sep 2011

The claimant, a strong supporter of the Palestinian cause came properly to the UK, but when it was discovered that the defendant had already decided that his continued presence would not be conducive to the public good, he was detained in anticipation of being deported. On release on bail he now applied for judicial review of the decisions.

Judges:

Nicol J

Citations:

[2011] EWHC 2481 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 11 August 2022; Ref: scu.444866

Haedare, Regina (on The Application of) v Secretary of State for The Home Department: Admn 7 Dec 2009

The applicant, a national of Iran, challenged the decision of the Secretary of State to remove him to Greece under the Dublin Regulations. Issues arose as to whether the applicant left the EU for 3 months and whether Greece was a safe country to which to return the applicant.

Citations:

[2009] EWHC (Admin) 3444

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 11 August 2022; Ref: scu.392655

KH (Afghanistan) v Secretary of State for The Home Department: CA 14 Dec 2009

Whether new material provided by the asylum applicant amounted to a fresh claim. The claimant brought new evidence of mental illness and stress.
Held: Though sad, it could not be said that the existence of mental illness in an asylum applicant was very exceptional. To establish such a case, the applicant would have to show that his particular mental illness was very exceptional within the class of applicants in the claimant’s position, in this case being an applicant without family support.

Judges:

Lord Justice Sedley, Lord Justice Longmore and Lord Justice Aikens

Citations:

[2009] EWCA Civ 1354, Times 19-Jan-2010

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 11 August 2022; Ref: scu.384063

JA (Ivory Coast) and Another v Secretary of State for The Home Department: CA 14 Dec 2009

The applicants sought to challenge orders for their removal from the UK.
Held: In assessing the proportionality of an order for removal, the court must consider, amongst other things, the history in the particular case of the grant of compassionate leave to remain, and renewal of leave to remain, and the effect of discontuance of any medical treatment. The appeal of JA was allowed, but not that of the other applicant.

Judges:

Lord Justice Sedley, Lord Justice Longmore and Lord Justice Aikens

Citations:

[2009] EWCA Civ 1353, Times 02-Feb-2010

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 11 August 2022; Ref: scu.384062

DS (India) v Secretary of State for the Home Department: CA 12 Jun 2009

Rix LJ said that the public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question of the right to re-offend in this country; it extends to deterring and preventing serious crime generally and to upholding abhorrence of such offending.

Judges:

Rix LJ

Citations:

[2009] EWCA Civ 544, [2010] Imm AR 81

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for The Home Department v HK (Turkey) CA 27-May-2010
The SS appealed against the successful appeal by the respondent against a deportation order. He had come to England in 1994, been granted indefinite leave to stay, and made a family here. In 2007 he was convicted of grievous bodily harm.
Held: . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Lists of cited by and citing cases may be incomplete.

Immigration, Criminal Sentencing

Updated: 11 August 2022; Ref: scu.346823

MH and others v Secretary of State for the Home Department: Admn 23 Oct 2008

Application for directions for the hearing of a number of applications for judicial review of decisions by the Secretary of State refusing applications for naturalisation as British citizens. Anonymity orders have been made in all cases by consent having regard to the potential damage to the claimants’ reputation and private life that would arise from the repetition of the untested allegations made in respect of them.

Judges:

Blake J

Citations:

[2008] EWHC 2525 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Administrative

Updated: 09 August 2022; Ref: scu.277294

K, Regina (on the Application Of) v Secretary of State for the Home Department: Admn 24 Sep 2008

Claim by Mr K for judicial review of a decision of the Secretary of State for the Home Department as he had made no fresh claim for asylum and no fresh human rights claim such as would bring paragraph 353 of the Immigration Rules into play and require the consideration of his claims.

Judges:

Inglis J

Citations:

[2008] EWHC 2539 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Human Rights, Immigration

Updated: 09 August 2022; Ref: scu.277287

OH (Serbia) v Secretary of State for the Home Department: CA 30 Apr 2008

Wilson LJ considered N (Kenya) and said: ‘Primary responsibility for the public interest, whose view of it is likely to be wide and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal against a decision to deport should not only consider for itself all the facets of the public interest but should weigh, as a linked but independent feature, the approach to them adopted by the respondent in the context of the facts of the case. Speaking for myself, I would not however describe the tribunal’s duty in this regard as being higher than ‘to weigh’ this feature.’
‘A further important facet [of the public interest in deportation] is the role of a deportation order as an expression of society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.’

Judges:

Wilson LJ

Citations:

[2008] EWCA Civ 694, [2009] INLR 109

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – N (Kenya) v The Secretary of State for the Home Department CA 5-Aug-2004
The appellant a foreign national, had been convicted of very serious sex offences, and as his sentence came to an end was ordered to be deported. He appealed saying this infringed his right to a family life.
Held: The court had to balance the . .
Leave – OH (Serbia and Montenegro) v Secretary of State for the Home Department CA 5-Dec-2007
Renewed application for permission to appeal . .

Cited by:

Cited – Secretary of State for The Home Department v HK (Turkey) CA 27-May-2010
The SS appealed against the successful appeal by the respondent against a deportation order. He had come to England in 1994, been granted indefinite leave to stay, and made a family here. In 2007 he was convicted of grievous bodily harm.
Held: . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Lists of cited by and citing cases may be incomplete.

Immigration, Crime

Updated: 09 August 2022; Ref: scu.270367

AJ (S 94B: Kiarie and Byndloss Questions) Nigeria: UTIAC 28 Feb 2018

(1) In the light of Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42, the First-tier Tribunal should adopt a step-by-step approach, in order to determine whether an appeal certified under section 94B of the Nationality, Immigration and Asylum Act 2002 can be determined without the appellant being physically present in the United Kingdom.
(2) The First-tier Tribunal should address the following questions:
1. Has the appellant’s removal pursuant to a section 94B certificate deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers?
2. If not, is the appellant’s absence from the United Kingdom likely materially to impair the production of expert and other professional evidence in respect of the appellant, upon which the appellant would otherwise have relied?
3. If not, is it necessary to hear live evidence from the appellant?
4. If so, can such evidence, in all the circumstances, be given in a satisfactory manner by means of video-link?
(3) The First-tier Tribunal should not lightly come to the conclusion that none of the issues covered by the first and second questions prevents the fair hearing of the appeal.
(4) Even if the first and second questions are answered in the negative, the need for live evidence from the appellant is likely to be present. A possible exception might be where the respondent’s case is that, even taking a foreign offender appellant’s case at its highest, as regards family relationships, remorse and risk of re-offending, the public interest is still such as to make deportation a proportionate interference with the Article 8 rights of all concerned
(5) If the First-tier Tribunal concludes that the appeal cannot be lawfully determined unless the appellant is physically present in the United Kingdom, it should give a direction to that effect and adjourn the proceedings.

Citations:

[2018] UKUT 115 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 08 August 2022; Ref: scu.617016

Caroopen and Myrie v The Secretary of State for The Home Department: CA 20 Dec 2016

Appeal from refusal of leave to remain – application for judicial review – further reasons given – status of additional letters.
Held: The two certifications were based upon a legal misdirection.
However: ‘There may in practice be relatively few cases where removal for an interim period pending an appeal would be in breach of Convention rights in the absence of a risk of serious irreversible harm, but it is a possibility which must be focused on as a necessary part of the decision-making process.’ The misdirection in Mr Kiarie’s case had not been material because, even had she applied the overarching criterion, the Home Secretary would still have certified his claim; and that the misdirection in the first certification of Mr Byndloss’ claim had been cured by a correct direction in the second certification of it.

Judges:

Black , Beatson , Underhill LJJ

Citations:

[2016] EWCA Civ 1307, [2016] WLR(D) 690, [2017] 1 WLR 2339, [2017] INLR 283, [2017] Imm AR 930

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 August 2022; Ref: scu.572734

Essop and Others v Home Office (UK Border Agency): SC 5 Apr 2017

The appellants alleged indirect race and belief discrimination in the conditions of their employment by the respondent. Essop came as lead claimant challenging the tests used for promotion. Statistics showed lower pass rates for BME candidates, but with no explanation of the connection. Naaem was an imam. He began as a part time prison chaplain, but the pension arrangements were changed so that even though working full time, he was disadvantaged. He appealed from a finding that having been unable to show a connection between the inirect discrimination suffered, and the protected characteristic, his action must fail.
Held: Over time the wording in the European directives and the UK statutes implementing them had changed, but in none of the various definitions of indirect discrimination, is there any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others.
The arguments put forward by the respondent do not justify importing words into the statute (and the Directives which lay behind it) which are simply not there and which, as the Court of Appeal recognised, could lead to the continuation of unlawful discrimination, which would be contrary to the public interest. In order to succeed in an indirect discrimination claim, it is not necessary to establish the reason for the particular disadvantage to which the group is put. The essential element is a causal connection between the PCP and the disadvantage suffered, not only by the group, but also by the individual. This may be easier to prove if the reason for the group disadvantage is known but that is a matter of fact, not law.
The definitions of direct and indirect discrimination also differed: ‘Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment – the PCP is applied indiscriminately to all – but aims to achieve a level playing field, where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified.’

Judges:

Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Hodge

Citations:

[2017] UKSC 27, [2017] ICR 640, [2017] 1 WLR 1343, [2017] IRLR 558, [2017] WLR(D) 244, [2017] 3 All ER 551, UKSC 2015/0161

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Equality Act 2010 19

Jurisdiction:

England and Wales

Citing:

At EAT – Naeem v The Secretary of State for Justice EAT 15-Jan-2014
EAT Race Discrimination : Indirect – RELIGION OR BELIEF DISCRIMINATION
Until 2002 the only Chaplains employed by the Prison Service were Christians. Since then, Chaplains of other faiths have been . .
At EAT – Essop and Others v Home Office (UK Border Agency) EAT 16-May-2014
EAT Race Discrimination : Indirect – In a test case, it was assumed that BME candidates disproportionately failed the CSA test, passing which was necessary to progress to higher grades in the Civil Service. The . .
Appeal from – Naeem v The Secretary of State for Justice CA 9-Dec-2015
The claimant appealed against rejection of his claim for discrimination when under the 1952 Act, there was a requirement to appoint a member as pastor of the prison a Clergyman of the Church of England, and other chaplains, including himself, an . .
Appeal from – Home Office (UK Border Agency) v Essop and Others CA 22-Jun-2015
The appellant challenged a finding that it was guilty of indirect race discrimination. A statistical study showed that BME candidates did rather less well on a standard assessment test, but while the correlation was clear, the manner of . .
Cited – Regina v Birmingham City Council ex parte Equal Opportunities Commission HL 1989
At the council’s independent, single-sex grammar schools there were more places available for boys than girls. Consequently the council were obliged to set a higher pass mark for girls than boys in the grammar school entrance examination.
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Cited – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Cited – The Audit Commission v Haq and Others EAT 18-Mar-2011
EAT EQUAL PAY ACT – Material Factor Defence and Justification
Two roles (‘IIO’ and ‘SIIO’) amalgamated into a new role (‘SIO’), on the basis that affected employees retain their existing points on the . .
Cited – Haq and Others v The Audit Commission CA 6-Dec-2012
Not upheld . .
Cited – Allonby v Accrington and Rossendale College and others CA 23-Mar-2001
The college failed to renew contracts for lecturers on one year fixed term contracts. A greater proportion of women were subject to such contracts, and the dismissal fell entirely on part time and hourly paid workforce. The condition which the . .
Cited – Wilson v Health and Safety Executive CA 20-Oct-2009
The employer appealed against a finding that it had acted in an equal pay claim in allowing for length of service.
Held: The employer’s appeal was dismissed. Decisions based on length of service tended to discriminate against women, because . .
Cited – Grundy v British Airways Plc CA 23-Oct-2007
The claimant, a cabin crew member of the defendant’s staff sought damages for sex discrimination.
Held: Sedley LJ said that the pool chosen should be that which suitably tests the particular discrimination complained of. . .
Cited – Cadman v Health and Safety Executive, intervener: Equal Opportunities Commission ECJ 3-Oct-2006
Social Policy – The court considered what went to make up age discrimination: ‘the Court acknowledged that rewarding, in particular, experience acquired which enables the worker to perform his duties better constitutes a legitimate objective of pay . .

Cited by:

Cited – Coll, Regina (on The Application of) v Secretary of State for Justice SC 24-May-2017
The appellant female prisoner asserted that the much smaller number of probation and bail hostels provided for women prisoners when released on licence was discriminatory in leaving greater numbers of women far removed from their families.
Lists of cited by and citing cases may be incomplete.

European, Discrimination

Updated: 08 August 2022; Ref: scu.581352

Mohibullah, Regina (on The Application of) v Secretary of State for The Home Department (TOEIC – ETS – Judicial Review Principles): UTIAC 23 Dec 2016

UTIAC (i) Where there is a multiplicity of decision making mechanisms, some generating a right of appeal and others not, there is a public law duty on the decision maker to be aware of the options and to take same into account when opting for a particular mechanism.
(ii) Where a Tier 4 Student is considered to have made false representations, thereby being liable to discretionary curtailment of leave and has been withdrawn from a course, thereby being liable to mandatory curtailment action there is a duty on the Secretary of State to consider both of the corresponding sections in the ‘Curtailment of Leave’ policy guidance.
(iii) A failure to give effect to policy guidance without justification is in breach of the Lumba principle and renders the ensuing decision vulnerable to being quashed.
(iv) Where a curtailment of leave decision is underpinned by the Secretary of State’s decision that leave to remain had been procured by deception, the appropriate standard of review is the Wednesbury principle rather than proof of the precedent fact of deception.
(v) A decision which has a conspicuously unfair impact on the subject may qualify for condemnation as unreasonable, or irrational, in contravention of the Wednesbury principle.
(vi) The student’s knowledge of an allegation by ETS that he has procured his TOEIC certificate by deception will normally suffice to convey the gist of the case against him, thereby rendering the Secretary of State’s decision making process (in this respect) procedurally fair.
The facility for a statutory appeal would have been preferable to the mechanism of judicial review and that it would be preferable for any statutory appeal to be able to be brought from within the UK: ‘Experience has demonstrated that in such cases detailed scrutiny of the demeanour and general presentation of parties and witnesses is a highly important factor. So too is close quarters assessment of how the proceedings are being conducted – for example, unscheduled requests for the production of further documents, the response thereto, the conduct of all present in the courtroom, the taking of further instructions in the heat of battle and related matters. These examples could be multiplied. I have found the mechanism of evidence by video link to be quite unsatisfactory in other contexts, both civil and criminal. It is not clear whether the aforementioned essential judicial exercises could be conducted satisfactorily in an out of country appeal. Furthermore, there would be a loss of judicial control and supervision of events in the distant, remote location, with associated potential for misuse of the judicial process.’

Citations:

[2016] UKUT 561 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 08 August 2022; Ref: scu.573728

Gheorghiu (Reg 24Aa EEA Regs – Relevant Factors): UTIAC 24 Nov 2015

On an application for an order to suspend enforcement of an order for removal, the court or tribunal would take due account of four factors. The fourth was: ‘that in cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, the experience of immigration judges has been that hearing and seeing the offender give live evidence and the enhanced ability to assess the sincerity of that evidence is an important part of the fact-finding process . . ‘

Judges:

Blake J and UTJ Goldstein

Citations:

[2016] UKUT 24 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 08 August 2022; Ref: scu.560519

Hesham Ali (Iraq) v Secretary of State for The Home Department: SC 16 Nov 2016

The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious relationship with an English woman since 2005. However the Home Secretary had applied the provisions for automatic deportation. This appeal now raise two issues relating to the deportation of ‘foreign criminals’ as defined in the 2007 Act. The first was the significance of sections 32 and 33 of that Act in appeals relating to deportation which are based on article 8 of the European Convention on Human Rights. The second concerned the significance, in the same context, of changes to the Immigration Rules which came into effect in July 2012.’
Held: (Lord Kerr dissenting) The appeal failed. The Upper Tribunal should have taken account of the Immigration Rules (though not bound by them) and of the fact that at the time he formed his relationship, the question of the persistence of his stay was already uncertain.
Lord Wilson added that public concern (as shown by the Rules endorsed by Parliament) can assist a court’s objective analysis of where the public interest lies.
Lord Thomas emphasises the importance of clear reasoning at first instance through a structured ‘balance sheet’ approach.
Lord Kerr would have allowed the appeal and the decision of the Upper Tribunal. The Immigration Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under article 8 in a particular case. It had been sufficient for the Upper Tribunal to take into account those relevant factors. Undue or unique reliance on the Rules, at the expense of a comprehensive survey of the pertinent article 8 factors was not appropriate

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes, Lord Thomas

Citations:

[2016] UKSC 60, [2017] INLR 109, [2017] 3 All ER 20, [2016] WLR(D) 610, [2017] Imm AR 484, [2016] 1 WLR 4799, UKSC 2015/0126

Links:

Bailii, SC, SC Summary, WLRD, Bailii Summary

Statutes:

UK Borders Act 2007, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Appeal from – HA (Iraq) v Secretary of State for The Home Department CA 22-Jul-2014
HA, an Iraqi national arrived in the United Kingdom some time in 2000. He made an asylum claim in 2002 which was rejected and the appeal was dismissed. However, he remained in the United Kingdom without leave and was fined for possessing Class A and . .
Cited – SS (Nigeria) v Secretary of State for The Home Department CA 22-May-2013
Laws LJ’s observed that for a claim under article 8 of the ECHR to prevail, it must be ‘a very strong claim indeed’ . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – British Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Odelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
Cited – Mahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Boultif v Switzerland ECHR 2-Aug-2001
The applicant complained under Article 8 that the Swiss authorities had not renewed his residence permit, after which he had been separated from his wife, a Swiss citizen and who could not be expected to follow him to Algeria. Switzerland argued . .
Cited – Tuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Uner v The Netherlands ECHR 18-Oct-2006
(Grand Chamber) The court considered the application of article 8 considerations in extradition and similar proceedings, and said: ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any . .
Cited – Maslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
Cited – AA v The United Kingdom ECHR 20-Sep-2011
. .
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 – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – IAA And Others v The United Kingdom ECHR 13-Jan-2014
. .
Cited – Sagnata Investments Ltd v Norwich Corporation CA 1971
The court hear an appeal to quarter sessions against a licensing decision taken by a local authority. The application was rejected by the local authority against whose decision an appeal lay to the Quarter Sessions. The Recorder allowed the appeal . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Rodrigues Da Silva and Hoogkamer v The Netherlands ECHR 31-Jan-2006
A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national but not applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her . .
Cited – OH (Serbia) v Secretary of State for the Home Department CA 30-Apr-2008
Wilson LJ considered N (Kenya) and said: ‘Primary responsibility for the public interest, whose view of it is likely to be wide and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal . .
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – DS (India) v Secretary of State for the Home Department CA 12-Jun-2009
Rix LJ said that the public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question of the right to re-offend in this country; it extends to deterring and preventing serious crime generally and . .
Cited – Hope and Glory Public House Ltd, Regina (On the Application of) v City Of Westminster Magistrates’ Court Admn 21-Jul-2009
. .
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – Hope and Glory Public House Ltd, Regina (on The Application of) v City of Westminster Magistrates Court and Others CA 26-Jan-2011
The court was asked as to the approach which should be taken by a Magistrates Court hearing an appeal from a decision under the 2003 Act.
Held: Before a Magistrates’ Court can interfere with the Sub-Committee’s decision, it must be satisfied . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – MF (Nigeria) v Secretary of State for The Home Department CA 8-Oct-2013
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the . .
Cited – Zoumbas v Secretary of State for The Home Department SC 27-Nov-2013
The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .
Cited – LC (China) v Secretary of State for The Home Department CA 9-Oct-2014
Appeal against the decision of the Upper Tribunal dated 30th September 2013 allowing the Secretary of State’s appeal against the decision of the First-tier Tribunal, which had itself allowed the appellant’s appeal against the decision of the . .
Cited – The Secretary of State for The Home Department v AJ (Angola) CA 17-Dec-2014
. .
Cited – 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 . .
Cited – Bouchelkia v France ECHR 29-Jan-1997
. .
Cited – Boujlifa v France ECHR 21-Oct-1997
(French Text) . .
Cited – Maslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
Cited – Nunez v Norway ECHR 28-Jun-2011
Article 8 rights can be sufficient to tip the balance in favour against deportation of an immigrant. . .
Cited – Re B-S (Children) CA 17-Sep-2013
The mother had been refused leave to oppose her child’s adoption. She now appealed.
Held: A court facing such an application faced two questions: Has there been a change in circumstances? If not, that is the end of the matter. If yes, then the . .
Cited – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .

Cited by:

Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 August 2022; Ref: scu.571291

Dube (Ss117A-117D): UTIAC 24 Feb 2015

(1) Key features of ss.117A-117D of the Nationality, Immigration and Asylum Act 2002 include the following:
(a) judges are required statutorily to take into account a number of enumerated considerations. Sections 117A-117D are not, therefore, an a la carte menu of considerations that it is at the discretion of the judge to apply or not apply. Judges are duty-bound to ‘have regard’ to the specified considerations.
(b) these provisions are only expressed as being binding on a ‘court or tribunal’. It may be that the Secretary of State will consider it in the interests of good administration and consistency of decision-making on Article 8 claims at all levels to have express regard to ss.117A-117D considerations herself, but she is not directly bound to do so.
(c) whilst expressed in mandatory terms, the considerations specified are not expressed as being exhaustive: note use of the phrase ‘in particular’ in s.117A(2): ‘ In considering the public interest question, the court or tribunal must (in particular) have regard- ‘.
(d) section 117B enumerates considerations that are applicable ‘in all cases’, which must include foreign criminal cases. Thus when s.117C (which deals with foreign criminals) states that it sets out ‘additional’ considerations that must mean considerations in addition to those set out in s.117B.
(e) sections 117A-117D do not represent any kind of radical departure from or ‘override’ of previous case law on Article 8 so far as concerns the need for a structured approach. In particular, they do not disturb the need for judges to ask themselves the five questions set out in Razgar [2004] UKHL 27. Sections 117A-117D are essentially a further elaboration of Razgar’s question 5 which is essentially about proportionality and justifiability.
(2) It is not an error of law to fail to refer to ss.117A-117D considerations if the judge has applied the test he or she was supposed to apply according to its terms; what matters is substance, not form.

Citations:

[2015] UKUT 90 (IAC), [2015] INLR 521, [2015] Imm AR 651

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002

Jurisdiction:

England and Wales

Immigration

Updated: 08 August 2022; Ref: scu.547313

Raj and Knoll Ltd, Regina (on The Application of) v Secretary of State for The Home Department: Admn 14 May 2015

The Court considered: ‘one of the first cases to come before the courts in respect of the ‘Tier 2’ Points-Based System operated by the UK Visas and Immigration section of the Home Department licence scheme which covers the employment sector. The ‘Tier 2’ Points-Based System is a scheme operated on behalf of the Secretary of State for the Home Department (‘SSHD’) whereby skilled non-EEA workers are allowed leave to remain in the UK to fill particular jobs which cannot be filled by settled EEA workers.’

Judges:

Haddon-Cave J

Citations:

[2015] EWHC 1329 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 08 August 2022; Ref: scu.546766

Gudanaviciene and Others, Regina (on The Application of) v The Director of Legal Aid Casework and Others: CA 15 Dec 2014

Article 8 requires that an appeal against a deportation order by reference to it should be effective. The court
(a) cited at para 65 the decision of the ECtHR in W v United Kingdom (1988) 10 EHRR 29, para 64, to the effect that article 8 required that parents who had sought contact with a child in care should have been involved in the decision-making process to a degree sufficient to provide the requisite protection of their interests;
(b) held at para 69 that the same requirement applied to article 8 claims by immigrants; and
(c) concluded at para 70 that it amounted to a requirement that their access to the tribunal should be effective.

Judges:

Lord Dyson MR, Richards, Sullivan LJJ

Citations:

[2014] EWCA Civ 1622, [2015] 1 WLR 2247, [2014] WLR(D) 547, [2015] 3 All ER 827

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Gudanaviciene and Others v Director of Legal Aid Casework and Another Admn 13-Jun-2014
The six claimants challenged the refusal of the Director of Legal Aid Casework to grant legal aid to the claimants. The cases raise common issues concerning the availability of legal aid in immigration cases under Section 10 of the 2012 Act. . .

Cited by:

Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Immigration, Human Rights

Updated: 08 August 2022; Ref: scu.539982

Thayalan, Regina (on The Application of) v Secretary of State for The Home Department: Admn 19 Mar 2015

Claim for judicial review of a decision by the defendant refusing the claimant’s application for naturalisation and of a decision by the defendant refusing the application by the claimant for reconsideration of that application.

Judges:

Patterson DBE J

Citations:

[2015] EWHC 746 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 08 August 2022; Ref: scu.544841

Detention Action, Regina (on The Application of) v Secretary of State for The Home Department: CA 16 Dec 2014

The claimant charity assisting asylum seekers challenged the system of detaining applicants under a fast track system. The charity had succeeded, but only in part and now argued that once the judge had decided that the manner in which the DFT was being operated created an unacceptable risk of unfair determinations and was to that extent being operated unlawfully, the judge had no discretion to exercise but was bound to make the orders asked for and bring the whole DFT operation to a halt until it was operating lawfully.

Judges:

Beatson, Floyd, Fulford LJJ

Citations:

[2014] EWCA Civ 1634

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Detention Action v Secretary of State for The Home Department Admn 9-Jul-2014
The claimant challenged the lawfulness of the policy and practice applied by the Secretary of State for the Home Department in the operation of the Detained Fast Track, DFT. This is the policy for the detention of some asylum seekers, while their . .
First expedited appeal – Detention Action, Regina (on The Application of) v Secretary of State for The Home Department CA 9-Oct-2014
The court was asked as to the application of the fast track detention system imposed by the respondent. The court now heard an expedited appeal against a decsion that it was unlawful. . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 08 August 2022; Ref: scu.539981

Detention Action, Regina (on The Application of) v Secretary of State for The Home Department: CA 9 Oct 2014

The court was asked as to the application of the fast track detention system imposed by the respondent. The court now heard an expedited appeal against a decsion that it was unlawful.

Judges:

Longmore, Patten, Ryder LJJ

Citations:

[2014] EWCA Civ 1270, [2014] WLR(D) 426

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Detention Action v Secretary of State for The Home Department Admn 9-Jul-2014
The claimant challenged the lawfulness of the policy and practice applied by the Secretary of State for the Home Department in the operation of the Detained Fast Track, DFT. This is the policy for the detention of some asylum seekers, while their . .

Cited by:

First expedited appeal – Detention Action, Regina (on The Application of) v Secretary of State for The Home Department CA 16-Dec-2014
The claimant charity assisting asylum seekers challenged the system of detaining applicants under a fast track system. The charity had succeeded, but only in part and now argued that once the judge had decided that the manner in which the DFT was . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 08 August 2022; Ref: scu.537462