Category: Immigration

KA and others (Adequacy of Maintenance) Pakistan: IAT 4 Sep 2006

The Tribunal adopted the level of income support as the test of adequate maintenance – at that level it could not be said that the family were not properly maintained but neither should it be contemplated that immigrants would live below that level.

Judges:

Mr C M G Ockelton DP

Citations:

[2006] UKAIT 00065, [2007] AR 155

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Approved – AM (Ethiopia) and others v Entry Clearance Officer CA 16-Oct-2008
When applying for entry under a sponsorship arrangement, the three applicable rules disallowed third party support.
Laws LJ said: ‘The immigrant’s article 8 rights will (must be) protected by the Secretary of State and the court whether or not . .
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 . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 19 July 2022; Ref: scu.245053

Regina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal: Admn 25 Mar 2004

The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be removed by the clearest of words. A right remained, but it was severely circumscribed because of the alternative and preferred forms of challenge. The procedure was not discriminatory because by its nature it could only apply to non-nationals.

Judges:

Mr Justice Collins

Citations:

[2004] EWHC 588 (Admin), Times 13-May-2004, [2004] ACD 85, [2004] 3 All ER 286, [2004] 1 WLR 2953

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 101(3), Civil Procedure Rules 54.25(4)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Cited – Regina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Cited – Sivasubramaniam v Wandsworth County Court, Management of Guildford College of Further and Higher Education and Another CA 28-Nov-2002
Having had various claims made in county courts rejected, the applicant was then refused leave to appeal. He sought judicial review of the refusal to give leave to appeal, and now appealed the refusal of leave to apply for a judicial review.
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Westminster City Council v O’Reilly and others CA 1-Jul-2003
The defendant sought to appeal against a decision of the High Court on a case stated by the Magistrates.
Held: A decision by the High Court on an appeal by way of case stated from the Magistrates was final, and no further appeal lay to the . .
Cited – Cheltenham Builders Ltd , Regina (on the Application of) v South Gloucestershire District Council Admn 10-Nov-2003
A claim was made for the review of a decision of the Council to amend the Register of Town and Village Greens (TVG).
Held: The registration of the TVG was manifestly flawed and could not stand whether under section 14 or by way of judicial . .
Cited – United Australia Ltd v Barclays Bank Ltd HL 1940
A person whose goods were wrongfully converted by another had a choice of two remedies against the wrongdoer. He could recover damages, in respect of the loss he had sustained by the conversion, or he could recover the proceeds of the conversion . .
Cited – In re Racal Communications Ltd; In Re a Company HL 3-Jul-1980
Court of Appeal’s powers limited to those Given
The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over . .
Cited – Regina v Inland Revenue Commission ex parte Preston; In re Preston HL 1984
Duty of Fairness to taxpayer – Written Assurance
The applicant was assured by the Inland Revenue that it would not raise further inquiries on certain tax affairs if he agreed to forgo interest relief which he had claimed and to pay a certain sum in capital gains tax.
Held: Where the . .
Cited – Leech v Governor of Parkhurst Prison HL 1988
The House was asked whether a disciplinary decision by a governor was amenable to judicial review.
Held: The functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; . .
Cited – Regina v Birmingham City Council ex parte Ferrero Ltd CA 1993
The case concerned the prohibition in respect of chocolate eggs containing plastic toys one of which had been swallowed by and choked to death a small boy, and a power in the interests of public safety to prohibit the sale of particular goods, which . .
Cited – Maaouia v France ECHR 5-Oct-2000
A deportation order, made against a Tunisian, was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to . .
Cited – Saleem v Secretary of State for Home Department CA 13-Jun-2000
A rule which deemed service on an asylum applicant two days after postage of a special adjudicator’s determination irrespective of whether it was in fact received was outside the powers given to the Secretary, and is of no effect. The Act gave power . .
Cited – Hindawi and Another v Secretary of State for the Home Department Admn 29-Jan-2004
The prisoner was subject to a long term of imprisonment, and also to a deportation order which was to take effect upon his release. He complained that, because of the latter, he had not been considered for parole, and that this was discriminatiry. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Judicial Review, Civil Procedure Rules

Updated: 19 July 2022; Ref: scu.195000

Regina v Immigration Appeal Tribunal ex parte Patel: HL 1988

The respondent, a stateless person with an identity certificate rather than a passport, had obtained entry clearance to the UK by falsely representing that he was a single man.
Held: Where fraud has been exercised to obtain leave to enter that is a sufficient ground for exclusion of the fraudster from the United Kingdom on the grounds that such exclusion is conducive to the public good Conduct such as entering a marriage of convenience or using other forms of deception can constitute conduct that can result in a lawful decision to deport irrespective of whether there has been a criminal conviction.

Judges:

Lord Bridge of Harwich, Lord Elwyn-Jones, Lord Ackner, Lord Goff of Chieveley, Lord Jauncey of Tullichettle

Citations:

[1988] AC 910, [1988] UKHL 14, [1988] 2 WLR 1165, [1988] Imm AR 434, [1988] 2 All ER

Links:

Bailii

Statutes:

Immigration Act 1971 33(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (James Yankey) v Secretary of State for Home Department Admn 7-Aug-2001
The applicant appealed refusal of leave to enter the UK. He had used a false passport. Where fraud has been exercised to obtain leave to enter, that is a sufficient ground for exclusion of the fraudster from the United Kingdom, on the grounds that . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 19 July 2022; Ref: scu.183459

Taj, Regina (on The Application of) v The Secretary of State for The Home Department: CA 20 Jan 2021

This appeal concerns the application of the common law principle of procedural fairness to a points-based system for determining whether a person should be granted leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant as set out under Paragraph 245DD of the Immigration Rules

Judges:

Lord Justice Green

Citations:

[2021] EWCA Civ 19

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 July 2022; Ref: scu.657312

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 of discrimination arise under article 14.
However, the appendix with instructions for entry clearance officers considering the situation was inadequate: ‘Rather than treating the best interests of children as a primary consideration, taking account of the factors summarised in Jeunesse, they lay down a highly prescriptive criterion requiring ‘factors . . that can only be alleviated by the presence of the applicant in the UK’, such as support during a major medical procedure, or ‘prevention of abandonment where there is no other family member . . ‘. ‘
and ‘while the rules as such are not open to challenge, there are aspects of the instructions to entry clearance officers which require revision to ensure that the decisions made by them are consistent with their duties under the HRA. In the light of that conclusion, the Secretary of State might wish to consider whether it would be more efficient to revise the rules themselves, to indicate the circumstances in which alternative sources of funding should or might be taken into account, rather than simply to revise the guidance.’
‘The MIR is part of an overall strategy aimed at reducing net migration. Its particular aims are no doubt entirely legitimate: to ensure, so far as practicable, that the couple do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life. As accepted by the courts below, those aims are sufficient to justify the interference with, or lack of respect for, the article 8 right . . we would also reject the suggestion that there is no rational connection between those legitimate aims and the particular income threshold chosen. The work of the Migration Advisory Committee is a model of economic rationality. Even though it had to make certain assumptions, it was careful to identify and rationalise these. Making those assumptions, it arrived at an income figure above which the couple would not have any recourse to welfare benefits, including tax credits and housing benefits. That being a legitimate aim, it is also not possible to say that a lesser threshold, and thus a less intrusive measure, should have been adopted. It may, of course, have a disproportionate effect in the particular circumstances of an individual case, but that is not the claim currently before us . . ‘

Judges:

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge

Citations:

[2017] UKSC 10, [2017] 1 WLR 771, [2017] Imm AR 729, [2017] HRLR 6, [2017] WLR(D) 124, [2017] INLR 575, UKSC 2015/0011

Links:

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

Statutes:

Immigration Rules, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Appeal from – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Appeal from – The Secretary of State for The Home Department v SS (Congo) and Others CA 23-Apr-2015
The court considered the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here. . .
Cited – KA and others (Adequacy of Maintenance) Pakistan IAT 4-Sep-2006
The Tribunal adopted the level of income support as the test of adequate maintenance – at that level it could not be said that the family were not properly maintained but neither should it be contemplated that immigrants would live below that level. . .
Cited – AM (Ethiopia) and others v Entry Clearance Officer CA 16-Oct-2008
When applying for entry under a sponsorship arrangement, the three applicable rules disallowed third party support.
Laws LJ said: ‘The immigrant’s article 8 rights will (must be) protected by the Secretary of State and the court whether or not . .
At First Instance – MM and Others v Secretary of State for The Home Department Admn 5-Jul-2013
WLRD When applied to either recognised refugees or British citizens Appendix FM of the Statement of Changes in Immigration Rules (HC 395), as inserted, which prevented entry clearance to a party to a marriage . .
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 – 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 – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
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 – 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 – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
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 – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
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 – 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 – IAA And Others v The United Kingdom ECHR 13-Jan-2014
. .
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 – 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 . .
Cited – Ahmut v The Netherlands ECHR 28-Nov-1996
The bond between natural parents and their children is a strong indicator of the existence of family life: ‘from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to ‘family life’, . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – Konstatinov v The Netherlands ECHR 26-Apr-2007
The applicant, of Roma origin with a troubled and criminal history. The Court considered the minister’s refusal of her request for a residence permit to enable her to live with her husband (entitled to permanent residence since 1988) and their son . .
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 – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – Y v Russia ECHR 4-Dec-2008
The applicants complained about the first applicant’s deportation to China, about his unlawful detention, about the disruption of their family life and about the absence of domestic remedies. They referred to Articles 3, 5, 8 and 13 of the . .
Cited – O’Donoghue and Others v United Kingdom ECHR 14-Dec-2010
. .
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 – 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 – 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 – 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 – AM (Ethiopia) and others v Entry Clearance Officer CA 16-Oct-2008
When applying for entry under a sponsorship arrangement, the three applicable rules disallowed third party support.
Laws LJ said: ‘The immigrant’s article 8 rights will (must be) protected by the Secretary of State and the court whether or not . .
Cited – Jones v First Tier Tribunal and Another SC 17-Apr-2013
The claimant had been injured when a lorry driver swerved to avoid hitting a man who stood in his path. He said that the deceased’s act of suicide amounted to an offence of violence under the 1861 Act so as to bring his own claim within the 2001 . .
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 – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Cited – The Secretary of State for The Home Department v SS (Congo) and Others CA 23-Apr-2015
The court considered the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here. . .
Cited – Mukarkar v Secretary of State for the Home Department CA 25-Jul-2006
The applicant, a Yemeni citizen, obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. He had numerous ailments and his health was continuing to . .
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.
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Family

Updated: 19 July 2022; Ref: scu.575312

Johnson, Regina (on The Application of) v Secretary of State for The Home Department: SC 19 Oct 2016

The court was asked: ‘Is it compatible with the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were not married to one another at the time of his birth or at any time thereafter? If the parents had been married to one another, their child would have been a British citizen. If the mother had been British and the father non-British, their child would have been a British citizen. If the child had been born after 1 July 2006 he would have been a British citizen. The child is not responsible for the marital status of his parents or the date of his birth, yet it is he who suffers the consequences.’
Held: The appeal was allowed. The liability to deportation by reason of the accident of his birth outside wedlock was unlawfully discriminatory.
The right to a nationality is not as such a Convention right but denial of citizenship when it has
important effects on a person’s identity falls within the ambit of article 8 and so triggers the application
of the prohibition of discrimination in article 14. Birth outside wedlock is a ‘status’ for the
purpose of article 14 and falls within the class of ‘suspect’ grounds where very weighty reasons are
required to justify discrimination. In Mr Johnson’s case, what needed to be justified was his
current liability to deportation when he would not be so liable but for the accident of birth outside
wedlock for which he was not responsible. No justification had been suggested for this and it cannot
therefore be said that his claim that deportation would breach his Convention rights was clearly unfounded.

Judges:

Lady Hale, Deputy President, Lord Kerr, Lord Reed, Lord Hughes, Lord Toulson

Citations:

[2016] UKSC 56, UKSC 2016/0042, [2016] WLR(D) 531, [2017] AC 365, [2017] INLR 235, [2016] 3 WLR 1267, [2017] Imm AR 306, 41 BHRC 711

Links:

Bailii, Bailii Summary, SC, SC Summary, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Genovese v Malta ECHR 11-Oct-2011
The applicant was illegitimate, born to a British mother and a Maltese father. Paternity had been established scientifically and in judicial proceedings. The father refused to recognise his son on the birth certificate, and the applicant’s mother . .
At Admn – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department Admn 17-Jul-2014
The court was asked whether the Claimant’s proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence, involves a violation of article 14 in conjunction with article 8 of the European Convention on . .
Cited – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department CA 26-Jan-2016
The appellant was Jamaican by birth, but had lived here with his British father since the age of four. Had his parents been married, he would have had British nationality. As he grew to an adult he was convicted on several serious matters. He now . .
At CA – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department CA 26-Jan-2016
The appellant was Jamaican by birth, but had lived here with his British father since the age of four. Had his parents been married, he would have had British nationality. As he grew to an adult he was convicted on several serious matters. He now . .
Cited – K v Netherlands ECHR 1-Jul-1985
Discrimination; Immigration; Nationality; Right to respect for private and family life . .
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
Cited – Karassev v Finland ECHR 12-Jan-1999
Admissibility. The arbitrary denial of citizenship may violate the right to respect for private life under Article 8. The Convention did not guarantee the right to acquire a particular nationality. Nevertheless, it did ‘not exclude that an arbitrary . .
Lists of cited by and citing cases may be incomplete.

Children, Immigration, Human Rights

Updated: 19 July 2022; Ref: scu.570161

The Secretary of State for The Home Department v SS (Congo) and Others: CA 23 Apr 2015

The court considered the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here.

Judges:

Richards, Underhill, Sales LJJ

Citations:

[2015] EWCA Civ 387, [2015] WLR(D) 199, [2015] Imm AR 1036, [2015] INLR 683, [2016] 1 All ER 706

Links:

Bailii, WLRD

Statutes:

Immigration Act 1971

Jurisdiction:

England and Wales

Citing:

Cited – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .

Cited by:

Appeal from – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 19 July 2022; Ref: scu.545937

MM and Others v Secretary of State for The Home Department: Admn 5 Jul 2013

WLRD When applied to either recognised refugees or British citizens Appendix FM of the Statement of Changes in Immigration Rules (HC 395), as inserted, which prevented entry clearance to a party to a marriage where the income of the sponsor did not meet the minimum threshold, was a disproportionate interference with the right to respect for family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Judges:

Blake J

Citations:

[2013] EWHC 1900 (Admin), [2013] WLR(D) 280, [2014] Imm AR 245, [2014] 1 WLR 2306

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
At First Instance – 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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, Family

Updated: 19 July 2022; Ref: scu.512208

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’

Judges:

Laws, Black LJJ, Mann J

Citations:

[2013] EWCA Civ 550, [2013] WLR(D) 192, [2013] Imm AR 1106, [2014] 1 WLR 998

Links:

Bailii, WLRD

Statutes:

Human Rights Act 1998

Jurisdiction:

England and Wales

Cited by:

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

Immigration

Updated: 19 July 2022; Ref: scu.510077

Regina (Purzia) v Secretary of State for the Home Department: Admn 2011

The court considered what matters had to be incorporated directly within the Immigration Rules, and what might be properly contained in documents referred to by the Rules.
Held: There is a spectrum that operates on the extent to which the requirement is substantive at one end of the spectrum and or relates to matters that are procedural at the other.

Judges:

Ian Dove QC

Citations:

[2011] EWHC 3276 (Admin)

Statutes:

Immigration Rules

Jurisdiction:

England and Wales

Cited by:

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

Immigration

Updated: 19 July 2022; Ref: scu.463646

Nunez v Norway: ECHR 28 Jun 2011

Article 8 rights can be sufficient to tip the balance in favour against deportation of an immigrant.

Citations:

55597/09, [2011] ECHR 1047, (2011) 58 EHRR 17

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

Human Rights

Cited by:

Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, Family

Updated: 19 July 2022; Ref: scu.441267

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 children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
– the solidity of social, cultural and family ties with the host country and with the country of destination.’ and
‘The Court considered itself called upon to establish ‘guiding principles’ in the Boultif case because it had ‘only a limited number of decided cases where the main obstacle to expulsion was that it would entail difficulties for the spouses to stay together and, in particular, for one of them and/or the children to live in the other’s country of origin’ . . It is to be noted, however, that the first three guiding principles do not, as such, relate to family life. This leads the Court to consider whether the ‘Boultif criteria’ are sufficiently comprehensive to render them suitable for application in all cases concerning the expulsion and/or exclusion of settled migrants following a criminal conviction. It observes in this context that not all such migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy ‘family life’ there within the meaning of article 8. However, as article 8 also protects the right to establish and develop relationships with other human beings and the outside world (see Pretty v the United Kingdom, no.2346/02, [61], (2002) 35 EHRR 1) and can sometimes embrace aspects of an individual’s society identity (see Mikulic v Croatia, No.53176/99, [53], BAILII: [2002] ECHR 27), it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of ‘private life’ within the meaning of article 8. Regardless of the existence or otherwise of a ‘family life’, therefore, the court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the ‘family life’ rather than the ‘private life’ aspect.
In the light of the foregoing, the Court concludes that all the above factors (see [57]-[59]) should be taken into account in all cases concerning settled migrants who are to be expelled and/or excluded following a criminal conviction.’

Citations:

[2006] ECHR 873, [2007] INLR 273, [2007] Imm AR 303, (2007) 45 EHRR 14, 46410/99

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Citing:

Confirmed – 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 . .
See Also – Uner v The Netherlands ECHR 5-Jul-2005
Where a court considered the expulsion of a non-national who was long settled but had been convicted of criminal offences, the interest and well-being of any child of the family must be considered. . .

Cited by:

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 – MJ (Angola) v Secretary of State for The Home Department CA 20-May-2010
The applicant had been ordered to be deported and returned to Angola, but at the same time he was a detained mental patient. He argued that a return would breach his Article 8 rights.
Held: The respondent was entitled to decide to deport the . .
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 – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Children, Immigration

Updated: 19 July 2022; Ref: scu.401809

Z, Regina (on the Application Of) v Secretary of State for the Home Department: Admn 18 Jun 2008

The claimant challenged the Secretary of State’s refusal to treat various representations made over the years as amounting independently or together to a fresh claim under paragraph 353 of the Immigration Rules.

Judges:

Mitting J

Citations:

[2008] EWHC 1600 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 July 2022; Ref: scu.278421

AM (Ethiopia) and others v Entry Clearance Officer: CA 16 Oct 2008

When applying for entry under a sponsorship arrangement, the three applicable rules disallowed third party support.
Laws LJ said: ‘The immigrant’s article 8 rights will (must be) protected by the Secretary of State and the court whether or not that is done through the medium of the immigration rules. It follows that the rules are not of themselves required to guarantee compliance with the article.’

Judges:

Pill, Laws and Carnwath LJJ

Citations:

[2008] EWCA Civ 1082, [2009] Imm AR 254

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Adopted – Odelola v Secretary of State for the Home Department CA 10-Apr-2008
The claimant applied for leave to remain in the United Kingdom as a postgraduate doctor. The immigration rules which had been laid before Parliament in accordance with section 3(2) of the 1971 Act and which were current at the time of her . .
Approved – KA and others (Adequacy of Maintenance) Pakistan IAT 4-Sep-2006
The Tribunal adopted the level of income support as the test of adequate maintenance – at that level it could not be said that the family were not properly maintained but neither should it be contemplated that immigrants would live below that level. . .

Cited by:

Cited – De Oliveira, Regina (on the Application of) v Secretary of State for the Home Department Admn 9-Mar-2009
The claimant wished to be allowed to stay in the UK to complete her studies. The respondent said that her course did not meet the criteria, being for professional membership of the British Computer Society, and not at a formal degree level . .
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 – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Education

Updated: 19 July 2022; Ref: scu.276973

MQ (Afghanistan) v Secretary of State for the Home Department: CA 10 Sep 2008

Renewed application for permission to appeal following refusal on sight of the papers. The applicant, was the son of a violent Afghan militia leader who in 2004 was executed after a summary trial for an appalling series of murders. The son made no attempt to defend his father; on the contrary he said he himself was now at risk and therefore entitled to humanitarian protection for two main reasons: that his father’s execution was designed to protect the head of his faction whom the father could otherwise have implicated. If so, it is said the applicant too may be targeted by the same elements who now enjoy state power and were apparently responsible for the killing of his elder brother at the family home in Kabul not long after the father’s execution. The other reason was that the applicant may well be directly at risk from the families of his father’s many victims.

Judges:

Sedley LJ

Citations:

[2008] EWCA Civ 1056

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 July 2022; Ref: scu.276765

HJ (Iran) v Secretary of State for the Home Department: CA 2 Sep 2008

Application for leave to appeal against refusal of asylum – fear of persecution.

Judges:

Longmore LJ

Citations:

[2008] EWCA Civ 1019

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – HJ (Iran) v Secretary of State for the Home Department CA 5-Dec-2006
. .

Cited by:

See Also – HJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Same CA 10-Mar-2009
Each applicant had had his appeal for asylum rejected. They had said that they were practising homosexuals, and that they would face persecution if returned home.
Held: The appeals failed. In each case the social norms of the country of origin . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 19 July 2022; Ref: scu.276761

US (Nepal) v Secretary of State for the Home Department: CA 10 Sep 2008

Application by a Nepalese woman who fled from the employment of a Middle Eastern royal family in this country and initially, possibly on poor advice, sought asylum here. This having failed, she more tenably sought admission under the policy which for a good many years has allowed immigrant workers in her claimed situation to remain here.

Judges:

Sedley LJ

Citations:

[2008] EWCA Civ 1057

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 July 2022; Ref: scu.276770

Ahmed, Regina (on the Application of) v Asylum Support Adjudicator and Another: Admn 2 Oct 2008

The claimant, a failed asylum seeker, sought judicial review of the refusal to him of accomodation

Judges:

Silber J

Citations:

[2008] EWHC 2282 (Admin)

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 4, Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005

Jurisdiction:

England and Wales

Immigration, Housing

Updated: 19 July 2022; Ref: scu.276536

Mudey, Regina (on the Application of) v Secretary of State for the Home Department: Admn 11 Jun 2008

Renewed application for permission to apply for judicial review of the defendant’s decision on 11th December 2007 to remove the claimant, who comes from Somalia, to Greece under the provisions of the Dublin Convention.

Judges:

Sullivan J

Citations:

[2008] EWHC 2118 (Admin)

Links:

Bailii

Immigration

Updated: 19 July 2022; Ref: scu.276231

Lumba, Regina (on the Application of) v Secretary of State for the Home Department: Admn 4 Jul 2008

The failed asylum claimant challenged as unlawful his continued detention pending return to Congo.

Judges:

Collins J

Citations:

[2008] EWHC 2090 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .

Cited by:

At first instance – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
At First Instance – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 19 July 2022; Ref: scu.276241

Secretary of State for the Home Department v AP: Admn 12 Aug 2008

The court reviewed the need for the control order made against AP.

Judges:

Keith J

Citations:

[2008] EWHC 2001 (Admin)

Links:

Bailii

Statutes:

Prevention of Terrorism Act 2005, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Cited by:

Appeal from – AP v Secretary Of State for the Home Department CA 15-Jul-2009
. .
At First Instance – Secretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration, Human Rights

Updated: 19 July 2022; Ref: scu.272760

Jamshidi, Regina (on the Application of) v Secretary of State for the Home Department: Admn 23 Jun 2008

The claimant sought to challnge his continued detention by way of judicial review. His asylum application had been rejected.

Judges:

Sir George Newman

Citations:

[2008] EWHC 1990 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Rostami, Regina (on the Application of) v Secretary of State for the Home Department QBD 7-Aug-2009
The claimant had been detained for nearly three years while his application for asylum was determined. He sought judicial review, saying that the detention was unlawful. Whilst in detention he had self harmed and said: ‘I will stay in detention for . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 19 July 2022; Ref: scu.272807

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 human rights grounds. The respondent had a policy that the applicant must return to the home country and make her application from there.
Held: The appeal succeeded. Particularly in cases involving the human rights of children caution must be exercised before requiring out of country applications.
Lord Scott of Foscote: ‘policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not. ‘ and ‘it must be disproportionate to expect a four year old girl, who was born and has lived all her life here, either to be separated from her mother for some months or to travel with her mother to endure the ‘harsh and unpalatable’ conditions in Zimbabwe simply in order to enforce the entry clearance procedures.’
Lord Brown: ‘This appellant came to the UK to seek asylum, met an old friend from Zimbabwe, married him and had a child. He is now settled here as a refugee and cannot return. No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the appellant and her child must first travel back (perhaps at the taxpayer’s expense) to Zimbabwe, a country to which the enforced return of failed asylum-seekers remained suspended for more than two years after the appellant’s marriage and where conditions are ‘harsh and unpalatable’, and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the UK to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer. ‘

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscot, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2008] UKHL 40, [2008] 1 WLR 1420, Times 26-Jun-2008, [2009] 1 All ER 363, [2008] HRLR 39, [2008] INLR 502, [2008] UKHRR 1008, [2008] Imm AR 700

Links:

Bailii, HL

Statutes:

Immigration and Asylum Act 1999 65, Nationality, Immigration and Asylum Act 2002 82 84, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Beoku Betts v Secretary of State for the Home Department CA 6-Jul-2005
The appellant arrived aged 19 from Sierra Leone and was granted leave to enter as a student, which leave was extended. His famiy had been politically active and suffered abuse after a coup. When his leave expired he applied for asylum. Other family . .
Applied – Beoku Betts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Appeal from – Chikwamba v Secretary of State for the Home Department CA 16-Nov-2005
The claimant was ordered to return to Zimbabwe to make her asylum claim from there. She argued that it would infringe her human rights. She now had a young daughter here. The IAT had dismissed her appeal on the basis that the appellant could and . .
Cited – Regina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .
Cited – Ekinci, Regina (on the Application of) v Secretary of State for the Home Department CA 17-Jun-2003
The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements . .
Cited – Mukarkar v Secretary of State for the Home Department CA 25-Jul-2006
The applicant, a Yemeni citizen, obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. He had numerous ailments and his health was continuing to . .
Cited – Regina (Yaser Mahmood) v Secretary of State for Home Department Admn 9-Aug-2001
The Home Secretary had served notice that the applicant was an illegal immigrant, and liable to deportation. An order had been made for the cross examination of the applicant. He had come to England to study, but soon dropped his immediate plans. He . .
Cited – SB (Bangladesh) v Secretary of State for the Home Department CA 31-Jan-2007
A Bangladeshi woman entered into an arranged polygamous marriage in Bangladesh and many years later dishonestly (led by her husband) obtained entry clearance as a visitor before then unsuccessfully seeking leave to remain as being financially . .

Cited by:

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 – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – MA (Pakistan) v Secretary of State for the Home Department CA 27-Jul-2009
The claimant appealed against refusal of leave to enter and cancelling his leave to remain. He had made his claim on human rights grounds, saying that the refusal would split him from his wife. He had been told that he would have to renew his . .
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 . .
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 – 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. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Children

Updated: 18 July 2022; Ref: scu.270385

Mukarkar v Secretary of State for the Home Department: CA 25 Jul 2006

The applicant, a Yemeni citizen, obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. He had numerous ailments and his health was continuing to deteriorate. In allowing his appeal the adjudicator concluded that he needed ‘permanent and constant home help’ and that it was not reasonable to expect any of his children ‘to run the risk of losing their jobs merely to accompany him back to the Yemen to stay for an indeterminate period of time whilst the application is being considered or whilst he is waiting for an appeal to be heard’. He now appealed the AIT’s reversal of that decision, and sought to be allowed to stay in the UK on human rights grounds.
Held: The appeal was allowed. The reforms brought in in 2005 were intended to restrict appeals on factual grounds. Those reforms affected the crown as much as it did applicants, and the minister had a duty to give a lead in respecting those reforms. That might mean that sometimes the government must accept decisions which went against the grain. The adjudicator was entitled to have regard to ‘the timescale likely to be involved and its consequences for the care of the appellant in the meantime. In considering the reasonableness of expecting one or more of his children to leave their commitments in this country to look after him on his return to the Yemen, it was material to consider whether such absence would be for a defined and limited period, or indeterminate.’
Carnwath LJ: ‘Ekinci was a decision on its own facts; it did not purport to lay down any general proposition of law.’ and ‘It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case . . The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law . . Nor does it create any precedent, so as to limit the Secretary of State’s right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected.’

Judges:

Auld LJ, Carnwath LJ, Seley LJ

Citations:

[2006] EWCA Civ 1045, Times 16-Aug-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ekinci, Regina (on the Application of) v Secretary of State for the Home Department CA 17-Jun-2003
The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements . .

Cited by:

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

Immigration, Human Rights

Updated: 18 July 2022; Ref: scu.243400

Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department: Admn 10 Apr 2006

The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The applicants said this was discriminatory and infringed their human rights.
Held: Legislation which prevented marriages of convenience between aliens and nationals as a means of immigration control could be justified, but the exemption only of marriages conducted in accordance with the rites of the Church of England made the legislation discriminatory: ‘the jurisprudence of the European Commission on Human Rights expressly permits the introduction of legislation to prevent marriages entered into for the purpose of avoiding immigration control notwithstanding that this legislation might interfere with the right to marry.’ and ‘the Secretary of State and Parliament are entitled to substantial deference in determining what restrictions, if any, are appropriate to impose on article 12 rights ‘ There is clear evidence of sham marriages entered into to secure residence in the UK. However there was no evidence to justify the distinction between the use of the different forms of ceremony. The legislation took no account of steps which would be taken by other religions which might have the same protective effect as those of the rites of the Church of England. The legislation took no account either of evidence that the relationship to be solemnised may have been demonstrably long standing and loving. ‘[T]he new regime is not rationally connected to the legislative objective as it regards the only and crucial relevant factors in determining whether a non EU national can marry in this country as his or her immigration status or the length of an outstanding application . .’, and nor were those present for less than three months allowed to make any representations. The regime was not proportionate.

Judges:

Silber J

Citations:

[2006] EWHC 823 (Admin), Times 14-Apr-2006, [2007] 1 WLR 693, [2006] 36 Fam Law 535, [2006] 2 FLR 645, [2006] 2 FCR 131, [2006] 3 All ER 608

Links:

Bailii

Statutes:

European Convention on Human Rights 12 14, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19-25, Immigration (Procedure for Marriage) Regulations 2005, Marriage Act 1949, Immigration Rules and the Immigration (European Economic Area) Regulations 2000

Jurisdiction:

England and Wales

Citing:

Cited – Taylor v Lancashire County Council and others CA 17-Mar-2005
The tenant occupied his farm under a lease limiting his use of the farm. He was found to be trading in breach of his covenant and a notice to quit was issued and possession sought. He argued that the 1986 Act was discriminatory and inadequate to . .
Cited – Hamer v United Kingdom ECHR 1979
(Commission) The Commission considered the right of a prisoner in prison to get married.
Held: A rule against such marriages was incompatible with article 12. The Commission explained the power of national laws in relation to article 12: ‘Such . .
Cited – F v Switzerland ECHR 18-Dec-1987
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 12; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Klip and Kruger v Netherlands ECHR 1997
The Commission heard a complaint that the parties’ article 12 rights were infringed because under Dutch Act on prevention and suppression of marriages of convenience, there had to be a systematic examination of all intended marriages involving . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Sanders v France ECHR 1996
A male Turkish national and a female French national, living together in Istanbul, complained of delays in obtaining a certificate of capacity to marry under French law. The issue as to the obtaining of a certificate related to (alleged) concerns . .
Cited – A v United Kingdom ECHR 1982
The Commission considered a complaint where entry clearance was refused for the Philippine fiancee of a disabled man of limited means on the basis that she did not have the means to maintain and support herself without access to public funds.
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Vervaeke v Smith HL 1983
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
Cited – Netherlands ECHR 1985
(Commission ) The first applicant (a Moroccan) had come to the Netherlands and obtained a residence permit on the strength of a permanent relationship with a Dutch woman. That had failed, but he now wished to marry another Dutch national. The . .

Cited by:

See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another Admn 10-May-2006
The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought . .
See Also – Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department Admn 16-Jun-2006
The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages. . .
Appeal from – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Family, Immigration, Human Rights, Discrimination

Updated: 18 July 2022; Ref: scu.240336

Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another: Admn 10 May 2006

The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought damages.

Judges:

Silber J

Citations:

[2006] EWHC 1035 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 12 14, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19, Immigration (Procedure for Marriage) Regulations 2005

Jurisdiction:

England and Wales

Citing:

See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .

Cited by:

See Also – Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department Admn 16-Jun-2006
The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages. . .
See Also – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family, Human Rights

Updated: 18 July 2022; Ref: scu.241606

Baiai and Another, Regina (on the Application of) v Secretary of State for Home Department: Admn 16 Jun 2006

The 2004 Act and Regulations operated to prevent the claimant marrying. He succeeded in challenging the regulations, and now sought damages.

Judges:

Silber J

Citations:

[2006] EWHC 1454 (Admin), [2006] HRLR 39, [2007] 1 WLR 735, [2006] 4 All ER 555

Links:

Bailii

Statutes:

European Convention on Human Rights 12 14, Immigration (Procedure for Marriage) Regulations 2005, Asylum and Immigration (Treatment of Claimants etc) Act 2004 19

Jurisdiction:

England and Wales

Citing:

See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
See Also – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department and Another Admn 10-May-2006
The claimants had successfully brought judicial review of the defendant’s policies concluding that the defendant had unlawfully interfered with their right to family life by effectively preventing them marrying under the 2004 Act. They now sought . .

Cited by:

See Also – Secretary of State for the Home Department v Baiai and others CA 23-May-2007
The claimants challenged rules which meant that certain immigrants subject to immigration control were unable to marry, save only those marrying according to the rites of the Church of England.
Held: The rules were not justified by evidence . .
See Also – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family, Human Rights

Updated: 18 July 2022; Ref: scu.242573

Chikwamba v Secretary of State for the Home Department: CA 16 Nov 2005

The claimant was ordered to return to Zimbabwe to make her asylum claim from there. She argued that it would infringe her human rights. She now had a young daughter here. The IAT had dismissed her appeal on the basis that the appellant could and should return to Zimbabwe to apply there for entry clearance to return to the UK. They believed that her separation from her husband (who they accepted faced ‘an insurmountable obstacle to his own return to Zimbabwe’) would be for ‘a relatively short period’.
Held: Her appeal failed. Auld LJ said ‘[T]he fact that someone who has arrived in this country without the required entry clearance may be able to show that he would have been entitled to one does not, in the absence of exceptional circumstances, allow him to remain here without it.’

Judges:

Auld LJ, Jonathan Parker and Lloyd LJJ

Citations:

[2005] EWCA Civ 1779

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 . .
Appeal from – 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 – SB (Bangladesh) v Secretary of State for the Home Department CA 31-Jan-2007
A Bangladeshi woman entered into an arranged polygamous marriage in Bangladesh and many years later dishonestly (led by her husband) obtained entry clearance as a visitor before then unsuccessfully seeking leave to remain as being financially . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Children

Updated: 18 July 2022; Ref: scu.238607

Regina (Refugee Legal Centre) v Secretary of State for the Home Department: QBD 31 Mar 2004

The court declined to hold that the fast-track system of asylum adjudication at Harmondsworth Removal Centre was inherently unfair or therefore unlawful.

Judges:

Mr Justice Collins

Citations:

[2004] EWHC 684 (Admin), [2004] Imm AR 142

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appealed to – The Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .

Cited by:

Appeal from – The Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 18 July 2022; Ref: scu.195034

Razgar, Regina (on the Application of) v Secretary of State for the Home Department: Admn 2002

The claimant challenged the respondent’s certificate that his appeal was manifestly unfounded.
Held: The certificate was wrongly given.

Judges:

Richards J

Citations:

[2002] EWHC 2554 (Admin)

Statutes:

Immigration and Asylum Act 1999 72(2)(a)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
First Instance – 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 . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 18 July 2022; Ref: scu.184079

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 that his conviction for an offence of violence was sufficient justification for interfering with his rights.
Held: The Convention does not guarantee any right to inhabit a country. The refusal was in accordance with law, but the question was whether the interference in this manner was necessary in a democratic society. Although he had been convicted of a serious crime, the evidence was of rehabilitation. The interference in this case was not proportionate.
As to the suggested article 8 interference: ‘The Court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other’s country of origin. It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society.
In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant’s conduct in that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage; and other factors expressing the effectiveness of a couple’s family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.’

Citations:

54273/00, (2000) 22 EHRR 50, [2001] ECHR 497

Links:

Worldlii, Bailii

Statutes:

Convention for the Protection of Human Rights and Fundamental Freedoms 1953 (1953 Cmd 8969), European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
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 – 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 . .
Confirmed – 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 – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
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 – 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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 18 July 2022; Ref: scu.164814

Z, Re Judicial Review: SCS 27 Nov 2012

The petitioner said that in reaching her decision for the return of the petitioner with his wife and children to the Republic of Congo, she had not properly given priority to the interests of the children, and had wrongly refused to treat the petitioner’s submissions as a new claim.
Held: The appeal failed: ‘. A fair interpretation of what the respondent said at page 7 of her letter was that, in assessing overall the best interests of the children, she took into account that it would be in their best interests to be with their parents; that their Nationality was Congolese and that it would be in their best interests to be brought up within that culture; that educational facilities were an important factor in the assessment of best interests, and that the facilities in the UK would be better than those in the Congo, but that, in the absence of reliance on particular factors, the fact that the children would be returned along with their parents meant that the effect of the difference in educational opportunities between the UK and the Congo would not be particularly detrimental to them. ‘

Judges:

Lady Paton, Lady Dorrian, Lord McGhie

Citations:

[2012] ScotCS CSIH – 87, [2012] CSIH 87

Links:

Bailii

Statutes:

Euriopean Convention on Human Rights 8

Jurisdiction:

Scotland

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 18 July 2022; Ref: scu.466332

Ali, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 27 Nov 2012

The court was asked as to the entitlement of the claimant to a British Passport by virtue of descent from the person he said was his father.
Held: The decision of the IPS whether to issue or to withhold a British passport is one made under the Royal Prerogative which is subject to scrutiny on normal public law principles.
Burnett J said: ‘A decision by the Secretary of State whether to issue a British passport is one made under the Royal Prerogative. A decision refusing to issue a passport may be challenged in judicial review proceedings on public law grounds. Parliament has chosen not to accord to someone in the Claimant’s position a right of appeal to any court or tribunal. Before issuing a British passport to an individual the Secretary of State must be satisfied that the person concerned is entitled to it. It is common ground that it is for an applicant for a British passport to satisfy the Secretary of State of his entitlement. That is consistent with section 3(8) of the Immigration Act 1971 . . which provides that in connection with any question which arises under that Act whether or not a person is a British citizen, it is for him to prove it. However, a British passport is not issued pursuant to any power contained in the 1971 Act. It does not raise a question under that Act. Section 3(8) is not directly in play. In this case, the only basis upon which the Claimant asserts a right to a British passport is by descent from [the person he claimed was his father]. The question for the Secretary of State was whether, on the information available to her at the time of her decisions in 2009 and 2011, she was satisfied that the Claimant was the son of [the person he claimed was his father] and thus entitled to a British passport. The question for this court is whether it was open to the Secretary of State to conclude that he was not.’
Burnett J described the approach of the court against the background of the facts which involved the Defendant having previously issued a passport to the Claimant which he was simply seeking to renew when, at the renewal stage, the Defendant declined to do so: ‘The task of the court is the familiar one of evaluating whether the decision was one open to the Secretary of State on the information available to her, or otherwise considering conventional public law grounds of challenge. That is not to say that the fact that an individual has previously been issued with a British passport is not important in evaluating whether the decision reached was a rational one, in public law terms. It is unhelpful in this context to speak in terms of burdens of proof. The reality is that, having once been satisfied that an individual was entitled to a passport, the Secretary of State would need to advance cogent reasons that stood up to scrutiny why, on a later application, she was taking a different view. The refusal to renew the passport of someone who has enjoyed the benefits of a British passport for a decade is a serious step with serious consequences. No less would be required to satisfy a rationality test.’

Judges:

The Hon Mr Justice Burnett

Citations:

[2012] EWHC 3379 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 18 July 2022; Ref: scu.466301