Category: Immigration

BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another: Admn 9 Feb 2007

Judges:

Burnton J

Citations:

[2007] EWHC 199 (Admin)

Links:

Bailii

Cited by:

See Also – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another QBD 9-Feb-2007
The claimants said that changes to the Highy Skilled Migrant Programme were unfairly introduced, that they had effectively barred non-EU doctors from applying for first tier doctor appointments, and that the guidance could properly be derived only . .
Lists of cited by and citing cases may be incomplete.

Health Professions, Immigration

Updated: 09 July 2022; Ref: scu.248834

EA (Section 85, Explained) Nigeria: IAT 30 Jan 2007

New evidence admitted by the tribunal had to be ‘relevant to the decision actually made’.

Judges:

C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal, Warr, Batiste SIJJ

Citations:

[2007] UKAIT 00013

Links:

Bailii

Cited by:

Cited – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 July 2022; Ref: scu.248459

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 dependent upon a daughter settled here. She was anxious to continue enjoying access rights to her younger son here. The AIT dismissed her appeal, taking the view that there was ‘no reason why a properly structured application under [the relevant rule] should be refused by an ECO. After 12 months the appellant would be entitled to make an application for indefinite leave to remain in the UK under [the rule], since [her son] would still be under 18 at that time.’ In those circumstances the tribunal did not think it disproportionate to return the appellant to Bangladesh to apply for entry clearance there.
Held: Her appeal was allowed and the case remitted to the tribunal. The tribunal ‘should not have carried out, or taken into account, their own assessment of her prospects of coming back to the UK on an indefinite basis pursuant to an application which she might make from Bangladesh for entry clearance under the immigration rules.’ The fact that the appellant ‘only just failed to qualify for admission’ was a fact to be counted in her favour.
Ward LJ said: ‘It would . . seem somewhat paradoxical if the stronger an appellant’s perceived case for entry clearance under the immigration rules the more likely he or she is to be removed. Yet . . on the basis of the reasoning of the tribunal in this case, that would be the inevitable consequence.’

Judges:

Ward, Neuberger and Gage LJJ

Citations:

[2007] EWCA Civ 28

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 – 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 – 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 . .
Dicta approved – Lekstaka, Regina (on the Application of) v Immigration Appeal Tribunal and Another Admn 18-Apr-2005
Collins J said: ‘one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter.’ . .

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 – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 July 2022; Ref: scu.248321

AA (Afghanistan) v Secretary of State for the Home Department: CA 29 Jan 2007

The asylum claimant had said that he was a minor when his case was first considered, but to the IAT said that at the time of that hearing any error was no longer material since he had now attained 18.
Held: A court should be very reluctant to allow that an error in law affecting a hearing could be cured in this way. The claimant had lost several possible advantages through the error, including partcularly the right to an in-country appeal. The appeal was allowed because the tribunal’s decision was not according to law, and also under section 87.

Judges:

Lord Justice Waller, Lord Justice Keene and Lord Justice Carnwath

Citations:

[2007] EWCA Civ 12, Times 02-Feb-2007

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 87

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Immigration Appeals Tribunal ex parte and Similar CA 11-Oct-1996
The Court of Appeal could only deal with an appeal on points of law arising from the Immigration Appeal Tribunal’s decision. Consequently, it could only allow an appeal on points of law in respect of which the tribunal had jurisdiction, either . .
Cited – Miftari v Secretary of State for the Home Department CA 18-May-2005
The court emphasised the limited nature of the IAT’s jurisdiction under the 2002 Act, which is now restricted to considering points of law only: ‘Since the IAT now has jurisdiction to determine only points of law, it cannot put itself in the . .

Cited by:

Cited – Mandalia v Secretary of State for The Home Department SC 14-Oct-2015
The Court considered the guidance given to UK Border Agency case workers when considering document submitted by persons applying for leave to enter or stay in the UK as foreign students. M had applied to study here, but had not accompanied his . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 July 2022; Ref: scu.248278

FP (Iran) v Secretary of State for the Home Department: CA 23 Jan 2007

The claimants said that rules which allowed an appeal tribunal to proceed in their absence when they were absent through no fault of their own, were unlawful in depriving them of a fair trial. The claimants had each moved house but their former solicitors had failed to notify the court.
Held: There was no general principle of law which fixed a party with the procedural errors of his or her representative. The rules appeared to require the tribunal to proceed in the claimant’s absence. The right to be heard on an issue of radical importance to the individual, on such wide and rigid grounds when the party had done nothing wrong but whose lives and safety might in consequence be put at risk was infringed. The rule sacrificed fairness to speed and denied the tribunal any power to hold those two desiderata in balance. There was ‘no universal surrogacy principle’ which (reformulated) rules ‘would have to depart from in order to operate justly’.

Judges:

Lord Justice Sedley, Lady Justice Arden and Lord Justice Wall

Citations:

Times 26-Jan-2007, [2007] EWCA Civ 13

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 83, Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005 No 230) 19 56, European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Al-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .
Cited – Regina v Immigration Appeal Tribunal ex parte Haile CA 2002
The adjudicator in the asylum application had made a crucial mistake about the identity of the political party in Ethiopia, with which the claimant was connected. The error was not drawn to the attention of the IAT. The evidence necessary to prove . .

Cited by:

Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 09 July 2022; Ref: scu.248017

FO and others (Children: Settlement, OM Distinguished) Nigeria: IAT 4 Dec 2006

IAT The Tribunal’s remarks in OM about the Immigration Rules relating to the settlement of children (paragraphs 296 to 316 of HC 395) are obiter, and are not to be taken as an authoritative interpretation of those rules. Thus, there is no requirement that when a child applies for a settlement visa, there must be presented a form of lawful consent from the child’s carer or, failing that, a court order. Nor is there a requirement that a child coming for settlement here must be registered with the Social Services Department of the Local Authority where it is to reside.

Citations:

[2006] UKAIT 00089

Links:

Bailii

Immigration

Updated: 08 July 2022; Ref: scu.247430

ER and others (EU National; Self-Sufficiency; Illegal Employment) Ireland: IAT 18 Dec 2006

IAT An EU (EEA) national child cannot establish a right of residence based upon self-sufficiency where the resources relied upon are derived from a parent’s employment or self-employed when there is no lawful basis for that parent’s residence or employment (or self-employment) in the UK. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.

Judges:

Grubb, Southern SIJJ

Citations:

[2006] UKAIT 00096

Links:

Bailii

Immigration, European

Updated: 08 July 2022; Ref: scu.247429

MA and others (EU National; Self-Sufficiency; Lawful Employment) Bangladesh: IAT 8 Dec 2006

IAT An EU (EEA) national child cannot rely upon income derived from a parent lawfully working in the UK during a period of limited leave restricted to a specific purpose or who is on temporary admission and not prohibited from working in order to establish a right of residence based upon ‘self-sufficiency’. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.

Judges:

Storey, Grubb SIJJ

Citations:

[2006] UKAIT 00090

Links:

Bailii

Immigration, European

Updated: 08 July 2022; Ref: scu.247433

KG (Review of Current Situation) Nepal CG: IAT 31 Oct 2006

IAT 1. The fact that conditions in a country are unstable or fluid does not necessarily mean the AIT will avoid producing country guidance decisions relating to risk categories in that country.
2. Generally speaking and given recent developments, it would only be in the exceptional case that an appellant could show a continuing risk of persecution or serious harm or treatment contrary to Article 3 by virtue of being perceived by the authorities in Nepal as a Maoist.
3. Similarly, it will only be in very limited cases that a person would be able to show he or she faces risk in his or her home area at the hands of the Maoists.
4. However, even those able to show a risk (from Maoists) on return to their home area (such as businessmen, industrialists and entrepeneurs), will generally have a viable internal relocation alternative in Kathmandu. Only in an exceptional case would this not be so.

Citations:

[2006] UKAIT 00076

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 08 July 2022; Ref: scu.246945

Re Wasfi Suleman Mahmod: Admn 1995

The applicant was an Iraqi who had been granted asylum in Germany. On entering England as a visitor he was found in possession of opium and sentenced to four years’ imprisonment with a recommendation for deportation. He was served with a deportation order during the term of his imprisonment and detained under paragraph 2(3) from the date when otherwise he would have been released. The Home Office made unsuccessful efforts to persuade the German authorities to take him back.
Held: ‘Whilst, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards. In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has while nothing but fruitless negotiations have been carried on.’ The court was ‘entirely satisfied’ that whatever would have been ‘a reasonable period for this man’s continued detention . . . has certainly now been exceeded’ and ordered his immediate release by habeas corpus.

Judges:

Laws J

Citations:

[1995] Imm AR 311

Jurisdiction:

England and Wales

Citing:

Followed – 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:

Cited – I, Regina (on the Application of) v Secretary of State for the Home Department CA 28-Jun-2002
The appellant obtained asylum but was convicted of offences after entering, and ordered to be deported. Whilst serving his sentence the deportation order was served, but he was not released on licence at the time he would normally have been . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Khadir, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Jun-2005
The applicant who had entered England hidden in a lorry, claimed asylum, and had his claim rejected. It was said that as an Iraqi Kurd, he would be safe in the Kurdish area of Iraq. No safe means had been found of ensuring his return over some four . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 08 July 2022; Ref: scu.180036

Hetoja, Regina (on the Application Of) v Secretary of State for the Home Department: Admn 24 Oct 2002

The applicant was an asylum seeker reliant upon the respondent for housing, being otherwise destitute. She sought housing which would not split up her extended family. She claimed that the regulations excluded from the respondent’s decision making process an element, her right to respect for family life, which he was obliged under the Convention to have regard to.
Held: The regulations required the respondent not to take account of the applicant’s own personal preferences. This did not prevent him having proper regard for her circumstances, including the factors which she sought to have reflected, in his duty to provide adequate accommodation. The regulations did not conflict with her rights.

Judges:

Lightman J

Citations:

Times 11-Nov-2002, [2002] EWHC 2146 (Admin)

Links:

Bailii

Statutes:

National Assistance Act 1948 , Immigration and Asylum Act 1999 97(2), Asylum Support Regulations 2000 (2000 No 704) 13(2)(a), European Convention on Human Rights Art 8

Jurisdiction:

England and Wales

Immigration, Benefits, Human Rights, Housing

Updated: 08 July 2022; Ref: scu.178016

AL (Serbia) v Secretary of State for the Home Department: CA 28 Nov 2006

Citations:

[2006] EWCA Civ 1619

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 July 2022; Ref: scu.246702

Thet v Director of Public Prosecutionsz: Admn 19 Oct 2006

The defendant appealed by case stated against his conviction by the magistrates for entering the UK without a passport. He had relied on a false passport povided to him by an agent, and had returned it to the facilitator. He was therefore unable to present it on interview.
Held: The appeal succeded. The Act was ill drafted but not ambiguous as to what was required of him at interview – was it an original passport or the one presented by him on entry. The Act required the production of an original passport, and he therefore had a reasonable excuse for not producing one, it having been impossible to obtain one in his country of origin. The court questioned the use of the Pepper v Hart doctrine in a criminal trial.
Lord Phillips of Worth Matravers said: ‘I would, however, question the use of Pepper v Hart in the context of a criminal prosecution. Mr Chalk was not able to refer the court to any case in which Pepper v Hart has been used in that context. If a criminal statute is ambiguous, I would question whether it is appropriate by the use of Pepper v Hart to extend the ambit of the statute so as to impose criminal liability upon a defendant where in the absence of Parliamentary material the court would not do so. It seems to me at least arguable that if a criminal statute is ambiguous the defendant should have the benefit of the ambiguity.’

Judges:

Lord Phillips of Worth Matravers, Lord Chief Justice and Mr Justice Roderick Evans

Citations:

Times 01-Nov-2006, [2006] EWHC 2701 (Admin), [2007] 1 WLR 2022, [2007] 2 All ER 425

Links:

Bailii

Statutes:

Asylum and Immigration (Treatment of Claimants etc) Act 2004

Citing:

Considered – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .

Cited by:

Cited – Tabnak, Regina v CACD 19-Feb-2007
The defendant appealed against his conviction under section 35 of the 2004 Act, having pleaded guilty after an adverse ruling as to the law. After being refused asylum and several failed appeals he had refused to give assistance in providing the . .
Cited – Khalif, Regina (on The Application of) v Isleworth Crown Court Admn 31-Mar-2015
The defendant appealed against his conviction under the 2004 Act on his plea of guilty saying that he had been given erroneous legal advice as to section 2(4)(c). . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration, Constitutional

Updated: 08 July 2022; Ref: scu.246361

JM v Secretary of State for the Home Department: CA 4 Oct 2006

The Tribunal had concluded in JM (Rule 62(7); human rights unarguable) Liberia * [2006] UKAIT 00009 that a human rights claim was not justiciable on a variation of leave appeal because in such a case the appellant’s removal was not imminent, and the case was not within section 84(1)(g) which conferred the relevant jurisdiction on the Tribunal.
Held: The appeal succeeded. The case was within s.84(1)(g) and that as a result the Tribunal should have concluded that it was obliged to determine the matter of the human rights claim which had been raised as a ground of appeal.
Laws LJ emphasised that the Tribunal is a creature of statute and thus possesses only the jurisdiction which statute has conferred upon it.

Judges:

Laws, Waller, Leveson LJJ

Citations:

[2006] EWCA Civ 1402, [2007] Imm AR 293, [2006] INLR 548

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 82 84

Jurisdiction:

England and Wales

Cited by:

Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Cited – AN and NN (S.83, Asylum Grounds Only) Albania IAT 10-Dec-2007
IAT JM v Secretary of State for the Home Department [2006] EWCA Civ 1402 has no impact on the scope of s. 83. As is clear from the relevant legislation and Immigration Rules, in an appeal under s.83 of the 2002 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 July 2022; Ref: scu.245909

LD (Article 14; Same-Sex Relationships) Brazil: IAT 10 Sep 2006

Prior to the coming into force of the Civil Partnership Act 2004, it was not a breach of art 14 of the ECHR amounting to unlawful discrimination on the ground of sexual orientation to refuse to grant leave to a person in a same-sex relationship who could not satisfy the requirements of the Immigration Rules in circumstances where a party to a marriage would be granted leave under the Rules. The differential treatment was, at that time, objectively justified. (N.B. Because of the provisions of the Civil Partnership Act 2004 this is an example of the rare case where leave to remain is an essential requirement for the development of family life under art 8.)

Judges:

Chalkley, Grubb, Spencer SIJJ

Citations:

[2006] UKIAT 00075

Links:

Bailii

Statutes:

Civil Partnership Act 2004, European Convention on Human Rights 8 14

Jurisdiction:

England and Wales

Immigration, Family, Human Rights

Updated: 08 July 2022; Ref: scu.245502

SS and others (Ankara Agreement, No In-Country Right of Appeal) Turkey: IAT 29 Sep 2006

IAT (i) failed Turkish asylum-seekers who seek to rely on ‘standstill’ provisions under the Ankara Agreement of 1963 by virtue of engaging in business or being self-employed in the UK (even assuming they have received an appealable immigration decision) do not have an in-country right of appeal under the legislative framework in place on 1 January 1973 (the relevant ‘standstill’ provisions);
(ii) assuming they have received an appealable immigration decision, those who lodged their appeals since the coming into force of the 2002 Act but before 4 April 2005 do have an in-country right of appeal under s.92(4)(a) of the Nationality, Immigration and Asylum Act 2002 as amended if they have made an asylum or human rights claim to the Secretary of State as defined in s.113(1) of that Act;
(iii) however, those who lodged or lodge their appeals since the coming into force of the 2002 Act but on or after 4 April 2005 (as did all four appellants in this case), (even assuming they have received an appealable immigration decision) cannot have an in-country right of appeal unless they have earlier made an asylum and human rights claim to the Secretary of State when applying under the Ankara Agreement

Citations:

[2006] UKAIT 00074

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 08 July 2022; Ref: scu.245503

Tehrani v Secretary of State for the Home Department: HL 18 Oct 2006

The House was asked whether an asylum applicant whose original application was determined in Scotland, but his application for leave to appeal rejected in London, should apply to challenge those decisions in London or in Scotland.
Held: Such an application must be heard in Scotland save only in exceptional circumstances. The appropriate forum would be where the applicant was living, and in this case the applicant would be time barred from an application in England. Although a Court has a discretion to refuse a remedy in judicial review on what may be described as equitable grounds, it has no discretion to refuse to entertain a competent application.

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2006] UKHL 47, Times 19-Oct-2006, [2006] 3 WLR 699, [2007] 1 All ER 559, 2006 SCLR 879

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999, Immigration and Asylum Appeals (Procedure) Rules 2000 (SI 2000/2333, Civil Jurisdiction and Judgments Act 1982 46(1)

Jurisdiction:

Scotland

Citing:

Cited – Regina v Commissioner for the Special Purposes of the Income Tax Acts, Ex parte R W Forsyth Ltd 1897
The Scottish taxpayer had agreed that this appeal againat an assessment to corporation tax issued in Scotland was better heard in England. He sought judicial review of a refusal to suspend an order for repayment pending his appeal.
Held: While . .
Cited – Regina (Majead) v Immigration Appeal Tribunal, Secretary of State for the Home Department Interested Party CA 1-Apr-2003
The applicant had arrived in England to apply for asylum but had then been moved to Scotland. A decision of the adjudication officer in Scotland had been heard by the Immigration Appeal Tribunal sitting in London. The claimant sought a High Court . .
Cited – Sokha v Secretary of State for the Home Department SCS 1992
Mr Sokha had entered and remained in England illegally. He was found and detained in prison in England by the authority of an immigration officer. He began initiated proceedings in the Court of Session for judicial review of the decision to detain . .
Cited – Rutherford v Lord Advocate 1931
The taxpayer lived in Scotland but was assessed to tax in respect of director’s fees paid to him by a company carrying on business in England. The assessment was confirmed by county general commissioners. The tax not having been paid, execution was . .
Cited – Lord Advocate v R W Forsyth Ltd 1986
The taxpayer appealed his corporation tax assessments and had applied to a special commissioner for postponement of payment. The applications was to be heard in Glasgow, but for convenience it was heard in London, where it failed. The taxpayer then . .
At Outer House – Behrouz Tehrani for Judicial Review of Decisions of an Adjudicator and of an Immigration Appeal Tribunal OHCS 3-Apr-2003
The supervisory jurisdiction of the Court of Session did not extend to a review of the decisions of the adjudicator or the IAT in England. Both of them had sat outside Scotland, and therefore any judgment of the court could not be enforced against . .
Cited – Petition of Behrouz Tehrani for Judicial Review and Answers OHCS 27-Apr-2004
. .

Cited by:

Cited – Fourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Cited – EBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
Lists of cited by and citing cases may be incomplete.

Immigration, Judicial Review

Updated: 08 July 2022; Ref: scu.245382

Practice Note (Anonymisation In Asylum and Immigration Cases In the Court of Appeal): CA 31 Jul 2006

From October 2006, the names in cases involving asylum appeals will be anonymised, with a two character code, the country name, and a serial number as necessary. This would accord with practice in other European jurisdictions and would assist if eventually an applicant came to return to his home country.

Citations:

Times 24-Aug-2006, [2006] EWCA Civ 1359

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Immigration

Updated: 08 July 2022; Ref: scu.245404

Murungaru v Secretary of State for the Home Department and others: Admn 4 Oct 2006

The claimant challenged the decision of the respondent that his continued presence in the UK would not be conducive to the public good. He had been given multiple entry visas which had been revoked.
Held: The refusal of entry interfered with the peaceful enjoyment of the claimant’s possessions (the right to obtain medical treatment), under the Convention, requiring justification in the public interest. However the Court could not determine this issue or the procedural challenges without examining the closed material. The court considered the appointment of a special counsel. ‘Once proportionality is engaged, and once that issue depends to any significant extent upon material which the claimant cannot see, then in my judgment fairness requires where his Convention rights are engaged that his interests are represented by an advocate who can make submissions to the court. Accordingly, in my view, the application for the appointment of special counsel is well-founded.’

Judges:

Keith J

Citations:

[2006] EWHC 2416 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights

Citing:

Cited – In Re K (Infants) CA 2-Jan-1963
The court discussed the need for those appearing before tribunals to be given sufficient access to all the material placed before the judge. Upjohn LJ said: ‘It seems to be fundamental to any judicial inquiry that a person or other properly . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.

Cited by:

See Also – Murungaru, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Nov-2006
The applicant, a former minister in the Government of Kenya challenged the revocation of entry visas. This had been done on the basis of evidence withheld from him, and the court considered the way in which that evidence could be used by the use of . .
See Also – Murungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 July 2022; Ref: scu.245359

GM and AM (EU National; Establishing Self-Sufficiency) France: IAT 10 Jul 2006

IAT An EU national child cannot establish a right of residence based upon self-sufficiency where the resources relied upon would come from the employment of a non-EU national parent/carer who has no independent right to be in or work in the UK. Consequently, the parent/carer can derive no right of residence under EU law in such circumstances either.

Judges:

Ockleton DP, McGeachy SIJ

Citations:

[2006] UKAIT 00059

Links:

Bailii

Immigration

Updated: 07 July 2022; Ref: scu.244575

JL (Domestic Violence: Evidence and Procedure) India: IAT 12 Jul 2006

IAT 1. (a) Applications for ILR arising from domestic violence must be made by using the appropriate form. An application made otherwise than by form is not valid and cannot found a successful appeal. (b) The form may be a valid application even if it is submitted out of time. (c) If it is out of time, it will not give rise to a right of appeal under s82(2)(d) but will clearly be relevant if some other immigration decision (e.g. to remove as an overstayer) is made. (d) The Regulations (SI 2003/1712) contain provisions relating to documents accompanying the form. It is for the Secretary of State to take any point about missing documents within the prescribed time; if he does so the form is invalid and an appeal based on it cannot succeed, but if he does not, the application by form is to be treated as valid.
2. Evidence of domestic violence. If (but only if) there has been a valid application, the Immigration Judge is not confined on an appeal to the evidence ‘required’ by the Secretary of State, nor is an appeal bound to fail if the ‘required’ evidence has not been produced. The question of whether domestic violence has occurred is to be determined on the basis of all the evidence before the Immigration Judge. Paragraph 289A(iv) is to be read down to reflect this.

Judges:

C M G Ockelton

Citations:

[2006] UKAIT 00058

Links:

Bailii

Immigration

Updated: 07 July 2022; Ref: scu.244051

AK v Secretary of State for the Home Department: CA 31 Jul 2006

Citations:

[2006] EWCA Civ 1117, [2007] INLR 195

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 82

Jurisdiction:

England and Wales

Cited by:

Cited – MS (Palestinian Territories) v Secretary of State for The Home Department SC 16-Jun-2010
The claimant faced removal and return to Palestine, but he said that he would not be accepted if returned. He had no ID card, birth certificate or living parents. He appealed against the decision of the IAT and now again from the Court of Appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 07 July 2022; Ref: scu.244094

AS and AA (Effect of Previous Linked Determination) Somalia: IAT 6 Jul 2006

IAT The rule that a judicial determination stands as the determination of the issue between the parties does not govern later litigation between different parties. Accordingly, when it is said that a previous determination of the claim or appeal of another claimant is of relevance in assessing a later claim by a different person: (1) the previous determination has no evidential value as such, but (2) its narrative content is to be taken as evidence of what was said and done leading up to that determination; (3) the Tribunal determining the later case is required to make its own decision on the evidence before it; (4) no rule of general law or practice supports the argument that the decision in an earlier claim should bind or be regarded as part of the evidence in an appeal by a different person and therefore (5) the later Tribunal should not regard itself as bound to follow a previous decision in respect of another claimant or to make a decision consistent with such a previous decision; (6) on the other hand, principles of good administration require that decisions should not be needlessly divergent, so (7) the earlier decision should be treated as a starting-point, but (8) the Tribunal will not hesitate to depart from that starting point in every case where the evidence requires it.

Judges:

C M G Ockelton, Deputy President

Citations:

[2006] UKAIT 00052

Links:

Bailii

Immigration

Updated: 07 July 2022; Ref: scu.243225

RK (‘Purpose’ of Family Visit) Bangladesh: IAT 24 Apr 2006

IAT In order to give rise to an appealable decision, the evidence must show that the purpose of a family visit was to visit a member of the applicant’s family, as defined in the Immigration Appeals (Family Visitor) Regulations 2003. It cannot be assumed simply from the fact that a person falling within that definition lives in the United Kingdom that the purpose was to visit them.

Judges:

Allen SIJ

Citations:

[2006] UKAIT 00045

Links:

Bailii

Statutes:

Immigration Appeals (Family Visitor) Regulations 2003

Immigration

Updated: 07 July 2022; Ref: scu.242757

MG (Christians, Including Coptic Christians) Sudan CG: IAT 20 Apr 2006

IAT Christians in Sudan are not for that reason alone at risk of persecution but some Christians (and in particular members of proselytising evangelical churches or Coptic Christians) may be in a more vulnerable position and in the light of their particular circumstances may be at real risk of persecution on account of their religion. This determination replaces TM (Persecution – Christians- Individual – General) Sudan CG [2002] UKIAT 04849 as country guidance.

Judges:

Latter SIJ, King SIJ

Citations:

[2006] UKAIT 00047

Links:

Bailii

Immigration

Updated: 07 July 2022; Ref: scu.242756

Yapici v Secretary of State for the Home Department: CA 6 Jul 2005

The appellant had sought asylum from Turkey. He said that the adjudicator had failed to take into account that before leaving Turkey he had been under a requirement to report to the police daily, and that if returned, he would immediately be subject to arrest.
Held: To return would be to do so as a failed asylum seeker, and a military draft evader.He had already been severly mistreated by the Turkish authorities. The omission to take this into account amounted to an error of law. The appeal succeeded.

Judges:

Ward LJ, Longmore LJ, Scott Baker LJ

Citations:

[2005] EWCA Civ 826, Times 28-Jul-2005

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 July 2022; Ref: scu.228233

A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department: CA 11 Aug 2004

The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence used to justify their detention was derived from practices involving torture by the US and others.
Held: UNCAT required a state not to admit evidence shown to have been obtained by torture, however there was no sufficient evidence before the Commission to conclude that it had indeed been obtained by torture. Challenges to evidence on this ground go as to weight, not admissibility. The derogation from the European Convention was lawful, and UNCAT has no direct effect in English law. ‘This case has concerned the means by which, in the acute setting created by the threat to the life of the nation which currently faces the United Kingdom, the State has sought to reconcile competing constitutional fundamentals. I do not say it has been done perfectly, or could not have been done better. But I do not think the executive or the legislature has at all lost sight of those constitutional principles which it is the court’s special duty to protect: the rule of law, and the avoidance of arbitrary power. ‘ The Rules explicitly disallowed any argument for exclusion of the evidence, because it stated that otherwise inadmissible evidence was to be allowed. There was no high duty on the Secretary of State to investigate allegations that evidence had been obtained by torture. (Neuberger LJ dissenting) Given the danger that the admission of such evidence might encourage the practice of torture and the inherent inability properly to test it, the evidence should be inadmissible.

Judges:

Lord Justice Pill Lord Justice Laws Lord Justice Neuberger

Citations:

Times 05-Oct-2004, [2004] EWCA Civ 1123, [2005] 1 WLR 414

Links:

Bailii

Statutes:

European Convention on Human Rights 5, Human Rights Act 1998 (Designated Derogation) Order 2001, Anti-Terrorism, Crime and Security Act 2001, Special Immigration Appeals Commission (Procedure) Rules 2003 44(3), United Nations Convention Against Torture 1984 15

Jurisdiction:

England and Wales

Citing:

Cited – A, X and Y, and others v Secretary of State for the Home Department CA 25-Oct-2002
The applicant challenged regulations brought in by the respondent providing for foreigners suspected of terrorism to be detained where a British national suspect would not have been detained. The respondent had issued a derogation from the . .
Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – The Secretary of State for the Home Department v M CA 18-Mar-2004
The applicant had been detained under the appellant’s certificate that he was a suspected terrorist.
Held: The fact that there were suspicions surrounding the detainee did not mean that those suspicions were necessarily reasonable suspicions . .
Cited – O’Hara v Chief Constable of the Royal Ulster Constabulary HL 21-Nov-1996
Second Hand Knowledge Supports Resaobnable Belief
The plaintiff had been arrested on the basis of the 1984 Act. The officer had no particular knowledge of the plaintiff’s involvement, relying on a briefing which led to the arrest.
Held: A reasonable suspicion upon which an arrest was founded . .
Cited – Ferrantelli and Santangelo v Italy ECHR 7-Aug-1996
The matter of admissibility of evidence is primarily one for the national courts: ‘It [the Court] recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess . .
Cited – Ibrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Cited – Director of Public Prosecutions v Ping Lin PC 1976
The Board was asked whether a statement by the defendant was shown to be voluntary.
Held: A trial Judge faced by the problem should approach the task in a common sense way and should ask himself whether the prosecution had proved that the . .
Cited – Regina v Hnedish 1958
(Canada) ‘Having regard to all the implications involved in accepting the full impact of the Hammond decision [1941] 3 All ER 318 which can, I think, be summarised by saying that regardless of how much physical or mental torture or abuse has been . .
Cited – Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
Cited – Wong Kam-Ming v The Queen PC 20-Dec-1978
The voir dire system allows a defendant to give his evidence on the limited issues surrounding the circumstances under which his statement was made as to the admissibility of the confession, without infringing his right to elect not to give evidence . .
Cited – Regina v Latif; Regina v Shahzad HL 23-Jan-1996
The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
Cited – Regina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
Cited – Ramda, Regina (on the Application of) v Secretary of State for the Home Department Admn 27-Jun-2002
The Government of France sought the extradition of Ramda wanted by them for trial in connection with a series of terrorist bombings in France. The applicant resisted extradition to France on the ground that the evidence which would be relied on . .
Cited – Regina v Looseley (orse Loosely); Attorney General’s Reference No 3 of 2000 HL 25-Oct-2001
Police Entrapment is no defence to Criminal Act
The defendant complained of his conviction for supplying controlled drugs, saying that the undercover police officer had requested him to make the supply.
Held: It was an abuse of process for the police to go so far as to incite a crime.
Cited – Montgomery and Coulter v Her Majesty’s Advocate PC 19-Oct-2000
The test of whether a defendant’s common law right to a fair trial had been damaged by pre-trial publicity was similar to the test under the Convention, and also where there was any plea of oppression. The substantial difference is that no balancing . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
Cited – Regina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
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 – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – Teixeira De Castro v Portugal ECHR 9-Jun-1998
Mr De Castro had been the target of an unwarranted, unauthorised, unsupervised police operation in which undercover officers incited him to supply drugs. He challenged a conviction for trafficking in heroin, based mainly on statements of two police . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – Regina v Director of Serious Fraud Office, ex Parte Smith HL 15-Jul-1992
The applicant having been cautioned for an offence under the Companies Act 1985, he objected to being required to answer questions put to him in connection with the matter by the Director of the Serious Fraud Office under the 1987 Act.
Held: . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – Jones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – Regina v Shannon (Also Known As Alford) CACD 11-Oct-2000
The defendant had been enticed to commit a crime involving supply of controlled drugs by a journalist acting as an agent provocateur.
Held: Entrapment is not a defence in UK law. It was open to the judge hearing the prosecution to exclude the . .

Cited by:

Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 06 July 2022; Ref: scu.199951

Anwar (Rule 17 : Withdrawal of Appeal) Pakistan: UTIAC 5 Mar 2019

(1) Under rule 17(1) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, the decision whether to withdraw an appeal is for the appellant;
(2) That decision does not require judicial approval, in order for it to be effective;
(3) If an issue arises as to whether a withdrawal was, in fact, the appellant’s decision (ie whether it was valid), it is for a judge of the First-tier Tribunal to decide it; as to which, the reasons for withdrawal may assist;
(4) If an issue arises as to whether or not an appellant’s notice of withdrawal was legally valid, the Tribunal should exercise its case management powers so as to decide the matter. This will normally involve holding a hearing. The judge’s task will be to decide on the issue of validity. If the judge’s decision is a substantive decision, as opposed to a ‘procedural, ancillary or preliminary decision’ within the meaning of article 3(n) of the Appeals (Excluded Decisions) Order 2009, the decision will be appealable to the Upper Tribunal;
(5) The decision of Upper Tribunal in TPN (FtT appeals – withdrawal) Vietnam [2017] UKUT 295 (IAC) not followed. The decision in AP (Withdrawals – nullity assessment) Pakistan [2007] UKAIT 00022 followed.

Citations:

[2019] UKUT 125 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 July 2022; Ref: scu.637758

Weldegaber, Regina (on The Application of ) v Secretary of State for The Home Department (Dublin Returns – Italy) (IJR): UTIAC 12 Feb 2015

1. Dublin cases require the Respondent to undertake a thorough and individuated examination of the situation and circumstances of the person concerned.
2. The European Court of Human Rights in Tarakhel v Switzerland [App.no. 29217/12 (GC)] was not purporting to promulgate a general rule or principle that a sending state is required to secure specific assurances from the destination state as to accommodation or the like.
3. In light of the considerable body of relevant background country information considered by the Respondent, it was open to her to find that there was neither systemic deficiency nor serious operational failure in the conditions prevailing in Italy for the reception, processing and treatment of asylum seekers.

Citations:

[2015] UKUT 70 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 July 2022; Ref: scu.543188

Khairdin, Regina (on The Application of) v Secretary of State for The Home Department (NIA 2002: Part 5A) (IJR): UTIAC 28 Nov 2014

(1) Section 117A of the Nationality, Immigration and Asylum Act 2002 requires the Upper Tribunal, in a judicial review involving Article 8(2) ECHR, to have regard to the considerations mentioned in section 117B and, where relevant, section 117C, when considering the question whether an interference with a person’s right to respect for private and family life is justified. The nature of the proceedings is such as to require the Tribunal to determine the questions set out in section 117(1)(a) and (b).
(2) Where the Upper Tribunal is considering, pursuant to section 11 of the Tribunals, Courts and Enforcement Act 2007, whether there is an error of law in the decision of the First-tier Tribunal involving Article 8 proportionality, the task of the Upper Tribunal is confined (at that point) to deciding if the First-tier Tribunal’s assessment of where to strike the balance was unlawful, according to the error of law principles set out in R (Iran) [2005] EWCA Civ 982. An Article 8(2) decision of the Secretary of State which is susceptible only to judicial review has, by definition, not received such judicial scrutiny; and it is the task of the reviewing court or tribunal to provide it, albeit via a process that remains different from that of an appeal.

Citations:

[2014] UKUT 566 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 July 2022; Ref: scu.543190

Shebl (Entrepreneur: Proof of Contracts): UTIAC 8 May 2014

The requirement to prove the existence of ‘contracts’ in paragraph 41-SD of Appendix A to the immigration rules does not itself require the contracts in question to be contained in documents. There is, however, a need for such contracts to be evidenced in documentary form.

Citations:

[2014] UKUT 216 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 July 2022; Ref: scu.525941

FN (Article 8, Removal, Viable Options) Eritrea: IAT 18 Apr 2006

IAT The assessment of an in-country Article 8 claim will normally first require consideration of (i) whether there are insurmountable obstacles to the appellant’s family accompanying him or her abroad and then second, (ii) whether even if there exist such obstacles, there is a viable option of an entry clearance application.
The fact that before being able to apply for entry clearance a person may have to perform military service in his country of origin will not normally be a factor of any significance in assessing the proportionality of a return in the context of Article 8.

Citations:

[2006] UKAIT 00044

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Immigration, Human Rights

Updated: 06 July 2022; Ref: scu.241834

AH (Scope of S103A Reconsideration) Sudan: IAT 19 Apr 2006

Mr Ockelton: ‘If (despite some material error of law) an issue or matter has been properly and satisfactorily dealt with in the first decision, there is no reason why further time should be spend on it in the reconsideration. Although the Tribunal reconsidering the appeal has all the grounds of appeal before it, it also has – indeed it has just been considering – the previous decision, and it must be at liberty to adopt those parts which it considers are sound. The principle perhaps goes further that that. Because the process is a reconsideration, we would incline to the view that in general the Tribunal should always adopt those parts of a previous decision which are not shown to be unsound.’

Judges:

Mr Ockelton

Citations:

[2006] UKAIT 00038

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Swash v Secretary of State for the Home Department CA 26-Jul-2006
The appellant challenged refusal of the grant of leave to remain in the UK. The court was asked as to the approach to be adopted by the AIT on reconsideration of an appeal when it has concluded that there was an error of law in the original . .
Appeal from – AH (Sudan) and Others v Secretary of State for the Home Department CA 4-Apr-2007
. .
At IAT – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 06 July 2022; Ref: scu.241621

SH (Baha’is) Iran CG: IAT 27 Apr 2006

AIT (1) An Iranian Baha’i is not as such at real risk of persecution in Iran
(2) Such a person will, however, be able to demonstrate a well-founded fear of persecution if, on the facts of the case, he or she is reasonably likely to be targeted by the Iranian authorities (or their agents) for religious reasons. Evidence of past persecution will be of particular relevance in this regard. It is doubtful if a person who has not previously come to the serious adverse attention of the authorities, by reason of his or her teaching or particular organisational or other activities on behalf of the Baha’i community in Iran , will be able, even in the current climate, to show that he or she will be at real risk on return.

Judges:

Lane SIJ, Roberts SIJ, Macdonald IJ

Citations:

[2006] UKAIT 00041

Links:

Bailii

Immigration

Updated: 06 July 2022; Ref: scu.241625

TB (Student Application, Variation of Course, Effect) Jamaica: IAT 6 Apr 2006

IAT Prior to the Secretary of State’s decision and without notification to him, the Appellant changed her course of studies from that in respect of which the application had been made (paragraph 57(ii)(b) of HC 395 as amended) to one referable to paragraph 57(ii)(a )thereof.
Held: (1) the nature of the change was such that the Appellant could not comply with the requirements of the Immgration Rules in relation to the course for which she had initially applied; the Immigration Judge erred in law in considering that the provisions of s. 85(4) of the Nationality, Immigration and Asylum Act 2002 (as explained in LS (Post decision evidence; direction; applicability) Gambia [2005] UKIAT 00085) permitted him to consider post-decision evidence in relation to an application entirely different in nature from that for which the Appellant had applied. (2) An Immigration Judge is entitled to consider whether an Appellant can meet the requirements of all relevant provisions of the Immigration Rules, whether or not raised as an issue by the Respondent, provided that the Appellant is given the opportunity to address such additional requirements (R v Immigration Appeal Tribunal ex parte Kwok On Tong [1981] Imm AR 214 applied). (3) It was arguable that by changing the fundamental nature of her application the Appellant should have known that all requirements of the Immigration Rules were brought into play notwithstanding the terms of the refusal decision. But, in any event event, even if the Immigration Judge had erred in law in not putting her more clearly on notice as to the matters he intended to take into account, such error was not material to the outcome of the appeal for the reasons set out at (1) above.

Judges:

Ockleton VP, Barnes, Jordan SIJJ

Citations:

[2006] UKAIT 00034

Links:

Bailii

Immigration

Updated: 06 July 2022; Ref: scu.241222

G v Secretary of State for the Home Department (Interim Decision): CA 9 Mar 2004

A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had granted him bail. The HS appealed.
Held: The Court of Appeal’s jurisdiction was purely statutory. No statutory jurisdiction had been given to hear such an appeal, and the court therefore could not deal with the case.
Lord Phillips MR said: ‘SIAC is a court of very limited jurisdiction. It is not easy to accept that, if SIAC purports to exercise a jurisdiction that does not exist, Parliament has excluded all possibility of putting the matter right. What if section 24 had provided that ‘a suspected international terrorist who is detained may not be released on bail’? Would there be no remedy if SIAC purported to grant bail?’

Judges:

Lord Phillips Of Worth Matravers, Mr Lord Justice Pill and Lord Justice Laws

Citations:

[2004] EWCA Civ 265, Times 15-Mar-2004, Gazette 01-Apr-2004, [2004] 1 WLR 1349

Links:

Bailii

Statutes:

Anti-Terrorism, Crime and Security Act 2001 21(1), Special Immigration Appeals Commission Act 1997 7

Jurisdiction:

England and Wales

Citing:

Cited – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
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 – Regina v Manchester Crown Court and Ashton and Others, ex parte Director of Public Prosecutions HL 7-May-1993
A Crown Court decision to stay an indictment for lack of jurisdiction, was not susceptible to Judicial Review. This was a ‘decision affecting conduct of trial’. The House considered the meaning of the phrase ‘other than its jurisdiction in matters . .
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 by:

Cited – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 06 July 2022; Ref: scu.194425

Hoxha and Others, Regina (on The Application of) v Secretary of State for The Home Department (Representatives: Professional Duties): UTIAC 4 Mar 2019

(1) OISC organisations are only able to carry out judicial review case management with counsel authorised to conduct litigation if the organisations are both level 3 registered and have special authorisation to do this work.
(2) It is a commonplace of working in the difficult area of immigration and asylum judicial review, that practitioners are faced with clients who are distressed at the prospect of being removed from the United Kingdom. This does not absolve such a professional from the need to stand firm and act only as authorised by the statutory scheme.
(3) Where a medical expert report is relied upon by a legal representative, the representative has a duty to check the report for accuracy, including ensuring the report accurately reflects the way in which the information in it came to be obtained.
(4) Failure to carry out properly professional duties as set out above, inter alia, may result in the Upper Tribunal referring the legal representative / organisation to the relevant regulatory body.

Citations:

[2019] UKUT 124 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Legal Professions

Updated: 06 July 2022; Ref: scu.637761