Category: Immigration

MS (S117C, : ‘Very Compelling Circumstances’) Philippines: UTIAC 4 Mar 2019

(1) In determining pursuant to section 117C(6) of the Nationality, Immigration and Asylum Act 2002 whether there are very compelling circumstances, over and above those described in Exceptions 1 and 2 in subsections (4) and (5), such as to outweigh the public interest in the deportation of a foreign criminal, a court or tribunal must take into account, together with any other relevant public interest considerations, the seriousness of the particular offence of which the foreign criminal was convicted; not merely whether the foreign criminal was or was not sentenced to imprisonment of more than 4 years. Nothing in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 demands a contrary conclusion.
(2) There is nothing in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 that requires a court or tribunal to eschew the principle of public deterrence, as an element of the public interest, in determining a deportation appeal by reference to section 117C(6).

Citations:

[2019] UKUT 122 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 July 2022; Ref: scu.637763

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

TK (Gay Man): UTIAC 6 Feb 2019

On the evidence adduced to this Tribunal, the appellant, as an openly gay man in St Lucia, has a well-founded fear of persecution on the grounds of his sexuality. (This case is not reported as a country guidance case but records the evidence leading to the Tribunal’s conclusion at para [54].)

Citations:

[2019] UKUT 92 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 July 2022; Ref: scu.637757

AK and SK (Christians: Risk) Pakistan (CG): UTIAC 15 Dec 2014

1. Christians in Pakistan are a religious minority who, in general, suffer discrimination but this is not sufficient to amount to a real risk of persecution.
2. Unlike the position of Ahmadis, Christians in general are permitted to practise their faith, can attend church, participate in religious activities and have their own schools and hospitals.
3. Evangelism by its very nature involves some obligation to proselytise. Someone who seeks to broadcast their faith to strangers so as to encourage them to convert, may find themselves facing a charge of blasphemy. In that way, evangelical Christians face a greater risk than those Christians who are not publicly active. It will be for the judicial fact-finder to assess on a case by case basis whether, notwithstanding attendance at an evangelical church, it is important to the individual to behave in evangelical ways that may lead to a real risk of persecution.
4. Along with Christians, Sunnis, Shi’as, Ahmadis and Hindus may all be potentially charged with blasphemy. Those citizens who are more marginalised and occupy low standing social positions, may be less able to deal with the consequences of such proceedings.
5. The risk of becoming a victim of a blasphemy allegation will depend upon a number of factors and must be assessed on a case by case basis. Relevant factors will include the place of residence, whether it is an urban or rural area, and the individual’s level of education, financial and employment status and level of public religious activity such as preaching. These factors are not exhaustive.
6. Non state agents who use blasphemy laws against Christians, are often motivated by spite, personal or business disputes, arguments over land and property. Certain political events may also trigger such accusations. A blasphemy allegation, without more, will not generally be enough to make out a claim under the Refugee Convention. It has to be actively followed either by the authorities in the form of charges being brought or by those making the complaint. If it is, or will be, actively pursued, then an applicant may be able to establish a real risk of harm in the home area and an insufficiency of state protection.
7. Like other women in Pakistan, Christian women, in general, face discrimination and may be at a heightened risk but this falls short of a generalised real risk. The need for a fact sensitive analysis is crucial in their case. Factors such as their age, place of residence and socio-economic milieu are all relevant factors when assessing the risk of abduction, conversions and forced marriages.
8. Relocation is normally a viable option unless an individual is accused of blasphemy which is being seriously pursued; in that situation there is, in general, no internal relocation alternative.

Citations:

[2014] UKUT 569 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 July 2022; Ref: scu.543193

MM (Darfuris) Sudan (CG): UTIAC 5 Jan 2015

In the country guidance case of AA (Non-Arab Darfuris-relocation) Sudan CG [2009] UKAIT 00056, where it is stated that if a claimant from Sudan is a non-Arab Darfuri he must succeed in an international protection claim, ‘Darfuri’ is to be understood as an ethnic term relating to origins, not as a geographical term. Accordingly it covers even Darfuris who were not born in Darfur.

Citations:

[2015] UKUT 10 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 July 2022; Ref: scu.543180

Idris, Regina (on The Application of) v The Secretary of State for The Home Department (IJR): UTIAC 4 Feb 2015

The Chikwamba v SSHD [2008] UKHL 40 [2008] 1 WLR 1420 principle is only engaged if, in the terms of [30] (a) of SSHD v Hayat (Pakistan) [2012] EWCA Civ 1054, the SSHD has refused the application in question ‘on the procedural ground that the policy requires that the applicant should have made the application from his home state’.

Citations:

[2015] UKUT 95 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 July 2022; Ref: scu.547314

Karas and Another, Regina (on the Application of) v Secretary of State for the Home Department: Admn 7 Apr 2006

Both claimants sought asylum. Their claims were rejected. They had made representations that they had ‘fresh claims’ in 2001, 2003 and March 2004 but on 10 October 2004, the Secretary of State gave instructions to an airline that the claimants were to be removed at 7.40 am on 12 October 2004. The claimants were not informed until 8.30 pm on 11 October 2004 when they were arrested but they were able to prevent removal. The court criticised the respondent’s practice.

Judges:

Munby J

Citations:

[2006] EWHC 747 (Admin)

Links:

Bailii

Citing:

Cited – Regina v Lancashire County Council ex parte Huddleston CA 1986
The respondent council had failed to allocate a university student grant to the claimant and the principle was directed at the duty of that authority to state clearly the reasons for its refusal and the particular factors that had been taken into . .

Cited by:

Cited – Medical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
Lists of cited by and citing cases may be incomplete.

Immigration, Family

Updated: 05 July 2022; Ref: scu.240339

AA v Secretary of State for the Home Department; LK v Secretary of State for the Home Department: CA 12 Apr 2006

Where an asylum applicant could return voluntarily to his country of origin without there being any threat of persecution, there was nothing to base a claim that he was a refugee.

Citations:

Times 17-Apr-2006, [2006] EWCA Civ 401, [2007] 2 All ER 160

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 July 2022; Ref: scu.240357

OY (Ankara Agreement; Standstill Clause; Worker’s Family) Turkey: IAT 17 Mar 2006

IAT The standstill clause in Article 6 of Association Council Decision 80/1 is concerned solely with the conditions relating to the worker’s ‘access to employment’ in the UK. It is not concerned with the admission to the UK of a Turkish worker or his family. Consequently, the admission to the UK of the family of a Turkish worker is to be determined on the basis of the relevant immigration rule (and any policies) in effect at the date of the entry clearance decision.

Judges:

Ockelton DP, Lane, Grubb SIJJ

Citations:

[2006] UKAIT 00028

Links:

Bailii

Immigration

Updated: 05 July 2022; Ref: scu.240196

PN (Lords Resistance Army) Uganda CG: IAT 6 Mar 2006

IAT There is no current risk from the Ugandan authorities to a former member of the Lord’s Resistance Army on return to Uganda. The Ugandan Government’s amnesty to members of the LRA remains in place. A person who is at real risk of forcible conscription into the LRA in the north of Uganda may be able to relocate without undue harshness to Kampala. This case confirms and supplements the findings in AZ (Eligibility for Amnesty) Uganda [2004] UKIAT 00166.

Judges:

Storey, Lane SIJJ

Citations:

[2006] UKAIT 00022

Links:

Bailii

Immigration

Updated: 05 July 2022; Ref: scu.240197

DA (EEA, Revocation of Residence Document) Algeria: IAT 9 Mar 2006

IAT Where a qualified person within the meaning of the Immigration (European Economic Area) Regulations 2000 leaves the United Kingdom, it is not inconsistent with relevant EU law for the United Kingdom to make provision for revocation of the residence document of the family member of the qualified person, as set out in Regulation 22(2)(b)(ii).

Citations:

[2006] UKAIT 00027

Links:

Bailii

Immigration

Updated: 05 July 2022; Ref: scu.240192

SY and others (EEA Regulation 10, Dependancy Alone Insufficient) Sri Lanka: IAT 7 Mar 2006

IAT LS (EEA Regulations 2000 – Meaning of ‘Dependant’) Sri Lanka [2005] UKAIT 00132 is not authority for the proposition that, once a person has shown that he is dependent on an EEA national or his spouse, the person concerned is entitled without more to an EEA family permit or a residence document, as the case may be. As the wording of regulation 10(1) of the Immigration (European Economic Area) Regulations 2000 makes plain, the respondent has a discretion whether to grant such a permit and that discretion is not incompatible with the underlying EEA legislation.

Judges:

Lane SIJ

Citations:

[2006] 00024

Links:

Bailii

Statutes:

Immigration (European Economic Area) Regulations 2000 10(1)

Immigration

Updated: 05 July 2022; Ref: scu.240199

RP (EEA Regs, Worker, Cessation) Italy: IAT 10 Mar 2006

IAT 1. A person who has been a worker within the meaning of Community law does not cease to be a worker simply by virtue of falling unemployed, but he must be able to show that he has been genuinely seeking work and has not effectively abandoned the labour market.
2. In assessing whether a person has satisfied the condition that he is or has remained a worker, the national court must base its examination on objective criteria and assess as a whole all the circumstances of the case relating to the nature of both that person’s activities whilst in the Member State and any employment relationship(s) at issue.

Judges:

Story SIJ

Citations:

[2006] UKAIT 00025

Links:

Bailii

Immigration

Updated: 05 July 2022; Ref: scu.240198

London Borough of Barnet v Ismail and Another: CA 6 Apr 2006

The court considered the entitlement to housing support of nationals of other EEA states receiving Income Support here despite their being still subject to immigration control.
Held: Such EEA nationals were eligible for housing benefit. The 2000 regulations were in conflict with guidance given by the Secretary of State.

Judges:

Buxton, Lloyd, Richards LJJ

Citations:

[2006] EWCA Civ 383, Times 25-Apr-2006, [2006] 1 WLR 2771, [2007] 1 All ER 922

Links:

Bailii

Statutes:

Housing Act 1996 185(2), Homelessness (England) Regulations 2000, Asylum and Immigration Act 1996 13(2)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Hillingdon London Borough Council ex parte Streeting CA 1980
The court duscussed the extent of the housing duty of an authority toward a person ‘not lawfully here’.
Held: Outstayers should not be qualified for assistance. . .
Cited – Regina v Westminster City Council Ex Parte Castelli; Regina v Same Ex Parte Tristan Garcia CA 23-Feb-1996
A Local Authority has a duty to house European Union migrants even without leave to stay as long as they are looking for work. EU nationals who were properly entering the UK were owed the Housing Act duties until they were told that they were . .
Cited – Chief Adjudication Officer v Wolke; Remelien v Secretary of State for Social Security HL 13-Nov-1997
The claimant was an EC national who had become resident here but was not seeking work, since she cared for her children. The Secretary of State said that since she was not seeking work, she was not entitled to remain and should make arrangements to . .
Lists of cited by and citing cases may be incomplete.

Housing, Immigration, Benefits

Updated: 05 July 2022; Ref: scu.240104

Regina v Makuwa: CACD 23 Feb 2006

The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the prosecution to prove that she was not a refugee. The remaining elements of the defence were still for the defendant to establish. In this case the conviction was unsafe.

Judges:

Mr Justice Lloyd Lord Justice Moore-Bick His Honour Judge Findlay Baker QC

Citations:

[2006] EWCA Crim 175, Times 28-Apr-2006

Links:

Bailii

Statutes:

Forgery and Counterfeiting Act 1981 3, Immigration and Asylum Act 1999 31

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Governor of Pentonville Prison, Ex parte Fernandez: Fernandez v Government of Singapore HL 1971
Test for police protection need
The court considered the degree of risk to an individual which should give rise to a duty on the police to protect him under article 2.
Held: Lord Diplock said: ‘My Lords, bearing in mind the relative gravity of the consequences of the court’s . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
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 Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Regina v Home Secretary, ex parte Sivakumaran HL 16-Dec-1987
The House of Lords were concerned with the correct test to be applied in determining whether asylum seekers are entitled to the status of refugee. That in turn gave rise to an issue, turning upon the proper interpretation of Article 1.A(2) of the . .
Cited – Regina v Uxbridge Magistrates and Another ex parte Adimi; R v CPS ex parte Sorani; R v SSHD and Another ex parte Kaziu Admn 29-Jul-1999
The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception . .
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 – Regina v Fraydon Navabi; Senait Tekie Embaye CACD 11-Nov-2005
The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .

Cited by:

Cited – Evans, Regina v CACD 23-Jan-2013
The defendant appealed against his conviction in a case concerning the use of a false passport. The central issue was whether the appellant had a defence based upon the proposition that he was a refugee entitled to asylum in this country. He had . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration

Updated: 05 July 2022; Ref: scu.239866

Chung Chi Cheung v The King: PC 2 Dec 1938

Hong Kong.
Held: The applicant could not invoke any right under the rule of international law which placed upon a state a duty to receive its own national, because that rule was inconsistent with the domestic law. In modern times the idea of even a Government ship being a ‘floating island,’ belonging to and retaining the law of the country of its flag, has been abandoned.
Lord Atkin said: ‘ [S]o far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. . . ‘

Judges:

Lord Atkin

Citations:

[1939] AC 160, [1938] UKPC 75

Links:

Bailii

Statutes:

Immigration Act 1971

Cited by:

Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Lists of cited by and citing cases may be incomplete.

Immigration, Commonwealth, International

Updated: 05 July 2022; Ref: scu.239960

Jasim v Secretary of State for the Home Department: CA 30 Mar 2006

The court criticised the presentation of the immigration judge’s judgment which by using excessively long paragraphs had made his otherwise reasoned judgment difficult to follow.

Citations:

Times 17-May-2006, [2006] EWCA Civ 342

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Litigation Practice

Updated: 05 July 2022; Ref: scu.239751

Ahmadi and Another, Regina (on the Application of) v Secretary of State for the Home Department: CA 12 Dec 2005

Of two brothers, one sought to remain here to protect the other (a refugee settled here) from the consequences of his florid schizophrenia.
Held: The appeal was allowed. The brother settled here had brought contingent separate proceedings in case they proved necessary.

Citations:

[2005] EWCA Civ 1721

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 811

Jurisdiction:

England and Wales

Citing:

Appeal from – Ahmadi and Another, Regina (on the Application of) v Secretary of State for the Home Department Admn 14-Apr-2005
. .

Cited by:

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

Immigration

Updated: 05 July 2022; Ref: scu.238624

Amy Rockler v Forsakringskassan, formerly Riksforsakringsverke (Free Movement Of Persons): ECJ 16 Feb 2006

ECJ Freedom of movement for workers – Officials and servants of the European Communities – Parental benefits – Taking into account of the period of affiliation to the Joint Sickness Insurance Scheme of the European Communities.

Citations:

C-137/04, [2006] EUECJ C-137/04

Links:

Bailii

Jurisdiction:

European

Immigration

Updated: 05 July 2022; Ref: scu.238547

Januzi v Secretary of State for the Home Department and others: HL 15 Feb 2006

The claimants sought to challenge the refusals of asylum in each case based upon the possibility of internal relocation. They said that such internal relocation would place them in areas where they could not be expected to live without undue harshness.
Held: Where relocation was possible in the country from which the asylum applicant fled, the living conditions in the area to which they were expected to relocate were not generally relevant, save to the extent that the claimant’s human rights would be likely to be infringed in that area.
Lord Bingham: ‘The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so . . There is, as Simon Brown LJ aptly observed in Svazas v Secretary of State for the Home Department, [2002] 1 WLR 1891, para 55, a spectrum of cases. The decision-maker must do his best to decide, on such material as is available, where on the spectrum the particular case falls. . All must depend on a fair assessment of the relevant facts.’

Judges:

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Carswell, Lord Mance

Citations:

[2006] 2 WLR 397, [2006] 2 AC 426, [2006] UKHL 5, Times 15-Feb-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Svazas v The Secretary of State for the Home Department CA 31-Jan-2002
The two applicants appealed refusal of their applications for asylum. They had been former members of the communist party in Lithuania. Both had experienced persecution. The IAT had found that the constitution guaranteed them protection. Though they . .

Cited by:

Cited – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Cited – 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. . .
Cited – HJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same SC 7-Jul-2010
The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by . .
Cited – ST Eritrea, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Mar-2012
The Tribunal had confirmed the appellant’s refugee status, but the respondent had ordered nevertheless that she be returned. The judge’s order setting aside that decision had been overturned in the Court of Appeal.
Held: The claimant’s appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 05 July 2022; Ref: scu.238531

Torun v Stadt Augsburg, intervening: Vertreter des Bundesinteresses beim Bundesverwaltungsgericht, Landesanwaltschaft Bayern: ECJ 16 Feb 2006

ECJ (External Relations) EEC-Turkey Association – Freedom of movement for workers – Article 7, second paragraph, of Decision No 1/80 of the Association Council – Child of a Turkish worker who has reached the age of majority and completed a course of vocational training in the host Member State – Criminal conviction – Effect on right of residence.

Citations:

C-502/04, [2006] EUECJ C-502/04

Links:

Bailii

Jurisdiction:

European

Immigration

Updated: 05 July 2022; Ref: scu.238549

Ariaya v Secretary of State for the Home Department: CA 8 Feb 2006

The appellant contended that the country guidance for Eritrea to which he was to be returned, was out of date and inaccurate.
Held: Such a complaint could only be accepted where the country guidance appeared to be up to date, if supported by fresh and additional evidence such as might undermine the country guidance.

Judges:

Richards LJ

Citations:

[2006] EWCA Civ 48, Times 08-Feb-2006

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – IN (Draft Evaders, Evidence of Risk) Eritrea Cg IAT 24-May-2005
The Tribunal having examined the available evidence decided that not all returnees of draft age would be at risk if returned to Eritrea. . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 July 2022; Ref: scu.238355

BA (Military Service, No Risk) Sudan CG: IAT 25 Jan 2006

AIT Country guidance is given in this case on the following issues and in the following terms:
(i) On the available evidence Sudanese draft evaders and draft deserters do not face a real risk of imprisonment as a punishment. Instead they are forced to perform military service under close supervision.
(ii) In view of the ending in January 2005 of the north-south civil war, there is no longer a real risk of conscripts or draft evaders or draft deserters being required to fight in the south.
(iii) The recent conflict in Darfur (still ongoing) has been characterised by serious violations of international humanitarian law amounting to crimes under international law. However, on the available evidence it is not reasonably likely that conscripts or draft evaders or draft deserters are being or would be required to fight in Darfur.
(iv) Accordingly, Sudanese who face conscription, or who are draft evaders and draft deserters do not face a real risk on return of persecution or treatment contrary to Article 3.
(v) The case of AM (Sudan Draft Evader) Sudan [2004] UKIAT 00335 is no longer to be followed and, even read historically, was wrongly decided.
(vi) In view of the substantial political realignments in Sudan during the 2002-2005 period, none of the existing Country Guideline cases on Sudan (save for TM (Persecution- Christians – Individual – General) Sudan CG [2002] UKIAT 04849 and AE (Relocation – Darfur – Khartoum an option) Sudan CG [2005] UKAIT 00101) are to be considered any longer to furnish current country guidance and are accordingly to be deleted from the AIT Country Guideline list.

Judges:

Dr H H Storey SIJ

Citations:

[2006] UKAIT 00006

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 July 2022; Ref: scu.238366

Jonah v Secretaty of State for the Home Department: 1985

The Ghanaian applicant asylum seeker had been a senior trade union official. He had lost his job and been ill-treated following political changes in Ghana. He had hidden in a remote village before seeking asylum in this country. The adjudicator acknowledged that he would be in jeopardy if he resumed his former activities, but concluded that he would be in no danger if he lived quietly in retirement. The Immigration Tribunal had found no reason to interfere with the adjudicator’s finding of fact and dismissed his appeal.
Held: The court had to decide was whether the adjudicator had adopted the appropriate standard of proof when he said that he could not be satisfied, even on the balance of probabilities, that Mr Jonah’s declared fears of persecution if he was to return to Ghana were well-founded and to apply paragraph 134 of the Immigration Rules, entitling to Secretary of State to remove an asylum-seeker if he was not satisfied that his fear of persecution was well-founded. Appplying Fernandez as to the difference between establishing the existence of facts and prophesying what can only happen in the future, since the court was obliged to make an informed guess as to what might happen in the future it could only do so on the basis of the facts proved on the balance of probabilities. The likelihood of persecution contemplated by the paragraph was different from proof on the balance of probabilities that persecution would occur, but the matter could not usefully be carried further without the danger of creating purely semantic problems where none existed for a tribunal applying its common sense and judgment to the facts proved before it.

Judges:

Nolan J

Citations:

[1985] Imm AR 7

Jurisdiction:

England and Wales

Cited by:

Cited – Hysi v Secretary of State for the Home Department CA 15-Jun-2005
The claimant appealed an order to be returned to Kosovo.
Held: As the son of a gypsy mother and and an Albanian father. As such, he would face persecution if returned if his mixed race parentage became known. If order to return he would be . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 July 2022; Ref: scu.215833

Khajuria, Regina (on The Application of) v Secretary of State for The Home Department: Admn 16 May 2019

Judicial Review claim challenging the Secretary of State’s decision to refuse her application for further leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant and to uphold that refusal at administrative review.

Judges:

Martin Spencer J

Citations:

[2019] EWHC 1226 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 July 2022; Ref: scu.637787

CJ (International Video-Link Hearing: Data Protection) Jamaica: UTIAC 12 Mar 2019

(1) The arrangements made to enable the appellant to give evidence in his human rights appeal by video link between the British High Commission in Kingston, Jamaica and the Tribunal’s hearing centre in the United Kingdom did not involve the transfer of data to a third country, for the purposes of the General Data Protection Regulation ((EU) 2016/679).
(2) Even if that were not the case, the transfer was lawful under the derogation in Article 49(1)(e) of the Regulation (transfer necessary for establishment, exercise or defence of legal claims).

Citations:

[2019] UKUT 126 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Information

Updated: 05 July 2022; Ref: scu.637760

Munday (EEA Decision: Grounds of Appeal): UTIAC 4 Feb 2019

1. In an appeal against an EEA decision under the Immigration (EEA) Regulations 2016, the sole ground of appeal is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to and residence in the UK (sched 2, para 1).
2. Consequently, in such an appeal an appellant may not rely on human rights grounds in the absence of a s.120 notice and statement of additional grounds in which reliance is placed upon human rights or there has been an additional decision to refuse a human rights claim.

Citations:

[2019] UKUT 91 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, European

Updated: 05 July 2022; Ref: scu.637756

LH and IP (Gay Men: Risk) Sri Lanka (CG): UTIAC 18 Feb 2015

(1) Having regard to the provisions of articles 365 and 365A of the Sri Lankan Penal Code, gay men in Sri Lanka constitute a particular social group.
(2) ‘Gay men in civil partnerships’ in Sri Lanka do not constitute a particular social group for the purposes of the Refugee Convention. The Sri Lankan authorities’ failure to recognise alternative marital and quasi-marital statuses such as civil partnership or homosexual marriage which are available in other countries of the world does not, without more, amount to a flagrant breach of core human rights.
(3) Applying the test set out by Lord Rodger in the Supreme Court judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, in general the treatment of gay men in Sri Lanka does not reach the standard of persecution or serious harm.
(4) There is a significant population of homosexuals and other LGBT individuals in Sri Lanka, in particular in Colombo. While there is more risk for lesbian and bisexual women in rural areas, because of the control exercised by families on unmarried women, and for transgender individuals and sex workers in the cities, it will be a question of fact whether for a particular individual the risk reaches the international protection standard, and in particular, whether it extends beyond their home area.
(5) Where a risk of persecution or serious harm exists in an appellant’s home area, there may be an internal relocation option, particularly for individuals returning via Colombo from the United Kingdom.

Citations:

[2015] UKUT 73 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 July 2022; Ref: scu.543185

BK and others (Spouses: Marriage-Meaning of ‘Subsisting’) Turkey: IAT 13 Dec 2005

IAT This case is reported for what we say about the meaning of ‘subsisting’ in relation to marriage within Part 8 of the Immigration Rules HC395, Family Members. A marriage is subsisting for the purposes of these Rules if it has been lawfully entered into and has not thereafter been lawfully dissolved or annulled.

Judges:

C Jarvis SIJ

Citations:

[2005] UKAIT 00174

Links:

Bailii

Immigration

Updated: 04 July 2022; Ref: scu.237612

Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence: CA 21 Dec 2005

The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The question amounted to whether the officers acted under State Agent Authority within the convention despite their operation outside Europe.
Held: The appeals failed. ‘The Act reaches the same parts of the body politic as the Convention. For my part I also see good grounds of principle and of substantive law for holding that, at least where the right to life is involved, these parts extend beyond the walls of the British military prison and include the streets patrolled by British troops. ‘

Judges:

Lord Justice Sedley Lord Justice Brooke Vice-President of the Court of Appeal (Civil Division) Lord Justice Richards

Citations:

[2005] EWCA Civ 1609, Times 06-Jan-2006, [2007] QB 140

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Al Skeini and Others, Regina (on the Application of) v Secretary of State for Defence and Another Admn 14-Dec-2004
Several dependants of persons killed in Iraq by British troops claimed damages.
Held: The court considered extensively the scope and applicability of Article 1 duties. In general an English court would have no jurisdiction over deaths abroad . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – Serco Ltd v Lawson and Foreign and Commonwealth Office CA 23-Jan-2004
The applicant had been employed to provide services to RAF in the Ascension Islands. He alleged constructive dismissal. There was an issue as to whether somebody working in the Ascension Islands was protected by the 1996 Act. The restriction on . .
Cited – Tomalin v S Pearson and Son Ltd CA 1909
A widow claimed compensation for her husband’s death overseas.
Held: The Act did not provide for compensation to be payable. ‘What is the widow’s claim here ? She is claiming, not as a party to the contract, not as claiming any rights under a . .
Cited – Cyprus v Turkey 1-May-1975
(Commission) Turkey argued that she had not extended her jurisdiction to the island of Cyprus because she had neither annexed a part of the island nor established a military or civil government there. She maintained that the administration of the . .
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
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 Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Issa And Others v Turkey ECHR 16-Nov-2004
Accountability for violation of the Convention rights and freedoms of persons in another state stems from the fact that article 1 of the Convention cannot be interpreted so as to allow a state party to perpetrate violations of the Convention on the . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Hess v United Kingdom ECHR 28-May-1975
(Commission) The Commission looked to the admissibiliity of a complaint by Rudoph Hess who was incarcerated by the respondent state in Spandau prison. The prison was in the British sector in Berlin under the control of the four WWII Allied powers. . .
Cited – Loizidou v Turkey ECHR 23-Mar-1995
(Preliminary objections) The ECHR considered the situation in northern Cyprus when it was asked as to Turkey’s preliminary objections to admissibility: ‘although Article 1 sets limits on the reach of the Convention, the concept of ‘jurisdiction’ . .
Cited – Regina v Hammersmith and Fulham London Borough Council, ex parte M; Regina v Similar Ex Parte P etc QBD 8-Oct-1996
Destitute asylum seekers who were not entitled to welfare benefits could be in need of care and attention within the meaning of section 21 of the 1948 Act although they were no longer entitled to housing assistance or other social security benefits . .
Cited – Chrystostomos and Others v Turkey ECHR 1991
(Commission – Admissibility) There were three applications, including one by Titina Loizidou. She complained that she had been denied access to her property in north Cyprus by the activities of Turkish forces and persons acting under their . .
Cited – Loizidou v Turkey (Merits) ECHR 18-Dec-1996
The court was asked whether Turkey was answerable under the Convention for its acts in Northern Cyprus.
Held: It was unnecessary to determine whether Turkey actually exercised detailed control over the policies and actions of the authorities . .
Cited – Assanidze v Georgia ECHR 8-Apr-2004
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion of domestic remedies) ; Violation of Art. 5-1 with regard to unlawfull detention ; Not necessary to examine Art. 5-1 . .
Cited – Ilascu and Others v Moldova and Russia ECHR 8-Jul-2004
(Grand Chamber) The two contracting states disputed the status of secessionist territory in Moldova called the Moldovian Republic of Transdniestria, which had been set up in 1991-2 with the support of the Russian Federation. The question was whether . .
Cited – Freda v Italy ECHR 7-Oct-1980
(Commission) An Italian citizen had been handed over by the authorities in Costa Rica to Italian police who obliged him to go on board an Italian Air Force plane.
Held: The Commission was satisfied that he was under the authority of the . .
Cited – Ocalan v Turkey ECHR 12-May-2005
(Grand Chamber) – The applicant had been detained in Kenya. He had allowed himself to be taken by Kenyan officials to Nairobi airport in the belief that he was free to leave for a destination of his choice, but they took him to an aircraft in which . .
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 – WM v Denmark ECHR 14-Oct-1992
(Commission) The applicant lived in the German Democratic Republic (‘DDR’). He wished to move to the Federal Republic of Germany, but the DDR authorities refused him permission. At 1115 on 9 September 1988, together with 17 other DDR citizens, he . .
Cited – Illich Sanchez Ramirez v France ECHR 24-Jun-1996
The applicant was arrested in Khartoum by Sudanese security forces and handed over to French police officers who escorted him to France in a French military aircraft. The ECommHR was willing to accept that he was effectively under the authority, and . .
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Tyrer v The United Kingdom ECHR 25-Apr-1978
Three strokes with a birch constituted degrading punishment for a 15-year-old boy, which violated article 3 having regard to the particular circumstances in which it was administered.
Preliminary objection rejected (disappearance of object of . .
Cited – Ahmet Ozkan and Others v Turkey ECHR 6-Apr-2004
Turkish military forces attacked a village with rifles and heavy weapons. During this operation they burned a number of houses, and a bomb was thrown into one house, with the result that a girl of six suffered severe intestinal injuries. When the . .
Cited – Salman v Turkey ECHR 27-Jun-2000
Where someone dies or is injured whilst in custody the burden is on the state to provide a ‘satisfactory and convincing explanation’ of what has happened: ‘Persons in custody are in a vulnerable position and the authorities are under a duty to . .
Cited – Gulec v Turkey ECHR 1995
A 15-year old boy was killed during the course of incidents in a Turkish city which involved demonstrations, shop closures and attacks on public buildings. The government maintained that he had been hit by a bullet fired by armed demonstrators at . .
Cited – Ergi v Turkey ECHR 28-Jul-1998
A village girl was shot dead when she went out onto the veranda of her home after security forces had been engaged in an ambush of PKK members close to the village where she lived. Nobody asked her family about the circumstances of the shooting, and . .
Cited – Ogur v Turkey ECHR 20-May-1999
A nightwatchman at a mining site, the claimant’s son, was killed one morning by Turkish security forces when he was coming off duty. The Government said that the scene of the incident had been used as a shelter by terrorists. The applicant claimed . .
Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Hackett v United Kingdom ECHR 2005
. .
Cited – Teresa Kelly, Re an Application for Judicial Review QBNI 19-Nov-2004
. .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .

Cited by:

Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Appeal from – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
At CA – Al-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Armed Forces

Updated: 04 July 2022; Ref: scu.237432

GD (Funding Orders, Restrictions, 2005 Regulations) Serbia and Montenegro: IAT 16 Nov 2005

AIT Costs orders: This case is reported for what we say about the restrictions on the power of the Tribunal to make section 103D orders. No order may be made unless an appellant is represented by a supplier acting pursuant to a grant of Legal Representation. It is the duty of a legal representative to ensure that an appellant has the benefit of all public funding to which he may be entitled.

Citations:

[2005] UKAIT 00166

Links:

Bailii

Immigration

Updated: 04 July 2022; Ref: scu.235751

McPherson v Secretary of State for the Home Department: CA 19 Dec 2001

The appellant had entered the UK as a visitor on regular occasions and latterly had used false passport. She was then convicted of supplying Class A drugs, and ordered to be deported. She had children who also were in the UK, and did not wish to be separated from them, and was afraid of violence against her if she was returned to Jamaica The adjudicator had failed to make a determination on her claim under article 8, and the IAT had declined to allow an appeal.
Held: It was wrong not to hear the point. She had the right to make the claim, and had the right to have it determined. There was clear evidence that the state might be unable to protect her from an individual. There was a change in the law between the adjudicator’s decision and the IAT decision whereby someone breaching an order under the Jamaican Domestic Violence Act might be imprisoned. A state could not be required to guarantee the safety of an individual, but some judgement had to be made. Appeal allowed.

Judges:

Lord Justice Aldous, Lord Justice Sedley and Lady Justice Arden

Citations:

[2001] EWCA Civ 1955, [2002] INLR 139

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 65

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Immigration Appeal Tribunal ex parte Bari 1986
. .

Cited by:

Cited – Bagdanavicius and Another, Regina (on the Application of) v HL 26-May-2005
The claimants said they had been subjected to harassment and violence from non-state agents in their home country of Lithuania, and sought asylum.
Held: It was for the person claiming the protection of the Convention provisions for . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 04 July 2022; Ref: scu.167311

BF (Tirana – Gay Men) Albania (CG): UTIAC 26 Mar 2019

(i) Particular care must be exercised when assessing the risk of violence and the lack of sufficiency of protection for openly gay men whose home area is outside Tirana, given the evidence of openly gay men from outside Tirana encountering violence as a result of their sexuality. Such cases will turn on the particular evidence presented.
(ii) Turning to the position in Tirana, in general, an openly gay man, by virtue of that fact alone, would not have an objectively well-founded fear of serious harm or persecution on return to Tirana.
(iii) There is only very limited evidence that an individual would be traced to Tirana by operation of either the registration system or criminal checks at the airport. However, it is plausible that a person might be traced via family or other connections being made on enquiry in Tirana. Whether an openly gay man might be traced to Tirana by family members or others who would wish him harm is a question for determination on the evidence in each case depending on the motivation of the family and the extent of its hostility.
(iv) There exists in Tirana a generally effective system of protection should an openly gay man face a risk of harm in that city or from elsewhere in Albania.
(v) An openly gay man may face discrimination in Tirana, particularly in the areas of employment and healthcare. However, whether considered individually or cumulatively, in general the level of such discrimination is not sufficiently serious to amount to persecution. Discrimination on grounds of sexual orientation is unlawful in Albania and there are avenues to seek redress. Same-sex relationships are not legally recognised in Albania. However, there is no evidence that this causes serious legal difficulties for relationships between openly gay men.
(vi) In general, it will not be unduly harsh for an openly gay man to relocate to Tirana, but each case must be assessed on its own facts, taking into account an individual’s particular circumstances, including education, health and the reason why relocation is being addressed.

Citations:

[2019] UKUT 93 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 July 2022; Ref: scu.637759

RA (S117C: ‘Unduly Harsh’; Offence: Seriousness) Iraq: UTIAC 4 Mar 2019

(1) In KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53, the approval by the Supreme Court of the test of ‘unduly harsh’ in section 117C(5) of the Nationality, Immigration and Asylum Act 2002, formulated by the Upper Tribunal in MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC), does not mean that the test includes the way in which the Upper Tribunal applied its formulation to the facts of the case before it.
(2) The way in which a court or tribunal should approach section 117C remains as set out in the judgment of Jackson LJ in NA (Pakistan) and Another v Secretary of State [2016] EWCA Civ 662.
(3) Section 117C(6) applies to both categories of foreign criminals described by Lord Carnwath in paragraph 20 of KO (Nigeria); namely, those who have not been sentenced to imprisonment of 4 years or more, and those who have. Determining the seriousness of the particular offence will normally be by reference to the length of sentence imposed and what the sentencing judge had to say about seriousness and mitigation; but the ultimate decision is for the court or tribunal deciding the deportation case.
(4) Rehabilitation will not ordinarily bear material weight in favour of a foreign criminal.

Citations:

[2019] UKUT 123 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 July 2022; Ref: scu.637764

RA (Iraq) v The Secretary of State for The Home Department: CA 17 May 2019

The court considered a third appeal to the Court of Appeal and concerns the Appellant’s so-called ‘limbo’ status, that is to say a continuing stasis, whereby a person is prevented by continuing circumstance from being deported, but also prevented by lack of leave to remain from working, receiving normal State benefits, renting or buying property, or accessing the full range of NHS benefits, which together are said to constitute a disproportionate interference with family or private life under Article 8 of the Convention.

Citations:

[2019] EWCA Civ 850

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 July 2022; Ref: scu.637521

AM (Somalia) v The Secretary of State for The Home Department: CA 7 May 2019

Appeal by AM from the decision of the Upper Tribunal by which the it dismissed his s appeal against the decision of the First Tier Tribunal. Both the UT and the FTT upheld the decision of the respondent Secretary of State: (i) to revoke AM’s status as a refugee and (ii) to make an order for his deportation. That decision was made following a series of criminal convictions on the part of AM, the most recent of which resulted in a sentence of imprisonment of two years.

Citations:

[2019] EWCA Civ 774

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 July 2022; Ref: scu.637315

BW (Witness Statements By Advocates): UTIAC 12 Dec 2014

(i) It is timely to recall the golden rule of judicial adjudication that justice must not only be done but must manifestly be seen to be done.
(ii) In certain cases, likely to be rare, evidence presented to the Upper Tribunal may include a witness statement compiled by a representative involved in the hearing before the First-tier Tribunal (‘FtT’). In practice, this is most likely to occur in cases where such evidence is considered necessary to demonstrate that the appellant was deprived of his right to a fair hearing at first instance.
(iii) Evidence of this kind will not be required if the determination of the FtT speaks for itself on the relevant issue.
(iv) In applications for permission to appeal, the distinction between legal submissions and arguments (on the one hand) and evidence about events at the hearing (on the other) must be carefully observed.
(v) Where an advocate makes a witness statement in the circumstances outlined above, a change of advocate may be necessary, since the roles of advocate and witness are distinct, separated by a bright luminous line. An advocate must never assume the role of witness.
(vi) The respondent’s rule 24 response must engage specifically with additional evidence of this kind.

Citations:

[2014] UKUT 568 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 July 2022; Ref: scu.543194

Macnikowski (Applicable Policies): UTIAC 12 Dec 2014

(1) The principle in Abdi [1995] EWCA Civ 27 involves an entitlement to the benefit of a policy that is applicable to the person concerned.
(2) As from 1 April 2009 the applicable policy relating to deportation of EEA nationals who have committed serious offences was that set out in the Criminal Casework Directorate (European Economic Area) Cases (‘CCD:EEA’). The preceding policy set out in the Home Office Enforcement Instructions and Guidance (EIGs) Chapter 12.3 ceased to be applicable from that date, notwithstanding that it remained by mistake on the Home Office website for several years thereafter.
(3) From 15 January 2013 the CCD-EEA policy was in turn revised by modernised guidance entitled: Criminal casework: European Economic Area (EEA) foreign national offender (FNO) cases (CC:EEA)(FNO).

Citations:

[2014] UKUT 567 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 July 2022; Ref: scu.543197

Sultana and Others (Rules: Waiver/Further Enquiry; Discretion): UTIAC 12 Nov 2014

(1) Paragraph [D] of Appendix FM-SE is an example, within the context of the requirement to supply specified evidence, of the increasing influence of discretionary powers of waiver and further enquiry in the Immigration Rules.
(2) Where applicants wish to invoke any discretion of this kind, they should do so when making the relevant application, highlighting the specific provision of the Rules invoked and the grounds upon which the exercise of discretion is requested.
(3) Where any request of this kind is made and refused, a brief explanation should be provided by the decision maker.
(4) A refusal to exercise a discretionary power as described in (1) above may render an immigration decision not in accordance with the law, under section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002.
(5) Powers of waiver are dispensing provisions, designed to ensure that applications suffering from certain minor defects or omissions can be readily remedied.
(6) The hierarchical distinction between the Immigration Rules and Immigration Directorate Instructions (‘IDIs’) must be observed at all times.
(7) A failure to recognise, or give effect to, an IDI may render an immigration decision not in accordance with the law.

Citations:

[2014] UKUT 540 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 July 2022; Ref: scu.543192

Miao v Secretary of State for the Home Department: CA 16 Feb 2006

Husband and wife sought leave to remain to care for the husband’s father who was settled as a refugee, but suffered chronic depression and presented a high suicide risk.
Held: The appeal succeeded.

Citations:

[2006] EWCA Civ 75, [2006] INLR 473

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Miao v Secretary of State for the Home Department CA 23-Nov-2005
Application for leave to appeal – granted. . .

Cited by:

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

Immigration, Human Rights

Updated: 04 July 2022; Ref: scu.238541

Regina v Fraydon Navabi; Senait Tekie Embaye: CACD 11 Nov 2005

The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the defence of reasonable excuse and otherwise. The statute had to be read so as to comply with art 31 of the 1951 Convention. The convictions however were safe in this case.
Kennedy L.J said that the burden of proof was legal rather than evidential: ‘For that same reason, namely that the defendant alone is likely to have all of the relevant information, and bearing in mind the importance of maintaining an effective immigration policy, and the limitation on the penalties which can be imposed under the Act, we see no reason to conclude that the burden of proof should be interpreted as being anything less than a legal burden. An evidential burden would do little to promote the objects of the legislation in circumstances where the prosecution would have very limited means of testing any defence raised. ‘

Judges:

Kennedy LJ, Bell J, Dobbs J

Citations:

[2005] EWCA Crim 2865, Times 05-Dec-2005

Links:

Bailii

Statutes:

Asylum and Immigration (Treatment of Claimants etc) Act 2004 2, Convention and Protocols relating to the Status of Refugees 31

Jurisdiction:

England and Wales

Citing:

Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Khaboka v Secretary of State for the Home Department CA 1993
A refugee does not become a refugee because of recognition as such. He is recognised because he is a refugee so, for the purposes of Article 31.1 the term refugee includes someone who is only subsequently established as being a refugee, in other . .
Cited – Regina (on the Application of Gjovalin Pepushi) v Crown Prosecution Service Admn 11-May-2004
The claimant was stopped when boarding a flight to Canada, having previously stopped in France and Italy. He bore a false Swedish passport, and intended to claim asylum in Canada. He now claimed the benefit of the article 31 (per Adimi), to defend a . .
Cited – Regina v Abdul Hussain and others CA 1999
The judge had been wrong to refused to leave the defence of necessity to the jury. The court gave guidance as to the proper approach. The judge should have asked himself whether there was evidence of such fear operating on the mind of the defendant . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Regina v Uxbridge Magistrates and Another ex parte Adimi; R v CPS ex parte Sorani; R v SSHD and Another ex parte Kaziu Admn 29-Jul-1999
The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception . .

Cited by:

Cited – Regina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration, Human Rights

Updated: 04 July 2022; Ref: scu.235244

DE (Suicide, Psychiatric Treatment, J Applied) Turkey: IAT 21 Oct 2005

IAT This case concerns an Appellant whose core account of HADEP/DEHAP sympathies and Alevi Kurdish ethnicity was found not credible but who had a history of depression and claimed suicide risk on return. The Tribunal should assume (following J [2005] EWCA Civ 629) that the Secretary of State will provide appropriately qualified escorts on return. Approach to analysis of suicide risk (J applied). Adequate medical treatment available in Turkey for mental health conditions and Articles 3 and 8 ECHR not engaged.

Judges:

Gleeson SIJ, Kebede, IJJ

Citations:

[2005] UKAIT 00148

Links:

Bailii

Immigration

Updated: 04 July 2022; Ref: scu.235073

AH (Returning Students, Validation of UK Qualifications, Gozinesh) Iran: IAT 7 Nov 2005

IAT Students returning to Iran at the conclusion of their studies will require their United Kingdom qualifications to be recertified or validated by the Ministry of Science before they are allowed to practice making use of those qualifications. This will involve the authorities in Iran seeing the contents of some of their written work in the United Kingdom. Those admitted to universities or other institutions of higher learning and to other state/public sector employment as well as some others will be subject to the selection or evaluation process known as Gozinesh which will examine their moral suitability. The risks attendant upon these procedures is examined.

Citations:

[2005] UKAIT 00154

Links:

Bailii

Immigration

Updated: 04 July 2022; Ref: scu.235079

MA (Operational Guidance, Prison Conditions, Significance) Sudan: IAT 21 Oct 2005

AIT So long as the IND Operational Guidance Note on Sudan continues to view prison conditions in Sudan as being ‘likely to reach the Article 3 threshold’, the Tribunal will expect the Home Office to concede in all appeals based on Article 3 where it is accepted that the appellant has demonstrated a real risk of imprisonment on return to Sudan.

Judges:

Storey, Mather SIJJ

Citations:

[2005] UKAIT 00149

Links:

Bailii

Immigration

Updated: 04 July 2022; Ref: scu.235077

GB (Evidence Not Probative Is Irrelevant) Zimbabwe: IAT 7 Nov 2005

This case is reported for what we say about the consideration and assessment of evidence and the approach to the assessment of credibility. Evidence which is not probative of any matter that is in issue is evidence which is not relevant. It is not arguable that an Adjudicator or Immigration Judge errs in law in deciding not to give weight to evidence that is irrelevant.

Citations:

[2005] UKAIT 00153

Links:

Bailii

Immigration

Updated: 04 July 2022; Ref: scu.235080

MY (Country Guidance Cases, No Fresh Evidence ) Eritrea: IAT 14 Nov 2005

AIT The AIT Practice Directions 2005 mean that a Country Guideline case is authoritative in any subsequent appeal so far as that appeal relates to the country guidance in question and depends upon the same or similar evidence: see also R (Iran) [2005] EWCA Civ 982. In a case depending, as did this, on the same or similar evidence, a party will not be permitted to challenge the country guidance findings except by the production of new evidence. Attempts to contest the findings in a CG case without such fresh evidence are not permissible.

Judges:

Storey, Batiste SJJ

Citations:

[2005] UKAIT 00158

Links:

Bailii

Immigration

Updated: 04 July 2022; Ref: scu.235081

Ferlini v Centre hospitalier de Luxembourg: ECJ 3 Oct 2000

ECJ A national of one Member State working in another Member State does not lose his status of worker within the meaning of Article 48(1) of the Treaty (now, after amendment, Article 39(1) EC) through occupying a post within an international organisation, even if the rules relating to entry into and residence in the country in which he is employed are specifically governed by an international agreement. Accordingly, there can be no doubt that an EC official has the status of a migrant worker.
The first paragraph of Article 6 of the Treaty (now, after amendment, the first paragraph of Article 12 EC) also applies in cases where a group or organisation such as the Entente des hopitaux luxembourgeois exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms guaranteed under the Treaty.
The application, on a unilateral basis, by a group of healthcare providers of a Member State to EC officials of scales of fees for medical and hospital maternity care which are higher than those applicable to residents affiliated to the national social security scheme of that State constitutes discrimination on the ground of nationality prohibited under the first paragraph of Article 6 of the EC Treaty, in the absence of objective justification in this respect. The criterion of affiliation to the national social security scheme, on which the differentiation of fees for medical and hospital care is based, constitutes indirect discrimination on the ground of nationality. First, the great majority of those affiliated to the Sickness Insurance Scheme common to the institutions of the European Communities and not to the national social security scheme, although in receipt of medical and hospital care given in Luxembourg, are nationals of other Member States. Second, the overwhelming majority of nationals residing in Luxembourg are covered by the national social security scheme.

Citations:

[2000] ECR II-3929, C-411/98, [2000] EUECJ C-411/98

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Lists of cited by and citing cases may be incomplete.

Employment, Immigration

Updated: 04 July 2022; Ref: scu.231922

RS (Funding, Meaning of ‘Significant Prospect’ ) Iran: IAT 6 Oct 2005

IAT This is a reported decision considering whether there is a difference of interpretation of the phrase ‘significant prospect’ in regulation 6(3) of The Community Legal Services (Asylum and Immigration Appeals) Regulations 2005 and of ‘real possibility’ in rule 26(6) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
Held: in the majority of cases there is no difference in practice and the making of the reconsideration order will usually satisfy the requirements of regulation 6(3) of the Regulations in favour of making a fiunding order (paragraphs 12 to 15); but, there will be occasions when different criteria will apply and the term ‘significant prospect’ may be applied in a more restrictive way; there is a requirement of good faith on the representative’s part – see paragraph 16 and the examples given in paragraph 17 of the determination.

Citations:

[2005] Imm AR 726, [2005] UKAIT 00138

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 04 July 2022; Ref: scu.231360