Category: Immigration

G v Secretary of State for the Home Department (Ethiopia): IAT 28 Aug 2003

IAT The appellant is or may be a citizen of Ethiopia or Eritrea. She has been given leave to appeal the determination of an Adjudicator, Miss M N Lingard, dismissing her appeal against the respondent’s decision to give directions for her removal from the United Kingdom to Eritrea following the refusal of asylum.

Judges:

P R Moulden (Chairman)

Citations:

[2003] UKIAT 00091

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 June 2022; Ref: scu.192427

M v Secretary of State for the Home Department (DR Congo): IAT 30 Jan 2003

The appellant, a citizen of the Democratic Republic of Congo, appeals with leave against the determination of an Adjudicator in which he dismissed on asylum and human rights grounds the appellant’s appeal against the decision of the Secretary of State to refuse him leave to enter the United Kingdom.

Judges:

P R Lane Ch

Citations:

[2003] UKIAT 00071

Links:

Bailii

Immigration

Updated: 09 June 2022; Ref: scu.192380

Singh v The Secretary of State for the Home Department for Judicial Review: OHCS 24 Dec 2003

The applicant complained that the adjudicator who had heard his asylum appeal in 1997 had not been sufficiently independent.
Held: The tribunal lacked what had come to be called ‘structural independence’ The common law test for impartiality was the appropriate test for the time of the hearing. That test would have differed substantially.

Judges:

Lord Kirkwood And Lord President And Lord Weir

Citations:

[2003] ScotCS 342, Times 23-Jan-2004

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Starrs and Chalmers and Bill of Advocattion for Procurator Fiscal, Linlithgow v Procurator Fiscal, Linlithgow and Hugh Latta Starrs and James Wilson Chalmers; Starrs v Ruxton, Ruxton v Starrs ScHC 11-Nov-1999
The system in Scotland whereby lesser judges were appointed by the executive, for a year at a time, and could be discharged without explanation or challenge, meant that they could be seen not to be independent, and the system was a breach of the . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 June 2022; Ref: scu.190783

Zeqaj v Secretary of State for the Home Department: CA 10 Dec 2002

The applicant had failed in his asylum application, and an order given for his repatriation. The order had however by mistake ordered his return to Albania, rather than Serbia.

Judges:

Thorpe, Latham LJJ, Lawrence Collins J

Citations:

[2002] EWCA Civ 1919

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 08 June 2022; Ref: scu.189035

Nadarajah and Amirhanathan v Secretary of State for the Home Department: CA 8 Dec 2003

The Secretary of State’s published policy was that, if legal proceedings were initiated, removal would not be treated as imminent even if it otherwise was. The Secretary of State also had an unpublished policy, namely that information that proceedings were about to be initiated would be disregarded, however credible that information might be.
Held: The Secretary of State could not rely on an aspect of an unpublished policy to render lawful that which was at odds with his published policy. Lord Phillips of Worth Matravers, MR said: ‘Thus the relevance of Article 5 is that the domestic law must not provide for, or permit, detention for reasons that are arbitrary. Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of State’s published policy, which, under principles of public law, he is obliged to follow. These appeals raise the following questions: (1) What is the Secretary of State’s policy? (2) Is that policy lawful? (3) Is that policy accessible? (4) Having regard to the answers to the above questions, were N and A lawfully detained?’

Judges:

Lady Justice Arden Lord Phillips Of Worth Matravers, MR, Lord Justice Dyson

Citations:

[2003] EWCA Civ 1768, [2004] INLR 139

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Regina (Nadarajah) v Secretary of State for the Home Department Admn 2-Dec-2002
The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, . .
See Also – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .

Cited by:

Cited – ID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
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 (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Regina (Konan) v Secretary of State for the Home Department Admn 21-Jan-2004
The claimants alleged that their immigration detention had been unlawful.
Held: Collins J said: ‘Since the detention at least since 24 June 2002 was contrary to the defendant’s own policy as published in Chapter 38, it was unlawful. In so . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 June 2022; Ref: scu.188644

Zar Begum v Social Security Commissioners and Another: Admn 6 Nov 2003

The applicant sought judicial review of the respondent’s refusal of income support. She had entered the UK on the basis of an undertaking given that she would be supported without recourse to public funds. The legislation provided no standard form for such an undertaking, but the absence of such an undertaking was not fatal to prevent excusing payment of benefits.

Judges:

Sir Christopher Bellamy QC

Citations:

Times 04-Dec-2003, Gazette 02-Jan-2004, [2003] EWHC 3380 (Admin)

Links:

Bailii

Statutes:

Income Support (General Regulations) 1987 21(3)(I

Immigration, Benefits

Updated: 08 June 2022; Ref: scu.188609

N v Secretary of State for the Home Department: CA 16 Oct 2003

The applicant had come to the UK to seek asylum, but had advanced HIV/AIDS. When her asylum claim failed she sought permission to continue her stay saying that if returned she would not receive proper treatment and would die.

Citations:

[2003] EWCA Civ 1369, [2004] 1 WLR 1182

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appealed to – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .

Cited by:

Appeal from – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 08 June 2022; Ref: scu.188478

Pant v Secretary of State for the Home Department: CA 21 Nov 2003

The applicant had failed in her application for asylum. The court ordered the respondent to investigate arrest warrants issued against the applicant by her home country. That was not done, and there were other defects in the order. She now sought leave to appeal.
Held: There were unsatisfactory elements in the original decision and in the failure to investigate as requested, but her delay of almost two and a half years before commencing an appeal was substantial. She had not established that sufficiently exceptional circumstances applied to justify allowing leave after that length of time.

Judges:

Ward, Scott Baker, Carnwath LJJ

Citations:

Times 26-Nov-2003, [2003] EWCA Civ 1964

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 08 June 2022; Ref: scu.188246

Shire v Secretary of State for Work and Pensions: CA 13 Oct 2003

The claimant, a Somali woman, had arrived at Gatwick Airport from Yemen at 10.30 pm on 29 August 1999 and not claimed asylum until 31 August (the intervening day being a bank holiday). Her reason for not claiming at Gatwick was that she was accompanied by an agent who unsurprisingly was concerned that nothing be done which might occasion his arrest for facilitation. The claimant had lodged her appeal with the court of appeal but then sought to change the grounds upon which the appeal was based. The claimant did not forewarn the court.
Held: ‘In a situation of that nature it is highly desirable that those who act on behalf of the appellant should write to the court and to the other party indicating the proposed nature of the changed case which is to be advanced, seeking the directions of the court as to whether the matter should be dealt with at the beginning of the hearing of the appeal or by directions being given by the court prior to the hearing of the appeal. ‘ In this case, the question was what was meant by the obligation on an asylum applicant to make a claim ‘on his arrival’. Here she acted under the direction of an agent who arranged her immigration, and must be assumed to be under that agent’s direction. The claim had not been made on her arrival.

Judges:

The Lord Chief Justice Of England And Wales, (The Lord Woolf Of Barnes) Lord Justice Chadwick And Lord Justice Buxton

Citations:

[2003] EWCA Civ 1465, Times 30-Oct-2003

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kola and Another v Secretary of State for Work and Pensions HL 28-Nov-2007
The claimant said that the 1987 Regulations were invalid, in making invalid any claim for benefits by an asylum seeker who had not made his application exactly upon entry to the UK.
Held: The appeals were allowed. Section 11 of the 1971 Act is . .
Lists of cited by and citing cases may be incomplete.

Benefits, Immigration

Updated: 08 June 2022; Ref: scu.187113

Szoma v Secretary of State for Work and Pensions: CA 30 Jul 2003

The applicant, a foreign national had been given temporary admission to the UK. He received income support. But this ceased after his asylum application was rejected, and he remained resident.
Held: The legislation now made specific reference to the concept of lawful presence, and required this before an entitlement to benefits arose. The case of Bugdaycay had set that concept out, and this had been confirmed in Kaya’s case, and now again by this court.

Judges:

Lord Justice Pill Mr Justice Maurice Kay Lord Justice Carnwath

Citations:

[2003] EWCA Civ 1131, Times 22-Aug-2003

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 115(1) 115(3), Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (2000 No 636)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Confirmed – Murat Kaya v Haringey London Borough Council and Another CA 14-Jun-2001
The grant of temporary admission to the UK pending an decision on his asylum status, did not create a full ‘lawful presence’ in the UK. A person seeking to qualify for housing assistance had to be lawfully present within the UK, and temporary . .
Appeal from – Szoma v Southwark London Borough Council Admn 17-Feb-2003
. .

Cited by:

Appeal from – Szoma v Secretary of State for the Department of Work and Pensions HL 28-Jul-2005
The applicant had claimed asylum on entry and was temporarily admitted. Though his claim for asylum was later refused, those admitted in this way were granted indefinite leave to remain. He had claimed and received benefits at first, but then these . .
Lists of cited by and citing cases may be incomplete.

Benefits, Immigration

Updated: 07 June 2022; Ref: scu.185241

K v London Borough of Lambeth: CA 31 Jul 2003

The claimant appealed against refusal of judicial review. She had entered the UK, and applied for asylum. She was then found to have contracted a marriage of convenience, and thus become ineligible for support. She appealed and now sought housing assistance pending decision on her removal. The authority refused assistance on the basis that she was wife of an EU national, but she was to be removed because that marriage was not genuine.
Held: An asylum seeker is not to be equated with a foreign national seeking to establish a right of residence. Having abandoned the asylum aplication, the court could not make an decision assuming she could not return to her country of origin. Strasbourg jurisprudence does not require a claimant, seeking entry for family reasons, to be permitted to enter, or to remain here on public support, pending the resolution of her disputed claim. She had in the past demonstrated the ability to support herself, and the judge’s finding that she might do so again was not irrational.

Judges:

Lord Phillips Of Worth Matravers, Mr Lord Justice Judge And Lord Justice Kay

Citations:

[2003] EWCA Civ 1150

Links:

Bailii

Statutes:

Nationality Immigration and Asylum Act 2002 2

Jurisdiction:

England and Wales

Citing:

Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
Cited – Regina v Secretary of State for Social Security Ex Parte B and the Joint Council for the Welfare of Immigrants CA 27-Jun-1996
The Secretary of State had introduced regulations which excluded the statutory right to payment of ‘urgent case’ benefits for asylum seekers who had not claimed asylum immediately upon arrival, or whose claims for asylum had been rejected, and who . .
Cited – Regina (on the Application of J) v London Borough of Enfield and Another Admn 4-Mar-2002
The mother and child were destitute, and sought to oblige the local authority to provide accommodation and support.
Held: The duty to a child under the section could not be extended to include a duty to accommodate and support the child and . .
Cited – Regina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .
Lists of cited by and citing cases may be incomplete.

Housing, Benefits, Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.184925

AE and FE v Secretary of State for the Home Department: CA 16 Jul 2003

The appellants challenged orders denying them asylum status. The result would be to require them to return home but subject to relocation within a different geographical area.
Held: For the purposes of considering refugee status, the conditions to which they would be returned in a different area were not relevant. They might become relevant when considering whether the return would infringe the claimants human rights, because they would not enjoy the basic notions of civil political and socio-economic human rights. The court emphasised the need to distinguish between: ‘(1) the right to refugee status under the Refugee Convention; (2) the right to remain by reason of rights under the Human Rights Convention; and (3) consideration to the grant of leave to remain for humanitarian reasons.’ and ‘Consideration of the reasonableness of internal relocation should focus on the consequences to the asylum seeker of settling in the place of relocation instead of his previous home (in context that means his home in his country of origin, rather than the place at which he has been living while his application was considered and decided). If it would be ‘unduly harsh’ for the individual applicant to be relocated in a different part of his own country of origin, it would then normally follow that refugee status should be granted.’

Judges:

Lord Justice Ward Lord Justice Simon Brown Lord Philips Of Worth Matravers MR

Citations:

[2003] EWCA Civ 1032, Times 25-Jul-2003, C1/2003/0047, [2003] INLR 475, [2004] QB 531

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Home Department Immigration Appeals Tribunal ex parte Robinson CA 11-Jul-1997
Where an asylum seeker was seeking to escape from persecution in one area of his home country, the court must ask if an escape to a safe area in his country of origin is available and appropriate. A failure of the country to which an asylum seeker . .

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

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.184612

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 them.

Judges:

Lord Philip

Citations:

[2003] ScotCS 100, 2003 SLT 808

Links:

Bailii, ScotC

Jurisdiction:

Scotland

Cited by:

Appeal from – Petition of Behrouz Tehrani for Judicial Review and Answers OHCS 27-Apr-2004
. .
At Outer House – 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 . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 07 June 2022; Ref: scu.183967

Petition of Gurung (Ramesh) for Judicial Review: SCS 27 Feb 2003

The applicant sought asylum having fled from Nepal. The Home Secretary had made an order for his removal. He said that he had been involved in the political opposition as a student and had accordingly suffered attacks by police.

Judges:

Lord Clarke

Citations:

[2003] ScotCS 49

Links:

Bailii

Jurisdiction:

Scotland

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.184000

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 were made for his removal to Germany, he married a woman whom he had known in Turkey and who had since acquired British citizenship. He now claimed the right to remain here with her under article 8. A child was born. His claim was certified by the Secretary of State pursuant to section 72(2)(a) to be ‘manifestly unfounded’ and the refusal of his application for judicial review of that was now appealed. He said it would be wrong to return him to Germany to apply for entry clearance there because he would in any event fail to qualify. He would be unable to show that he could live here ‘without recourse to public funds’. He had an appalling immigration history; on granting him leave to appeal Sedley LJ had observed that ‘few claimants come to court with a track record of such prolonged evasion and mendacity’.
Held: The court noted that there was scope for permission to enter outside the rules if article 8 required it and that the time taken to process entry clearance applications in Germany was something under a month. There was: ‘nothing even arguably disproportionate in requiring this appellant to return to Germany for the relatively short space of time that will elapse before he is then able to have his entry clearance application properly determined, if necessary outside the strict rules. That the Secretary of State is not contemplating or intending any longer-term, let alone permanent, separation of the appellant from his family seems to me abundantly plain.’
Simon Brown LJ said: ‘Even if strictly he fails to qualify so that the ECO would be prohibited from granting leave to enter, given the obvious article 8 dimension to the case the ECO would refer the application to an Immigration Officer who undoubtedly has a discretion to admit someone outside the Rules. And if entry were to be refused at that stage, then indeed a section 59 right of appeal would certainly arise in which, by virtue of section 65(3), (4) and (5) the adjudicator would have jurisdiction to consider the appellant’s human rights.’

Judges:

Lord Justice Kay, Mr Justice Bodey, Lord Justice Simon Brown

Citations:

[2003] EWCA Civ 765, [2004] Imm AR 15

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .

Cited 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 – LH (Truly Exceptional, Ekinci Applied) Jamaica IAT 24-Jan-2006
. .
Cited – Mukarkar v Secretary of State for the Home Department CA 25-Jul-2006
The applicant, a Yemeni citizen, obtained entry clearance as a visitor by deception and then unsuccessfully sought leave to remain as a dependent relative of his many children settled here. He had numerous ailments and his health was continuing to . .
Cited – SB (Bangladesh) v Secretary of State for the Home Department CA 31-Jan-2007
A Bangladeshi woman entered into an arranged polygamous marriage in Bangladesh and many years later dishonestly (led by her husband) obtained entry clearance as a visitor before then unsuccessfully seeking leave to remain as being financially . .
Cited – 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.

Human Rights, Immigration

Updated: 07 June 2022; Ref: scu.183640

Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar: CA 19 Jun 2003

In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, the following should be considered. First, the claimant’s case in relation to his private life in the deporting state should be examined. Where the essence of the claim is that expulsion will interfere with his private life by harming his mental health, this will include a consideration of what he says about his mental health in the deporting country, the treatment he receives and any relevant support that he says that he enjoys there. Secondly, the court must look at what he says is likely to happen to his mental health in the receiving country, what treatment he can expect to receive there, and what support he can expect to enjoy. The third step is to determine whether, on the claimant’s case, serious harm to his mental health will be caused or materially contributed to by the difference between the treatment and support that he is enjoying in the deporting country and that which will be available to him in the receiving country. If so, then the territoriality principle is not infringed, and the claim is capable of being engaged.

Judges:

Mr Justice Pumfrey Lord Justice Dyson Lord Justice Judge

Citations:

[2003] EWCA Civ 840, [2003] Imm AR 529

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 72(2)(a), European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .
Cited – D v The United Kingdom ECHR 2-May-1997
The applicant, an AIDS sufferer, resisted his removal to St Kitts where lack of medical treatment would hasten his death.
Held: The deportation of a convicted person suffering from Aids to a country with less care facilities was inhuman or . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
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 – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Appeal from – Razgar, Regina (on the Application of) v Secretary of State for the Home Department Admn 2002
The claimant challenged the respondent’s certificate that his appeal was manifestly unfounded.
Held: The certificate was wrongly given. . .
Appeal from – Regina (Nadarajah) v Secretary of State for the Home Department Admn 2-Dec-2002
The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, . .

Cited by:

Appeal from – 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 – Atkinson v Secretary of State for the Home Department CA 5-Jul-2004
The applicant sought judicial review of the respondent’s certification under s94 that his cliam for asylum was hopeless. He said that he had acted as an informer against criminal gangs in Jamaica, and that the state of Jamacia could not provide him . .
See Also – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
See Also – Nadarajah and Amirhanathan v Secretary of State for the Home Department CA 8-Dec-2003
The Secretary of State’s published policy was that, if legal proceedings were initiated, removal would not be treated as imminent even if it otherwise was. The Secretary of State also had an unpublished policy, namely that information that . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.183684

Edore v The Secretary of State for the Home Department: CA 23 May 2003

The applicant challenged the decision of the Immigration Appeal Tribunal which had reversed a decision of an adjudicator and restored the Secretary of state’s decision to deport her.
Held: The adjudicator’s decision was acknowledged to be proportionate, and struck a fair balance for the parties. As such it could not be overturned by the IAT. Where, as here, the facts were undisputed, the adjudicator’s decision on a human rights appeal under section 65 the question was only whether it was reasonable and just and proportionate. The balance struck by the Home Secretary was simply wrong.
‘in cases like the present where the essential facts are not in doubt or dispute, the adjudicator’s task on a human rights appeal under section 65 is to determine whether the decision under appeal (ex hypothesi a decision unfavourable to the appellant) was properly one within the decision-maker’s discretion, ie, was a decision which could reasonably be regarded as proportionate and as striking a fair balance between the competing interests in play. If it was, then the adjudicator cannot characterise it as a decision ‘not in accordance with the law’ and so, even if he personally would have preferred the balance to have been struck differently (ie, in the appellant’s favour), he cannot substitute his preference for the decision in fact taken.’

Judges:

Lord Justice Waller Lord Justice Kay Lord Justice Simon Brown

Citations:

[2003] EWCA Civ 716, Times 07-Jul-2003, Gazette 10-Jul-2003, [2003] 1 WLR 2979

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 65

Jurisdiction:

England and Wales

Cited by:

Criticised – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 07 June 2022; Ref: scu.183070

Britton v Secretary of State for the Home Department: CA 7 Feb 2003

The appellant had claimed asylum, saying she would be subject to violence if returned to Jamaica. The adjudicator had accepted her evidence, and that the government was unable to protect her, but rejected her application.
Held: The adjudicator must properly consider what protection would be available to the applicant. That was a pre-requisite to any finding as to her rights on convention or human rights grounds.

Judges:

Lords Justices Potter, Chadwick and Tuckey

Citations:

Gazette 03-Apr-2003, [2003] EWCA Civ 227

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 07 June 2022; Ref: scu.182768

Gurung v Secretary of State for the Home Department: CA 1 May 2003

The claimant sought asylum having been a member of the communist party in Nepal, and a leader of its communist section. The party had been involved in serious violence, but having been arrested he had not been ill-treated. He was now subject to an arrest warrant on suspicion of arson.
Held: The warrant was for a proper purpose of prosecution, not persecution. The earlier case of Indra Gurung had in no way set down any rule of law.

Judges:

Ward, Buxton, Rix LJJ

Citations:

[2003] EWCA Civ 654

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – IG (Indra Gurung) (Exclusion, Risk, Maoists) Nepal CG (Starred) IAT 14-Oct-2002
The Tribunal gave guidance to adjudicators on the proper approach to the Refugee Convention’s Exclusion Clauses at Art 1F. The claimant had been a film star but was said to have become involved in a Maoist movement said to be involved in terrorism. . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 07 June 2022; Ref: scu.182343

European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another: CA 20 May 2003

A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now subjected to a much more rigorous examination than others, and also that the arrangement put the respondent in breach of its international obligations by preventing the flight of refugees in danger.
Held: The right to claim asylum did not include a right of entry. The vast majority of asylum applicants from the Czech Republic are Roma. The policy was not to refuse Roma as Roma; but to refuse entry to those who could not satisfy the immigration officer to the requisite standard that they would not claim asylum on arrival. The policy was not discriminatory, and did not operate unlawfully. (Mantell dissenting)

Judges:

Simon Brown, Mantell, Laws LJJ

Citations:

[2004] QB 811, [2003] EWCA Civ 666, Times 22-May-2003, Gazette 17-Jul-2003, [2004] 2 WLR 147, [2003] IRLR 577, [2003] 15 BHRC 51, [2003] INLR 374, [2003] 4 All ER 247, [2003] ACD 64

Links:

Bailii

Statutes:

Geneva Convention (1951) and Protocol (1967) relating to the Status of Refugees

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Home Department ex parte Hoverspeed Admn 2-Feb-1999
Immigration control laws required pre-entry clearance of visitors. To do so it imposed carriers’ liability without which, the requirement for prior entry clearance would have little effect: ‘What, then, is it which is said to justify placing these . .
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 – T v Home Secretary HL 1996
Although it is easy to assume that the appellant invokes a ‘right of asylum’, no such right exists. Neither under international nor English municipal law does a fugitive have any direct right to insist on being received by a country of refuge. . .
Cited – Nguyen Tuan Cuong and others v The Director of Immigration and others (Hong Kong) PC 21-Nov-1996
(Dissenting judgment) A person who satisfies [the Convention] definition is said to have refugee status. The Convention imposes obligations towards persons having that status. For immigration, Article 31 forbids the imposition of penalties on . .
Cited – Regina v Secretary of State for Home Department ex parte Hoverspeed Admn 2-Feb-1999
Immigration control laws required pre-entry clearance of visitors. To do so it imposed carriers’ liability without which, the requirement for prior entry clearance would have little effect: ‘What, then, is it which is said to justify placing these . .
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 – Secretary of State for the Home Department v International Transport Roth Gmbh and others CA 22-Feb-2002
The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The . .
Cited – Chundawadra v Immigration Appeal Tribunal CA 1988
Ratification of the European Convention on Human Rights did not create a justiciable legitimate expectation that the Convention’s provisions would be complied with. Slade LJ said there was no evidence of ‘any relevant express promise or regular . .
Cited – Regina v Secretary of State for Home Department ex parte Behluli CA 7-May-1998
The appellant argued that he had a legitimate expectation, based on letters to his solicitor from the Secretary of State, that his application for asylum would be considered pursuant to the Dublin Convention, an unincorporated international treaty. . .
Cited – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
Cited – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
Cited – Hurley v Mustoe EAT 1981
The EAT was concerned with an employer’s refusal to employ women with small children because he regarded them as unreliable employees and needed to have reliable staff for his small business. ‘[W]e are not deciding whether or not women with children . .
Cited – Regina v Commission for Racial Equality (ex parte Westminster City Council) QBD 1984
The council had dismissed a black road sweeper to whose appointment the trade union objected on racial grounds.
Held: The council’s motive for doing so, to avert industrial action, could not avail them. Woolf J said: ‘In this case although the . .
Cited – West Midlands Passenger Transport Executive v Singh CA 1988
The court identified ‘a conscious or unconscious racial attitude which involves stereotyped assumptions’ underlying discrimination. Statistical evidence may be used to establish a discernible pattern in the treatment of a particular group such as to . .
Cited – Bain v Bowles CA 1991
The Lady magazine had no defence to a complaint by a man whose advertisement for a housekeeper in Tuscany they had refused to accept. Following past complaints of sexual harassment, the magazine’s policy was to accept such advertisements only where . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – 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 – 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 . .
Appeal from – European Roma Rights Centre and 6 others v Tthe Immigration Officer at Prague Airport, The Secretary of State for the Home Department Admn 8-Oct-2002
There is an ‘administrative, financial and indeed social burden borne as a result of failed asylum seekers’. . .

Cited by:

Appeal From – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Gillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 June 2022; Ref: scu.182341

Koca v Secretary of State for the Home Department: SCS 22 Nov 2002

Judicial Review of a Determination of an Immigration Appeal Adjudicator dated 7th February, 2002 refusing the petitioner’s claim for asylum

Judges:

Lord Carloway

Citations:

[2002] ScotCS 300

Links:

ScotC, Bailii

Jurisdiction:

Scotland

Cited by:

see also – Koca v Secretary of State for the Home Department SCS 27-May-2005
. .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 07 June 2022; Ref: scu.181579

Regina (Harrison) v Secretary of State for the Home Department: CA 13 Mar 2003

The claimant sought a review of the decision of the respondent not to respond to his request for a declaration as to his entitlement to citizenship.
Held: The question the claimant sought to be answered was one for the courts to answer, not the respondent. That is why the system gave no right of administrative review or appeal against the respondent’s refusal to acknowledge the claim for citizenship. Since the respondent had not determined any of the claimant’s rights, his human rights had not either been engaged.

Judges:

May, Arden Keene LJJ

Citations:

Times 15-Apr-2003, [2003] EWCA Civ 432

Links:

Bailii

Statutes:

British Citizenship Act 1981

Jurisdiction:

England and Wales

Administrative, Immigration

Updated: 07 June 2022; Ref: scu.180992

Gjini, Regina (on the Application of) v London Borough of Islington: CA 15 Apr 2003

The appellant challenged the respondent’s decision to reduce the amount paid to her by way of asylum support benefit by the amount of child benefit she received.
Held: The applicant had failed to make proper disclosure to the court of the facts underlying her case. Since the case had begun, the Coucil had reviewed its policies and uprated the benefits payable. The evidence placed before the court as to the various benefits rates and calculations was weak. It was not possible to say that the method of calculation used by the Council was irrational or inaccurate, and the appeal was dismissed.

Judges:

The Vice-Chancellor, Lord Justice Clarke and Lord Justice Kay

Citations:

[2003] EWCA Civ 558

Links:

Bailii

Statutes:

The Asylum Support (Interim Provisions) Regulations 1999 6

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Lloyd’s of London 1993
There is a duty to be performed by those who represent applicants for judicial review to make all appropriate enquiries and to disclose to the court all facts material to the application. . .
Lists of cited by and citing cases may be incomplete.

Benefits, Immigration, Judicial Review

Updated: 07 June 2022; Ref: scu.180738

Regina (on the Application of Q and others) v Secretary of State for the Home Department: CA 18 Mar 2003

The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits to any asylum applicant who did not claim asylum immediately upon entry, was unfair. There were several possible reasons which might lead to a claim not being made as soon as reasonably practical. These reasons would be disregarded under the appellant’s system. The burden of establishing the promptness of the application lay on the asylum seeker. A decision not to provide support could not become unlawful until it became clear that charitable aid would not be forthcoming, and the applicant would be unable to fend for himself. The threshold for establishing inhuman or degrading treatment by the failure to provide support was a high one. The system failed in not explaining properly to the applicant the nature and purpose of the interview. The case workers were not properly directed as to the tests to apply. Regard had to be given to the applicant’s state of mind, and the reasons for not applying immediately should be investigated. The interviewer and decision maker needed to be the same person. The applicants had been treated unfairly, and the Secretary of State’s appeal was dismissed.
Lord Phillips of Worth Matravers MR said: ‘The common law of judicial review in England and Wales has not stood still in recent years. Starting from the received checklist of justiciable errors set out by Lord Diplock in the CCSU case [1985] AC 374, the courts (as Lord Diplock himself anticipated they would) have developed an issue-sensitive scale of intervention to enable them to perform their constitutional function in an increasingly complex polity. They continue to abstain from merits review – in effect, retaking the decision on the facts – but in appropriate classes of case they will today look very closely at the process by which facts have been ascertained and at the logic of the inferences drawn from them.’

Judges:

Lord Justice Sedley Lord Justice Clarke Lord Phillips Mr

Citations:

Times 19-Mar-2003, [2003] EWCA Civ 364, Gazette 29-May-2003, [2003] 2 All ER 905, [2003] HRLR 21, [2004] QB 36, [2003] UKHRR 607, [2003] 3 WLR 365, (2003) 6 CCL Rep 136, (2003) 6 CCL Rep 136, [2003] ACD 46

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 55, European Convention on Human Rights 3 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (Q) v Secretary of State for the Home Department; Regina (D) v Same; Regina (J) v Same etc Admn 19-Feb-2003
The several applicants challenged the implementation of the section, which required an asylum seeker to make his application at the very first opportunity on arriving in the UK, and denied all benefit and support to those who did not do so. A form . .
Cited – Rex v Inhabitants of Eastbourne 1803
As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .

Cited by:

Appealed to – Regina (Q) v Secretary of State for the Home Department; Regina (D) v Same; Regina (J) v Same etc Admn 19-Feb-2003
The several applicants challenged the implementation of the section, which required an asylum seeker to make his application at the very first opportunity on arriving in the UK, and denied all benefit and support to those who did not do so. A form . .
Cited – K v London Borough of Lambeth CA 31-Jul-2003
The claimant appealed against refusal of judicial review. She had entered the UK, and applied for asylum. She was then found to have contracted a marriage of convenience, and thus become ineligible for support. She appealed and now sought housing . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Regina (Limbuela) v Secretary of State for the Home Department QBD 4-Feb-2004
The claimant had sought asylum on the day after arrival, and had therefore been refused any assistance beyond the provision of a list of charities who might assist. His lawyers were unable to secure either shelter or maintenance, and he had been . .
Cited – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Benefits

Updated: 07 June 2022; Ref: scu.179864

Regina v Immigration Appeal Tribunal, ex parte Alexander: HL 5 Jul 1982

The appellant had sought to enter the UK. She first showed an entry clearence certificate which had been obtained by deception. She then sought entry as a student. The officer refused, saying that he had no discretion in the matter. The plaintiff said that he did have a discretion, and that therefore the refusl was unlawful.
Held: The words were to be construed as a whole and not strictly. The officer did have a discretion.

Judges:

Lord Diplock, rd Keith of Kinkel, Lord Roskill, Lord Brandon of Oakbrook, Lord Brightman

Citations:

[1982] 1 WLR 1076, [1982] UKHL 11, [1982] 2 All ER 766, [1982] Imm AR 50

Links:

Bailii

Statutes:

Immigration Act 1971

Cited by:

Cited – Kan Zhou v Secretary of State for the Home Department CA 31-Jan-2003
The applicant had been granted leave to enter the UK as a student. He challenged by way of review a decision to curtail that leave. He had taken part time work.
Held: The decision to revoke the leave was unlawful. The statement said that he . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 07 June 2022; Ref: scu.179809

Al-Ameri, Osmani v Royal Borough of Kensington and Chelsea/London Borough of Harrow: CA 28 Feb 2003

The applicants sought to assert a local connection, having been housed in the respondent’s areas as destitute asylum seekers.
Held: The accomodation was not one of the applicant’s choice, and therefore could not be relied upon to establish a local connection under the Act. The respondent’s decision to refer the applicants back to authorities in which they had had such accomodation was flawed because of the absence of that connection. The provision of interim accomodation by a local authority, which could establish such a connection, was not on a par because of the absence of choice. (Buxton LJ dissenting)

Judges:

Lord Justice Buxton Lord Justice Simon Brown Lord Justice Carnwath

Citations:

[2003] EWCA Civ 235, Times 19-Mar-2003, [2003] 1 WLR 1289

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 97(2)(a), Housing Act 1996

Jurisdiction:

England and Wales

Citing:

Cited – Ealing London Borough Council v Surdonja etc CA 21-Jan-2000
When a local authority came to make the decision about the extent of the local connection of the homelessness applicant with the area, the assessment was to be made as regards the situation at the date of that decision. Where there was a review, the . .

Cited by:

Appeal from – Al-Ameri v Royal Borough of Kensington and Chelsea; Osmani v London Borough of Harrow (Conjoined Appeals) HL 5-Feb-2004
The applicants had been asylum seekers, and obliged to live in Glasgow. Upon losing their asylum claim, but being given exceptional leave to remain, they sought to be rehoused by the appellants. The appellants had said that the applicants having . .
Lists of cited by and citing cases may be incomplete.

Housing, Immigration

Updated: 07 June 2022; Ref: scu.179557

Regina (ZL and VL) v Secretary of State for the Home Department and Lord Chancellor’s Department: CA 24 Jan 2003

The applicants’ claims for asylum had been rejected as bound to fail, and under the new Act, they were to be removed from the UK. If they wanted to appeal, they they would have to do so from outside the jurisdiction. The section had been brought into effect before the Act had been formally published.
Held: An Act took effect on Royal assent irrespective of publication, but that rule was not echoed in Human Rights law. Could the respondent give effect to the section before publication? Here the applicant retained a right to apply for judicial review to argue that the absence of publication had caused prejudice. The courts were themselves well placed to judge the issues. The courts should look carefully at the individual circumstances of the case, as well as the fact that certain countries were listed as safe. The fast track procedure was capable of protecting the rights of applicants.
‘If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded’- The test of whether a claim is ‘clearly unfounded’ is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof.

Judges:

Lord Justice Waller, Lord Justice Sedley, Lord Phillips MR

Citations:

[2003] 1 WLR 1230, Times 30-Jan-2003, [2003] EWCA Civ 25, Gazette 20-Mar-2003, [2003] 1 All ER 1062, [2003] Imm AR 330, [2003] INLR 224

Links:

Bailii

Statutes:

Nationality and Asylum Act 2002 115, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .

Cited by:

Cited – Bagdanavicius, Bagdanaviciene v the Secretary of State for Home Department Admn 16-Apr-2003
The applicants sought asylum, saying they had been subjected to repeated ill-treatment by Lithuanian Mafiosi. The claims were rejected as clearly unfounded, denying any right to an appeal.
Held: The court could examine the basis upon which the . .
Cited – The Refugee Legal Centre, Regina (on the Application of) v Secretary of State for the Home Department CA 12-Nov-2004
The applicant alleged that the fast track system of selecting and dealing with unmeritorious asylum claims was unfair and unlawful.
Held: The system was not inherently unfair and therefore unlawful and clear written instructions would suffice . .
Cited – Yogachandran, Regina (on the Application Of) v Secretary of State for the Home Department Admn 7-Feb-2006
The applicant appealed rejection of his claim for asylum.
Held: ‘the claimant has wholly failed to demonstrate, even to the very low level of possibility which suffices to quash a certificate, that there is any risk to him if he is returned to . .
Cited – ZT (Kosovo) v Secretary of State for the Home Department HL 4-Feb-2009
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
Cited – EM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 19-Feb-2014
SSHD must examine safety of country for return
The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional, Human Rights

Updated: 07 June 2022; Ref: scu.178797

Hoxha and Another v Secretary of State for the Home Department: CA 14 Oct 2002

The applicant sought asylum. He had suffered persecution, and continued to suffer the effects of that persecution on his health. He appealed a refusal which was on the basis that the conditions which led to the persecution would not now apply.
Held: The applicants had had well founded fears of persecution when they left Albania, but that situation was no longer the case. The Convention provided that the status of refugee was lost when the circumstances which justified the status ceased to apply. The appeal was refused.

Judges:

Phillips MR, Chadwick, Keene LLJ

Citations:

Times 31-Oct-2002, Gazette 14-Nov-2002, [2002] EWCA Civ 1403

Links:

Bailii

Statutes:

Convention Relating to the stautus of Refugees 1951 (Cmd 9171) 1A(2)

Jurisdiction:

England and Wales

Immigration

Updated: 06 June 2022; Ref: scu.177727

Baumbast and Another v Secretary of State for the Home Department: ECJ 17 Sep 2002

The first applicant, his wife and her children had been granted leave to stay in the UK. At the time the leave was withdrawn the children were settled in schools, and were granted indefinite leave. The second applicant was the mother of children who also acquired leave. They each appealed refusal of leave to stay.
Held: The children had acquired the rights as the children of migrant workers within the EEC under the Regulation. That regulation was to be interpreted so as to provide also for the right of residence of the child’s primary carer.
‘A citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community Law and, in particular, the principle of proportionality.’
‘A citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community Law and, in particular, the principle of proportionality.’

Judges:

Rodriguez Iglesia, Jann, Macken, Colneric, von Bahr, Gulmann, Edward, La Pergola, Puissochet, Wathelet, Skouris

Citations:

Times 08-Oct-2002, [2002] EUECJ C-413/99, [2002] ECR 1-7091

Links:

Bailii

Statutes:

Regulation (EEC) No 1612/68 12

Jurisdiction:

European

Cited by:

Cited – Ali v Secretary of State for the Home Department CA 3-May-2006
The applicants sought asylum. Their child had a right of residence as a European citizen.
Held: The applicants could not rely upon their child’s right of residence to establish one for themselves. . .
Cited – Kaczmarek v Secretary of State for Work and Pensions CA 27-Nov-2008
The claimant entered the UK as a student coming from Poland. She then worked as a kitchen maid, but having left that job on becoming a mother was refused income support. She later returned to work. She said that the rules which denied her benefit . .
Cited – MDB and Others (Article 12, 1612/68) Italy UTIAC 2-Jun-2010
TIAC (i) In London Borough of Harrow v Ibrahim Case C-310/08 and Maria Teixeira v London Borough of Lambeth Case C-480/08 the European Court of Justice ECJ confirmed the principle established in the Baumbast Case . .
Cited – Mirga v Secretary of State for Work and Pensions, Samin v Westminster City Council SC 27-Jan-2016
The claimants, a Polish national and an Austrian national, appealed against decisions of the Court of Appeal upholding decisions that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to . .
Lists of cited by and citing cases may be incomplete.

Immigration, Children

Updated: 06 June 2022; Ref: scu.177329

In re S (Children) (Child abduction: Asylum appeal): CA 28 May 2002

The appellant was the mother of a child, who was claiming asylum. The father sought the return of the child to India, claiming he had been abducted by the mother. She said that whilst her claim for asylum was extant, the court must not allow her or the child to be removed.
Held: India was not a signatory to the convention, and therefore the matter had to be dealt with under the court’s wardship jurisdiction. The mother and children had now been granted exceptional leave to stay in the UK. The words ‘remove’ or ‘required to leave’ in the 1999 Act, were to be read as technical immigration law terms, with no wider implications. The proper forum for the father’s claim was India, and the child must be returned.

Judges:

Lord Justice Thorpe, Lord Justice Laws and Lord Justice Rix

Citations:

Times 03-Jun-2002, Gazette 04-Jul-2002

Statutes:

Child Abduction and Custody Act 1985, Immigration and Asylum Act 1999 15

Jurisdiction:

England and Wales

Citing:

Appeal from – In re S (Children) (Child abduction: Asylum appeal) FD 24-Apr-2002
The mother had applied here for asylum. Her application had been refused but was subject to appeal. The father in India sought the return of the children on the basis that they had been removed from a Convention country which was their habitual . .

Cited by:

Appealed to – In re S (Children) (Child abduction: Asylum appeal) FD 24-Apr-2002
The mother had applied here for asylum. Her application had been refused but was subject to appeal. The father in India sought the return of the children on the basis that they had been removed from a Convention country which was their habitual . .
Lists of cited by and citing cases may be incomplete.

Immigration, Children

Updated: 06 June 2022; Ref: scu.172179

Regina (Shah) v Immigration Appeal Tribunal. Secretary of State for the Home Department, interested party: CA 22 Nov 2004

The applicant had fled Pakistan to claim asylum. His application for judicial review of the decision to reject his request for asylum failed. It had been decided in Scotland. He appealed.
Held: It was not open to the Secretary of State to raise on appeal a question as to jurisdiction which had not been raised at first instance. The procudure for disputing jurisdiction was covered by the CPR. A challenge had to be filed within 14 days of acknowledgment of service. Even so, the claimant’s renewed application for judicial review was dismissed.

Judges:

Ward, Sedley, Carnwath LJJ

Citations:

Times 09-Dec-2004

Statutes:

Civil Procedure Rules Part II

Jurisdiction:

England and Wales

Citing:

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

Immigration, Civil Procedure Rules

Updated: 06 June 2022; Ref: scu.221439

Regina (on the Application of Kanagasingham Kariharan and Kanagara) v Secretary of State for the Home Office: CA 30 Jul 2002

The applicants were subject to removal directions following the failures of their applications for asylum had failed. The decisions were made before the Human Rights Act came into effect, but the direction orders were made afterwards. They sought to challenge the directions on Human Rights grounds.
Held: They had a right of appeal since the removal directions were decisions under the Immigration Acts being decisions affecting the applicants right to enter into or remain in the UK. The decisions exercised a discretion, and were freestanding and themselves subject to the Human Rights Act.

Judges:

Lord Justice Auld, Lord Justice Sedley, Lord Justice Arden

Citations:

Times 13-Aug-2002, Gazette 03-Oct-2002, [2002] EWCA Civ 1102, [2003] QB 933

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999 65, Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

See also – Kariharan and Another, Regina (on the Application Of) v Secretary of State for Home Department CA 15-Apr-2002
There is a right of appeal against removal directions under section 65 of the 1999 Act on the ground that removal would be in breach of a person’s human rights. Auld LJ was not impressed by an argument that a restrictive interpretation was necessary . .

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

Immigration, Human Rights

Updated: 06 June 2022; Ref: scu.174435

Carpenter v Secretary of State for the Home Department: ECJ 11 Jul 2002

The applicant had come to England on a six month visitor’s visa. She then married an English national, but her visa was not extended.
Held: The husband had business interests and activities throughout the community. The deportation of the applicant would have the effect of removing her support for him and restrict his ability to trade within the EU. The right to trade could be relied upon by an individual as against the state where necessary. A member state could only derogate from the duty where the proposed action complied also with the convention. Here the proposed action would also infringe the right to family life. The deportation would be against EU law. ‘Finally, the question of the risk of abuse should be considered, in particular the possible risk that the national rules of residence concerning the legal position of spouses of nationals who are nationals of non-member countries could be evaded by the spouse who is a national being tempted to ‘create’ a Community connection. Thus it may be argued that the nationals of a member state might, for example, take up employment – even only for a short term – in another member state precisely in order thereby to ‘bring’ themselves and the non-member country spouse within the scope of Community law. It might further be argued that the spouses who are nationals of non-member countries would thus be removed from the exclusive application of national law and would retain a legal position which might be more favourable than under national law, by thereby being given the possibility of residence based on Community law.’

Judges:

GC Rodriguez Iglesias, President and Judges N. Colneric, S. von Bahr, C. Gulmann, D. A. O. Edward, J.-P. Puissochet, M. Wathelet, R. Schintgen and J. N. Cunha Rodrigues

Citations:

[2003] 2 WLR 267, [2002] EUECJ C-60/00, C-60/00, [2003] QB 416

Links:

Bailii

Statutes:

EC Treaty Art 49, European Convention on Human Rights 6.1

Jurisdiction:

European

Cited by:

Cited – Machado v Secretary of State for the Home Deptment CA 19-May-2005
At issue was a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue was whether the decision of the IAT to uphold . .
Cited – W (China) and X (China) v Secretary of State for the Home Department CA 9-Nov-2006
The claimants had entered England unlawfully, fleeing from China, then moved to Ireland and then back to England with their new born child, and claimed asylum. The court considered how the position of their child affected the parents.
Held: To . .
Cited – Low and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 21-Jan-2009
In each case the applicant, a company based in Ireland had employed in its restaurants, Chinese nationals who were unlawfully present here. The company sought judicial review of the arrest of its employees.
Held: ‘None of the claimants had any . .
Lists of cited by and citing cases may be incomplete.

European, Immigration, Human Rights

Updated: 06 June 2022; Ref: scu.174363

Farrakhan, Regina (on the Application of) v Secretary of State for the Home Department: CA 30 Apr 2002

The applicant sought admission to the UK. In the past he had made utterances which were capable of being racist. He claimed to have recanted, and had given undertakings as to his behaviour. At first instance it was held that the Home Secretary had failed to demonstrate an objective reason for refusing admission. It was a ‘reasons challenge’.
Held: The rules of Judicial review did not require the court to hold that if no reasons for a decision were given there were no reasons in fact. The Home Secretary was satisfied that Mr Farrakhan had expressed anti-Semitic and racially divisive views, and that his admission would risk public disorder. Freedom of expression is important, but article 16 created specific exceptions for aliens, and article 10 was only engaged for people already in the country, and did not affect immigration control, unless the refusal was specifically to used to control the expression of views. The Home Secretary had disclosed sufficient reasons to justify the exclusion, and the exclusion was proportionate.

Judges:

Phillips MR, Potter, Arden LJJ

Citations:

Gazette 30-May-2002, [2002] EWCA Civ 606, [2002] 3 WLR 481, [2002] QB 1391

Links:

Bailii

Statutes:

Immigration Act 1971 1, Immigration and Asylum Act 1999 59 60(9), European Convention on Human Rights 10 16

Jurisdiction:

England and Wales

Citing:

Cited – Poku v United Kingdom ECHR 1996
. .
Cited – Agee v United Kingdom ECHR 1976
(Commission) The Convention does not create any civil right to nationality or to a right of residence. The Secretary of State had made a deportation order against the applicant, who was a United States citizen, on grounds which included that he had . .
Cited – Piermont v France ECHR 27-Apr-1995
Hudoc Judgment (Merits and just satisfaction) No violation of P4-2; Violation of Art. 10; Not necessary to examine Art. 14+10; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – . .
Appeal from – Farrakhan v Secretary of State for the Home Department QBD 1-Oct-2001
The applicant challenged the Home Secretary’s decision to exclude him from the UK, on the grounds that his presence would exacerbate tensions between the Jewish and Muslim communities. A balance is to be found between freedom of speech and the need . .

Cited by:

Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Lists of cited by and citing cases may be incomplete.

Immigration, Judicial Review, Human Rights

Updated: 06 June 2022; Ref: scu.171234

Anufrijeva v Secretary of State for the Home Department: CA 22 Mar 2002

Three asylum-seekers brought claims of breach of their Article 8 rights. One complained of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum applications.
Held: All three claims failed. The essential object of article 8 is to protect individuals against arbitrary interference by public authorities, but it may also give rise to positive obligations.
Lord Woolf CJ said: ‘The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages. Where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance.’ and ‘We find it hard to conceive . . of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision of welfare support in a manner which enables family life to continue.’

Judges:

Lord Woolf CJ, Lord Phillips of Worth Matravers MR and Auld LJ

Citations:

[2002] EWCA Civ 399, [2004] QB 1124

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina (on the Application of Anufrijeva) v Secretary of State for the Home Department and Another Admn 25-Oct-2001
. .

Cited by:

Appeal from – Regina v Secretary of State for the Home Department ex parte Anufrijeva HL 26-Jun-2003
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Andrews v Reading Borough Council QBD 29-Apr-2004
The claimant sought damages for increased road noise resulting from traffic control measures taken by the respondent.
Held: The defendants action to strike out the claim could not succeed. They had not shown that the claim was unarguable, . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Dobson and others v Thames Water Utilities Ltd and Another CA 29-Jan-2009
The claimants complained of odours and mosquitoes affecting their properties from the activities of the defendants in the conduct of their adjoining Sewage Treatment plant. The issue was as to the rights of non title holders to damages in nuisance . .
Cited – McDonald, Regina (on The Application of) v Royal Borough of Kensington and Chelsea SC 6-Jul-2011
The claimant, a former prima ballerina, had suffered injury as she grew old. She came to suffer a condition requiring her to urinate at several points during each night. The respondent had been providing a carer to stay with her each night to . .
Lists of cited by and citing cases may be incomplete.

Immigration, Benefits, Human Rights

Updated: 06 June 2022; Ref: scu.170088

Petition of Daljit Singh v The Right Honourable Jack Straw, MP for Judicial Review: SCS 7 Jan 2000

The point made by Collins J in Chugtai may be particularly relevant where ‘a question of credibility arises which has to be resolved by an adjudicator”.

Judges:

Lord Weir

Citations:

[2000] ScotCS 3

Links:

Bailii, ScotC

Jurisdiction:

Scotland

Citing:

Cited – Regina v Home Secretary, ex parte Chugtai 1995
The court considered the natural and ordinary meaning of the phrase ‘ordinarily resident’.
Held: It was a question of fact for each case. Collins J noted the example given in argument of a person who had a contract for a definite period of . .
Cited – Daljit Singh v The Secretary of State for the Home Department SCS 20-Nov-1998
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Immigration

Updated: 05 June 2022; Ref: scu.169445

Spinnato, Re v Governor of HM Prison Brixton and Another: Admn 20 Dec 2001

The prisoner had been convicted in his absence in 1991 of offences in Italy. He was resident in England at the time, and many years later extradition was sought. He had not hidden his whereabouts, and the Italian State seemed not to have pursued him. He now said it would not be in the interests of justice for him to be called upon to serve the sentence, and that the trial in his absence infringed his human rights.
Held: A trial in a defendants absence is not automatically unfair, particularly if he had opportunity to be heard. In this case he had been actively represented in his absence, and in England his trial would not be set aside. Would it be unjust or oppressive to order his return? Although the delay had been substantial, and he had acquired new obligations here, it was not wrong to order his return to serve the sentence.

Judges:

Lord Justice Kennedy And Mrs Justice Hallett

Citations:

[2001] EWHC Admin 1124

Links:

Bailii

Statutes:

European Convention on Human Rights, Extradition Act 1989 6(2) 11(3)(b)

Citing:

Cited – Colloza and Rubinat v Italy ECHR 1985
. .
Cited – Regina v John Victor Hayward, Anthony William Jones, Paul Nigel Purvis CACD 31-Jan-2001
A defendant can forego his right to attend his trial, but he still had the general right to be present, and to have legal representation at the trial. The court’s discretion to proceed in his absence should only be exercised with great care. A trial . .

Cited by:

Cited – Mariotti v Government of Italy and others Admn 2-Dec-2005
The extraditee had been convicted in his absence in Italy having fled to avoid the trial. He complained that the trial process had been unfair and the evidence against him weak.
Held: The court’s duty was not to investigate the evidential . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 05 June 2022; Ref: scu.168014

Regina (on the Application of Harris) v Secretary of State for the Home Department: CA 14 Feb 2002

The respondent had acquired the right to live in the UK. After visiting Jamaica, he was refused entry. He appealed and was admitted. The Secretary of State sought an extension of time to file a request for leave to appeal with the Court of Appeal.
Held: The time for such an appeal was 14 days. Justice required a party to know that a judgment could be relied upon after a certain time. No good reason had been given for the delay, and leave was refused.

Judges:

May LJ, Sir Anthony Evans, Sir Denis Henry

Citations:

Gazette 21-Mar-2002, [2002] EWCA Civ 100

Links:

Bailii

Statutes:

Civil Procedure Rules 45.2

Jurisdiction:

England and Wales

Civil Procedure Rules, Immigration

Updated: 05 June 2022; Ref: scu.167930

Regina (Boafo) v Secretary of State for the Home Department: CA 4 Feb 2002

The applicant had married an English national. The marriage ended in divorce. She applied for indefinite leave to stay. Incorrect information from a Government department led to her application being dismissed. The adjudicator granted her application, but the Secretary of State, without appealing the adjudicator’s order, reconsidered and refused the application.
Held: The finding of the adjudicator was binding upon the Secretary unless he appealed it.

Judges:

Auld LJ

Citations:

Gazette 21-Mar-2002, [2002] EWCA Civ 44

Links:

Bailii

Statutes:

Immigration Act 1971 20

Jurisdiction:

England and Wales

Immigration

Updated: 05 June 2022; Ref: scu.167916

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 might be subject to ill treatment from individual officers their treatment would be no more harsh than any other prisoner. The allegation was of abuse by a state agent in the form of systematic and tolerated misbehaviour by officers, and that an effective failure to control such behaviour can amount to persecution. One applicant, having been detained for weeks without judicial protection, had had his human rights infringed.
Held: The proper question was whether as a member of the Communist Party in custody, he faced particular treatment which amounted to persecution for a Convention reason, and was treatment by state agents which the state could not control. The IAT had asked the wrong question, and the cases would be remitted for rehearing.

Judges:

Lord Justice Simon Brown, Lord Justice Sedley, And, Sir Murray Stuart-Smith

Citations:

Times 26-Feb-2002, Gazette 15-Mar-2002, [2002] EWCA Civ 74, [2002] 1 WLR 1891

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Horvath v Secretary of State for the Home Department HL 7-Jul-2000
When considering the fear of prosecution in an applicant for asylum, the degree of persecution expected from individuals outside the government was to be assessed in the context also of the attitude of the government of the country to such . .

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

Immigration

Updated: 05 June 2022; Ref: scu.167536

Regina v Secretary of State for the Home Department, ex parte Zeqiri: HL 24 Jan 2002

The applicant sought to resist an order for his return to Germany, the first country of call after escaping Kosovo. He asserted that Germany was not complying with its international obligations. He said the Gashi case had created a legitimate expectation that he would not be so returned, and that therefore his application for asylum should be considered.
Held: The review was refused. In the normal way a decision maker reconsidering a decision will do so in the light of material circumstances then prevailing. The decision in Gashi was not clear cut. The denial of a legitimate expectation is a form of abuse of power. It is broader than what would be an estoppel at private law, and required that a public authority acting contrary to the representation would be acting ‘with conspicuous unfairness’. There were no reasonable grounds for believing the Secretary had made any representation that he felt that Gashi had the effect claimed.

Judges:

Lord Slynn of Hadley Lord Mackay of Clashfern Lord Hoffmann Lord Millett Lord Rodger of Earlsferry

Citations:

Times 15-Feb-2002, [2002] UKHL 3, [2002] Imm AR 296, [2002] ACD 60, [2002] INLR 291

Links:

House of Lords, Bailii

Statutes:

1990 Dublin Convention, Asylum and Immigration Act 1996 2(2), Asylum and Immigration Appeals Act 1993 6

Jurisdiction:

England and Wales

Cited by:

Cited – Rashid, Regina (on the Application Of) v Secretary of State for Home Department Admn 22-Oct-2004
The claimant sought asylum, being an Iraqi Kurd. He was not told by the defendant of its policy not to require internal relocation within the Kurdish autonomous zone. The policy had been applied for the benefit of others, as was revealed only in . .
Cited – Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change and Another CA 3-Jun-2011
The company had developed a means of generating electricity from their excess sugar supplies, and challenged the support given to it by the respondent and in particular that the 2009 Order allowed the respondent to favour some types of energy . .
Lists of cited by and citing cases may be incomplete.

Immigration, Judicial Review, Administrative

Updated: 05 June 2022; Ref: scu.167439

Land Baden-Wurttemberg v Tsakouridis: ECJ 23 Nov 2010

(Grand Chamber) Freedom of movement for persons – Directive 2004/38/EC – Articles 16(4) and 28(3)(a) – Union citizen born and having resided for over 30 years in the host Member State – Absences from the host Member State – Criminal convictions – Expulsion decision – Imperative grounds of public security

Judges:

V. Skouris, P

Citations:

[2010] EUECJ C-145/09 – O, [2011] CEC 714, [2011] 2 CMLR 11, [2011] Imm AR 276, [2013] All ER (EC) 183, [2010] ECR I-11979, ECLI:EU:C:2010:708

Links:

Bailii

Statutes:

Directive 2004/38/EC Freedom of movement for persons

Jurisdiction:

European

Citing:

Opinion – Land Baden-Wurttemberg v Tsakouridis ECJ 8-Jun-2010
ECJ (European Citizenship) Directive 2004/38/EC Freedom of movement for persons – Union citizen – Criminal convictions – Expulsion decision – Imperative grounds of public security. . .

Cited by:

Cited – Secretary of State for The Home Department v Vomero (Italy) SC 27-Jul-2016
The respondent an Italian national had come to the UK, and married an English wife and making a family here. After the marriage broke down he committed a manslaughter, and on his release it was decided that he should be deported. He successfully . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 June 2022; Ref: scu.628552

Onuekwere v Secretary of State For The Home Department: ECJ 3 Oct 2013

ECJ Opinion – Right of Union citizens to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 16 – Continuity of residence required in order to acquire the right of permanent residence – Taking into account periods of imprisonment in the host Member State

Judges:

Bot AG

Citations:

C-378/12, [2013] EUECJ C-378/12

Links:

Bailii

Statutes:

Directive 2004/38/EC 16

Jurisdiction:

European

Citing:

Reference – Onuekwere (Imprisonment – Residence) Nigeria UTIAC 3-Aug-2012
Order for reference to European Court of Justice . .

Cited by:

Opinion – Onuekwere v Secretary of State For The Home Department ECJ 16-Jan-2014
ECJ Request for a preliminary ruling – Directive 2004/38/EC – Article 16(2) and (3) – Right of permanent residence of third-country nationals who are family members of a Union citizen – Taking into consideration . .
Lists of cited by and citing cases may be incomplete.

European, Immigration

Updated: 05 June 2022; Ref: scu.516349

Land Baden-Wurttemberg v Tsakouridis: ECJ 8 Jun 2010

ECJ (European Citizenship) Directive 2004/38/EC Freedom of movement for persons – Union citizen – Criminal convictions – Expulsion decision – Imperative grounds of public security.

Citations:

C-145/09, [2010] EUECJ C-145/09

Links:

Bailii

Statutes:

Directive 2004/38/EC Freedom of movement for persons

Jurisdiction:

European

Cited by:

Opinion – Land Baden-Wurttemberg v Tsakouridis ECJ 23-Nov-2010
(Grand Chamber) Freedom of movement for persons – Directive 2004/38/EC – Articles 16(4) and 28(3)(a) – Union citizen born and having resided for over 30 years in the host Member State – Absences from the host Member State – Criminal convictions – . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 June 2022; Ref: scu.416581

Maqsood v The Special Adjudicator, The Secretary of State for the Home Department: Admn 3 Dec 2001

The applicant sought judicial review of the decision to proceed with his appeal in his absence. He, his advisers and his witness had gone to the wrong court. The court had changed the venue from previous hearings, but the notice of hearing had not been received. The decision was promulgated before the circumstances had been made clear.
Held: The officer was functus officio, and had been unable to re-open his decision. An immigrant deprived of the opportunity to present his case as a result of the negligence of his solicitors had no ground for complaint in law.

Judges:

Justice Stanley Burnton

Citations:

[2001] EWHC Admin 1003

Links:

Bailii

Statutes:

Immigration and Asylum Appeals (Procedure) Rules 2000

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

Immigration

Updated: 05 June 2022; Ref: scu.167280