Category: Immigration

G, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 5 Nov 2015

The Claimant sought: (1) a Declaration as to his date of birth, namely that he was born on 10 October 1997; (2) a Declaration that he was unlawfully detained between 21 May and 1 June 2012, alternatively between 28 May and 1 June 2012 and, (3) damages for unlawful imprisonment, alternatively just satisfaction for breach of Article 5 ECHR

Judges:

Michael Kent QC HHJ

Citations:

[2015] EWHC 3185 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Torts – Other

Updated: 20 May 2022; Ref: scu.554287

T v Secretary of State for the Home Department: CA 9 Nov 1994

Random violence without a causal connection with any political purpose was not a political crime.

Judges:

Lord Lloyd of Berwick

Citations:

Independent 04-Nov-1994, Times 09-Nov-1994

Statutes:

Geneva Convention 1951 33(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – T v Secretary of State for the Home Department HL 22-May-1996
The applicant for asylum had been involved in an airport bomb attack killing 10 people. Asylum had been refused on the basis that this was a non-political crime. Though the organisation had political objectives, those were only indirectly associated . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 20 May 2022; Ref: scu.89679

T v Secretary of State for the Home Department: HL 22 May 1996

The applicant for asylum had been involved in an airport bomb attack killing 10 people. Asylum had been refused on the basis that this was a non-political crime. Though the organisation had political objectives, those were only indirectly associated with the bomb attach which was disproportionate to those aims.
Held: The involvement by the applicant in a bomb attack disqualified him from applying for asylum. The use of terrorism denied the possibility of protection for political views. For a crime to be political in nature, there had to be shown a direct relationship between the crime and the political aim. Not all terrorist acts fall outside the protection of the Convention, and not all means of investigating suspected terrorist acts fall outside the protection of the Convention.
Lord Mustill said: ‘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. Subject only to qualifications created by statute this country is entirely free to decide, as a matter of executive discretion, what foreigners it allows to remain within its boundaries.’
Lord Lloyd of Berwick said that in a case concerning an international convention it was obviously desirable that decisions in different jurisdictions should, so far as possible, be kept in line with each other.

Judges:

Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

Times 23-May-1996, [1996] AC 742, [1996] Imm AR 443, [1996] 2 WLR 766, [1996] 2 All ER 865, [1996] UKHL 8

Links:

Bailii

Statutes:

Geneva Convention 1951 33

Jurisdiction:

England and Wales

Citing:

Appeal from – T v Secretary of State for the Home Department CA 9-Nov-1994
Random violence without a causal connection with any political purpose was not a political crime. . .
Considered – Regina v Governor of Pentonville Prison ex parte Cheng HL 16-Apr-1973
Lord Diplock traced the history of the political offence exception to offences requiring extradition, and emphasised the need for a connection between the impugned conduct and changes to government or government policy: ‘My Lords, the noun that is . .

Cited by:

Cited – Regina v Secretary of State for the Home Department, ex parte Sivakumar HL 20-Mar-2003
The appellant sought asylum. He had fled Sri Lanka. He was a Tamil and feared torture if he returned. His application had been rejected because the consequences flowed from his suspected involvement in terrorism, and that was not a Convention . .
Cited – 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 – Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .
Cited – ST Eritrea, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Mar-2012
The Tribunal had confirmed the appellant’s refugee status, but the respondent had ordered nevertheless that she be returned. The judge’s order setting aside that decision had been overturned in the Court of Appeal.
Held: The claimant’s appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 20 May 2022; Ref: scu.89678

Regina v Immigration Appeal Tribunal, ex Parte Jeyeanthan: Admn 3 Apr 1998

An appeal by the Home Secretary against a ruling that he had to use the same prescribed form as would be used by the asylum seeker. The use of a letter which omitted a substantial and important declaration was invalid. Lord Woolf MR made plain the court’s general reluctance to hold that the effect of failure to comply with a procedural requirement is to render proceedings null: ‘what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity’.

Judges:

Sedley J

Citations:

Times 23-Apr-1998, [1998] EWHC Admin 395

Statutes:

Asylum (Appeals) Procedure Rules 1993 No 1661 22(3)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
Cited – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – McKay, Regina (on the Application of) v First Secretary of State and Another CA 9-Jun-2005
An enforcement notice was challenged on the grounds of it having been made without the appropriate identification of the land at issue. . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Lists of cited by and citing cases may be incomplete.

Immigration, Administrative

Updated: 20 May 2022; Ref: scu.86923

Robinson (Jamaica) v Secretary of State for The Home Department: SC 16 Dec 2020

This appeal concerns the extent to which a non-member state national, who is the parent of a dependent European Union citizen child, is protected against deportation from the territory of the EU pursuant to the principle in Ruiz Zambrano

Judges:

Lady Black, Lord Lloyd-Jones, Lord Sales, Lord Burrows, Lord Stephens

Citations:

[2020] UKSC 53

Links:

Bailii, Bailii Summary, Bailii Issues and Facts

Jurisdiction:

England and Wales

Citing:

Appeal from – Secretary of State for The Home Department v Robinson (Jamaica) CA 2-Feb-2018
Right of third-country national parent with criminal record to reside in member state – proportionality guidance . .
Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 20 May 2022; Ref: scu.656807

YD (Algeria) v Secretary of State for The Home Department: CA 14 Dec 2020

The respondent rejected the appellant’s claim that, as a gay man, he would be subjected to persecution were he to be returned to Algeria and his claim that return would be incompatible with his right to respect for his private and family life guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms

Judges:

Lord Justice Lewis, Lord Justice Peter Jackson and Lady Justice Asplin

Citations:

[2020] EWCA Civ 1683

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 20 May 2022; Ref: scu.656774

Secretary of State for The Home Department v Robinson (Jamaica): CA 2 Feb 2018

Right of third-country national parent with criminal record to reside in member state – proportionality guidance

Judges:

Underhill, Lindblom, Singh LJJ

Citations:

[2018] EWCA Civ 85, [2018] 4 WLR 81, [2018] WLR(D) 62, [2018] Imm AR 892

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal from – Robinson (Jamaica) v Secretary of State for The Home Department SC 16-Dec-2020
This appeal concerns the extent to which a non-member state national, who is the parent of a dependent European Union citizen child, is protected against deportation from the territory of the EU pursuant to the principle in Ruiz Zambrano . .
Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 20 May 2022; Ref: scu.604160

Regina v Immigration Appeal Tribunal and Another ex parte Shah: HL 25 Mar 1999

Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as visitors for six months. Both applicants subsequently applied for asylum on the ground that having been abandoned by their husbands, lacking any other male protection and condemned by the local community for sexual misconduct, they feared that if they were returned to Pakistan they would suffer persecution in the form of physical and emotional abuse. They would be ostracised and unprotected by the authorities. Indeed they might even be liable to death by stoning in accordance with Pakistani Sharia law. Asylum was rejected on the basis that they did not form part of a social group.
Held: Discrimination against women and a refusal to protect them against domestic violence, could make them a social grouping, and therefore two women facing accusations of adultery, which might lead to their being stoned to death if returned to their home country, were properly found to be refugees. Each claim to refugee status case must always depend on the evidence.
Lord Hoffmann said: ‘The concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the Convention. It is concerned not with all cases of persecution, even if they involve denials of human rights, but with persecution which is based on discrimination. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect.’ and ‘ Discrimination against women in matters of fundamental human rights on the ground that they are women is plainly in pari materiae with discrimination on grounds of race. It offends against their rights as human beings to equal treatment and respect.’ In general, there can only be a ‘particular social group’ if that group exists independently of the persecution alleged.
Lord Steyn considered the decision in Acosta: ‘I am satisfied that for the reasons given in Acosta’s case the restrictive interpretation of ‘particular social group’ by reference to an element of cohesiveness is not justified. In 1951 the draftsman of article 1A(2) of the Convention explicitly listed the most apparent forms of discrimination then known, namely the large groups covered by race, religion, and political opinion. It would have been remarkable if the draftsman had overlooked other forms of discrimination. After all, in 1948 the Universal Declaration had condemned discrimination on the grounds of colour and sex. Accordingly, the draftsman of the Convention provided that membership of a particular social group would be a further category. It is not ‘an all-encompassing residual category:’ Hathaway, The Law of Refugee Status, p 159. Loyalty to the text requires that one should take into account that there is a limitation involved in the words ‘particular social group.’ What is not justified is to introduce into that formulation an additional restriction of cohesiveness. To do so would be contrary to the ejusdem generis approach so cogently stated in Acosta’s case.’

Judges:

Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Lord Millett

Citations:

Gazette 28-Apr-1999, Times 26-Mar-1999, [1999] UKHL 20, [1999] 2 AC 629, [1999] 2 All ER 545, [1999] Imm AR 283, 6 BHRC 356, [1999] 2 WLR 1015, [1999] INLR 144

Links:

Bailii

Statutes:

Geneva Convention and Protocol relating to the Status of Refugees 1951 (1951) (Cmd 9171) 1A(2)

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Immigration Appeal Tribunal Secretary of State for Home Department ex parte Shah and Others CA 23-Jul-1997
Even the justified fears of being stoned to death for adultery did not create a particular separate group from which protection from persecution could be claimed in support of an application for asylum. A ‘social group’ for refugee applicants, had . .
Cited – A v Minister for Immigration and Ethnic Affairs and Another 1997
(Australia) A claim to refugee status was made by a husband and wife who had come from China to Australia. They said that they feared sterilization under the ‘one child policy’ of China if they were returned.
Held: There is a general principle . .
Cited – Savchenko v Secretary of State for the Home Department CA 1996
The alleged group of Russian security guards at a hotel who feared victimisation by the mafia, did not exist independently of the persecution and were not protected as a group under the Convention: ‘The Secretary of State submits . . that the . .
Cited – Empress Car Company (Abertillery) Ltd v National Rivers Authority HL 22-Jan-1998
A diesel tank was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that . .
Cited – In re Acosta 1985
US Board of Immigration Appeals –
Held: ‘We find the well-established doctrine of ejusdem generis, meaning literally, ‘of the same kind,’ to be most helpful in construing the phrase ‘membership in a particular social group.’ That doctrine . .

Cited by:

Applied – Choudhrey v Immigration Appeal Tribunal Admn 1-Aug-2001
The applicant sought to review refusal of his request to appeal in turn the refusal of his request for asylum as an Ahmadi from Pakistan. He had twice been assaulted by a non-government racist group. There was legislation having the effect of . .
Applied – Regina (Ivanauskiene) v A Special Adjudicator CA 31-Jul-2001
The applicant had sought asylum. Her case had been refused, according to the law as stated at that time, but the decision then binding on the adjudicator (Shah), had been reversed in the House of Lords. It had now been held that the women of a . .
Cited – Regina v Secretary of State for the Home Department, ex parte Sivakumar HL 20-Mar-2003
The appellant sought asylum. He had fled Sri Lanka. He was a Tamil and feared torture if he returned. His application had been rejected because the consequences flowed from his suspected involvement in terrorism, and that was not a Convention . .
Cited – Regina (Husan) v Secretary of State for the Home Department QBD 24-Feb-2005
The applicant sought asylum from Bangladesh. His application was refused, and the respondent issued a certificate to say that his claim was hopeless. He sought judicial review.
Held: There was so much evidence that Bangladesh suffered . .
Cited – Hoxha and Another v Secretary of State for the Home Department HL 10-Mar-2005
The claimants sought to maintain their claims for asylum. They had fled persecution, but before their claims for asylum were determined conditions in their home country changed so that they could no longer be said to have a well founded fear of . .
Applied – Chun Lan Liu v Secretary of State for the Home Department CA 17-Mar-2005
The applicant for refugee status said she had a well founded fear of persecution if returned to China, saying that as a pregnant mother of a third child, the foetus had been removed at eight months against her will. She had refused sterilisation, . .
Cited – Fornah v Secretary of State for the Home Department CA 9-Jun-2005
The applicant sought refugee status, saying that if returned home to Sierra Leone, she would as a young woman be liable to be circumcised against her will.
Held: Female sexual mutilation ‘is an evil practice internationally condemned and in . .
Cited – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Cited – HJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same SC 7-Jul-2010
The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by . .
Cited – RT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
Cited – Evans, Regina v CACD 23-Jan-2013
The defendant appealed against his conviction in a case concerning the use of a false passport. The central issue was whether the appellant had a defence based upon the proposition that he was a refugee entitled to asylum in this country. He had . .
Lists of cited by and citing cases may be incomplete.

Immigration, Discrimination, Human Rights

Updated: 19 May 2022; Ref: scu.88505

Regina v Secretary of State for the Home Department, Ex parte Yousaf Same v Same, Ex parte Jamil: CA 11 Jul 2000

A failure to appear at an earlier appeal which was through no fault of the appellant, should not be used by the Secretary as an excuse to defeat an appeal under the section. The Secretary of State should not treat the section as a safety net or fall back. It was in fact a secondary appeal, and its provisions should not be defeated by a merely technical defect.

Citations:

Times 11-Jul-2000, Gazette 20-Jul-2000, [1999] EWHC Admin 776

Links:

Bailii

Statutes:

Immigration Act 1971 s 20, Asylum and Immigration Appeals Act 1993 Sch 2

Jurisdiction:

England and Wales

Immigration

Updated: 19 May 2022; Ref: scu.88658

Regina v Secretary of State for the Home Department Ex Parte Abdi, Same v Same, Ex Parte Gawe: HL 15 Feb 1996

Two Somali nationals were refused asylum and sought to challenge a decision rejecting their claim that to be sent to Spain would be contrary to the United Kingdom’s obligations under the Geneva Convention of 1951.
Held: Adjudicators are experts in their field and are provided with a great deal of background information in relation to countries from which refugees might be expected to arrive. The Home Secretary need not disclose all the information on which he based his decision to issue a certificate as to the safety of a third country for return of an asylum seeker.

Judges:

Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

Times 17-Feb-1996, Gazette 06-Mar-1996, Independent 21-Feb-1996, [1996] 1 All ER 641, [1996] UKHL 9, [1996] Imm AR 46, [1996] 1 WLR 298

Links:

Bailii

Statutes:

Geneva Convention 1951, Asylum and Immigration Appeals Act 1993 8

Citing:

Cited – Liversidge v Sir John Anderson HL 3-Nov-1941
The plaintiff sought damages for false imprisonment. The Secretary of State had refused to disclose certain documents. The question was as to the need for the defendant to justify the use of his powers by disclosing the documents.
Held: The . .
Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Mehari QBD 1994
A Special Adjudicator is not limited to checking whether the Secretary of State has some material on which he might give such a certificate. He must make an independent judgment and consider de novo whether he is satisfied that the country was a . .
Cited – Regina v Home Secretary, Ex parte Thavathevathasan CA 1994
The court discussed the task of a Special Adjudicator: ‘Clearly the Special Adjudicator is not bound by the Home Secretary’s certificate. In other words, he does not merely wield a rubber stamp. He must consider whether, on the material before the . .
Cited – Regina v Home Secretary, Ex parte Thirukumar CA 1989
The court emphasised the fundamental importance of asylum decisions: ‘asylum decisions are of such moment that only the highest standards of fairness will suffice.’ . .
Cited – Regina v Home Secretary, ex parte Sivakumaran HL 16-Dec-1987
The House of Lords were concerned with the correct test to be applied in determining whether asylum seekers are entitled to the status of refugee. That in turn gave rise to an issue, turning upon the proper interpretation of Article 1.A(2) of the . .
Cited – Dursun v Secretary of State for the Home Department 1993
The Home Secretary is able to collect information about the policies of other countries from many sources. . .
Cited – Regina v Secretary of State for the Home Department, ex parte Musisi HL 1987
Mr Musisi sought entry to the United Kingdom as a visitor from Kenya. When that application looked as though it might fail, he claimed political asylum as a refugee from Uganda. His application for asylum was refused on the basis that he had come . .
Appeal from – Regina v Secretary of State for the Home Department ex parte Abdi and Another CA 21-Apr-1994
The Home Secretary has no duty to show the factual evidence he had relied upon as to the safety of a deportee’s destination country.
The Home Secretary need not state all information on which his certificate was based. The court recognised the . .

Cited by:

Cited – Marghia (Procedural Fairness) UTIAC 25-Jul-2014
AIT The common law duty of fairness is essentially about procedural fairness. There is no absolute duty at common law to make decisions which are substantively ‘fair’. The Court will not interfere with decisions . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 19 May 2022; Ref: scu.87822

Regina v Secretary of State for the Home Department, ex parte Fadli: CA 23 Nov 2000

A claim for political asylum could not be founded on the basis that the applicant would face the alternatives of imprisonment for refusing conscription, or being conscripted and facing attack from anti-government terrorists. The position of former soldiers might be different, since they might cease to have the protection allowed to a serving soldier. In effect the applicant sought a surrogate protection from conflict. There appears no distinction to be made under the Convention between soldiers engaged on warlike activities against an external force, and those engaged fighting terrorists.

Citations:

Times 12-Dec-2000, Gazette 11-Jan-2001, [2000] EWCA Civ 297

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 May 2022; Ref: scu.87930

Regina v Hammersmith and Fulham London Borough Council Ex Parte M etc: CA 17 Feb 1997

The court recognised the potential role of local authorities under section 21(1)(a) in meeting the needs of those seeking asylum and otherwise, but having benefits withheld pending determination of their claims. Asylum seekers who had been excluded from the benefits system are to be supported by the local authority.

Judges:

Lord Woolf MR, Waite, Henry LJJ

Citations:

Times 19-Feb-1997, [1997] EWCA Civ 3095, (1997) 9 Admin LR 504, (1997-98) 1 CCL Rep 85, (1998) 30 HLR 10

Links:

Bailii

Statutes:

National Assistance Act 1948 21(1)

Jurisdiction:

England and Wales

Cited by:

Cited – SL v Westminster City Council SC 9-May-2013
The applicant for assistance from the respondent Council under the 1948 Act was a destitute, homeless failed asylum seeker. He had been admitted to hospital for psychiatric care, but the Council had maintained that his condition was part of and . .
Lists of cited by and citing cases may be incomplete.

Benefits, Local Government, Immigration

Updated: 19 May 2022; Ref: scu.86802

Regina v Secretary of State for the Home Department, Ex Parte Savas: ECJ 23 May 2000

A convention between the European Union and Turkey had direct effect under one article, but was not sufficiently detailed in other provisions to give a right to an individual to enforce its provisions. The article required Turkish nationals not to be treated worse than EU nationals, but did not itself confer a right of residence.
Europa EEC-Turkey Association – Restrictions on freedom of establishment and right of residence – Article 13 of the Association Agreement and Article 41 of the Additional Protocol – Direct effect – Scope – Turkish national unlawfully present in the host Member State.

Citations:

Times 23-May-2000, C-37/98, [2000] ECR 1-2927, [2000] EUECJ C-37/98

Links:

Bailii

Statutes:

Protocol to the EEC-Turkey Association Agreement

Citing:

reference from – Regina v Secretary of State for Home Department ex parte Savas Admn 24-Apr-1997
. .

Cited by:

See Also – Savas, Regina (on the Application of) v The Secretary of State for the Home Department Admn 11-Dec-2001
. .
Cited – Temiz, Regina (on the Application of) v Secretary of State for the Home Department Admn 13-Oct-2006
The claimant sought judicial review of the refusal by the respondent to give him permission to stay in the United Kingdom. As a Turkish national he had absconded after being ordered to be removed, and had since gone into business here.
Held: . .
Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 19 May 2022; Ref: scu.85537

Regina v Wandsworth London Borough Council, Ex Parte O; Leicester City Council, Ex Parte Bhikha: CA 7 Sep 2000

The applicants were immigrants awaiting determination of their applications for exceptional leave to remain, and who came to suffer from serious illness. Each applied for and was refused assistance from their local authority.
Held: The refusals were unlawful. Where circumstances of need arose over and above needs arising from lack of accommodation and funds, then he qualified for assistance irrespective of his immigration status. That status was a matter to be assessed by the Secretary of State, and not by local authorities. The use of the word ‘solely’ in the new section 21(1A) left the local authority with a responsibility for those whose need for care and attention was attributable to a combination of factors, and not simply to destitution and its effects. If the applicant’s need for more care and attention was ‘to any extent made more acute by some circumstance other than the mere lack of accommodation and funds’ e.g. because she is old, ill or disabled, then she is not excluded by section 21(1A).

Judges:

Simon Brown LJ, Hale LJ

Citations:

Gazette 07-Sep-2000, [2000] 1 WLR 2539, [2000] EWCA Civ 201, Times 18-Jul-2000

Links:

Bailii

Statutes:

National Assistance Act 1948 21(1A)

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (Mani) v Lambeth London Borough Council, Regina (Tasci) v Enfield London Borough Council, Regina (J) v Same Admn 18-Apr-2002
The applicants were asylum seekers, but also had disabilities, and sought housing assistance from the local authorities. The authorities replied that they had no duty to provide housing because of the Immigration Act.
Held: The 1948 Act . .
Cited – Regina (on the Application of Mani) v London Borough of Lambeth CA 9-Jul-2003
Where a destitute and disabled asylum seeker had a clear need for care and attention, the local authority had a duty to provide it. The claimant was an asylum seeker, with impaired mobility and a history of mental halth difficulties. At first he was . .
Cited – Regina (T) v the Secretary of State for the Home Department; similar CA 23-Sep-2003
The claimant asylum seeker had been refused benefits having failed to declare his application on entry. The Secretary now appealed a finding that the decision was flawed. Was the treatment of the applicant inhuman or degrading?
Held: No simple . .
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Cited – M v London Borough of Islington and Another CA 2-Apr-2004
The applicant asylum seeker had had her application refused, and was awaiting a removal order. She had a child and asked the authority to house her pending her removal.
Held: Provided she was not in breach of the removal order, the council had . .
Cited – M, Regina (on the Application of) v Slough Borough Council HL 30-Jul-2008
The House was asked ‘whether a local social services authority is obliged, under section 21(1)(a) of the 1948 Act, to arrange (and pay for) residential accommodation for a person subject to immigration control who is HIV positive but whose only . .
Lists of cited by and citing cases may be incomplete.

Local Government, Immigration, Benefits

Updated: 19 May 2022; Ref: scu.85603

Omoruyi v Secretary of State for the Home Department: CA 12 Oct 2000

Where a person claimed asylum on the basis that he had a well founded fear of persecution, the potential acts of the persecutor he feared must be shown to have some connection with a reason under the Convention. Discrimination against the claimant for an unconnected purpose was not sufficient to found a claim. Here the claimant feared persecution by cult members if he returned home for refusing to surrender his father’s body. In reality their animosity arose from that refusal and was not aimed at his own religious beliefs.

Citations:

Times 03-Nov-2000, [2000] EWCA Civ 258

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 May 2022; Ref: scu.84454

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 admission did not create a sufficient status by virtue of section 11.

Citations:

Times 14-Jun-2001, Gazette 21-Jun-2001, [2002] 34 HLR 1, [2001] EWCA Civ 677, [2001] EWCA Civ 677

Links:

Bailii

Statutes:

Housing Act 1996 185(2), Homelessness (England) Regulations 2000 (2000 No 701) 3(1)(e)(1), Immigration Act 1971 11(1)

Jurisdiction:

England and Wales

Citing:

Applied – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .

Cited by:

Cited – Ghaidan v Godin-Mendoza CA 5-Nov-2002
The applicant sought to succeed to the tenancy of his deceased homosexual partner as his partner rather than as a member of his family.
Held: A court is bound by any decision within the normal hierachy of domestic authority as to the meaning . .
Confirmed – 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 . .
Cited – 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.

Immigration, Housing, Benefits

Updated: 19 May 2022; Ref: scu.82689

Horvath v Secretary of State for the Home Department: CA 2 Dec 1999

The degree of protection from non-state persecution available to an asylum seeker, is a relevant factor in asylum applications. Where that protection was inadequate, for reasons not related to the nature of that persecution, that also was relevant. It affected the issues of whether persecution existed, whether the fear of it was well founded, and whether the fear of persecution made the protection of the state unavailable. A state cannot always guarantee the safety of its citizens. If the matter of protection is treated simply as an aspect of assessing the existence of a real risk of an abuse of rights, asylum would be granted even although there was . . a reasonable level of state protection. But that would be contrary to the basic intention of the Convention. The sufficiency of State protection is not measured by the existence of a real risk of an abuse of rights but by the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate it.

Judges:

Stuart-Smith LJ, Ward LJ, Hale LJ

Citations:

Gazette 07-Jan-2000, [1999] EWCA Civ 3026, [2000] Imm AR 205, [2000] INLR 15

Links:

Bailii

Statutes:

Convention and Protocol relating to the Status of Refugees 1951 1A

Jurisdiction:

England and Wales

Citing:

Appealed to – 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:

Appeal from – 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 – ST Eritrea, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Mar-2012
The Tribunal had confirmed the appellant’s refugee status, but the respondent had ordered nevertheless that she be returned. The judge’s order setting aside that decision had been overturned in the Court of Appeal.
Held: The claimant’s appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 19 May 2022; Ref: scu.81478

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 persecution, and the level of protection it was prepared to offer. The failure of state protection is central to the whole system. Persecution is best defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community. The obligation to afford refugee status arises only if the person’s own state is unable or unwilling to discharge its own duty to protect its own nationals. It follows that to satisfy the fear test in a non-state agent case, the applicant must show that the persecution which he fears consists of acts of violence or ill treatment against which the state is unable or unwilling to provide protection.

Judges:

Lord Hope of Craighead, Lord Browne-Wilkinson and Lord Hobhouse of Woodborough

Citations:

Times 07-Jul-2000, [2000] UKHL 37, [2000] 3 WLR 379, [2000] 3 All ER 577, [2001] 1 AC 489

Links:

House of Lords, Bailii

Statutes:

Geneva Convention and Protocol relating to the Status of Refugees 1951 (1951) (Cmd 9171)

Citing:

Appeal from – Horvath v Secretary of State for the Home Department CA 2-Dec-1999
The degree of protection from non-state persecution available to an asylum seeker, is a relevant factor in asylum applications. Where that protection was inadequate, for reasons not related to the nature of that persecution, that also was relevant. . .

Cited by:

Cited – Svazas v The Secretary of State for the Home Department CA 31-Jan-2002
The two applicants appealed refusal of their applications for asylum. They had been former members of the communist party in Lithuania. Both had experienced persecution. The IAT had found that the constitution guaranteed them protection. Though they . .
Cited – Hari Dhima v Immigration Appeal Tribunal Admn 8-Feb-2002
The appellate sought judicial review to challenge an order for his return to Albania. He said that he would be subject to persecution from communist sympathizers, and his life was at risk for a blood feud. Adjudicators had variously accepted and . .
Cited – Sepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
Appealed to – Horvath v Secretary of State for the Home Department CA 2-Dec-1999
The degree of protection from non-state persecution available to an asylum seeker, is a relevant factor in asylum applications. Where that protection was inadequate, for reasons not related to the nature of that persecution, that also was relevant. . .
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 – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Hoxha and Another v Secretary of State for the Home Department HL 10-Mar-2005
The claimants sought to maintain their claims for asylum. They had fled persecution, but before their claims for asylum were determined conditions in their home country changed so that they could no longer be said to have a well founded fear of . .
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 – HC v Secretary of State for the Home Department CA 20-Jul-2005
The applicant challenged refusal of his asylum application saying that the court had failed to take account of the fact that as a homosexual moslem, he would face persecution if returned home.
Held: The IAT had not properly recognised that at . .
Cited – HJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same SC 7-Jul-2010
The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by . .
Cited – ST Eritrea, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Mar-2012
The Tribunal had confirmed the appellant’s refugee status, but the respondent had ordered nevertheless that she be returned. The judge’s order setting aside that decision had been overturned in the Court of Appeal.
Held: The claimant’s appeal . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 19 May 2022; Ref: scu.81479

JK, Regina (on The Application of) v Secretary of State for The Home Department: Admn 3 Dec 2020

Application for an interim injunction that the defendant should release the claimant to accommodation provided under section 95 Immigration Act 1999 within five days.

Judges:

Anthony Elleray QC Deputy High Court Judge

Citations:

[2020] EWHC 3303 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 19 May 2022; Ref: scu.656793

El-Yassini v Secretary of State for the Home Department: ECJ 11 Mar 1999

The agreement giving Moroccan citizens rights of residence within the EU did not require a member state to renew a residence permit after the original purpose was satisfied, though not where work permit extended beyond the original residence permit.

Citations:

Times 11-Mar-1999, C-416/96

Statutes:

Co-operation Agreement between the European Economic Community and the Kingdom of Morocco

Immigration, European

Updated: 19 May 2022; Ref: scu.80306

Chief Adjudication Officer v Wolke; Remelien v Secretary of State for Social Security: HL 13 Nov 1997

The claimant was an EC national who had become resident here but was not seeking work, since she cared for her children. The Secretary of State said that since she was not seeking work, she was not entitled to remain and should make arrangements to leave the UK.
Held: The letter asking a claimant to make arrangements to return to his or her own European state was not sufficient of itself to remove his right to claim benefits.

Judges:

Lord Hoffmann

Citations:

Gazette 17-Dec-1997, Times 01-Dec-1997, [1997] UKHL 50, [1998] 1 All ER 129, [1997] 1 WLR 1640, [1998] 1 FLR 444, [1998] 1 FCR 119, [1998] Fam Law 193

Links:

House of Lords, Bailii

Statutes:

Income Support (General) Regulations 1987 21(3)(b), Social Security Contributions and Benefits Act 1992 175, Immigration (European Economic Area) Order 1994

Citing:

Cited – Regina v Immigration Appeal Tribunal, ex parte Antonissen ECJ 26-Feb-1991
ECJ The free movement of workers enshrined in Article 48 of the Treaty entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the . .
Cited – Regina v Stanislaus Pieck ECJ 3-Jul-1980
Any formality for the purpose of granting leave, coupled with a passport or an identity card check at the frontier, was contrary to article 3(2) of Directive 68/360 E.E.C. which prohibited Member States from demanding an entry visa or equivalent . .
Cited – Centre Public D’Aide Sociale De Courcelles v Lebon ECJ 18-Jun-1987
A right to equal treatment with regard to social and tax advantages accorded by article 7(2) of Regulation No. 1612/68 E.E.C. applied only to workers and not to nationals of Member States who move in search of employment. The latter were entitled . .
Cited – Regina v Secretary of State for Home Department Ex Parte Vitale; Regina v Same Ex Parte Do Amaral QBD 18-Apr-1995
A European Union citizen’s right to stay in UK is not unqualified, he must expect to have to seek or find work. The decision of the Home Secretary could be judicially reviewed and ‘in the course of his appeal before the Social Security Appeal . .

Cited by:

Cited – London Borough of Barnet v Ismail and Another CA 6-Apr-2006
The court considered the entitlement to housing support of nationals of other EEA states receiving Income Support here despite their being still subject to immigration control.
Held: Such EEA nationals were eligible for housing benefit. The . .
Lists of cited by and citing cases may be incomplete.

Benefits, Immigration, European

Updated: 19 May 2022; Ref: scu.79052

PK and OS (Basic Rules of Human Conduct) Ukraine CG: UTIAC 19 Nov 2020

1. Acts contrary to the basic rules of human conduct
Where a person faces punishment for a refusal to perform military service that would or might involve acts contrary to the basic rules of human conduct, that is capable of amounting to ‘being persecuted’ on grounds of political opinion for the purposes of the Refugee Convention.
The term ‘acts contrary to the basic rules of human conduct’ refers to the core of humanitarian norms generally accepted between nations as necessary and applicable to protect individuals in war or armed conflict and, in particular civilians, the wounded and prisoners of war. It includes, but is not limited to, the indicative examples listed in Krotov v Secretary of State for the Home Department [2004] EWCA Civ 69 at [30] to [36].
In order to engage the Refugee Convention, the conduct in question must be committed on a systematic basis, as the result of deliberate policy or official indifference to the widespread actions of a brutal military. In practice, the term conveys an elevated threshold.
It is not necessary for there to be specific international condemnation of the conflict in question for the conduct of the military to be categorised as engaging in acts contrary to the basic rules of human conduct. The international community of states as a whole has already condemned conduct which is contrary to the basic rules of human conduct through its recognition of the existence of international norms from which no derogation is possible, and through the adoption of international legal instruments recognising the prohibitions against such conduct.
However, where there is specific international condemnation of such acts, that is likely to provide an evidential basis for concluding that it is reasonably likely that the military force in question is engaging in acts contrary to the basic rules of human conduct on a widespread and systemic basis.
The individual concerned must demonstrate that it is reasonably likely that their military service would involve the commission of acts contrary to the basic rules of human conduct, or that it is reasonably likely that, by the performance of their tasks, they would provide indispensable support to the preparation or execution of such acts.
The political opinion of the person concerned must be to oppose the commission of acts contrary to the basic rules of human conduct. In practice, it is unlikely to be necessary for a person to adduce significant evidence that their political opinion is to oppose such conduct. It is only where there is evidence to the contrary that any real doubt is likely to arise, for example where there is evidence that the individual concerned has previously and voluntarily been responsible for acts contrary to the basic rules of human conduct. Such an individual may well fall foul of the exclusion clauses in the Refugee Convention in any event.
There must be no other way to avoid military service, for example through the individual concerned availing him or herself of a conscientious objector process.
Where a causal link exists between the likely military role of the conscript or mobilised reservist, the commission of or participation in acts contrary to the basic rules of human conduct, and the punishment to be imposed, punishment including a fine or a non-custodial sentence will be sufficient to amount to ‘being persecuted’ for the purposes of the Refugee Convention, provided it is more than negligible.
2. Country guidance: the conduct of the Ukrainian military in the conflict in the Anti-Terrorist Operation Zone (‘the ATO’)
a. Elements of the Ukrainian military engage in the unlawful capture and detention of civilians with no legal or military justification. The detention of some detainees will be justified by military necessity or otherwise permissible under international humanitarian law (‘IHL’), but a large number of detentions feature no such justification and are motivated by the need for ‘currency’ for prisoner exchanges with the armed groups.
b. There is systemic mistreatment of those detained by the Ukrainian military in the conflict in the ATO, which is in the east of the country. This involves torture and other conduct that is cruel, inhumane and degrading treatment contrary to Article 3 of the ECHR. Even where such detainees are eventually transferred into the judicial detention process, there is likely to be official indifference to the mistreatment they have received.
c. There is an attitude and atmosphere of impunity for those involved in mistreating detainees. No one has been brought to justice. Pro-Kyiv militia have been rewarded for their work by formal incorporation into the military. Lawyers are afraid of taking on cases due to the risk of retribution.
d. The systemic and widespread detention practices of the Ukrainian military and law enforcement officials involving torture and Article 3 mistreatment amount to acts contrary to the basic rules of human conduct.
e. The Ukrainian military has had to engage with armed groups that have embedded themselves in towns, residential areas, and civilian installations along the contact line. Legitimate military targets are often in close proximity to areas, buildings or people protected by IHL. The Ukrainian military’s adherence to the principles of distinction, precaution and proportionality when engaging with such targets has been poor, despite that being a task which calls for surgical precision, especially in the context of a conflict in which legitimate military targets have been embedded within civilian areas, properties and installations. The widespread civilian loss of life and the extensive destruction of residential property which has occurred in the conflict will, in part, be attributable to poorly targeted and disproportionate attacks carried out by the Ukrainian military, but the evidence does not suggest that it is reasonably likely that there was targeting of civilians on a deliberate, systemic and widespread basis.
f. Water installations have been a particular and repeated target by Ukrainian armed forces, despite civilian maintenance and transport vehicles being clearly marked and there being an established practice of negotiating ‘windows of silence’ on some occasions, and despite the protected status such installations enjoy under IHL. The background materials suggest a continued focus on water and similar civilian installations, but the evidence does not demonstrate that those targeting decisions were part of a policy and system. Often such installations serve both sides of the contact line, militating against the conclusion that government forces sought to deprive armed group territory of basic services through the prosecution of the strikes and attacks.
g. Most civilian casualties have been from indirect fire rather than specific targeting.
h. Civilian casualties continue to fall.
i. Damage to schools appears to have been collateral or accidental rather than intentional.
j. It is not clear whether Ukraine was responsible for laying any of the anti-personnel mines documented in the background materials. Mines are no longer deployed by either side, and Ukraine is committed to complying with its international legal obligations under the Ottawa Convention to clear mines that are in areas under its jurisdiction.
k. While regrettable, we do not consider the use of civilian property without payment or reparation, or looting, to amount to acts contrary to the basic rules of human conduct.
l. Ukraine has begun steps to establish a register of missing persons. It is not an act (or omission) contrary to the basic rules of human conduct not to have established that register with greater success or resolve.
m. There is no evidence that the Ukrainian military is engaged in the forced movement of civilians.
3. Country guidance: conscripts and mobilised reservists in Ukraine
a. The Ukrainian military relies upon professional soldiers in its conflict with Russia-backed armed groups in the east of the country, in the Anti-Terrorist Operation zone (‘the ATO’). Forced conscripts or mobilised reservists are not sent to serve on the contact line in the ATO and play no part in the conflict there. It is not reasonably likely that conscripts or mobilised reservists would provide indirect support to the Ukrainian military effort in the ATO, for example through working in an arsenal.
b. It remains the case that, at the current time, it is not reasonably likely that a draft evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act. The guidance given by VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 79 (IAC) remains in force.
c. Although the Ukrainian criminal code provides at Articles 335 and 336 respectively for sentences of imprisonment for conscripts and reservists who have unlawfully avoided military service, absent some special factor, it is highly unlikely that a person convicted of such an offence will be sentenced to a period of imprisonment.
d. It is not reasonably likely that conscripts and mobilised reservists who have avoided military service would be identified as such at the border. Where a person has been convicted and sentenced in absentia, the guidance given in VB concerning their likely treatment at the border remains applicable.
e. It is possible to defer military service as a conscript on grounds of ill health, under Article 14 of the 1992 law, or on one of the bases set out in Article 17 of the 1992 law. Whether those exceptions would be available as a fact-specific question.
f. There is no evidence that it is reasonably likely that the ID card system introduced in 2016 will lead to an increased risk in a draft evader or mobilised reservist being prosecuted.
g. It is highly unlikely that a draft evader would be detained pending trial at the border, given that the enforcement focus is on fines, rather than custody.

Citations:

[2020] UKUT 314 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 18 May 2022; Ref: scu.656760

O v The Secretary of State for The Home Department: Admn 3 Apr 2012

The claimant sought judicial review of the Secretary of State’s continued detention pending deportation of her after her diagnosis with a medical condition.
Held: Lang J refused her permission to apply for judicial review. She had to decide: ‘whether the circumstances had changed such that the detention had become arguably unlawful under either Hardial Singh principles, as submitted, or because of an arguable failure on the part of the Secretary State properly to apply her policy on the mentally ill.’

Judges:

Lang J

Citations:

[2012] EWHC 2899 (Admin)

Jurisdiction:

England and Wales

Cited by:

At Admn – O, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Apr-2016
The appellant failed asylum seeker had been detained for three years pending deportation. She suffered a mental illness, and during her detention the medical advice that her condition could be coped with in the detention centre changed, recommending . .
At Admn – Ogunbiyi, Regina (on The Application of) v Southend County Court and Another Admn 19-Mar-2015
Application for judicial review of a decision of a Circuit Judge at the County Court, (a) refusing permission to appeal again the judgment of a Deputy District Judge following a trial of the claim for damages again the claimant under a hire purchase . .
Lists of cited by and citing cases may be incomplete.

Immigration, Torts – Other

Updated: 18 May 2022; Ref: scu.616743

B (Algeria) v Secretary of State for The Home Department: SC 8 Feb 2018

Bail conditions only after detention

B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether there exists a power under the 1971 Act to grant immigration bail to a person who can no longer be lawfully detained.’
Held: The HS’ appeal failed. The statutory provisions allowed limits to be placed on an individuals freedom and had to be strictly and restrictively interpreted. That would not allow the addition of such a power by inference.
Parliament is presumed not to interfere with the liberty of a subject without making such an intention clear. The focus here was on a power not of executive detention but to grant bail. Being detained was a condition precedent for the question of bail to arise.

Judges:

Lady Hale, President, Lord Mance, Deputy President, Lord Hughes, Lord Hodge, Lord Lloyd-Jones

Citations:

[2018] UKSC 5, [2018] WLR(D) 81, [2018] AC 418, [2018] HRLR 10, [2018] 2 All ER 759, [2018] 2 WLR 651, [2018] INLR 315, UKSC 2015/0147

Links:

Bailii, WLRD, SC, Sc Sumary, SC Video Summary, SC 2017 Nov 14 am Video, SC 2017 Nov 14 pm Video, SC 2017 Nov 15 am Video, Bailii Summary

Statutes:

Immigration Act 1971, Special Immigration Appeals Commission Act 1997

Jurisdiction:

England and Wales

Citing:

At SIAC – B v Secretary of State for the Home Department SIAC 30-Jul-2008
Appeal against an order made by the Secretary of State that it will be conducive to the public good that he should be deported, on the grounds that his removal is in the interests of national security. The appellant said that he would not be safe if . .
Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
Cited – 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 . .
At CA – B v The Secretary of State for The Home Department CA 6-May-2015
The appellant was detained under immigration rules. He refused to provide details of his nationality and now complained of his continuing detention in the light of a finding that he was unlikely to be returnable to Algeria, that being what was . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
See Also – B (Algeria) v Secretary of State for The Home Department SC 30-Jan-2013
B had been under arrest on suspicion of involvement in terrorist activity, but had not revealed his identity, in contempt of court orders to do so, so that the respondent was unable to secure a destiny for his deportation. He had been sentenced to . .
See Also – B v Secretary of State for The Home Department CA 21-Jul-2011
The defendant appealed against a sentence of imprisonment of four months imposed for his refusal to reveal his true identity. He was in custody suspected of terrorist activities. The identity he had given had been shown to be false, and the Algerian . .
Cited – I, Regina (on the Application of) v Secretary of State for the Home Department CA 28-Jun-2002
The appellant obtained asylum but was convicted of offences after entering, and ordered to be deported. Whilst serving his sentence the deportation order was served, but he was not released on licence at the time he would normally have been . .
Cited – 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 – Stellato v The Ministry of Justice CA 14-Dec-2010
The claimant having been released on licence from a prison sentence refused to comply with the conditions of his licence on the ground that he was entitled to be released unconditionally. He was returned to prison. The Divisional Court dismissed his . .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – In re Wasfi Suleman Mahmod Admn 17-Jan-1994
Laws J considered the Hardial Singh principles, adding: ‘While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it . .
Cited – Tan Te Lam v Superintendent of Tai A Chau Detention Centre PC 27-Mar-1996
(Hong Kong) Migrants from Vietnam of Chinese ethnic origin had landed in Hong Kong by boat, and been refused refugee status. They were detained for several years under section 13D of the Immigration Ordinance ‘pending . . removal from Hong Kong’. . .
Cited – AR, Regina (on The Application of) (Pakistan) v The Secretary of State for The Home Department CA 29-Jul-2016
The court was asked ‘If bail is granted by the First Tier Tribunal on conditions, how long do these conditions last and does the Secretary of State or her immigration officers have authority to vary or relax those conditions?’
Held: Paragraph . .
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 . .
Cited – Khadir, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Jun-2005
The applicant who had entered England hidden in a lorry, claimed asylum, and had his claim rejected. It was said that as an Iraqi Kurd, he would be safe in the Kurdish area of Iraq. No safe means had been found of ensuring his return over some four . .
Cited – Stellato v Secretary of State for the Home Department CA 1-Dec-2006
In 1998, the prisoner had been sentenced to ten years’ imprisonment. He had been released on licence after serving two thirds of that sentence, but then recalled on three occasions. He now sought unconditional release after serving three quarters of . .
Cited – Othman, Regina (on The Application of) v Special Immigration Appeals Commission (SIAC) and Others Admn 9-Aug-2012
The court gave its reasons for refusing the claimant’s applications for habeas corpus and permission to seek judicial review of his detention. He was detained pending deportation to Jordan. He resisted saying that if retried in Jordan, the evidence . .
Lists of cited by and citing cases may be incomplete.

Immigration, Criminal Practice

Updated: 18 May 2022; Ref: scu.604212

Kareem (Proxy Marriages – EU Law) Nigeria: UTIAC 16 Jan 2014

a. A person who is the spouse of an EEA national who is a qualified person in the United Kingdom can derive rights of free movement and residence if proof of the marital relationship is provided.
b. The production of a marriage certificate issued by a competent authority (that is, issued according to the registration laws of the country where the marriage took place) will usually be sufficient. If not in English (or Welsh in relation to proceedings in Wales), a certified translation of the marriage certificate will be required.
c. A document which calls itself a marriage certificate will not raise a presumption of the marriage it purports to record unless it has been issued by an authority with legal power to create or confirm the facts it attests.
d. In appeals where there is no such marriage certificate or where there is doubt that a marriage certificate has been issued by a competent authority, then the marital relationship may be proved by other evidence. This will require the Tribunal to determine whether a marriage was contracted.
e. In such an appeal, the starting point will be to decide whether a marriage was contracted between the appellant and the qualified person according to the national law of the EEA country of the qualified person’s nationality.
f. In all such situations, when resolving issues that arise because of conflicts of law, proper respect must be given to the qualified person’s rights as provided by the European Treaties, including the right to marry and the rights of free movement and residence.
g. It should be assumed that, without independent and reliable evidence about the recognition of the marriage under the laws of the EEA country and/or the country where the marriage took place, the Tribunal is likely to be unable to find that sufficient evidence has been provided to discharge the burden of proof. Mere production of legal materials from the EEA country or country where the marriage took place will be insufficient evidence because they will rarely show how such law is understood or applied in those countries. Mere assertions as to the effect of such laws will, for similar reasons, carry no weight.
h. These remarks apply solely to the question of whether a person is a spouse for the purposes of EU law. It does not relate to other relationships that might be regarded as similar to marriage, such as civil partnerships or durable relationships.

Citations:

[2014] UKUT 24 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, European

Updated: 18 May 2022; Ref: scu.522257

AH (Article 1F(B) – ‘Serious’) Algeria: UTIAC 5 Aug 2013

1. In considering exclusion under Article 1F(b), the test is whether there are ‘serious reasons to consider that the appellant is guilty of conduct that amounts to a serious non-political offence’. ‘Serious’ in this context has an autonomous international meaning and is not to be defined purely by national law or the length of the sentence. Guidance on the meaning of ‘serious’ in relation to Article 1F(c) may be found in the decision of the Supreme Court in Al-Sirri and another v Secretary of State for the Home Department [2012] UKSC 54 at paragraph [75]. Arts 1F(a) and (c) serve to illustrate the level of seriousness required to engage Article 1F(b); the genus of seriousness is at a common level throughout.
2. A claimant’s personal participation in acts leading to exclusion under Article 1F(b) must be established to the ordinary civil standard of proof, that the material facts are more probable than not. The appellant’s guilt need not be proved to the criminal standard. Personal participation in a conspiracy to promote terrorist violence can be a ‘serious crime’ for the purpose of Article 1F(b). Where the personal acts of participation by a claimant take the form of assistance to others who are planning violent crimes, the nature of the acts thereby supported can be taken into account. The relevant crime may be an agreement to commit the criminal acts (in English law a conspiracy), rather than a choate crime.
3. In the absence of some strikingly unfair procedural defect, United Kingdom courts and tribunals should accord a significant degree of respect to the decision of senior sister Courts in European Union legal systems; there is a particular degree of mutual confidence and trust between legal systems that form part of the same legal order within the European Union. However, the ultimate question of whether the conduct of which the United Kingdom court or Tribunal is satisfied is sufficiently serious to justify exclusion is a matter for the national court or tribunal.
4. The examination of seriousness should be directed at the criminal acts when they were committed, although events in the supervening passage of time may be relevant to whether exclusion is justified: a formal pardon, or subsequent acquittal, or other event illuminating the nature of the activity may be relevant to this assessment. Despite suggestions to the contrary by respected commentators, it does not appear to be the case that service of the sentence, or indeed a final acquittal, brings the application of the exclusion clause to an end.

Citations:

[2013] UKUT 382

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 18 May 2022; Ref: scu.515455

MH (Effect of Certification Under S94, ) Bangladesh: UTIAC 17 Jul 2013

A person may appeal whilst in the United Kingdom where an asylum or human rights claim has been made but not where there has been certification of that claim or claims as clearly unfounded. Certification under s.94 (2) operates even where a claimant seeks to rely on grounds available to a party under s. 84 of the 2002 Act. It is the claim (which may comprise asylum and human rights elements) that is certified, not the decision made on the claim, regardless of any grounds which might otherwise be raised against that decision.

Citations:

[2013] UKUT 379

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 18 May 2022; Ref: scu.515452

Regina on the Application of Ezgi Payir v Secretary of State for the Home Department: Admn 7 Jul 2005

The claimant, from Turkey, sought judicuial review of the rejection by the respondent of her application for an extension to her work permit to allow her to work asd an au pair.
Held: The claimant was a worker within the regulations, and the refusal amounted to discrimination.

Judges:

Mr Justice Stanley Burnton

Citations:

Times 20-Jul-2005, [2005] EWHC 1426 (Admin), [2006] ICR 188, [2005] 1 WLR 3609

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 17 May 2022; Ref: scu.236310