Category: Immigration

Abdi, Regina (on the Application of) v Secretary of State for the Home Department: Admn 22 May 2009

The applicant had spent 30 months in administrative detention pending removal but was described as having ‘a long history of criminal offending. His convictions variously include two counts of indecent assault, robbery, burglary, assault on a police officer and a drugs offence. A number of his offences were committed whilst he was on bail or on licence. It seems that for at least part of the time he had become addicted to crack cocaine. In the circumstances he was, as it seems to me, properly assessed both as posing a high risk of offending and also as posing a high risk of absconding. Further, bail applications in the interim had been refused by immigration judges.’ He sought his release.
Held: Davis J ordered A’s release after having spent 30 months in detention. The Defendant in operating a policy which applied a presumption in favour of detaining foreign national prisoners had acted unlawfully. However, if the Defendant could show, on the balance of probabilities, that the Claimant would in any event have been detained applying Hardial Singh principles, the fact that an unlawful policy was being operated would not make the detention unlawful.
Davis J said: ‘I think that the time has come in this particular case to say that enough is enough here. The relevant legal proceedings are likely to go on for a long time, so far as concerns Mr Abdi, potentially even running into years. It is time now, in my view, that Mr Abdi be released from detention and I so order. Rejecting, as I do, [the] argument that the court should ignore any period of time, whether in the past or hereafter to be spent in detention, whilst Mr Abdi is pursuing his appeal and any other related litigation, I do not think that it can now be said that Mr Abdi will be or is likely to be removed within a reasonable time; and I think that by now a reasonable period of time for detaining him has elapsed.
I am entitled, in reaching that conclusion, to have at least some regard to the already very long period of time he has already spent in detention: that is, the 30 months. As I have said, I have also borne in mind, in deciding this matter, the fact of his ongoing appeals, the risk of absconding and the risk of re-offending. All the same, as to this last point it should at least be borne in mind that the gravity of his criminality is of a lesser order than that in the Court of Appeal case of A . [His Counsel] also told me that not only is Mr Abdi of course now older but also he has, in the light of his long detention, broken himself of his drug addiction.’

Judges:

Davis J

Citations:

[2009] EWHC 1324 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Rostami, Regina (on the Application of) v Secretary of State for the Home Department QBD 7-Aug-2009
The claimant had been detained for nearly three years while his application for asylum was determined. He sought judicial review, saying that the detention was unlawful. Whilst in detention he had self harmed and said: ‘I will stay in detention for . .
Cited – MC (Algeria), Regina (on The Application of) v Secretary of State for The Home Department CA 31-Mar-2010
The claimant challenged his detention under the 1971 Act, now appealing against refusal of judicial review. His asylum claims had been rejected, and he had been convicted of various offences, including failures to answer bail. He had failed to . .
Cited – MH, Regina (on The Application of) v Secretary of State for The Home Department CA 14-Oct-2010
The claimant complained that his administrative detention for over 40 months had been unlawful. He now appealed against a finding that it had been lawful save for the final two months.
Held: The appeal failed. The period of time for which he . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 20 December 2022; Ref: scu.347069

QD and AH (Iraq) v Secretary of State for the Home Department: CA 24 Jun 2009

Judges:

Sedley, Longmore, Maurice Kay LJJ

Citations:

[2009] EWCA Civ 620, [2009] INLR 514, [2010] Imm AR 132, C5/2008/1706, C5/2009/0251

Links:

Bailii

Statutes:

European Convention on Human Rights 2 3, Directive 2004/83/EC

Jurisdiction:

England and Wales

Citing:

Examined – Elgafaji and Elgafaji v Staatssecretaris van Justitie ECJ 17-Feb-2009
Europa (Grand Chamber) Directive 2004/83/EC – Minimum standards for determining who qualifies for refugee status or for subsidiary protection status – Person eligible for subsidiary protection Article 2(e) – Real . .

Cited by:

Cited – FA (Iraq) v Secretary of State for The Home Department CA 18-Jun-2010
The claimant had applied both for asylum and humanitarian protection. Both claims had been rejected, but he was given leave to stay in the UK for a further year. He now sought to appeal not only against the rejection of the asylum claim but also the . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, European

Updated: 20 December 2022; Ref: scu.347161

ZJ (Afghanistan) v Secretary of State for the Home Department: CA 10 Jun 2008

The appellant sought asylum on the basis that he had a well-founded fear of persecution on the grounds that he was at risk of serious harm if he were to be returned to Afghanistan because his father was a well-known commander of the Taliban and also involved in the Islamic movement.

Citations:

[2008] EWCA Civ 799

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 20 December 2022; Ref: scu.270701

Teixeira v London Borough of Lambeth: CA 10 Oct 2008

The court considered the right of residence in this country of an EEA national who is not a worker but who has a child who is in education here is in issue.

Judges:

Mummery LJ, Jacob LJ, Stanley Burnton LJ

Citations:

[2008] EWCA Civ 1088, [2009] HLR 9, [2009] Eu LR 253

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, European, Housing

Updated: 20 December 2022; Ref: scu.276805

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.

Judges:

Lord Justice Keene Lord Justice May Lord Justice Wall

Citations:

Times 07-Jun-2006, [2006] EWCA Civ 484

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department Ex Parte Vitale CA 26-Jan-1996
The appellant, who was an Italian citizen, claimed that Article 8(a) conferred an unlimited right to reside in the United Kingdom.
Held: The court rejected that argument. Staughton LJ said that it was clear that Article 8(a) could not be taken . .
Cited – Ulrich Hofmann v Barmer Ersatzkasse ECJ 12-Jul-1984
Europa Directive 76/207 is not designed to settle questions concerning the organization of the family, or to alter the division of responsability between parents.
By reserving to member states the right to . .
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 – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
Cited – 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 . .
Cited – Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve ECJ 20-Sep-2001
ECJ Reference for a preliminary ruling: Tribunal du travail de Nivelles – Belgium. Articles 6, 8 and 8a of the EC Treaty (now, after amendment, Articles 12 EC, 17 EC and 18 EC) – Council Directive 93/96/EEC – . .
Cited – De Hoop ECJ 1998
(year?) The pursuit of education is an activity within the scope of the Treaty, with the result that Article 18 rights of residence apply when a citizen of the European Union is seeking to engage in it. . .
Cited – Mauthoor v THF Delap and Associates Limited CA 2-Oct-1995
The parties agreed for the transfer of shares. The payment cheque was not honoured. The appellant first claimed an absence of consideration, then sought to amend her defence to say that she had acted under economic duress. Threats had been made as . .
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 – Belgian State v Rene Humbel And Marie-Therese Edel (Social Policy) ECJ 27-Sep-1988
So far as a right of residence in order to receive services, so far as a student is concerned the relevant services are limited to those provided for remuneration.
Europa A year of study which is part of a . .
Cited – DM Levin v Staatssecretaris Van Justitie ECJ 23-Mar-1982
ECJ The concepts of ‘worker’ and ‘activity as an employed person’ define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively.
Lists of cited by and citing cases may be incomplete.

European, Immigration

Updated: 20 December 2022; Ref: scu.241440

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 investigate whether the treatment which the applicants reasonably fear would infringe a recognised human right. There is no extant legal rule or principle which creates a right of absolute conscientious objection, such that where it is not respected, a good case to refugee status under the Convention may arise. Treatment is not persecutory if it is treatment meted out to all and is not discriminatory.

Judges:

Lord Bingham of Cornhill

Citations:

[2003] UKHL 15, Times 21-Mar-2003, Gazette 09-May-2003, [2003] 1 WLR 856, [2003] 3 All ER 304, [2003] Imm AR 428, 14 BHRC 238, [2003] INLR 322

Links:

House of Lords, Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – 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 – Regina v The Immigration Appeal Tribunal and Another ex parte Rajendrakumar CA 11-Oct-1995
The three Tamil applicants had left the area of Sri Lanka controlled by the Tamil Tigers and gone to live in Colombo. It was asserted that in Colombo they had a well-founded fear of persecution because they were young male Tamils and were therefore . .
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 . .
Adopted – Sivakumar v Secretary of State for the Home Department CA 24-Jul-2001
The applicant for asylum was a Tamil. He was persecuted. He claimed it was political. The possibility of drawing that inference was greater when legal mis-treatment was not expected to be followed by legal proceedings. Excessive or arbitrary . .
Appeal from – Yasin Sepet and Erdem Bulbul v Secretary of State for Home Department (UNCHR Intervening) CA 11-May-2001
The fear of being punished for refusing to be drafted into a country’s defence forces, where the claimant would be a conscientious objector, and the right to such objections would not be recognised, was not sufficient to justify an application for . .

Cited by:

Appealed to – Yasin Sepet and Erdem Bulbul v Secretary of State for Home Department (UNCHR Intervening) CA 11-May-2001
The fear of being punished for refusing to be drafted into a country’s defence forces, where the claimant would be a conscientious objector, and the right to such objections would not be recognised, was not sufficient to justify an application for . .
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 – Khan v Royal Air Force Summary Appeal Court Admn 7-Oct-2004
The defendant claimed that he had gone absent without leave from the RAF as a conscientous objector.
Held: The defendant had not demonstrated by complaint to the RAF that he did object to service in Iraq. In some circumstances where there was . .
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 – 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 – London Borough of Lewisham v Malcolm HL 25-Jun-2008
Unrelated Detriment was no Discrimination
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 20 December 2022; Ref: scu.179983

Regina v The Immigration Appeal Tribunal and Another ex parte Rajendrakumar: CA 11 Oct 1995

The three Tamil applicants had left the area of Sri Lanka controlled by the Tamil Tigers and gone to live in Colombo. It was asserted that in Colombo they had a well-founded fear of persecution because they were young male Tamils and were therefore subject to security round-ups of such people which occurred when the security forces were faced with Tamil terrorist activity in the city. When rounded up they were subjected to ill-treatment which amounted to persecution. The adjudicators and the Tribunal had rejected the proposition that young male Tamils as a class and for that reason alone all had a well-founded fear of persecution. The Tribunal had concluded that in Colombo ill-treatment of those rounded up had significantly declined and was not endorsed by the government.
Held: To make good a claim to asylum as a refugee, it is necessary for the applicant to show, to the standard of reasonable likelihood or of real risk, that he had a well founded fear that if he had remained in or was returned to his country of origin, that he would be persecuted for one or more of the Convention reasons. The Convention definition raises a single composite question. In asylum cases, appellate courts were part of the decision process, and were not restricted in their abiliity to review a decision in the same ways as they might be in other cases. In asylum appeals, the position is to be considered by reference to the circumstances at the date of the hearing in question. The possibility of ill-treatment when rounded up does not amount to persecution.
Simon Brown LJ said: ‘In sum, persecution is most appropriately defined as the sustained or systematic failure of state protection in relation to one of the core entitlements which has been recognised by the international community. The types of harm to be protected against include the breach of any right within the first category, a discriminatory or non-emergency abrogation of a right within the second category, or a failure to implement a right within he third category which is either discriminatory or not grounded in the absolute lack of resources.
The ‘first category’ there referred to those rights from which no derogation can ever be permitted, even in terms of compelling national emergency, rights such as freedom from the arbitrary deprivation of life, and protection against torture or cruel, inhuman or degrading punishment or treatment. Clearly it would include protection against ill-treatment of the sort suffered by some Sri Lankan detainees in the past.’

Judges:

Nourse LJ, Staughton LJ, Simon Brown LJ

Citations:

[1996] Imm AR 97, [1995] EWCA Civ 16

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Immigration Appeal Tribunal on the Application of Paramsothy Sivakumar Admn 22-Jan-2001
The applicant sought a judicial review of a refusal by the IAT of leave to appeal a refusal of asylum. He was a Tamil. He had been coerced into assisting the Tamil Tigers. The Special Adjudicator had considered only one possible convention reason, . .
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 . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – 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 – Rashid, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Jun-2005
The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it . .
Cited – Demirkaya v Secretary of State for Home Department CA 23-Jun-1999
Whether an asylum applicant had a well founded fear of persecution if he returned home, is always a question of fact and degree, and could not be made a question of law. Even so where there was a clear risk of repeated rather than single beatings if . .
See Also – Secretary of State for Home Department v Ravichandran CA 6-Jun-1997
Application for leave to appeal granted.
Held: This was a case where the relationship of the Tribunal to the Special Adjudicator can and should be considered. ‘I have indicated some of the difficulties which may arise. There is no doubt that . .
Cited – AA069062014 and Others AIT 30-Aug-2017
Several appellants, all from the same judge, complained of his handling of their cases.
Held: The complaints about the decisions were entirely well-founded: ‘Nobody reading them could detect how the judge reached the conclusion he did, acting . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 20 December 2022; Ref: scu.180023