Category: Immigration

MS (Pakistan) v Secretary of State for The Home Department: SC 18 Mar 2020

The appellant failed asylum seeker, had said that he was the victim of human trafficking.

Judges:

Lady Hale, Lord Kerr, Lady Black, Lord Lloyd-Jones, Lord Briggs

Citations:

[2020] UKSC 9

Links:

Bailii, Bailii Summary

Jurisdiction:

England and Wales

Citing:

Appeal from – MS (Trafficking – Tribunal’s Powers – Art 4 ECHR : Pakistan) UTIAC 23-Mar-2016
UTIAC (i) Having regard to the decision of the ECtHR in Rantsev v Cyprus and Russia [2010] 51 EHRR 1, Article 4 ECHR, which outlaws slavery, servitude and forced or compulsory labour, encompasses also human . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 06 April 2022; Ref: scu.649467

Brey v Pensionsversicherungsanstalt: ECJ 19 Sep 2013

Judgment – Freedom of movement for persons – Union Citizenship – Directive 2004/38/EC – Right of residence for more than three months – Article 7(1)(b) – Person no longer having worker status – Person in possession of a retirement pension – Having sufficient resources not to become a burden on the ‘social assistance system’ of the host Member State – Application for a special non-contributory cash benefit – Compensatory supplement intended to augment a retirement pension – Regulation (EC) No 883/2004 – Articles 3(2) and 70 – Competence of the Member State of residence – Conditions for granting – Legal right to reside on the national territory – Compliance with European Union law

Citations:

[2013] EUECJ C-140/12, [2014] 1 WLR 1080, [2013] WLR(D) 352, [2014] All ER (EC) 534, ECLI:EU:C:2013:565, [2014] 1 CMLR 37

Links:

Bailii, WLRD

Jurisdiction:

European

Citing:

Opinion – Brey v Pensionsversicherungsanstalt ECJ 29-May-2013
ECJ (Opinion) Citizenship of the Union – Freedom of movement for persons – Article 7(1)(b) of Directive 2004/38/EC – Right of residence for a period longer than three months on the territory of another Member . .

Cited by:

Cited – Mirga v Secretary of State for Work and Pensions, Samin v Westminster City Council SC 27-Jan-2016
The claimants, a Polish national and an Austrian national, appealed against decisions of the Court of Appeal upholding decisions that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to . .
Lists of cited by and citing cases may be incomplete.

Benefits, Immigration

Updated: 05 April 2022; Ref: scu.605856

AB, Regina (on The Application of) v The Secretary of State for The Home Department: CA 6 Mar 2018

The court was asked whether rule 334(i) of the Immigration Rules requires an applicant for asylum in the United Kingdom to be present in the country at the time of the decision on the application.
Held: It does

Judges:

Ryder SPT, Hickinbottom, Leggatt LJJ

Citations:

[2018] EWCA Civ 383

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 April 2022; Ref: scu.605782

Shah (‘Cart’ Judicial Review: Nature and Consequences): UTIAC 3 Jan 2018

(1) A judicial review challenge to the decision of the Upper Tribunal to refuse permission to appeal a decision of the First-tier Tribunal is a challenge to the lawfulness of the Upper Tribunal’s decision. It is emphatically not an opportunity for a party to raise new grounds of appeal against the decision of the First-tier Tribunal.
(2) Whether or not a person succeeds in obtaining permission of the High Court under CPR 54.7A to judicially review a decision to refuse permission to appeal, with the consequence that the decision is quashed, the Upper Tribunal will need to be satisfied that there is an error of law in the decision of the First-tier Tribunal before that decision can be disturbed. Judicial review grounds which fail to show the decision refusing permission was wrong in law are highly unlikely to lead to such a result.
(3) Those responsible for drafting judicial review grounds which are found by the Upper Tribunal to contain misrepresentations or other falsities may be referred by that Tribunal to the High Court, for consideration whether an explanation is required from the solicitors and/or counsel involved.

Judges:

Lane J P, Blum UTJ

Citations:

[2018] UKUT 51 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 April 2022; Ref: scu.605708

Thapa and Others (Costs: General Principles; S9 Review): UTIAC 16 Jan 2018

(1) What emerges from the guidance in Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 59 (IAC) is that the power to award costs in rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is to be exercised with significant restraint and that detailed examinations of other decided cases are unlikely to assist in deciding whether to award costs under either of those rules.
(2) Section 9 of the Tribunals, Courts and Enforcement Act 2007, read with the relevant procedure rules, enables the First-tier Tribunal to review, set aside and re-decide a case where, on the materials available to the judge deciding an application for permission to appeal, an error of law has occurred and (as in the present case) a party has thereby been deprived of a fair hearing. In the present case, such a course would have avoided the need for the matter to come before the Upper Tribunal and have resulted in a more expeditious outcome.

Citations:

[2018] UKUT 54 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Costs

Updated: 05 April 2022; Ref: scu.605709

Ahmed and Others (Valid Application – Burden of Proof): UTIAC 10 Jan 2018

(1) Central to the analysis in Basnet (validity of application – respondent) [2012] UKUT 113 (IAC) is the existence of a further procedure undertaken by the Secretary of State in order to process payment in relation to which applicants are not privy and over which they have no control. As such, it remains appropriate for her to bear the burden of proof.
(2) The fact that an invalidity decision was not immediately challenged may be relevant in determining whether the legal burden, including an initial evidential burden requiring the Secretary of State to raise sufficient evidence to support her invalidity allegation, has been discharged.
(3) Whether the Secretary of State ultimately discharges the legal burden of proof will depend on the nature and quality of evidence she is able to provide, having regard to the timing of any request for payment details and the reasons for any delay, balanced against any rebuttal evidence produced by an appellant.

Citations:

[2018] UKUT 53 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 April 2022; Ref: scu.605706

SB (Afghanistan), Regina (on The Application of) v The Secretary of State for The Home Department: CA 16 Feb 2018

This case concerns the grant of urgent interlocutory injunctions against the Secretary of State in relation to the removal from the United Kingdom of an asylum-seeker whose claim for asylum she has rejected but where new representations are made on the asylum-seeker’s behalf at the eleventh hour, just before the removal.

Judges:

Lord Burnett LCJ, Sales, Flaux LJJ

Citations:

[2018] EWCA Civ 215, [2018] WLR(D) 98

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Immigration

Updated: 05 April 2022; Ref: scu.605190

E C-240/17 – J: ECJ 16 Jan 2018

Reference for a preliminary ruling – Third-country national staying illegally in a Member State – Threat to public order and national security – Directive 2008/115/EC – Article 6(2) – Return decision – Ban on entry to the territory of the Member States – Alert for the purposes of refusing admission to the Schengen Area — Third-country national holding a valid residence permit issued by another Member State – Convention implementing the Schengen Agreement – Article 25(2) – Consultation procedure between the Member State issuing the alert and the Member State which issued the residence permit – Time limit – Failure of the Contracting State consulted to adopt a position – Consequences for the enforcement of return decisions and entry ban

Citations:

[2018] EUECJ C-240/17, ECLI:EU:C:2018:8

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – E C-240/17 – O ECJ 16-Jan-2018
Area of Freedom, Security and Justice – Asylum Policy – Justice and Home Affairs . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration

Updated: 05 April 2022; Ref: scu.605176

Sapkota, Regina (on The Application of) v Secretary of State for The Home Department: Admn 13 Nov 2017

Claim for damages for false imprisonment, arising from the Defendant’s decisions to curtail the Claimant’s leave to remain and to detain him in immigration detention.

Judges:

Dinah Rose QC

Citations:

[2017] EWHC 2857 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Immigration

Updated: 05 April 2022; Ref: scu.599419

Visa Joy Ltd and Another v Office of The Immigration Services Commissioner: CA 5 Oct 2017

When conducting an appeal from an administrative decision-maker, to what extent, if any, is a tribunal entitled to take account of matters that were not relied upon by the original decision-maker?

Judges:

McFarlane, Sharp LJJ

Citations:

[2017] EWCA Civ 1473

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999

Jurisdiction:

England and Wales

Immigration

Updated: 05 April 2022; Ref: scu.595950

MS (Trafficking – Tribunal’s Powers – Art 4 ECHR : Pakistan): UTIAC 23 Mar 2016

UTIAC (i) Having regard to the decision of the ECtHR in Rantsev v Cyprus and Russia [2010] 51 EHRR 1, Article 4 ECHR, which outlaws slavery, servitude and forced or compulsory labour, encompasses also human trafficking.
(ii) Trafficking decisions are not immigration decisions within the compass of the 2002 Act, with the result that judicial review provides the appropriate mechanism for direct challenge.
(iii) Tribunals must take into account, where relevant, a decision that an appellant has been a victim of trafficking.
(iv) Where satisfied that a negative trafficking decision is perverse, Tribunals are empowered to make their own decision on whether an appellant was a victim of trafficking.
(v) Tribunals are also empowered to review a trafficking decision on the ground that it has been reached in breach of the Secretary of State’s policy guidance.
(vi) While, in principle it seems that other public law misdemeanours can also be considered by Tribunals, this issue does not arise for determination in the present appeal.
(vii) Tribunals may well be better equipped than the Competent Authority to make pertinent findings relating to trafficking.
(viii) The procedural obligations inherent in Article 4 ECHR are linked to those enshrined in the Trafficking Convention, Articles 10(2) and 18 in particular.
(ix) Any attempt to remove a trafficking victim from the United Kingdom in circumstances where the said procedural obligations have not been discharged will normally be unlawful.

Judges:

McCloskey P J

Citations:

[2016] UKUT 226 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – MS (Pakistan) v Secretary of State for The Home Department SC 18-Mar-2020
The appellant failed asylum seeker, had said that he was the victim of human trafficking. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 05 April 2022; Ref: scu.565668

Patel and Others v Secretary of State for The Home Department: CA 1 Jun 2012

Where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary

Judges:

Lord Neuberger MR, Hallett VP QBD, Stanley Burnton LJJ

Citations:

[2012] EWCA Civ 741, [2012] INLR 485, [2012] WLR(D) 174, [2013] 1 WLR 63, [2012] Imm AR 898, [2012] 4 All ER 94

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Not Followed – Mirza and Others, Regina (on The Application of) v Secretary of State for The Home Department CA 23-Feb-2011
The Secretary of State’s failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. . .

Cited by:

Appeal from – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .
Lists of cited by and citing cases may be incomplete.

Immigration, Litigation Practice

Updated: 05 April 2022; Ref: scu.459864

In re Sital Singh: QBD 8 Jul 1975

Mtr Singh was suspected to be an illegal immigrant. The Secretary of State had authorized his removal on 24 April 1975. The matter came before the court on 8 July 1975. The applicant had been in custody since 17 March, three and a half months prior to the decision of the court. The court had been informed by counsel that a communication had been received from the Indian High Commission saying that a reply to the application for a travel document relating to the applicant would be received within the next ten days.
Held: Milmo J said: ‘The Court is satisfied that everything that can be reasonably done by the Secretary of State for Home Affairs to urge the Indian High Commission to produce a travel document has been done and is being done.’ In those circumstances the court said: ‘It may be that a case will arise when the detention awaiting deportation is excessive, and when that case does arise it will be considered. But in the judgment of this Court the present case falls far short of that mark.’

Judges:

Milmo J

Citations:

Unreported, 8 July 1975

Jurisdiction:

England and Wales

Cited by:

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

Immigration

Updated: 05 April 2022; Ref: scu.425352

E C-240/17 – O: ECJ 16 Jan 2018

Area of Freedom, Security and Justice – Asylum Policy – Justice and Home Affairs

Citations:

ECLI:EU:C:2018:8, [2018] EUECJ C-240/17 – O

Links:

Bailii

Jurisdiction:

European

Cited by:

Opinion – E C-240/17 – J ECJ 16-Jan-2018
Reference for a preliminary ruling – Third-country national staying illegally in a Member State – Threat to public order and national security – Directive 2008/115/EC – Article 6(2) – Return decision – Ban on entry to the territory of the Member . .
Lists of cited by and citing cases may be incomplete.

Crime, Immigration

Updated: 04 April 2022; Ref: scu.604675

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 risk of suffering serious harm – Article 15(c) -Serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of armed conflict – Proof.
Though Article 15(a) and (b) appeared to be co-extensive with Article 2 and 3 of the Convention, Article 15(c) was addressing the different situation of indiscriminate violence which, while not being aimed at a particular individual, could nevertheless be said to constitute an individual threat to such person.

Citations:

[2009] EUECJ C-465/07, [2009] All ER (EC) 651, [2009] INLR 235, [2009] 1 WLR 2100, [2009] 2 CMLR 45, [2009] Imm AR 477, [2009] WLR (D) 59

Links:

Bailii

Statutes:

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

Jurisdiction:

European

Citing:

See Also – Elgafaji and Elgafaji -c- Staatssecretaris van Justitie (Justice and Home Affairs) French Text ECJ 9-Sep-2008
Europa Refugee status – minimum standards regarding conditions for granting refugee protection level equal to that of Article 3 of the European Convention on Human Rights and Fundamental Freedoms. . .

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 . .
Examined – QD and AH (Iraq) v Secretary of State for the Home Department CA 24-Jun-2009
. .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 03 April 2022; Ref: scu.417815

HA (WCPI, IMIK, KRG) Iraq CG: IAT 23 Oct 2007

There is no satisfactory evidence that WCPI members in the Kurdish Regional Governorates are at risk from IMIK or anyone else. There is some evidence that the WCPI has a presence both in the KRG and the rest of Iraq.
There is no satisfactory evidence that IMIK now enforces its views by violent means in the KRG. It has six seats in the KRG parliament.
This determination does not consider issues relating to the WCPI or IMIK in the parts of Iraq that are not in the KRG. This determination supersedes DH (Risk – IMIK – KAA) Iraq CG [2002] UKIAT 05099 but does not consider issues relating to the WCPI or IMIK outside the KRG

Citations:

[2007] UKAIT 00087

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 03 April 2022; Ref: scu.261626

Akram and Another, Regina (on The Application of) v Secretary of State for The Home Department: Admn 20 Apr 2015

The court was severely critical of the firm of solicitors who had brought this claim for judicial review of an immigration decision.

Judges:

Sir Brian Leveson P QBD, Green J

Citations:

[2015] EWHC 1359 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Legal Professions

Updated: 03 April 2022; Ref: scu.550014

Wijesinghe, Regina (on The Application of) v Secretary of State for The Home Department: Admn 4 Jun 2015

Claim by the claimant for judicial review of the Secretary of State’s decision to reject as invalid his application for leave to remain as a Tier 4 (General) Student. The relief sought is a mandatory injunction directing the defendant to grant the claimant leave to remain.

Judges:

Deborah Taylor HHJ

Citations:

[2015] EWHC 1558 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 03 April 2022; Ref: scu.547562

Hottak and Another, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs and Another: Admn 8 Jul 2015

‘The claimants are both Afghan nationals who served as interpreters with the British Forces in Afghanistan. There are two policies in place to provide protection and benefits to Afghan nationals who worked for the British Government in Afghanistan. Between them they comprise the Afghan Scheme. One is known as the Intimidation Policy and the other as the Redundancy (or Ex Gratia) Policy. They offer financial benefits and relocation opportunities including, in limited circumstances, to the United Kingdom, to those who qualify. During the engagement of British Forces in Iraq many members of staff (including interpreters) were employed locally. A different scheme was put in place at the end of that engagement. The claimants’ case is that the Iraq Scheme was more generous.’
Held: A declaration was granted, but eth decision was not quashed: ‘ the answer to the crucial question as to why the Afghan LES were (in certain respects) treated less favourably than the Iraqi LES by the promulgation of the different Afghan Scheme is that, as compared with the conditions earlier experienced in Iraq, the different conditions prevailing in Afghanistan either required, or justified, such a different scheme.’

Judges:

Burnett LJ, Irwin J

Citations:

[2015] EWHC 1953 (Admin), [2015] WLR(D) 297

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal from – Hottak and Another, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs and Another CA 9-May-2016
Appeal against refusal of judicial review of decision not to provide protection of Afghan nationals who had assisted armed forces as transalators. A declaration had been granted but the decision had not been quashed.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Armed Forces, Immigration

Updated: 03 April 2022; Ref: scu.550020

El Hassani v Minister Spraw Zagranicznych: ECJ 13 Dec 2017

Area of Freedom, Security and Justice – Community Visa Code – Decision To Refuse A Visa : Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EC) No 810/2009 – Article 32(3) – Community Visa Code – Decision to refuse a visa – Right of the applicant to bring an appeal against that decision – Obligation of a Member State to guarantee the right to a judicial appeal

Citations:

ECLI:EU:C:2017:960, [2017] EUECJ C-403/16

Links:

Bailii

Statutes:

Regulation (EC) No 810/2009 32(3)

Jurisdiction:

European

Immigration

Updated: 02 April 2022; Ref: scu.602082