Category: Immigration

Slovak Republic v Council: ECJ 6 Sep 2017

Grand Chamber – Actions for annulment — Decision (EU) 2015/1601 — Provisional measures in the area of international protection for the benefit of the Hellenic Republic and the Italian Republic – Emergency situation characterised by a sudden inflow of nationals of third countries into certain Member States — Relocation of those nationals to other Member States — Relocation quotas — Article 78(3) TFEU — Legal basis — Conditions under which applicable — Concept of ‘legislative act’ – Article 289(3) TFEU — Whether conclusions adopted by the European Council are binding on the Council of the European Union – Article 15(1) TEU and Article 68 TFEU – Essential procedural requirements – Amendment of the European Commission’s proposal – Requirements for a further consultation of the European Parliament and a unanimous vote within the Council of the European Union – Article 293 TFEU – Principles of legal certainty and of proportionality

Citations:

[2017] EUECJ C-643/15, C-643/15

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Slovak Republic v Council – Opinion ECJ 6-Sep-2017
Area of Freedom, Security and Justice – Actions for annulment – Decision (EU) 2015/1601 – Provisional measures in the area of international protection for the benefit of the Italian Republic and the Hellenic Republic – Emergency situation . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional

Updated: 29 March 2022; Ref: scu.593578

Slovak Republic v Council – Opinion: ECJ 6 Sep 2017

Area of Freedom, Security and Justice – Actions for annulment – Decision (EU) 2015/1601 – Provisional measures in the area of international protection for the benefit of the Italian Republic and the Hellenic Republic – Emergency situation characterised by a sudden inflow of nationals of third countries to certain Member States – Relocation of those nationals to other Member States – Relocation quotas – Article 80 TFEU – Principle of solidarity and of fair sharing of responsibility between Member States – Article 78(3) TFEU – Legal basis – Concept of ‘legislative act’ – Article 289(3) TFEU – Whether conclusions adopted by the European Council are binding on the Council of the European Union – Article 15(1) TEU and Article 68 TFEU – Breach of essential procedural requirements – Amendment of the European Commission’s proposal – Requirements for a new consultation of the European Parliament and a unanimous vote within the Council – Article 293 TFEU – Principles of legal certainty and of proportionality

Judges:

Bot AG

Citations:

C-643/15, [2017] EUECJ C-643/15 – O

Links:

Bailii

Jurisdiction:

European

Cited by:

Opinion – Slovak Republic v Council ECJ 6-Sep-2017
Grand Chamber – Actions for annulment — Decision (EU) 2015/1601 — Provisional measures in the area of international protection for the benefit of the Hellenic Republic and the Italian Republic – Emergency situation characterised by a sudden inflow . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 29 March 2022; Ref: scu.593577

AS v Secretary of State for The Home Department: CA 23 Aug 2017

Appeal by an Iranian national from the decision of the Upper Tribunal allowing the Secretary of State’s appeal from the decision of the First-tier Tribunal that his deportation would be unlawful.

Judges:

Rafferty, Irwin, Moyland LJJ

Citations:

[2017] EWCA Civ 1284

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 29 March 2022; Ref: scu.593144

Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same: HL 3 Nov 2005

The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day following their arrival.
Held: The appeal by the Secretary of State failed.
Lord Bingham of Cornhill said: ‘Shelter’s experience is that there is no realistic prospect of a destitute asylum-seeker obtaining accommodation through a charity. Unless he has family or friends to provide him with accommodation or with funds, he will have to sleep rough. Clients in that situation who come to Shelter for advice are frequently cold, tired, and hungry and have not had access to washing facilities. They display varying degrees of desperation and humiliation as well as mental and physical illnesses.’
The European Court has repeatedly said that article 3 prohibits torture and inhuman and degrading treatment in terms that are absolute. ‘Withdrawal of support will not in itself amount to treatment which is inhuman or degrading in breach of the asylum-seeker’s article 3 Convention right. But it will do so once the margin is crossed between destitution within the meaning of section 95(3) of the 1999 Act and the condition that results from inhuman or degrading treatment within the meaning of the article.’
. . and ‘section 55 asylum-seekers . . are not only forced to sleep rough but are not allowed to work to earn money and have no access to financial support by the state. The rough sleeping which they are forced to endure cannot be detached from the degradation and humiliation that results from the circumstances that give rise to it. ‘
Lord Scott of Foscote considered that a failure to provide support would not generally constitute treatment within the Convention, but ‘asylum seekers were removed by section 55(1) from those destitute asylum seekers for whom the Secretary of State was able to provide under the various statutory powers that would otherwise have been available for that purpose. This removal, coupled with the bar on their supporting themselves by their own labour, plainly, in my opinion, constitutes ‘treatment’ of them for article 3 purposes. ‘
Baroness Hale of Richmond was uneasy with Laws LJ ‘spectral analysis’: ‘It invites fine distinctions which have no basis in the Convention jurisprudence. ‘ and ‘The state has taken the Poor Law policy of ‘less eligibility’ to an extreme which the Poor Law itself did not contemplate, in denying not only all forms of state relief but all forms of self sufficiency, save family and philanthropic aid, to a particular class of people lawfully here. We can all understand the reasons for doing so. But it is of the essence of the state’s obligation not to subject any person to suffering which contravenes article 3 that the ends cannot justify the means. ‘
Lord Brown of Eaton-Under-Heywood: ‘The real issue in all these cases is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim.’

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2005] UKHL 66, Times 04-Nov-2005, [2005] 3 WLR 1014, [2007] 1 All ER 951, [2006] 1 AC 396

Links:

Bailii, House of Lords

Statutes:

Nationality, Immigration and Asylum Act 2002 55(5)(a), Immigration and Asylum Act 1999 95, European Convention on Human Rights 83

Jurisdiction:

England and Wales

Citing:

Cited – O’Rourke v United Kingdom ECHR 26-Jun-2001
The applicant was a sex offender who on release from prison had found temporary accommodation from which he had been evicted for pestering female residents. He ignored advice to go to a night shelter whilst a decision on permanent re-housing 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 – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Regina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Regina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – Stott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
Cited – D v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
Cited – The Republic of Ireland v The United Kingdom ECHR 18-Jan-1978
The UK lodged a derogation with the Court as regards its human rights obligations in Northern Ireland because of the need to control terroist activity. The Government of Ireland intervened. From August 1971 until December 1975 the UK authorities . .
Cited – V v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
Cited – A v United Kingdom ECHR 1-Oct-1998
The beating of a child aged 9, by his father, with a cane repeatedly, and so as to leave bruising, was inhuman or degrading treatment or punishment, and was not capable of being reasonable chastisement. UK law failed properly to protect the child’s . .
Cited – Chapman v United Kingdom; similar ECHR 18-Jan-2001
The question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement . .
Cited – Gezer v Secretary of State for the Home Department CA 17-Dec-2004
. .
Cited – Zardasht, Regina (on the Application Of) v Secretary of State for Home Department Admn 23-Jan-2004
The court asked whether the evidence showed that the threshold of severity had been reached to turn the treatment of the applicant into an infringement of his human right not to suffer inhuman or degrading treatment. Having entered the UK with a . .
Cited – East African Asians v United Kingdom ECHR 1973
(Commission) A group of Asian men, United Kingdom citizens, complained that, among other things, their Article 8 rights to respect for family life were infringed when they were refused permission to enter the United Kingdom to join their wives. The . .
Cited – Assenov and Others v Bulgaria ECHR 28-Oct-1998
An allegation of violence by a police officer did require a thorough, impartial and careful investigation by a suitable and independent state authority: ‘The court considers that in these circumstances, where an individual raises an arguable claim . .
Cited – Aydin v Turkey ECHR 25-Sep-1997
ECHR Judgment (Merits and just satisfaction) Preliminary objection rejected (estoppel); Violation of Art. 3; Violation of Art. 13; Not necessary to examine Art. 6-1; No violation of Art. 25-1; Not necessary to . .
Cited – Moldovan And Others v Romania (No. 1) ECHR 12-Jul-2005
In 1993 a pogrom had taken place in a Roma village, resulting in a number of deaths and widespread destruction of property. The State, in the form of the local police, was alleged to have been implicated. Romania acceded to the Convention on 20 June . .
Cited – Raninen v Finland ECHR 16-Dec-1997
The complainant had been handcuffed unjustifiably and in public but not with the intention of debasing or humiliating him and not so as to affect him sufficiently to attain the minimum level of severity.
Held: The application was rejected The . .
Cited – Iwanczuk v Poland ECHR 15-Nov-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Violation of Art. 5-3; Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses . .
At first instance – Regina (Limbuela) v Secretary of State for the Home Department QBD 4-Feb-2004
The claimant had sought asylum on the day after arrival, and had therefore been refused any assistance beyond the provision of a list of charities who might assist. His lawyers were unable to secure either shelter or maintenance, and he had been . .
Appeal from – The Secretary of State for the Home Department v Limbuela, Tesema, Adam CA 21-May-2004
The appellant brought in policies which denied to asylum claimants who had failed to declare their status immediately upon entry, any shelter or support or the right to work. They were to be left to starve on the streets if they so wished. He . .

Cited by:

Cited – Rogers, Regina (on the Application of) v Secretary of State for Health Admn 15-Feb-2006
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was . .
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 . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
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 . .
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 . .
Cited – Janner, Regina (on The Application of) v The Crown Prosecution Service Admn 13-Aug-2015
The claimant challenged the decision that he should face trial on charges of historic sexual abuse. He was now elderly and said to be unfit to attend court or instruct his lawyers, suffering Alzheimers. He sought interim relief against being . .
Lists of cited by and citing cases may be incomplete.

Immigration, Benefits, Human Rights

Updated: 29 March 2022; Ref: scu.231676

Musico v Secretary of State for The Home Department: CA 28 Oct 2020

Appeal against a decision of the Upper Tribunal holding that a decision of the respondent refusing the appellant leave to remain in the United Kingdom was not an immigration decision within the meaning of section 82(2)(d) of the 2002 Act, leaving the appellant with no right of appeal against the first decision.

Judges:

Lord Justice Lewis

Citations:

[2020] EWCA Civ 1389

Links:

Bailii

Statutes:

Nationality, Immigration and Asylum Act 2002 82(2)(d)

Jurisdiction:

England and Wales

Immigration

Updated: 29 March 2022; Ref: scu.655366

Ajayi v Abu and Another (Labour Exploitation : Human Trafficking : Modern Slavery): QBD 31 Jul 2017

labour exploitation – human trafficking – modern slavery – domestic servitude – minimum wage – domestic worker – employee rights -Immigration and Nationality Directorate – terms and conditions – wage deductions – special hearing arrangements – civil procedure – National Minimum Wage Act 1998 – family worker exemption – UK Visa – ECHR Art. 6 – Directive on Preventing and Combating Trafficking in Human Beings and Protecting its Victims 2011

Judges:

McCloud LJ

Citations:

[2017] EWHC 1946 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Human Rights, European, Employment, Immigration

Updated: 28 March 2022; Ref: scu.592017

The Centre for Advice On Individual Rights In Europe v The Secretary of State for The Home Department and Another: Admn 21 Jul 2017

Challenge to Operation Nexus as to arrangements amounting to an improper use of police powers to gather information for the purposes of immigration removal.

Judges:

McGowan J

Citations:

[2017] EWHC 1878 (Admin), [2017] WLR(D) 502

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Immigration

Updated: 28 March 2022; Ref: scu.591227

Sadovska and Another v Secretary of State for The Home Department: SC 26 Jul 2017

The parties had applied to be married. S was a European citizen, and the intended groom was an overstayer from Pakistan. They were refused a licence, and taken into custody, and now appealed against refusal of a licence.
Held: The appeal succeeded. It was for the Home Office to prove what it asserted: ‘One of the most basic rules of litigation is that he who asserts must prove. . . It was not for her [Sadovksa] to establish that her relationship with Mr Malik was a genuine and lasting one, but for the Secretary of State to establish that it fell within the definition of a marriage of convenience.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Reed

Citations:

[2017] UKSC 54, [2017] 1 WLR 2926, [2017] WLR(D) 556, 2017 GWD 23-396, 2017 SLT 883, UKSC 2017/0031

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summ Vide, SC Video AM, SC Video PM

Jurisdiction:

Scotland

Citing:

Cited – The Scottish Ministers v Stirton and Another SCS 7-Nov-2014
These proceedings concern the civil recovery of the proceeds of unlawful conduct, notably money laundering, extortion and mortgage fraud, in terms of section 266 of the Proceeds of Crime Act 2002. The reclaimer contended that the crown had not had . .
Cited – Papajorgji (EAA Spouse – Marriage of Convenience) Greece UTIAC 6-Jan-2012
i) There is no burden at the outset of an application on a claimant to demonstrate that a marriage to an EEA national is not one of convenience.
ii) IS (marriages of convenience) Serbia [2008] UKAIT 31 establishes only that there is an . .
Cited – Sadovska and Another v The Secretary of State for The Home Department SCS 7-Jul-2016
. .
Lists of cited by and citing cases may be incomplete.

Immigration, Family

Updated: 28 March 2022; Ref: scu.591176

PO and Others, Regina (on The Application of) v Council of The London Borough of Newham: Admn 28 Jul 2014

Claim for judicial review brought by three children, who are Nigerian nationals, about the level of financial assistance that the Defendant, the Council of the London Borough of Newham, provided under section 17 of the Children Act 1989 to meet the subsistence needs which they and their mother had (as they were destitute) while the Secretary of State for the Home Department was considering whether or not they and their mother should be granted leave to remain in this country.

Judges:

John Howell QC

Citations:

[2014] WLR(D) 409, [2014] EWHC 2561 (Admin), [2015] PTSR D1

Links:

Bailii, WLRD, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Samuels v Birmingham City Council SC 12-Jun-2019
The appellant had been provided with emergency accommodation after losing her assured shorthold tenancy, but the court was now asked ‘whether the council adopted the correct approach in determining that the accommodation was ‘affordable’ for those . .
Lists of cited by and citing cases may be incomplete.

Children, Benefits, Immigration

Updated: 28 March 2022; Ref: scu.536176

Immigration Law Practitioners Association, Regina (on The Application of) v Tribunal Procedure Committee and Another: Admn 15 Feb 2016

Challenge to change in rules in immigration cases as to admission of evidence not available to both parties.
Held: The application for review was refused. The change was in order to bring practice in the IAC into line with other tribunals.

Judges:

Blake J

Citations:

[2016] EWHC 218 (Admin), [2016] 1 WLR 3519, [2016] ACD 71, [2016] Imm AR 693, [2016] WLR(D) 77

Links:

Bailii, WLRD

Statutes:

Tribunal Procedure (First-Tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

Jurisdiction:

England and Wales

Immigration, Litigation Practice

Updated: 27 March 2022; Ref: scu.559868

MJ and ZM (Ahmadis, Risk) Pakistan: IAT 4 Apr 2008

IAT 1. The finding in IA and Others (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088 that the existence of a majority Ahmadi community in Rabwah does not justify dismissing an appeal which would otherwise be allowed remains valid. Rabwah is no safer than elsewhere in Pakistan for Ahmadis, but the question whether it is an appropriate internal relocation option for an Ahmadi will always depend on the particular circumstances and facts of that individual’s situation.
2. In Pakistan as a whole, whilst it is clear that from time to time local pressure is exerted to restrict the building of new Ahmadi mosques, schools and cemeteries, and that a very small number of Ahmadis are arrested and charged with blasphemy or behaviour offensive to Muslims, the number of problems recorded is small and has declined since the Musharraf Government took power. Set against the number of Ahmadis in Pakistan as a whole, they are very low indeed. The courts do grant bail and all appeals against blasphemy convictions in recent years have succeeded.
3. There is very sparse evidence indeed of harm to Ahmadis from non-state agents (though rather more anecdotal evidence of difficulties for Christians). The general risk today on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection.
4. Where, exceptionally, the facts of a particular appellant’s case indicate that such an appellant cannot be returned safely to their home area, the existence of an internal relocation option, either to Rabwah or elsewhere in Pakistan, is a question of fact in each such appeal.

Judges:

Gleeson, Spencer SIJJ, Sir Jeffrey James KBE CMG (Non-Legal Member)

Citations:

[2008] UKAIT 00033

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 March 2022; Ref: scu.267098

Erzberger v TUI Ag: ECJ 18 Jul 2017

(Judgment) Reference for a preliminary ruling – Freedom of movement for workers – Principle of non-discrimination – Election of workers’ representatives to the supervisory board of a company – National legislation restricting the right to vote and to stand as a candidate only to workers in establishments within the national territory

Citations:

ECLI:EU:C:2017:562, [2017] EUECJ C-566/15

Links:

Bailii

Jurisdiction:

European

Employment, Immigration

Updated: 27 March 2022; Ref: scu.590487

Maharjan, Regina (on The Application of) v Secretary of State for The Home Secretary: Admn 14 Dec 2016

Application for permission to apply for judicial review of the defendant’s decision to reject their application for leave to remain on humanitarian grounds under the immigration rules and its certification as clearly unfounded and also their detention.

Citations:

[2016] EWHC 3719 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 27 March 2022; Ref: scu.589902

QUB v Secretary of State for The Home Department: Admn 28 Jun 2017

Claim for judicial review, the Claimant challenges the lawfulness of the Defendant’s decisions to detain him in February 2016, and to continue to detain him until March 2016, when he was released.

Citations:

[2017] EWHC 1494 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Discrimination, Prisons, Immigration

Updated: 27 March 2022; Ref: scu.588891