Claim for judicial review of defendant’s decision refusing to treat representations on behalf of the claimant as amounting to a fresh application for asylum.

Judges:

Gibbs J

Citations:

[2005] EWHC 853 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 07 February 2022; Ref: scu.224933

Citations:

[2003] UKIAT 00002

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 07 February 2022; Ref: scu.192386

An EEA national does not cease to be a qualified person as a result of being detained in a hospital pursuant to an order of the court under the Mental Health Act 1983, having not been convicted of any criminal offence.

Citations:

[2012] UKUT 237 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 07 February 2022; Ref: scu.463333

Termination of leave to remain

Judges:

Mr Justice Freedman

Citations:

[2022] EWHC 110 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 07 February 2022; Ref: scu.671577

UTIAC In general persons who on return face prosecution in the Pakistan courts will not be at real risk of a flagrant denial of their right to a fair trial, although it will always be necessary to consider the particular circumstances of the individual case.
Although conditions in prisons in Pakistan remain extremely poor, the evidence does not demonstrate that in general such conditions are persecutory or amount to serious harm or ill-treatment contrary to Article 3 ECHR.
The Protection of Women (Criminal Laws Amendment) Act 2006 (‘PWA’), one of a number of legislative measures undertaken to improve the situation of women in Pakistan in the past decade, has had a significant effect on the operation of the Pakistan criminal law as it affects women accused of adultery. It led to the release of 2,500 imprisoned women. Most sexual offences now have to be dealt with under the Pakistan Penal Code (PPC) rather than under the more punitive Offence of Zina (Enforcement of Hudood) Ordinance 1979. Husbands no longer have power to register a First Information Report (FIR) with the police alleging adultery; since 1 December 2006 any such complaint must be presented to a court which will require sufficient grounds to be shown for any charges to proceed. A senior police officer has to conduct the investigation. Offences of adultery (both zina liable to hadd and zina liable to tazir) have been made bailable. However, Pakistan remains a heavily patriarchal society and levels of domestic violence continue to be high.
Whether a woman on return faces a real risk of an honour killing will depend on the particular circumstances; however, in general such a risk is likely to be confined to tribal areas such as the North West Frontier Province (NWFP) and is unlikely to impact on married women.
Pakistan law still favours the father in disputes over custody but there are signs that the courts are taking a more pragmatic approach based on the best interests of the child.
The guidance given in SN and HM (Divorced women – risk on return) Pakistan CG [2004] UKIAT 00283 and FS (Domestic violence – SN and HM – OGN) Pakistan CG [2006] UKIAT 00023 remains valid. The network of women’s shelters (comprising government-run shelters (Darul Amans) and private and Islamic women’s crisis centres) in general affords effective protection for women victims of domestic violence, although there are significant shortcomings in the level of services and treatment of inmates in some such centres. Women with boys over 5 face separation from their sons.
In assessing whether women victims of domestic violence have a viable internal relocation alternative, regard must be had not only to the availability of such shelters/centres but also to the situation women will face after they leave such centres.

Judges:

Stadlen J

Citations:

[2010] UKUT 216 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 February 2022; Ref: scu.420960

UTIAC 1. There is a wide variation in attitudes towards women in different parts of the Ivory Coast. In particular there is a strong contrast between traditional rural communities, particularly in the North and Central regions when compared with Abidjan, a relatively cosmopolitan city of mixed ethnicity, along with other urban centres.
2. This variation in attitude impacts on the risk faced by women of FGM, forced marriage, domestic violence, the effects of adultery and discrimination.
If in a particular area, a woman faces one or more of those risks, the state is unlikely to offer a sufficiency of protection. In such a case internal relocation may be possible without undue hardship.
In the Ivory Coast, women as such do form a particular social group for the purposes of the Refugee Convention. Whether an individual applicant is at risk of persecution by reason of membership of that particular social group will depend on her own particular circumstances including her cultural, social and tribal or regional background.
5. Operational Guidance Notes should not be regarded as country information. They are not produced by the Country of Information Service. They are, in essence, policy statements and as such fall into a different category.

Judges:

Goldstein J

Citations:

[2010] UKUT 215 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 06 February 2022; Ref: scu.420961

Citations:

[2004] UKIAT 00018

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 February 2022; Ref: scu.193544

Citations:

[2003] UKIAT 00008

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 February 2022; Ref: scu.192399

Changes to the rules governing the Highly Skilled Migrant Programme.

Judges:

Mr John Howell QC
Sitting as a Deputy High Court Judge

Citations:

[2012] EWHC 2100 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 February 2022; Ref: scu.463107

Citations:

[2017] EWHC 358 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 03 February 2022; Ref: scu.577299

Citations:

[2003] UKIAT 00183

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 03 February 2022; Ref: scu.221075

Renewed application for permission to apply for judicial review.

Citations:

[2018] EWCA Civ 3044

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 03 February 2022; Ref: scu.654588

Judges:

The Honourable Mrs Justice Steyn DBE

Citations:

[2022] EWHC 56 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 02 February 2022; Ref: scu.671229

General application of country guidance

Country guidance: OLF members and sympathisers (supporters)
(1) MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 00030 still accurately reflects the situation facing members and supporters of the OLF if returned to Ethiopia. However, in material respects, it is appropriate to clarify the existing guidance.
(2) OLF members and supporters and those specifically perceived by the authorities to be such members or supporters will in general be at real risk if they have been previously arrested or detained on suspicion of OLF involvement.
(3) Those who have a significant history, known to the authorities, of OLF membership or support, or are perceived by the authorities to have such significant history will in general be at real risk of persecution by the authorities.
(4) ‘Significant’ should not be read as denoting a very high level of involvement or support. Rather, it relates to suspicion being established that a person is perceived by the authorities as possessing an anti-government agenda. This is a fact sensitive assessment.
(5) Whether persons are to be excluded from recognition as refugees or from the grant of humanitarian protection by reason of armed activities may need to be addressed in particular cases.
1. General application of country guidance
(1) The treatment of country guidance as a presumption of fact means that it will be for the parties seeking to persuade the Tribunal to depart from it to adduce the evidence justifying that departure.
(2) An assessment as to whether to depart from a CG decision is to be undertaken as to: (i) whether material circumstances have changed; and (ii) whether such changes are well established evidentially and durable.
(3) The law, and the principle, are not affected by the age of the CG decision. It may be that as time goes on, evidence will become available that makes it more likely that departure from the decision will be justified. But the process remains the same, and unless in the individual case the departure is shown to be justified, the guidance contained in the CG decision must, as a matter of law, be adopted.
(4) If the parties fail to abide by their general duty in respect of identifying extant country guidance, it remains for the Tribunal to consider such guidance and to follow it.
(5) Any failure by the Tribunal to apply a CG decision unless there is good reason, explicitly stated, for not doing so might constitute an error of law in that a material consideration has been ignored or legally inadequate reasons for the decision have been given.
(6) A party that before the First-tier Tribunal has failed to address extant country guidance or has failed to demonstrate proper grounds for departure from it is unlikely to have a good ground of appeal against a decision founded on the guidance.

Judges:

Mr C M G Ockelton, Vice President

Upper Tribunal Judge Bruce

Upper Tribunal Judge O’Callaghan

Citations:

[2022] UKUT 1 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 02 February 2022; Ref: scu.671710

Judges:

Burnett J

Citations:

[2010] EWHC 684 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.406631

Citations:

[2003] UKIAT 00185

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.221073

Appeal from refusal of British nationality applications.

Judges:

Swift J

Citations:

[2020] EWHC 2867 (Admin)

Links:

Bailii

Statutes:

Special Immigration Appeals Commission Act 1997 2D

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.655212

Indefinite Leave to remain entitlement

Judges:

Lord Justice Underhill

Citations:

[2020] EWCA Civ 1357

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.655049

(1) By virtue of schedule 2(1) of the Immigration (EEA) Regulations 2016 (‘the 2016 Regs’) a ‘new matter’ in section 85(6) of the Nationality, Immigration and Asylum Act 2002 includes not only a ground of appeal of a kind listed in section 84 but also an EEA ground of appeal.
(2) The effect of the transitory and transitional provisions at schedules 5 and 6 of the 2016 Regs is as follows:
(a) All decisions made on or after 1 February 2017 are to be treated as having been made under the 2016 Regs, whatever the date of the application;
(b) Regulation 9 of the 2016 Regs applies (through the medium of the transitory provisions) to all decisions made on or after 25 November 2016 whatever the date of the application;
(c) In all other respects the Immigration (EEA) Regulations 2006 apply if (i) the application was made before 25 November 2016 and (ii) the decision was made before 1 February 2017.

Citations:

[2018] UKUT 385 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633771

(1 ) The Isle of Man and the Channel Islands are not part of the United Kingdom and have only a very limited legal relationship with the European Union.
(2) An EU national who works on the Isle of Man is not thereby exercising EU rights of free movement for the purposes of the Immigration (EEA) Regulations 2006.

Citations:

[2019] UKUT 12 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633776

In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing.
If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175 is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision.
If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal.
In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time.

Citations:

[2019] UKUT 13 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633763

The Secretary of State is not entitled to cease a person’s refugee status pursuant to Article 1C(5) of the Refugee Convention solely on the basis of a change in circumstances in one part of the country of proposed return.

Citations:

[2018] UKUT 196 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628719

Human rights appeals
(1) In a human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002, a finding that a person (P) satisfies the requirements of a particular immigration rule, so as to be entitled to leave to remain, means that (provided Article 8 of the ECHR is engaged), the Secretary of State will not be able to point to the importance of maintaining immigration controls as a factor weighing in favour of the Secretary of State in the proportionality balance, so far as that factor relates to the particular immigration rule that the judge has found to be satisfied.
(2) The fact that P completes ten years’ continuous lawful residence during the course of P’s human rights appeal will generally constitute a ‘new matter’ within the meaning of section 85 of the 2002 Act. The completion of ten years’ residence will normally have a material bearing on the sole ground of appeal that can be advanced in a human rights appeal; namely, whether the decision of the Secretary of State to refuse P’s human rights claim is unlawful under section 6 of the Human Rights Act 1998. This is because paragraph 276B of the Immigration Rules provides that a person with such a period of residence is entitled to indefinite leave to remain in the United Kingdom, so long as the other requirements of that paragraph are met.
(3) Where the judge concludes that the ten years’ requirement is satisfied and there is nothing to indicate an application for indefinite leave to remain by P would be likely to be rejected by the Secretary of State, the judge should allow P’s human rights appeal, unless the judge is satisfied there is a discrete public interest factor which would still make P’s removal proportionate. Absent such factors, it would be disproportionate to remove P or require P to leave the United Kingdom before P is reasonably able to make an application for indefinite leave to remain.
(4) Leaving aside whether P has any other Article 8 argument to deploy (besides paragraph 276B) and in the absence of any policy to give successful human rights appellants a particular period of limited leave, all the Secretary of State is required to do in such a case is grant P a period of leave sufficient to enable P to make the application for indefinite leave to remain. If P subsequently fails to make such an application, P will continue to be subject to such limited leave as the Secretary of State has granted in consequence of the allowing of the human rights appeal.
Statements of additional grounds
(5) A statement of additional grounds for the purposes of section 120 of the 2002 Act must be made in writing.

Citations:

[2019] UKUT 65 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633762

(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.
(2) Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.
(3) Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.
(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.
(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those ‘other factors’ will include the matters identified in paragraphs (6)-(9) below.
(6) A period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.
(7) Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.
(8) Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.
(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.
(10) The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.

Citations:

[2018] UKUT 430 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633777

(1) Article 9 provides:
Where the applicant has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.
The phrase ‘who has been allowed to reside as a beneficiary of international protection’ in Article 9 of Dublin III is in effect the same as the phrase formerly used in paragraph 352D of the Immigration Rules and following ZN (Afghanistan) [2010] UKSC 21 at [35]. Acquisition of British citizenship by a family member does not alter the fact that he was in receipt of international protection and so article 9 would still apply.
2) Article 17.2 of Dublin III does not set any specific criteria, but the Dublin Regulations themselves and the CFR provided the general parameters within which decisions must be taken, albeit that the general provisions set out in articles 21 and 22 do not apply. There is, we accept, a wide discretion available to the respondent under the article, but it is not untrammelled, it is for the respondent to consider an application made under article 17.2 through the lens of article 7 CFR and/or article 8 ECHR, taking account also of the best interests of a child. That approach is consistent with the normative provisions in article 16 that where there are issues of dependency within a family life context, the family should be brought together.
(3) The decision impugned in this case was one arising from the exercise of a discretion conferred on the respondent. On that basis, and following Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997, a court should not compel any authority to do more than consider the exercise of a power which is merely permissive and does not impose an obligation to act.

Citations:

[2018] UKUT 297 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628720

1. The Upper Tribunal considered applications under rule 43 made consequent on the judgment in R (JCWI) v President of UT (IAC) [2020] EWHC 3103 (Admin) (‘the JCWI judgment’) which had concluded that guidance set out in a Presidential Guidance Note dated 23 March 2020 on the determination of error of law appeals without a hearing was unlawful.
2. A rule 43 application can be made notwithstanding that an appeal has been retained for remaking in the Upper Tribunal but has not yet been remade. The fact that an application for permission to appeal has been made and/or determined, whether by the Upper Tribunal or the Court of Appeal does not give rise to any jurisdictional bar to a rule 43 application.
3. Subject to any matters arising from the circumstances of a particular case, an Upper Tribunal Judge may determine an application under rule 43 to set aside her own decision without offending the rule against apparent bias
4. The Upper Tribunal rejected the submission that the consequence of the JCWI judgment was that every rule 34 decision to proceed without a hearing taken following the issue of the Presidential Guidance Note amounted to a procedural irregularity. A decision made under rule 34 to determine an error of law appeal without a hearing would amount to a procedural irregularity for the purposes of rule 43 if the rule 34 decision rested on an error of law. Whether or not a relevant procedural irregularity occurred must depend on scrutiny of each rule 34 decision, and the reasons given for it. The question is whether the decision that it would be fair to determine the appeal in issue without a hearing was wrong in law.
5. The Upper Tribunal gave guidance on matters likely to be relevant or irrelevant to the decision on any rule 43 application made consequent on the JCWI judgment.
6. Where a procedural irregularity is established, it is necessary, pursuant to rule 43, to consider whether the interests of justice require the decision to be set aside. In cases such as the present ones where the conclusion is that the rule 34 decision rested on an error of law, the interests of justice will require that the error of law decision be set aside save where it is beyond argument that the outcome would be the same if the error of law appeal were to be reheard.

Citations:

[2021] UKUT 233 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.668140

For the purposes of applying to para 399A of the Rules and s. 117C of the 2002 Act a definition of ‘lawfully resident’ analogous to that in para 276A (as mandated by SC (Jamaica)), the invalidation provisions of s. 5(1) of the 1971 Act are to be ignored.

Citations:

[2018] UKUT 199 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628725

(1) Before it has re-made the decision in an appeal, pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal has jurisdiction to depart from, or vary, its decision that the First-tier Tribunal made an error of law, such that the First-tier Tribunal’s decision should be set aside under section 12(2)(a).
(2) As Practice Direction 3.7 indicates, that jurisdiction will, however, be exercised only in very exceptional cases. This will be so, whether or not the same constitution of the Upper Tribunal that made the error of law decision is re-making the decision in the appeal.
(3) Permission to appeal to the Upper Tribunal should be granted on a ground that was not advanced by an applicant for permission, only if:
(a) the judge is satisfied that the ground he or she has identified is one which has a strong prospect of success:
(i) for the original appellant; or
(ii) for the Secretary of State, where the ground relates to a decision which, if undisturbed, would breach the United Kingdom’s international Treaty obligations; or
(b) (possibly) the ground relates to an issue of general importance, which the Upper Tribunal needs to address.

Citations:

[2018] UKUT 245 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628731

In considering whether the delay in determining a person’s (‘P) asylum application is unlawful all the circumstances must be considered in the round including, inter alia: length of delay; whether P was a minor at the date of his application; whether P continues to be a minor; if a minor, P’s best interests; the complexities of the claim; the explanation provided by the SSHD and resource allocation; compliance with timeframes provided; the impact of delay on P.

Citations:

[2018] UKUT 299 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628736

(1) The validity of an application for leave to remain is to be determined with reference to the law in force at the time that it is made or purportedly made.

(2) An application which was invalid according to the law in force at the relevant time cannot be rendered valid by a subsequent change in the law.

(3) There must be adherence to proper standards of appellate advocacy in the Upper Tribunal. In the absence of a formal and timeous application to vary the grounds, professional advocates must expect to be confined to the grounds upon which permission was granted.

(4) When permission to appeal to the Upper Tribunal is granted following a successful application to the Administrative Court under CPR 54.7A (‘a Cart JR’), permission is granted by reference to the grounds to the Upper Tribunal, not the grounds to the Administrative Court: Shah [2018] UKUT 51 (IAC); [2018] Imm AR 707.

Citations:

[2019] UKUT 354 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.644459

For the purposes of determining retained rights of residence, in regulation 10(6)(a) of both the Immigration (European Economic Area) Regulations 2006 and the Immigration (European Economic Area) Regulations 2016, the reference to a worker includes a jobseeker.

Citations:

[2018] UKUT 275 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628732

In cases in which there is no ‘Conclusive Grounds’ decision:
(i) I f a person (‘P’) claims that the fact of being trafficked in the past or a victim of modern slavery gives rise to a real risk of persecution in the home country and/or being re-trafficked or subjected to modern slavery in the home country and/or that it has had such an impact upon P that removal would be in breach of protected human rights, it will be for P to establish the relevant facts to the appropriate (lower) standard of proof and the judge should made findings of fact on such evidence.
(ii) If P does not advance any such claim in the statutory appeal but adduces evidence of being trafficked or subjected to modern slavery in the past, it will be a question of fact in each case (the burden being on P to the lower standard of proof) whether the Secretary of State’s duty to provide reparation, renders P’s removal in breach of the protected human rights.

Citations:

[2018] UKUT 200 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628723

An appeal under s 82(1)(c) is an appeal against revocation of the basis upon which the leave referred to in s 82(2)(c) was granted.
The only allowable ground under s 84(3)(a) is by reference to the Refugee Convention, and by s 86(2)(a) that matter must therefore be determined in all cases.
Where s 72(10) applies, however, the appeal must be dismissed even if the ground is made out.

Citations:

[2018] UKUT 244 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628727

It appears that paragraph 339C of the Immigration Rules does not correctly transpose the relevant provisions of the Qualification Directive.

Citations:

[2018] UKUT 387 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633767

1. In an Upper Tribunal error of law decision that remits an appeal to the First-Tier Tribunal, a clear indication should be given if the appeal is to be re-made de novo. If that is not the case, the error of law decision should set out clearly the issues which require re-making and any preserved findings of particular relevance to the re-making of the appeal.
2. As set out in BW (witness statements by advocates) Afghanistan [2014] UKUT 568 (IAC) at paragraph (v) of the headnote of that case: ‘(v) Where an advocate makes a witness statement in the circumstances outlined above, a change of advocate may be necessary, since the roles of advocate and witness are distinct, separated by a bright luminous line. An advocate must never assume the role of witness.’
3. As stated in paragraph 44 of R (on the application of RK) v Secretary of State for the Home Department (Section 117B(6): ‘parental relationship’) IJR [2016] UKUT 31 (IAC), if a non-biological parent (‘third party’) caring for a child claims to be a step-parent, the existence of such a relationship will depend upon all the circumstances including whether or not there are others (usually the biologically parents) who have such a relationship with the child also. It is unlikely that a person will be able to establish they have taken on the role of a parent when the biological parents continue to be involved in the child’s life as the child’s parents .

Citations:

[2018] UKUT 298 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628735

(1) In Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345, the Court of Appeal has authoritatively decided that refugee status can be revoked on the basis that the refugee now has the ability to relocate internally within the country of their nationality or former habitual residence. The authoritative status of the Court of Appeal’s judgments in MS (Somalia ) is not affected by the fact that counsel for MS conceded that internal relocation could in principle lead to cessation of refugee status. There is also nothing in the House of Lords’ opinions in R (Hoxha) v Special Adjudicator and Another [2005] UKHL 19 that compels a contrary conclusion to that reached by the Court of Appeal.
(2) The conclusion of the Court of Appeal in Secretary of State for the Home Department v Said [2016] EWCA Civ 442 was that the country guidance in MOJ and Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) did not include any finding that a person who finds themselves in an IDP camp is thereby likely to face Article 3 ECHR harm (having regard to the high threshold established by D v United Kingdom (1997) 24 EHRR 43 and N v United Kingdom (2008) 47 EHRR 39). Although that conclusion may have been obiter, it was confirmed by Hamblen LJ in MS (Somalia ). There is nothing in the country guidance in AA and Others (conflict; humanitarian crisis; returnees; FGM) Somalia [2011] UKUT 445 (IAC) that requires a different view to be taken of the position of such a person. It will be an error of law for a judge to refuse to follow the Court of Appeal’s conclusion on this issue.

Citations:

[2019] UKUT 358 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.644463

(1) The fact that an application for permission to appeal involves the assertion that a person’s removal from the United Kingdom would violate his or her human rights does not, without more, engage that part of the second appeal criteria, which allows permission to appeal (or permission for a ‘Cart’ judicial review) to be granted, on the basis that removal constitutes a ‘compelling reason’ for the appeal to be heard. If the position were otherwise, the second appeal criteria would lose their function as a restriction on the power to grant permission to appeal in immigration cases.
(2) Before concluding that submissions regarding the positive contribution made by an individual fall to be taken into account, for the purposes of Article 8(2) of the ECHR, as diminishing the importance to be given to immigration controls, a judge must be satisfied that the contribution is very significant. In practice, this is likely to arise only where the matter is one over which there can be no real disagreement. One touchstone for determining this is to ask whether the removal of the person concerned would lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it.
(3) The fact that a person makes a substantial contribution to the United Kingdom economy cannot, without more, constitute a factor that diminishes the importance to be given to immigration controls, when determining the Article 8 position of that person or a member of his or her family.
(4) If judicial restraint is not properly maintained in this area, there is a danger that the public’s perception of human rights law will be significantly damaged.

Citations:

[2018] UKUT 336 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628740

(1) Where P is the respondent to the Secretary of State’s appeal in the Upper Tribunal against the decision of the First-tier Tribunal to allow P’s appeal, P cannot give notice under rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 so as to withdraw his appeal, since P has no appeal in the Upper Tribunal. In such a situation, the giving of notice under rule 17 to withdraw P’s case will, if the Upper Tribunal gives consent, have the effect of leaving the Secretary of State’s appeal to the Upper Tribunal unopposed and therefore may well lead to a reasoned decision from the Upper Tribunal, setting aside the decision of the First-tier Tribunal.
(2) If an application by a party for permission to appeal against a decision of the First-tier Tribunal has been granted by that Tribunal, but the application was made late and time was not extended by the granting judge, the other party may raise the timeliness issue before the Upper Tribunal, as described in Samir (FtT permission to appeal: time) [2013] UKUT 3 (IAC), provided the Upper Tribunal has not reached a substantive decision. The issue may not, however, be raised after the Upper Tribunal has reached such a decision. Rule 6 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 means that the grant of permission by the First-tier Tribunal is to be treated as valid, notwithstanding the procedural irregularity, with the result that the ensuing decision of the Upper Tribunal is, likewise, valid.
(3) If a party intends to rely before the Tribunal on material emanating from proceedings in the Family Court, that party must ensure that the material can be disclosed, without any breach of restrictions on the disclosure of such material. Failure to do so may amount to contempt of the Family Court. Judges in the Immigration and Asylum jurisdiction must be alert to this issue.

Citations:

[2019] UKUT 357 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.644458

(1) In determining whether the absence of adequate provision for the childcare of the child of a Union citizen may be a factor capable of discouraging that Union citizen from effectively exercising his or her free movement rights under Article 45 TFEU, the Tribunal will need to undertake a wide evaluative assessment of the particular childcare needs in light of all relevant circumstances.
(2) It is necessary for an appellant claiming to have a derivative right of residence under Article 45 TFEU to establish a causal link between the absence of adequate childcare and the interference with the effective exercise by a Union citizen of his or her free movement rights, and the appellant will need to demonstrate, by the provision of reliable evidence, that genuine and reasonable steps have been taken to obtain alternative childcare provision.

Citations:

[2018] UKUT 426 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633770

(1) If, on appeal, an issue arises as to whether the removal of a person (P) from the United Kingdom would be unlawful because P is a British citizen, the tribunal deciding the appeal must make a finding on P’s citizenship; just as the tribunal must do so where the consideration of the public interest question in Part 5A of the Nationality, Immigration and Asylum Act 2002 involves finding whether another person falls within the definition of a ‘qualifying child’ or ‘qualifying partner’ by reason of being a British citizen
(2) The fact that P might, in the past, have had a good case to be registered as a British citizen has no material bearing on the striking of the proportionality balance under Article 8(2) of the ECHR. The key factor is not whether P had a good chance of becoming a British citizen, on application, at some previous time but is, rather, the nature and extent of P’s life in the United Kingdom.
(3) If P is prevented by regulation 37 of the Immigration (European Economic Area) Regulations 2016 from initiating an appeal under those Regulations whilst P is in the United Kingdom, it would defeat the legislative purpose in enacting regulation 37 if P were able, through the medium of a human rights appeal brought within the United Kingdom, to advance the very challenge to the decision taken under the Regulations, which Parliament has ordained can be initiated only from abroad.
(4) In considering the public interest question in Part 5A of the 2002 Act, if P is an EEA national (or family member of an EEA national) who has no basis under the 2016 Regulations or EU law for being in the United Kingdom, P requires leave to enter or remain under the Immigration Act 1971. If P does not have such leave, P will be in the United Kingdom unlawfully for the purpose of section 117B(4) of the 2002 Act during the period in question and, likewise, will not be lawfully resident during that period for the purpose of section 117C(4)(a).
(5) The modest degree of flexibility contained in section 117A(2) of the 2002 Act, recognised by the Supreme Court in Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58, means that, depending on the facts, P may nevertheless fall to be treated as lawfully in the United Kingdom for the purpose of those provisions, during the time that P was an EU child in the United Kingdom; as in the present case, where P was under the control of his parents; was able to attend school and college without questions being asked as to P’s status; and where no action was taken or even contemplated by the respondent in respect of P or his EU mother.

Citations:

[2019] UKUT 356 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.644462

If a parent (‘P’) is unable to demonstrate he / she has been taking an active role in a child’s upbringing for the purposes of E-LTRPT.2.4 of the Immigration Rules, P may still be able to demonstrate a genuine and subsisting parental relationship with a qualifying child for the purposes of section 117B(6) of the Nationality Immigration and Asylum Act 2002 (‘the 2002 Act’). The determination of both matters turns on the particular facts of the case.
The question of whether it would not be reasonable to expect a child to leave the United Kingdom (‘UK’) in section 117B(6) of the 2002 Act does not necessarily require a consideration of whether the child will in fact or practice leave the UK. Rather, it poses a straightforward question: would it be reasonable ‘to expect’ the child to leave the UK?

Citations:

[2018] UKUT 334 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628739

1. Following the amendment to s 82 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD [2013] EWCA Civ 1469 and SSHD v MS (Pakistan) [2018] EWCA Civ 594.
2. The correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof.
3. Since 20 October 2014, there is also no right of appeal on the basis that a decision is not in accordance with the law and the grounds of appeal are limited to those set out in the amended s 82 of the 2002 Act.

Citations:

[2018] UKUT 335 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628737

The Belfast (or Good Friday) Agreement did not amend the law of British citizenship, as contained in the British Nationality Act 1981

Citations:

[2019] UKUT 355 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.644460

(1) The compelling reasons proviso in article 1C(5) of the 1951 Refugee Convention, as amended, applies in the UK only to refugees under article 1A(1) of the Convention.
(2) Changes in a refugee’s country of origin affecting only part of the country may, in principle, lead to cessation of refugee status, albeit it is difficult to see how in practice protection could be said to be sufficiently fundamental and durable in such circumstances.
(3) The SSHD’s guidance regarding the role of past persecution can not in itself form a lawful basis for finding that removal would lead to a breach of the Refugee Convention, given the limited appeal rights at section 82 of the Nationality, Immigration and Asylum Act 2002, as amended and SF and others (Guidance – post-2014 Act) Albania [2017] UKUT 120 (IAC) 10 when read in its proper context.

Citations:

[2019] UKUT 11 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633773

If an appellant relies upon criteria that relate to a different category of the Immigration Rules to make good his Article 8 claim from that relied upon in his application for LTR on human rights grounds or in his s.120 statement such that a new judgment falls to be made as to whether or not he satisfies the Immigration Rules, this constitutes a ‘new matter’ within the meaning of s.85(6) of the Nationality, Immigration and Asylum Act 2002 which requires the Secretary of State’s consent even if the facts specific to his own case (for example, as to accommodation, maintenance etc) remain the same.

Citations:

[2019] UKUT 67 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633764

Section C of Country Guidance annexed to the Court of Appeal’s decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440; [2017] EWCA Civ 944 is supplemented with the following guidance:
1. Whilst it remains possible for an Iraqi national returnee (P) to obtain a new CSID whether P is able to do so, or do so within a reasonable time frame, will depend on the individual circumstances. Factors to be considered include:
i) Whether P has any other form of documentation, or information about the location of his entry in the civil register. An INC, passport, birth/marriage certificates or an expired CSID would all be of substantial assistance. For someone in possession of one or more of these documents the process should be straightforward. A laissez-passer should not be counted for these purposes: these can be issued without any other form of ID being available, are not of any assistance in ‘tracing back’ to the family record and are confiscated upon arrival at Baghdad;
ii) The location of the relevant civil registry office. If it is in an area held, or formerly held, by ISIL, is it operational?
iii) Are there male family members who would be able and willing to attend the civil registry with P? Because the registration system is patrilineal it will be relevant to consider whether the relative is from the mother or father’s side. A maternal uncle in possession of his CSID would be able to assist in locating the original place of registration of the individual’s mother, and from there the trail would need to be followed to the place that her records were transferred upon marriage. It must also be borne in mind that a significant number of IDPs in Iraq are themselves undocumented; if that is the case it is unlikely that they could be of assistance. A woman without a male relative to assist with the process of redocumentation would face very significant obstacles in that officials may refuse to deal with her case at all.
Section E of Country Guidance annexed to the Court of Appeal’s decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440; [2017] EWCA Civ 944 is replaced with the following guidance:
2. There are currently no international flights to the Iraqi Kurdish Region (IKR). All returns from the United Kingdom are to Baghdad.
3. For an Iraqi national returnee (P) of Kurdish origin in possession of a valid CSID or Iraqi passport, the journey from Baghdad to the IKR, whether by air or land, is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
4. P is unable to board a domestic flight between Baghdad and the IKR without either a CSID or a valid passport.
5. P will face considerable difficulty in making the journey between Baghdad and the IKR by land without a CSID or valid passport. There are numerous checkpoints en route, including two checkpoints in the immediate vicinity of the airport. If P has neither a CSID nor a valid passport there is a real risk of P being detained at a checkpoint until such time as the security personnel are able to verify P’s identity. It is not reasonable to require P to travel between Baghdad and IKR by land absent the ability of P to verify his identity at a checkpoint. This normally requires the attendance of a male family member and production of P’s identity documents but may also be achieved by calling upon ‘connections’ higher up in the chain of command.
6. Once at the IKR border (land or air) P would normally be granted entry to the territory. Subject to security screening, and registering presence with the local mukhtar, P would be permitted to enter and reside in the IKR with no further legal impediments or requirements. There is no sponsorship requirement for Kurds.
7. Whether P would be at particular risk of ill-treatment during the security screening process must be assessed on a case-by-case basis. Additional factors that may increase risk include: (i) coming from a family with a known association with ISIL, (ii) coming from an area associated with ISIL and (iii) being a single male of fighting age. P is likely to be able to evidence the fact of recent arrival from the UK, which would dispel any suggestion of having arrived directly from ISIL territory.
8. If P has family members living in the IKR cultural norms would require that family to accommodate P. In such circumstances P would, in general, have sufficient assistance from the family so as to lead a ‘relatively normal life’, which would not be unduly harsh. It is nevertheless important for decision-makers to determine the extent of any assistance likely to be provided by P’s family on a case by case basis.
9. For those without the assistance of family in the IKR the accommodation options are limited:
(i) Absent special circumstances it is not reasonably likely that P will be able to gain access to one of the refugee camps in the IKR; these camps are already extremely overcrowded and are closed to newcomers. 64% of IDPs are accommodated in private settings with the vast majority living with family members;
(ii) If P cannot live with a family member, apartments in a modern block in a new neighbourhood are available for rent at a cost of between $300 and $400 per month;
(iii) P could resort to a ‘critical shelter arrangement’, living in an unfinished or abandoned structure, makeshift shelter, tent, mosque, church or squatting in a government building. It would be unduly harsh to require P to relocate to the IKR if P will live in a critical housing shelter without access to basic necessities such as food, clean water and clothing;
(iv) In considering whether P would be able to access basic necessities, account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give P access to pounds 1500. Consideration should also be given to whether P can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or by being able to access PDS rations.
10. Whether P is able to secure employment must be assessed on a case-by-case basis taking the following matters into account:
(i) Gender. Lone women are very unlikely to be able to secure legitimate employment;
(ii) The unemployment rate for Iraqi IDPs living in the IKR is 70%;
(iii) P cannot work without a CSID;
(iv) Patronage and nepotism continue to be important factors in securing employment. A returnee with family connections to the region will have a significant advantage in that he would ordinarily be able to call upon those contacts to make introductions to prospective employers and to vouch for him;
(v) Skills, education and experience. Unskilled workers are at the greatest disadvantage, with the decline in the construction industry reducing the number of labouring jobs available;
(vi) If P is from an area with a marked association with ISIL, that may deter prospective employers.

Citations:

[2018] UKUT 212 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628726

(1) An ‘extended family member’ (‘EFM’) of an EEA national exercising Treaty rights in the UK (such as a person in a durable relationship) has no right to reside in the UK under the Immigration (EEA) Regulations until he or she is issued with the relevant residence documentation under reg 17(4) of the 2006 Regulations (now reg 18(4) of the 2016 Regulations).
(2) Following Macastena v SSHD [2018] EWCA Civ 1558 , it is clear that it is not possible to aggregate time spent in a durable relationship before the grant of a residence document with time spent after a residence document is issued, for the purpose of the calculating residence in accordance with the Regulations.

(3) Once such a document is issued however, then the EFM is ‘treated as a family member’ of the EEA national and may then have a right to reside under the Regulations (reg 7(3)).
(4) Consequently, a person in a ‘durable relationship’ with an EEA national can only be said to be residing in the UK ‘in accordance with’ the Regulations once a residence document is issued. Only periods of residence following the issue of the documentation can, therefore, count towards establishing a ‘permanent right of residence;’ under reg 15 based upon 5 years’ continuous residence ‘in accordance with’ the Regulations.
(5) The scheme of the 2006 and 2016 Regulations in respect of EFMs is consistent with the Citizens’ Directive (Directive 2004/38/EC). The Directive does not confer a right of residence on an individual falling within Art 3.2 including a person in a ‘durable relationship, duly attested’ with an EU national but only imposes an obligation to ‘facilitate entry and residence’ following the undertaking of an ‘extensive examination of the personal circumstances’ of individuals falling within Art 3.2.

Citations:

[2019] UKUT 63 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633759

Paragraph 398 of the Rules includes not only foreign criminals as defined in the 2002 Act and the 2007 Act but also other individuals who in the view of the Secretary of State, are liable to deportation because of their criminality and/or their offending behaviour.

Citations:

[2018] UKUT 198 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628722

1. Respondent’s inquiries in country of origin of applicant for international protection

(1) There is no general legal requirement on the Secretary of State to obtain the consent of an applicant for international protection before making an inquiry about the applicant in the applicant’s country of origin. The decision in VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 368 (IAC) is not to be read as holding to the contrary.

(2) The United Kingdom’s actual legal obligations in this area are contained in Article 22 of the Procedures Directive (2005/85/EC), as given effect in paragraph 339IA of the Immigration Rules. So far as obtaining information is concerned, these provisions prohibit making such an inquiry in a manner that would result in alleged actors of persecution being directly informed of the fact that that an application for international protection has been made, which would jeopardise the applicant’s (or his family’s) physical integrity, liberty or security.

(3) If information is obtained in a way that has such an effect, the fact that the applicant may have given consent will not affect the fact that there is a breach of Article 22.

2. Allegations of judicial bias

(1) An allegation of bias against a judge is a serious matter and the appellate court or tribunal will expect all proper steps to be taken by the person making it, in the light of a response from the judge.
(2) The views of an appellant who cannot speak English and who has had no prior experience of an appeal hearing are unlikely to be of assistance, insofar as they concern verbal exchanges between the judge and representatives at the hearing of the appeal. In particular, the fact that the judge had more questions for the appellant’s counsel than for the respondent’s presenting officer has no bearing on whether the judge was biased against the appellant.
(3) It is wholly inappropriate for an official interpreter to have his or her private conversations with an appellant put forward as evidence.
(4) As a general matter, if Counsel concludes during a hearing that a judge is behaving in an inappropriate manner, Counsel has a duty to raise this with the judge.
(5) Although each case will turn on its own facts, an appellate court or tribunal may have regard to the fact that a complaint of this kind was not made at the hearing or, at least, before receipt of the judge’s decision.
(6) Allegations relating to what occurred at a hearing would be resolved far more easily if hearings in the First-tier Tribunal were officially recorded.

Citations:

[2018] UKUT 337 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628738

(i) A legal requirement for conscription and a mechanism for the prosecution or punishment of a person refusing to undertake military service is not sufficient to entitle that person to refugee protection if there is no real risk that the person will be subjected to prosecution or punishment.

(ii) A person will only be entitled to refugee protection if there is a real risk that the prosecution or punishment they face for refusing to perform military service in a conflict that may associate them with acts that are contrary to basic rules of human conduct reaches a minimum threshold of severity.

(iii) VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 79 (IAC) did not consider whether the Ukrainian conflict involved acts contrary to basic rules of human conduct.

Citations:

[2018] UKUT 241 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.628724

(1) Where the decision of the Upper Tribunal to refuse permission to appeal against the decision of the First-tier Tribunal is quashed by the High Court, following the grant of permission in a ‘Cart’ judicial review under CPR 54.7A, the Upper Tribunal’s ability to grant permission to appeal without a hearing depends upon the Upper Tribunal being able to understand, from the High Court’s grant of permission in the judicial review, what led the Court to conclude that the requirements of CPR 54.7A(7) were satisfied.
(2) If the Upper Tribunal lists an application for permission to appeal for an oral hearing, following the quashing of a refusal to grant such permission, the appellant will need to ensure that the Upper Tribunal and the respondent have all the relevant materials in connection with the ‘Cart’ judicial review, which may bear on the issue of whether permission to appeal should now be granted.
(3) This will be particularly important where the case for the appellant has materially changed from what it was when the Upper Tribunal received the application for permission to appeal. In such a scenario, the Upper Tribunal will be unable to discern the potential point at issue merely by revisiting the original grounds of application for permission to appeal.
(4) The requirement in CPR 54.7A, that there must be shown to be something arguably legally wrong with the way in which the Upper Tribunal reached its decision in response to the grounds of application that were before it, is important. If it is not observed, there is a serious risk of a ‘Cart’ judicial review being seen as a third opportunity for an appellant to perfect grounds of challenge to the First-tier Tribunal’s decision, when Parliament has ordained that there should be no more than two.

Citations:

[2019] UKUT 353 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.644461

(1) An appellate tribunal will usually be slow to overturn a judge’s decision on the basis of alleged errors in, or other problems with, interpretation at the hearing before that judge (Perera v Secretary of State for the Home Department [2004] EWCA Civ 1002). Weight will be given to the judge’s own assessment of whether the interpreter and the appellant or witness understood each other.
(2) Such an assessment by the judge should normally be undertaken at the outset of the hearing by the judge (a) putting questions to the appellant/witness and (b) considering the replies. Although he or she may not be able to speak the language of the appellant/witness, an experienced judge will usually be able to detect difficulties; for example, an unexpected or vague reply to a specific question that lies within the area of knowledge of the appellant/witness or a suspiciously terse translation of what has plainly been a much longer reply given to the interpreter by the appellant/witness. Non-verbal reactions may also be factored into the judge’s overall assessment.
(3) Where an issue regarding interpretation arises at the hearing, the matter should be raised with the judge at the hearing so that it can be addressed there and then. Even if the representatives do not do so, the judge should act on his or her own initiative, if satisfied that an issue concerning interpretation needs to be addressed.
(4) In many cases, the issue will be capable of swift resolution, with the judge relying upon the duty of the parties under rule 2(4) of the Procedure Rules of both of the Immigration and Asylum Chambers to help the Tribunal to further the overriding objective of dealing with the case fairly and justly.
(5) A challenge by a representative to the competence of a Tribunal-appointed interpreter must not be made lightly. If made, it is a matter for the judge to address, as an aspect of the judge’s overall duty to ensure a fair hearing. Amongst the matters to be considered will be whether the challenge appears to be motivated by a desire to have the hearing aborted, rather than by any genuine material concern over the standard of interpretation.
(6) It will be for the judge to decide whether a challenge to the quality of interpretation necessitates a check being made with a member of the Tribunal’s administrative staff who has responsibility for the booking of interpreters. Under the current arrangements for the provision of interpreters, it may be possible for appropriate enquiries to be made by the administrative staff of the Language Shop (a quality assurance service run by the London Borough of Newham in respect of the Ministry of Justice’s language contract), as to whether the interpreter is on the register and whether there is any current disclosable issue regarding the interpreter. The initiation of any such enquiries during a hearing is, however, a matter for the judge. In practice, it is unlikely that it would be necessary or appropriate to take such action. In most cases, if the standard of interpretation is such as seriously to raise an issue that needs investigating, the point will probably already have been reached where the hearing will have to be adjourned and re-heard by a different judge (using a different interpreter).
(8) On an appeal against a judge’s decision, even if it is established that there was or may have been inadequate interpretation at the hearing before the judge, the appeal will be unlikely to succeed if there is nothing to suggest the outcome was adversely affected by the inadequate interpretation. This will be the position where the judge has made adverse findings regarding the appellant, which do not depend on the oral evidence ( Perera , paragraphs 24 and 34).
(9) It is important that Tribunal-appointed interpreters are able to discharge their functions, to the best of their abilities. It is part of the judicial function to enable an interpreter to do this by, for instance, preventing a party or representative from behaving in an intimidating or oppressive way towards the interpreter. By the same token, the Tribunal and the parties are entitled to expect that the interpreter will interpret accurately, regardless of what he or she personally thinks of the evidence they are being required to translate.

Citations:

[2019] UKUT 352 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.644457

(1) It is essential for a judge who is granting permission to appeal only on limited grounds to say so, in terms, in the section of the standard form document that contains the decision, as opposed to the reasons for the decision.
(2) It is likely to be only in very exceptional circumstances that the Upper Tribunal will be persuaded to entertain a submission that a decision which, on its face, grants permission to appeal without express limitation is to be construed as anything other than a grant of permission on all of the grounds accompanying the application for permission, regardless of what might be said in the reasons for decision section of the document.

Citations:

[2018] UKUT 388 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.633775

Judges:

Mr Justice Chamberlain

Citations:

[2021] EWHC 1690 (Admin), [2021] WLR(D) 352

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.663451