The applicant seeks judicial review of the respondent’s decision of 22 July 2013 in which it was not accepted that further submissions made by the applicant amounted to a fresh claim.
[2014] UKUT 235 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.534246
(i) The burden of proving that a person represents a genuine, present and sufficiently threat affecting one of the fundamental interests of society under Regulation 21(5)(c) of the EEA Regulations rests on the Secretary of State.
(ii) The standard of proof is the balance of probabilities.
(iii) Membership of an organisation proscribed under the laws of a foreign country does not without more satisfy the aforementioned test.
(iv) The ‘Bouchereau’ exception is no longer good law: CS (Morocco) applied
[2017] UKUT 294 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.595807
Refusal of claim for asylum and humanitarian protection
[2018] UKAITUR PA083512016
England and Wales
Updated: 31 January 2022; Ref: scu.603059
Where judicial review proceedings are resolved by settlement, the parties are responsible for doing all they can to agree costs, both as to liability and amount, rather than leaving this to the decision of the Tribunal, which is likely to carry its own penalty.
[2017] UKUT 78 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.588790
Immigration Judicial Review
[2015] UKUT 94 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.547318
The Appellant claimed she feared her female children would be subjected to female genital mutilation if returned to Nigeria and also if she resisted this she would be killed by her husband’s family.
[2018] UKAITUR IA267712015
England and Wales
Updated: 31 January 2022; Ref: scu.603033
(i) An EEA national exercising Treaty rights in the United Kingdom is not ‘settled’ within the compass of section 1(1) of the British Nationality Act 1981 since such person’s lawful residence is conditional upon remaining economically active: Gal affirmed.
(ii) The statutory phrase ‘the immigration laws’ does not encompass the EU rules on free movement: Gal modified.
(iii) Being ordinarily resident in the United Kingdom does not confer the status of British nationality.
(iv) The dichotomy of persons lawfully present in the United Kingdom under (a) the EEA Regulations 2006 and (b) the Immigration Rules is reflected in paragraph 5 of the latter.
(v) The question of whether a person is ordinarily resident in the United Kingdom is one of fact and degree.
[2017] UKUT 162 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.588784
Application for judicial review of the respondent’s decision refusing to grant the applicant leave to remain in the United Kingdom.
[2016] UKUT 58 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.570457
[1] Rule 9 of the 2014 Rules operates in conjunction with section 29 of the Tribunals, Courts and Enforcement Act 2007.
[2] The only powers to award fees or costs available to the First-tier Tribunal (the ‘FtT’) are those contained in Rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the ‘2014 Rules’).
[3] Transitionally, Rule 9 of the 2014 Rules applies only to appeals coming into existence subsequent to the commencement date of 20 October 2014. It has no application to appeals predating this date.
[4] It is essential to be alert to the distinctions between the costs awarding powers contained in Rule 9(2)(a) and Rule 9(2)(b) of the 2014 Rules.
[5] Awards of costs are always discretionary, even in cases where the qualifying conditions are satisfied.
[6] In the ordinary course of events, where any of the offending types of conduct to which either Rule 9(2)(a) or Rule 9(2)(b) of the 2014 Rules applies, the FtT will normally exercise its discretion to make an order against the defaulting representative or party.
[7] The onus rests on the party applying for an order under Rule 9.
[8] There must be a causal nexus between the conduct in question and the wasted costs claimed.
[9] One of the supreme governing principles is that every case will be unavoidably fact sensitive. Accordingly, comparisons with other cases will normally be inappropriate.
[10] Orders for costs under Rule 9 will be very much the exception, rather than the rule and will be reserved to the clearest cases.
[11] Rule 9 of the 2014 Rules applies to conduct, whether acts or omissions, belonging to the period commencing on the date when an appeal comes into existence and ending on the date of the final determination thereof.
[12] The procedure for determining applications under Rule 9 of the 2014 Rules will be governed in the main by the principles of fairness, expedition and proportionality.
[2015] Imm AR 574, [2015] UKFTT 59 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.543179
In deciding a claim to international protection based on a person’s Ahmadi faith where credibility is in issue, the more that a letter from the Ahmadiyya Association UK contains specific information as to the claimant’s activities in the United Kingdom, the more likely the letter is to be given weight.
[2013] UKUT 511 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.536224
(i) The effect of the words ‘are to be refused’ in paragraph 322 of the Immigration Rules is to render refusal of leave to remain the United Kingdom obligatory in cases where any of the listed grounds arises. The decision maker has no discretion.
(ii) The doctrine of substantive legitimate expectations is a nuanced, sophisticated one which should not be prayed in aid without careful reflection.
[2015] UKUT 434 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.551566
Section 29(4) of the Tribunals, Courts and Enforcement Act 2007 results in the Upper Tribunal having powers in relation to the making of wasted costs orders (as defined in section 29(5)) which are not subject to the limitations in s.29(3) or r.10 of the Tribunal Procedure ( Upper Tribunal) Rules 2008.
[2016] UKUT 62 (IAC), [2016] Imm AR 546
England and Wales
Updated: 31 January 2022; Ref: scu.560533
(1) In judicial review applications transferred by the Administrative Court to the Upper Tribunal, the applicable procedural regime is that contained in the Tribunal Procedure (Upper Tribunal) Rules 2008. The Civil Procedure Rules have no effect thereafter; although the procedural history may be significant, particularly as regards time limits.
(2) The prohibition in rule 29(3) on a party who has not filed an acknowledgement of service from taking part in the application permission (without the Upper Tribunal’s permission) applies also to a party who has failed to provide a copy of the AoS to the applicant, as required by rule 29(2A).
[2014] UKUT 565 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.543191
(i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom.
(ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful.
(iii) The requirement previously enshrined in paragraph 284(ix)(a) of the Immigration Rules that an applicant provide an English Language test certificate in specified terms is satisfied where the applicant has already provided a certificate of this kind to the Secretary of State which has been accepted as valid.
(iv) The jurisdiction of the Upper Tribunal in judicial review proceedings to determine any of the issues raised is not extinguished by the Secretary of State’s withdrawal of the decision under challenge: R v Secretary of State for the Home Department, ex parte Salem [1999] AC 450 applied.
[2016] UKUT 25 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.560523
1. Requiring a person with limited leave to remain to travel to a third country to spend time with his wife who is under 21 is a sufficiently serious interference with the right to respect for family life to require justification.
2. The interference is in accordance with the law as it complies with Immigration Rules that were publicly available at the material time even if the appellant did not know of them.
3. The decision was for a legitimate purpose and proportionate in the light of the fact that the sponsor had been able to visit his spouse in the third country and there were no obstacles to his continuing to do so until she was 21.
[2010] UKUT 377 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.425495
Immigration Judicial Review
[2016] UKUT 32 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.560526
The interpretation of paragraph 334 of the Immigration Rules is subject to the Qualification Directive and the Procedures Directive.
[2016] UKUT 374 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.569341
1. The strength or otherwise of an underlying Article 8 case is relevant to a decision by the respondent whether to certify a case under s.94B of the Nationality, Immigration and Asylum Act 2002, in that it may disclose a case without a specific case being advanced by the applicant as to why temporary separation whilst an appeal is pursued from abroad may lead to a real risk of serious irreversible harm.
2. In passing s.94B into law, Parliament has plainly and unarguably envisaged the possibility of family members, including children, being separated from the individual being removed for a temporary period whilst an appeal is pursued from abroad as well as the possibility that, in some cases, appeals pursued abroad will succeed. It also envisaged the possibility of some appeals from abroad after certification under s.94B succeeding under Article 8. It is not enough for an individual resisting removal pursuant to certification under s.94B merely to rely upon general assertions of the impact of temporary separation from family members including children. There must be specific engagement with the reasons why it is said that there is a real risk of serious irreversible harm during such temporary absence, particularly if the underlying substantive claim does not on its face raise the possibility that the impact on the family members will be beyond what one may generally assume will be the impact when family members are separated.
3. The judgment of the majority of the European Court of Human Rights in De Souza Ribeiro v France (Application No.22689/07) – HEJUD [2012] ECHR 2066 did not state in terms that a suspensive remedy was necessary whenever a claim is not manifestly ill-founded in relation to Article 8. What the majority spoke of was the need to have ‘sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality’. Judicial review proceedings are such an appropriate procedural safeguard.
[2015] UKUT 537 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.553206
British citizen working and residing with Moroccan spouse in Republic of Ireland (‘RoI’) – 13 month gap between end of employment in RoI and return to Belfast – the term ‘was so residing’ does not have to be immediately before returning to the United Kingdom – there was a sufficient link between the exercise of Treaty rights and the return in this case.
[2010] UKUT 420 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.444067
The applicant is a citizen of Canada. In these proceedings she challenges the decision of the Secretary of State refusing to grant her leave to remain under the Immigration Rules and Art 8 of the ECHR.
[2016] UKUT 55 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.560537
(i) The decision of the Upper Tribunal in BAH (EO – Turkey – Liability to Deport) [2012] UKUT 00196 (IAC) belongs to the legal framework prevailing at the time when it was made: it has long been overtaken by the significant statutory and policy developments and reforms effected by the Immigration Act 2014 and the corresponding amendments of the Immigration Rules, coupled with YM (Uganda) [2014] EWCA Civ 1292 at [36] – [39].
(ii) In cases where the public interest favouring deportation of an immigrant is potent and pressing, even egregious and unjustified delay on the part of the Secretary of State in the underlying decision making process is unlikely to tip the balance in the immigrant’s favour in the proportionality exercise under Article 8(2) ECHR.
[2017] UKUT 330 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.595797
Immigration judicial review
Jordan UTJ
[2014] UKUT 492 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.539104
(1) The expression ‘self-serving’ is, to a large extent, a protean one. The expression itself tells us little or nothing. What is needed is a reason, however brief, for that designation. For example, a letter written by a third party to an applicant for international protection may be ‘self-serving’ because it bears the hallmarks of being written to order, in circumstances where the applicant’s case is that the letter was a spontaneous warning.
(2) Whilst a statement from a family member is capable of lending weight to a claim, the issue will be whether, looked at in the round, it does so in the particular case in question. Such a statement may, for instance, be incapable of saving a claim which, in all other respects, lacks credibility.
[2017] UKUT 164 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.588799
Appeal for further leave to remain in the United Kingdom as the spouse of a person present and settled in the United Kingdom.
[2018] UKAITUR HU030312017
England and Wales
Updated: 31 January 2022; Ref: scu.603005
1) The Home Office family reunification policy embraces a series of flexible possibilities for proof of identity.
2) In any case where withdrawal or a consent order is proposed judicial scrutiny and adjudication are required.
[2017] UKUT 197 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.588803
Application for indefinite leave to remain on the basis of having achieved ten years’ lawful residence in the United Kingdom.
[2018] UKAITUR HU021852016
England and Wales
Updated: 31 January 2022; Ref: scu.603003
1. It is not necessary for an individual to have ‘parental responsibility’ in law for there to exist a parental relationship.
2. Whether a person who is not a biological parent is in a ‘parental relationship’ with a child for the purposes of s.117B(6) of the Nationality, Immigration and Asylum Act 2002 depends on the individual circumstances and whether the role that individual plays establishes he or she has ‘stepped into the shoes’ of a parent.
3. Applying that approach, apart from the situation of split families where relationships between parents have broken down and an actual or de facto step-parent exists, it will be unusual, but not impossible, for more than 2 individuals to have a ‘parental relationship’ with a child. However, the relationships between a child and professional or voluntary carers or family friends are not ‘parental relationships’.
[2016] UKUT 31 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.560527
(i) EU Regulation number 604/2013 (the ‘Dublin Regulation’) and the Human Rights Act 1998, while separate regimes, are not in competition with each other.
(ii) Where the two regimes pull in different directions, full cohesion, or harmonisation, may not be achievable and some accommodation must be found.
(iii) Where an interference with a person’s rights under Article 8 ECHR in consequence upon full adherence to the Dublin Regulation regime is demonstrated, the question to be determined is proportionality.
(iv) In the proportionality balancing exercise, the Dublin Regulation will be a consideration of undeniable potency. Vindication of an Article 8 challenge will require a strong and persuasive case and such cases are likely to be rare.
[2016] UKUT 61 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.560536
(i) In cases involving convictions for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, the Secretary of State’s policy, as expressed in paragraph 391(a) of the Immigration Rules, is that the public interest does not require continuation of a deportation order after a period of ten years has elapsed.
(ii) However, paragraph 391(a) allows the Secretary of State to consider on a case by case basis whether a deportation order should be maintained. The mere fact of past convictions is unlikely to be sufficient to maintain an order if the ‘prescribed period’ has elapsed. Strong public policy reasons would be needed to justify continuing an order in such circumstances.
(iii) Paragraph 391(a) will only be engaged in a ‘post-deportation’ case if the person is applying for revocation of the order from outside the UK. Nothing in the strict wording of the rule requires the ten-year period to be spent outside the UK. However, the main purpose of deportation is to exclude a person from the UK. Any breach of the deportation order is likely to be a strong public policy ground for maintaining the order even though a period of ten years has elapsed since it was made.
(iv) In ‘post-deportation’ applications involving sentences of less than four years made before the end of the ten-year period, and ‘post-deportation’ applications involving sentences of four years or more, appropriate weight should be given to the Secretary of State’s policy as expressed in the ‘Conventions exception’ and ‘sweep-up exception’ with reference to paragraphs 398-399A and 390A of the Immigration Rules.
[2017] UKUT 166 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.588798
(i) The Upper Tribunal has the same power as the High Court to stay proceedings.
(ii) The most important factors influencing the exercise of this discretionary power will normally be found in the overriding objective.
(iii) Great caution is required where a stay application is founded on the contention that the outcome of another case will significantly influence the outcome of the instant case.
(iv) A stay application will require especially compelling justification in a case qualifying for urgent judicial decision.
(v) The cases of unaccompanied, isolated teenagers marooned in a foreign land suffering from major psychological trauma and seeking, via litigation, the swiftest reunion possible with a separated family member will always, in principle, have a powerful claim to judicial prioritisation.
[2017] UKUT 168 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.588793
Asylum claim – undocumented Bidoon from Kuwait.
[2018] UKAITUR PA119792016
England and Wales
Updated: 31 January 2022; Ref: scu.603067
(I) A Tamil female single head of household residing in the former conflict zone of Northern and North Eastern Sri Lanka may be at risk of sexual abuse and exploitation perpetrated by members of police, military and paramilitary State agents.
(II) The existence and measurement of this risk will be an intensely fact sensitive question in every case. The case-by-case assessment will be informed by the presence or absence of positive risk factors and decreasing risk factors .
(III) The positive risk factors are living in isolation from others, low socio-economic status, dependence upon the distribution of Government aid or the provision of other services by the security forces and a perception of former LTTE membership, links or sympathies. These positive factors do not necessarily have to be satisfied cumulatively in every case: context will invariably be everything.
(IV) The countervailing factors are higher socio-economic status, little dependence on Government aid or services and the support of male relatives or neighbours. The context of the particular case will dictate the force and weight of each of these factors, individually or cumulatively, in any given case. These too will be assessed on a case-by-case basis.
(V) Experts’ reports and evidence must comply fully and strictly with the Senior President of Tribunal’s Practice Direction.
(VI) The methodology of every expert witness should always be patent on the face of the report. If not, it should be provided via a supplement, accompanied by a full and frank explanation of the omission. Experts and practitioners are reminded of the decisions of the Upper Tribunal in MOJ and Others [2014] UKUT 442 (IAC), at [23] – [38] and MS (Trafficking – Tribunal’s powers – Article 4 ECHR) Pakistan [2016] UKUT 226 (IAC), at [68] – [69].
[2017] UKUT 117 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.588791
Error of law
[2018] UKAITUR IA197342015
England and Wales
Updated: 31 January 2022; Ref: scu.603030
(1) In assessing the credibility of an asylum claim, the benefit of the doubt (‘TBOD’), as discussed in paragraphs 203 and 204 of the 1979 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, is not to be regarded as a rule of law. It is a general guideline, expressed in the Handbook in defeasible and contingent terms.
(2) Although the Handbook confines TBOD to the end point of a credibility assessment (‘After the applicant has made a genuine effort to substantiate his story’: paragraph 203), TBOD is not, in fact, so limited. Its potential to be used at earlier stages is not, however, to be understood as requiring TBOD to be given to each and every item of evidence, in isolation. What is involved is simply no more than an acceptance that in respect of every asserted fact when there is doubt, the lower standard entails that it should not be rejected and should rather continue to be kept in mind as a possibility at least until the end when the question of risk is posed in relation to the evidence in the round.
(3) Correctly viewed, therefore, TBOD adds nothing of substance to the lower standard of proof, which as construed by the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, affords a ‘positive role for uncertainty’.
(4) The proposition in paragraph 219 of the Handbook, that when assessing the evidence of minors there may need to be a ‘liberal application of the benefit of the doubt’ is also not to be regarded as a rule of law or, indeed, a statement of universal application. As a reminder about what the examiner should bear in mind at the end point of an assessment of credibility, the proposition adds nothing of substance to the lower standard of proof. If, for example, an applicant possesses the same maturity as an adult, it may not be appropriate to resort to a liberal application of TBOD.
(5) Article 4(5) of the Qualification Directive is confined to setting out the conditions under which there will be no need for corroboration or ‘confirmation’ of evidence. Although (unlike the Handbook) Article 4(5) does set out conditions that are rules of law, properly read, it is not to be compared with the scope of TBOD as described above.
[2014] UKUT 552 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.543196
Immigration Judicial Review
[2015] UKUT 97 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.547312
An appeal in respect of which a Cart judicial review has quashed a refusal of permission to appeal is again ‘pending’ within the meaning of s.104(2)(a) of the 2002 Act.
[2017] UKUT 371 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.595809
Immigration Judicial Review
[2016] UKUT 26 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.560529
1. Where a visit visa application is refused because the Visa Officer is not satisfied of the appellant’s intentions as a result of only limited documents being produced and translated; and the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, directions can be given indicating that unless the respondent complies with the rules it may be that the Tribunal will assume that the appeal is unopposed.
2. Where the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, and the First-tier Tribunal issues a reasoned decision, based on the material before it, allowing the appeal, a challenge by the respondent based on sufficiency of reason is unlikely to prosper on an application for permission to appeal to the Upper Tribunal.
Blake P J, Batistse UTJ
[2011] UKUT 212 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.441709
Application for judicial review: substantive decision
[2016] UKUT 30 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.560528
(i) The public law character of appeals to the FtT is reflected in the regulatory requirement governing the withdrawal of appeals that any proposed withdrawal of an appeal must contain the reasons for the course mooted and must be judicially scrutinised, per rule 17 of the FtT Rules and rule 17 of the Upper Tribunal Rules.
(ii) Judicial evaluation of both the withdrawal of an appellant’s appeal and the withdrawal of the Secretary of State’s case or appeal is required.
(iii) Every judicial determination of an appellant’s proposal to withdraw an appeal or the Secretary of State’s proposal to withdraw requires a brief outline of the reasons for the decision. The purpose of the judicial scrutiny is to ensure that the appeal is being properly and correctly withdrawn.
(iv) Judicial scrutiny will normally result in the mooted withdrawal of the appeal being perfected by transmission of the notice to the parties required by Rule 17(iii). However, this will not occur automatically: for example where the proposed withdrawal lacks coherence or is based on a clear material misunderstanding or misconception.
(v) The outcome of the judicial scrutiny should be briefly reasoned.
(vi) Rule 29 of the FtT Rules is confined to the substantive determination of appeals.
(vii) The power of the FtT to set aside a decision under Rule 32 is exercisable only by the FtT President and the Resident Judges.
(viii) In cases where an unsuccessful appellant has a choice, best practice dictates that an application to set aside the impugned decision of the FtT under Rule 32 be first exhausted in advance of the lodgement of an application for permission to appeal to the Upper Tribunal. Where both species of challenge are lodged simultaneously, it will be sensible to assign them to the same Judge where feasible.
[2017] UKUT 295 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.595805
‘The grounds contend that the Judge erred in considering the position of the Appellant’s 9 month British citizen child, born between the date of the refusal and the date of the hearing. While it is unclear whether the Home Office policy set out at page 3 of the grounds was brought to the judge’s attention by the Appellant representative at the hearing, the failure to have regard to it in the decision renders the grounds arguable.’
[2018] UKAITUR IA311532015
England and Wales
Updated: 31 January 2022; Ref: scu.603036
Immigration Judicial Review
[2015] UKUT 431 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.551563
[2003] UKIAT 00172
England and Wales
Updated: 31 January 2022; Ref: scu.192554
[2004] UKIAT 00039
England and Wales
Updated: 31 January 2022; Ref: scu.195261
1. The correct approach to cessation in Article 1(C) of the Refugee Convent ion, Article 11 of the Qualification Directive 2004/83 and paragraph 339A of the Immigration Rules can be summarised as follows:
(i) There is a requirement of symmetry between the grant and cessation of refugee status because the cessation decision is the mirror image of a decision determining refugee status i.e. the grounds for cessation do not go beyond verifying whether the grounds for recognition of refugee status continue to exist – see Abdulla v Bundesrepublik Deutschland (Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08) [2011] QB 46 at [89] and SSHD v MA (Somalia) [2019] EWCA Civ 994, [2018] I mm AR 1273 at [2] and [46].
(ii) ‘The circumstances in connection with which [a person] has been recognised as a refugee’ are likely to be a combination of the general political conditions in that person’s home country and some aspect of that person’s personal characteristics. Accordingly, a relevant change in circumstances might in a particular case also arise from a combination of changes in the general political conditions in the home country and in the individual’s personal characteristics, or even from a change just in the individual’s personal characteristics, if that change means that she now falls outside a group likely to be persecuted by the authorities of the home state. The relevant change must in each case be durable in nature and the burden is upon the respondent to prove it – see Abdulla at [76] and SSHD v MM (Zimbabwe) [2017] EWCA Civ 797, [2017] 4 WLR 132 at [24] and [36].
(iii) The reference in the Qualification Directive (as replicated in paragraph 339A) to a ‘change in circumstances of such a significant and non-temporary nature’ will have occurred when the factors which formed the basis of the refugee’s fear of persecution have been ‘permanently eradicated’ – see Abdulla at [73] wherein it was pointed out that not only must the relevant circumstances have ceased to exist but that the individual has no other reason to fear being persecuted.
(iv) The relevant test is not change in circumstances, but whether circumstances in which status was granted have ‘ceased to exist’ and this involves a wider examination – see SSHD v KN (DRC) [2019] EWCA Civ 1655 at [33] .
(v) The views of the UNHCR are of considerable importance – HK (Iraq) v SSHD [2017] EWCA Civ 1871 at [41], but can be departed from.
2. It is therefore for the SSHD to demonstrate that the circumstances which justified the grant of refugee status have ceased to exist and that there are no other circumstances which would now give rise to a well-founded fear of persecution for reasons covered by the Refugee Convention. The focus of the assessment must be on: (i) the personal circumstances and relevant country background evidence including the country guidance (‘CG’) case-law appertaining at the time that refugee status was granted and; (ii) the current personal circumstances together with the current country background evidence including the applicable CG.
The Hon Mr Justice Lane, President
Upper Tribunal Judge Plimmer
[2021] UKUT 283 (IAC)
England and Wales
Updated: 31 January 2022; Ref: scu.671701
[2003] UKIAT 00189
England and Wales
Updated: 30 January 2022; Ref: scu.221076
Quinlivan J
[2021] NIQB 98
Northern Ireland
Updated: 30 January 2022; Ref: scu.670942
Mr Justice Ouseley
[2011] EWHC 1406 (Admin)
England and Wales
Updated: 30 January 2022; Ref: scu.523757
[2004] UKIAT 00010
England and Wales
Updated: 30 January 2022; Ref: scu.193554
Jackson, Briggs, Irwin LJJ
[2017] EWCA Civ 47
England and Wales
Updated: 29 January 2022; Ref: scu.574305
Arden, McFarlane, Kitchin LJJ
[2017] EWCA Civ 59
England and Wales
Updated: 29 January 2022; Ref: scu.574288
Rafferty, McFarlane, Hamblen LJJ
[2017] EWCA Civ 53
England and Wales
Updated: 29 January 2022; Ref: scu.574291
(Judgment) Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2004/83/EC – Minimum standards for the qualification and status of third country nationals or stateless persons as refugees – Application for subsidiary protection – Lawfulness of the national procedure for examining an application for subsidiary protection made after the rejection of an application for refugee status – Right to be heard – Scope – Right to an interview – Right to call and cross-examine witnesses
ECLI:EU:C:2017:101, [2017] EUECJ C-560/14
European
Updated: 29 January 2022; Ref: scu.573938
The Claimant seeks judicial review of the Defendant’s decision not to deport him to Ireland as a foreign criminal.
[2017] EWHC 100 (Admin), [2017] WLR(D) 75
England and Wales
Updated: 29 January 2022; Ref: scu.573924
[2009] EWCA Civ 52
England and Wales
Updated: 29 January 2022; Ref: scu.573854
Walker j
[2015] EWHC 4024 (Admin)
England and Wales
Updated: 29 January 2022; Ref: scu.573851
Allan Gore QC HHJ
[2015] EWHC 4212 (Admin)
England and Wales
Updated: 29 January 2022; Ref: scu.573852
ECJ (Judgment) Reference for a preliminary ruling – Area of freedom, security and justice – Asylum – Directive 2004/83/EC – Minimum standards for the qualification and status of third country nationals or stateless persons as refugees – Article 12(2)(c) and Article 12(3) – Exclusion from being a refugee – Concept of ‘acts contrary to the purposes and principles of the United Nations’ – Scope – Member of the leadership of a terrorist organisation – Criminal conviction of participation in the activities of a terrorist group – Individual assessment
ECLI:EU:C:2017:71, [2017] EUECJ C-573/14, [2017] WLR(D) 56
European
Updated: 29 January 2022; Ref: scu.573810
UTIAC Neither a decision to make a deportation order nor a notice of intention to make a deportation order triggers the two year period specified in regulation 24(5) of the EEA Regulations. The two year period begins upon the making of the deportation order itself.
[2016] UKUT 563 (IAC)
England and Wales
Updated: 29 January 2022; Ref: scu.573727
UTIAc A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk.
[2016] UKUT 560 (IAC)
England and Wales
Updated: 29 January 2022; Ref: scu.573725
UTIAC (i) By virtue of the decision of the Court of Appeal in ZAT and Others the duty to admit a person to the United Kingdom under Article 8 ECHR without adherence to the initial procedural requirements of the Dublin Regulation requires an especially compelling case.
(ii) The question of whether the best interests of a child will be promoted by delay is an intensely fact sensitive one.
(iii) The grant of interim relief can be formulated in such a way as to respect the role and responsibilities of the relevant authorities of a foreign state.
(iv) Protection of the best interests of a child should not be outweighed by considerations of judicial comity.
[2016] UKUT 507 (IAC)
England and Wales
Updated: 29 January 2022; Ref: scu.573723
The Secretary of State appealed against dismissal of a civil penalty imposed for alleged employment of illegal workers, seeking first clarification of the jurisdiction of the Court of Appeal to consider such an appeal.
Arden, McFarlane LJJ, Cranston J
[2017] EWCA Civ 16, [2017] WLR(D) 30
Immigration, Asylum and Nationality Act 2006
England and Wales
Updated: 29 January 2022; Ref: scu.573619
[2017] EWHC 59 (Admin)
England and Wales
Updated: 29 January 2022; Ref: scu.573491
Karen Monaghan QC
[2017] EWHC 79 (Admin)
England and Wales
Updated: 29 January 2022; Ref: scu.573487
Appeal against rejection of claim for unlawful immigration detention.
Gloster VP CA, David Richards LJJ, Sir Stephen Tomlinson
[2017] EWCA Civ 14
England and Wales
Updated: 29 January 2022; Ref: scu.573607
William Davis J
[2017] EWHC 78 (Admin)
England and Wales
Updated: 29 January 2022; Ref: scu.573481
Hugh Mercer QC Sitting as a Deputy Judge of the High Court
[2021] EWHC 66 (Admin)
England and Wales
Updated: 29 January 2022; Ref: scu.657322
Judicial review of two decisions of the Secretary of State refusing to treat representations made in January of this year as fresh asylum and human rights claims.
Mr Justice Collins
[2007] EWHC 3103 (Admin)
England and Wales
Updated: 29 January 2022; Ref: scu.541919
[2003] UKIAT 00026
England and Wales
Updated: 29 January 2022; Ref: scu.192417
[2003] UKIAT 00045
England and Wales
Updated: 29 January 2022; Ref: scu.192416
[2004] UKIAT 00041
England and Wales
Updated: 29 January 2022; Ref: scu.195262
Edward Pepperall QC DHCJ
[2016] EWHC 3156 (Admin)
England and Wales
Updated: 28 January 2022; Ref: scu.573376
Challenge to decision for immigration detention
Nicola Davies J
[2016] EWHC 1744 (Admin)
England and Wales
Updated: 28 January 2022; Ref: scu.573368
UTIAC (i) Video recorded evidence from witnesses is admissible in the Upper Tribunal. Its weight will vary according to the context.
(ii) Alertness among practitioners and parties to the Upper Tribunal’s standard pre-hearing Directions and compliance therewith are crucial.
(iii) There are no hard and fast rules as to what constitutes family life within the compass of Article 8 ECHR.
(iv) A person’s value to the community is a factor which may legitimately be considered in the Article 8 proportionality balancing exercise.
[2017] UKUT 16 (IAC)
European Convention on Human Rights 8
England and Wales
Updated: 28 January 2022; Ref: scu.573290
UTIAC (1) The seventh of the principles in the Zoumbas code does not preclude an outcome whereby the best interests of a child must yield to the public interest.
(2) This approach has not been altered by Part 5A of the Nationality, Immigration and Asylum Act 2002.
(3) In the proportionality balancing exercise, the best interests of a child must be assessed in isolation from other factors, such as parental misconduct.
(4) The best interests assessment should normally be carried out at the beginning of the balancing exercise.
(5) The ‘little weight’ provisions in Part 5A of the 2002 Act do not entail an absolute, rigid measurement or concept; ‘little weight’ involves a spectrum which, within its self-contained boundaries, will result in the measurement of the quantum of weight considered appropriate in the fact sensitive context of every case.
(6) In every balancing exercise, the scales must be properly prepared by the Judge, followed by all necessary findings and conclusions, buttressed by adequate reasoning.
[2017] UKUT 14 (IAC)
Nationality, Immigration and Asylum Act 2002 5A
England and Wales
Updated: 28 January 2022; Ref: scu.573289
UTIAC (I) Where the case of a foreign national who is not an offender does not satisfy the requirements of the Article 8 ECHR regime of the Immigration Rules, the test to be applied is that of compelling circumstances.
(II) The Parliamentary intention underlying Part 5A of NIAA 2002 is to give proper effect to Article 8 ECHR. Thus a private life developed or established during periods of unlawful or precarious residence might conceivably qualify to be accorded more than little weight and s 117B (4) and (5) are to be construed and applied accordingly.
(III) Mere hardship, mere difficulty, mere hurdles, mere upheaval and mere inconvenience, even where multiplied, are unlikely to satisfy the test of ‘very significant hurdles’ in paragraph 276 ADE of the Immigration Rules.
[2017] UKUT 13 (IAC)
England and Wales
Updated: 28 January 2022; Ref: scu.573292
UTIAC The deportation of a former Malaysian national and former BOC is liable to be deemed unlawful where relevant Government Policies relating to inter-state arrangements with Malaysia have not been taken into account or given effect.
[2017] UKUT 15 (IAC)
England and Wales
Updated: 28 January 2022; Ref: scu.573288
UTIAC (i) Counsel’s duty is owed to the client. It does not extend to defending non-compliant instructing solicitors.
(ii) It is for non-compliant instructing solicitors to defend themselves by proactively arranging their attendance before the tribunal in appropriate circumstances.
[2017] UKUT 12 (IAC)
England and Wales
Updated: 28 January 2022; Ref: scu.573293
Application for leave to appeal against refusal of asylum claim.
McCombe LJ
[2013] EWCA Civ 522
England and Wales
Updated: 28 January 2022; Ref: scu.573273
HS appeal against order revoking deportation order.
Sir Geoffrey Vos Ch, Burnett LJ
[2017] EWCA Civ 10
England and Wales
Updated: 28 January 2022; Ref: scu.573276
Claim for judicial review by a national of Eritrea which seeks to quash decisions of the defendant declining to examine an asylum application.
Alice Robinson HHJ
[2017] EWHC 9 (Admin)
England and Wales
Updated: 28 January 2022; Ref: scu.573237
Statutory right of appeal against decisions by the Secretary of State for the Home Department to refuse protection claims and human rights claims under Part 5 of the 2002 Act. Where a person has already had a human rights claim refused and there is no pending appeal, do further submissions that rely on human rights grounds have to be accepted by the Secretary of State as a fresh claim in accordance with rule 353 if a decision in response to those representations is to attract a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’)?
Held: The appeal failed. BA (Nigeria) had did not overrule the decision in Onibiyo. BA (Nigeria) was limited to cases where the further submissions have been rejected and there was an appealable decision.
The appellant submitted that the amendments to the 2002 Act effected by the Immigration Act 2014 fundamentally changed the operation of the statutory scheme, with the result that rule 353 no longer applies. That argument was rejected.
Lady Hale, President, Lord Wilson, Lady Black, Lord Lloyd-Jones, Lady Arden
[2019] UKSC 11, [2019] Imm AR 877, [2019] 2 WLR 897, [2019] 3 All ER 741, [2019] INLR 452, [2020] AC 942, UKSC 2017/0211
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2018 Nov 15 am Video, SC 2018 Nov 14 pm Video
Nationality, Immigration and Asylum Act 2002
England and Wales
Cited – Regina v Secretary of State for the Home Department Ex Parte Onibiyo CA 28-Mar-1996
More than one asylum claim may be made, but they must be sufficiently different to justify a second claim. The court considered when an application could be treated as having been finally determined and when it was necessary for the Secretary of . .
Appeal from – Robinson, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 4-May-2017
Appeal by a foreign criminal asylum claimant against a decision that his additional submissions were not ‘fresh claims’ and that he had no right to a second appeal before the First-tier Tribunal. . .
Cited – Sheffield City Council v Oliver CA 4-Apr-2017
The issue in this appeal is whether, when quantifying a service charge payable by a lessee under a long lease of residential property, credit must be given by the lessor in respect of a third party contribution towards the cost of carrying out . .
Cited – Cakabay v Secretary of State for Home Department CA 30-Jun-1998
. .
Cited – WM (DRC) v Secretary of State for the Home Department CA 9-Nov-2006
The court considered the proper role of the Secretary of state and of the court when failed asylum seekers produced new material arguing that it was a fresh claim. Buxton LJ said: ‘has the Secretary of State asked himself the correct question? The . .
Cited – ZT (Kosovo) v Secretary of State for the Home Department HL 4-Feb-2009
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
Cited – Hussein, Regina (on The Application of) v First-Tier Tribunal (Para 353: Present Scope and Effect)(IJR) UTIAC 8-Aug-2016
UTIAC (1) Lord Neuberger’s judgment in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926 is an authoritative pronouncement on the scope of the Supreme Court’s judgments in R (BA . .
Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Cited – MG, Regina (on The Application of) v First-Tier Tribunal (Immigration and Asylum Chamber) (‘Fresh Claim’; Para 353: No Appeal) (IJR) UTIAC 17-May-2016
UTIAC 1. A decision that further submissions do not amount to a ‘fresh claim’ under para 353 of the Immigration Rules is not a decision to refuse a protection or human rights claim and so does not give rise to a . .
Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Cited – Waqar, Regina (on The Application of) v Secretary of State for The Home Department (Statutory Appeals/Paragraph 353) ( IJR) UTIAC 25-Mar-2015
UTIAC 1. The current statutory appeal regime requires a decision to be made on a human rights claim. Without a claim and without a decision there is no appeal.
2. Where a claim has already been determined, . .
Cited – ZA (Nigeria) and SM (Congo), Regina (on The Application of) v Secretary of State for The Home Department CA 30-Jul-2010
The court was asked whether, as the Administrative Court decided, the Secretary of State was entitled to refrain from making an appealable immigration decision in response to an asylum claim or a human rights claim which he reasonably concluded was . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 January 2022; Ref: scu.634514
[2003] UKIAT 00075
England and Wales
Updated: 28 January 2022; Ref: scu.192381
The claimant from Sudan originally claimed asylum in Italy but then illegally entered the United Kingdom. The HS sought His removal to Italy under the Dublin II Regulation. He resisted asserting a risk that he would be treated in a way that breached his human rights or the duty owed by Italy to refugees and asylum seekers on its territory. The claimant’s claims had been certified as unfounded and removal directions issued, which meant that he had no in-country right of appeal. The claimant sought judicial review of that decision.
Held:
In assessing risks on a return to a member state, the fact that that state was also bound by the Conventions and Community law applicable here obviated the risk unless there was shown a systemic failure in the receiving state. Without such a failure, the person was adequately protected: his rights were against the receiving government with, if necessary, the possibility of recourse to the European Court of Human Rights from the receiving country.
C M G Ockelton
[2012] EWHC 3483 (Admin), [2013] WLR(D) 16
Council Regulation (EC) 343/2003
England and Wales
Updated: 28 January 2022; Ref: scu.467107
SIAC considered the difficulties particular to the return of nationals to Libya.
Ouseley J
[2007] UKSIAC 42/2005
England and Wales
Cited – Regina v Lancashire County Council ex parte Huddleston CA 1986
The respondent council had failed to allocate a university student grant to the claimant and the principle was directed at the duty of that authority to state clearly the reasons for its refusal and the particular factors that had been taken into . .
Lists of cited by and citing cases may be incomplete.
Immigration, Crime
Updated: 27 January 2022; Ref: scu.251838
Application for permission to appeal brought in relation to a failed application for judicial review made to the upper tribunal in relation to an immigration decision.
[2018] EWCA Civ 901
Bailii
England and Wales
Immigration
Updated: 27 January 2022; Ref: scu.654590
Whether the claimant had been unlawfully detained in immigration detention and, if so, whether he was entitled to nominal or substantial damages.
[2019] EWHC 22 (Admin)
Bailii
England and Wales
Immigration, Prisons, Torts – Other
Updated: 27 January 2022; Ref: scu.633142
Collins J
[2016] EWHC 3232 (Admin)
Bailii
England and Wales
Immigration
Updated: 27 January 2022; Ref: scu.572717
The claimant, an EU citizen, challenged the Home Secretary’s service upon him of a notice preventing him from working in the United Kingdom while he was on bail awaiting the resolution of an earlier claim for judicial review and determination of his appeal against a decision by the Home Secretary to deport him.
Held: The claim for judicial review was refused.
Thirlwall DBE J
[2016] EWHC 3215 (Admin), [2016] WLR(D) 681
Bailii, WLRD
England and Wales
Immigration, European
Updated: 27 January 2022; Ref: scu.572719
Claim that the holding of the applicant in prison pending deportation had been unlawful.
Philip Mott QC
[2016] EWHC 3057 (Admin)
Bailii
England and Wales
Immigration, Prisons
Updated: 27 January 2022; Ref: scu.572711
ECJ Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2004/114/EC – Articles 6, 7 and 12 – Conditions of admission of third-country nationals for the purposes of studies – Refusal to admit a person who meets the conditions laid down in Directive 2004/114 – Discretion enjoyed by the competent authorities)
[2014] EUECJ C-491/13, ECLI:EU:C:2014:2187, [2014] WLR(D) 388, [2015] 1 WLR 656, [2015] 1 CMLR 22
Bailii, WLRD
European
Citing:
Opinion – Ben Alaya v Bundesrepublik Deutschland ECJ 12-Jun-2014
ECJ (Advocate General’s Opinion) Area of ??freedom, security and justice – Directive 2004/114 / EC – Conditions for admission of third-country nationals for the purposes of study – Refusal of admission of a . .
Lists of cited by and citing cases may be incomplete.
Immigration, Education
Updated: 27 January 2022; Ref: scu.572696
[2016] UKSIAC SC – 125 – 2015
Bailii
England and Wales
Immigration, Crime
Updated: 27 January 2022; Ref: scu.572557
[2016] UKSIAC SC – 09 – 2005
Bailii
England and Wales
Immigration, Crime
Updated: 27 January 2022; Ref: scu.572555
[2016] UKSIAC SC – 09 – 2005 – 2
Bailii
England and Wales
Immigration, Crime
Updated: 27 January 2022; Ref: scu.572556
Lloyd Jones, Gloster LJJ, Cranston J
[2016] EWCA Civ 1303
Bailii
England and Wales
Immigration
Updated: 27 January 2022; Ref: scu.572405