Category: Immigration

K and Others, Regina (on The Application of) v The Secretary of State for Defence and Another: CA 23 Nov 2016

The claimants appealed against rejection of their claims that they had acted as covert intelligence sources for the British Army in Afghanistan, and should have been given support and assistance accordingly.

Longmore, Treacy, Underhill LJJ
[2016] EWCA Civ 1149, [2016] WLR(D) 625
Bailii, WLRD
England and Wales

Human Rights, Armed Forces, Immigration

Updated: 26 January 2022; Ref: scu.571937

Yadly Marketing Company Ltd v Secretary of State for The Home Department: CA 23 Nov 2016

Appeal against rejection of appeal against civil penalty as out of time.
Held: The appeal was allowed. The appellant had attempted to file the appeal, on the day after a bank holiday, but the attempt had been rejected, wrongly, by the court clerk.

Arden, Beatson, Henderson LJJ
[2016] EWCA Civ 1143, [2016] WLR(D) 621
Bailii, WLRD
Immigration and Nationality Act 2006 17
England and Wales

Immigration

Updated: 26 January 2022; Ref: scu.571945

SG (Child of Polygamous Marriage) Nepal: UTIAC 9 Jul 2012

i) Educational advantages and economic betterment, which might be enjoyed by a child, if admitted to the United Kingdom, are not compelling considerations to make that child’s exclusion undesirable, where the biological mother has cared for the child, and will continue to do so, in the country of origin.
ii) There is a legitimate aim in excluding from admission to the United Kingdom a woman who is a party to an actually polygamous marriage and that aim justifies the indirect effect of that exclusion on the child of such a marriage, in that it will be more difficult for the child to satisfy the immigration rules relating to sole responsibility and circumstances making exclusion of the child undesirable.
iii) The policies adopted by the Secretary of State to facilitate admission of Ghurkha former soldiers and their dependants were not intended to give more favourable treatment to children born of an actually polygamous marriage.
iv) Paragraph 296 of HC 395, as presently applied, does not prevent the admission of such children and would probably be contrary to Articles 8 and 14 ECHR if it did.
v) In these circumstances it is not unreasonable to expect a sponsor to choose between coming to the United Kingdom with part of his family or remaining in Nepal with all its members, where there has been no previous residence and establishing of family life in the United Kingdom.
vi) The wishes of the child and both parents are relevant to ascertaining what her best interests are in the context of an application for admission to the United Kingdom but are not decisive of the proportionality balance.
vii) The proportionality balance in such cases is a fact sensitive one rather than determined by the rules.

Mr Justice Blake, President

Upper Tribunal Judge Dawson
[2012] UKUT 265 (IAC)
Bailii
England and Wales

Immigration

Updated: 25 January 2022; Ref: scu.463335

S and J, Regina (on The Application of) v The London Borough of Haringey: Admn 28 Oct 2016

Application for judicial review of a decision by the London Borough of Haringey that the Claimants were not children in need for the purposes of Part III of the Children Act 1989

Neil Cameron QC
[2016] EWHC 2692 (Admin)
Bailii
England and Wales

Children, Immigration

Updated: 24 January 2022; Ref: scu.570551

Ghulam and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another: Admn 24 Oct 2016

Three conjoined claims for judicial review challenging decisions by the Secretary of State setting the level of weekly support payments to asylum seekers pursuant to sections 95 to 98 of the Immigration and Asylum Act 1999

Flaux J
[2016] EWHC 2639 (Admin)
Bailii
England and Wales

Benefits, Immigration

Updated: 24 January 2022; Ref: scu.570547

MW (Nationality; Art 4 Qd; Duty To Substantiate): UTIAC 3 Oct 2016

UTIAC 1. Article 4(1) of the Qualification Directive does not impose a shared duty of cooperation on the Member State to substantiate an applicant’s nationality.
2. Article 4(2) refers to documentation (including documentation regarding nationality(ies)) ‘at the applicant’s disposal’ – which must include documentation which is not in the applicant’s present possession but is within his or her power to obtain.
3. The terms of Article 4(3) are consistent with the position that an applicant who denies he is a national of a country where he could obtain protection can be expected to take reasonable steps to establish that he is not such a national.

[2016] UKUT 453 (IAC)
Bailii
England and Wales

Immigration

Updated: 24 January 2022; Ref: scu.570470

HD (Trafficked Women) Nigeria (CG): UTIAC 17 Oct 2016

UTIAC 1. The guidance set out in PO (trafficked women) Nigeria [2009] UKAIT 00046 at paragraphs 191-192 should no longer be followed.
2. Although the Government of Nigeria recognises that the trafficking of women, both internally and transnationally, is a significant problem to be addressed, it is not established by the evidence that for women in general in Nigeria there is a real risk of being trafficked.
3. For a woman returning to Nigeria, after having been trafficked to the United Kingdom, there is in general no real risk of retribution or of being trafficked afresh by her original traffickers.
4. Whether a woman returning to Nigeria having previously been trafficked to the United Kingdom faces on return a real risk of being trafficked afresh will require a detailed assessment of her particular and individual characteristics. Factors that will indicate an enhanced risk of being trafficked include, but are not limited to:
a. The absence of a supportive family willing to take her back into the family unit;
b. Visible or discernible characteristics of vulnerability, such as having no social support network to assist her, no or little education or vocational skills, mental health conditions, which may well have been caused by experiences of abuse when originally trafficked, material and financial deprivation such as to mean that she will be living in poverty or in conditions of destitution;
c. The fact that a woman was previously trafficked is likely to mean that she was then identified by the traffickers as someone disclosing characteristics of vulnerability such as to give rise to a real risk of being trafficked. On returning to Nigeria, it is probable that those characteristics of vulnerability will be enhanced further in the absence of factors that suggest otherwise.
Factors that indicate a lower risk of being trafficked include, but are not limited to:
a. The availability of a supportive family willing to take the woman back into the family unit;
b. The fact that the woman has acquired skills and experiences since leaving Nigeria that better equip her to have access to a livelihood on return to Nigeria, thus enabling her to provide for herself.
6. There will be little risk of being trafficked if received into a NAPTIP shelter or a shelter provided by an NGO for the time that she is there, but that support is likely to be temporary, possibly for just a few weeks, and there will need to be a careful assessment of the position of the woman when she leaves the shelter.

7. For a woman who does face a real risk of being trafficked if she returns to her home area, the question of whether internal relocation will be available as a safe and reasonable alternative that will not be unduly harsh will require a detailed assessment of her particular circumstances. For a woman who discloses the characteristics of vulnerability described above that are indicative of a real risk of being trafficked, internal relocation is unlikely to be a viable alternative.

[2016] UKUT 454 (IAC)
Bailii
England and Wales

Immigration

Updated: 24 January 2022; Ref: scu.570468

FA (Libya: Art 15(C) Libya (CG): UTIAC 7 Sep 2016

UTIAC 1. The question of whether a person is at art 15(c) risk in Libya should, until further Country Guidance, be determined on the basis of the individual evidence in the case.
2. This decision replaces AT and Others Libya CG [2014] UKUT 318 (IAC) in respect of assessment of the art 15(c) risk.

[2016] UKUT 413 (IAC)
Bailii
England and Wales

Immigration

Updated: 24 January 2022; Ref: scu.570463

Al-Sirri (Asylum – Exclusion – Article 1F(C)) Egypt: UTIAC 17 Aug 2016

UTIAC In every case involving exclusion of protection under Article 1F of the Refugee Convention, the onus of proof is on the Secretary of State, a detailed and individualised examination of the facts is required, there must be clear and credible evidence of the offending conduct, and the overall evaluative judgment involves the application of a standard higher than suspicion or belief.

[2016] UKUT 448 (IAC)
Bailii
England and Wales

Immigration

Updated: 24 January 2022; Ref: scu.570458

Hassan and Another, Regina (on The Application of) v Secretary of State for The Home Department (Dublin – Malta; EU Charter Art 18) (IJR): UTIAC 28 Sep 2016

UTIAC (i) There have been significant developments in Malta during recent years. While there may be imperfections in the Maltese asylum decision making processes, these are not sufficient to preclude returns under the Dublin Regulation and, in particular, do not amount to a breach of Article 18 of the EU Charter.
(ii) While Article 18 of the EU Charter confers rights of a procedural nature, the evidence does not establish that these will be infringed in the event of either of the Applicants pursuing a fresh asylum claim in Malta.
(iii) The limitations of the mechanisms available under Maltese law for challenging refusal of asylum decisions do not infringe Article 18 of the EU Charter.
(iv) In judicial review, decisions of the Administrative Court are not binding on the Upper Tribunal: Secretary of State for Justice v RB [2010] UKUT 454 (AAC) applied.
(v) Per curiam : Article 18 of the EU Charter provides an avenue for challenging transfer decisions under the Dublin Regulation.
(vi) Per curiam : Where a Dublin Regulation transfer decision is challenged under Article 18 of the EU Charter, the ECHR ‘flagrant breach’ standard does not apply. Rather, the test is whether there is a real risk of a breach of Article 18.

[2016] UKUT 452 (IAC)
Bailii
England and Wales

Immigration

Updated: 24 January 2022; Ref: scu.570464

MA (ETS – TOEIC Testing) Nigeria: UTIAC 16 Sep 2016

UTIAC (i) The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive.
(ii) Per curiam: where the voice data generated by TOEIC testing are those of a person other than the person claiming to have undergone the tests, there is no breach of EU or UK data protection laws.

[2016] UKUT 450 (IAC)
Bailii
England and Wales

Immigration, Information

Updated: 24 January 2022; Ref: scu.570465

AB (British Citizenship: Deprivation; Deliallisi Considered) Nigeria: UTIAC 28 Sep 2016

UTIAC (1) As held in Deliallisi (British citizen: deprivation appeal: scope) [2013] UKUT 439 (IAC), in an appeal under section 40A of the British Nationality Act 1981 the Tribunal is required to determine the reasonably foreseeable consequences of deprivation.
(2) Whilst the Tribunal considering a section 40A appeal cannot pre-judge the outcome of any future legal challenge that the appellant might bring against a decision to remove, following deprivation, the Tribunal must nevertheless take a view as to whether, from its present vantage point, there is likely to be force in any future challenge: cf section 94 of the Nationality, Immigration and Asylum Act 2002 and paragraph 353 of the immigration rules. The stronger the potential case, the less likely it will be that the reasonably foreseeable consequences of deprivation will include removal.
(3) A person who had indefinite leave to remain in the United Kingdom, immediately before acquiring British citizenship, does not thereby become entitled to indefinite leave to remain, upon being deprived of such citizenship under section 40 of the 1981 Act. Leave to remain is effectively extinguished by becoming a British citizen, since the system of controls under the Immigration Act 1971 does not apply to British citizens.
(4) In a section 40A appeal, an appellant may rely on the ground that deprivation would have a disproportionate effect, as regards the rights flowing from citizenship of the EU, only if, on the facts, there is a ‘cross-border’ element. The finding to the contrary in Deliallisi was reached per incuriam in the judgment of the Court of Appeal in G1 v Secretary of State for the Home Department [2012] EWCA Civ 867.

[2016] UKUT 451 (IAC)
Bailii
British Nationality Act 1981 40A
England and Wales

Immigration

Updated: 24 January 2022; Ref: scu.570462

Restivo (EEA – Prisoner Transfer) Italy: UTIAC 9 Sep 2016

UTIAC The European Framework Decision 2008/909/JHA has replaced the framework previously set out in the Council of Europe Convention on the Transfer of Sentenced Persons, itself supplemented by the Protocol of 18 December 1997, to provide the framework within which a request may be made to another Member State for the transfer of an EEA national sentenced in the United Kingdom to serve that sentence in his own country. In the United Kingdom context, it is a precondition for making a transfer request that there be in place a deportation order. A decision to make a deportation order is not a decision to transfer a serving prisoner to another Member State to serve his prison there and so in any appeal against a decision to make a deportation order the Tribunal is not concerned with whether there is any legal impediment to such a transfer taking place.
Where the personal conduct of a person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the fact that such threat is managed while that person serves his or her prison sentence is not itself material to the assessment of the threat he or she poses. The threat exists, whether or not it cannot generate further offending simply because the person concerned, being imprisoned, has significantly less opportunity to commit further criminal offences.

[2016] UKUT 449 (IAC)
Bailii
England and Wales

Immigration, European

Updated: 24 January 2022; Ref: scu.570466

Danqua v Minister For Justice And Equality Ireland: ECJ 20 Oct 2016

ECJ Refugee Status : Subsidiary Protection Status : Judgment – Reference for a preliminary ruling – Directive 2004/83/EC – Minimum standards for granting refugee status or subsidiary protection status – National procedural rule laying down, for the submission of an application for subsidiary protection, a period of 15 working days from notification of the rejection of the application for asylum – Procedural autonomy of the Member States – Principle of equivalence – Principle of effectiveness – Proper conduct of the procedure for examining the application for subsidiary protection – Proper conduct of the return procedure – Not compatible

ECLI:EU:C:2016:789, [2016] EUECJ C-429/15
Bailii
Directive 2004/83/EC
European

Immigration

Updated: 24 January 2022; Ref: scu.570369

Czech Republic v Commission – T-141/15: ECFI 20 Oct 2016

ECJ (Judgment) Reference for a preliminary ruling – Directive 2004/83/EC – Minimum standards for granting refugee status or subsidiary protection status – National procedural rule laying down, for the submission of an application for subsidiary protection, a period of 15 working days from notification of the rejection of the application for asylum – Procedural autonomy of the Member States – Principle of equivalence – Principle of effectiveness – Proper conduct of the procedure for examining the application for subsidiary protection – Proper conduct of the return procedure – Not compatible

ECLI:EU:C:2016:789, [2016] EUECJ T-141/15
Bailii
European

Immigration

Updated: 24 January 2022; Ref: scu.570368

The Secretary of State for The Home Department v AJ (Zimbabwe): CA 20 Oct 2016

The court heard appeals with regard to two foreign criminals sentenced to between 12 months’ and four years’ imprisonment for criminal offences and then made subject to a deportation order by the Secretary of State; in each case the deportee successfully appealed on article 8 ECHR grounds to the First Tier Tribunal (FTT); in each case the principal basis of the FTT decision was that deportation would be a disproportionate interference with family life because it would have a significant detrimental effect upon the children of the deported criminal which outweighed the very powerful public interest in deporting foreign criminals and constituted ‘exceptional circumstances’ within the meaning of rule 398 of the Immigration Rules; and in each case a further appeal by the Secretary of State to the Upper Tribunal (UT) failed on the grounds that the decision reached by the FTT displayed no misdirection in law and was an assessment which it could legitimately reach on the evidence.

Elias, Vos LJJ
[2016] EWCA Civ 1012
Bailii
England and Wales

Immigration, Human Rights

Updated: 24 January 2022; Ref: scu.570178

Paoletti And Others: ECJ 6 Oct 2016

ECJ (Judgment) Reference for a preliminary ruling – Article 6 TEU – Article 49 of the Charter of Fundamental Rights of the European Union – Principle of retroactivity of the more lenient criminal law – Italian nationals having organised the illegal entry into Italy of Romanian nationals – Acts carried out before the accession of Romania to the European Union – Effect of Romania’s accession on the criminal offence of facilitation of illegal immigration – Implementation of EU law – Jurisdiction of the Court

ECLI:EU:C:2016:748, [2016] EUECJ C-218/15
Bailii
Charter of Fundamental Rights of the European Union 49, TEU 6
European

Human Rights, Crime, Immigration

Updated: 24 January 2022; Ref: scu.570141

Kashif, Regina (on The Application of) v Secretary of State for The Home Department (JR Jurisdiction: Applicant In Scotland (IJR): UTIAC 19 Jul 2016

UTIAC The Upper Tribunal’s jurisdiction to decide an application for Judicial Review is not affected by the applicant’s being in Scotland. The Tribunal will, however, consider issues of forum non conveniens if it is suggested that its jurisdiction should not be exercised.

[2016] UKUT 375 (IAC)
Bailii
England and Wales

Immigration

Updated: 23 January 2022; Ref: scu.569347

Jan (Upper Tribunal: Set-Aside Powers : Pakistan): UTIAC 7 Jul 2016

UTIAC The decision of the Court of Appeal in Patel [2015] EWCA Civ 1175 entails the view that the Upper Tribunal’s powers to set aside its own decisions are limited to those in rules 43 and 45-6 of the Upper Tribunal Rules.

[2016] UKUT 336 (IAC)
Bailii
England and Wales
Citing:
Cited – Patel and Others v The Secretary of State for The Home Department CA 19-Nov-2015
The Upper Tribunal had refused the applicant permission to appeal, and the High Court had, in judicial review proceedings, quashed that refusal. The application for permission thus awaited lawful determination by the Upper Tribunal, and a hearing . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 23 January 2022; Ref: scu.569346

Rexha (S117C – Earlier Offences : Albania): UTIAC 5 Jul 2016

UTIAC The purpose and intention of Parliament in incorporating section 117C of the Nationality, Immigration and Asylum Act 2002 was to ensure that all of the criminal convictions providing a reason for the deportation decision are to be examined within the framework provided by that section.
What is required when undertaking the exercise required by sections 117C(1) to (6) is careful scrutiny of those offences which are on a person’s criminal record which have provided a reason for the decision to deport.
The IDIs do not fully reflect section 117C(7) in that it is not necessarily the case that, once a foreign criminal has been convicted and sentenced to more than four years’ imprisonment, he will never be eligible to be considered under the Exceptions.

[2016] UKUT 335 (IAC)
Bailii
Nationality, Immigration and Asylum Act 2002 117C
England and Wales

Immigration

Updated: 23 January 2022; Ref: scu.569348

In re Abdul Manan: CA 1971

The applicant was a Pakistani seaman who had deserted from his ship and his presence in the UK was unlawful under the 1962 Act. He nevertheless claimed to be entitled to enter and remain as a person who had been ordinarily resident here for two years.
Held: The court rejected his claim: ‘The point turns on the meaning of ‘ordinarily resident’ in these statutes. If this were an income tax case he would, I expect, be held to be ordinarily resident here. But it is not an income tax case. It is an immigration case. In these statutes ‘ordinarily resident’ means lawfully ordinarily resident here. The word ‘lawfully’ is often read into a statute: see, for instance, Adlam v Law Society [1968] 1 WLR 6. It should be read into these statutes.’

Lord Denning MR
[1971] 1 WLR 859
Commonwealth Immigrants Act 1962
England and Wales
Citing:
Cited – Adlam v Law Society 1968
The word ‘lawfully’ is often read into a statute . .

Cited by:
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Cited – Bibi and others v Entry Clearance Officer, Dhaka CA 18-Jul-2007
The deceased had come to live in the UK and obtain citizenship under somebody else’s identity. After his death his wife and children sought clearance to come to live here.
Held: Her appeal failed. The residence of her late husband was . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 22 January 2022; Ref: scu.228185

Chundawadra v Immigration Appeal Tribunal: CA 1988

Ratification of the European Convention on Human Rights did not create a justiciable legitimate expectation that the Convention’s provisions would be complied with. Slade LJ said there was no evidence of ‘any relevant express promise or regular practice on the part of the Secretary of State. In default of such promise or practice, however, I do not see how the doctrine of legitimate expectation can avail the appellant.’

Slade LJ
[1988] IAR 161
England and Wales
Cited by:
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 22 January 2022; Ref: scu.182462

Ibrahimi and Another v The Secretary of State for The Home Department: Admn 5 Aug 2016

This case concerns the prohibition on ‘refoulement’. The expression ‘refoulement’ refers to a principle which condemns the rendering of a victim of persecution to his or her persecutor. Generally, the persecutor in question is a state actor. The principle that a person should not be refouled is a fundamental tenet of international law relating to refugees which protects them from being returned or expelled to places where their lives or freedoms may be threatened.

Green J
[2016] EWHC 2049 (Admin)
Bailii
England and Wales

Immigration, Human Rights

Updated: 21 January 2022; Ref: scu.568009

Samba Diouf v Minister of Labour, Employment and Immigration: ECJ 28 Jul 2011

ECJ Directive 2005/85/EC – Minimum standards on procedures in Member States for granting and withdrawing refugee status – ‘Decision taken on [the] application for asylum’ within the meaning of Article 39 of Directive 2005/85 – Application by a third country national for refugee status – Failure to provide reasons justifying the grant of international protection – Application rejected under an accelerated procedure – No remedy against the decision to deal with the application under an accelerated procedure – Right to effective judicial review
The Procedures Directive lays down minimum standards. Article 39 requires Member States to ensure that applicants have the right to ‘an effective remedy’, not that they should have the most effective remedy.

[2011] EUECJ C-69/10, [2012] 1 CMLR 8, ECLI:EU:C:2011:524
Bailii
Directive 2005/85/EC
Citing:
Opinion – Samba Diouf v Minister of Labour, Employment and Immigration ECJ 1-Mar-2011
ECJ (Area of Freedom, Security and Justice) Request by a citizen of a country seeking refugee status – Rejection of this request, as part of a national process accelerated in the absence of reasons justifying the . .

Cited by:
Cited – TN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .
Cited – TN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .

Lists of cited by and citing cases may be incomplete.

European, Immigration

Updated: 20 January 2022; Ref: scu.567850

Kucherov, Regina (on The Application of) v The Secretary of State for The Home Department: CA 29 Jul 2016

Appeal against dismissal of an application for judicial review of two decisions made in August 2013 refusing her entry clearance to the UK and of the decision to make an associated removal direction.

P QBD. McFarlane, McCombe LJJ
[2016] EWCA Civ 791
Bailii
England and Wales

Immigration

Updated: 20 January 2022; Ref: scu.567806

T, Regina (on The Application of) v Secretary of State for The Home Department: CA 28 Jul 2016

Appeal by T, against an order dismissing her claim for judicial review of the decision of the Secretary of State to refuse her application under what is known as the ‘Destitute Domestic Violence Concession’

Moore-Bick, Longmore, Macur LJJ
[2016] EWCA Civ 801
Bailii
England and Wales

Immigration, Family

Updated: 20 January 2022; Ref: scu.567723