Category: Immigration

OO (Gay Men) (CG): UTIAC 26 Jan 2016

1. Although the Algerian Criminal Code makes homosexual behaviour unlawful, the authorities do not seek to prosecute gay men and there is no real risk of prosecution, even when the authorities become aware of such behaviour. In the very few cases where there has been a prosecution for homosexual behaviour, there has been some other feature that has given rise to the prosecution. The state does not actively seek out gay men in order to take any form of action against them, either by means of prosecution or by subjecting gay men to other forms of persecutory ill-treatment.
2. Sharia law is not applied against gay men in Algeria. The criminal law is entirely secular and discloses no manifestation, at all, of Sharia law in its application.
3. The only risk of ill-treatment at a level to become persecution likely to be encountered by a gay man in Algeria is at the hands of his own family, after they have discovered that he is gay. There is no reliable evidence such as to establish that a gay man, identified as such, faces a real risk of persecutory ill-treatment from persons outside his own family.
4. Where a gay man remains living with his family to whom he has disclosed his sexual orientation in circumstances where they are prepared to tolerate that, his decision to live discreetly and to conceal his homosexuality outside the family home is not taken to avoid persecution but to avoid shame or disrespect being brought upon his family. That means that he has chosen to live discreetly, not to avoid persecution but for reasons that do not give rise to a right to international protection.
5. Where a gay man has to flee his family home to avoid persecution from family members, in his place of relocation he will attract no real risk of persecution because, generally, he will not live openly as a gay man. As the evidence does not establish that he will face a real risk of persecution if subsequently suspected to be a gay man, his decision to live discreetly and to conceal his sexual orientation is driven by respect for social mores and a desire to avoid attracting disapproval of a type that falls well below the threshold of persecution. Quite apart from that, an Algerian man who has a settled preference for same sex relationships may well continue to entertain doubts as to his sexuality and not to regard himself as a gay man, in any event.
6. For these reasons, a gay man from Algeria will be entitled to be recognised as a refugee only if he shows that, due to his personal circumstances, it would be unreasonable and unduly harsh to expect him to relocate within Algeria to avoid persecution from family members, or because he has a particular characteristics that might, unusually and contrary to what is generally to be expected, give rise to a risk of attracting disapproval at the highest level of the possible range of adverse responses from those seeking to express their disapproval of the fact of his sexual orientation.

[2016] UKUT 65 (IAC)
Bailii
England and Wales

Immigration

Updated: 11 January 2022; Ref: scu.560535

TD and AD (Trafficked Women) (CG): UTIAC 9 Feb 2016

Much of the guidance given in AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC) is maintained. Where that guidance has been amended or supplemented by this decision it has been highlighted in bold:
‘a) It is not possible to set out a typical profile of trafficked women from Albania: trafficked women come from all areas of the country and from varied social backgrounds.
b) Much of Albanian society is governed by a strict code of honour which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return but also will affect their ability to relocate internally. Those who have children outside marriage are particularly vulnerable. In extreme cases the close relatives of the trafficked woman may refuse to have the trafficked woman’s child return with her and could force her to abandon the child.
c) Some women are lured to leave Albania with false promises of relationships or work. Others may seek out traffickers in order to facilitate their departure from Albania and their establishment in prostitution abroad. Although such women cannot be said to have left Albania against their will, where they have fallen under the control of traffickers for the purpose of exploitation there is likely to be considerable violence within the relationships and a lack of freedom: such women are victims of trafficking.
d) In the past few years the Albanian government has made significant efforts to improve its response to trafficking. This includes widening the scope of legislation, publishing the Standard Operating Procedures, implementing an effective National Referral Mechanism, appointing a new Anti-trafficking Co-ordinator, and providing training to law enforcement officials. There is in general a Horvath-standard sufficiency of protection, but it will not be effective in every case. When considering whether or not there is a sufficiency of protection for a victim of trafficking her particular circumstances must be considered.
e) There is now in place a reception and reintegration programme for victims of trafficking. Returning victims of trafficking are able to stay in a shelter on arrival, and in ‘heavy cases’ may be able to stay there for up to 2 years. During this initial period after return victims of trafficking are supported and protected. Unless the individual has particular vulnerabilities such as physical or mental health issues, this option cannot generally be said to be unreasonable; whether it is must be determined on a case by case basis.
f) Once asked to leave the shelter a victim of trafficking can live on her own. In doing so she will face significant challenges including, but not limited to, stigma, isolation, financial hardship and uncertainty, a sense of physical insecurity and the subjective fear of being found either by their families or former traffickers. Some women will have the capacity to negotiate these challenges without undue hardship. There will however be victims of trafficking with characteristics, such as mental illness or psychological scarring, for whom living alone in these circumstances would not be reasonable. Whether a particular appellant falls into that category will call for a careful assessment of all the circumstances.
g) Re-trafficking is a reality. Whether that risk exists for an individual claimant will turn in part on the factors that led to the initial trafficking, and on her personal circumstances, including her background, age, and her willingness and ability to seek help from the authorities. For a proportion of victims of trafficking, their situations may mean that they are especially vulnerable to re-trafficking, or being forced into other exploitative situations.
h) Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following:
1) The social status and economic standing of her family
2) The level of education of the victim of trafficking or her family
3) The victim of trafficking’s state of health, particularly her mental health
4) The presence of an illegitimate child
5) The area of origin
6) Age
7) What support network will be available.

[2016] UKUT 92 (IAC)
Bailii
England and Wales

Immigration

Updated: 11 January 2022; Ref: scu.560542

AR and NH (Lesbians) (CG): UTIAC 1 Feb 2016

UTIAC (1) The guidance in MD (same-sex oriented males) India CG [2014] UKUT 65 (IAC) stands. The guidance at (a) – (f) in MD (India) applies equally to lesbians.
(2) A risk of persecution or serious harm for a lesbian woman in India, where it exists, arises from her family members, and the extent of such risk, and whether it extends beyond the home area, is a question of fact in each case.
(3) The risk of persecution or serious harm is higher for uneducated lower class lesbian women in rural areas, who remain under the control of their family members and may not be permitted to leave the home to continue meeting their lesbian partners.
(4) Where family members are hostile to a lesbian woman’s sexuality, they may reject her completely and sometimes formally renounce her as a member of that family. In such a case, whether relocation to a city is unduly harsh will be a question of fact, depending on the ability of such a lesbian woman to survive economically away from her family and social networks.
(5) If a lesbian woman’s family wishes to pursue and harm her in the place of internal relocation, their ability to do so will depend on the reach of the family network, how persistent they are, and how influential. The evidence indicates that there is normally sufficient state protection for women whose families seek to harm them in their place of internal relocation.

(6) In general, where there is a risk of persecution or serious harm in a lesbian woman’s home area, for educated, and therefore ‘middle class’ women, an internal relocation option is available. They are likely to be able to relocate to one of the major cities in India and are likely to be able to find employment and support themselves, albeit with difficulty, and to live together openly, should they choose to do so. In general, such relocation will not be unduly harsh

[2016] UKUT 66 (IAC)
Bailii
England and Wales

Immigration

Updated: 11 January 2022; Ref: scu.560540

Alo (Judgment): ECJ 1 Mar 2016

ECJ Reference for a preliminary ruling – Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 – Articles 23 and 26 – Area of freedom, security and justice – Directive 2011/95/EU – Rules relating to the content of international protection – Subsidiary protection status – Article 29 – Social welfare – Conditions of access – Article 33 – Freedom of movement within the host Member State – Definition – Restriction – Obligation to reside in a particular place – Different treatment – Comparable situations – Balanced distribution of budgetary costs between local authorities – Grounds of migration or integration policy

ECLI:EU:C:2016:127, [2016] EUECJ C-443/14
Bailii
European

Immigration

Updated: 10 January 2022; Ref: scu.560499

Secretary of State for The Home Department v Ize-Iyamu: CA 1 Mar 2016

‘This appeal is concerned with the intricacies of the legislation governing the acquisition of what is known as ‘the right of abode’, that is, the unrestricted right to live in this country and to enter and leave it without the need to obtain any kind of formal grant of leave under the legislation governing the movement of those who are not British citizens.’

Moore-Bick VP CA, Beatson, Underhill LJJ
[2016] EWCA Civ 118
Bailii
England and Wales

Immigration

Updated: 10 January 2022; Ref: scu.560444

A, Regina (on the Application of) v Home Secretary: Admn 27 Nov 2003

Application by detainees for judicial review of the decision of the Secretary of State to permit them to be interviewed by journalists but only if the interviews are conducted within earshot of officials and are tape recorded. The claimants challenge the monitoring conditions which the Secretary of State has imposed, contending that they contravene Article 10 of the European Convention on Human Rights.

Kennedy LJ, Royce J
[2003] EWHC 2846 (Admin)
Bailii
England and Wales

Media, Prisons, Immigration

Updated: 10 January 2022; Ref: scu.188501

JN v Staatssecretaris Van Veiligheid En Justitie: ECJ 15 Feb 2016

ECJ Reference for a preliminary ruling – Urgent preliminary ruling procedure – Standards for the reception of applicants for international protection – Directive 2008/115/EC – Lawful residence – Directive 2013/32/EU – Article 9 – Right to remain in a Member State – Directive 2013/33/EU – Point (e) of the first subparagraph of Article 8(3) – Detention – Protection of national security or public order – Validity – Charter of Fundamental Rights of the European Union – Articles 6 and 52 – Limitation – Proportionality

ECLI:EU:C:2016:84, [2016] EUECJ C-601/15, [2016] WLR(D) 166, [2016] 1 WLR 3027
Bailii, WLRD
Directive 2013/32/EU 9, Directive 2013/33/EU 8(3)(e), Charter of Fundamental Rights of the European Union 6 52
European

Immigration, Human Rights, Limitation

Updated: 10 January 2022; Ref: scu.559879

Grant v Borg: HL 22 Apr 1982

Immigration — Limited leave to enter — Criminal proceedings — Information preferred more than three years after expiry of leave to remain — ‘Knowingly’ overstaying leave — Relevant date for ascertaining when time begins to run for bringing prosecution — Immigration Act 1971 (c. 77), ss. 24 (1) (b) (i) (3), 28 (1)

[1982] UKHL 15, [1982] 2 All ER 257, [1982] 1 WLR 638
Bailii
England and Wales

Immigration

Updated: 10 January 2022; Ref: scu.559774

Clarke, Regina v: HL 20 Jun 1985

The respondent was arrested by a police officer who mistakenly believed that he was in unlawful possession of a car. He was taken to a police station for questioning but after he had been cleared of that suspicion the police officer told the respondent that he had reason to suspect that he was unlawfully resident in the United Kingdom. The respondent falsely stated that he was born in the United Kingdom, that he was a British subject and that he possessed a British passport. The respondent was arrested as a suspected illegal entrant or resident and charged under s 26(1)(c) of the Immigration Act 1971 with having made a false statement to ‘an immigration officer or other person lawfully acting in the execution of [the] Act’. The police officer claimed to be a ‘person lawfully acting in the execution of [the] Act’. The respondent was convicted by magistrates but the Crown Court quashed the conviction. An appeal by the Crown to the Divisional Court was dismissed and the Crown appealed to the House of Lords.
Held — On the true construction of s 26(1)(c) of the 1971 Act a person could only claim to be ‘acting in the execution of [the] Act’ if he was acting in the performance of a duty imposed by, or in the exercise of a power conferred by, that Act and an offence under s 26(1)(c) was committed only if the false statement was addressed to a person in the course of a specific procedure under the Act in which that person’s statutory function involved the obtaining or receipt of information relevant to the performance of that function. Since the police officer had not been acting in the execution of functions conferred on him by or under the 1971 Act when questioning the respondent even though he had reasonable cause to suspect that an offence under the Act had been committed, the officer had not been ‘lawfully acting in the execution of [the] Act’. It followed that the Crown’s appeal would be dismissed (

Scarman, Diplock, Bridge of Harwich, Brandon of Oakwood, Brightman LL
[1985] UKHL 14, [1985] Crim LR 666, [1985] 3 WLR 113, [1985] 1 AC 1037, 81 Cr App Rep 220, [1985] 2 All ER 777
Bailii
Immigration Act 1971 26(1)(c)
England and Wales

Crime, Immigration

Updated: 10 January 2022; Ref: scu.559760

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

The court was asked whether the appellant was entitled to the benefit of the leeway provided by the case of Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC) in relation to students whose Tier 4 (General) sponsor ceases to run the course on which they are enrolled and whether that case was rightly decided.

Arden, Beatson, Christopher Clarke LJJ
[2016] EWCA Civ 36
Bailii
England and Wales

Immigration

Updated: 09 January 2022; Ref: scu.559379

Johnson, Regina (on The Application of) v The Secretary of State for The Home Department: CA 26 Jan 2016

The appellant was Jamaican by birth, but had lived here with his British father since the age of four. Had his parents been married, he would have had British nationality. As he grew to an adult he was convicted on several serious matters. He now said that a deportation would infringe his article 8 rights to family life.
Held: The SS’ appeal succeeded. That he would not have been deported had his parents been married was not discriminatory. Any discrimination occurred at his birth, and long before the HRA came into effect.

Laws, Arden, Lindblom LJJ
[2016] EWCA Civ 22, [2016] WLR(D) 31, [2016] 4 WLR 53
Bailii, WLRD
UK Borders Act 2007 32(5)
England and Wales
Citing:
Cited – Genovese v Malta ECHR 11-Oct-2011
The applicant was illegitimate, born to a British mother and a Maltese father. Paternity had been established scientifically and in judicial proceedings. The father refused to recognise his son on the birth certificate, and the applicant’s mother . .
At Admn – Johnson, Regina (on The Application of) v The Secretary of State for The Home Department Admn 17-Jul-2014
The court was asked whether the Claimant’s proposed deportation to Jamaica, following his conviction and imprisonment for a very serious criminal offence, involves a violation of article 14 in conjunction with article 8 of the European Convention on . .

Cited by:
Cited – Johnson, Regina (on The Application of) v Secretary of State for The Home Department SC 19-Oct-2016
The court was asked: ‘Is it compatible with the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were not married to one another at the time of his birth or . .
At CA – Johnson, Regina (on The Application of) v Secretary of State for The Home Department SC 19-Oct-2016
The court was asked: ‘Is it compatible with the European Convention on Human Rights to deny British citizenship to the child of a British father and a non-British mother simply because they were not married to one another at the time of his birth or . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 09 January 2022; Ref: scu.559285

Warsame v The Secretary of State for The Home Department: CA 21 Jan 2016

The court was asked as to the extent to which a sentence of imprisonment legally interrupts a period of continuous residence which is required for the purpose of acquiring a right not to be deported from one EU Member State to another.

Longmore, Lewison. Kitchin LJJ
[2016] EWCA Civ 16, [2016] 4 WLR 77, [2016] Imm AR 645, [2016] WLR(D) 29, [2016] INLR 619, [2016] 2 CMLR 28
Bailii, WLRD
England and Wales

Immigration

Updated: 09 January 2022; Ref: scu.559159

Machnikowski v The Secretary of State for The Home Department: Admn 22 Jan 2016

Judicial review as to (a) whether the detention of the claimant had lasted too long and so become unlawful and (b) whether the defendant unlawfully failed to provide him with accommodation under section 4(1)(c) of the

Kerr J
[2015] EWHC 54 (Admin), [2016] WLR(D) 30
Bailii, WLRD
Immigration and Asylum Act 1999 4(1)(c)

Immigration, Torts – Other

Updated: 09 January 2022; Ref: scu.559162

OE (Jamaica) v Secretary of State for The Home Department: CA 17 Jun 2015

Renewed application for permission to appeal from the order of the Upper Tribunal refusing permission to seek judicial review of a series of decisions of the Secretary of State in which the Secretary of State refused to treat further submissions as a fresh claim for the purposes of Immigration Rule 353.

Arden LJ
[2015] EWCA Civ 827
Bailii
England and Wales

Immigration

Updated: 09 January 2022; Ref: scu.558716

YH, Regina (on The Application of) v Secretary of State for The Home Department: CA 25 Feb 2010

‘how the Secretary of State or the courts should respond to ‘repeat’ claims for asylum or human rights protection: that is, claims by those who, having been through the decision-making system unsuccessfully, come back to the Secretary of State with further submissions raising the same or similar allegations, either while still in the country, or (as in this case) having left and returned. ‘

Carnwath LJ
[2010] EWCA Civ 116, [2010] 4 All ER 448
Bailii
England and Wales

Immigration

Updated: 08 January 2022; Ref: scu.401846

HE (Bidoon, Statelessness, Risk of Persecution) Kuwait CG: IAT 21 Jun 2006

IAT Though there has been some progress in their situation, stateless Bidoon remain at risk of persecution and breach of their Article 3 rights in Kuwait. There has been no material change since BA and Others (Bidoon – statelessness – risk of persecution) Kuwait CG [2004] UKIAT 00256 was decided.

[2006] UKAIT 00051
Bailii
England and Wales

Immigration

Updated: 08 January 2022; Ref: scu.244050

DG (Risk, Nepalese) Bhutan CG: IAT 15 Jul 2003

‘it cannot be argued that the Nepalese minority are persecuted by reason of their Nepalese origins alone. Each case must be looked at on its own individual circumstances. If the Appellant is permitted to re-enter Bhutan, we are not satisfied that he will be treated in any different way from any other member of the Nepalese minority. We are not satisfied the Appellant would not be recognised as a citizen of Bhutan. If he had been deprived of his citizenship we do not understand why he would continue to describe himself as a citizen of Bhutan. In our view the discrimination faced by those of Nepalese ethnic origin does not amount to persecution. ‘

[2003] UKIAT 00205
Bailii
England and Wales

Immigration

Updated: 08 January 2022; Ref: scu.221068

SS, Regina (on The Application of) v Secretary of State for The Home Department: Admn 16 Dec 2015

The claimant challenges the defendant’s decisions to:
i) refuse the claimant’s fresh claim submissions (‘fresh claim’);
ii) detain the claimant (‘unlawful detention’); and
iii) remove the claimant before notifying him of her decision on his fresh claim submissions (‘removal decision prior to fresh claim decision’).
The claimant succeeds in his fresh claim challenge insofar as it comprises submission of the report by Mr Sellwood about the claimant’s learning disabilities. However, the claimant fails to establish unlawful detention, and also fails in his challenge to the defendant’s removal decision prior to fresh claim decision.

Alexandra Marks
[2015] EWHC 3595 (Admin)
Bailii
England and Wales

Immigration, Torts – Other

Updated: 08 January 2022; Ref: scu.557156

West, Regina (on The Application of) v Secretary of State for The Home Department: Admn 15 Dec 2015

The claimant was to be deported on completion of his prison sentence, but he now complained that the decision as to his true nationality was taking such a long time as to make his continued detention unlawful.

Philip Mott QC
[2015] EWHC 3627 (Admin)
Bailii
England and Wales

Immigration, Torts – Other

Updated: 08 January 2022; Ref: scu.557158

Rogee, Regina (on The Application of) v Secretary of State for The Home Department: Admn 15 Dec 2015

The Court was asked whether the Defendant was entitled to certify the Claimant’s asylum claim as ‘clearly unfounded’ pursuant to Schedule 3, Part 2, paragraph 5(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. If that certification stands, the Claimant can be sent to Italy, as the Defendant seeks to do, and the Claimant will have no in-country right of appeal against that decision.

Whipple J
[2015] EWHC 3645 (Admin)
Bailii
England and Wales

Immigration

Updated: 08 January 2022; Ref: scu.557152

Tall v Centre public d’action sociale de Huy: ECJ 17 Dec 2015

ECJ Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2005/85/EC – Minimum standards on procedures in Member States for granting and withdrawing refugee status – Article 39 – Right to an effective remedy – Multiple asylum claims – Non-suspensory effect of an appeal against a decision of the competent national authority not to further examine a subsequent application for asylum – Social protection – Charter of Fundamental Rights of the European Union – Article 19(2) – Article 47

[2015] EUECJ C-239/14, ECLI:EU:C:2015:824
Bailii
Directive 2005/85/EC
European

Immigration

Updated: 08 January 2022; Ref: scu.557038

Kaitey, Regina (on The Application of) v Secretary of State for The Home Department: CA 10 Dec 2021

Whether the Secretary of State has the power to place a person on bail under para. 1(2) of Sch. 10 to the Immigration Act 2016 (‘the 2016 Act’) in circumstances where it would be unlawful to detain them. According to the evidence before the Court there may be more than 90,000 people who are currently on ‘immigration bail’, as it is described in the 2016 Act, some of whom (like this Appellant) cannot lawfully be detained.

Lord Justice Singh,
Lord Justice Nugee,
And,
Sir Stephen Richards
[2021] EWCA Civ 1875
Bailii
England and Wales

Immigration

Updated: 08 January 2022; Ref: scu.670461