Category: Immigration

Secretary of State for The Home Department v Straszewski: CA 3 Dec 2015

Appeals by the Secretary of State against decisions of the Upper Tribunal raising questions concerning the application of Regulation 21 of the 2006 Regulations.

Moore-Bick VP CA, Davis, Sharp LJJ
[2015] EWCA Civ 1245
Bailii
Immigration (European Economic Area) Regulations 2006
England and Wales

Immigration, European

Updated: 07 January 2022; Ref: scu.556459

TY (Sri Lanka) v The Secretary of State for The Home Department: CA 1 Dec 2015

‘appeal against a decision of the Upper Tribunal that (i) the appellant has no derivative right to remain in the United Kingdom under the Immigration (European Economic Area) Regulations 2006 (‘the EEA Regulations’) and (ii) in the context of the appellant’s appeal under the EEA Regulations the Upper Tribunal had no jurisdiction to consider a claim for asylum or leave to remain on human rights grounds. The issue before this court is whether the Upper Tribunal was right to confine itself to the appellant’s claim under the EEA Regulations.’

Jackson, Black, Briggs LJJ
[2015] EWCA Civ 1233
Bailii
England and Wales

Immigration

Updated: 07 January 2022; Ref: scu.556235

Shah, Regina (on The Application of) v Secretary of State for The Home Department: CA 6 Oct 2015

Renewed application for permission to appeal against a decision dismissing the applicant’s application for judicial review impugning the Secretary of State’s delay in reaching a decision upon the applicant’s application for limited leave to remain in the United Kingdom as a parent.

Laws LJ
[2015] EWCA Civ 1114
Bailii
England and Wales

Immigration

Updated: 07 January 2022; Ref: scu.556230

HS (India) v Secretary for The Home Department: CA 2 Jul 2015

Renewed application for permission to appeal against a determination dismissing the applicant’s appeal against the decision of the First-tier Tribunal to uphold the respondent’s decision to refuse him indefinite leave to remain in the United Kingdom in order to safeguard his rights under Article 8 of the European Convention on Human Rights.

Moore-Bick LJ
[2015] EWCA Civ 970
Bailii
European Convention on Human Rights 8
England and Wales

Immigration, Human Rights

Updated: 07 January 2022; Ref: scu.556219

VW (Uganda) v Secretary of State for the Home Department; Similar: CA 16 Jan 2009

The appellant sought leave to enter or remain, saying that a refusal would separate him from his family, and be a disproportionate and unlawful interference with his Article 8 rights to a family life.
Held: An applicant had to show more than mere hardship, or only difficulty or obstacle. He would have to identify and prove such elements at a level of seriousness which went beyond matters of choice or convenience. VW’s appeal succeeded, but others failed.

Mummery, Sedley and Wilson LJJ
[2009] EWCA Civ 5, [2009] WLR (D) 7
Bailii
European Convention on Human Rights 8
England and Wales
Cited by:
Cited – Batista v Secretary of State for The Home Department CA 29-Jul-2010
The claimant appealed against a deportation order requiring his return to Portugal. He said that when considering the effect of the order on his family, the AIT had applied the wrong test.
Held: The appeal succeeded. The test to be applied was . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 January 2022; Ref: scu.280015

AS (Pakistan) v Secretary of State for the Home Department: CA 15 Oct 2008

The claimant sought to appeal an order that he be deported and returned to Pakistan on the basis that his continued presence here was not conducive to the public good. He came on a student visa and married a woman he met here. He had however been convicted of a serious motoring offence.

Moore-Bick LJ, Rimer LJ
[2008] EWCA Civ 1118
Bailii
England and Wales

Immigration

Updated: 07 January 2022; Ref: scu.276931

DB (Sufficiency of Protection, IFA) Algeria CG: IAT 5 Apr 2002

‘The situation in Algeria is far from ideal. The Tribunal is satisfied applying the tests as set out in Horvath that there is a sufficiency of protection for the appellant in Algeria if he is returned there. He no longer works for the army. Whilst the Tribunal accepts that he has brother who is a commander in the army the indications are that the GIA can no longer get at relatives or family members of the military. The Reports indicate that the target is the general populace but this does not detract from our finding that there is a sufficiency of protection.’

[2002] UKIAT 01013
Bailii
England and Wales

Immigration

Updated: 07 January 2022; Ref: scu.221822

Kanwal, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 22 Jul 2021

Application for judicial review of the decisions made by the Defendant, the Secretary of State for the Home Department on 10 October 2019, to:
i) Curtail the Claimant’s leave to remain in the United Kingdom;
ii) Remove the Claimant from the United Kingdom; and
iii) Detain the Claimant.

Neil Cameron QC,
Sitting as a Deputy High Court Judge
[2021] EWHC 2071 (Admin)
Bailii
England and Wales

Immigration

Updated: 07 January 2022; Ref: scu.666451

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 was arranged in order to determine it and, if appropriate, any resulting appeal. The Tribunal considered the substantive grounds and decided to grant permission. It then commenced the hearing of the appeal and discovered what had not previously been made clear either to the Tribunal or to the judge who dealt with the judicial review, that the application which the Tribunal had originally refused was substantially out of time. It thereupon purported to rescind its decision granting leave, substituted a decision refusing leave, and declined to consider the substantive appeal.
Held: The Court was faced with the difficulty that the Tribunal had clearly made two decisions. If the Tribunal had no jurisdiction to set aside its decision granting permission, the second decision, refusing permission, nevertheless had to be dealt with as it stood unless quashed by an appropriate Superior Court. Section 10 of the 2007 Act permits review of a decision, but not if the decision is an excluded decision. There had in the present case been a decision; but, being a decision on an application for permission to appeal, it was an excluded decision. The Tribunal accordingly had no power to review its decision under s. 10 and accordingly no power to set aside the grant of permission.

Lewison LJ, Sir Richard Aikens
[2015] EWCA Civ 1175, [2016] CP Rep 9, [2016] Imm AR 444
Bailii
England and Wales
Cited by:
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 06 January 2022; Ref: scu.554781

ZS (Afghanistan), Regina (on The Application of) v Secretary of State for The Home Department: CA 6 Nov 2015

The claimant appealed against decisions that his immigration detention had not been unlawful and not to treat a claim for asylum as a fresh claim and refusing the appellant discretionary leave to remain in response to that renewed application.

Black, Tomlinson, Burnett LJJ
[2015] EWCA Civ 1137
Bailii
England and Wales

Immigration

Updated: 06 January 2022; Ref: scu.554535

MG, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 5 Nov 2015

The Claimant seeks judicial review of decisions of the Secretary of State relating to the provision of accommodation under Section 95 of the 1999 Act and the refusal of the Claimant’s request for travel expenses in order to assist him in visiting his son in Canterbury, his accommodation being near Portsmouth.

Michael Kent QC HHJ
[2015] EWHC 3142 (Admin)
Bailii
Immigration and Asylum Act 1999 95

Immigration

Updated: 05 January 2022; Ref: scu.554289

Farquharson (Removal – Proof of Conduct) Jamaica: UTIAC 8 Apr 2013

UTIAC (1) Where the respondent relies on allegations of conduct in proceedings for removal, the same principles apply as to proof of conduct and the assessment of risk to the public, as in deportation cases: Bah [2012] UKUT 196 (IAC) etc applicable.
(2) A criminal charge that has not resulted in a conviction is not a criminal record; but the acts that led to the charge may be established as conduct.
(3) If the respondent seeks to establish the conduct by reference to the contents of police CRIS reports, the relevant documents should be produced, rather than a bare witness statement referring to them.
(4) The material relied on must be supplied to the appellant in good time to prepare for the appeal.
(5) The judge has a duty to ensure a fair hearing is obtained by affording the appellant sufficient time to study the documents and respond.
(6) Where the appellant is in detention and faces a serious allegation of conduct, it is in the interests of justice that legal aid is made available.

Blake J, Lane UTJ, Sir Jeffrey James
[2013] UKUT 146 (IAC)
Bailii
England and Wales

Immigration

Updated: 05 January 2022; Ref: scu.472151

AC (Pakistan) v Secretary of State for the Home Department: CA 9 Apr 2008

Application for permission to appeal against a dismissal of appeal from decision of Secretary of State to remove the appellant as an overstayer. Removal would contravene his rights under Article 8 of the European Convention on Human Rights.

[2008] EWCA Civ 509
Bailii
European Convention on Human Rights 8
England and Wales

Immigration, Human Rights

Updated: 05 January 2022; Ref: scu.267893

Byndloss, Regina (on The Application of) v The Secretary of State for The Home Department: CA 23 Jun 2015

Permission to appeal – certificate as to need for out of country appeals

Lord Dyson MR, Underhill LJ
[2015] EWCA Civ 678
Bailii
England and Wales
Cited by:
Leave – Kiarie, Regina (on The Application of) v The Secretary of State for The Home Department CA 13-Oct-2015
The claimants challenged the rules disallowing their appeal against a decision for their expulsion as unconducive to the public good, unless made ‘out of country’, saying that this infringed their human rights to private and family life.
Held: . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 January 2022; Ref: scu.553838

Drammeh, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 26 Oct 2015

Claim for judicial review of (i) the Defendant’s decision as confirmed, refusing to accept the Claimant’s representations as a fresh asylum and human rights claim, and (ii) the lawfulness of the Claimant’s detention under immigration powers from 21 November 2014 to 17 April 2015.

Andrews DBE J
[2015] EWHC 2984 (Admin)
Bailii

Immigration, Torts – Other

Updated: 05 January 2022; Ref: scu.553784

W, X, Y and Z, Regina (on The Application of) v The Secretary of State for Health and Others: CA 14 Oct 2015

The claimants challenged the guidance given by the respondent for the implementation of the 2011 Regulations, and in particular for the recovery of sums said to be overpaid.

Lord Dyson MR, Briggs, Bean LJJ
[2015] EWCA Civ 1034
Bailii
National Health Service (Charges to Overseas Visitors) Regulations 2011, Immigration Rules
England and Wales

Health, Immigration, Benefits

Updated: 04 January 2022; Ref: scu.553442

Kiarie, Regina (on The Application of) v The Secretary of State for The Home Department: CA 13 Oct 2015

The claimants challenged the rules disallowing their appeal against a decision for their expulsion as unconducive to the public good, unless made ‘out of country’, saying that this infringed their human rights to private and family life.
Held: The appeals succeeded. Each had served terms of imprisonment for drugs related offences.

Richards, Elias, McCombee LJJ
[2015] EWCA Civ 1020, [2016] 3 All ER 741, [2016] Imm AR 209, [2015] WLR(D) 410, [2016] 1 WLR 1961, [2016] INLR 212
Bailii, WLRD
Nationality, Immigration and Asylum Act 2002, European Convention on Human Rights 6
England and Wales
Citing:
Leave – Byndloss, Regina (on The Application of) v The Secretary of State for The Home Department CA 23-Jun-2015
Permission to appeal – certificate as to need for out of country appeals . .

Cited by:
Appeal from – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 04 January 2022; Ref: scu.553289

Bakhtiyar, Regina (on The Application of) v Secretary of State for The Home Department (Costs On Aos) (IJR): UTIAC 9 Sep 2015

The costs recoverable by the respondent on a Mount Cook basis include the costs incurred in considering whether to contest the claim and, if so, summarising the grounds of defence; they are to be assessed on the same basis as if the respondent had engaged a solicitor in private practice.
The respondent in cases nominally brought against the Secretary of State is the government, and it is the government’s costs that are recoverable.
Internal payments and charges within government are not an indication of the government’s recoverable costs, and cannot therefore demonstrate a breach of the indemnity principle.
A rate of charge for the AoS that is below the relevant Guideline Hourly Rate for the relevant grade of lawyer is not shown to be unreasonably high and will be allowed on summary assessment.

Ockleton VP J, Clive Lane UTJ
[2015] UKUT 519 (IAC)
Bailii
England and Wales

Immigration

Updated: 04 January 2022; Ref: scu.553216

KMO (Section 117 – Unduly Harsh): UTIAC 25 Sep 2015

UTIAC The Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of s117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word ‘unduly’ in the phrase ‘unduly harsh’ requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.

Souther UTJ
[2015] UKUT 543 (IAC)
Bailii
Nationality, Immigration and Asylum Act 2002 117C
England and Wales

Immigration

Updated: 04 January 2022; Ref: scu.553218

Barry (Conduct of Hearing): UTIAC 23 Sep 2015

In appropriate cases, for example appeals in which the grounds and arguments involve an unmeritorious challenge to the rationality of the decision of the FtT, Upper Tribunal Judges, bearing in mind the overriding objective, should not hesitate to determine the appeal without hearing from the Respondent’s representative.

McCloskey J, Reeds UTJ
[2015] UKUT 541 (IAC)
Bailii
England and Wales

Immigration

Updated: 04 January 2022; Ref: scu.553217

Weldemichael and Another (St Prix C-507/12; Effect): UTIAC 23 Sep 2015

ECJ An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations) for a period in which she was absent from working or job-seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJEU in Jessy St Prix:
a) at the beginning of the relevant period she was either a worker or seeking employment;
(b) the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);
(c) the relevant period did not extend beyond 52 weeks; and,
(d) she returned to work.
So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.

Storey, Reeds Rintould UTJJ
[2015] UKUT 540 (IAC)
Bailii
England and Wales

Immigration

Updated: 04 January 2022; Ref: scu.553222

MS, Regina (on The Application of ) v Secretary of State for The Home Department (Excluded Persons: Restrictive Leave Policy) (IJR): UTIAC 22 Sep 2015

The Restrictive Leave to Remain (‘RLR’) policy
(i) With effect from 2 September 2011, the respondent introduced a policy pursuant to which she granted RLR to persons who were excluded from the Refugee Convention but whose removal would be in breach of Article 3 of the ECHR. The policy is stated to have three purposes, namely the public interest in maintaining the integrity of immigration control; public protection to ensure monitoring of where an individual lives and works and prevent their access to positions of trust, and upholding the international rule of law by supporting broader international obligations to remove individuals excluded from the Convention as soon as possible.
(ii) Under the RLR policy, the duration for which leave is granted is usually a maximum of six months at a time, with an active review prior to the expiry of the leave when consideration is given to whether the individual can be removed, the intention being to effect removal at the earliest opportunity. The RLR policy also provides for conditions to be imposed, usually as follows: (i) a condition as to the place of residence, specifying the frequency with which the individual is permitted to live away from the designated place of residence; (ii) a condition restricting the individual’s employment or occupation; (iii) a condition requiring the individual to report to an Immigration Officer or the Secretary of State at regular intervals; and (iv) a condition prohibiting the individual from studying at an educational institution without the prior consent of the Secretary of State. The RLR policy of 2 September 2011 is a lawful policy. The same applies to the subsequent RLR polices dated 28 May 2012 and 23 January 2015.
(iii) There is sufficient flexibility within the RLR policy for decision makers to depart from the usual rule of only granting RLR for a maximum of six months at a time and of imposing the conditions described. The flexibility is comprised, inter alia, in the need to consider which of the types of condition are appropriate, the particular terms of the condition imposed and whether or not the point has been reached in the particular case where the only reasonable course available to the Secretary of State is to grant indefinite leave to remain (‘ILR’).
(iv) In considering the duration of the grant of leave and the type and detail of the conditions to be imposed, it will be necessary for decision makers to consider the impact on the best interests of any children as a primary consideration.
(v) Whilst the imposition of time limited leave may have an impact on the quality of family life, in that, it may be stressful for all members of the individual’s family to live under the continual ‘threat’ every six months of the individual concerned being removed, it does not interfere with the continuance of family life.
(vi) Very strong evidence would be needed to prevail over the public interest and public protection considerations which are given effect in the three purposes of the RLR policy so as to make it unreasonable for the respondent not to grant RLR for more than six months or not to impose the usual conditions.
ILR: Consideration of whether the end point has been reached:
(i) The consideration of whether or not the point has been reached where the only reasonable course is to grant ILR will depend upon a variety of factors, including:
(a) the reasons why the individual was excluded from the Refugee Convention; (b) whether the applicant has remained blamelessly in the United Kingdom for a lengthy period of time; (c) the prospect of removal of the applicant to his or her home country, involving an appraisal of the political circumstances of the home country bearing in mind that the international reputation of the United Kingdom which can be in point in these cases and (d) the particular circumstances of the applicant and his life in the United Kingdom.
(ii) This is not an exhaustive list. Failure to consider this aspect of the policy and provide reasons may amount to an error of law. However, there will be cases when the suggestion that the end point has been reached is so hopeless that reasons are not required in relation to this aspect of the policy
The Discretionary Leave to Remain (‘DLR’) policy
(i) The current Discretionary Leave policy (applicable since 24 June 2014) as well as its predecessor (the policy in place from at least November 2012) states that the RLR policy will apply unless exceptional circumstances justify divergence from the policy. This overarching policy, of not diverting individuals from the RLR policy unless there were exceptional circumstances, is also a lawful and rational policy.
(ii) The respondent is entitled to apply her overarching policy. She is therefore not obliged to give reasons for applying the RLR policy to an individual and not diverting him or her to the DLR policy, unless there are plainly exceptional circumstances which she may have overlooked capable of outweighing the public interest in the three purposes of the RLR policy. If an individual is not diverted to the DLR policy, the transitional provisions in the DLR policy will not be applicable to him or her.
Delay
In cases where there has been a delay in making a decision on an in-time application for extension of leave and where, during the period of the delay, the applicable policy for excluded persons who cannot be removed has changed from the DLR policy that was applicable to such persons prior to 2 September 2011 to the RLR policy applicable since 2 September 2011, an argument based upon ‘historic injustice’ is not available, applying by analogy the judgment of the Supreme Court in TN and MA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40.

Dove J, Gill UTJ
[2015] UKUT 539 (IAC)
Bailii
England and Wales

Immigration

Updated: 04 January 2022; Ref: scu.553220

MC (Essa Principles Recast): UTIAC 11 Sep 2015

UTIAC 1. Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
2. It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).
3. There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) (Essa (2013) at [23]).
4. Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed ( Essa (2013) at [32]-[33]).
5. Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime (Essa (2013) at [35]), not the mere possibility of rehabilitation. Mere capability of rehabilitation is not to be equated with reasonable prospect of rehabilitation.
6. Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) (( Dumliauskas [41]).
7. Such prospects are to be taken into account even if not raised by the offender ( Dumliauskas [52]).
8. Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State ( Dumliauskas [46], [52]-[53] and [59]).
9. Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like ( Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation ( Dumliauskas [55])
10. In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor ( Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence ( Dumliauskas at [46] and [54]).

Storey, Canavan UTJJ
[2015] UKUT 520 (IAC)
Bailii
England and Wales

Immigration

Updated: 04 January 2022; Ref: scu.553219

Singh and Another, Regina (on The Application of) v Secretary of State for The Home Department (IJR): UTIAC 11 Sep 2015

‘Both applicants are citizens of India, the first applicant being aged 27 and the second aged 26. With permission both challenge a decision refusing each of them entry clearance as a Tier 5 Temporary Worker – Religious Worker under the Points-Based System (PBS). ‘

[2015] UKUT 538 (IAC)
Bailii
England and Wales

Immigration

Updated: 04 January 2022; Ref: scu.553221

Deelah and Others (Section 117B – Ambit): UTIAC 30 Jul 2015

UTIAC (i) Sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002 are not confined to an appeal under section 84(1)(c). They apply also to appeals brought under section 84(1)(a) and (g).
(ii) Section 117B(4) and (5) of the 2002 Act, which instruct Judges to attribute ‘little weight’ to the considerations specified therein, do not give rise to a constitutionally impermissible encroachment on the independent adjudicative function of the judiciary.
(iii) A private life ‘established’, in the wording and in the context of section 117B(4) and (5) of the 2002 Act, is not to be construed and confined to the initiation, or creation, of the private life in question and not its continuation or development.
(iv) The adjective ‘precarious’ in section 117B(5) of the 2002 Act does not contemplate only, and is not restricted to, temporary admission to the United Kingdom or a grant of leave to remain in a category which permits no expectation of a further grant.

McCloske P J
[2015] UKUT 515 (IAC)
Bailii
England and Wales

Immigration

Updated: 04 January 2022; Ref: scu.553204

Skerdjan Celaj: ECJ 1 Oct 2015

ECJ Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2008/115/EC – Return of illegally staying third-country nationals – Return decision accompanied by an entry ban of three years’ duration – Breach of an entry ban – Third-country national previously removed – Sentence of imprisonment in case of new unlawful entry into the national territory – Compatibility

L. Bay Larsen (Rapporteur), P
ECLI:EU:C:2015:640, C-290/14, [2015] EUECJ C-290/14
Bailii
Directive 2008/115/EC

European, Immigration, Crime

Updated: 04 January 2022; Ref: scu.552872

AA v Entry Clearance Officer (Addis Ababa): SC 18 Dec 2013

The appellant child, AA sought entry as the de facto adopted child of his sponsor who had previously been given refugee status. The sponsor had taken parental responsibility of AA under the Islamic Kafala procedure. AA had been admitted under human rights law, but submitted that this was less than should apply under immigration law.
Held: The appeal failed. The Rules did apply to de facto adoptions, but AA’s situation did not meet the criteria: ‘Para 352D does not cover AA’s case, and cannot be rewritten in order to do so. Whether or not Kafala could be treated as a form of ‘adoption’ for other purposes, the definition of ‘adoptive parent’ in Para 6 is more restricted. It extends to ‘de facto adoption’ only within the limitations laid down by Para 309A, which do not cover this case. Although in terms directed to the succeeding provisions, the definition is also incorporated specifically into the general definition of ‘adoptive parent’ and hence into that of ‘parent’ in Para 6.’

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Carnwath, Lord Hughes
[2013] UKSC 81, [2014] INLR 273, [2014] 1 All ER 774, [2013] WLR(D) 499, [2014] 1 WLR 43, [2014] Imm AR 540, [2014] 1 FCR 548, UKSC 2012/0181
Bailii, WLRD, Bailii Summary, SC, SC Summary
Immigration Rules 352D
England and Wales
Citing:
Appeal from – AA (Somalia) v Entry Clearance Officer – Addis Ababa CA 1-May-2012
A child sought entry clearance as a de facto adopted child of his sponsor who had accepted status of refugee.
Held: The changes to the Immigration rules did not extend those rules beyond application to natural and adopted children so far as de . .
Cited – Regina v Immigration Appeal Tribunal Ex parte Tohur Ali CA 18-Dec-1987
The Court considered rule 50 under which ‘parent’ was defined as including – ‘an adoptive parent, where there has been a genuine transfer of parental responsibility on the ground of the original parents’ inability to care for the child . . ‘
Cited – MK (Somalia) and others v Entry Clearance Officer and Another CA 19-Dec-2008
The appellants’ mother had been thrown into a well after resisting attempts to rape her. They had then been cared for by another family member who had, along with her natural children been granted asylum here. They appealed refusal of asylum. They . .
Cited – Mahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .

Lists of cited by and citing cases may be incomplete.

Immigration, Children

Updated: 04 January 2022; Ref: scu.552328