Age assessment – judicial review

[2012] UKUT 326 (IAC)
Bailii
England and Wales

Immigration

Updated: 23 December 2021; Ref: scu.466453

UTIAC 1. This country guidance replaces previous guidance in MJ and ZM (Ahmadis – risk) Pakistan CG [2008] UKAIT 00033, and IA and Others (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088. The guidance we give is based in part on the developments in the law including the decisions of the Supreme Court in HJ (Iran) [2010] UKSC 31, RT (Zimbabwe) [2012] UKSC 38 and the CJEU decision in Germany v. Y (C-71/11) and Z (C-99/11). The guidance relates principally to Qadiani Ahmadis; but as the legislation which is the background to the issues raised in these appeals affects Lahori Ahmadis also, they too are included in the country guidance stated below.
2. (i) The background to the risk faced by Ahmadis is legislation that restricts the way in which they are able openly to practise their faith. The legislation not only prohibits preaching and other forms of proselytising but also in practice restricts other elements of manifesting one’s religious beliefs, such as holding open discourse about religion with non-Ahmadis, although not amounting to proselytising. The prohibitions include openly referring to one’s place of worship as a mosque and to one’s religious leader as an Imam. In addition, Ahmadis are not permitted to refer to the call to prayer as azan nor to call themselves Muslims or refer to their faith as Islam. Sanctions include a fine and imprisonment and if blasphemy is found, there is a risk of the death penalty which to date has not been carried out although there is a risk of lengthy incarceration if the penalty is imposed. There is clear evidence that this legislation is used by non-state actors to threaten and harass Ahmadis. This includes the filing of First Information Reports (FIRs) (the first step in any criminal proceedings) which can result in detentions whilst prosecutions are being pursued. Ahmadis are also subject to attacks by non-state actors from sectors of the majority Sunni Muslim population.
(ii) It is, and has long been, possible in general for Ahmadis to practise their faith on a restricted basis either in private or in community with other Ahmadis, without infringing domestic Pakistan law.
3. (i) If an Ahmadi is able to demonstrate that it is of particular importance to his religious identity to practise and manifest his faith openly in Pakistan in defiance of the restrictions in the Pakistan Penal Code (PPC) under sections 298B and 298C, by engaging in behaviour described in paragraph 2(i) above, he or she is likely to be in need of protection, in the light of the serious nature of the sanctions that potentially apply as well as the risk of prosecution under section 295C for blasphemy.
(ii) It is no answer to expect an Ahmadi who fits the description just given to avoid engaging in behaviour described in paragraph 2(i) above (‘paragraph 2(i) behaviour’) to avoid a risk of prosecution.
4. The need for protection applies equally to men and women. There is no basis for considering that Ahmadi women as a whole are at a particular or additional risk; the decision that they should not attend mosques in Pakistan was made by the Ahmadi Community following attacks on the mosques in Lahore in 2010. There is no evidence that women in particular were the target of those attacks.
5. In light of the above, the first question the decision-maker must ask is (1) whether the claimant genuinely is an Ahmadi. As with all judicial fact-finding the judge will need to reach conclusions on all the evidence as a whole giving such weight to aspects of that evidence as appropriate in accordance with Article 4 of the Qualification Directive. This is likely to include an enquiry whether the claimant was registered with an Ahmadi community in Pakistan and worshipped and engaged there on a regular basis. Post-arrival activity will also be relevant. Evidence likely to be relevant includes confirmation from the UK Ahmadi headquarters regarding the activities relied on in Pakistan and confirmation from the local community in the UK where the claimant is worshipping.
6. The next step (2) involves an enquiry into the claimant’s intentions or wishes as to his or her faith, if returned to Pakistan. This is relevant because of the need to establish whether it is of particular importance to the religious identity of the Ahmadi concerned to engage in paragraph 2(i) behaviour. The burden is on the claimant to demonstrate that any intention or wish to practise and manifest aspects of the faith openly that are not permitted by the Pakistan Penal Code (PPC) is genuinely held and of particular importance to the claimant to preserve his or her religious identity. The decision maker needs to evaluate all the evidence. Behaviour since arrival in the UK may also be relevant. If the claimant discharges this burden he is likely to be in need of protection.
7. The option of internal relocation, previously considered to be available in Rabwah, is not in general reasonably open to a claimant who genuinely wishes to engage n paragraph 2(i) behaviour, in the light of the nationwide effect in Pakistan of the anti-Ahmadi legislation.
8. Ahmadis who are not able to show that they practised their faith at all in Pakistan or that they did so on anything other than the restricted basis described in paragraph 2(ii) above are in general unlikely to be able to show that their genuine intentions or wishes are to practise and manifest their faith openly on return, as described in paragraph 2(i) above.
9. A sur place claim by an Ahmadi based on post-arrival conversion or revival in belief and practice will require careful evidential analysis. This will probably include consideration of evidence of the head of the claimant’s local United Kingdom Ahmadi Community and from the UK headquarters, the latter particularly in cases where there has been a conversion. Any adverse findings in the claimant’s account as a whole may be relevant to the assessment of likely behaviour on return.
10. Whilst an Ahmadi who has been found to be not reasonably likely to engage or wish to engage in paragraph 2(i) behaviour is, in general, not at real risk on return to Pakistan, judicial fact-finders may in certain cases need to consider whether that person would nevertheless be reasonably likely to be targeted by non-state actors on return for religious persecution by reason of his/her prominent social and/or business profile.

Storey, Gleeson, Dawson UTJJ
[2012] UKUT 389 (IAC)
Bailii
England and Wales

Immigration

Updated: 23 December 2021; Ref: scu.466465

The claimants challenged the assessment of their ages as it affected their asylum applications.

Peter Lane UTJ
[2013] UKUT 177 (IAC)
Bailii
England and Wales

Immigration

Updated: 23 December 2021; Ref: scu.473032

UTIAC 1. Exclusion decisions are not be confused with exclusion orders.
2. It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v Secretary of State for the Home Department [2011] EWCA Civ 14 and there is nothing unlawful in such a decision being made after a claimant has made a voluntary departure from the UK.
3. There is no reason in principle why Zambrano principles (Zambrano v Office National de l’Emploi (ONEm) [2011] All ER (EC) 4) cannot have application in entry clearance cases: in both in-country and out-of-country cases the Member State must ensure that any ‘refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union’: Dereci and Others (European citizenship) [2011] EUECJ C-256/11, 15 November 2011, para 74.

Stoery, Jordan UTJJ
[2013] UKUT 147 (IAC)
Bailii
England and Wales
Citing:
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
Cited – Naik, Regina (on The Application of) v Secretary of State for The Home Department CA 19-Dec-2011
The claimant challenged the decision of the respondent to revoke his entry visa, saying ‘he was to be excluded ‘for engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred’.’
Immigration

Updated: 23 December 2021; Ref: scu.472148

UTIAC (1) In EU law terms there is no reason why the decision in Zambrano could not in principle be relied upon by the parent, or other primary carer, of a minor EU national living outside the EU as long as it is the intention of the parent, or primary carer, to accompany the EU national child to his/her country of nationality, in the instant appeals that being the United Kingdom. To conclude otherwise would deny access, without justification, to a whole class of EU citizens to rights they are entitled to by virtue of their citizenship.
(2) The above conclusion is fortified by the terms of The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 (SI 2012/2560), brought into force on 8 November 2012. Paragraphs 2 and 3 of the Schedule to the Regulations give effect to the CJEU’s decision in Zambrano by amending regulations 11 and 15A of the Immigration (European Economic Area) Regulations 2006 in order to confer rights of entry and residence on the primary carer of a British citizen who is joining the British citizen in, or accompanying the British citizen to [regulations 11(5)(e) and 15A(4A)], the United Kingdom and where the denial of such a right of residence would prevent the British citizen from being able to reside in the United Kingdom or in an EEA State.

Dawson, O’Connor UTJJ
[2013] UKUT 380
Bailii
England and Wales
Citing:
Cited – Ruiz Zambrano (European Citizenship) ECJ 30-Sep-2010
ECJ Opinion – Articles 18, 20 and 21 TFEU – Fundamental rights as general principles of European Union law – Article 7 of the Charter of Fundamental Rights of the European Union – European citizenship – . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 23 December 2021; Ref: scu.515451

[2011] EWCA Civ 132, [2011] Imm AR 466
Bailii
England and Wales

Immigration

Updated: 23 December 2021; Ref: scu.429663

[2009] ScotCS CSIH – 57
Bailii
Scotland

Immigration

Updated: 23 December 2021; Ref: scu.347776

[2002] EWCA Civ 1358
Bailii
England and Wales

Immigration

Updated: 23 December 2021; Ref: scu.282652

Hooper J
[2003] EWHC 1160 (Admin)
Bailii
England and Wales

Immigration

Updated: 23 December 2021; Ref: scu.185334

[2020] UKAITUR DA005002019
Bailii
England and Wales

Immigration

Updated: 23 December 2021; Ref: scu.654347

Application for judicial review by an Algerian National, originally seeking to challenge the decision to refuse to grant the claimant leave under the legacy programme and sought an order requiring the defendant to reconsider the claimant’s application as a legacy case and grant him leave to remain in the UK in line with legacy practice.

Clare Moulder HHJ
[2014] EWHC 3596 (Admin)
Bailii

Immigration

Updated: 23 December 2021; Ref: scu.538257

[2014] EWHC 3478 (Admin)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.538021

[2014] EWHC 3485 (Admin)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.538023

The court was asked whether the decisions of the Secretary of State to give limited (discretionary) leave to remain as opposed to indefinite leave to remain are unlawful because they were given in breach of the Secretary of State’s duty under Section 55 of the 2009 Act.
Held: Floyd LJ discussed the TS case, saying: ‘That case also shows, as Mr Malik recognized, that it was sufficient if the substance of the duty was discharged and that the decision maker did not have to refer explicitly to the statute or the guidance. As to the latter point, see also AJ India v Secretary of State for the Home Department [2011] EWCA Civ 1191 . . ‘ and ‘There can, in my judgment, be no doubt that the Secretary of State is entitled in principle to adopt a staged approach to settlement. Even where children are the applicants, if does not follow that the Secretary of State is bound, on a first application, to grant ILR. The consideration outlined in the evidence of Mr Gallagher amount to factors which are worthy of consideration, and deserve to be placed in the balance after the best interests and welfare of the children have been considered. It follows that an applicant who wishes to persuade the Secretary of State to grant her leave for a period longer than that provided for by the staged settlement policy has to do more than point to the fact that she is a child.’

Laws, Floyd, Vos LJJ
[2014] EWCA Civ 1334, [2014] WLR(D) 435
Bailii, WLRD
Borders Citizenship and Immigration Act 2009 55
England and Wales
Citing:
Cited – TS, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Oct-2010
The claimant had sought asylum as a child, declaring that he had not applied for asylum elsewhere. His fingerprints were matched to an applicant in Belgium.
Held: Wyn Williams J construed section 55 and the statutory guidance referred to in . .

Cited by:
Cited – Ali, Regina (on The Application of) v The Secretary of State for The Home Department Admn 9-Jan-2015
The claimant complained that the respondent when granting her a time limited leave to remain only, had by making her immigration status incompatible with that of her five children failed to comply with her obligations under the 2009 Act. The . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 22 December 2021; Ref: scu.537614

UTIAC If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party’s right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284.

The President, The Hon. Mr Justice McCloskey
[2014] UKUT 418 (IAC)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537490

UTIAC (1) A person may acquire qualifying residence for the purposes of exercising Treaty rights in respect of periods of residence arising before the UK became part of the European Community on 1 January 1973.
(2) Similarly, a person may acquire qualifying residence in respect of periods of residence arising before the implementation of the Immigration (European Economic Area) Regulations 2000.
(3) However, in each case the residence in question must be in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC (the Citizens Directive) or in accordance with Schedule 4, paragraph 6 of the Immigration (European Economic Area) Regulations 2006.

McGeachy, Kopieczek UTJJ
[2014] UKUT 313 (IAC)
Bailii
Immigration (European Economic Area) Regulations 2000
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537491

The claimant resisted deportation for suspected involvement in terrorism.

Aikens LJ, Sir Colie Rimer, Sir Stanley Burnton
[2014] EWCA Civ 1292
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537494

UTIAC Where a provision of the Rules (such as that in para 245DD(k)) provides that points will not be awarded if the decision-maker is not satisfied as to another (non-points-scoring) aspect of the Rule, the non-points-scoring aspect and the requirement for points are inextricably linked.
As a result, the prohibition on new evidence in s 85A(4) of the Nationality, Immigration and Asylum Act 2002 applies to the non-points-scoring aspect of the rule: the prohibition is in relation to new evidence that goes to the scoring of points.

Ockleton VP, Phillips DUTJ
[2014] UKUT 365 (IAC)
Bailii
Nationality, Immigration and Asylum Act 2002 85A(4)
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537481

Immigration judicial review

Craig UTJ
[2014] UKUT 440 (IAC)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537485

UTIAC (1) The lodgement of permission and/or interim relief papers in a judicial review application is a beginning, not an end.
(2) If an application for permission is overtaken by supervening events or is otherwise rendered moot, there is a duty on the Applicant’s solicitors to take appropriate and immediate action. This will include proactively communicating with this Chamber and the Respondent’s representatives.
(3) From the inception of the proceedings and in particular following receipt of the Respondent’s Acknowledgement of Service, there is a duty on every Applicant’s legal representatives to conscientiously reassess the viability and propriety of their client’s application for judicial review and to consider whether any further procedural step is required. If the Acknowledgement of Service renders the challenge unsustainable, appropriate withdrawal steps must be initiated promptly.
(4) Unjustifiable delays in the finalising and execution of proposed consent orders and lack of communication with the Upper Tribunal in this context are unacceptable.

McCloskey J P
[2014] UKUT 439 (IAC)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537487

UTIAC Whilst making due allowance where an applicant for permission to appeal to the Upper Tribunal is unrepresented and in respect of the requirement to consider obvious points arising under the Refugee Convention or ECHR (R v Secretary of State for the Home Department ex parte Robinson [1997] 3 WLR 1162), the First-tier Tribunal and the Upper Tribunal can be expected to deal brusquely and robustly with any application for permission that does not specify clearly and coherently, with appropriate particulars, the error(s) of law said to contaminate the decision under challenge. Besides placing unnecessary demands upon the judiciary, poorly compiled applications risk undermining the important value of legal certainty and causing unfairness to the other party.

McCloskey J P
[2014] UKUT 368 (IAC)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537483

UTIAC 1. FP (Return – Cabinda – Non-Luandan) Angola CG [2003] UKIAT 00204 no longer provides an accurate assessment of country conditions. It ceases to be country guidance.
2. There is significant evidence of human rights abuses, including within Cabinda and affecting Cabindans, problems of arbitrary arrest and detention, ill-treatment in detention, poor prison conditions, restrictions on freedom of expression, government action against protest and limitations in the legal system and security laws. However, these problems do not render all those returning to Angola or Cabinda to be at risk of serious harm, whether or not they are Cabindans.
3. Unless there exists a situation in which there is generalised violence or armed conflict at a very high level (which is not the case here) in order to establish a real risk of harm, an individual has to establish that, by reason of circumstances as they relate to him, there is a reasonable likelihood he will come into contact with the authorities in a way that will result in his detention.
4. The Angolan authorities do not equate being a Cabindan with being a member of or supporter of the Front for the Liberation of the Enclave of Cabinda (FLEC).
5. The evidence fails to establish that FLEC currently operates at a level such as to represent a real threat to the Angolan authorities although they are keen to take measures to ensure that there is no resurgence of its activities. Nor does the evidence establish that FLEC reflects the views and aspirations of a majority of Cabindans, notwithstanding the fact that the Cabindan sense of social identity remains very strong and separation from Angola remains an aspiration shared by many. The Angolan authorities readily understand the distinction between FLEC membership or support and Cabindan self-assertion.
6. There is clear evidence of normal security checks at airports, including Luanda airport on arrival. Those checks are likely to be thorough and directed towards establishing the identity of the person entering the country.
7. There are no obstacles in a returnee to Luanda airport making an onward journey to Cabinda. The finding in FP that travel to Cabinda from Luanda is excluded as a practical possibility is no longer correct.
8. Language is a distinctive method of identification but identification as a Cabindan is not sufficient to establish a real risk.
9. A person of Cabindan origin returning to Angola will not in general be at real risk of ill-treatment by reason of his or her Cabindan origin. Such a person is reasonably likely to be detained (with the accompanying risk of ill-treatment) only if he or she has a history of active involvement with FLEC (or one of its factions, such as FLEC-PM or FLEC-FAC). Excluded from those at risk are individuals formerly associated with the pro-government FLEC-Renewal (FLEC-Renovada) or Antonio Bembe.
10. A person’s Cabindan origin will not, in general, preclude him from living or working in Luanda or some other part of Angola.

Peter Lane, Jordan UTJJ
[2014] UKUT 434 (IAC)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537488

Immigration judicial review

Storey, Pitt UTJJ
[2014] UKUT 441 (IAC)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537486

UTIAJ The common law duty of fairness is essentially about procedural fairness. There is no absolute duty at common law to make decisions which are substantively ‘fair’. The Court will not interfere with decisions which are objected to as being substantively unfair, except the decision in question falls foul of the Wednesbury test i.e. that no reasonable decision-maker or public body could have arrived at such a decision.
It is a matter for the Secretary of State whether she exercises her residual discretion. The exercise of such residual discretion, which does not appear in the Immigration Rules, is absolutely a matter for the Secretary of State and nobody else, including the Tribunal – Abdi [1996] Imm AR 148.

Haddon-Cave J, Coker UTJ
[2014] UKUT 366 (IAC)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537482

UTIAC Whilst it may be that in the Family Court jurisdiction prior to the coming into force on 22 April 2014 of the Children and Families Act 2014 there was always the possibility of a parent making a fresh application relating to contact, there is nothing in the guidance given in RS (Immigration and Family Court) India [2012] UKUT 218 (IAC) (which was approved by the Court of Appeal in Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363) that supports the notion that the mere possibility of such an application being made (or pursued) is a relevant criterion in the case of an immigration appeal when deciding whether to adjourn an appeal or to direct a grant of discretionary leave in order for such proceedings to be pursued. The guidance is concerned with whether there is a realistic prospect of the Family Court making a decision that will have a material impact on the relationship between a child and the parent facing immigration measures such as deportation.

Storey, Perkins UTJJ
[2014] UKUT 419 (IAC)
Bailii
England and Wales

Immigration

Updated: 22 December 2021; Ref: scu.537489

President of Chamber M Vilaras
[2021] 4 WLR 144, EU:C:2021:11, C-322/19, C-385/19
Parliament and Council Directive 2013/32/EU,
European

Immigration

Updated: 22 December 2021; Ref: scu.670630

[2009] EWHC 1888 (Admin)
Bailii
England and Wales

Immigration

Updated: 21 December 2021; Ref: scu.372667

[2008] EWCA Civ 557
Bailii
England and Wales

Immigration

Updated: 21 December 2021; Ref: scu.270521

Request for judicial review of refusal to treat application as fresh asylum claim.

[2009] EWHC 1390 (Admin)
Bailii
England and Wales

Immigration

Updated: 21 December 2021; Ref: scu.347117

UTIAC (1) The Upper Tribunal’s country guidance in KK and others (Nationality: North Korea) Korea CG [2011] UKUT 92 (IAC) stands, with the exception of paragraphs 2(d) and 2(e) thereof. Paragraphs (2), (3) and (4) of this guidance replace that given in paragraphs 2(d) and 2(e) respectively of KK.
(2) South Korean law makes limited provision for dual nationality under the Overseas Koreans Act and the Nationality Act (as amended).
(3) All North Korean citizens are also citizens of South Korea. While absence from the Korean Peninsula for more than 10 years may entail fuller enquiries as to whether a person has acquired another nationality or right of residence before a travel document is issued, upon return to South Korea all persons from the Korean Peninsula are treated as returning South Korean citizens.
(4) There is no evidence that North Koreans returned to South Korea are sent back to North Korea or anywhere else, even if they fail the ‘protection’ procedure, and however long they have been outside the Korean Peninsula.
(5) The process of returning North Koreans to South Korea is now set out in the United Kingdom-South Korea Readmission Agreement (the Readmission Agreement) entered into between the two countries on 10 December 2011. At present, the issue of emergency travel documents under the Readmission Agreement is confined to those for whom documents and/or fingerprint evidence establish that they are already known to South Korea as citizens, or who have registered as such with the South Korean Embassy in the United Kingdom.
(6) Applying MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, North Koreans outside the Korean Peninsula who object to return to South Korea must cooperate with the United Kingdom authorities in seeking to establish whether they can avail themselves of the protection of another country, in particular South Korea. Unless they can demonstrate that in all of the countries where they are entitled to citizenship they have a well-founded fear of persecution for a Refugee Convention reason, they are not refugees.
(7) If they are not refugees, it remains open to such persons to seek to establish individual factors creating a risk for them in South Korea which would engage the United Kingdom’s international obligations under the EU Qualification Directive or the ECHR.
(8) There is no risk of refoulement of any North Korean to North Korea from South Korea, whether directly or via China. South Korea does not return anyone to North Korea at all and it does not return North Koreans to China. In a small number of cases, Chinese nationals have been returned to China. A small number of persons identified by the South Korean authorities as North Korean intelligence agents have been prosecuted in South Korea. There is no evidence that they were subsequently required to leave South Korea.
(9) Once the ‘protection’ procedure has been completed, North Korean migrants have the same rights as other South Korean citizens save that they are not required to perform military service for South Korea. They have access to resettlement assistance, including housing, training and financial assistance. Former North Koreans may have difficulty in adjusting to South Korea and there may be some discrimination in social integration, employment and housing, but not at a level which requires international protection.

Mr C M G Ockelton, Vice President, Upper Tribunal Judge Gleeson
[2014] UKUT 391 (IAC)
Bailii
England and Wales

Immigration

Updated: 21 December 2021; Ref: scu.536461

IAT This case is reported on the following points:
a) has what was said in Edore [2003] EWCA Civ 716 and DM (Croatia) CG* [2004] UKIAT 00024 about the effect of inconsistency as between family members survived Huang [2005] EWCA Civ 105? (see 3)
b) in what circumstances may such inconsistency make for such ‘truly exceptional’ circumstances in the appellant’s private or family life as would render removal disproportionate to the legitimate purpose of immigration control?

[2005] UKAIT 00173
Bailii
England and Wales

Immigration

Updated: 21 December 2021; Ref: scu.237613

IAT This case is reported on the following points:
a) the approach to be taken to ‘country expert’ evidence (see 4 and 9);
b) the methodology of the ‘Ethnologue’ web-site, and the weight to be given to untested assertions of language skills (see 11);
c) the meaning of ‘race’ in the Refugee Convention (see 14-15);
d) techniques of decision-writing (see 17); and
e) the approach to be taken to Foreign and Commonwealth Office travel advice (see 19).
It is not reported on the following points:
f) what is to be expected of persons claiming to be from Burundi by way of language skills (for which see SJ [2005] UKAIT 00134, explaining Rusiga [2005] EWCA Civ 407; or
g) what is the current situation for Hutus on return to Burundi, and in particular to the Buyenzi area of greater Bujumbura (for which see AM [2005] UKAIT 00123, confirming SS (Burundi) CG [2004] UKIAT 00290).

[2005] UKAIT 00172
Bailii
England and Wales

Immigration

Updated: 21 December 2021; Ref: scu.237611

Mr Justice Ouseley
[2014] EWHC 832 (Admin), [2014] Imm AR 919, [2014] 4 All ER 133, [2015] 1 WLR 945
Bailii
England and Wales

Immigration

Updated: 21 December 2021; Ref: scu.523276

[2009] EWHC 1649 (Admin)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.347742

[2009] EWHC 1660 (Admin)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.347713

UTIAC (1) All Turkish males are required to undergo military service but exemption can be granted on the grounds of physical or mental disability which includes ‘sexual identity disorder’.
(2) Homosexuality is regarded by the Turkish army as a sexual identity disorder but the perception of homosexuality in Turkey is not reduced to a person’s sexual preference but is informed by an assessment of his whole personality including his outward appearance and behaviour. It is associated with the passive role which is seen as unmanly whereas taking the active role does not attract the same disapproval and is not considered to undermine the essence of manliness.
(3) The exemption process for determining whether a recruit is entitled to exemption generally includes intrusive requirements which do not properly respect the human dignity of someone whose sexual identity would qualify him for exemption such that it can properly be categorised as degrading and involving a real risk of a breach of article 3.
(4) If during his military service a recruit (whether he has not sought exemption or has been refused) is discovered or is perceived to be homosexual as understood in Turkey, there is a reasonable degree of likelihood of ill-treatment of sufficient severity to amount to persecution on the basis of his sexual identity and there is no sufficiency of protection. The risk of such discovery or perception arising during his service will require a fact sensitive analysis of an individual’s particular circumstances including his appearance and mannerisms, the way in which he describes his sexual identity, the extent to which he fits the stereotype of a homosexual as understood within Turkish society and the extent to which he will conceal his sexual identity for reasons not arising from a fear of persecution.
(5) Any such risk likely to arise during service is not negated by the fact that there is an exemption process as that process itself carries a real risk of a breach of article 3.
(6) MS (Risk- Homosexual) Turkey CG [2002] UKIAT is no longer to be regarded as providing country guidance.

Latter, Dawson UTJJ
[2013] UKUT 612 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536235

Judicial review of age assessment on claim for asylum

Latter UTJ
[2013] UKUT 609 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536231

UTIAC (1) It is axiomatic that a determination discloses clearly the reasons for a tribunal’s decision.
(2) If a tribunal finds oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it is necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight is unlikely to satisfy the requirement to give reasons.

McCloskey J, P UT, Perkins J
[2013] UKUT 641 (IAC)
Bailii
England and Wales
Cited by:
Cited – AA069062014 and Others AIT 30-Aug-2017
Several appellants, all from the same judge, complained of his handling of their cases.
Held: The complaints about the decisions were entirely well-founded: ‘Nobody reading them could detect how the judge reached the conclusion he did, acting . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 20 December 2021; Ref: scu.536229

Raju: Reasons Not To Follow? : Pakistan

[2013] UKUT 610 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536234

UTIAC A non – EEA national family member travelling to the United Kingdom accompanied by the EEA national family member concerned for the purpose of a visit of not more than three months’ duration is entitled to enter, pursuant to regulations 11(2), 12(1) and 13(1) and (2) of the Immigration (European Economic Area) Regulations 2006, read together.

McCloskey J P UT, Coker UTJ
[2013] UKUT 570 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536228

Coptic Christians : Egypt – Country Guidance

[2013] UKUT 611 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536233

AIT 1. Section 55 of the Immigration, Asylum and Nationality Act 2006 does not require a decision on exclusion from asylum to be made at the outset of a hearing and prior to consideration of any other matters.
2. The effect of s.55 is to require a Tribunal in its written determination to decide exclusion from asylum first, before proceeding to address any other head of claim.
3. Deciding exclusion first is merely common sense, regardless of whether a s.55 certificate has been made by the respondent as it determines whether substantive consideration of the asylum claim is necessary.
4. There is no statutory provision akin to s.55 that can be applied when an applicant makes a claim for Humanitarian Protection. However, given the exclusion criteria in paragraph 339D of HC 395 (the Immigration Rules), which are very similar to those in Article 1F(a), a Tribunal should also decide on exclusion from Humanitarian Protection before substantive consideration of that claim.

Peter Lane, Pitt UTJJ
[2013] UKUT 571 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536230

The applicant challenges the lawfulness of a decision of the respondent to refuse to revoke a deportation order made against him. He asserts that the decision contains public law errors such that it should be quashed.

Gill UTJ
[2014] UKUT 376 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536215

UTIAC Legacy cases – ‘conclusion’ issue – (1) It is plainly wrong to contend that a case under the respondent’s so-called ‘legacy programme’ can be ‘concluded’ only by the grant of leave or by actual removal, given that there was no amnesty that applied to such cases; they fell to be decided under the relevant Immigration Rule (para 395C or 353B, as the case may be) and the guidance in chapter 53 of the Enforcement Instructions and Guidance that applied as at the date of the review of the case under the legacy programme.
(2) It follows that, in the event that consideration of the relevant Immigration Rule and guidance produced a negative answer, the rationale of the Supreme Court at [25]-[35] of Patel v Secretary of State for the Home Department [2013] UKSC 72 applies, that is, the Secretary of State is entitled to proceed on the basis that those unlawfully in the UK will leave of their own accord; she is not obliged to remove an individual or issue a removal decision.
(3) It is unarguable that the expressed aim to ‘conclude’ cases in the legacy programme by either the grant of leave or by removal was anything other an aim or aspiration to remove all individuals who had no basis of stay. In particular, it is unarguable that the expressed aim or aspiration was addressed to individuals and/or that it amounted to an irrevocable and unambiguous commitment to grant leave to anyone who did not meet the requirements of the relevant rule (395C/353B, as the case may be) and the applicable chapter 53 guidance and who was not removed.

Gill UTJ
[2014] UKUT 375 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536216

UTIAC Country guidance
(1) In the aftermath of the armed revolution that brought about the fall of the dictatorial and repressive regime of Colonel Qadhafi, the central government in Libya has relied on various militias to undertake security and policing functions. Those militias and the many others that operate within Libya, often have their own interests, loyalties and priorities which may or may not coincide with the interests of the central government.
Article 15(c)
(2) There is not such a high level of indiscriminate violence in Libya, within the meaning of Article 15(c) of Council Directive 2004/83/EC (‘the Qualification Directive’) so as to mean that substantial grounds exist for believing that an individual would, solely by being present there, face a real risk which threatens his or her life or person.
Former regime members and associates
(3) Having regard to the generally hostile attitude of society to the former regime, the following are, in general, at real risk of persecution or Article 3 ill-treatment on return to Libya: –
(a) former high ranking officials within the intelligence services of that regime;
(b) others with an association at senior level with that regime.
(4) As a general matter, the closer an individual was to the centre of power within the former regime, the more likely that the individual will be able to establish a risk of persecution or Article 3 ill-treatment on return.
(5) The majority of the population of Libya either worked for, had some association with, or has a member of the family who worked for or had an association with the Qadhafi regime. Such employment or association alone is not sufficient to establish a risk of persecution or Article 3 ill-treatment on return.
(6) In general, family members of those described in (3) and (4) above are not at risk of persecution or a breach of their protected rights on return. It is possible, however, that an individual will be able to establish such a risk but this will need to be demonstrated by specific evidence relating to the individual’s circumstances. Mere assertion of risk by association as a family member would not be sufficient without fact-specific evidence of the risk to that particular family member.
Black Libyans etc
(7) A ‘Black Libyan’ is a Libyan of black African appearance, and includes a person who may not actually possess Libyan nationality but for whom Libya is their country of former habitual residence. There is endemic racism within Libyan society towards Black Libyans. However, Black Libyans who are not Tawurga or Tuareg are not per se at risk of persecution or Article 3 ill-treatment on return, and will only be able to establish the need for international protection with reference to some additional factor particular to that individual.
(8) The Tawurga are Black Libyans who are perceived by Libyans to have been mercenaries on the side of the Qadhafi regime and to have committed human rights abuses during the revolution. The Tuareg are also Black Libyans and are also perceived to have been supporters of the former regime.
(9) Whilst there remains a need for an individual assessment of each individual’s circumstances, a person who is Tawurga or Tuareg will in general be able to establish the need for international protection. The same is true of persons from the Mashashiya ethnic or tribal group. The Mashashiya are not Black Libyans but are similarly perceived as a group to have been supporters of the Qadhafi regime.
Women
(10) Whilst Libya is a male-dominated society and there is evidence of discrimination and violence against women and poor recognition of women’s rights, being female does not per se establish a risk on return. However, taking into account all the circumstances, including a woman’s age, health, level of education and economic status, one or more of the following characteristics or factors are likely, depending on the circumstances, to be significant in relation to the assessment of risk on return for a woman:
a) African ethnicity;
b) Being a victim of sexual violence, including having been raped by soldiers loyal to the Qadhafi regime or by other combatants;
c) Being a woman accused or suspected of sexual misdemeanours or offences against family honour.
Failed asylum seekers
(11) Failed asylum seekers are not, for that reason alone, at real risk on return.
Risk at point of return
(12) There is no real risk of harm to the ordinary traveller arriving either at Tripoli international airport or Benghazi airport.
(13) However, a person who has established that they come within one of the risk categories set out at (3), (4), (9) and (10) above, will be at risk from government security forces or from militias, on arrival at Tripoli International Airport, on account of information that is required to be given by passengers on arrival.
Risk following return
(14) Even if a person described in (13) above is able to pass through the airport without being detained, because of the presence of militias at various checkpoints such a person is reasonably likely to be detained at a checkpoint en route to his or her home area.
(15) Notwithstanding the prevalence of checkpoints manned by militias, it is possible to travel overland from Tripoli airport to other destinations without a real risk of persecution, serious harm or Article 3 ill-treatment. Land travel in general is possible and can be undertaken without giving rise to a risk of harm that requires recognition in terms of international protection. The evidence does not reveal such a level of arbitrary or irrational conduct on the part of militias at checkpoints such as to put the ordinary traveller at real risk. A claim to international protection is unlikely to succeed simply on the basis of a claimed risk of travel to any particular area of Libya. Area specific evidence would have to be adduced which establishes such a risk.
(16) The ‘family book’ is the main proof of citizenship, listing family members and being required, for example, to obtain employment or a bank loan. However, the fact that a person does not possess a ‘family book’ would not prevent travel within Libya and the lack of a family book would not itself give rise to a risk of harm.
Sufficiency of protection
(17) In general, an individual who succeeds in establishing a real risk of harm by reference to the risk categories set out at (3), (4), (9) and (10) above, will not be afforded a sufficiency of protection from that harm.
Internal relocation
(18) Likewise, such individuals would not, in general , have available to them the option of internal relocation.
(19) For persons who have established a real risk of proscribed ill-treatment in their home area for a reason other than by reference to one of the categories set out above, for example because of a family or tribal feud, or because of hostility from a particular militia, it is possible to be able safely to travel from one part of Libya to another, depending on whether the reason for the risk is one that would give rise to further risk for that same reason, on encountering a checkpoint.
(20) A male seeking to avoid a local risk of harm such as described in (19) above, would be able in practical terms to relocate to another area of Libya, be it for example Tripoli or Benghazi, particularly if the person has tribal or family connections there. The absence of such connections would not prevent the person from establishing himself, in the sense of being able to live in the new community and find accommodation. It would not be unduly harsh for such a person to relocate internally.
(21) However, such a person may not be able to avoid a risk of harm in a new area where the person has no connections in terms of tribal or family links, but the person or group that is feared does have such links. A fact-specific enquiry is essential. An appellant’s assertion that the individual or group that is feared has links to say, Tripoli or Benghazi, or another prospective place of relocation, will need to be assessed in the light of the findings in relation to overall credibility.
(22) In relation to the possibility for a woman to relocate internally, taking into account the position of women in society in Libya, the difficulty for women of accessing accommodation if alone, and the rarity of a woman arriving in a community without knowing any person there, internal relocation would not be reasonable and would be unduly harsh unless in the prospective area of relocation the woman has a close family or significant other connection, aside from merely a tribal connection.
(23) In addition, bearing in mind the above factors, a woman is likely to be more conspicuous with the result that her presence may more easily be discovered by the prospective persecutor.
(24) The following cases are superseded by this decision and are no longer to be treated as providing country guidance:
ME (Risk – Failed Asylum Seekers – Hassan) Libya CG [2003] UKIAT 00200
HH (Risk – Failed Asylum Seekers) Libya CG [2003] UKIAT 00202
KK (Failed Asylum Seeker) Libya CG [2004] UKIAT 00151

Kopieczek UTJ
[2014] UKUT 318 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536211

(1) This determination replaces all existing country guidance on Sri Lanka.
(2) The focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.
(3) The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka. Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.
(4) If a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection.
(5) Internal relocation is not an option within Sri Lanka for a person at real risk from the Sri Lankan authorities, since the government now controls the whole of Sri Lanka and Tamils are required to return to a named address after passing through the airport.
(6) There are no detention facilities at the airport. Only those whose names appear on a ‘stop’ list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.
(7) The current categories of persons at real risk of persecution or serious harm on return to Sri Lanka, whether in detention or otherwise, are:
(a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.
(b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.
(c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses.
(d) A person whose name appears on a computerised ‘stop’ list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a ‘stop’ list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
(8) The Sri Lankan authorities’ approach is based on sophisticated intelligence, both as to activities within Sri Lanka and in the diaspora. The Sri Lankan authorities know that many Sri Lankan Tamils travelled abroad as economic migrants and also that everyone in the Northern Province had some level of involvement with the LTTE during the civil war. In post-conflict Sri Lanka, an individual’s past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan Government.
(9) The authorities maintain a computerised intelligence-led ‘watch’ list. A person whose name appears on a ‘watch’ list is not reasonably likely to be detained at the airport but will be monitored by the security services after his or her return. If that monitoring does not indicate that such a person is a Tamil activist working to destabilise the unitary Sri Lankan state or revive the internal armed conflict, the individual in question is not, in general, reasonably likely to be detained by the security forces. That will be a question of fact in each case, dependent on any diaspora activities carried out by such an individual.
(10) Consideration must always be given to whether, in the light of an individual’s activities and responsibilities during the civil war, the exclusion clauses are engaged (Article 1F of the Refugee Convention and Article 12(2) of the Qualification Directive). Regard should be had to the categories for exclusion set out in the ‘Eligibility Guidelines For Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka’, published by UNHCR on 21 December 2012.

Gleeson, Dawson, O’Connor UTJJ
[2013] UKUT 319 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536218

UTIAC It is generally unnecessary and unhelpful for First-tier Tribunal judgments to rehearse every detail or issue raised in a case. This leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. It is, however, necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost.

Haddon-Cave J, Coker UTJ
[2014] UKUT 341 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536212

Application with permission for judicial review of a decision of the respondent refusing to grant leave to remain in the United Kingdom.

Allen UTJ
[2014] UKUT 374 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536214

Challenge to age assessment

Allen, McGeachy UTJJ
[2013] UKUT 565 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536217

UTIAC (1) The appealable decision that s 32(5) of the UK Borders Act 2007 applies is not invalid by reason of being dated after the deportation order to which it relates.
(2) In an appeal against automatic deportation there is no appeal against a decision to deport or against the order to deport, but only against the decision that s 32(5) applies.
(3) If the First-tier Tribunal gives directions under s 86 of the Nationality, Immigration and Asylum Act 2002 they should be clear, so that the person affected knows whether to challenge them and everybody can tell whether they have been complied with.
(4) It does not appear that the First-tier Tribunal has power to ‘remit’ to the Secretary of State.

CMG Ockleton VP
[2014] UKUT 342 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.536213

Outer House ‘The petitioner is a stateless Palestinian from the Gaza Strip. He sought asylum based upon the risk to himself of being returned to that country. He left Gaza in October 2007, went to Libya then Greece and in February 2011 claimed asylum here. On 21 March his claim was refused. He appealed and on 9 May there was a hearing before Immigration Judge Grant-Hutchison. His claim was refused on 25 May on both asylum and human rights grounds (no 7/2 of process). Adverse credibility findings were made. On 14 June his application to appeal was dismissed by the First Tier Tribunal and on 15 August the upper tribunal dismissed a further appeal. On 11 May 2012 he made further submissions which the Minister refused on 31 May and on 12 June 2013 again made further submissions which on 1 July were refused (no 6/1 of process) by the Minister who also refused to accept them as a ‘fresh claim’.

Lord Mcewan
[2014] ScotCS CSOH – 130
Bailii
Scotland

Immigration

Updated: 20 December 2021; Ref: scu.535840

Mr Justice Garnham
[2021] EWHC 3188 (Admin)
Bailii
England and Wales

Immigration

Updated: 20 December 2021; Ref: scu.670096

The three applicants required decisions as to how to proceed in the light of s6 of the Justice and Security Act 2013, which permits Closed Material Procedures, to be ordered in civil claims including judicial review, and s15 of the Act, which amended the Special Immigration Appeals Commission Act 1997, introducing into it s2C and s2D, which enable the Secretary of State for the Home Department (SSHD) to certify exclusion and citizenship decisions.

Ouseley, Irwin JJ
[2014] EWHC 1382 (Admin)
Bailii
Justice and Security Act 2013 6 15, Special Immigration Appeals Commission Act 1997 2C 2D

Immigration

Updated: 18 December 2021; Ref: scu.535653

The claimant having entered as a Tier 4 general student, filed an application for further leave to remain but his form was unsigned by him as required.

Allan Gore QC HHJ
[2014] EWHC 2586 (Admin)
Bailii
Immigration Rules 34(c)

Immigration

Updated: 18 December 2021; Ref: scu.535654

The applicant, having been given 3 years discretionary leave to remain, challenged the refusal to grant him indefinite leave as unawful.

Hill DHCJ
[2014] EWHC 2688 (Admin)
Bailii
England and Wales

Immigration

Updated: 18 December 2021; Ref: scu.535532

SA challenged his detention by the defendant under immigration powers.

CMG Ockleton UTJ
[2014] EWHC 2570 (Admin)
Bailii
England and Wales

Immigration

Updated: 18 December 2021; Ref: scu.535537

The court was asked: ‘Can asylum seekers bring judicial review proceedings to challenge the Secretary of State for the Home Department’s refusal to exercise her discretion under the Dublin II Regulation to permit their asylum claims to be examined in the United Kingdom?’

Ms Geraldine Clark DHCJ
[2014] EWHC 2635 (Admin)
Bailii

Immigration

Updated: 18 December 2021; Ref: scu.535528

The court was asked as to the scope and interpretation of the ‘standstill’ clause in Article 13 of Decision No 1/80, adopted by the Association Council under the EEC-Turkey Association Agreement of 12 September 1963.

Maurice Kay VP, Richards, McCombe LJJ
[2014] EWCA Civ 1109, [2014] WLR(D) 359
Bailii, WLRD
England and Wales

Immigration

Updated: 18 December 2021; Ref: scu.535443