Category: Immigration

Secretary of State for The Home Department v Mdluli: SCS 23 Jul 2014

Reclaiming motion on behalf of the Secretary of State for the Home Department directed at a decision of Lord Glennie dated 7 February 2014 which followed his consideration of submissions on behalf of the parties at a first hearing of a petition for judicial review. Lord Glennie found in favour of the petitioner, granted the prayer of petition and reduced the decision of the Upper Tribunal (Immigration and Asylum Chamber) which refused to grant to the petitioner permission to appeal from a decision of the First-tier Tribunal.

Lady Paton, Lady Clark of Calton, Lord Philip
[2014] ScotCS CSIH – 68
Bailii
Scotland

Immigration

Updated: 17 December 2021; Ref: scu.535248

ME v Sweden: ECHR 26 Jun 2014

ECHR Article 3
Expulsion
Homosexual required to return to Libya in order to apply for family reunion: no violation
Facts – The applicant, a Libyan national who had been living in Sweden since 2010, applied for asylum there initially on the grounds that he feared persecution because of his involvement in the illegal transportation of weapons. Some months later he raised an additional ground for asylum stating that he was homosexual and had married a man. As to the original ground for his asylum request, he accepted that in view of political changes in Libya, he would probably no longer be in danger there. The Migration Board rejected his request because he had given contradictory statements and his story lacked credibility. It found no obstacle to his returning to Libya to apply for a residence permit in Sweden on account of his family ties and marriage. The Migration Court dismissed his appeal after finding that he was not in need of international protection and that his story was not credible.
Law – Article 3: The applicant complained that he would face a real risk of persecution if returned to Libya on account of his involvement in the illegal transport of weapons and of his sexual orientation and marriage to a man. As to the first limb, the Court concluded that he lacked credibility and had failed to substantiate a serious personal risk of ill-treatment. As regards his sexual orientation, even though the domestic authorities had never questioned the applicant’s homosexuality, they found that he lacked credibility since he had altered and escalated his story during the domestic proceedings. In the Court’s view, the applicant had failed to give a coherent and credible account on which to base the examination of his claims. Even though there was little information about the situation of homosexuals in Libya, there appeared to be no public record of anyone actually having been prosecuted or convicted for homosexual acts since the end of the Gadhafi regime in 2011. There were thus insufficient elements to conclude that the Libyan authorities actively persecuted homosexuals. Moreover, the applicant was not being permanently expelled from Sweden. Although required to return to Libya in order to apply for family reunion, he could make the application online thereby reducing the waiting time to approximately four months. Even though he would need to be discreet about his private life during the waiting period, that would not require him to conceal or suppress an important part of his identity permanently or for a longer period of time. While it was true that he would have to travel to Egypt, Tunisia or Algeria for interview, since there was no Swedish Embassy in Libya, that could be done in a few days and did not put the applicant at risk of ill-treatment in those countries. In sum, there were no substantial grounds for believing the applicant would be subjected to ill-treatment on account of his sexual orientation if he was returned to Libya in order to apply for family reunion from there.
Conclusion: no violation (six votes to one).

71398/12 – Legal Summary, [2014] ECHR 801, [2015] ECHR 638
Bailii, Bailii
European Convention on Human Rights

Human Rights, Immigration

Updated: 17 December 2021; Ref: scu.535175

Qurbani: ECJ 17 Jul 2014

ECJ Reference for a preliminary ruling – Geneva Convention of 28 July 1951 relating to the Status of Refugees – Article 31 – Third country national who has entered the territory of a Member State after passing through another Member State – Use of the services of human traffickers – Unauthorised entry and stay – Presentation of a forged passport – Criminal penalties – Lack of jurisdiction of the Court

L Bay Larsen (Rapporteur), P
C-481/13, [2014] EUECJ C-481/13, ECLI:EU:C:2014:2101
Bailii

European, Immigration

Updated: 17 December 2021; Ref: scu.534452

NA v Secretary of State for The Home Department and Another: CA 17 Jul 2014

Appeal from the determination of the Upper Tribunal (Immigration and Asylum Chamber) [2013] UKUT 89 (IAC) as to whether a third country national ex-spouse of a Union citizen must be able to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC.

Dyson L MR, Sullivan, Sharp LJJ
[2014] EWCA Civ 995
Bailii
Directive 2004/38/EC 13(2)
England and Wales

Immigration, European, Family

Updated: 17 December 2021; Ref: scu.534419

O v The Secretary of State for The Home Department: CA 17 Jul 2014

The court was asked whether the Secretary of State for the Home Department could continue lawfully to hold the appellant, O, in immigration detention notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community.
Held: Her appeal failed. For most of that earlier period, namely until 28 April 2010, O had been the subject of unlawful detention but was entitled only to nominal damages in respect of it and that for the remainder of that earlier period she had not been the subject of unlawful detention at all.

Arden, Underhill, Floyd LJJ
[2014] EWCA Civ 990, [2014] WLR(D) 327
Bailii, WLRD
England and Wales
Cited by:
Appeal from – O, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Apr-2016
The appellant failed asylum seeker had been detained for three years pending deportation. She suffered a mental illness, and during her detention the medical advice that her condition could be coped with in the detention centre changed, recommending . .

Lists of cited by and citing cases may be incomplete.

Health, Immigration

Updated: 17 December 2021; Ref: scu.534420

P, Regina (on The Application of) v Secretary of State for The Home Department Ijr: UTIAC 6 Jun 2014

UTIAC The Applicant is a national of Sri Lanka who first arrived in the United Kingdom in April 2010 and claimed asylum in June 2010. It is unnecessary for us to detail the immigration history in this case, except to say as follows. In April 2012, the Applicant brought a challenge to a decision of the Respondent of 15 April 2012. Permission was granted at a renewed oral application. The claim was settled by a consent order signed by the parties on 26 November 2012 and sealed by the Administrative Court on 11 December 2012 (hereafter the Consent Order). The terms upon which the parties agreed to settle that claim, as set out in the Consent Order, are said to have been breached by the Respondent. That is the nub of the instant claim for judicial review, permission having been granted by the Upper Tribunal at a renewed application on 7 April 2014.

[2014] UKUT 294 (IAC)
Bailii
England and Wales

Immigration

Updated: 17 December 2021; Ref: scu.534261

Jan, Regina (on The Application of) v Secretary of State for The Home Department ((Section 10 Removal) IJR): UTIAC 30 May 2014

UTIAC 1. In assessing whether there is a proper basis for a challenge to a decision to remove an applicant, as a matter of general principle a decision will not be unlawful simply on the basis that there has been a failure expressly to explain why other options were not followed. However, there may be cases when an issue is raised before the decision is made relating to the course to be followed or to a particular mitigating circumstances relating to the applicant where that should be expressly considered in the decision.
2. A statutory appeal exercisable out of country is regarded by Parliament as an adequate safeguard for those who are removed under s.10 of the Immigration and Asylum Act and in the absence of special or exceptional factors judicial review is not the appropriate remedy: R (on the application of Lim v Secretary of State for the Home Department [2007] EWCA Civ 773 ; R Nepal v Secretary of State for the Home Department [2009] EWCA Civ 359.
3. The First-tier Tribunal has jurisdiction to consider issues of procedural fairness and the lawfulness of the exercise of discretion when deciding to make a removal decision under the ground of appeal permitting a challenge on the basis that the decision is ‘otherwise not in accordance with the law’.

Bean J, Ockleton VP, Latter UTJ
[2014] UKUT 265 (IAC)
Bailii
England and Wales

Immigration

Updated: 16 December 2021; Ref: scu.534243

Shen (Paper Appeals; Proving Dishonesty): UTIAC 20 May 2014

UTIAC (1) In terms of the approach that a tribunal should adopt towards decisions of the Secretary of State in which dishonesty or deception is alleged against an applicant for leave to remain, the starting point should be, as the Court of Appeal in Adedoyin (formerly AA (Nigeria) v SSHD) [2010] EWCA Civ 773 have made clear, that pursuant to paragraph 322 of the Immigration Rules, the reference to ‘false’ means ‘dishonestly’ false.
(2) Where an application form etc is false in a material way, this may be relied on by the Secretary of State as prima facie evidence establishing dishonesty. The inference of deliberate deception can be strengthened by other facts: eg if a criminal conviction (not disclosed in an application) occurred shortly before completion of the application form. Here, the conviction must have been high in the applicant’s mind and any explanation based on oversight would carry little weight. But it is always open to an appellant to proffer an innocent explanation and if that explanation meets a basic level of plausibility, the burden switches back to the Secretary of State to answer that evidence. At the end of the day the Secretary of State bears the burden of proving dishonesty.
(3) The internal organisational decision by the Secretary of State not to engage with paper appeals means that the appellant’s evidence goes unchallenged. In that regard, it must be remembered, that in the absence of evidence from the Secretary of State putting the appellant’s prima facie plausible explanation into doubt, it would be wrong to find dishonesty. Thus, in view of the possible evidential difficulties confronting a judge when deciding a paper application, where the appellant’s evidence is not met (see para (2) above), a tribunal should be slow to find dishonesty, particularly without hearing evidence and submissions on the point from the appellant and/or the Secretary of State.
(4) A finding of dishonesty can have catastrophic consequences for the appellant in social and economic terms and is not to be made lightly. Thus, in a paper case, if a judge entertains doubts as to the appellant’s account, he or she should be mindful of the powers of rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to give directions regarding supporting documentary evidence, or for the Secretary of State to respond to the appellant’s evidence as she considers appropriate.

Green J, Goldstein UTJ
[2014] UKUT 236 (IAC)
Bailii
England and Wales

Immigration

Updated: 16 December 2021; Ref: scu.534245

Fetle (Partners: Two Year Requirement): UTIAC 3 Jun 2014

UTIAC In contrast to the requirement of para GEN 1.2(iv) of Appendix FM, a requirement (such as in paragraph 352AA of the Immigration Rules) that ‘parties have been living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more’ does not require two years cohabitation, but two years subsistence of the relationship. Whether the relationship still subsists, as required by the tense of that requirement and as may be separately required, is a different issue.

[2014] UKUT 267 (IAC)
Bailii
England and Wales

Immigration

Updated: 16 December 2021; Ref: scu.534253

DA009542013: UTIAC 16 Jun 2014

UTIAC The Secretary of State appeals with permission against the determination of the First-tier Tribunal (First-tier Tribunal Judge Abebrese, and Dr P L Ravenscroft) in which they allowed the claimant’s appeal against a decision by the Secretary of State that the claimant is a foreign criminal who must be deported from the United Kingdom as he has been convicted of false imprisonment and inflicting grievous bodily harm to which he was sentenced to a term of imprisonment of six years.

[2014] UKAITUR DA009542013
Bailii
England and Wales

Immigration

Updated: 16 December 2021; Ref: scu.534250

Durrani (Entrepreneurs: Bank Letters; Evidential Flexibility): UTIAC 13 Jun 2014

UTIAC (1) The requirements listed in paragraph 41-SD(a)(i) of the Rules are to be construed reasonably and sensibly, in their full context. Approached in this way, the letters required from banks or other financial institutions are not designed to provide, and do not commit them to, any form of guarantee or assurance to any party. Rather, the function of the prescribed letters is to attest to the state of the relevant bank account on the date when they are written and to provide certain other items of information designed to confirm the authenticity of the application for entrepreneurial migrant status and its economic viability. There is no difficulty in the third party bank, with its customer’s consent, expressing its understanding, based on the customer’s instructions, that the use of specified funds in the customer’s bank account/s is contemplated or proposed by the customer for the purpose of financing the applicant’s proposed business venture. Accordingly, there is no substance in the argument that the relevant requirements contained in paragraph 41-SD(a)(i) produce an absurd result and must, therefore, be interpreted in some other manner.
(2) The question of whether a policy exists is one of fact. There is no evidence that some policy on evidential flexibility, independent and freestanding of paragraph 245AA, survived the introduction of that paragraph in the immigration rules.

[2014] UKUT 295 (IAC)
Bailii
England and Wales

Immigration

Updated: 16 December 2021; Ref: scu.534251

Castro and Another v Secretary of State for The Home Department (Removals: S47 (As Amended)) Philipines: UTIAC 12 May 2014

UTIAC In s.47 of the 2006 Act as amended by s.51 of the 2013 Act, sub-paragraphs (i) and (ii) of subsection (1A)(a) refer to the application, not the decision.
A decision reported in the Notice of Decision in the form ‘the Secretary of State has decided that you should be removed’ is a decision of which notice under s.47 (as amended) may be given.
The amended s.47 is not drafted with reference to s.3C of the 1971 Act and is applicable where the decision refusing leave is made before the original leave expires, as well as where s.3C extends the applicant’s leave.
When an applicant has put forward a comprehensive case for extension of leave and the application has been refused, there need be no more reasons for the removal decision than those already expressed as motivating the refusal.

[2014] UKUT 234 (IAC)
Bailii
England and Wales

Immigration

Updated: 16 December 2021; Ref: scu.534242

KH v The Secretary of State for The Home Department for Judicial Review: SCS 6 Jun 2014

The petitioner is a 19 year old Afghan whose father was murdered by the Taliban because of his work for a human rights organisation known as the Cooperation Centre for Afghanistan (‘CCA’). He claims that, as his father’s son, he will be targeted by the Taliban and at risk of death if returned to Afghanistan.

Lord Malcolm
[2014] ScotCS CSOH – 97
Bailii

Scotland, Immigration

Updated: 16 December 2021; Ref: scu.534134

KY No 2 v The Secretary of State for The Home Department: SCS 9 Jul 2014

The applicant is a citizen of Nigeria who has been unsuccessful in resisting the respondent’s decision to order her removal. She failed in her asylum claim and failed in a claim based on article 8 ECHR under reference to the health of her child. She sought permission to appeal (‘PTA’) to this court from the decision of the Upper Tribunal (‘UT’), on 5 June 2013. Permission was refused by interlocutor of that date. This is an application by motion in the following terms: ‘On behalf of the Applicant to grant leave to appeal to the UK Supreme Court against the Interlocutor dated 5 June 2013 and Opinion of Lady Smith issued on 31 October 2013.’

Lady Smith
[2014] ScotCS CSIH – 63
Bailii

Scotland, Immigration

Updated: 16 December 2021; Ref: scu.534146

Chowdhury (Extended Family Members: Dependency): UTIAC 29 Apr 2020

The words ‘and continues to be dependent’ in regulation 8(2)(c) of the Immigration (European Economic Area) Regulation 2006, properly characterised, require an applicant to establish that there has not been a break in their dependency on the EEA national sponsor.

[2020] UKUT 188 (IAC)
Bailii
England and Wales

Immigration

Updated: 16 December 2021; Ref: scu.653919

X, Y And Z v Minister Voor Immigratie, Integratie En Asiel: ECJ 7 Nov 2013

ECJ Directive 2004/83/EC – Minimum standards relating to the conditions for granting refugee status or subsidiary protection status – Article 10(1)(d) – Membership of a particular social group – Sexual orientation – Reason for persecution – Article 9(1) – Concept of ‘persecution’ – Well-founded fear of being persecuted on account of membership of a particular social group – Acts sufficiently serious to justify such a fear – Legislation criminalising homosexual acts – Article 4 – Individual assessment of the facts and circumstances

L Bay Larsen (Rapporteur), P
[2013] EUECJ C-199/12, [2014] 1 QB 1111, ECLI:EU:C:2013:720, [2014] 2 CMLR 16, [2014] 3 WLR 770, [2013] WLR(D) 427, [2014] Imm AR 440
Bailii, WLRD
Directive 2004/83/EC
European
Citing:
Opinion – X, Y And Z v Minister Voor Immigratie, Integratie En Asiel ECJ 11-Jul-2013
ECJ Opinion – Directive 2004/83/EC – Conditions to be met by third country nationals or stateless persons claiming refugee status – Meaning of persecution – Sexual orientation . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 16 December 2021; Ref: scu.554526

Akpinar, Regina (on The Application of) v The Upper Tribunal (Immigration and Asylum Chamber): CA 8 Jul 2014

Appeal against rejection of his request to appeal against deportation order.

Maurice Kay, McFarlane LJJ, Sir Stanley Burnton
[2014] EWCA Civ 937, [2014] WLR(D) 300, [2015] INLR 329, [2015] 2 All ER 870, [2015] 1 WLR 466, [2015] Imm AR 21, [2015] Imm AR 2
Bailii, WLRD
England and Wales

Immigration

Updated: 16 December 2021; Ref: scu.533928

Shah, Regina (on The Application of) v Secretary of State for The Home Department: Admn 4 Jul 2014

The claimant challenged the 3 year delay on the part of the defendant in deciding the claimant’s application for reconsideration of the defendant’s refusal of leave to remain under Article 8 ECHR having regard in particular to the impact on the claimant’s ability to secure sole care of his son, a British citizen.

Clare Moulder Judge
[2014] EWHC 2192 (Admin)
Bailii
European Convention on Human Rights 8

Immigration, Human Rights

Updated: 16 December 2021; Ref: scu.533805

Prefect of the Pyrenees-Atlantiques v Da Silva: ECJ 3 Jul 2014

ECJ (Judgment Of The Court) Area of freedom, security and justice – Directive 2008/115/EC – Common standards and procedures for returning illegally staying third-country nationals illegally – National legislation imposing a sentence of imprisonment for illegal entry found in flagrante delicto – Findings of the Court is no longer necessary to resolve the dispute – No need to adjudicate

Ilesic P
C-189/13, [2014] EUECJ C-189/13, ECLI: EU C: 2014:2043
Bailii
Directive 2008/115/EC
European

Immigration

Updated: 16 December 2021; Ref: scu.533747

Mukarubega v Prefect of Police, Prefect of the Seine-Saint-Denis: ECJ 25 Jun 2014

ECJ Advocate General’s Opinion – Area of freedom, security and justice – Directive 2008/115/EC – Return of third-country nationals residing – Procedure for the adoption of a decision to return – Principle of respect for the rights of the defence – Refusal administration to grant to a national of a third country illegally a residence permit under asylum, with an obligation to leave the territory – Right to be heard before the enactment of the decision Return – Risk of leakage – Impact of the existence of a suspensive appeal under domestic law allows the alien to be heard after the event

M Wathelet AG
C-166/13, [2014] EUECJ C-166/13 – O
Bailii
Directive 2008/115/EC
European
Cited by:
Opinion – Mukarubega v Prefect of Police, Prefect of the Seine-Saint-Denis ECJ 5-Nov-2014
ECJ Reference for a preliminary ruling – Visa, asylum, immigration and other policies relating to the free movement of persons – Directive 2008/115 / EC – Return of illegally staying third-country nationals – . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 16 December 2021; Ref: scu.533725

AA (Sudan), Regina (on The Application of) v Secretary of State for The Home Department and Another: Admn 27 Jun 2014

The claimant sought asylum. He had been detained and absconded and committed serious offences, but had now been detained since August 2011 when his prison sentence had expired and awaiting deportation.

Dingemans J
[2014] EWHC 2118 (Admin)
Bailii

Immigration, Torts – Other

Updated: 15 December 2021; Ref: scu.533199

Savas, Regina (on the Application of) v The Secretary of State for the Home Department: Admn 11 Dec 2001

[2001] EWHC Admin 1062
Bailii
England and Wales
Citing:
See Also – Regina v Secretary of State for the Home Department, Ex Parte Savas ECJ 23-May-2000
A convention between the European Union and Turkey had direct effect under one article, but was not sufficiently detailed in other provisions to give a right to an individual to enforce its provisions. The article required Turkish nationals not to . .
See Also – Regina v Secretary of State for Home Department ex parte Savas Admn 24-Apr-1997
. .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 11 December 2021; Ref: scu.167362

Ashfaq (Balajigari: Appeals): UTIAC 17 Jun 2020

1. If the decision of the Secretary of State carries a right of appeal, the availability of the appeal process corrects the defects of justice identified in Balajigari.
2. In an earnings discrepancy case there is no a priori reason to suppose that any of the declared figures is or was accurate. In particular, the fact that a person is now prepared to pay a sum of money to HMRC does not of itself prove past income at the level claimed.
3. The explanation by any accountant said to have made or contributed to an error is essential because the allegation of error goes to the accountant’s professional standing. Without evidence from the accountant, the Tribunal may consider that the facts laid by the Secretary of State establish the appellant’s dishonesty.

[2020] UKUT 226 (IAC)
Bailii
England and Wales

Immigration

Updated: 11 December 2021; Ref: scu.653923

Hussain and Another v Secretary of State for The Home Department: CA 26 Nov 2021

In proceedings for judicial review the appellants sought to challenge the decisions of the respondent dated 31 January 2020 to cancel their multi-entry visit visas on public interest grounds.

Lady Justice Nicola Davies, Lord Justice Nugee And Lord Justice Snowden
[2021] EWCA Civ 2781
Bailii, Judiciary
England and Wales

Immigration

Updated: 10 December 2021; Ref: scu.670078

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 not whether there were insurmountable obstacles to his family returning with him, but whether it was reasonable to expect them to do so. In view of the fact that as a convicted person, the applicants name was already available, the case should be noted under his full name.

Maurice Kay, Carnwath, Black LJJ
[2010] EWCA Civ 896, [2010] WLR (D) 233
Bailii, WLRD, WLRD
Directive 2004/58/EC of the European Parliament and of the Council of April 29, 2004, Immigration (European Economic Area) Regulations (SI 2006 No 1003), European Convention on Human Rights 8
England and Wales
Citing:
Cited – 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 . .
Cited – LG (Italy) v Secretary of State for the Home Department CA 18-Mar-2008
. .
Cited – HR (Portugal) v Secretary of State for the Home Office CA 5-May-2009
The claimant had been imprisoned whilst in the UK. He claimed the protection of European law to protect him against a deportation order.
Held: The claimant could not count the time he had served in prison toward the time spent in the UK to . .
Cited – Regina v Secretary of State for Home Department ex parte Mahmood CA 8-Dec-2000
A Pakistani citizen entered the UK illegally and claimed asylum. A week before his claim was refused and he was served with removal directions, he married a British citizen of Pakistani origin. Two children were later born.
Held: Only . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – JO (Uganda) and JT (Ivory Coast) v Secretary of State for The Home Department CA 22-Jan-2010
When considering an order for the deportation of a non-EU national on completion of a term of imprisonment, the actual weight to be placed on the criminal offending must depend on the seriousness of the offence(s) and the other circumstances of the . .

Lists of cited by and citing cases may be incomplete.

European, Immigration, Human Rights

Updated: 06 December 2021; Ref: scu.421105

FJ (Iran) v Secretary of State for the Home Department: CA 23 May 2008

Renewed application for permission to appeal from reconsideration decision of the Secretary of State’s appeal, by a reconsideration, from the decision finding in favour of FJ’s claim for refugee status under the convention. FJ came here as a young man of sixteen from Iran, where he was born on 31 January 1988. He was given leave to remain here in his minority. He did not apply before he became an adult to extend that leave, but after he became eighteen he sought to be protected against a decision to return him to Iran on the ground of refugee status.

[2008] EWCA Civ 685
Bailii
England and Wales

Immigration

Updated: 06 December 2021; Ref: scu.269968

AL (Albania) v Secretary of State for The Home Department: CA 24 May 2018

‘The issue for determination on this appeal is whether the order of Upper Tribunal Judge Jacobs dated 25 July 2016, ordering that the appellant should pay the Secretary of State her costs of her summary grounds of defence filed in judicial review proceedings begun by the appellant for a decision on his asylum claim in the sum of pounds 1,760, discloses any error of law.’

Arden LJ
[2018] EWCA Civ 1183
Bailii
England and Wales

Immigration, Costs

Updated: 06 December 2021; Ref: scu.617300

Puttick v Attorney General etc: FD 1980

P, a former member of the Baader-Meinhof gang absconded while awaiting trial in Germany. She entered the UK using a passport which she had bought in the name of S, and married P under that name. The German authorities discovered her true identity and location, and applied to extradite her. She applied under section 6 of the 1948 Act. Section 6 gave an apparently unqualified right to any woman married to a United Kingdom citizen to be registered as a citizen of the United Kingdom. She sought a declaration that the marriage was a valid and subsisting marriage, as she had acquired a domicile of choice in England.
Held: Her leave to enter had been obtained by the fraudulent production of an invalid passport, and she was barred from acquiring a domicile of choice here. A fugitive from foreign justice will not acquire habitual residence in this jurisdiction simply by reliance on a temporal period during which the claimant has outwitted authority. Sir George Baker P cited Dicey and Morrs: ‘It has been held that a domicile of choice cannot be acquired by illegal residence. The reason for this rule is that a court cannot allow a person to acquire a domicile in defiance of the law which that court itself administers.’

Sir George Baker P
[1980] Fam 1, [1981] QB 767
British Nationality Act 1948 6
England and Wales
Cited by:
Cited – Cannon v Cannon CA 19-Oct-2004
The mother had brought the child to the UK wrongfully. She had hidden their identity for more than a year. Upon discovering her, the father came to England and began proceedings for the child’s return to the US.
Held: Because the child’s . .
Cited – Mark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Appeal from – Regina v Secretary of State for the Home Department Ex Parte Puttick CA 1981
The applicant, then Astrid Proll, fled bail in Germany when awaiting trial on terrorist charges, entered England and under a false name, and married Mr Puttick. She resisted extradition saying that under the 1948 Act she was now a British National. . .
Cited – Prest v Petrodel Resources Ltd and Others SC 12-Jun-2013
In the course of ancillary relief proceedings in a divorce, questions arose regarding company assets owned by the husband. The court was asked as to the power of the court to order the transfer of assets owned entirely in the company’s names. The . .

Lists of cited by and citing cases may be incomplete.

Children, Immigration

Updated: 06 December 2021; Ref: scu.219159

The Secretary of State for The Home Department v RM (Pakistan): CA 23 Nov 2021

Claim based on derivative rights to remain in the United Kingdom by RM, who is the adult brother and primary carer of A, an adult British citizen. The claim was made under Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016

Lady Justice Simler
[2021] EWCA Civ 1754
Bailii
Immigration (European Economic Area) Regulations 2016
England and Wales

Immigration

Updated: 06 December 2021; Ref: scu.670063

Regina v Secretary of State for the Home Department, Ex parte Zamir: QBD 14 Mar 1979

The applicant sought a writ of habeas corpus having been detained pending his removal after failing to disclose his subsquent marriage on entry under an entry certificate.
Held: The request failed on the basis that entry had been obtained by a deception.

Lord Widgery CJ, Cumming-Bruce LJ and Neill J
[1979] QB 688, [1979] 2 All ER 849
Immigration Act 1971
England and Wales
Cited by:
Appeal from – Regina v Secretary of State for the Home Department, Ex parte Zamir CA 21-Dec-1979
The claimant appealed refusal of his request for a writ of habeas corpus. He had been detained for return to Pakistand. He had obtained an entry certificate, but then married, but did not disclose that on entry.
Held: The failure amounted to a . .
At first Instance – Regina v Secretary of State for the Home Department, Ex parte Zamir HL 17-Jul-1980
A person who obtained leave to enter, but did so by fraud, was an illegal entrant, on the basis that the fraud had the effect of vitiating the leave to enter which had been granted: ‘it is clear on general principles of law that deception may arise . .
At first Instance – Zamir v United Kingdom ECHR 1983
(Commission) Review of the lawfulness of a detention must be by a court, by a body which is judicial in character, and the review must be speedy. The right under Article 5.4 ‘must be seen as independent of the possibility of applying to a court for . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 December 2021; Ref: scu.271023

Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department: HL 10 Feb 1983

The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal immigrant.
Held: The term ‘illegal immigrant’ included anyone entering unlawfully. This could include those obtaining leave to enter by deception as well as those entering clandestinely. There is no duty of absolute candour upon someone applying for entry, but silence as to certain important facts might amount to fraud: ‘it would be wrong to construe the Immigration Act 1971 as if it imposed on persons applying for leave to enter a duty of candour approximating to uberrima fides. But, of course, deception may arise from silence as to a material fact in some circumstances; for example, the silence of the appellant Khawaja about the fact of his marriage to Mrs Butt and the fact that she had accompanied him on the flight to Manchester were, in my view, capable of constituting deception, even if he had not told any direct lies to the immigration officer.’
Habeas Corpus is available to all, not just British Nationals. When reviewing the decision of the immigration officer the court should go beyond asking only whether there was evidence on which the officer could have reached his decision, and look also at the sufficiency of that evidence. On a judicial review it was for the administrative authority to prove the facts upon which the decision it had reached had been made. The house was free to not follow its earlier decisions. The decision in Zamir was too narrow.
Lord Scarman said: ‘My Lords, I would adopt as appropriate to cases of restraint put by the executive upon the liberty of the individual the civil standard flexibly applied in the way set forth in the cases cited: and I would direct particular attention to the words of Morris LJ already quoted. It is not necessary to import into the civil proceedings of judicial review the formula devised by judges for the guidance of juries in criminal cases. Liberty is at stake: that is, as the court recognised in Bater v Bater [1951] P 35 and in Hornal v Neuberger Products Ltd [1957] 1 QB 247, a grave matter. The reviewing court will therefore require to be satisfied that the facts which are required for the justification of the restraint put upon liberty do exist. The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake. The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue’: Dixon J in Wright v Wright (1948) 77 CLR 191, 210. I would, therefore, adopt the civil standard flexibly applied in the way described in the case law to which I have referred. And I completely agree with the observation made by my noble and learned friend, Lord Bridge of Harwich, that the difficulties of proof in many immigration cases afford no valid ground for lowering the standard of proof required.
Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court. A preponderance of probability suffices: but the degree of probability must be such that the court is satisfied. The strictness of the criminal formula is unnecessary to enable justice to be done: and its lack of flexibility in a jurisdiction where the technicalities of the law of evidence must not be allowed to become the master of the court could be a positive disadvantage inhibiting the efficacy of the developing safeguard of judicial review in the field of public law.’
Lord Bridge said: ‘the civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree.’
Lord Wilberforce said: ‘These remedies of judicial review and habeas corpus are, of course, historically quite distinct and procedurally are governed by different statutory rules, but I do not think that in the present context it is necessary to give them distinct consideration. In practice, many applicants seek both remedies. The court considers both any detention which may be in force and the order for removal: the one is normally ancillary to the other. I do not think that it would be appropriate unless unavoidable to make a distinction between the two remedies and I propose to deal with both under a common principle.’
Lord Fraser of Tullybelton observed: ‘in spite of [a] decision . . that the illegal immigrant be removed from this country, it will still be open to him to appeal under section 16 of [the 1971 Act] to an adjudicator against the decision to remove him. The fact that he is not entitled to appeal so long as he is in this country – section 16(2) – puts him at a serious disadvantage, but I do not think it is proper to regard the right of appeal as worthless. At least the possibility remains that there may be cases, rare perhaps, where an appeal to the adjudicator might still succeed.’

Lord Fraser of Tullybelton, Lord Wilberforce, Lord Scarman, Lord Bridge of Harwich and Lord Templeman
[1983] 2 WLR 321, [1984] 1 AC 74, [1982] UKHL 5, [1983] UKHL 8, [1983] 1 All ER 765, [1982] Imm AR 139
lip, Bailii, Bailii
Immigration Act 1971 33(1)
England and Wales
Citing:
Not followed – Regina v Secretary of State for the Home Department, Ex parte Zamir HL 17-Jul-1980
A person who obtained leave to enter, but did so by fraud, was an illegal entrant, on the basis that the fraud had the effect of vitiating the leave to enter which had been granted: ‘it is clear on general principles of law that deception may arise . .
Cited – Bater v Bater CA 1951
The wife petitioned for divorce, alleging cruelty.
Held: It had not been a misdirection for the petitioner to have to prove her case beyond reasonable doubt: ‘A high standard of proof’ was required because of the importance of such a case to . .
Cited – Hornal v Neuberger Products Ltd CA 1956
Proof Standard for Misrepresentation
The court was asked what was the standard of proof required to establish the tort of misrepresentation, and it contrasted the different standards of proof applicable in civil and criminal cases.
Held: The standard was the balance of . .
Cited – In re Dellow’s Will Trusts; Lloyd’s Bank v Institute of Cancer Research ChD 1964
Husband and wife, having made mutual wills each leaving their estate to the other, had been found dead in their home from coal gas poisoning. The court asked what was required to displace the presumption that the husband, the older of the two, had . .
Cited – Wright v Wright 1948
The civil standard of proof is flexible and the court may properly require a higher degree of probability which is appropriate to what is at stake. ‘… the nature and gravity of an issue necessarily determines the manner of attaining reasonable . .
Cited – Somerset’s Case, Somerset v Stewart 1772
Habeas Corpus Granted to Slave
Somerset, a slave purchased by the defendant in Virginia, had been brought to England, but then confined on board a ship. He brought a writ for habeas corpus.
Held: The plea in defence was insufficient. Lord Mansfield ordered an African slave . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .

Cited by:
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Regina v Secretary of State for the Home Department ex parte Bugdaycay HL 19-Feb-1986
Three applicants had lied on entry to secure admission, stayed for a considerable time, and had been treated as illegal immigrants under section 33(1). The fourth’s claim that upon being returned he would been killed, had been rejected without . .
Cited – Regina v Secretary of State for Home Department ex parte Dolapo Omolara Martins Admn 29-Nov-1996
The Applicant sought judicial review of the Secretary of State’s decision declaring her to be an illegal entrant. She challenged a finding that at the time of entry she had intended to marry.
Held: It was established that she had not told th . .
Cited – Regina v Secretary of State for Home Department ex parte Cengiz Doldur Admn 26-Jun-1997
The applicant sought judicial review of the immigration officer’s finding that he was an illegal immigrant within the section. He had failed to declare that after obtaining temporary permission to enter, he had got married. It was not suggested that . .
Cited – Szoma v Secretary of State for the Department of Work and Pensions HL 28-Jul-2005
The applicant had claimed asylum on entry and was temporarily admitted. Though his claim for asylum was later refused, those admitted in this way were granted indefinite leave to remain. He had claimed and received benefits at first, but then these . .
Cited – Regina v Fraydon Navabi; Senait Tekie Embaye CACD 11-Nov-2005
The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the . .
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Cited – A, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – ZN and Another, Regina (on The Application of) v Bromley Youth Court Admn 9-Jul-2014
The applicants, both aged 16, sought permission to bring judicial review of a decision to commit thme for trial at the adult Crown Court on theft charges along with a co-defendant adult (though 18).
Held: Permission was granted.
Hayden J . .
Cited – O, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Apr-2016
The appellant failed asylum seeker had been detained for three years pending deportation. She suffered a mental illness, and during her detention the medical advice that her condition could be coped with in the detention centre changed, recommending . .
Cited – 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 . .
Cited – B (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .

Lists of cited by and citing cases may be incomplete.

Immigration, Judicial Review, Evidence

Leading Case

Updated: 05 December 2021; Ref: scu.178149

Regina v Secretary of State for the Home Department, Ex parte Zamir: HL 17 Jul 1980

A person who obtained leave to enter, but did so by fraud, was an illegal entrant, on the basis that the fraud had the effect of vitiating the leave to enter which had been granted: ‘it is clear on general principles of law that deception may arise from conduct, or from conduct accompanied by silence as to material fact.’ The Divisional Court: ‘cannot possibly act as, in effect, a Court of Appeal as to the facts on which the Immigration Officer decided. What it is able to do, and this is the limit of its powers, is to see whether there was evidence on which the Immigration Officer, acting reasonably, could decide as he did.’ The Secretary of State’s decision to deport the applicant was reviewable under habeas corpus.

Lord Wilberforce, Viscount Dilhorne, Lord Salmon, Lord Fraser of Tullybelton, Lord Russell of Killowen
[1980] AC 930 HL, [1980] UKHL 14, [1980] 2 All ER 768, [1980] 3 WLR 249
Bailii
Immigration Act 1971
England and Wales
Citing:
Appeal from – Regina v Secretary of State for the Home Department, Ex parte Zamir CA 21-Dec-1979
The claimant appealed refusal of his request for a writ of habeas corpus. He had been detained for return to Pakistand. He had obtained an entry certificate, but then married, but did not disclose that on entry.
Held: The failure amounted to a . .
At first Instance – Regina v Secretary of State for the Home Department, Ex parte Zamir QBD 14-Mar-1979
The applicant sought a writ of habeas corpus having been detained pending his removal after failing to disclose his subsquent marriage on entry under an entry certificate.
Held: The request failed on the basis that entry had been obtained by a . .

Cited by:
Not followed – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Appeal from – Zamir v United Kingdom ECHR 1983
(Commission) Review of the lawfulness of a detention must be by a court, by a body which is judicial in character, and the review must be speedy. The right under Article 5.4 ‘must be seen as independent of the possibility of applying to a court for . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 December 2021; Ref: scu.183159

MI and Another v Secretary of State for The Home Department: CA 18 Jun 2014

The court was asked whether, on the facts as found in each case by the relevant tribunal, the appellant in each case was entitled, as a matter of law, to claim that he had a well-founded fear of persecution such as to entitle him to refugee status.

Gross, Gloster LJJ, Sir Stanley Burnton
[2014] EWCA Civ 826
Bailii
England and Wales

Immigration

Updated: 04 December 2021; Ref: scu.526726

Salad, Re Judicial Review: QBNI 6 Feb 2014

The applicant is a Somalian National from a minority tribe and a refugee who was granted asylum in the United Kingdom in 2011. She challenges a decision of the Home Office dated 17 December 2012 whereby a fee of $3200 was levied in respect of her family’s application for family reunion in order to join her in the UK. Neither the applicant nor her family can discharge this application fee and the respondent has refused to waive same thereby debarring the applicant’s family from having their application considered by the respondent.

Treacy J
[2014] NIQB 37
Bailii
Immigration and Nationality (Cost Recovery Fees) Regulations 2011, Immigration and Nationality (Cost Recovery Fees) Regulations 2012
Northern Ireland

Immigration, Human Rights

Updated: 04 December 2021; Ref: scu.526630