Category: Immigration

Dabrowski and Others, Regina (on the Application of) v Secretary of State for the Home Department: CA 7 Apr 2003

Does the Home Secretary’s announced policy of not necessarily proceeding with removal or deportation of parents of young children who have seven or more years of continuous residence in the United Kingdom apply to port cases — that is to say, cases where no more than temporary admission has been granted to persons who have claimed asylum at the port of entry?

Lord Justice Simon Brown,
(Vice President of the Court of Appeal, Civil Division),
Lord Justice Laws,
Lord Justice Sedley
[2003] EWCA Civ 580
Bailii
England and Wales

Immigration

Updated: 29 November 2021; Ref: scu.181309

Kanyenkiko v Secretary of State for the Home Department: CA 25 Feb 2003

Appeal brought with permission against a decision of the Immigration Appeal Tribunal to the effect that the appellant’s appeal to the IAT fell to be treated as abandoned by force of section 58(9) of the Immigration and Asylum Act 1999.

Lord Justice Pill,
Lord Justice Laws,
Lady Justice Arden
[2003] EWCA Civ 542
Bailii
Immigration and Asylum Act 1999
England and Wales

Immigration

Updated: 29 November 2021; Ref: scu.181301

Secretary of State for The Home Department v Rodriguez: CA 20 Jan 2014

The applicants each sought entry under the points based system tostudy. They failed to accompany the applications with the necessary evidence of financial means, though that could have been supplied. The applications were rejected, and the complained that the Appellant should have applied the ‘Evidential Flexibility Policy’ rather than to immediately reject the application.
Held: The claimant’s appeal failed.

Pitchford, Davis LJJ, Sir Stanley Burnton
[2014] EWCA Civ 2
Bailii
England and Wales
Citing:
Appeal from – Rodriguez (Flexibility Policy) UTIAC 31-Jan-2013
UTIAC Since August 2009 UKBA has operated a policy relating to the processing and determination of applications under the Points Based System (‘PBS’). This was revised with effect from May 2011. In its policy . .

Cited by:
Appeal from – Mandalia v Secretary of State for The Home Department SC 14-Oct-2015
The Court considered the guidance given to UK Border Agency case workers when considering document submitted by persons applying for leave to enter or stay in the UK as foreign students. M had applied to study here, but had not accompanied his . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 28 November 2021; Ref: scu.519974

NK v France: ECHR 19 Dec 2013

7974/11 – Chamber Judgment, [2013] ECHR 1321
Bailii
European Convention on Human Rights
Human Rights
Citing:
Legal Summary – NK v France (LS) ECHR 19-Dec-2013
ECHR Article 3
Expulsion
Risk of ill-treatment in Pakistan owing to applicant’s conversion to Ahmadism: deportation would constitute a violation
Facts – The applicant, who was from a Sunni . .

Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Immigration

Updated: 28 November 2021; Ref: scu.519537

Hamzeh and Others v Secretary of State for The Home Department: Admn 20 Dec 2013

The five Claimants, failed asylum seekers from Iran, claimed to be entitled to the benefit of a grant of indefinite leave to remain (or some other grant of leave) arising from the Secretary of State’s programme for the resolution of a large backlog of unresolved asylum cases announced in July 2006, the ‘Legacy Programme’.

Simler J
[2013] EWHC 4113 (Admin)
Bailii

Immigration

Updated: 28 November 2021; Ref: scu.519337

Ismail, Regina (on The Application of) v Secretary of State for The Home Department: Admn 13 Dec 2013

The Claimant, a national of Somalia, applies for judicial review of the Defendant’s decision to detain him in immigration detention with a view to deportation under section 32, UK Borders Act 2007, following his conviction for assault. He seeks a declaration that his ongoing detention is unlawful and that his rights under Art. 5 ECHR have been breached. He has applied for a mandatory order for his release, and damages for false imprisonment.

Lang DBE J
[2013] EWHC 3921 (Admin)
Bailii
England and Wales

Immigration

Updated: 27 November 2021; Ref: scu.518995

The Secretary of State for The Home Department v Ali: CA 14 Sep 2021

Narrow question of construction of the phrase ‘in-time’ for the purposes of paragraph 39E(2) of the Immigration Rules in the context of applications for leave to remain in the United Kingdom. The question arises in relation to the Tier 1 (Entrepreneur) Migrant route but applies equally to many other leave to remain routes where applications for leave are made after the expiry of existing leave.

Lady Justice Simler
[2021] EWCA Civ 1357
Bailii, Judiciary
England and Wales

Immigration

Updated: 27 November 2021; Ref: scu.667887

TN (Afghanistan) and Another v Secretary of State for The Home Department: CA 12 Dec 2013

The applicants had arrived in the UK as minors fleeing Afghanistan. They now challenged grant of a discretionary leave to remain limited to expire withiin one year.

Maurice Kay VP, Beatson, Briggs LJJ
[2013] EWCA Civ 1609, [2013] WLR(D) 483, [2014] INLR 542, [2014] 1 WLR 2095, [2014] 2 CMLR 31
Bailii, WLRD
Nationality, Immigration and Asylum Act 2002 83, Directive 2003/9/EC
England and Wales
Citing:
Appeal from – TN v Secretary of State for The Home Department Admn 16-Dec-2011
‘The claimant, an unaccompanied child, challenges the Secretary of State’s decision of 12 November 2010 refusing his claim for asylum and for humanitarian protection and granting him discretionary leave to remain in the United Kingdom for a shorter . .

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

Lists of cited by and citing cases may be incomplete.

Immigration, Children

Updated: 26 November 2021; Ref: scu.518937

Abdullahi v Bundesasylamt: ECJ 10 Dec 2013

ECJ Request for a preliminary ruling – Common European Asylum System – Regulation (EC) No 343/2003 – Determination of the Member State responsible for examining an asylum application – Review of compliance with the criteria for determining responsibility for examining the asylum application – Scope of judicial review

C-394/12, [2013] EUECJ C-394/12
Bailii
Regulation (EC) No 343/2003
European

Immigration

Updated: 26 November 2021; Ref: scu.518890

AA (Afghanistan) v Secretary of State for The Home Department: CA 11 Dec 2013

McFarlane, Beatson, Underhill LJJ
[2013] EWCA Civ 1625
Bailii
England and Wales
Cited by:
Appeal from – TN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 26 November 2021; Ref: scu.518903

Nouazli, Regina (on The Application of) v Secretary of State for The Home Department: CA 10 Dec 2013

The appellant sought to challenge an order for his detention pending his deportation by the respondent. A national of a non EU state he had married an EU national resident in the UK. He had been convicted of offences here and detained pending deportation on grounds of publicpolicy.
Held: the Court of Appeal dismissed the appellant’s appeal against the amended order of Eder J: ‘Equality of treatment among EU nationals is one of the cornerstones of the European Union but [article 18 TFEU] is not concerned with the way in which member states treat nationals of other countries who reside within their territories, provided that they do not undermine the laws of the Union . Consistently with the purpose of the Treaty, which is to establish the fundamental legal architecture of the Union, article 18 TFEU is concerned only with the way in which citizens of the Union are treated in member states other than those of which they are themselves nationals. The argument therefore falls down at the first hurdle.’
Moore-Bick LJ said that article 18 TFEU is not concerned with the way in which member states treat nationals of other countries who reside in their territories, adding: ‘However, the difficulties do not end there. In seeking to compare the position of EEA nationals with that of nationals of other countries [the appellant] sought to focus exclusively on the Secretary of State’s power of detention, but that is to view the matter too narrowly. As the judge pointed out, the provision for detention in each case forms part of a wider regime dealing with removal. Unlike nationals of other countries, nationals of the EEA are entitled to reside in this country and enjoy the protection from removal afforded by the Treaty and the Directive. They are subject to a different legal regime which cannot be directly compared to that which applies to other foreign nationals, who can be deported if the Secretary of State deems their removal to be conducive to the public good: see section 3(5)(a) of the 1971 Act. For both these reasons I agree with the judge that [the appellant’s] argument is fundamentally flawed and that there is no substance in this ground of appeal.’
Lord Thomas CJ said: ‘Each deprivation of liberty pending deportation requires proper scrutiny of all the facts by the SSHD in accordance with the Hardial Singh principles. Those principles are the sole guidelines.’

Moore-Bick, Briggs, Christopher Clarke LJJ
[2013] EWCA Civ 1608, [2014] 1 All ER 1144, [2014] 1 WLR 3313
Bailii
Immigration (European Economic Area) Regulations 2006, Parliament and Council Directive 2004/38/EC 27
England and Wales
Citing:
At Admn – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department Admn 15-Mar-2013
Challenge to power of the SS to detain the claimant a national of the European Economic Area pending a decision to deport. The claimant was a third country national married to an EU national. He was detained pending deportation on the grounds of . .

Cited by:
At CA – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .

Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 26 November 2021; Ref: scu.518804

KU, Regina (on The Application of) v The Secretary of State for The Home Department: Admn 9 Dec 2013

The claimant was a British Overseas Citizen, but without a right of abode here. He had renounced his Malaysian citizenship, and on being returned there, had been refused entry and returned to the UK.

Timothy Brennan QC
[2013] EWHC 3881 (Admin)
Bailii
British Nationality Act 1981 4B

Immigration

Updated: 26 November 2021; Ref: scu.518791

P (DRC), Regina (on The Application of) v Secretary of State for The Home Department: Admn 9 Dec 2013

The court was asked whether persons returned to the Democratic Republic of Congo against their will are at real risk of ill-treatment contrary to Article 3 of the European Convention on Human Rights simply by reason of their status as either (a) failed asylum seekers or (b) criminal deportees.

Phillips J
[2013] EWHC 3879 (Admin)
Bailii

Human Rights, Immigration

Updated: 26 November 2021; Ref: scu.518793

Pokhriyal v The Secretary of State for The Home Department: CA 5 Dec 2013

Appeals by foreign students agaonst rejection of requests for entry to pursue further studies
Jackson LJ observed of the Pointe Based System Rules that they had ‘now achieved a degree of complexity which even the Byzantine emperors would have envied’.

Longmore, Jackson, Vos LJJ
[2013] EWCA Civ 1568, [2013] WLR(D) 471, [2014] PTSR D4, [2014] INLR 291
Bailii, WLRD
England and Wales
Cited by:
Cited – Mandalia v Secretary of State for The Home Department SC 14-Oct-2015
The Court considered the guidance given to UK Border Agency case workers when considering document submitted by persons applying for leave to enter or stay in the UK as foreign students. M had applied to study here, but had not accompanied his . .
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, Education

Updated: 26 November 2021; Ref: scu.518771

AS (Afghanistan) v Secretary of State for The Home Department: CA 21 Nov 2013

The court was asked as to the extent to which (if at all) judges of the Immigration and Asylum Chamber should regard as conclusive decisions of the ‘Competent Authority’ determining that an appellant before them has or has not been a victim of trafficking.

Longmore, Ryder, Briggs LJJ
[2013] EWCA Civ 1469
Bailii
England and Wales

Immigration

Updated: 26 November 2021; Ref: scu.518316

Ignaoua, Regina (on The Application of) v Secretary of State for The Home Department: CA 21 Nov 2013

The claimant appealed against refusal of judicial review of a decision to exclude him from the UK on the grounds that his presence here would not be conducive to the public good for reasons of national security.

Lord Dyson MR, Richards, Sullivan LJJ
[2013] EWCA Civ 1498
Bailii
England and Wales

Immigration

Updated: 26 November 2021; Ref: scu.518320

DH (Particular Social Group: Mental Health) Afghanistan: UTIAC 3 Jun 2020

1. The Geneva Convention relating to the Status of Refugees 1951 provides greater protection than the minimum standards imposed by a literal interpretation) of Article 10(1)(d) of the Qualification Directive (Particular Social Group). Article 10 (d) should be interpreted by replacing the word ‘and’ between Article 10(1)(d)(i) and (ii) with the word ‘or’, creating an alternative rather than cumulative test.
2. Depending on the facts, a ‘person living with disability or mental ill health’ may qualify as a member of a Particular Social Group (‘PSG’) either as (i) sharing an innate characteristic or a common background that cannot be changed, or (ii) because they may be perceived as being different by the surrounding society and thus have a distinct identity in their country of origin.
3. A person unable to secure a firm diagnosis of the nature of their mental health issues is not denied the right to international protection just because a label cannot be given to his or her condition, especially in a case where there is a satisfactory explanation for why this is so (e.g. the symptoms are too severe for accurate diagnosis).
4. The assessment of whether a person living with disability or mental illness constitutes a member of a PSG is fact specific to be decided at the date of decision or hearing. The key issue is how an individual is viewed in the eyes of a potential persecutor making it possible that those suffering no, or a lesser degree of, disability or illness may also qualify as a PSG.
5. SB (PSG – Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 0002 and AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) not followed.

[2020] UKUT 223 (IAC)
Bailii
England and Wales

Immigration

Updated: 23 November 2021; Ref: scu.653925

BAA and Another, Regina (on The Application of) v Secretary of State for The Home Department (Dublin III: Judicial Review; SOS’s Duties): UTIAC 23 Jun 2020

(1) Article 17(2) of Regulation 604/2013 of the European Parliament and of the Council (‘Dublin III’) confers a discretion on a Member State to examine an application for international protection ‘in order to bring together any family relations, on humanitarian grounds, based on family or cultural considerations’. Although the discretion is wide, it is not untrammelled: R (HA and others) (Dublin III; Articles 9 and 17.2) [2018] UKUT 297 (IAC). As in the case of any other discretionary power of the Secretary of State in the immigration field, Article 17(2) must be exercised in an individual’s favour, where to do otherwise would breach the individual’s human rights (or those of some other person), contrary to section 6 of the Human Rights Act 1998.
(2) The Secretary of State’s Article 17(2) decisions are susceptible to ‘ordinary’ or ‘conventional’ judicial review principles, of the kind described by Beatson LJ in ZT (Syria) v SSHD [2016] 1 WLR 4894 as ‘propriety of purpose, relevancy of considerations and the longstop Wednesbury unreasonableness category’ (para 85).
(3) Where a judicial review challenge involves an allegation of violation of an ECHR right, such as Article 8, it is now an established principle of domestic United Kingdom law that the court or tribunal must make its own assessment of the lawfulness of the decision, in human rights terms. If, in order to make that assessment, the court or tribunal needs to make findings of fact, it must do so.
(4) Nothing in paragraphs (1) to (3) above is dependent upon Article 27 (remedies) of Dublin III applying to the facts of the case. Nevertheless, what the Upper Tribunal held in R (MS) (Dublin III; duty to investigate) [2019] UKUT 9 (IAC) regarding the scope of Article 27 is correct and nothing in the Court of Appeal judgments in MS [2019] EWCA Civ 1340 suggests otherwise. The reference to a ‘transfer decision’ in Article 27 encompasses a refusal to take charge of a Dublin III applicant. That includes a refusal to take charge under Article 17(2).
(5) It would be remarkable if the Secretary of State’s investigatory responsibilities were materially narrower in an Article 17(2) case which concerns an unaccompanied minor and his or her best interests, than they would be in respect of any other take-charge request under Dublin III. Where the request under Article 17(2) raises issues that involve an asserted family life within Article 8 ECHR/Article 7 of the Charter of Fundamental Rights, then, in the normal course of events, the Secretary of State’s degree of engagement with the relevant United Kingdom local authority should be no less than in the case of any other unaccompanied minor, where the take-charge request is made under Article 8 of Dublin III on the basis that the relation in the United Kingdom is a sibling or a ‘family member’ or ‘relative’ as defined.
(6) Even in Article 17(2) cases, the principles of procedural fairness may mean that the Secretary of State may be required to provide an indication or gist to an applicant or his alleged United Kingdom relation, of matters of concern that may lead to a refusal to take charge of the applicant: R v SSHD ex parte Fayed [1998] 1 WLR 763; R (Balajigari) v SSHD [2019] 1 WLR 4647. This is, however, an area where one cannot lay down hard and fast rules. Even where Article 8 ECHR is in play, there may be exceptions. Furthermore, the process must not become so elaborate as to defeat the aim of expeditious decision-making, particularly where the best interests of minors are concerned.
(7) The references to ‘exceptional circumstances’ in the Secretary of State’s Dublin III Guidance (18 April 2019) do not render the Guidance unlawful. Those working in the immigration field know that the use of ‘exceptional’ in the context of Article 8 ECHR is not to be used as setting a particular (high) threshold but, rather, as predictive of the outcome of the application of the principles of proportionality to the facts of a particular case. Nothing in the Guidance suggests its author is telling caseworkers to do anything other than follow the settled law on this topic.

[2020] UKUT 227 (IAC)
Bailii
England and Wales

Immigration

Updated: 23 November 2021; Ref: scu.653924

Thangarasa, Regina (on The Application of) v Upper Tribunal (Immigration and Asylum Chamber) and Another: Admn 8 Nov 2013

Request for judicial review of refusal to grant permission to appeal against refusal of asylum claim. He said that when in Sri Lanka, his home country, he had been associated with the LTTE, and had indeed been tortured already on three occasions.

Blair J
[2013] EWHC 3415 (Admin)
Bailii

Immigration

Updated: 25 November 2021; Ref: scu.517477

Regina v Hillingdon London Borough Council ex parte Streeting: CA 1980

The court duscussed the extent of the housing duty of an authority toward a person ‘not lawfully here’.
Held: Outstayers should not be qualified for assistance.

Dunn LJ, Lord Denning MR
[1980] 1 WLR 1425
England and Wales
Cited by:
Cited – London Borough of Barnet v Ismail and Another CA 6-Apr-2006
The court considered the entitlement to housing support of nationals of other EEA states receiving Income Support here despite their being still subject to immigration control.
Held: Such EEA nationals were eligible for housing benefit. The . .

Lists of cited by and citing cases may be incomplete.

Housing, Immigration

Updated: 25 November 2021; Ref: scu.241308

Efenure, Regina (on The Application of) v Secretary of State for The Home Department: Admn 16 Oct 2013

Application for judicial review of decisions made in relation to the claimant, Ejovi Efenure, to treat him as an illegal entrant, to detain him, to certify his application for asylum as unfounded, and in relation to his student visa.

Prof Cooke
[2013] EWHC 3072 (Admin)
Bailii

Immigration

Updated: 21 November 2021; Ref: scu.516542

Irons, Regina (on The Application of) v Secretary of State for The Home Department (Fcjr): UTIAC 23 Sep 2013

Application for judicial review of a decision of the respondent to refuse the further representations of the applicant, a citizen of Jamaica, as a fresh claim following the making of a deportation order against him under Section 32(5) of the UK Borders Act 2007 and the subsequent decision to remove him to Jamaica.

Storey UTJ
[2013] UKUT 495 (IAC)
Bailii
UK Borders Act 2007 32(5)
England and Wales

Immigration

Updated: 21 November 2021; Ref: scu.516426

Secretary of State for The Home Department v Al-Jedda: SC 9 Oct 2013

The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that he had, by virtue of the order, been made stateless. The Secretary of State appealed.
Held: The appeal failed. The Secretary of State for the Home Department cannot make an order which deprives a person of his British citizenship on the ground that it is conducive to the public good if she is satisfied that the order would make him stateless. This appeal seeks to raise the question: if at the date of the Secretary of State’s order it were open to the person to apply for citizenship of another state and if that application would necessarily be granted, is it her order which would make him stateless or is it his failure to make the application which would do so?

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Wilson, Lord Carnwath
[2013] UKSC 62, [2013] WLR(D) 371, [2014] AC 253, [2014] INLR 131, [2014] 1 All ER 356, [2014] Imm AR 229, [2014] 1 AC 253, [2014] HRLR, [2013] 3 WLR 1006, UKSC 2012/0129
Bailii, Bailii Summary, SC Summary, SC, WLRD
British Nationality Act 1981 40, European Convention on Human Rights 5(1), United Nations Convention relating to the Status of Stateless Persons (1954), United Nations Convention relating to the Reduction of Statelessness 1961, Universal Declaration of Human Rights 1948 15
England and Wales
Citing:
See Also – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence Admn 12-Aug-2005
The claimant was born an Iraqi, but had been granted British Nationality. He was later detained in Iraq suspected of membership of a terrorist group. No charges were brought, and he complained that his article 5 rights were infringed. The defendant . .
At CA (1) – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
At HL – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
At SIAC (1) – Al-Jedda v Secretary of State for the Home Department SIAC 23-May-2008
The appellant had been granted british citizenship. He now appealed against a an order under section 40(2) of the 1981 Act depriving him of his British citizenship on the ground that the respondent was satisfied that deprivation was conducive to the . .
At SIAC (2) – Al-Jedda v Secretary of State for the Home Department SIAC 22-Oct-2008
The Court was asked whether or not the procedural protections afforded by Article 6(1) ECHRR as identified by the House of Lords in Secretary of State for the Home Department v MB [2007] UKHL 46 [2008] 1 AC 440 apply to the Appellant’s appeal . .
At ECHR (1) – Al-Jedda v The United Kingdom ECHR 2-Mar-2009
The claimant, an Iraqi and British national complained of his arrest and internment on suspicion of terrorist involvement. . .
See Also – Al-Jedda v Secretary of State for Defence QBD 5-Mar-2009
The claimant, an Iraqi/British national complained of his detention in Iraq by the defendant without any due process. . .
See Also – Al-Jedda v Secretary of State for the Home Department SIAC 7-Apr-2009
The appellant challenged an order made under the 1981 Act revoking his British citizenship, saying that it infringed his article 8 rights to family life. . .
See Also – Al-Jedda v Secretary of State for The Home Department CA 12-Mar-2010
The claimant appealed against a decision withdrawing his British citizenship, saying that this would leave him stateless. . .
See Also – Al-Jedda v Secretary of State for Defence CA 8-Jul-2010
Al Jedda, who had both Iraqi and British nationality, sought damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. . .
See Also – Hilal Al-Jedda v Secretary of State for The Home Department SIAC 26-Nov-2010
Deprivation of Citizenship – Substantive – Dismissed . .
At ECHR (2) – Al-Jedda v United Kingdom ECHR 7-Jul-2011
Grand Chamber – The international measure relied on by the respondent state had to be interpreted in a manner that minimised the extent to which arbitrary detention was sanctioned or required.
The court described its role in settling awards of . .
Appeal from – Al-Jedda v Secretary of State for The Home Department CA 29-Mar-2012
The appellant had been deprived of his British Citizenship by an order of the respondent under the 1981 Act. That had meant that he was unable to return to the UK. He now appealed against refusal of his challenge to the order. . .
At SIAC – Al-Jedda v Secretary of State for The Home Department (Deprivation of Citizenship Directions – Oral Ruling ) SIAC 7-Feb-2014
Order . .
Cited – Perez v Brownell 31-Mar-1958
(United States Supreme Court)
Warren CJ (dissenting) described a right to nationality as ‘man’s basic right for it is nothing less than the right to have rights’. . .
Cited – Karassev v Finland ECHR 12-Jan-1999
Admissibility. The arbitrary denial of citizenship may violate the right to respect for private life under Article 8. The Convention did not guarantee the right to acquire a particular nationality. Nevertheless, it did ‘not exclude that an arbitrary . .
Cited – B2 v Secretary of State for The Home Department CA 24-May-2013
Appeal from the Special Immigration Appeals Commission in which the issue was whether the Secretary of State for the Home Department was entitled to deprive a British Citizen originating from Vietnam of British nationality following his alleged . .

Cited by:
At SC – Hilal Al-Jedda SIAC 18-Jul-2014
lSIAC Deprivation of Citizenship : Preliminary Issue . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 21 November 2021; Ref: scu.516314

Regina v Nazari: CACD 1980

The CACD heard several appeals together, giving guidance as to the general principles to be applied in deciding on recommendations for deportation under the Act. Lawton LJ said that ‘no court should make an order recommending deportation without making full enquiry into all the circumstances’, and gave guidance, according to the seriousness of the offence and the criminal record. The courts should not be concerned with the political systems which operate in other countries, having no knowledge of them, and should not express views about external regimes. It is for the Home Secretary to decide whether an offender’s return to his country of origin would have consequences which would make his compulsory return unduly harsh. The Home Secretary can inform himself where the courts can not. ‘First, the Court must consider, as was said by Sachs LJ in Caird’s case, whether the accused’s continued presence in the United Kingdom is to its detriment. This country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records. That is self-evident. The more serious the crime and the longer the record the more obvious it is that there should be an order recommending deportation . . Secondly, the Courts are not concerned with the political systems which operate in other countries . . The next matter to which we invite attention by way of guidelines is that the effect that an order recommending deportation will have upon others who are not before the Court and who are innocent persons.’
Lawton LJ said: ‘A person who is likely to be the subject of an order must be given 7 clear days notice of what may happen to him. The object of that is to enable him to prepare his answer to a suggestion that he should be recommended for deportation.’

Lawton LJ
(1980) 2 Cr App R (S) 84, (1980) 71 Cr App R 87, [1980] 1 WLR 1366
Immigration Act 1971 6(1)
England and Wales
Citing:
Cited – Regina v Caird CACD 1970
When considering the sentencing of rioters, it was not sufficient to consider the individual acts of the offenders. It is the act of taking part in such riotous activities that constitutes the seriousness of the offence.
Sachs LJ said: ‘When . .
Cited – Regina v Pierre Bouchereau ECJ 27-Oct-1977
ECJ The different language versions of a community text must be given a uniform interpretation and hence in the case of divergence between the versions the provision in question must be interpreted by reference . .

Cited by:
Cited – M v the Secretary of State for the Home Department CA 19-Feb-2003
The applicant had been given indefinite leave to remain in England, but was later convicted of indecent assault, and recommended for deportation. On appeal the court said that the order for deportation was disproportionate. After serving his . .
Cited – Regina v Kayar CACD 2-Mar-1998
A sentence of 20 years’ imprisonment imposed following trial was reduced to one of 16 years in respect of an offender who had organised the importation of a 10.3 kilo consignment of heroin. . .
Cited – Regina v Ukoh CACD 28-Dec-2004
The defendant appealed his sentence for a drugs offence, saying that following his deportation on release, he would be liable to a further term of imprisonment at home for the same offence.
Held: That issue was not relevant to an English court . .
Cited – Regina v Escauriaza CACD 2-Jan-1988
For all practical purposes the tests for deportation of an EU national after completion of a sentence of imprisonment are the same in Nazari and Bouchereau: ‘Thus under EEC Law a valid recommendation for deportation can only be made if at least two . .
Cited – Regina v Spura 3-Jan-1988
The court considered the test for ordering deportation of an EU National after completion of his sentence of imprisonment, applying Bouchereau and Nazari: ‘. . in the case of Escauriaza . . the Court . . concluded, accepting a submission from an . .
Cited – Benabbas, Regina v CACD 12-Aug-2005
The Court considered a recommendation for the deportation of an Algerian national after the completion of his sentence.
Held: Rix LJ referred to both the Nazari and the Bouchereau tests, and said: ‘The Appellant is not of course an EU . .
Cited – Regina v Kluxen CACD 14-May-2010
The court considered the occasions on which a court should recommend deportation after completion of a prison sentence and how this might differ between EU and non-EU nationals.
Held: Since the 2007 it is not appropriate to recommend . .
Cited – Abdi, Regina v CACD 31-Jul-2007
The appellant had been convicted of a sexual assault on a boy, and recommended for deportation on completion of his sentence. He had not however been served with notice of the possibility of such an order, as required by section 6 of the 1971 Act, . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Immigration

Updated: 20 November 2021; Ref: scu.179719

Regina on the Application of the Secretary of State for the Home Department v Immigration Appeal Tribunal; Regina on the Application of Hwez v Secretary of State for the Home Department and an Adjudicator: Admn 19 Dec 2001

The Home Secretary’s statement that he had no intention to seek the removal from this country of an asylum seeker did not operate to remove his right to persist with an appeal against refusal of refugee status. In the light of the Sad case, the appeal must be allowed to go ahead. The asylum claimant was entitled to have the question whether he was a refugee determined by the appellate authorities. In those circumstances, the argument in favour of adjourning the case indefinitely disappeared.

Lord Phillips Master Of The Rolls, Lord Justice Schiemann, And, Lord Justice Clarke
Times 07-Jan-2002, [2001] EWHC Admin 1067, [2002] INLR 116, [2002] Imm AR 491
Bailii
Immigration and Asylum Act 1999 69
England and Wales
Citing:
Cited – Massaquoi v Secretary of State for Home Department CA 20-Dec-2000
. .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 20 November 2021; Ref: scu.167215

B, Regina (on the Application Of) v Secretary of State for the Home Department: Admn 26 Apr 2002

This case concerns the concession outside the immigration rules for the victims of domestic violence. Under this a person granted limited leave to enter the U.K. as the spouse or unmarried partner of a British citizen for a probationary period of one year, whose marriage or relationship breaks down during the probationary period as a result of domestic violence, may be granted indefinite leave to remain in the U.K. provided that there is proof to a specified standard that the person has been the victim of domestic violence during the probationary period while the marriage or relationship was subsisting.

[2002] EWHC 854 (Admin)
Bailii
England and Wales

Immigration

Updated: 20 November 2021; Ref: scu.172206

Singh (No Immigration Decision- Jurisdiction) India: UTIAC 6 Sep 2013

UTIAC (i) An appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 requires there to be an immigration decision, as there defined. Where no immigration decision has been made, the First-tier Tribunal has no jurisdiction to hear the appeal.
(ii) Judges considering an appeal (or applications for permission to appeal) should ensure that a copy of the notice of the immigration decision under appeal exists and is produced.

Kopieczek UTJ
[2013] UKUT 440 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 November 2021; Ref: scu.515463

Mohammed (Late Application-First-Tier Tribunal) Somalia: UTIAC 18 Sep 2013

UTIAC Where an application for permission to appeal to the Upper Tribunal is made to the First-tier Tribunal outside the prescribed period, rule 24(4) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 requires that the First-tier Tribunal must make a decision on whether the application should be admitted.

Latter UTJ,
[2013] UKUT 467 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 November 2021; Ref: scu.515460

Okonkwo (Legacy/Hakemi; Health Claim) Nigeria: UTIAC 30 Jul 2013

UTIAC (1) It may be unfair for the Secretary of State to fail to apply the terms of a policy to a case that fell within the terms of the policy when it was in existence: Hakemi and others [2012] EWHC 1967 (Admin), and Mohammed [2012] EWHC 3091 Admin considered.
(2) Chapter 53 of the EIG Instructions as in force December 2011 did not mean that any adult who had lawfully resided in the UK for six years had an expectation of discretionary leave to remain, applying former rule 395C together with the policy then in force.
(3) An appellant who has been provided with an organ transplant during a period of lawful leave to remain, and the viability of the success of the transplant would be prejudiced by loss of effective access to immune-suppressant medication may well have a good claim to remain under Article 8 ECHR: see JA (Ivory Coast) ES (Tanzania) v SSHD [2009] EWCA Civ 1353; GS and EO (Article 3- health cases) [2012] UKUT 397; and Akhalu (health claim: ECHR Article 8)[2013] UKUT 400 (IAC) considered; but the argument must be advanced to the First tier judge before it can be said that there was an error of law in failing to deal with it.

[2013] UKUT 401 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 November 2021; Ref: scu.515453

Hussain, Regina (on The Application of) v Secretary of State for The Home Department (Fcjr) Pakistan: UTIAC 22 Aug 2013

Challenge as Wednesbury unreasonableness of decisions made by the respondent refusing to treat the applicant’s submissions as a fresh claim within the meaning of paragraph 353 of the Immigration Rules.

Jordan UTJ
[2013] UKUT 438 (IAC)
Bailii
Immigration Rules 353
England and Wales

Immigration

Updated: 20 November 2021; Ref: scu.515457

Vasconcelos (Risk – Rehabilitation) Portugal: UTIAC 16 Jul 2013

UTIAC (1) In assessing whether an EEA national represents a current threat to public policy by reason of a risk of resumption of opportunistic offending, the Tribunal should consider any statistical assessment of re-offending provided by NOMS but is not bound by such data if the overall assessment of the evidence supports the conclusion of continued risk;
(2) A failure by a respondent to an appeal to comply with directions, serve a respondent’s notice in time, or indicate what fresh evidence is sought to be adduced to update the tribunal in the event that a decision is re-made, is likely to mean an adjournment to supply witness statements and adduce such evidence will be refused.

Blake J P, Southern UTJ
[2013] UKUT 378
Bailii
England and Wales

Immigration

Updated: 20 November 2021; Ref: scu.515454

Deliallisi (British Citizen: Deprivation Appeal: Scope) Albania: UTIAC 30 Aug 2013

UTIAC (1) An appeal under section 40A of the British Nationality Act 1981 against a decision to deprive a person of British citizenship requires the Tribunal to consider whether the Secretary of State’s discretionary decision to deprive should be exercised differently. This will involve (but not be limited to) ECHR Article 8 issues, as well as the question whether deprivation would be a disproportionate interference with a person’s EU rights.
(2) Although, unlike section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, section 40A of the 1981 Act does not involve any statutory hypothesis that the appellant will be removed from the United Kingdom in consequence of the deprivation decision, the Tribunal is required to determine the reasonably foreseeable consequences of deprivation, which may, depending on the facts, include removal.
(3) A person who, immediately before becoming a British citizen, had indefinite leave to remain in the United Kingdom, does not automatically become entitled to such leave, upon being deprived of such citizenship.

Peter Lane, Kebede UTJJ
[2013] UKUT 439 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 November 2021; Ref: scu.515456

Regina (on The Application of Samir Boukhatem) v Secretary of State for The Home Department (FCJR): UTIAC 30 Aug 2013

Challenges as Wednesbury unreasonable decisions refusing to treat the applicant’s submissions as a fresh claim within the meaning of paragraph 353 of the Immigration Rules.

Latter, Jordan UTJJ
[2013] UKUT 464 (IAC)
Bailii
Imigration Rules 353
England and Wales

Immigration

Updated: 20 November 2021; Ref: scu.515459

Lim (EEA -Dependency) Malaysia: UTIAC 7 Aug 2013

UTIAC Subject to there being no abuse of rights, the jurisprudence of the Court of Justice allows for dependency of choice. Whilst the jurisprudence has not to date dealt with dependency of choice in the form of choosing not to live off savings, it has expressly approved dependency of choice in the form of choosing not take up employment (see Centre Publique d’Aide Social de Courcelles v Lebon [1987] ECR 2811 (‘Lebon’) at [22]) and it may be very difficult to discern any principled basis for differentiating between the two different forms of dependency of choice when the test is a question of fact and the reasons why there is dependency are irrelevant.

Storey UTJ
[2013] UKUT 437 (IAC)
Bailii
England and Wales

Immigration

Updated: 20 November 2021; Ref: scu.515458

Re Filev and Osmani: ECJ 19 Sep 2013

ECJ Area of freedom, security and justice – Return of illegally staying third-country nationals – Directive 2008/115/EC – Article 11(2) – Return decision coupled with an entry ban – Length of the entry ban restricted to five years in principle – National legislation providing for an entry ban of unlimited duration in the absence of an application for a limitation – Article 2(2)(b) – Third-country nationals subject to return as a criminal law sanction or as a consequence of a criminal law sanction – Non-application of the directive

L. Bay Larsen, P
C-297/12, [2013] EUECJ C-297/12
Bailii
Directive 2008/115/EC
European

Immigration

Updated: 20 November 2021; Ref: scu.515362

Suso Musa v Malta (Legal Sumary): ECHR 23 Jul 2013

ECHR Article 5-1-f
Prevent unauthorised entry into country
Detention of asylum-seeker for period which, particularly in view of his conditions of detention, was unreasonable: violation
Facts – The applicant entered Malta in an irregular manner by boat in April 2011, was arrested by the police and placed in detention. He submitted an application for asylum and challenged his detention. In July 2012 the Immigration Appeals Board held that in the applicant’s case, had the asylum request still been pending, he could not have been kept in detention unless return proceedings were under way or he presented a risk of absconding. However, the situation had changed, given that on 2 April 2012 the applicant’s asylum request had been rejected by a final decision.
Before the European Court the applicant complained that his detention did not fall within any of the situations provided for by Article 5 and, more particularly, that its purpose had not been to prevent his unauthorised entry into Malta, given that he had been awaiting a decision on his asylum application and the consequent authorisation to enter or remain in Malta.
Law – Article 5-1 (f): In Saadi v. the United Kingdom the Grand Chamber had interpreted for the first time the meaning of the first limb of Article 5-1(f), namely, ‘to prevent his effecting an unauthorised entry into the country’. It had considered that until a State had ‘authorised’ entry to the country concerned, any entry was ‘unauthorised’ and the detention of a person who wished to effect entry and who needed but did not yet have authorisation to do so, could be, without any distortion of language, to ‘prevent his effecting an unauthorised entry’. It had not accepted that, as soon as an asylum seeker had surrendered himself to the immigration authorities, he was seeking to effect an ‘authorised’ entry, with the result that detention could not be justified under the first limb of Article 5 ss 1 (f). It had considered that to interpret the first limb of Article 5 ss 1 (f) as permitting detention only of a person who had been shown to be trying to evade entry restrictions would have been to place too narrow a construction on the terms of the provision and on the power of the State to exercise its undeniable right of control. However, the Court’s case-law did not appear to offer specific guidelines as to when detention in an immigration context ceased to be covered by the first limb of Article 5 ss 1 and fell under its second limb. The applicant’s argument to the effect that Saadi should not be interpreted as meaning that all member States may lawfully detain immigrants pending their asylum application, irrespective of national law, was not devoid of merit. Indeed, where a State which had gone beyond its obligations in creating further rights or a more favourable position enacted legislation explicitly authorising the entry or stay of immigrants pending an asylum application, any ensuing detention for the purpose of preventing an unauthorised entry might raise an issue as to the lawfulness of detention under Article 5 ss 1 (f). Indeed, in such circumstances it would be hard to consider the measure as being closely connected to the purpose of the detention and to regard the situation as being in accordance with domestic law. In fact, it would be arbitrary and thus run counter to the purpose of Article 5 ss 1 (f) to interpret clear and precise domestic-law provisions in a manner contrary to their meaning. In Saadi the national law (albeit allowing temporary admission) had not provided for the applicant to be granted formal authorisation to stay or to enter the territory, and therefore no such issue had arisen. Therefore the question as to when the first limb of Article 5 ceased to apply, because the individual had been granted formal authorisation to enter or stay, was largely dependent on national law.
As to the facts of the present case, the Court observed that it was faced with conflicting interpretations of Legal Notice 243 of 2008, and particularly of Regulation 12(1) thereof, which provided that an applicant should be ‘allowed to enter or remain in Malta pending a final decision of his application’. The Government had submitted that this provision did not oblige them to provide the applicant with any authorisation to stay. However, in the determination of the applicant’s case, the Immigration Appeals Board had upheld the argument that the provision authorised entry and that therefore in principle the circumstances of the applicant’s case had been such that he could not have been detained. It was not for the Court to interpret the intention of the legislature one way or another. However, it might well be that what had been intended was for the provision to reflect international standards to the effect that an asylum seeker might not be expelled pending an asylum application, without necessarily requiring that an individual be granted formal authorisation to stay or to enter the territory. The fact that the provision, while establishing the conditions to be met by the asylum seeker, did not provide for any formal authorisation procedure or for the issuance of any relevant documentation lent support to this interpretation. In this situation the Court considered that the first issue that arose concerned the quality of the domestic law. While it was clear that Article 5 in conjunction with Article 14 of the Act had authorised the detention of prohibited immigrants, it was undeniable that Legal Notice 243, which ‘applied notwithstanding the provisions of any other law to the contrary’, had created some confusion as to the extent of the legal basis, in particular, whether detention under the Immigration Act was lawful (in terms of the domestic law) only up to the moment an individual applied for asylum or continued to be lawful pending the determination of the asylum claim. However, while considering that clarification of the legal framework was called for in the domestic system, the Court was ready to accept that the detention had had a sufficiently clear legal basis, namely Article 5 in conjunction with Article 14 of the Act, and that, given that it had not been established that the applicant had actually been granted formal authorisation to stay – the Court in fact noted that the applicant had not been issued with the relevant written documentation – his detention had fallen under the first limb of Article 5-1(f).
As whether the applicant’s detention had been arbitrary, the Court noted a series of odd practices on the part of the domestic authorities, such as the by-passing of the voluntary departure procedure and the across-the-board decisions to detain, which the Government considered did not require individual assessment. In the light of these practices the Court had reservations as to the Government’s good faith in applying an across-the-board detention policy with a maximum duration of eighteen months. Furthermore, the appropriateness of the place and the conditions of the detention raised concerns. Periods of three months’ detention pending a determination of an asylum application had already been considered to be unreasonably lengthy, when coupled with inappropriate conditions. Hence, the Court could not consider a period of six months to be reasonable, particularly in the light of the conditions of detention described by various independent entities. It followed that the applicant’s detention up to the date of determination of his asylum application had not been compatible with Article 5-1 (f) of the Convention, which had therefore been violated.
Conclusion: violation (unanimously).
The Court also found a violation of 5-1 (f) in respect of the applicant’s detention following the determination of his asylum claim and of Article 5-4 on account of the lack of effective and speedy remedy under domestic law by which to challenge the lawfulness of detention.
Article 41: EUR 24,000 in respect of non-pecuniary damage.
(See also Aden Ahmed v. Malta, no. 55352/12, 23 July 2013)

42337/12 – Legal Summary, [2013] ECHR 776
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Sumary – Suso Musa v Malta ECHR 23-Jul-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 20 November 2021; Ref: scu.515140

AA (3rd Party Maintenance R297 (V)) Bangladesh: IAT 21 Apr 2005

Rule 297(v) (as amended) requires that the parent, whom the child is joining, must himself maintain the child: ‘Third party support by relatives or otherwise cannot satisfy the rule’

The Hon Mr Justice Hodge (President)
[2005] UKAIT 00105, [2005] Imm AR 328, [2006] INLR 1
Bailii
Immigration Rules
England and Wales
Cited by:
Cited – Mahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
Immigration

Updated: 19 November 2021; Ref: scu.226003

MM (Section 117B – EU Citizen Child): UTIAC 8 Jun 2020

1. The definition of ‘qualifying child’ contained in section 117D(1) of the Nationality, Immigration and Asylum Act 2002 does not include an EU citizen child resident in the United Kingdom for less than seven years.
2. The non-inclusion of EU citizen children resident for less than seven years in the definition of ‘qualifying child’ does not breach the EU law prohibition against discrimination on grounds of nationality.

[2020] UKUT 224 (IAC)
Bailii
England and Wales

Immigration

Updated: 19 November 2021; Ref: scu.653926

B (Citizenship of The European Union – Right To Move and Reside Freely – Enhanced Protection v Expulsion – Judgment): ECJ 24 Oct 2017

Reference for a preliminary ruling – Citizenship of the European Union – Right of Union citizens to move and reside within the territory of the European Union – Protection against expulsion – Residence in the host Member State for the 10 years preceding the expulsion decision – Union citizen with no ties to his Member State of origin – Interruption of continuity of residence by a period of imprisonment – Offence committed after 20 years’ residence – Concept of ‘the precise time when the question of expulsion arises’

C-316/16, [2018] EUECJ C-316/16_O, ECLI:EU:C:2017:797
Bailii
European

Immigration

Updated: 19 November 2021; Ref: scu.668597

C1 and Others v Secretary of State for The Home Department: Admn 7 Aug 2012

‘This claim for judicial review is concerned with the scope of the Secretary of State for the Home Department’s (‘SSHD’) Mandate Refugee policy and the manner in which she reached her decisions in three related cases decided under that policy.’

Anthony Thornton QC HHJ
[2013] EWHC 2415 (Admin)
Bailii
England and Wales

Immigration

Updated: 18 November 2021; Ref: scu.514333

Ignaoua, Regina (on The Application of) v Secretary of State for The Home Department: Admn 9 Aug 2013

‘This claim concerns a certificate issued by the Secretary of State for the Home Department (‘the Secretary of State’) on 16 July 2013 under a power conferred by the Justice and Security Act 2013. The Secretary of State contends that the certificate has the effect of terminating the judicial review the claimant has had ongoing in this court since 2010, challenging his exclusion from the United Kingdom on national security grounds.’
Held: The Secretary of State was entitled to issue the certificate. However the court noted with concern that no procedures had yet been established to allow the claimant to exercise the remedy provided by statute.

Cranston J
[2013] EWHC 2512 (Admin), [2013] WLR(D) 338
Bailii, WLRD
Special Immigration Appeals Commission Act 1997
England and Wales

Immigration

Updated: 18 November 2021; Ref: scu.514338

Mohammed v Austria: ECHR 6 Jun 2013

ECHR Article 3
Degrading treatment
Inhuman treatment
Expulsion
Proposed transfer of Sudanese asylum-seeker from Austria to Hungary under the Dublin II Regulation: transfer would not constitute a violation
Facts – The applicant was a Sudanese national who arrived in Austria via Greece and Hungary in October 2010 and applied for asylum. His application was rejected in January 2011 under the European Union Dublin II Regulation (‘Dublin Regulation’) and an order was made for his forced transfer to Hungary. In December 2011 the applicant lodged a second application for asylum (which had no suspensive effect) following adverse reports by the UNHCR on the conditions of asylum-seekers in Hungary and a recent decision of the Austrian Asylum Court to grant suspensive effect to an appeal in another case in view of the risks of a possible violation of the Convention that had been identified in those reports. The second application for asylum was still pending at the date of the Court’s judgment.
Law – Article 3: Reports published in 2011 and 2012 on Hungary as a country of asylum and in particular as regards transferees under the Dublin Regulation were alarming. The UNHCR had identified areas of deficiency relating in particular to (i) prolonged administrative detention of asylum-seekers and the conditions of their detention and (ii) the treatment of asylum applications by transferees.
The Court noted that there was seemingly a general practice of detaining asylum-seekers for a considerable time, partly under conditions that fell short of international and EU standards, and with deficient review procedures. There were also reports of abuse of detained asylum-seekers by officials and of forced medication. Nevertheless, although the UNHCR had advised the Austrian authorities of these problems in a letter of 17 October 2011 and had issued a comprehensive report in April 2012, it had never issued a position paper requesting European Union Member States to refrain from transferring asylum-seekers to Hungary under the Dublin Regulation (as it had done with respect to Greece, see M.S.S. v. Belgium and Greece [GS], no. 30696/09, 21 January 2011, Information Note no. 137). Furthermore, in a more recent note on the subject issued in December 2012, the UNHCR had appreciatively acknowledged the changes to the law planned by the Hungarian Government and made particular reference to the fact that transferees who applied for asylum immediately upon their arrival in Hungary would no longer be subject to detention. It had also remarked on the reported intention of the Hungarian authorities to introduce additional legal guarantees concerning detention and to ensure unhindered access to basic facilities. Indeed, the number of detained asylum-seekers had declined significantly in 2012. The Court therefore concluded that the applicant would no longer be at a real and individual risk of proscribed treatment in respect of detention if transferred to Hungary.
As to the issue of sufficient access to asylum proceedings in Hungary and the risk of refoulement to a third country, the Court took particular note of reports that asylum-seekers transferred there under the Dublin Regulation had to reapply for asylum upon arrival and that such a renewed application was treated as a second asylum application without suspensive effect. There was also a seemingly automatic process of handing out deportation orders upon entry and thus a real risk of refoulement without the merits of the asylum claim being examined. However, the applicant had not substantiated any individual risk of being subjected to treatment contrary to Article 3 if he returned to Sudan and in any event, as the transferring State, Austria was not required to conduct an analysis of the underlying flight reasons, but only to establish whether another EU Member State had jurisdiction under the Dublin Regulation and to examine whether there were any general reasons or other obstacles that would require a stay of transfer. Lastly, it appeared that under the changes that had been made to Hungarian law and practice transferees now had sufficient access to and could await the outcome of asylum proceedings in Hungary, provided they applied for asylum immediately.
Conclusion: no violation in the event of deportation (unanimously).
Article 13 in conjunction with Article 3: The applicant had made two applications for asylum in Austria. At the time of the first application in 2010, he did not have an arguable claim under Article 3 of the Convention, since the criticism voiced with regard to the situation of asylum-seekers in Hungary was not widely known at that time. However, the order for the applicant’s transfer to Hungary was not scheduled to be enforced until almost a year after it was made, by which time the applicant had (in December 2011) lodged a second application for asylum in the light of the reports on the situation of asylum-seekers in Hungary that had come to light in the meantime. Under Austrian law, that second asylum application did not have suspensive effect. In the Court’s view, however, in view of the passage of time before it was lodged and the intervening change of circumstances, that second application could not prima facie be considered abusively repetitive or entirely manifestly ill-founded and its lack of suspensive effect meant that the applicant had been denied access to an effective remedy against the enforcement of the order for his forced transfer.
Conclusion: violation (unanimously).
Article 41: finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage; no claim made in respect of pecuniary damage.

2283/12 – Legal Summary, [2013] ECHR 742
Bailii
European Convention on Human Rights 3

Human Rights, Immigration

Updated: 18 November 2021; Ref: scu.514307

Islam, Regina (on The Application of) v Secretary of State for The Home Department: Admn 21 Mar 2013

The application relates to the refusal by the Defendant of the Claimant’s application for leave to remain as a Tier 4 migrant. The application was made under the points-based system and included application for a biometric residence permit.

Ian Dove QC DHCJ
[2013] EWHC 2369 (Admin)
Bailii
England and Wales

Immigration

Updated: 18 November 2021; Ref: scu.514293