The appellant had been convicted of supplying drugs, and ordered to be returned to Jamaica after her sentence. She had resisted saying that, as a lesbian, she would be persecuted if returned. The respondent conceded that the IAT had made an error of law, but not one which vitiated its conclusion. Without notice it resiled from its previous concession that the claimant was lesbian.
Held: The case should be remitted to allow reconsideration of the appellant’s sexual identity. However, the tribunal had been entitled to allow withdrawal of the concession: ‘the Tribunal may in its discretion permit a concession to be withdrawn if in its view there is good reason in all the circumstances for that course to be taken. Its discretion is wide. Its exercise will depend on the particular circumstances of the case before it. Prejudice to the applicant is a significant feature. So is its absence. Its absence does not however mean that an application to withdraw a concession will invariably be granted. Bad faith will almost certainly be fatal to an application to withdraw a concession. In the final analysis, what is important is that as a result of the exercise of its discretion the Tribunal is enabled to decide the real areas of dispute on their merits so as to reach a result which is just both to the appellant and the Secretary of State.’

Mummery LJ, Lloyd LJ, Goldring LJ
[2009] EWCA Civ 856, [2010] INLR 169
Bailii
England and Wales
Citing:
Cited – Carcabuk v Secretary of State for the Home Department IAT 18-May-2000
Collins J considered the circumstances under which a party could withdraw a concession previously given. Collins J said: ‘It is in our judgment important to identify the precise nature of any so-called concession. If it is of fact . . the . .
Cited – Davoodipanah v Secretary of State for the Home Department CA 29-Jan-2004
Before the adjudicator, the respondent had conceded that the asylum applicant had good reason to fear persecution if returned to her home country. He sought to withdraw that concession at the Immigration Appeal Tribunal.
Held: It was not for . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 11 November 2021; Ref: scu.371881

UTIAC Risk to Christians in China
(1) In general, the risk of persecution for Christians expressing and living their faith in China is very low, indeed statistically virtually negligible. The Chinese constitution specifically protects religious freedom and the Religious Affairs Regulations 2005 (RRA) set out the conditions under which Christian churches and leaders may operate within China.
(2) There has been a rapid growth in numbers of Christians in China, both in the three state-registered churches and the unregistered or ‘house’ churches. Individuals move freely between State-registered churches and the unregistered churches, according to their preferences as to worship.
(3) Christians in State-registered churches
(i) Worship in State-registered churches is supervised by the Chinese government’s State Administration for Religious Affairs (SARA) under the RRA.
(ii) The measures of control set out in the RRA, and their implementation, whether by the Chinese state or by non-state actors, are not, in general, sufficiently severe as to amount to persecution, serious harm, or ill-treatment engaging international protection.
(iii) Exceptionally, certain dissident bishops or prominent individuals who challenge, or are perceived to challenge, public order and the operation of the RRA may be at risk of persecution, serious harm, or ill-treatment engaging international protection, on a fact-specific basis.
(4) Christians in unregistered or ‘house’ churches
(i) In general, the evidence is that the many millions of Christians worshipping within unregistered churches are able to meet and express their faith as they wish to do.
(ii) The evidence does not support a finding that there is a consistent pattern of persecution, serious harm, or other breach of fundamental human rights for unregistered churches or their worshippers.
(iii) The evidence is that, in general, any adverse treatment of Christian communities by the Chinese authorities is confined to closing down church buildings where planning permission has not been obtained for use as a church, and/or preventing or interrupting unauthorised public worship or demonstrations.
(iv) There may be a risk of persecution, serious harm, or ill-treatment engaging international protection for certain individual Christians who choose to worship in unregistered churches and who conduct themselves in such a way as to attract the local authorities’ attention to them or their political, social or cultural views.
(v) However, unless such individual is the subject of an arrest warrant, his name is on a black list, or he has a pending sentence, such risk will be limited to the local area in which the individual lives and has their hukou.
(vi) The hukou system of individual registration in rural and city areas, historically a rigid family-based structure from which derives entitlement to most social and other benefits, has been significantly relaxed and many Chinese internal migrants live and work in cities where they do not have an urban hukou, either without registration or on a temporary residence permit (see AX (family planning scheme) China CG [2012] UKUT 97 (IAC) and HC and RC (Trafficked women) China CG [2009] UKAIT 00027).
(vii) In the light of the wide variation in local officials’ response to unregistered churches, individual Christians at risk in their local areas will normally be able to relocate safely elsewhere in China. Given the scale of internal migration, and the vast geographical and population size of China, the lack of an appropriate hukou alone will not render internal relocation unreasonable or unduly harsh.

Gleeson, King TD UTJJ
[2014] UKUT 86 (IAC)
Bailii
England and Wales

Immigration

Updated: 10 November 2021; Ref: scu.523492

UTIAC (1) There is a high level of domestic violence in Bangladesh. Despite the efforts of the government to improve the situation, due to the disinclination of the police to act upon complaints, women subjected to domestic violence may not be able to obtain an effective measure of state protection by reason of the fact that they are women and may be able to show a risk of serious harm for a Refugee Convention reason. Each case, however, must be determined on its own facts.
(2) Under Muslim law, as applicable in Bangladesh, the mother, or in her absence her own family members, has the right to custody of an illegitimate child.
(3) In custody and contact disputes the decisions of the superior courts in Bangladesh indicate a fairly consistent trend to invoke the principle of the welfare of the child as an overriding factor, permitting departure from the applicable personal law but a mother may be disqualified from custody or contact by established allegations of immorality.
(4) The mother of an illegitimate child may face social prejudice and discrimination if her circumstances and the fact of her having had an illegitimate child become known but she is not likely to be at a real risk of serious harm in urban centres by reason of that fact alone.
(5) The divorced mother of an illegitimate child without family support on return to Bangladesh would be likely to have to endure a significant degree of hardship but she may well be able to obtain employment in the garment trade and obtain some sort of accommodation, albeit of a low standard. Some degree of rudimentary state aid would be available to her and she would be able to enrol her child in a state school. If in need of urgent assistance she would be able to seek temporary accommodation in a woman’s shelter. The conditions which she would have to endure in re-establishing herself in Bangladesh would not as a general matter amount to persecution or a breach of her rights under article 3 of the ECHR. Each case, however, must be decided its own facts having regard to the particular circumstances and disabilities, if any, of the woman and the child concerned. Of course if such a woman were fleeing persecution in her own home area the test for internal relocation would be that of undue harshness and not a breach of her article 3 rights.

[2011] UKUT 254 (IAC)
Bailii
England and Wales

Immigration

Updated: 10 November 2021; Ref: scu.441719

The Court was asked what rules apply to family members seeking entry to the United Kingdom, where the sponsor was given asylum and then obtained British citizenship. The ECO had said that the ordinary family members rules applied, where the claimants said that the joint relative rules applied, under which they would not be required to meet maintenance and accommodation rules.
Held: The family’s appeal was allowed. The question was rephrased to ‘Do paras 352A and 352D apply to a person who has been recognised as a refugee and granted asylum but has become a British citizen before the date of the relevant application for, or perhaps decision as to, entry clearance.’
The court was not persuaded that the difference between the language of paras 352D and 352A can be explained by reference to the familiar use of the perfect tense to denote that the state of affairs is still continuing. This involves reading the expression ‘the parent who has been granted asylum’ as if it read ‘the parent who has been granted asylum and remains a refugee’, which it does not.
Where a sponsor had been granted asylum and later British Citizenship, his family members still had to meet the rules for joining a person who had been granted asylum, and the additional requirements for maintenance and accomodation for family members did not have to be met.

Lord Phillips, President, Lord Rodger
Lord Collins, Lord Kerr, Lord Clarke
[2010] WLR (D) 121, [2010] UKSC 21, [2010] 4 All ER 829, [2010] 2 AC 534, [2010] Lloyd’s Rep FC 217, [2010] 2 WLR 378, [2010] UKHRR 204
SC summary, SC, Bailii, WLRD, Bailii Summary, Times
Immigration Rules, House of Commons Paper 395, United Nations Convention on the Status of Refugees 1951 1A(2), Statement of Changes in Immigration Rules (1994) (HC 395), Statement of Changes in Immigration Rules (2002) (Cm 5597)
England and Wales
Citing:
Appeal from – DL (DRC) v The Entry Clearance Officer, Pretoria CA 18-Dec-2008
The Court asked: ‘1(a) Is a person who is outside his country of origin and recognised as a refugee, and who has subsequent to that recognition taken on the nationality of the host country, still a refugee within the meaning of the 1951 Geneva . .
Cited – Mahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
Cited – Odelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 10 November 2021; Ref: scu.414898

UTIAC 1) Typically, the focus in EEA appeals involving family members is on either or both (i) the nature of the relationship with the EEA national/Union citizen; and (ii) the question of whether the EEA national/Union citizen has been exercising Treaty rights in the UK over the relevant period. What constitutes the relevant period, however, may be a matter requiring particular consideration and sometimes a family member may have acquired a right of permanent residence on the basis of historical facts. In the present case, for example, once the appellant had established that his wife was exercising Treaty rights for five continuous years since the date of marriage (and before he was divorced), then (subject to (d) below) he was from that date someone who had a right of permanent residence which could not be broken by absence from the UK unless in excess of two years.
2) Continuous residence in the UK of the applicant/appellant family member is an essential requirement for proving permanent residence: see regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 and Article 16(2) of Directive 2004/38/EC).
3) Whilst often it may not be in dispute that the applicant/appellant family member has been in the UK during the relevant period, that is not something that can be taken for granted and it may sometimes become necessary on appeal for the tribunal judge to make a finding on the matter based on the evidence. If it has not previously been raised by the respondent, however, procedural fairness dictates that an appellant must be afforded a proper opportunity to deal with the issue.
4) When assessing whether the applicant/appellant family member has resided in the UK continuously for the purposes of qualifying for permanent residence, it must be recalled that regulation 3(2) of the 2006 Regulations provides that continuity of residence is not affected by (a) periods of absence from the United Kingdom which do not exceed six months in total in any year; (b) periods of absence from the United Kingdom on military service; or (c) any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy, childbirth, serious illness, study or vocational training or an overseas posting (Article 16(3) of the Directive is to similar effect).
5) Once a right of permanent residence has been acquired, it can be lost only through the absence from the host Member State ‘for a period exceeding two consecutive years’ (regulation 15(2) of the 2006 Regulations; Article 16(4) of the Directive).

Stoery UTJ
[2011] UKUT 474 (IAC)
Bailii
England and Wales

Immigration

Updated: 10 November 2021; Ref: scu.450987

IAT (1) The fact that there is a policy to suspend enforced removals does not mean that a decision to remove is not in accordance with the law when there is no reason to believe that the respondent will not act in accordance with his policy.
(2) When assessing whether removal would be in breach of article 8 in such a case , the appellant’s position in the country of removal must be considered on the hypothetical basis of him being present there but it does not mean that the Tribunal is required to assess lawfulness and proportionality on the basis of a hypothetical event, a compulsory removal contrary to a current policy, which does not and will not in fact take place.

Latter SIJ
[2010] UKUT 272 (IAC)
Bailii
England and Wales

Immigration

Leading Case

Updated: 10 November 2021; Ref: scu.421567

UTIAC (i) Section 55 of the Borders, Citizenship and Immigration Act 2009 does not apply to children who are outside the United Kingdom.
(ii) Where there are reasons to believe that a child’s welfare may be jeopardised by exclusion from the United Kingdom, the considerations of Article 8 ECHR, the ‘exclusion undesirable’ provisions of the Immigration Rules and the extra statutory guidance to Entry Clearance Officers to apply the spirit of the statutory guidance in certain circumstances should all be taken into account by the ECO at first instance and the judge on appeal.
(iii) When the interests of the child are under consideration in an entry clearance case, it may be necessary to make investigations, and where appropriate having regard to age, the child herself may need to be interviewed.
(iv) Where the appeal can be fairly determined on the merits by the judge, it is inappropriate to allow it without substantive consideration simply for a decision to be made in accordance with the law.
(v) It is difficult to contemplate a scenario where a s. 55 duty is material to an immigration decision and indicates a certain outcome but Article 8 does not.

Blake J, P
[2011] UKUT 483 (IAC)
Bailii
Borders, Citizenship and Immigration Act 2009 9
England and Wales

Immigration

Updated: 10 November 2021; Ref: scu.450087

UTIAC (1) Rule 17 (withdrawal) of the Tribunal Procedure (Upper Tribunal) Rules 2008 does not enable the Upper Tribunal to withhold consent to the withdrawal by the Secretary of State of the decision against which a person appealed to the First-tier Tribunal.
(2) Where such a decision is withdrawn in appellate proceedings before the Immigration and Asylum Chamber of the Upper Tribunal, that Tribunal continues to have jurisdiction under the Tribunals, Courts and Enforcement Act 2007 to decide whether the determination of the First-tier Tribunal should be set aside for error of law and, if so, to re-make the decision in the appeal, notwithstanding the withdrawal of the appealed decision. Such a withdrawal is not, without more, one of the ways in which an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 ceases to be pending.
(3) When re-remaking a decision in a 2002 Act appeal where the decision against which a person appealed has been withdrawn by the Secretary of State, the Upper Tribunal will need to decide whether:-
(i) to proceed formally to dismiss (or, in certain circumstances, allow) the appeal; or
(ii) to determine the appeal substantively, including (where appropriate) making a direction under section 87 of the 2002 Act.
(4) In deciding between (i) and (ii) above, the Upper Tribunal will apply the overriding objective in rule 2 of the 2008 Rules, having regard to all relevant matters, including:-
(a) the principle that the Secretary of State should, ordinarily, be the primary decision-maker in the immigration field;
(b) whether the matters potentially in issue are such as to require the Tribunal to give general legal or procedural guidance, including country guidance;
(c) the reasons underlying the Secretary of State’s withdrawal of the appealed decision;
(d) the appeal history, including the timing of the withdrawal; and
(e) the views of the parties.

Peter Lane, Southern, Dawson UTJJ
[2014] UKUT 64 (IAC)
Bailii
England and Wales

Immigration

Updated: 10 November 2021; Ref: scu.522263

UTIAC The Court of Appeal decided in the present case that a failure by a party to comply with the provisions of the Procedure Rules is an ‘error of procedure’ within the meaning of rule 59, and that rule therefore operates to preserve the validity of steps taken in the proceedings thereafter, unless the Tribunal exercises the discretion therein to order to the contrary.
The power may be exercised even when the point has not been raised by the appellant.
In the exercise of its discretion in relation to rule 23, the Tribunal must consider the nature and extent of the breach and this will entail a consideration of all material factors. These are likely to include:
a. The length of the delay in the context of the strict time-limits under the Rules for filing and serving grounds of appeal, (19 days in a case when the time for appealing was 5 days).
b. The Secretary of State’s action in misinforming the Upper Tribunal that she had complied with the requirements of rule 22(5)(a) as to the date when service had been effected.
c. The Secretary of State’s failure to draw to the attention of the Tribunal her failure to have complied with rule 23(5)(b).
d. Prejudice suffered by the applicant such as the effect of being notified by the Tribunal that the respondent is seeking permission to appeal when the appellant has not yet received the determination, the loss of the opportunity to protest that the Secretary of State’s application is out of time and the effect of the passage of time.
e. Repugnance arising from the Secretary of State’s pursuing for any prolonged period her challenge to the decision of the Tribunal without the successful party being aware of that decision.
f. The merits of the substantive application.
g. The fact that the failure does not prevent a fair hearing is not decisive.

Gleeson, Southern SIJJ
[2010] UKUT 302 (IAC)
Bailii
England and Wales

Immigration

Updated: 10 November 2021; Ref: scu.421573

The SSHD appealed against an order finding that its officer had acted without power in cancelling a valid visitor’s visa once granted. The officer had decided that the visit was not for the purpose stated.
Held: The appeal succeeded. The paragraph of the rules quoted by the officer did not apply. The appellant then wrote confirming the cancellation saying that the purpose of the visit was to work. The power existed, but had been incorrectly exercised. The decision to cancel the visa was quashed, but the decision to refuse leave to enter remained in effect and the claimant must leave the country as soon as possible.

Mummery, Thomas LJJ, Pitchford J
[2010] EWCA Civ 585, [2010] WLR (D) 143, [2010] INLR 632
Bailii, WLRD
Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) 3, Immigration Act 1971
England and Wales
Citing:
Appeal From – Boahen, Regina (On the Application of) v Secretary Of State for the Home Department Admn 5-Jun-2009
The claimant, from Ghana, had entered on a visitors visa, but had stayed on after its expiry. He said that he had not left because of his health. He returned to Ghana, and now sought to be re-admitted, the SSHD having granted a visa, but then . .

Cited by:
Cited – Fiaz (Cancellation of Leave To Remain – Fairness) Pakistan UTIAC 22-Feb-2012
UTIAC i) An immigration officer has power to cancel a leave to remain which remains in force under article 13(5) of The Immigration (Leave to Enter) Order 2000 (SI 2000/1161).
ii) The provisions of that . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 November 2021; Ref: scu.416166

The applicant, a Bangladeshi, had entered the UK on a six month visa in 1991 and overstayed, applying for residence in 2006 on the basis of his long stay. He appealed refusal.
Held: The immigration tribunal had taken the simple evasion of lawful authority for fifteen years as a grounds of itself for the refusal. That was a mistake. The respondent’s statement of changes was directed specifically to validating such people, and the applicant had brought himself within the rules. Where the officer presented a case on a basis which contradicted the rules he should draw the attention of the tribunal to the divergence and explain why he was doing what he was doing.

Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith
Times 09-Apr-2009, [2009] EWCA Civ 8, [2009] WLR (D) 10
WLRD
Statement of Changes in Immigration Rules 1994 276B(i)(b)
England and Wales
Citing:
Not to be followed – MO (Long Residence Rule-Public Interest Proviso) Ghana IAT 9-Feb-2007
. .
Preferred – Aissaoui v Secretary of State for the Home Department CA 7-Feb-2008
. .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 November 2021; Ref: scu.332829

UTIAC 1. A decision to certify a person’s (P’s) removal under regulation 24AA of the European Economic Area Regulations 2006 operates as a temporary measure that can be applied only for so long as there is a statutory appeal which could be brought in time or which is pending.
2. Regulation 24AA is a discretionary measure whose implementation is currently subject to Home Office guidance entitled ‘Regulation 24AA Certification Guidance for European Economic Area deportation cases’.
3. EEA decisions to remove or deport taken against EEA nationals do not have automatic suspensive effect. No removal can take place, however, until an applicant has had a decision on any application made for an interim order to suspend removal.
4. As with the very similar power in section 94B to the Nationality, Immigration and Asylum Act 2002, when deciding whether to certify the removal of a person under regulation 24AA the avoidance of ‘serious or irreversible harm’ is not the sole or overriding test. It is also necessary for the decision-maker to assess whether removal of P would be unlawful under section 6 Human Rights Act 1998 (HRA): see Kiarie, R (on the application of) and Another v Secretary of State for the Home Department [2015] EWCA Civ 1020.
5. Whilst the assessment pursuant to section 6 HRA requires a proportionality assessment, it is one that is limited to the proportionality of removal for the period during which any appeal can be brought in time or is pending.
6. P’s right under regulation 29AA to be temporarily admitted to the UK in order to make submissions in person at the appeal:
(a) is qualified by regulation 29AA(3) (‘except when P’s appearance may cause serious troubles to public policy or public security’); and
(b) does not extend to the pre-hearing stages of the appeal.

[2015] UKUT 677 (IAC)
Bailii
England and Wales

Immigration

Updated: 09 November 2021; Ref: scu.565377

[2020] EWHC 3487 (Admin)
Bailii
England and Wales

Immigration

Updated: 09 November 2021; Ref: scu.657350

UTIAC (i) The Secretary of State’s generic evidence, combined with her evidence particular to these two appellants, sufficed to discharge the evidential burden of proving that their TOEIC certificates had been procured by dishonesty.
(ii) However, given the multiple frailties from which this generic evidence was considered to suffer and, in the light of the evidence adduced by the appellants, the Secretary of State failed to discharge the legal burden of proving dishonesty on their part.

McCloskey P J
[2016] UKUT 229 (IAC)
Bailii
England and Wales

Immigration

Updated: 09 November 2021; Ref: scu.565670

UTIAC (i) The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen’s EU rights as defined in Article 20.
(ii) The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.
(iii) The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen’s standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.
(iv) The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.

Jordan UTJ
[2015] UKUT 560 (IAC)
Bailii
England and Wales
Citing:
Cited – Ruiz Zambrano (European Citizenship) ECJ 30-Sep-2010
ECJ Opinion – Articles 18, 20 and 21 TFEU – Fundamental rights as general principles of European Union law – Article 7 of the Charter of Fundamental Rights of the European Union – European citizenship – . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 November 2021; Ref: scu.565361

a) It is not possible to set out a typical profile of trafficked women from Albania: trafficked women come from all areas of the country and from varied social backgrounds.
b) At its worst the psychological damage inflicted on a victim of trafficking can lead to difficulties in reintegrating into Albanian society and has implications on whether or not it is possible for the victim of trafficking, should she fear persecution in her own area, to relocate.
c) Much of Albanian society is governed by a strict code of honour which not only means that trafficked women would have very considerable difficulty in reintegrating into their home areas on return but also will affect their ability to relocate internally. Those who have children outside marriage are particularly vulnerable. In extreme cases the close relatives of the trafficked woman may refuse to have the trafficked woman’s child return with her and could force her to abandon the child.
d) Those that see themselves outside society, for example, divorced or abandoned women, or others who wish to live abroad, may seek out traffickers in order to facilitate their departure from Albania and their establishment in prostitution abroad. Although such women are not ‘trafficked women’ in the sense that they have not been abducted against their will, there is likely to be considerable violence within the relationships and the psychological affect of that violence may lead to a situation where the pressures which they are under and the lack of freedom they are under means that such women should be treated as trafficked women.
e) The Albanian Government and authorities are taking steps to protect trafficked women who return but such steps are not always effective. When considering whether or not there is a sufficiency of protection for a trafficked woman who is to be returned her particular circumstances must be considered. Not all trafficked women returning to Albania will be unable to access the arrangements and facilities available to enable successful re-integration.
f) Trafficked women from Albania may well be members of a particular social group on that account alone. Whether they are at risk of persecution on account of such membership and whether they will be able to access sufficiency of protection from the authorities will depend upon their individual circumstances including but not limited to the following: 1)The social status and economic standing of the trafficked woman’s family. 2) The level of education of the trafficked woman or her family. 3) The trafficked woman’s state of health, particularly her mental health. 4) The presence of an illegitimate child. 5) The area of origin of the trafficked woman’s family. 6) The trafficked woman’s age.

McGeachy, Southern SIJJ
[2010] UKUT 80 (IAC)
Bailii
England and Wales

Immigration

Updated: 09 November 2021; Ref: scu.416339

UTIAC a. This country guidance replaces previous guidance in SA and IA (Undocumented Kurds) Syria CG [2009] UKAIT 00006.
b. In the context of the extremely high level of human rights abuses currently occurring in Syria, a regime which appears increasingly concerned to crush any sign of resistance, it is likely that a failed asylum seeker or forced returnee would, in general, on arrival face a real risk of arrest and detention and of serious mistreatment during that detention as a result of imputed political opinion. That is sufficient to qualify for refugee protection. The position might be otherwise in the case of someone who, notwithstanding a failed claim for asylum, would still be perceived on return to Syria as a supporter of the Assad regime.

Eshun, McKee, Pitt UTJJ
[2012] UKUT 426 (IAC)
Bailii
England and Wales
Citing:
Replaced – SA and IA (Undocumented Kurds) Syria CG AIT 2-Feb-2009
AIT 1. The discrimination and deprivations experienced by Syrian Kurds are not such as to amount to persecution or breach of their human rights if returned to Syria.
2. A person with an actual or perceived . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 November 2021; Ref: scu.467709

The court was asked whether under the 2002 Act it is possible to challenge by way of appeal to the AIT an immigration decision under section 82(2)(h) to remove an illegal entrant, where the ground of appeal is an allegation that removal directions for the proposed country of return could not lawfully be made pursuant to Schedule 2 of the Immigration Act 1971. This issue arises in circumstances where the asylum and human rights claims of the appellant have failed and been spent and are no longer in issue, and where therefore the sole ground of appeal is that under section 84(1)(e), namely that ‘the decision is otherwise not in accordance with the law’. A challenge to a future direction could not be made.

Lord Justice Rix, Lord Justice Scott Baker and Lord Justice Jacob
[2009] EWCA Civ 17, Times 31-Mar-2009, [2009] Imm AR 464, [2009] Imm AR 3
Bailii
Nationality, Immigration and Asylum Act 2002 82(2)(h), Immigration Act 1971
England and Wales
Cited by:
Appeal from – MS (Palestinian Territories) v Secretary of State for The Home Department SC 16-Jun-2010
The claimant faced removal and return to Palestine, but he said that he would not be accepted if returned. He had no ID card, birth certificate or living parents. He appealed against the decision of the IAT and now again from the Court of Appeal . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 November 2021; Ref: scu.280134

UTIAC Chinese family planning scheme:
(1) In China, all state obligations and benefits depend on the area where a person holds their ‘hukou’, the name given to the Chinese household registration system. There are different provisions for those holding an ‘urban hukou’ or a ‘rural hukou’: in particular, partly because of the difficulties experienced historically by peasants in China, the family planning scheme is more relaxed for those with a ‘rural hukou’.
(2) It is unhelpful (and a mistranslation of the Chinese term) to describe the Chinese family planning scheme as a ‘one-child policy’, given the current vast range of exceptions to the ‘one couple, one child’ principle. Special provision is made for ‘double-single’ couples, where both are only children supporting their parents and their grandparents. The number of children authorised for a married couple, (‘authorised children’) depends on the provincial regulations and the individual circumstances of the couple. Additional children are referred as ‘unauthorised children’.
(3) The Chinese family planning scheme expects childbirth to occur within marriage. It encourages ‘late’ marriage and ‘late’ first births. ‘Late’ marriages are defined as age 25 (male) and 23 (female) and ‘late’ first births from age 24. A birth permit is not usually required for the first birth, but must be obtained before trying to become pregnant with any further children. The Chinese family planning scheme also originally included a requirement for four-year ‘birth spacing’. With the passage of time, province after province has abandoned that requirement. Incorrect birth spacing, where this is still a requirement, results in a financial penalty.
(4) Breach of the Chinese family planning scheme is a civil matter, not a criminal matter.
Single-child families
(5) Parents who restrict themselves to one child qualify for a ‘Certificate of Honour for Single-Child Parents’ (SCP certificate), which entitles them to a range of enhanced benefits throughout their lives, from priority schooling, free medical treatment, longer maternity, paternity and honeymoon leave, priority access to housing and to retirement homes, and enhanced pension provision.
Multiple-child families
(6) Any second child, even if authorised, entails the loss of the family’s SCP certificate. Loss of a family’s SCP results in loss of privileged access to schools, housing, pensions and free medical and contraceptive treatment. Education and medical treatment remain available but are no longer free.
(7) Where an unauthorised child is born, the family will encounter additional penalties. Workplace discipline for parents in employment is likely to include demotion or even loss of employment. In addition, a ‘social upbringing charge’ is payable (SUC), which is based on income, with a down payment of 50% and three years to pay the balance.
(8) There are hundreds of thousands of unauthorised children born every year. Family planning officials are not entitled to refuse to register unauthorised children and there is no real risk of a refusal to register a child. Payment for birth permits, for the registration of children, and the imposition of SUC charges for unauthorised births are a significant source of revenue for local family planning authorities. There is a tension between that profitability, and enforcement of the nationally imposed quota of births for the town, county and province, exceeding which can harm officials’ careers.
(9) The financial consequences for a family of losing its SCP (for having more than one child) and/or of having SUC imposed (for having unauthorised children) and/or suffering disadvantages in terms of access to education, medical treatment, loss of employment, detriment to future employment etc will not, in general, reach the severity threshold to amount to persecution or serious harm or treatment in breach of Article 3.
(10) There are regular national campaigns to bring down the birth rates in provinces and local areas which have exceeded the permitted quota. Over-quota birth rates threaten the employment and future careers of birth control officials in those regions, and where there is a national campaign, can result in large scale unlawful crackdowns by local officials in a small number of provinces and areas. In such areas, during such large scale crackdowns, human rights abuses can and do occur, resulting in women, and sometimes men, being forcibly sterilised and pregnant women having their pregnancies forcibly terminated. The last such crackdown took place in spring 2010.
Risk factors
(11) In general, for female returnees, there is no real risk of forcible sterilisation or forcible termination in China. However, if a female returnee who has already had her permitted quota of children is being returned at a time when there is a crackdown in her ‘hukou’ area, accompanied by unlawful practices such as forced abortion or sterilisation, such a returnee would be at real risk of forcible sterilisation or, if she is pregnant at the time, of forcible termination of an unauthorised pregnancy. Outside of these times, such a female returnee may also be able to show an individual risk, notwithstanding the absence of a general risk, where there is credible evidence that she, or members of her family remaining in China, have been threatened with, or have suffered, serious adverse ill-treatment by reason of her breach of the family planning scheme.
(12) Where a female returnee is at real risk of forcible sterilisation or termination of pregnancy in her ‘hukou’ area, such risk is of persecution, serious harm and Article 3 ill-treatment. The respondent accepted that such risk would be by reason of a Refugee Convention reason, membership of a particular social group, ‘women who gave birth in breach of China’s family planning scheme’.
(13) Male returnees do not, in general, face a real risk of forcible sterilisation, whether in their ‘hukou’ area or elsewhere, given the very low rate of sterilisation of males overall, and the even lower rate of forcible sterilisation.
Internal relocation
(14) Where a real risk exists in the ‘hukou’ area, it may be possible to avoid the risk by moving to a city. Millions of Chinese internal migrants, male and female, live and work in cities where they do not hold an ‘urban hukou’. Internal migrant women are required to stay in touch with their ‘hukou’ area and either return for tri-monthly pregnancy tests or else send back test results. The country evidence does not indicate a real risk of effective pursuit of internal migrant women leading to forcible family planning actions, sterilisation or termination, taking place in their city of migration. Therefore, internal relocation will, in almost all cases, avert the risk in the hukou area. However, internal relocation may not be safe where there is credible evidence of individual pursuit of the returnee or her family, outside the ‘hukou’ area. Whether it is unduly harsh to expect an individual returnee and her family to relocate in this way will be a question of fact in each case.

Gleeson, Gill UTJJ
[2012] UKUT 97 (IAC)
Bailii
England and Wales

Immigration

Updated: 09 November 2021; Ref: scu.452665

Sir Stephen Irwin
[2021] EWCA Civ 1428
Bailii
England and Wales

Immigration

Updated: 09 November 2021; Ref: scu.668436

Application for judicial review of defendant’s decision that the claimant’s claim that his removal from the UK would be a disproportionate interference with his human rights was manifestly ill founded.

Andrews QC J
[2011] EWHC 157 (Admin)
Bailii
e Nationality Immigration and Asylum Act 2002 94
England and Wales

Immigration

Updated: 09 November 2021; Ref: scu.428867

In the light of the continuing inability of the Secretary of State to file acknowledgements of service in immigration judicial review proceedings within the time limit contained in the Tribunal Procedure (Upper Tribunal) Rules 2008 and in the light of the general guidance given by the High Court in R (on the application of Singh and Others) v Secretary of State for the Home Department [2013] EWHC 2873 (Admin), the following general arrangements (which will be kept under review) apply in the Immigration and Asylum Chamber of the Upper Tribunal.
(1) The Tribunal will, in immigration judicial reviews, regard an Acknowledgement of Service filed within six weeks of service of the claim on the Secretary of State as falling routinely for consideration and will not undertake an initial consideration of the judicial review application before the end of that six week period.
(2) The Tribunal will undertake a consideration of that application earlier than the end of the period mentioned in paragraph (1) above (‘the six week period’):-
(a) where the Tribunal considers it appropriate to do so, in response to:-
(i) an application for urgent consideration filed by the applicant (on Form T483); or
(ii) a notice in writing from the applicant, copied to the Secretary of State, which states the need for urgency and the proposed timescale for considering the application; and
(b) in response to a request by the Secretary of State for expedition, pursuant to an arrangement between her and the Chamber President.
(3) Where a stay on removal or other form of interim injunctive relief is sought, an application for urgent consideration on Form T483 must be made, complying with Practice Directions 11 and 12 and accompanied by any requisite fee.
(4) In view of paragraphs (1) and (2) above, the Tribunal will not consider it necessary for the Secretary of State to apply for an extension of the 21 day time limit in rule 29(1), unless she considers she is unable to file an AoS and summary grounds before the expiry of the six week period. In such a case, the Secretary of State must make an application for extension of time, on 72 hours notice to the applicant, which satisfies the requirements set out by Hickinbottom J at [25] of Singh; that is to say, there must be compelling reasons specific to the case as to why further time is needed, together with a firm promise as to when the AoS and summary grounds will be filed. The application should include the judicial review applicant’s response (or lack of response) to the application for extension of time.
(5) The Secretary of State should not make an application for an extension of time for filing an AoS, which she knows cannot satisfy the ‘Singh’ requirements.
(6) In every case, not later than the end of the six week period, the Secretary of State will be expected to file with the Tribunal (and serve on the applicant) either a copy of the written response of the Secretary of State to the applicant’s pre-action protocol letter or written confirmation that no such written response was sent to the applicant. This requirement does not absolve the Secretary of State from filing an AoS and summary grounds, where she wishes to take part in the proceedings.
(7) Except as provided in paragraph (2) above or where time is extended in response to an application by the Secretary of State for extension of time, the parties can expect the Tribunal to consider the judicial review application at any time after the expiry of the six week period. This will be so, whether or not an AoS and summary grounds have been filed, unless the judge considering the application is of the view that there are particular reasons (such as potentially significant factual matters) why the Secretary of State should be specifically directed to file an AoS and summary grounds.
(8) As a general matter, the Secretary of State will be vulnerable to an application for costs in respect of an oral hearing held pursuant to rule 30(4) made by an unsuccessful judicial review applicant, where:-
(a) the application to bring judicial review proceedings was refused on the papers without the benefit of an AoS and summary grounds; and
(b) the Tribunal considers that, had those grounds then been available, the application would have been recorded as being totally without merit.
(9) Where permission was granted without the benefit of an AoS and summary grounds, the Secretary of State will ordinarily be liable to pay the applicant’s costs, up to the point when the Secretary of State’s detailed grounds are filed, regardless of the ultimate fate of the judicial review application.

Ockleton VP, Peter Lane UTJJ
[2014] UKUT 104 (IAC)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.523488

UTIAC While HC 510 does contain provisions for general grounds of refusal, unlike more recent immigration rules, those general grounds do not specify refusal on current paragraph 320(7A) or 322(1A) grounds.

[2012] UKUT 264 (IAC)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.463334

Meaning of ’caused serious harm’

(A) section 117D(2)(b)(ii): ’caused serious harm’

The current case law on ’caused serious harm’ for the purposes of the expression ‘foreign criminal’ in Part 5A of the 2002 Act can be summarised as follows:
(1) Whether P’s offence is ‘an offence that has caused serious harm’ within section 117D(2)(c)(ii) is a matter for the judge to decide, in all the circumstances, whenever Part 5A falls to be applied.
(2) Provided that the judge has considered all relevant factors bearing on that question; has not had regard to irrelevant factors; and has not reached a perverse decision, there will be no error of law in the judge’s conclusion, which, accordingly, cannot be disturbed on appeal.
(3) In determining what factors are relevant or irrelevant, the following should be borne in mind:
(a) The Secretary of State’s view of whether the offence has caused serious harm is a starting point;
(b) The sentencing remarks should be carefully considered, as they will often contain valuable information; not least what may be said about the offence having caused ‘serious harm’, as categorised in the Sentencing Council Guidelines;
(c) A victim statement adduced in the criminal proceedings will be relevant;
(d) Whilst the Secretary of State bears the burden of showing that the offence has caused serious harm, she does not need to adduce evidence from the victim at a hearing before the First-tier Tribunal;
(e) The appellant’s own evidence to the First-tier Tribunal on the issue of seriousness will usually need to be treated with caution;
(f) Serious harm can involve physical, emotional or economic harm and does not need to be limited to an individual;
(g) The mere potential for harm is irrelevant;
(h) The fact that a particular type of offence contributes to a serious/widespread problem is not sufficient; there must be some evidence that the actual offence has caused serious harm.

B. Deportation decisions and human rights appeals

(1) In a human rights appeal, the decision under appeal is the refusal by the Secretary of State of a human rights claim; that is to say, the refusal of a claim, defined by section 113(1) of the Nationality, Immigration and Asylum Act 2002, that removal from the United Kingdom or a requirement to leave it would be unlawful under section 6 of the 1998 Act. The First-tier Tribunal is, therefore, not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual is, in the Secretary of State’s view, conducive to the public good. It is concerned only with whether removal etc in consequence of the refusal of the human rights claim is contrary to section 6 of the Human Rights Act 1998. If Article 8(1) is engaged, the answer to that question requires a finding on whether removal etc would be a disproportionate interference with Article 8 rights.
(2) The Secretary of State’s decisions under the Immigration Act 1971 that P’s deportation would be conducive to the public good and that a deportation order should be made in respect of P would have to be unlawful on public law grounds before that anterior aspect of the decision-making process could inform the conclusion to be reached by the First-tier Tribunal in a human rights appeal.

Lane J P
[2020] UKUT 350 (IAC)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.656761

UTIAC (1) There is no general duty of disclosure on the Secretary of State in asylum appeals generally or Country Guidance cases in particular. The extent of the Secretary of State’s obligation is set out in R v SSHD ex p Kerrouche No 1 [1997] Imm AR 610, as explained in R (ota Cindo) v IAT [2002] EWHC 246 (Admin); namely, that she must not knowingly mislead a court or tribunal by omission of material that was known or ought to have been known to her.
(2) The Country Guidance given by the Tribunal in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) on the position in Zimbabwe as at the end of January 2011 was not vitiated in any respect by the use made of anonymous evidence from certain sources in the Secretary of State’s Fact Finding Mission report of 2010. The Tribunal was entitled to find that there had been a durable change since RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. The Country Guidance in EM does not require to be amended, as regards the position at that time, in the light of-
(a) the disclosure by the Secretary of State of any of the materials subsequently disclosed in response to the orders of the Court of Appeal and related directions of the Tribunal in the current proceedings; or
(b) any fresh material adduced by the parties in those proceedings that might have a bearing on the position at that time.
(3) The only change to the EM Country Guidance that it is necessary to make as regards the position as at the end of January 2011 arises from the judgments in RT (Zimbabwe) [2012] UKSC 38. The EM Country Guidance is, accordingly, re-stated as follows (with the change underlined in paragraph (5) below):
(1) As a general matter, there is significantly less politically motivated violence in Zimbabwe, compared with the situation considered by the AIT in RN. In particular, the evidence does not show that, as a general matter, the return of a failed asylum seeker from the United Kingdom, having no significant MDC profile, would result in that person facing a real risk of having to demonstrate loyalty to the ZANU-PF.
(2) The position is, however, likely to be otherwise in the case of a person without ZANU-PF connections, returning from the United Kingdom after a significant absence to a rural area of Zimbabwe, other than Matabeleland North or Matabeleland South. Such a person may well find it difficult to avoid adverse attention, amounting to serious ill-treatment, from ZANU-PF authority figures and those they control. The adverse attention may well involve a requirement to demonstrate loyalty to ZANU-PF, with the prospect of serious harm in the event of failure. Persons who have shown themselves not to be favourably disposed to ZANU-PF are entitled to international protection, whether or not they could and would do whatever might be necessary to demonstrate such loyalty (RT (Zimbabwe)).
(3) The situation is not uniform across the relevant rural areas and there may be reasons why a particular individual, although at first sight appearing to fall within the category described in the preceding paragraph, in reality does not do so. For example, the evidence might disclose that, in the home village, ZANU-PF power structures or other means of coercion are weak or absent.
(4) In general, a returnee from the United Kingdom to rural Matabeleland North or Matabeleland South is highly unlikely to face significant difficulty from ZANU-PF elements, including the security forces, even if the returnee is a MDC member or supporter. A person may, however, be able to show that his or her village or area is one that, unusually, is under the sway of a ZANU-PF chief, or the like.
(5) A returnee to Harare will in general face no significant difficulties, if going to a low-density or medium-density area. Whilst the socio-economic situation in high-density areas is more challenging, in general a person without ZANU-PF connections will not face significant problems there (including a ‘loyalty test’), unless he or she has a significant MDC profile, which might cause him or her to feature on a list of those targeted for harassment, or would otherwise engage in political activities likely to attract the adverse attention of ZANU-PF, or would be reasonably likely to engage in such activities, but for a fear of thereby coming to the adverse attention of ZANU-PF.
(6) A returnee to Bulawayo will in general not suffer the adverse attention of ZANU-PF, including the security forces, even if he or she has a significant MDC profile.
(7) The issue of what is a person’s home for the purposes of internal relocation is to be decided as a matter of fact and is not necessarily to be determined by reference to the place a person from Zimbabwe regards as his or her rural homeland. As a general matter, it is unlikely that a person with a well-founded fear of persecution in a major urban centre such as Harare will have a viable internal relocation alternative to a rural area in the Eastern provinces. Relocation to Matabeleland (including Bulawayo) may be negated by discrimination, where the returnee is Shona.
(8) Internal relocation from a rural area to Harare or (subject to what we have just said) Bulawayo is, in general, more realistic; but the socio-economic circumstances in which persons are reasonably likely to find themselves will need to be considered, in order to determine whether it would be unreasonable or unduly harsh to expect them to relocate.
(9) The economy of Zimbabwe has markedly improved since the period considered in RN. The replacement of the Zimbabwean currency by the US dollar and the South African rand has ended the recent hyperinflation. The availability of food and other goods in shops has likewise improved, as has the availability of utilities in Harare. Although these improvements are not being felt by everyone, with 15% of the population still requiring food aid, there has not been any deterioration in the humanitarian situation since late 2008. Zimbabwe has a large informal economy, ranging from street traders to home-based enterprises, which (depending on the circumstances) returnees may be expected to enter.
(10) As was the position in RN, those who are or have been teachers require to have their cases determined on the basis that this fact places them in an enhanced or heightened risk category, the significance of which will need to be assessed on an individual basis.
(11) In certain cases, persons found to be seriously lacking in credibility may properly be found as a result to have failed to show a reasonable likelihood (a) that they would not, in fact, be regarded, on return, as aligned with ZANU-PF and/or (b) that they would be returning to a socio-economic milieu in which problems with ZANU-PF will arise. This important point was identified in RN and remains valid.
(4) In the course of deciding CM’s appeal, the present Tribunal has made an assessment of certain general matters regarding Zimbabwe as at October 2012. As a result, the following country information may be of assistance to decision-makers and judges. It is, however, not Country Guidance within the scope of Practice Direction 12 and is based on evidence which neither party claimed to be comprehensive:
(a) The picture presented by the fresh evidence as to the general position of politically motivated violence in Zimbabwe as at October 2012 does not differ in any material respect from the Country Guidance in EM.
(b) Elections are due to be held in 2013; but it is unclear when.
(c) In the light of the evidence regarding the activities of Chipangano, judicial-fact finders may need to pay particular regard to whether a person, who is reasonably likely to go to Mbare or a neighbouring high density area of Harare, will come to the adverse attention of that group; in particular, if he or she is reasonably likely to have to find employment of a kind that Chipangano seeks to control or otherwise exploit for economic, rather than political, reasons.
(d) The fresh evidence regarding the position at the point of return does not indicate any increase in risk since the Country Guidance was given in HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094. On the contrary, the available evidence as to the treatment of those who have been returned to Harare Airport since 2007 and the absence of any reliable evidence of risk there means that there is no justification for extending the scope of who might be regarded by the CIO as an MDC activist.

Blake J P, Peter Lane, Campbell UTJJ
[2013] UKUT 59 (IAC)
Bailii
England and Wales

Immigration

Leading Case

Updated: 02 November 2021; Ref: scu.470859

Application for a so-called ‘generic’ stay – in fact, an interim injunction – on all Dublin III Regulation returns to Bulgaria pending judgment in a test case relating to that issue (Khaled v Secretary of State for the Home Department CO/2899/2015). Dublin III (shorthand for Regulation (EU) No 604/2013) is the current legal basis for the principle in the European Union that only one Member State is responsible for examining an asylum application and other Member States may return persons to that Member State for an assessment to occur.

Cranston J
[2016] EWHC 741 (Admin)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.562127

In a deportation appeal not falling within section 32 of the UK Borders Act 2007, the sequence of decision making set out in EO (deportation appeals: scope and process) Turkey [2007] UKAIT 62 still applies but the first step is expanded as follows:
i) Consider whether the person is liable to be deported on the grounds set out by the Secretary of State. This will normally involve the judge examining:-
a. Whether the material facts alleged by the Secretary of State are accepted and if not whether they are made out to the civil standard flexibly applied;
b. Whether on the facts established viewed as a whole the conduct character or associations reach such a level of seriousness as to justify a decision to deport;
c. In considering b) the judge will take account of any lawful policy of the Secretary of State relevant to the exercise of the discretion to deport and whether the discretion has been exercised in accordance with that policy;
ii) If the person is liable to deportation, then the next question to consider is whether a human rights or protection claim precludes deportation. In cases of private or family life, this will require an assessment of the proportionality of the measures against the family or private life in question, and a weighing of all relevant factors.
iii) If the two previous steps are decided against the appellant, then the question whether the discretion to deport has been exercised in accordance with the Immigration Rules applicable is the third step in the process. The present wording of the rules assumes that a person who is liable to deportation and whose deportation would not be contrary to the law and in breach of human rights should normally be deported absent exceptional circumstances to be assessed in the light of all relevant information placed before the Tribunal.

Blake P, J, Southern, Gill LJJ
[2012] UKUT 196 (IAC)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.461937

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.
Held: The appeals succeeded.
Lord Brown said: ‘The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy . . the court’s task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended.’ and
rule 317(iii) ‘is concerned simply to establish the financial link between the dependent relative abroad and the relative settled here. Provided only that the relative abroad is getting funds on which he is wholly or mainly dependent and which he would not be getting save for his relative present and settled in the UK, that is sufficient. It is not necessary for the funds ever to have been part of the settled relative’s own personal resources.’
Lord Kerr said: ‘The vaunted precariousness of support from a third party source is, in my opinion, no greater than that which might arise in the course of the ordinary vagaries and vicissitudes of life. Promised employment may not materialise or may last for only a short time. Dependence on benefits received by the family member who is settled in the United Kingdom may cease . . it is entirely conceivable that support from a number of family members and friends of the person seeking to enter will be a more dependable resource and a more effective prevention of dependence on public funds than prospective employment . . ‘

Lord Hope, Deputy President, Lord Rodger, Lord Brown, Lord Collins, Lord Kerr
[2009] UKSC 16, UKSC 2009/0084, UKSC 2009/0116, UKSC 2009/0095, UKSC 2009/0120, UKSC 2009/0085, [2010] 1 WLR 48, [2010] Imm AR 203
Bailii, SC Summ, SC, SC Summ, SC, SC Summ, SC Summ, SC Summ, SC, SC Summ, SC
Immigration Rules
England and Wales
Citing:
Cited – Ali, Regina (on the Application of) v Secretary of State for Home Department Admn 28-Oct-1999
Rules 281(v) and 297(iv) did not preclude long-term maintenance by third parties as supporting an application for permission for a family member to enter the UK. . .
Appeal from – AM (Somalia) v Entry Clearance Officer CA 1-Jul-2009
The appellant had married in Somalia. His wife lived in London and sought permission for him to enter, she acting as his sponsor. The Immigration judge had found that they met all the criteria save one, that they would be able to support themselves . .
Cited – Odelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
Cited – 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’ . .
Cited – MK (Somalia) and others v Entry Clearance Officer and Another CA 19-Dec-2008
The appellants’ mother had been thrown into a well after resisting attempts to rape her. They had then been cared for by another family member who had, along with her natural children been granted asylum here. They appealed refusal of asylum. They . .
Cited – AM (Ethiopia) and others v Entry Clearance Officer CA 16-Oct-2008
When applying for entry under a sponsorship arrangement, the three applicable rules disallowed third party support.
Laws LJ said: ‘The immigrant’s article 8 rights will (must be) protected by the Secretary of State and the court whether or not . .
Cited – MW (Liberia) v Secretary of State for the Home Department CA 20-Dec-2007
The child was to come to the UK to stay with relatives. Permission was refused.
Held: To be allowed to come, it had to be shown that the child would be maintained here without recourse to public funds and by the people he or she was to stay . .

Cited by:
Cited – ZN (Afghanistan) and Others v Entry Clearance Officer (Karachi) SC 12-May-2010
The Court was asked what rules apply to family members seeking entry to the United Kingdom, where the sponsor was given asylum and then obtained British citizenship. The ECO had said that the ordinary family members rules applied, where the . .
Cited – AA v Entry Clearance Officer (Addis Ababa) SC 18-Dec-2013
The appellant child, AA sought entry as the de facto adopted child of his sponsor who had previously been given refugee status. The sponsor had taken parental responsibility of AA under the Islamic Kafala procedure. AA had been admitted under human . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 02 November 2021; Ref: scu.384145

A fear of persecution which was justified only historically, was insufficient to justify an asylum claim. The applicant must show justification for contemporary fears. The applicant had been granted exceptional leave to remain in the UK, but wanted full refugee status because of the additional rights that would bring. In each case an applicant had to satisfy both the fear and the protection test. The clear implication of the Convention in using the present tense was that the tests must be applied as at the date of the application being considered. The conditions which obtained when the applicant arrived no longer applied.
Lord Steyn said: ‘In principle, there can be only one true interpretation of a treaty’

Lord Steyn
Times 06-Apr-1998, Gazette 07-May-1998, [1999] 1 AC 293, [1998] 2 WLR 702, [1998] UKHL 15, [1998] 2 ALL ER 453
House of Lords, Bailii
Geneva Convention and Protocol relating to the Status of Refugees 1951 (1951) (Cmd 9171) Art 1A(2)
England and Wales
Cited by:
Cited – Rashid, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Jun-2005
The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it . .
Cited – Demirkaya v Secretary of State for Home Department CA 23-Jun-1999
Whether an asylum applicant had a well founded fear of persecution if he returned home, is always a question of fact and degree, and could not be made a question of law. Even so where there was a clear risk of repeated rather than single beatings if . .
See Also – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – ST Eritrea, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Mar-2012
The Tribunal had confirmed the appellant’s refugee status, but the respondent had ordered nevertheless that she be returned. The judge’s order setting aside that decision had been overturned in the Court of Appeal.
Held: The claimant’s appeal . .
Cited – Al-Sirri v Secretary of State for The Home Department SC 21-Nov-2012
The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .

Lists of cited by and citing cases may be incomplete.

Immigration

Leading Case

Updated: 02 November 2021; Ref: scu.77650

UTIAC 1. The question whether the appellant ‘is a persistent offender’ is a question of mixed fact and law and falls to be determined by the Tribunal as at the date of the hearing before it.
2. The phrase ‘persistent offender’ in s.117D(2)(c) of the 2002 Act must mean the same thing as ‘persistent offender’ in paragraph 398(c) of the Immigration Rules.
3. A ‘persistent offender’ is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or that the continuity of the offending cannot be broken. A ‘persistent offender’ is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a ‘persistent offender’ for the purpose of the Rules and the 2002 Act even though he may not have offended for some time. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.

[2016] UKUT 187 (IAC)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.564172

UTIAC A person under the Nationality, Immigration and Asylum Act 2002 who has under the statute, only a restricted right of appeal, has, by reason of the Immigration (Notices) Regulations 2003, a right of appeal that is unrestricted as to time.
Where an appeal can only be brought on restricted grounds because of section 88 of the 2002 Act, the Notices Regulations 2003 lay down a complicated procedure. The notice of decision need not be accompanied by a notice of appeal. But if the recipient of the notice claims that the decision is contrary to the Race Relations Act, the Human Rights Convention or the Refugee Convention, then the notice of decision must be re-served, this time with a notice of appeal, and the time for giving notice of appeal to the Tribunal only begins to run from the deemed date of service of this re-served notice, no matter how long a period has elapsed since the date of the original notice.
If the ‘immigration decision’ in question is refusal to vary leave, the application for leave to remain having been made before the expiry of existing leave, then the leave is extended by section 3C(2)(a) of the 1971 Act until the application is decided, and is further extended by section 3C(2)(b)’during any period when an appeal could be brought’ under section 82(1)of the 2002 Act against the decision. The period when an appeal could be brought must be taken to include the time between service without an appeal form and service with an appeal form, as contemplated by the Notices Regulations. Otherwise, an appellant would be unable to give notice of appeal before his leave ran out, despite being able to make an ‘in time’ appeal as far as the Procedure Rules are concerned.

McKee J
[2011] UKUT 121 (IAC)
Bailii
Nationality, Immigration and Asylum Act 2002 88, Immigration (Notices) Regulations 2003, Immigration Act 1971
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.432804

UTIAC (1) The judgments of the Court of Appeal in R v Secretary of State for the Home Department ex parte Bagga [1991] 1 QB 485 are authority for the proposition that, if there is no practice on the part of the Secretary of State of using a date stamp to record the grant of leave under the Immigration Act 1971, even a ‘blameless’ individual will be unable to derive any material benefit from that stamp.
(2) The corollary, however, is not that a blameworthy individual must automatically be able to benefit from such a stamp, which is used in practice to record the grant of leave. Someone who, by misrepresentation, induces an immigration officer to proceed on a mistaken basis is not automatically entitled to succeed, merely because a mistaken decision has been formally recorded.
(3) In such a scenario, consideration must be given to:
(a) the person’s actions and understanding; and
(b) what the immigration officer thought he or she was doing by affixing the stamp.

Peter Lane UTJ
[2016] UKUT 135 (IAC)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.564158

UTIAC (i) Some members of the Sikh and Hindu communities in Afghanistan continue to suffer harassment at the hands of Muslim zealots.
(ii) Members of the Sikh and Hindu communities in Afghanistan do not face a real risk of persecution or ill-treatment such as to entitle them to a grant of international protection on the basis of their ethnic or religious identity, per se. Neither can it be said that the cumulative impact of discrimination suffered by the Sikh and Hindu communities in general reaches the threshold of persecution.
(iii) A consideration of whether an individual member of the Sikh and Hindu communities is at risk real of persecution upon return to Afghanistan is fact-sensitive. All the relevant circumstances must be considered but careful attention should be paid to the following:
a. women are particularly vulnerable in the absence of appropriate protection from a male member of the family;
b. likely financial circumstances and ability to access basic accommodation bearing in mind
– Muslims are generally unlikely to employ a member of the Sikh and Hindu communities
– such individuals may face difficulties (including threats, extortion, seizure of land and acts of violence) in retaining property and / or pursuing their remaining traditional pursuit, that of a shopkeeper / trader
– the traditional source of support for such individuals, the Gurdwara is much less able to provide adequate support;
c. the level of religious devotion and the practical accessibility to a suitable place of religious worship in light of declining numbers and the evidence that some have been subjected to harm and threats to harm whilst accessing the Gurdwara;
d. access to appropriate education for children in light of discrimination against Sikh and Hindu children and the shortage of adequate education facilities for them.
(iv) Although it appears there is a willingness at governmental level to provide protection, it is not established on the evidence that at a local level the police are willing, even if able, to provide the necessary level of protection required in Refugee Convention/Qualification Directive terms, to those members of the Sikh and Hindu communities who experience serious harm or harassment amounting to persecution.
(v) Whether it is reasonable to expect a member of the Sikh or Hindu communities to relocate is a fact sensitive assessment. The relevant factors to be considered include those set out at (iii) above. Given their particular circumstances and declining number, the practicability of settling elsewhere for members of the Sikh and Hindu communities must be carefully considered. Those without access to an independent income are unlikely to be able to reasonably relocate because of depleted support mechanisms.
(vi) This replaces the county guidance provided in the cases of K (Risk – Sikh – Women) Afghanistan CG [2003] UKIAT 00057 and SL and Others (Returning Sikhs and Hindus) Afghanistan CG [2005] UKAIT 00137.

Hanson, Plimmer UTJJ
[2015] UKUT 595 (IAC)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.565380

UTIAC Note: References to Iraq herein are to the territory of Iraq excluding the autonomous Iraqi Kurdish Region (‘IKR’) unless otherwise stated.
A. INDISCRIMINATE VIOLENCE IN IRAQ: ARTICLE 15(C) OF THE QUALIFICATION DIRECTIVE
1. There is at present a state of internal armed conflict in certain parts of Iraq, involving government security forces, militias of various kinds, and the Islamist group known as ISIL. The intensity of this armed conflict in the so-called ‘contested areas’, comprising the governorates of Anbar, Diyala, Kirkuk, (aka Ta’min), Ninewah and Salah Al-din, is such that, as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive.
2. The degree of armed conflict in certain parts of the ‘Baghdad Belts’ (the urban environs around Baghdad City) is also of the intensity described in paragraph 1 above, thereby giving rise to a generalised Article 15(c) risk. The parts of the Baghdad Belts concerned are those forming the border between the Baghdad Governorate and the contested areas described in paragraph 1.
3. The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15(c).
4. In accordance with the principles set out in Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, decision-makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection, in order to ascertain whether those characteristics are such as to put that person at real risk of Article 15(c) harm.
B. DOCUMENTATION AND FEASIBILITY OF RETURN (excluding IKR)
5. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a laissez passer.
6. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.
7. In the light of the Court of Appeal’s judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation, if the Tribunal finds that P’s return is not currently feasible, given what is known about the state of P’s documentation.
C. POSITION ON DOCUMENTATION WHERE RETURN IS FEASIBLE
8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.
9. Having a Civil Status Identity Document (CSID) is one of the ways in which it is possible for an Iraqi national in the United Kingdom to obtain a passport or a laissez passer. Where the Secretary of State proposes to remove P by means of a passport or laissez passer, she will be expected to demonstrate to the Tribunal what, if any, identification documentation led the Iraqi authorities to issue P with the passport or laissez passer (or to signal their intention to do so).
10. Where P is returned to Iraq on a laissez passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport or other current form of Iraqi identification document.
11. Where P’s return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P’s return have been exhausted, it is reasonably likely that P will still have no CSID.
12. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P’s home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P’s ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P’s information (and that of P’s family). P’s ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.
13. P’s ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P’s Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the ‘Central Archive’, which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.
D. INTERNAL RELOCATION WITHIN IRAQ (OTHER THAN THE IRAQI KURDISH REGION)
14. As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.
15. In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:
(a) whether P has a CSID or will be able to obtain one (see Part C above);
(b) whether P can speak Arabic (those who cannot are less likely to find employment);
(c) whether P has family members or friends in Baghdad able to accommodate him;
(d) whether P is a lone female (women face greater difficulties than men in finding employment);
(e) whether P can find a sponsor to access a hotel room or rent accommodation;
(f) whether P is from a minority community;
(g) whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs.
16. There is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates, suffering serious harm en route to such governorates so as engage Article 15(c).
E. IRAQI KURDISH REGION
17. The Respondent will only return P to the IKR if P originates from the IKR and P’s identity has been ‘pre-cleared’ with the IKR authorities. The authorities in the IKR do not require P to have an expired or current passport, or laissez passer.
18. The IKR is virtually violence free. There is no Article 15(c) risk to an ordinary civilian in the IKR.
19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities pro-actively remove Kurds from the IKR whose permits have come to an end.
20. Whether K, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a)the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b)the likelihood of K’s securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.
21. As a general matter, a non-Kurd who is at real risk in a home area in Iraq is unlikely to be able to relocate to the IKR.
F. EXISTING COUNTRY GUIDANCE DECISIONS
22. This decision replaces all existing country guidance on Iraq

Peter Lane, O;Connor, Finch UTJJ
[2015] UKUT 544 (IAC)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.553213

UTIAC A bank letter, which does not specify the postal address, landline telephone number and email address of the account holders is not thereby ‘in the wrong format’ for the purposes of paragraph 245AA of the immigration rules (documents not submitted with applications).

The President, The Hon. Mr Justice McCloskey
[2014] UKUT 297 (IAC)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.534249

The claimant sought a mandatory order for the respondent to order her removal from the UK, so that she could then exercise a right of appeal.

Rafferty J
[2010] EWHC 2751 (Admin)
Bailii
England and Wales

Immigration

Updated: 02 November 2021; Ref: scu.425776

UTIAC The ‘geographical filter’ identified in EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC) and confirmed more recently in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) is equally applicable to teachers. Thus, a teacher will generally not face a heightened risk on return to Zimbabwe, on account of his or her occupation or former occupation alone, if his or her destination of return is (a) rural Matabeleland North or Matabeleland South, where a returnee will in general not face a real risk of harm from ZanuPF elements, including the security forces, even if he or she is a MDC member or supporter; or (b) Bulawayo, where the returnee will in general not face such a risk, even if he or she has a significant MDC profile

Southern, Coker UTJJ
[2013] UKUT 198 (IAC)
Bailii
England and Wales

Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.509162

The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The appeals succeeded. In order to found such a social group, the connection between the members of the claimed group had to be something greater than the fact of persecution, and had to be a characteristic relating to some more fundamental characteristic of identity. In the case of K, the adjudicator had been entitled to find as a fact that the claimant was persecuted as a member of a social group, his family. Fornah was a woman who if returned to Sierra Leone risked female genital mutilation. It was not difficult in such circumstances to classify women as a social group. That did not cease to be a group because once the mutilation was complete the risk disappeared.

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry; Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood
Times 19-Oct-2006, [2006] UKHL 46, [2007] 1 AC 412, [2007] 1 All ER 671, [2006] 3 WLR 733
Bailii
EU Council Directive 2004/83/EC of 29 April 2004
England and Wales
Citing:
Appeal from – Fornah v Secretary of State for the Home Department CA 9-Jun-2005
The applicant sought refugee status, saying that if returned home to Sierra Leone, she would as a young woman be liable to be circumcised against her will.
Held: Female sexual mutilation ‘is an evil practice internationally condemned and in . .
Cited – Secretary of State for the Home Department v Savchenkov 1996
. .
Affirmed – Regina v Immigration Appeal Tribunal ex parte De Melo and ex parte De Araujo Admn 19-Jul-1996
The court considered a fear of persecution as founding a claim for asylum where a family member attracts the adverse attention of the authorities, whether for non-Convention reasons or reasons unknown, and persecutory treatment is then directed to . .
Cited – Januzi v Secretary of State for the Home Department and others HL 15-Feb-2006
The claimants sought to challenge the refusals of asylum in each case based upon the possibility of internal relocation. They said that such internal relocation would place them in areas where they could not be expected to live without undue . .
Criticised – Quijano v Secretary of State for Home Department CA 18-Dec-1996
The appellant asylum seeker claimed to have been persecuted as a member of his stepfather’s family, and thus of a particular social group, because members of a drug cartel had first persecuted the stepfather after he refused to co-operate with them . .
Cited – Regina v Immigration Appeal Tribunal and Another ex parte Shah HL 25-Mar-1999
Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as . .
Cited – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – Regina v Secretary of State for the Home Department, ex parte Sivakumar HL 20-Mar-2003
The appellant sought asylum. He had fled Sri Lanka. He was a Tamil and feared torture if he returned. His application had been rejected because the consequences flowed from his suspected involvement in terrorism, and that was not a Convention . .
Cited – Sepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
Cited – Secretary of State for the Home Department v Skenderaj CA 26-Apr-2002
The applicant sought asylum, claiming to be a target of an Albanian blood feud. He appealed a finding that his claim was not for a Convention reason, and did not amount to a claim of a well-founded fear of persecution for reason of his membership of . .
Cited – Suarez v Secretary of State for the Home Department CA 22-May-2002
The applicant for asylum had been threatened with death after witnessing a multiple murder as an army soldier. He had been already shot at before escaping.
Held: So long as an applicant can establish that one of the motives of his persecutor . .

Cited by:
Cited – HJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same SC 7-Jul-2010
The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by . .
Cited – RT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
Cited – Stott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.

Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.245381

UTIAC A review of the jurisprudence discloses that there is no general proposition that Article 8 of the European Convention on Human Rights can never be engaged when the family life it is sought to establish is between adult siblings living together. Rather than applying a blanket rule with regard to adult children, each case should be analysed on its own facts, to decide whether or not family life exists, within the meaning of Article 8(1). Whilst some generalisations are possible, each case is fact-sensitive.
The historic injustice and its consequences suffered by former members of the Brigade of Gurkhas are to be taken into account when assessing proportionality under Article 8(2) but the ‘historical wrong’ was not as severe as that perpetrated upon British Overseas Citizens and carries substantially less weight. Because of the exceptional position of Gurkha veterans, and their families, the Secretary of State has made special provision for their entry to the UK outside the Immigration Rules as an acknowledgment that it is in the public interest to remedy the injustice.
Given that the Gurkhas are Nepali nationals, it is not inherently unfair or in breach of their human rights to distinguish between Gurkha veterans, their wives and minor children on the one hand, who will generally be given leave to remain, and adult children on the other, who will only be given leave to remain in exceptional circumstances. The scheme that the Secretary of State has developed is capable of addressing the historical wrong and contains within it a flexibility that, in most cases, will avoid conspicuous unfairness.

[2012] UKUT 160 (IAC)
Bailii
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.459655