Ghising (Family Life – Adults – Gurkha Policy) Nepal: UTIAC 11 Apr 2012

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

A, Regina (on the Application of) v London Borough of Croydon: SC 26 Nov 2009

The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals succeeded. The actual age of a party is an objective question of fact, and as such was for the court to decide. The court could not give priority to the judgement of the social workers involved. The 1989 Act left certain decisions within the discretion of the local authority, but did not extend that to deciding whether a claimant was a child. The definition was used throughout the Act, and ‘the question whether a person is a ‘child’ [has] a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.’
However (Lord Hope) ‘the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a ‘civil right’ within the meaning of article 6(1) of the Convention.’
Lord Hope said: ‘the question whether or not a person is a child for the purposes of section 20 of the 1989 Act is a question of fact which must ultimately be decided by the court.’

Lord Hope of Craighead, Deputy President, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Times 30-Nov-2009, [2009] UKSC 8, [2010] 1 All ER 469, [2009] 3 FCR 607, [2009] 1 WLR 2557, [2010] PTSR 106, [2010] UKHRR 63
Bailii
Children Act 1989 20(1) 105(1), European Convention on Human Rights 6(1)
England and Wales
Citing:
Cited – Regina (B) v Merton London Borough Council Admn 14-Jul-2003
The authority had to decide the age of the applicant, an asylum seeker, in order to decide whether a duty was owed to him under the Act. He complained that the procedure adopted was unfair. The 2002 Act did not apply to persons under 18, and he . .
Cited – M, Regina (on the Application of) v London Borough of Hammersmith and Fulham HL 27-Feb-2008
M, a girl aged 16 had become estranged from her mother, and sought housing assistance. She was not referred to the authority’s children’s services, and was not housed. The House examined the duties of local authorities under the section towards . .
at First Instance – M and Another, Regina (on the Application of) v London Borough of Lambeth and others Admn 20-Jun-2008
The claimant had arrived from Afhganistan and sought asylum and accomodation as a child. The social worker involved assessed him to be an adult.
Held: The decision was within the duties of the local authorities. . .
Cited – G, Regina (on the Application of) v London Borough Of Southwark HL 20-May-2009
The House was asked whether when a child of 16 or 17 who was ejected from home and presents himself to a local children’s services authority and asks to be accommodated by them under section 20 of the Children Act 1989, it is open to that authority . .
Cited – A v London Borough of Croydon; Regina (WK) v Kent County Council Admn 8-May-2009
The claimants had arrived as asylum seekers, and said that they were under eighteen, and entitled to assistance as children. The social workers decided that they were older. The claimants said that insufficient attention had been given to . .
Appeal from – A, Regina (on the Application of) v London Borough of Croydon CA 18-Dec-2008
The court declined appeals against findings that local authorities through social workers could properly assess whether the claimants were under eighteen and entitled, though asylum seekers, to housing provision and support under the 1989 Act. . .
Cited – Sir Henry Edward Bunbury, Bart v Philip Fuller 25-Jun-1853
A section of an Act of Parliament imposed a restraint on the jurisdiction of tithe commissioners in the case of lands in respect of which the tithes had already been perpetually commuted or statutorily extinguished. The tithe commissioners had, . .
Cited – Regina v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek 1951
A rent tribunal could not give itself jurisdiction over an unfurnished letting. Devlin J said: ‘While they will not allow every empty threat to their jurisdiction to deter them from their proper business of fixing reasonable rents, they will . .
Cited – Wahid v London Borough of Tower Hamlets CA 7-Mar-2002
Gilliatt The appellant suffered from schizophrenia. He was refused permission to apply for judicial review and for orders requiring the local authority not just to provide suitable accommodation but better . .
Cited – Regina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .
Cited – Ringeisen v Austria ECHR 16-Jul-1971
The Austrian District and Regional Real Property Transactions Commission refused to approve the sale of a number of plots of land. The applicant challenged the refusal alleging bias and contending that his article 6 rights were violated for that . .
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Albert And Le Compte v Belgium ECHR 10-Feb-1983
. .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Regina v Hillingdon London Borough Council Ex parte Puhlhofer HL 2-Jan-1986
Not Homeless Even if Accomodation Inadequate
The applicants, a married couple, lived with a young child and later also a baby in one room of a guest house. They were given breakfast but had no cooking or washing facilities. They succeeded on a judicial review of the housing authority’s . .
Cited – Benthem v The Netherlands ECHR 23-Oct-1985
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – finding of violation sufficient . .
Cited – Obermeier v Austria ECHR 28-Jun-1990
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs . .
Cited – Kingsley v The United Kingdom (No 2) ECHR 28-May-2002
The finding that a party had been denied a fair trial may of itself be sufficient compensation. The applicant had been excluded from management of licensed casinos. The appeal board had been found to have given the appearance of bias against him. . .
Cited – Feldbrugge v The Netherlands ECHR 29-May-1986
The court was asked whether the applicant’s entitlement to a statutory sickness allowance, which was a contributory scheme but for which she had not registered due to illness, was a civil right within the meaning of article 6.
Held: The . .
Cited – Salesi v Italy ECHR 26-Feb-1993
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings . .
Cited – Mennitto v Italy ECHR 5-Oct-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings . .
Cited – Mihailov v Bulgaria ECHR 21-Jul-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings. . .
Cited – Wos v Poland ECHR 8-Jun-2006
The claimant objected to the removal of a right to compensation for having been used as forced labour in the second world war. The applicant was held to enjoy, at least on arguable grounds, a right to compensation which fell within the ambit of . .
Cited – P v United Kingdom ECHR 13-Oct-1986
. .
Cited – Ferrazzini v Italy ECHR 12-Jul-2001
(Grand Chamber) The court had to decide whether tax proceedings brought by the state against an individual involved the determination of a civil right within the meaning of article 6(1). It was argued by the Government that the existence of an . .
Cited – Vilho Eskelinen And Others v Finland ECHR 19-Apr-2007
Even where article 6(1) applied to a field falling within the traditional sphere of public law, this did not in itself determine how the various guarantees of article 6 should be applied to such disputes. . .
Cited – Woonbron Volkshuisvestingsgroep v The Netherlands ECHR 18-Jun-2002
Decisions about state subsidies to housing associations do not raise issues about civil rights. . .
Cited – Runa Begum v London Borough of Tower Hamlets (First Secretary of State intervening) HL 13-Feb-2003
The appellant challenged the procedure for reviewing a decision made as to the suitability of accomodation offered to her after the respondent had accepted her as being homeless. The procedure involved a review by an officer of the council, with an . .
Cited – Sypchenko v Russia ECHR 1-Mar-2007
. .
Cited – Tsfayo v The United Kingdom ECHR 14-Nov-2006
The applicant challenged the prodecures for deciding her appeal against the council’s refusal to pay backdated housing benefits. She complained that the availability of judicial review of the decision was not adequate.
Held: The system did not . .
Cited – Teteriny v Russia ECHR 30-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Violation of P1-1; Inadmissible as regards second applicant; Non-pecuniary damage – financial award. . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Loiseau v France ECHR 28-Sep-2004
ECHR Judgment (Merits) – No violation of Art. 6-1.
The court referred to ‘a ‘private right’ which can be said, at least on arguable grounds, to be recognised under domestic law’ and to ‘an individual right . .
Cited – Schuler-Zgraggen v Switzerland ECHR 24-Jun-1993
The court considered a contributory invalidity scheme: ‘today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance . . State intervention is not sufficient to establish that Article . .

Cited by:
Cited – Savva, Regina (on The Application of) v Royal Borough of Kensington and Chelsea Admn 11-Mar-2010
The claimant challenged the defendant’s policies on caring for elderly people within the community saying that it provided insufficient funds, and the procedures for review were inadequate and infringed her human rights. . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Bubb v London Borough of Wandsworth CA 9-Nov-2011
The appellant had sought housing assistance. She had been offered accomodation but refused it as unreasonable. The authority declined further assistance. She now appealed against the refusal of the county court judge to set aside the decision . .
Cited – AA, Regina (on The Application of) v Secretary of State for The Home Department SC 10-Jul-2013
The issue on this appeal is the effect of section 55 on the legality of the appellant’s detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he . .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .

Lists of cited by and citing cases may be incomplete.

Children, Human Rights, Immigration, Local Government

Updated: 01 November 2021; Ref: scu.381492

Soreefan and Others, Regina (on The Application of) v Secretary of State for The Home Department (Judicial Review – Costs – Court of Appeal (IJR): UTIAC 28 Oct 2015

UTIAC (i) An appeal lies to the Court of Appeal against a costs order of the Upper Tribunal made in immigration judicial review proceedings.
(ii) In determining cost issues the Upper Tribunal will apply M v London Borough of Croydon [2012] EWCA Civ 595.
(iii) Provided that a costs decision of the Upper Tribunal is in harmony with established principles and has a tenable basis, permission to appeal to the Court of Appeal is unlikely to be granted because cost decisions involve a substantial measure of discretion dependent upon one particular factual matrix.
(iv) In judicial review proceedings where permission to appeal is not determined at a hearing, the time limit for applying to the Upper Tribunal for permission to appeal to the Court of Appeal is one calendar month, beginning on the date immediately following the day upon which the Tribunal’s substantive decision was sent and ending on the corresponding date in the immediately succeeding month.
(v) This time limit is capable of being extended in accordance with established principles and giving effect to the overriding objective.
(vi) Every Permission to Appeal (PTA) application must be made in writing. There is no prescribed form.
(vii) In judicial review cases, the prescribed fee for an application for permission to appeal to the Court of Appeal is presently andpound;45.00. Such applications do not require notice to the other parties.
(viii) The substantive requirements for every permission to appeal application are enshrined in rule 44(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and are of cardinal importance.
(ix) A failure to comply with rule 44(7) engages the Upper Tribunal’s discretionary strike out powers under rule 8. The Tribunal will assess in particular the nature and gravity of the non-compliance and will give effect to the principles in R (SN) v SSHD (striking out – principles) IJR [2015] UKUT 227 (IAC).

[2015] UKUT 594 (IAC)
Bailii
England and Wales

Immigration, Costs

Updated: 01 November 2021; Ref: scu.565368

Saleh, Regina (On the Application of) v Secretary Of State for the Home Department: Admn 5 Oct 2009

The claimant challenged his past and continuing detention pending deportation. He had a long series of convictions for dishonesty.
Held: ‘it is indeed disconcerting to find that a non-violent person subject to immigration control has been in detention, when not serving any sentence of imprisonment, for over 12 months while his status is assessed and his applications are dealt with. Such a period of incarceration requires justification and it is appropriate for the court to scrutinise it anxiously.’ He had been found dishonest and manipulative, though not violent. ‘the circumstances are such as to justify the continued detention of the Claimant while his current asylum claim is determined. I put considerable weight on his character and behaviour and his immigration history. He is, as the Defendant submits, now running out of options. He has made his asylum claim and if that fails, and if he appeals and the appeal fails, he will have nowhere left to turn. The risk that he will abscond, perhaps committing further offences having done so with no means of support, is a real one. In all the circumstances the period of detention to date and the likely period of future detention is reasonable.’

Timothy Brennan QC J
[2009] EWHC 2395 (Admin)
Bailii
Immigration Act 1971
England and Wales
Citing:
Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
Cited – A, Regina (on the Application of) v Secretary of State for the Home Department CA 30-Jul-2007
The applicant had had his application for asylum rejected. Pending deportation, he had been held in custody. The court had found his detention unlawful.
Held: The Home Secretary’s appeal succeeded. The power to detain in such circumstances had . .
Cited – Tan Te Lam v Superintendent of Tai A Chau Detention Centre PC 27-Mar-1996
(Hong Kong) Migrants from Vietnam of Chinese ethnic origin had landed in Hong Kong by boat, and been refused refugee status. They were detained for several years under section 13D of the Immigration Ordinance ‘pending . . removal from Hong Kong’. . .
Cited – I, Regina (on the Application of) v Secretary of State for the Home Department CA 28-Jun-2002
The appellant obtained asylum but was convicted of offences after entering, and ordered to be deported. Whilst serving his sentence the deportation order was served, but he was not released on licence at the time he would normally have been . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 01 November 2021; Ref: scu.375614

M, Regina (on the Application of) v Slough Borough Council: HL 30 Jul 2008

The House was asked ‘whether a local social services authority is obliged, under section 21(1)(a) of the 1948 Act, to arrange (and pay for) residential accommodation for a person subject to immigration control who is HIV positive but whose only needs, other than for a home and subsistence, are for medication prescribed by his doctor and a refrigerator in which to keep it.’
Held: The Council’s appeal succeeded. ‘the natural and ordinary meaning of the words ‘care and attention’ in this context is ‘looking after’. Looking after means doing something for the person being cared for which he cannot or should not be expected to do for himself: it might be household tasks which an old person can no longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded. ‘ The claimant’s medical care was being provided by the NHS.

Lord Bingham of Cornhill, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2008] UKHL 52, [2008] 1 WLR 1808, [2008] BLGR 871, (2008) 11 CCL Rep 733, [2008] 4 All ER 831, [2008] NPC 94, [2008] HLR 44
Bailii, Times, HL
National Assistance Act 1948 21(1)(a)
England and Wales
Citing:
At First Instance – M, Regina (on the Application of) v Slough Borough Council Admn 27-Apr-2004
The claimant, a Zimbabwean, was subject to immigration control. He was HIV positive, and sought assistance from the authority under the 1948 Act. The authority replied that his needs did not reach such a level as to require assistance under the . .
Appeal from – Slough Borough Council v M, Regina (on the Application Of) CA 25-May-2006
The claimant was subject to immigration control. He sought assistance under the 1948 Act on the basis that he suffered HIV. The authority appealed an order requiring them to provide assistance on the basis that he need for medication brought him . .
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Cited – Steane v Chief Adjudication Officer and Another HL 8-Aug-1996
Since no payments had been made by the Local Authority for care, a care home resident was entitled to claim Attendance Allowance.
Occupant of residential home paying charges himself may get attendance allowance. . .
Cited – Chief Adjudication Officer and Another v Quinn (For Jane Harris) and Another HL 9-Oct-1996
LT Applicable amount – local authority accommodation leased to voluntary organisations – whether claimants are ‘persons in residential accommodation’ or are living in ‘residential care homes’ . .
Cited – Regina v Wandsworth London Borough Council Ex Parte Beckwith HL 15-Dec-1995
The applicants had contended that Wandsworth was under a duty to maintain some accommodation for the elderly in premises under its own management.
Held: The applicants claim failed. Local Authorities may provide all care for elderly by outside . .
Cited – Regina v Wandsworth London Borough Council, Ex Parte O; Leicester City Council, Ex Parte Bhikha CA 7-Sep-2000
The applicants were immigrants awaiting determination of their applications for exceptional leave to remain, and who came to suffer from serious illness. Each applied for and was refused assistance from their local authority.
Held: The . .
Cited – Regina v Secretary of State for Social Security Ex Parte B and the Joint Council for the Welfare of Immigrants CA 27-Jun-1996
The Secretary of State had introduced regulations which excluded the statutory right to payment of ‘urgent case’ benefits for asylum seekers who had not claimed asylum immediately upon arrival, or whose claims for asylum had been rejected, and who . .
Cited – Regina v Kensington and Chelsea Royal London Borough Ex Parte Kihara; Similar CA 25-Jun-1996
Four asylum seekers had been deprived of benefits, and left destitute. They had sought housing assistance from the authority, claiming that the complete absence of resources left to them was an ‘other special reason’ leaving them vulnerable within . .
Cited – Regina v Hammersmith and Fulham London Borough Council, ex parte M; Regina v Similar Ex Parte P etc QBD 8-Oct-1996
Destitute asylum seekers who were not entitled to welfare benefits could be in need of care and attention within the meaning of section 21 of the 1948 Act although they were no longer entitled to housing assistance or other social security benefits . .
Cited – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .
Cited – Wahid v London Borough of Tower Hamlets CA 7-Mar-2002
Gilliatt The appellant suffered from schizophrenia. He was refused permission to apply for judicial review and for orders requiring the local authority not just to provide suitable accommodation but better . .
Cited – Regina (on the Application of Mani) v London Borough of Lambeth CA 9-Jul-2003
Where a destitute and disabled asylum seeker had a clear need for care and attention, the local authority had a duty to provide it. The claimant was an asylum seeker, with impaired mobility and a history of mental halth difficulties. At first he was . .

Cited by:
Cited – SL v Westminster City Council SC 9-May-2013
The applicant for assistance from the respondent Council under the 1948 Act was a destitute, homeless failed asylum seeker. He had been admitted to hospital for psychiatric care, but the Council had maintained that his condition was part of and . .
Cited – Hotak and Others v London Borough of Southwark and Another SC 13-May-2015
The court was asked as to the duty of local housing authorities towards homeless people who claim to be ‘vulnerable’, and therefore to have ‘a priority need’ for the provision of housing accommodation under Part VII of the Housing Act 1996. Those . .

Lists of cited by and citing cases may be incomplete.

Benefits, Immigration

Updated: 01 November 2021; Ref: scu.271278

GG (Political Oppositionists) Ivory Coast CG: IAT 23 Oct 2007

i. Political oppositionists in the Ivory Coast (including members and supporters of the RDR) do not in general face a real risk of persecution or serious harm or ill-treatment on return.
ii. For a political oppositionist who is a high-ranking member or an activist, the position may well be different, at least so far as risk in that person’s home area is concerned. That is so whether he or she is a member of the RDR, the northern-based FN or some other oppositionist party or organisation.
iii. A person who is not a member but merely a supporter of the RDR or the FN (or other oppositionist party or organisation) may, depending on the circumstances, be at real risk if he or she is also an activist.
iv. In the context of deciding cases involving persons claiming to be at risk because of their actual or perceived membership of, or support for, political opposition parties or groups, the existence of certain other factors (being a northerner, being a Muslim and being a West African immigrant) may raise the level of risk, although whether they raise it enough to cross the threshold of persecution or serious harm or ill-treatment will depend on the particular facts of the case. Even in combination with a low or medium-level political profile as an oppositionist, such factors will not normally give risk to a real risk.
v. Political oppositionists who are able to give a credible account of risk in their home area will in general be able to avoid a real risk of further persecution or serious harm or ill-treatment by relocating.
vi. AZ (Risk on return) Ivory Coast CG [2004] UKIAT 00170, heard 4 May 2004, remains valid as country guidance for the period up that date. DI (Ivory Coast) CG [2002] UKIAT 04437 remains a relevant source of guidance on FGM-related claims. However, VG (Coup) Ivory Coast CG [2002] UKIAT 04020 and TD-K JK (Relocation of ex-President Bedie) Ivory Coast CG [2002] UKIAT 03140 no longer hold value as guidance.

[2007] UKAIT 00086
Bailii
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.261625

Policie CR, Krajske reditelstvi policie Usteckeho kraje, odbor cizinecke policie v Al Chodor and Others: ECJ 15 Mar 2017

Police detention of Immigrants to follow rules

ECJ (Judgment) Reference for a preliminary ruling – Criteria and mechanisms for determining the Member State responsible for examining an application for international protection – Regulation (EU) No 604/2013 (Dublin III) – Article 28(2) – Detention for the purpose of transfer – Article 2(n) – Significant risk of absconding – Objective criteria – Absence of a legal definition
A family of Iraqi nationals, the Al Chodors, who were stopped by police in the Czech Republic and interviewed. They claimed to be of Kurdish origin and it emerged that they had travelled to the Czech Republic via Turkey, Greece and then Hungary, where they had claimed asylum. The Foreigners Police Section of the Czech police force decided to place the family in detention pending their transfer to Hungary under the Dublin system. They took the view, for perfectly sensible reasons, that there was a serious risk that, unless detained, the Al Chodors would abscond before their transfer. The relevant Czech legislation conferred on the police force the power to detain a foreign national who had entered the Czech Republic illegally for the period of time necessary to secure the transfer of that person in accordance with, among other measures, the Dublin III Regulation. Upon a challenge by the Al Chodors, the Czech Regional Court annulled the decision to detain on the basis that the objective criteria for assessing the risk of absconding were not defined by Czech legislation as required by article 2(n) of the Regulation. The police force then brought an appeal on a point of law before the Supreme Administrative Court, which made the reference to the CJEU. The referring court asked, in substance, whether articles 2(n) and 28(2) of the Dublin III Regulation require member states to establish, in a national law, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond, and whether the absence of those criteria in a national law leads to the inapplicability of article 28(2).

ECLI:EU:C:2017:213, [2017] EUECJ C-528/15, [2017] WLR(D) 184, [2017] 3 CMLR 24, ECLI:EU:C:2016:865
Bailii, WLRD
European
Cited by:
Cited – Hemmati and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Nov-2019
The Home Secretary appealed from a finding that illegally entered asylum seekers had been unlawfully detained pending removal. The five claimants had travelled through other EU member states before entering the UK. The court considered inter alia . .
Applied – Hemmati and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 4-Oct-2018
Conjoined hearing of appeals in respect of three judgments covering the cases of five individual immigrants who were placed in detention for periods pending possible removal to other EU Member States pursuant to the asylum claim arrangements under . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .

Lists of cited by and citing cases may be incomplete.

Immigration, Police

Updated: 01 November 2021; Ref: scu.580691

Wagner (Advocates’ Conduct – Fair Hearing): UTIAC 6 Nov 2015

UTIAC (i) Legitimate advocacy does not extend to aggressive questioning of, or confrontation with, a party or witness. The Tribunal should intervene where this occurs.
(ii) Similarly, mere comments by an advocate under the guise of questioning are improper and may also require judicial intervention.
(iii) Improper conduct on the part of an advocate, unchecked and unrestrained by judicial authority and hearing management, can potentially render a hearing unfair.

[2015] UKUT 655 (IAC)
Bailii
England and Wales
Citing:
Cited – London Borough of Southwark v Jiminez CA 8-Apr-2003
The appellant authority complained that the tribunal had expressed its view strongly before hearing the evidence and had so demonstrated that its mind was closed.
Held: There was no inevitability that a strongly expressed conditional view . .

Lists of cited by and citing cases may be incomplete.

Immigration, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.565382

MM v Minister for Justice, Equality and Law Reform Ireland, Attorney General: ECJ 22 Nov 2012

ECJ Reference for a preliminary ruling – Common European Asylum System – Directive 2004/83/EC – Minimum standards for qualification for refugee status or subsidiary protection status – Article 4(1), second sentence – Cooperation of the Member State with the applicant to assess the relevant elements of his application – Scope – Lawfulness of the national procedure for processing an application for subsidiary protection following rejection of an application for refugee status – Observance of fundamental rights – Right to be heard

Tizzano P
C-277/11, [2012] EUECJ C-277/11
Bailii
Directive 2004/83/EC
European

Immigration

Updated: 01 November 2021; Ref: scu.465994

Quila and Another v Secretary of State for The Home Department: Admn 7 Dec 2009

The claimant, a Chilean national, sought review of a decision not to allow him to stay in the UK as the husband of a British national. He said that the decision was based on him being under 21, and that this was discriminatory, and infringed his article 8 rights to respect for his private and family life.
Held: The claim failed. The respondent’s statement of changes had raised the bar on such claims from 18 to 21. The change had a proper foundation in seeking too remove temptation to forced marriages, and that was sufficient even though it impacted also on genuine arrangements such as those of the applicant. It was lawful and proportionate. Article 8 created no obligation on signatory states to respect choices by couples of their place of residence or to accept the settlement of a non-national spouse in this country.

Burnett J
[2010] 1 FCR 81, [2009] EWHC 3189 (Admin)
Bailii, Times
Immigration Act 1971 2(2), European Convention on Human Rights 8, Statement of Changes in Immigration Rules (2008) (HC 1113)
England and Wales
Cited by:
Appeal from – Quila and Another v Secretary of State for The Home Department CA 21-Dec-2010
The court was asked whether the ban contained in paragraph 277 of the immigration rules on the entry for settlement of foreign spouses between the ages of 18 and 21 is a lawful way of dealing with the problem of forced marriages. . .
At First Instance – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Family

Updated: 01 November 2021; Ref: scu.381841

MWA (Afghanistan) v Secretary of State for The Home Department: CA 21 May 2014

The asylum claimant disputed the assessment that he was an adult.

Maurice Kay, Davis, Floyd LJJ
[2014] EWCA Civ 706
Bailii
Children Act 1989 20
England and Wales
Citing:
Cited – A v London Borough of Croydon; Regina (WK) v Kent County Council Admn 8-May-2009
The claimants had arrived as asylum seekers, and said that they were under eighteen, and entitled to assistance as children. The social workers decided that they were older. The claimants said that insufficient attention had been given to . .

Lists of cited by and citing cases may be incomplete.

Immigration, Children

Updated: 01 November 2021; Ref: scu.525637

ZO (Somalia) and Others, Regina (on The Application of) v Secretary of State for The Home Department: SC 28 Jul 2010

The Directive gave certain rights to asylum applicants. The claimants had applied for asylum, and on failing in their applications, renwewed them, claiming the rights under the Directive again. The respondent said that the rights applied only on a first application.
Held: The applicants still had the benefit of the Directive: ”an application for asylum’ in the Reception Directive must be interpreted to include a subsequent application made after an original application has been determined and that the term ‘asylum seeker’ should be construed accordingly to include a person who makes such a subsequent application.’

Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Kerr, Sir John Dyson SCJ
[2010] UKSC 36, [2010] WLR (D) 203, UKSC 2009/0151, [2010] 1 WLR 1948
Bailii, WLRD, Bailii Summary, SC, SC Summary
Council Directive 2003/9/EC (the Reception Directive) 1
England and Wales
Citing:
Appeal from – ZO (Somalia), Regina (On the Application of) v Secretary of State for the Home Department; R (MM (Burma) and another) v Secretary of State for the Home Department; R (DT (Eritrea)) v Same CA 20-May-2009
Each claimant had made a failed asylum claim, followed by another which had not been yet determined after delay. They appealed against decisions that they were not entitled to obtainn employment.
Held: The appeals succeeded. The reception . .
At First Instance – MM (Somalia) and ZO (Somalia), Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jun-2008
. .
Cited – NM and others (Lone Women, Ashraf) Somalia CG IAT 31-Mar-2005
. .
Cited – FH and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 5-Jul-2007
Each claimant said that the defendant had failed to determine within a reasonable time their applications to be allowed to stay. . .
Cited – Srl CILFIT v Ministero Della Sanita ECJ 6-Oct-1982
ECJ The obligation to refer to the Court of Justice questions concerning the interpretation of the EEC Treaty and of measures adopted by the community institutions which the third paragraph of article 177 of the . .

Cited by:
Cited – Negassi and Another, Regina (on The Application of) v Secretary of State for The Home Department CA 7-Mar-2013
Maurice Kay VP began: ‘It is well-known that asylum applications, even when made promptly on arrival in this country, can take months or even years before final determination through the decision-making and appellate process. This causes familiar . .

Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 01 November 2021; Ref: scu.421100

Onykwere v Secretary of State for The Home Department: Admn 13 Apr 2016

Claim for judicial review by an adult male national of Cameroon challenging two decisions of the Secretary of State for the Home Department: i) The decision refusing the Claimant’s application to have his Deportation Order revoked and to certify that application as clearly unfounded, and ii) The decisiothat the Claimant’s further submissions did not amount to a fresh asylum and/or human rights claim and that her previous decision to certify the Claimant’s human rights claim should be maintained.

Simon Bryan QC
[2016] EWHC 758 (Admin)
Bailii
England and Wales

Immigration, Human Rights

Updated: 01 November 2021; Ref: scu.562136

IR and GT v The United Kingdom (Dec): ECHR 28 Jan 2014

ECHR Article 8
Expulsion
Exclusion orders based on undisclosed national security grounds: inadmissible
Facts – The case concerned two foreign nationals whom the Secretary of State for the Home Department decided to exclude from the United Kingdom on the grounds that their presence in the country was not conducive to the public good. As the Secretary of State’s decisions were taken on grounds of national security, the applicants’ appeals against these decisions were heard by the Special Immigration Appeals Commission (SIAC). Part of the proceedings before SIAC took place in the absence of the applicants and their legal representatives, but in the presence of special advocates who had been appointed to represent their interests (in a so-called ‘closed procedure’). SIAC dismissed their appeals in decisions that were upheld by the Court of Appeal. In their application to the European Court, the applicants complained that their exclusion from the United Kingdom and the proceedings before SIAC had violated their rights under Article 8 and/or Article 13 of the Convention, in particular in that they had been denied access to sufficient information to enable them to conduct any meaningful challenge to the national security allegations against them.
Law – Article 8: The applicants’ complaints were directed solely at the procedure followed by the Secretary of State in making the exclusion orders and before SIAC in examining their appeals. In particular, the applicants complained that they were not provided with adequate information to be able to understand and respond to the allegations against them. It was therefore appropriate to examine, in the light of the requirements of Article 8 taken on its own and together with Article 13, the nature and extent of the procedural safeguards available to the applicants during the impugned proceedings.
It was incumbent on States under Article 8 to put in place in cases giving rise to national security concerns a procedure which strikes a balance between the need to restrict access to confidential material and the need to ensure some form of adversarial proceedings. The procedural guarantees inherent in Article 8 would vary depending on the context of the case in question and in some circumstances might not be as demanding as those that applied under Articles 5 and 6 of the Convention. Distinguishing A. and Others v. the United Kingdom, the Court noted that the express reference to the need for detailed information in Articles 5 – 2 and 6 – 3 of the Convention reflected the fact that what was at stake in such proceedings was a person’s liberty, and that the fundamental principle was that everyone has the right to liberty and security of person unless a specified exception applies. By contrast, Article 8 did not guarantee aliens the freedom to enter or reside in the country of their choice and their right to respect for private and family life was qualified by Article 8 – 2, which specifically envisaged exceptions for reasons of national security.
Further, given the overlap between the procedural safeguards under Article 8 and the right to an effective remedy under Article 13, the former had to be interpreted in a manner consistent with the latter. The Court had in previous cases accepted that the context might entail inherent limitations on the remedy and in Al-Nashif v. Bulgaria had explained that in cases concerning the expulsion of aliens on grounds of national security, the guarantee of an effective remedy contained in Article 13 required as a minimum that the competent independent appeals authority be informed of the reasons grounding the deportation decision. It did not go so far as to require provision of this information to the individual concerned.
The Court was satisfied that the procedure in place in the United Kingdom was such as to offer sufficient procedural guarantees for the purposes of Article 8. SIAC was a fully independent court. It saw all the evidence upon which the Secretary of State’s decision to exclude an individual was based. There was some form of adversarial proceedings before SIAC, with appropriate procedural limitations – in the form of the special advocates – on the use of classified information. Cases before SIAC were primarily concerned with allegations of terrorist activity: there was no evidence that SIAC had allowed the Secretary of State to adopt an interpretation of ‘national security’ that was unlawful, contrary to common sense or arbitrary. Only parts of SIAC’s judgments were classified (or ‘closed’). The appellant was provided with an ‘open’ judgment providing as much information as possible on the reasons for SIAC’s decision. Further, the ‘closed’ parts of the judgment were disclosed to his special advocate. Finally, SIAC had full jurisdiction to determine whether the exclusion interfered with the individual’s Article 8 rights and, if so, whether a fair balance had been struck between the public interest and the appellant’s rights. If it found that the exclusion was not compatible with Article 8, it would quash the exclusion order.
The procedure had functioned as intended in the applicants’ cases and the Court was satisfied that there were sufficient guarantees in the SIAC proceedings as required by Article 8 taken alone and together with Article 13 of the Convention.
Conclusion: inadmissible (manifestly ill-founded).

14876/12 63339/12 – Legal Summary, [2014] ECHR 342
Bailii
European Convention on Human Rights
Human Rights
Citing:
Admissibility – IR and GT v The United Kingdom ECHR 28-Jan-2014
. .

Cited by:
Legal Summary – IR and GT v The United Kingdom ECHR 28-Jan-2014
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 01 November 2021; Ref: scu.523399

Abdulaziz etc v The United Kingdom: ECHR 28 May 1985

Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had not infringed the rights of the women and of their husbands to respect for their family life under article 8 but, in that the ground for the refusals had been a rule which had afforded a different and unjustified treatment of male, as opposed to female, spouses of persons lawfully settled in the UK, the women had suffered discrimination on the ground of sex in violation of their rights under article 14, taken together with article 8, of the Convention: ‘The duty imposed by article 8 cannot be considered as extending to a general obligation on the part of a contracting state to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country.’
The court was astute to recognise the right under international law of a state to control immigration into its territory. This right has been weighed against the degree of interference with the enjoyment of family life caused by the immigration restriction often not because this served a legitimate aim under article 8(2) but because it acted as a free-standing restriction on the article 8 right. ‘The Court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective ‘respect’ for family life. However, especially as far as these obligations are concerned, the notion of ‘respect’ is not clear cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In particular, in the area now under consideration, the extent of a State’s obligation to admit in its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory.’
There can be a breach of article 14 even if there is no breach of a substantive Convention right. The refusal to let husbands join their wives here was justified by the right of the United Kingdom to control immigration. The difference in treatment between the husbands of wives settled here and the wives of husbands settled here had still to be justified under article 14. It was not.
‘Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of article 14 does not necessarily presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.’

9214/80, 9473/81, 9474/80, (1985) 7 EHRR 471, [1985] ECHR 7
Worldlii
European Convention on Human Rights 14
Human Rights
Cited by:
Cited – Davies v The United Kingdom ECHR 16-Jul-2002
The applicant had been subject to applications for his disqualification from acting as a company director. The Secretary of State waited until the last day before issuing proceedings, and the proceedings were then delayed another three years pending . .
Cited – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 18-Jun-2003
The appellants were widowers whose wives had died at a time when the benefits a widow would have received were denied to widowers. The legislation had since changed but they variously sought compensation for the unpaid sums.
Held: The appeal . .
Cited – Regina on the Application of Wilkinson v The Commissioners of Inland Revenue CA 18-Jun-2003
The claimant had not received the same tax allowance following his wife’s death as would have been received by a woman surviving her husband. That law had been declared incompatible with Human Rtights law as discriminatory, but the respondent . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Cited – K v London Borough of Lambeth CA 31-Jul-2003
The claimant appealed against refusal of judicial review. She had entered the UK, and applied for asylum. She was then found to have contracted a marriage of convenience, and thus become ineligible for support. She appealed and now sought housing . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – AL (Serbia) v Secretary of State for the Home Department; Rudi v Same HL 25-Jun-2008
Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
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 . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, Family

Leading Case

Updated: 01 November 2021; Ref: scu.164960

Ciceri (Deprivation of Citizenship Appeals: Principles) Albania: UTIAC 8 Sep 2021

Deprivation of Citizenship Principles on Appeal

Following KV (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 2483, Aziz v Secretary of State for the Home Department [2018] EWCA Civ 1884, Hysaj (deprivation of citizenship: delay) [2020] UKUT 128 (IAC), R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7 and Laci v Secretary of State for the Home Department [2021] EWCA Civ 769 the legal principles regarding appeals under section 40A of the British Nationality Act 1981 against decisions to deprive a person of British citizenship are as follows:
(1) The Tribunal must first establish whether the relevant condition precedent specified in section 40(2) or (3) of the British Nationality Act 1981 exists for the exercise of the discretion whether to deprive the appellant of British citizenship. In a section 40(3) case, this requires the Tribunal to establish whether citizenship was obtained by one or more of the means specified in that subsection. In answering the condition precedent question, the Tribunal must adopt the approach set out in paragraph 71 of the judgment in Begum, which is to consider whether the Secretary of State has made findings of fact which are unsupported by any evidence or are based on a view of the evidence that could not reasonably be held.
(2) If the relevant condition precedent is established, the Tribunal must determine whether the rights of the appellant or any other relevant person under the ECHR are engaged (usually ECHR Article 8). If they are, the Tribunal must decide for itself whether depriving the appellant of British citizenship would constitute a violation of those rights, contrary to the obligation under section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the ECHR.
(3) In so doing:
(a) the Tribunal must determine the reasonably foreseeable consequences of deprivation; but it will not be necessary or appropriate for the Tribunal (at least in the usual case) to conduct a proleptic assessment of the likelihood of the appellant being lawfully removed from the United Kingdom; and
(b) any relevant assessment of proportionality is for the Tribunal to make, on the evidence before it (which may not be the same as the evidence considered by the Secretary of State).
(4) In determining proportionality, the Tribunal must pay due regard to the inherent weight that will normally lie on the Secretary of State’s side of the scales in the Article 8 balancing exercise, given the importance of maintaining the integrity of British nationality law in the face of attempts by individuals to subvert it by fraudulent conduct.
(5) Any delay by the Secretary of State in making a decision under section 40(2) or (3) may be relevant to the question of whether that decision constitutes a disproportionate interference with Article 8, applying the judgment of Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department [2009] AC 1159. Any period during which the Secretary of State was adopting the (mistaken) stance that the grant of citizenship to the appellant was a nullity will, however, not normally be relevant in assessing the effects of delay by reference to the second and third of Lord Bingham’s points in paragraphs 13 to 16 of EB (Kosovo) [1].
(6) If deprivation would not amount to a breach of section 6 of the 1998 Act, the Tribunal may allow the appeal only if it concludes that the Secretary of State has acted in a way in which no reasonable Secretary of State could have acted; has taken into account some irrelevant matter; has disregarded something which should have been given weight; has been guilty of some procedural impropriety; or has not complied with section 40(4) (which prevents the Secretary of State from making an order to deprive if she is satisfied that the order would make a person stateless).
(7) In reaching its conclusions under (6) above, the Tribunal must have regard to the nature of the discretionary power in section 40(2) or (3) and the Secretary of State’s responsibility for deciding whether deprivation of citizenship is conducive to the public good.

[2021] UKUT 238 (IAC)
Bailii
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.668139

Ajakaiye (Visitor Appeals – Right of Appeal) Nigeria: UTIAC 27 Sep 2011

UTIAC (1) In family visitor appeals, the question whether there is a right of appeal depends on whether the application ‘was made’ for the purpose of visiting a relative to which the applicant is related in one of the ways described at paragraph 2 of the Immigration Appeals (Family Visitor) Regulations 2003.
(2) Ascertaining the purpose of the visit is primarily achieved by examining what the applicant said in the visit visa application form, although, as presently drafted, the forms may not provide sufficient opportunity to identify all relevant matters.
(3) In the event of ambiguity as to who is to be visited and whether they are a qualifying relative, regard may be had to extraneous evidence.
(4) Where a judge has embarked on the hearing of an appeal without objection and reaches the conclusion that the appellant was not seeking to visit a qualified person, there is a right of appeal to the Upper Tribunal. The right of appeal does not depend on the Immigration Judge’s findings of fact.
(5) Although the Immigration Appeals (Family Visitor) Regulations 2003 distinguish between two classes of in-laws (see SB (family visit appeal: brother-in-law?) Pakistan [2008] UKAIT 00053), an intention to visit a nephew or niece is within its scope.

Blake J P, Gill SIJ
[2011] UKUT 375 (IAC)
Bailii
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.445174

Secretary of State for The Home Department v HK (Turkey): CA 27 May 2010

The SS appealed against the successful appeal by the respondent against a deportation order. He had come to England in 1994, been granted indefinite leave to stay, and made a family here. In 2007 he was convicted of grievous bodily harm.
Held: The appeal failed. The critical issue was whether family life existed at the date of the hearing. The Tribunal found that it did and there was a family life such as to engage Article 8 immediately before the offence was committed. The judge had not diminished the seriousness of the offence. It carried a maximum of life imprisonment, the guidelines suggested between 4 and 6 years, and yet he had been sentenced to 2 years. As to the proportionality exercise it is necessary to form a view where on the scale of seriousness the respondent’s conduct comes so that the Article 8 considerations can properly be balanced against the Rule 364 presumption. In some cases the seriousness of the offence is so overwhelming as to trump all else. This, however, was not a case, serious as it was, where the gravity was such that deportation was virtually inevitable albeit there would have to be compelling reasons to allow the respondent to remain here.

Sedley LJ, Rimer LJ, Baker LJ
[2010] EWCA Civ 583
Bailii
Immigration Rules 364, European Convention on Human Rights 8
England and Wales
Citing:
Cited – Kugathas v Secretary of State for the Home Department CA 21-Jan-2003
Sedley LJ considered the circumstances where the Secretary of state should take into account the defendant’s article 8 human rights when considering deportation after serving a sentence of imprisonment: ‘Generally, the protection of family life . .
Cited – N (Kenya) v The Secretary of State for the Home Department CA 5-Aug-2004
The appellant a foreign national, had been convicted of very serious sex offences, and as his sentence came to an end was ordered to be deported. He appealed saying this infringed his right to a family life.
Held: The court had to balance the . .
Cited – AC (Turkey) v Secretary of State for the Home Department CA 25-Mar-2009
The court considered the propriety of an order for deportation of an offender after conviction for a serious offence.
Law LJ said: ‘Clearly the Secretary of State has a particular responsibility to make judgments as to what Judge LJ called . .
Cited – DA (Colombia) v Secretary of State for the Home Department CA 13-Jul-2009
. .
Cited – OP (Jamaica) v Secretary of State for the Home Department CA 1-May-2008
The applicant had been granted leave to stay. He was convicted of manslaughter and ordered to be deported on release. The Home Secretary appealed an overturning of the AIT decision in his favour, and the applicant in turn now appealed saying there . .
Cited – OH (Serbia) v Secretary of State for the Home Department CA 30-Apr-2008
Wilson LJ considered N (Kenya) and said: ‘Primary responsibility for the public interest, whose view of it is likely to be wide and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal . .
Cited – Maslov v Austria ECHR 22-Mar-2007
. .
Cited – JO (Uganda) and JT (Ivory Coast) v Secretary of State for The Home Department CA 22-Jan-2010
When considering an order for the deportation of a non-EU national on completion of a term of imprisonment, the actual weight to be placed on the criminal offending must depend on the seriousness of the offence(s) and the other circumstances of the . .
Cited – DS (India) v Secretary of State for the Home Department CA 12-Jun-2009
Rix LJ said that the public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question of the right to re-offend in this country; it extends to deterring and preventing serious crime generally and . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 01 November 2021; Ref: scu.416105

Raza, Regina (on The Application of) v Secretary of State for The Home Department (Bail – Conditions – Variation – Article 9 ECHR) (IJR): UTIAC 1 Feb 2016

UTIAC (i) Presidential Guidance Note No 1 of 2012 ‘Bail Guidance for Judges Presiding over Immigration and Asylum Hearings’ is an instrument of guidance and not instruction. The guidance should, however, normally, be followed and good reason is required for not doing so.
(ii) The First-tier Tribunal (‘FtT’) is empowered to adjudicate on applications to vary the terms of its bail orders.
(iii) The FtT retains exclusive power to vary any of its bail orders during their lifespan. The Chief Immigration Officer has no power to interfere with such orders or make any other order in such circumstances.
(iv) In cases where there is no appeal pending, an application for bail can be made to either the FtT or the Chief Immigration Officer.
(v) While every case will be fact sensitive, a curfew and electronic monitoring restriction in a bail order will not normally constitute a disproportionate interference so as to infringe Article 9 ECHR, Article 10 of the Fundamental rights Charter or the Equality Act 2010.

McCloskey J P, Storey UTJ
[2016] UKUT 132 (IAC)
Bailii
European Convenion on Human Rights
England and Wales

Immigration, Human Rights

Updated: 01 November 2021; Ref: scu.564159

HH (Criminal Record; Deportation: ‘War Zone’) Iraq: IAT 11 Jun 2008

hh_crdwzIAT2008

IAT (1) Given the impact of data protection legislation a claimant would have difficulty in establishing a risk on return arising from communications between the British government and the receiving state relating to his criminal record.
(2) The Secretary of State regarded those who would be returned to an ‘active war zone’ as exempt from deportation by a policy revoked on 14 January 2008. Decisions to deport nationals of countries that were at the relevant time active war zones, made during the currency of that policy, appear to have been made not in accordance with the law. The same applies probably to decisions to remove overstayers under s 10, but not decisions to remove illegal entrants.

C M G Ockelton
[2008] UKAIT 00051, [2009] INLR 148
Bailii

Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.270758

AM, (A Child), Regina (on The Application of) v Secretary of State for The Home Department (Dublin – Unaccompanied Children – Procedural Safeguards): UTIAC 5 Jun 2017

Dublin Regulation is Statement of EU law

(i) Regulation 604/13/EU (the Dublin Regulation) occupies the field to which it applies and operates as a measure of supreme EU law therein.
(ii) It is not open to the Secretary of State to unilaterally and selectively disapply certain provisions of the Dublin Regulation and its sister implementing Commission Regulation as this is contrary to EU law.
(iii) The dilution and disapplication of the procedural fairness and kindred protections enshrined in the Dublin Regulation, the implementing Regulation, Article 8 ECHR and the common law are not justified on the grounds of expedition and humanitarian challenge.
(iv) Any remedial order in this type of case should take into account the best interests of the child concerned and the need to accommodate child safeguarding checks and processes.

[2017] UKUT 262 (IAC)
Bailii
England and Wales

Immigration, European

Updated: 01 November 2021; Ref: scu.588810

The Advocate General for Scotland v Romein: SC 8 Feb 2018

Paradoxical Inhertiance of Nationality Rights

Whether transmission of British citizenship through the female line allowed from 1983 was retrospective: ‘With effect from 1 January 1983, the restriction to descent in the male line was abrogated by legislation for those born after that date, and 20 years later in 2003 the legislation was retrospectively amended so as to allow those born before 1983 to acquire citizenship through the female line. However, when Ms Romein, who had been born under the old regime, sought to take advantage of the change in 2013, her application for citizenship was rejected on the ground that she was unable to satisfy the statutory condition of registration within a year. The reason why she was unable to do so was that although the law was now deemed at all material times to have allowed claims to citizenship by descent through the female line, the staff of British consulates, acting entirely properly under the law as it actually was, would have refused to register her birth because she was ineligible. A result so paradoxical clearly calls for scrutiny.’
Held: The decision of the Court of session was affirmed.
‘ . . the solution to the paradox is more straightforward . . Because section 4C requires one to assume that section 5 of the 1948 Act had always provided for citizenship by descent in the female line, it is not possible to apply the registration condition in section 5(1)(b) of the 1948 Act to those claiming on that basis, because its application would make nonsense of that assumption. The past is done, and cannot be undone. For nearly 70 years, British consuls have declined to register the births of those claiming by descent through the female line. Throughout that period any purported registration of a person claiming citizenship only through the female line would have been legally ineffective. Given that we are forbidden by section 4C(3D) to assume contrary to the facts that the birth was in fact registered, the only way in which effect can be given to section 4C(3) is to treat the registration condition in section 5(1)(b) as being inapplicable in cases where citizenship is claimed by descent from a mother.’

Lady Hale, President, Lord Sumption, Lord Reed, Lord Hodge, Lady Black
[2018] UKSC 6, [2018] AC 585, 2018 GWD 24-308, 2018 SC (UKSC) 122, [2018] WLR(D) 84, [2018] 2 All ER 849, 2018 SLT 790, [2018] 2 WLR 672, [2018] Imm AR 949, [2018] INLR 287, UKSC 2016/0165, UKSC 2018/0177
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2017 Dec 06 am Video, SC 2017 Dec 06 pm Video, WLRD, SC, SC Summary, SC Summary Video, SC 07 Oct 19 am Video, SC 07 Oct 19 pm Video, SC 08 Oct 19 am Video, SC 08 Oct 19 pm Video, SC 09 Oct 19 am Video, SC 09 Oct 19 pm Video, SC 17 Jun 19 am Video, SC 17 Jun 19 pm Video
Scotland
Citing:
Appeal from (Inner House) – Romein v The Advocate General SCS 1-Apr-2016
The petitioner had applied for registration as a British citizen pursuant to section 4C of the British Nationality Act 1981, as amended by the Citizenship and Immigration Act 2009. The respondent, the Secretary of State for the Home Department . .

Lists of cited by and citing cases may be incomplete.

Administrative, Immigration, Discrimination

Leading Case

Updated: 01 November 2021; Ref: scu.604211

IM and AI (Risks – Membership of Beja Tribe, Beja Congress and Jem : Sudan) (CG): UTIAC 14 Apr 2016

UTIAC 1. In order for a person to be at risk on return to Sudan there must be evidence known to the Sudanese authorities which implicates the claimant in activity which they are likely to perceive as a potential threat to the regime to the extent that, on return to Khartoum there is a risk to the claimant that he will be targeted by the authorities. The task of the decision maker is to identify such a person and this requires as comprehensive an assessment as possible about the individual concerned.
2. The evidence draws a clear distinction between those who are arrested, detained for a short period, questioned, probably intimidated, possibly rough handled without having suffered (or being at risk of suffering) serious harm and those who face the much graver risk of serious harm. The distinction does not depend upon the individual being classified, for example, as a teacher or a journalist (relevant as these matters are) but is the result of a finely balanced fact-finding exercise encompassing all the information that can be gleaned about him. The decision maker is required to place the individual in the airport on return or back home in his community and assess how the authorities are likely to re-act on the strength of the information known to them about him.
3. Distinctions must be drawn with those whose political activity is not particularly great or who do not have great influence. Whilst it does not take much for the NISS to open a file, the very fact that so many are identified as potential targets inevitably requires NISS to distinguish between those whom they view as a real threat and those whom they do not.
4. It will not be enough to make out a risk that the authorities’ interest will be limited to the extremely common phenomenon of arrest and detention which though intimidating (and designed to be intimidating) does not cross the threshold into persecution.
5. The purpose of the targeting is likely to be obtaining information about the claimant’s own activities or the activities of his friends and associates.
6. The evidence establishes the targeting is not random but the result of suspicion based upon information in the authorities’ possession, although it may be limited.
7. Caution should be exercised when the claim is based on a single incident. Statistically, a single incident must reduce the likelihood of the Sudanese authorities becoming aware of it or treating the claimant as of significant interest.
8. Where the claim is based on events in Sudan in which the claimant has come to the attention of the authorities, the nature of the claimant’s involvement, the likelihood of this being perceived as in opposition to the government, his treatment in detention, the length of detention and any relevant surrounding circumstances and the likelihood of the event or the detention being made the subject of a record are all likely to be material factors.
9. Where the claim is based on events outside Sudan, the evidence of the claimant having come to the attention of Sudanese intelligence is bound to be more difficult to establish. However it is clear that the Sudanese authorities place reliance upon information-gathering about the activities of members of the diaspora which includes covert surveillance. The nature and extent of the claimant’s activities, when and where, will inform the decision maker when he comes to decide whether it is likely those activities will attract the attention of the authorities, bearing in mind the likelihood that the authorities will have to distinguish amongst a potentially large group of individuals between those who merit being targeted and those that do not.
10. The decision maker must seek to build up as comprehensive a picture as possible of the claimant taking into account all relevant material including that which may not have been established even to the lower standard of proof.
11. Once a composite assessment of the evidence has been made, it will be for the decision maker to determine whether there is a real risk that the claimant will come to the attention of the authorities on return in such a way as amounts to more than the routine commonplace detention but meets the threshold of a real risk of serious harm.
12. Where a claimant has not been believed in all or part of his evidence, the decision maker will have to assess how this impacts on the requirement to establish that a Convention claim has been made out. He will not have the comprehensive, composite picture he would otherwise have had. There are likely to be shortfalls in the evidence that the decision maker is unable to speculate upon. The final analysis will remain the same: has the claimant established there is a real risk that he, the claimant, will come to the attention of the authorities on return in such a way as amounts to more than the routine commonplace detention and release but meets the threshold of serious harm

[2016] UKUT 188 (IAC)
Bailii
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.566420

RS (Immigration/Family Court Liaison: Outcome) India: UTIAC 26 Feb 2013

UTIAC (1) This case provides an example of the importance of co-operation and communication between the two jurisdictions, family and immigration, where two sets of parallel proceedings, closely dependent upon each other are ongoing.
(2) Following the Ruling of the Upper Tribunal in RS (immigration and family court proceedings) India [2012] UKUT 218 (IAC), the appellant’s Article 8 case against deportation fell to be determined in the light of the judgment of the family court regarding the best interests of the appellant’s child, H. The family court held that H’s best interests did not lie with her parents but by being placed in long-term foster care in the United Kingdom. The family court regarded it as acceptable for contact with H’s parents to be face-to-face annually (by H’s visiting them in India, at public expense) and monthly by means of Skype.
(3) Since those arrangements satisfied H’s best interests in the family proceedings, where those interests were the paramount concern, it followed that the Tribunal could be satisfied, when considering H’s best interests as a primary consideration in the deportation proceedings, that the appellant’s deportation did not interfere with H’s best interests.
(4) The arrangements identified by the family court as meeting H’s best interests provided for the likelihood of the appellant’s deportation. The family court took into account [53] of the Tribunal’s Ruling in [2012] UKUT 218.
(5) The appellant’s deportation was, accordingly, not unlawful on human rights grounds.

Blake J P, McFarlane LJ, Martin UTJ
[2013] UKUT 82 (IAC)
Bailii
England and Wales

Immigration, Family, Human Rights

Updated: 01 November 2021; Ref: scu.472146

Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department: SC 18 Jul 2012

The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as regards the granting of concessions outside the immigration rules and of their subsequent withdrawal amount to statements as to ‘the practice to be followed’ within the meaning of section 3(2) of the 1971 Act which she must, therefore, lay before Parliament.
Held: The appeals failed.
The Immigration Rules are made under the 1971 Act, and not by virtue of the Royal prerogative. Section 3(2) required the Sectretary of State to ‘lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed etc’, the purpose of which was to ensure a measure of control for Parliament. However, the Secretary of State retained a discretion as to the application of rules in particular circumstances. Where a policy gave only limited discretion, it risked becoming a rule, and subject directly to the Act. This policy however remained so flexible as to fall short of being a rule. It lawful

Lord Hope, Deputy President, Lord Walker, Lord Clarke, Lord Dyson, Lord Wilson
[2012] UKSC 32, UKSC 2011/0183, [2012] 1 WLR 2192, [2012] WLR(D) 213
Bailii, Bailii Summary, SC Summary, SC
Immigration Act 1971 1(4) 3(2)
England and Wales
Citing:
Cited – Director of Public Prosecutions v Bhagwan HL 1972
Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
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. . .
At first instance – Abbassi and Others, Regina (on The Application of) v Secretary of State for The Home Department Admn 12-Nov-2010
Each claimant sought judicial review of a decision of the respondent to refuse them leave to remain. They said that when deciding whether to grant leave, the defendant should have afforded the claimants the benefit of the Secretary of State’s seven . .
Disapproved – Regina v Secretary of State for the Home Department, Ex parte Rajinder Kaur CA 1987
The court considered a provision requiring refusal of leave to enter if there was no entry clearance.
Held: Such a mandatory rule was intra vires, the Secretary of State retaining a discretion outside the 1971 Act. Glidewell LJ said: . .
Appeal from – Secretary of State for The Home Department v Rahman CA 15-Jul-2011
Several claimants challenged the withdrawal by the respondent of the seven year child concession policy, under which families who did not have leave to be in this country, but with children who had been in this country for 7 years were, save in . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Ounejma 1989
. .

Cited by:
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Cited – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
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 – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .

Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional

Updated: 01 November 2021; Ref: scu.462946

Secretary of State for The Home Department v Pankina: CA 23 Jun 2010

Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for staying.
Held: The appeals succeeded. By 1969, immigration rules had by law shed the primary characteristic of policy – flexibility – and were required to have at least tacit parliamentary approval.
The Immigration Rules appear to have a unique constitutional status. Although described as policy they were given legal effect. They could not therefore incorporate elements from a document which had not itself been laid before parliament and which might further be amended without parliamentary scrutiny.
Sedley LJ said: ‘But the operation of the rules qua rules is one thing; what they contain as a matter of law is another. In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals’ status and entitlements which – coming back now to the questions in para 23 above – (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point of time, may be changed without fresh scrutiny. As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source.’

Sedley LJ, Rimer LJ, Sullivan LJ
[2010] 3 WLR 1526, [2010] EWCA Civ 719, [2010] WLR (D) 158, [2011] 1 All ER 1043, [2010] Imm AR 689, [2011] QB 376, [2010] ACD 93, [2010] INLR 529
Bailii, WLRD
England and Wales
Citing:
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 – British Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
Cited – Regina v Secretary of State for Social Security ex parte Sutherland Admn 7-Nov-1996
The Secretary of State has no power to issue regulations which would withhold benefits pending an appeal against their refusal. Laws J said: ‘where the executive has been allowed by the legislature to make law, it must abide strictly by the terms of . .
Cited – Proclamations, Case of KBD 1-Nov-1610
The King, as the executive government, sought to govern by making proclamations. In particular the court rejected the proposition that ‘the King by his proclamation may prohibit new buildings in and about London’
Held: The monarch had no power . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – The Zamora PC 1916
Lord Parker said: ‘The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. . .
Cited – Regina v Criminal Injuries Compensation Board Ex parte Lain QBD 1967
The Crown Prerogative origin of the power to make ex gratia payments does not exclude the scheme under which the payments are made from judicial review. Decisions of the Board may therefore be subject to judicial review.
Lord Parker CJ . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Regina v Secretary of State for Social Services, ex parte Camden London Borough Council CA 1987
A directory referred to in a statutory instrument setting a level of benefits had not itself been passed by Parliament.
Held: There was no legal flaw in a statutory instrument which fixed the amount of benefits by reference to a directory . .
Cited – Regina v Home Secretary, ex parte Hosenball CA 1977
A United States’ citizen was subject to a deportation decision which was held not amenable to judicial review on the ground of national security. He appealed.
Held: Neither a failure to lay rules before Parliament within the allotted time, nor . .

Cited by:
Cited – Ngouh, Regina (on The Application of) v Secretary of State for The Home Department Admn 27-Aug-2010
The claimant, a Cameroon national, sought to challenge the refusal of indefinite leave to remain. He had served in the British Army in Iraq, and lived here for over ten years. However when serving he had been convicted of a minor sexual assault in . .
Explained – English UK Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 9-Jul-2010
Foskett J interpreted Pankina: ‘The Court of Appeal held that the revised criterion could not be put in place by virtue of a process of issuing guidance. The ratio of the decision appears to me to be that a provision that reflects a substantive . .
Cited – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 7-Apr-2011
The respondent had suspended and revoked the licence of the claimant company to enrol non-EEA students on its courses. . .
Cited – Joint Council for The Welfare of Immigrants, Regina (on The Application of) v Secretary of State for The Home Department Admn 17-Dec-2010
The claimants challenged the imposition by the defendant of interim limits on (1) the number of applicants for entry clearance who may be issued with visas under Tier 1 (General) of the Points based system (PBS); and (2) the number of certificates . .
Distinguished – Alvi, Regina (on The Application of) v Secretary of State for The Home Department Admn 25-Oct-2010
The claimant, a 32 year old Pakistani national, had been refused leave to remain as a Tier 2 (General) Migrant worker. He had worked as a physiotherapy assistant, and said that this should have entitled him to 50 points under the assessment system. . .
Confirmed – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department CA 9-Jun-2011
The claimant appealed against the refusal of the Secretary of State to grant him leave to remain to a non-EEA economic migrant. The claimant had entered as a student and stayed working as a physiotherapy assistant. He said that on the change of . .
Cited – FA and AA (PBS Effect of Pankina) Nigeria UTIAC 25-Aug-2010
UTIAC The effect of the decision of the Court of Appeal in Pankina is not limited to the ‘three-month rule’ in relation to evidence of funds. Policy Guidance does not have the status of Immigration Rules for the . .
Cited – MM and SA (Pankina:Near Miss) Pakistan UTIAC 26-Jan-2011
UTIAC Judicial decision-makers should be careful to identify and reject arguments based on an alleged near-miss, which, on proper analysis, are an attempt to import extraneous qualifications into the immigration . .
Cited – Aleem (Pankina-Uplift for Overseas Earnings) Sri Lanka UTIAC 28-Mar-2011
UTIAC The requirement by the respondent that an applicant for leave to remain as a Tier 1 (General) Migrant, whose last leave was as a Tier 4 (General) Student), must have physically undertaken work in an . .
Explained – Ahmed, Regina (on The Application of) v Secretary of State for The Home Department Admn 2-Nov-2011
The governing principle laid down by Pankina as understood and applied in subsequent cases was that a substantive or material change to the content of the Immigration Rules must be made by way of amending rules which must be laid before Parliament, . .
Cited – New London College Ltd, Regina (on the application of) v Secretary of State for the Home Department CA 2-Feb-2012
The court was asked whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non-EEA students lacked the necessary legislative authority . .
Cited – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Immigration, Human Rights

Updated: 01 November 2021; Ref: scu.417713

Secretary of State for The Home Department v AP (No. 2): SC 23 Jun 2010

The claimant had object to a Control order made against him and against a decision that he be deported. He had been protected by an anonymity order, but the Court now considered whether it should be continued.
Held: AP had already by the control order been made to live in a town where he had no family and few acquaintances, and where there was racist activity. To be identified as a terrorist subject would carry significant risks. No submission had been made that any special circumstances existed to suggest a public interest in his identification, and ‘the Court . . concluded that, in this particular case, the public interest, in publishing a full report of the proceedings and judgment which identifies AP, has to give way to the need to protect AP from the risk of violence. Similarly, in this particular case, that public interest would not justify curtailing AP’s right to respect for his private and family life. ‘

Lord Phillips, President, Lord Saville, Lord Rodger, Lord Walker, Lord Brown, Lord Clarke, Sir John Dyson SCJ
[2010] UKSC 26, [2010] WLR (D) 154, [2010] 1 WLR 1652
Bailii, WLRD, SC Summary, SC
England and Wales
Citing:
Cited – Regina v Westminster City Council, Ex parte P 1998
Sir Christopher Staughton warned that ‘when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant.’ . .
See Also – Secretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
See Also – AP v Secretary Of State for the Home Department CA 15-Jul-2009
. .
Cited – Campbell v Mirror Group Newspapers Ltd (MGN) (No 1) HL 6-May-2004
The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – Times Newspapers Ltd v Secretary of State for the Home Department and AY Admn 17-Oct-2008
The newspaper applied to challenge the protection of the identity of the defendant subject to a control order under the 2005 Act. It said that there was no basis for the making of the order without first considering the Human Rights need for open . .

Cited by:
Cited – AMM v HXW QBD 7-Oct-2010
amm_hxwQBD10
The claimant had sought and been granted an injunction to prevent the defendant publicising matters which had passed between them and which were he said private.
Held: The jurisdiction to grant such injunctions was now established. Publication . .
Cited – Independent Police Complaints Commission v Warner and Others QBD 17-Feb-2012
ipcc_warnerQBD2012
The applicant had mistakenly disclosed confidential personal information in answer to a data request. It sought an injunction restricting its redistribution after the recipient refused to return it and threatened to pass it on. The defendant said . .

Lists of cited by and citing cases may be incomplete.

Immigration, Media

Updated: 01 November 2021; Ref: scu.417706

The Secretary of State for the Home Department v Limbuela, Tesema, Adam: CA 21 May 2004

The appellant brought in policies which denied to asylum claimants who had failed to declare their status immediately upon entry, any shelter or support or the right to work. They were to be left to starve on the streets if they so wished. He appealed a finding that his behaviour amounted to the equivalent of torture or inhuman or degrading treatment.
Held: The effect of the rules was that claimants would generally be humiliated and their lives put at risk. There was no evidence of any available alternative system of charitable support, and indeed the charities said they would be quite unable to cope. The test was not whether any individual would be or had been degraded, but whether a substantial proportion of claimants would suffer those consequences. The appellant had no policy save for heavily pregnant women. The system was calculated to inflict such intense physical or mental suffering or humiliation as to break moral or physical resistance.

Laws, Jacob, Carnwath LJJ
[2004] QB 1440, [2004] EWCA Civ 540, Times 26-May-2004, [2004] 3 WLR 561
Bailii
European Convention on Human Rights 3, Immigration and Asylum Support Act 1999 95, Nationality, Immigration and Asylum Act 2002 55(5)
England and Wales
Citing:
Appeal from – Regina (Limbuela) v Secretary of State for the Home Department QBD 4-Feb-2004
The claimant had sought asylum on the day after arrival, and had therefore been refused any assistance beyond the provision of a list of charities who might assist. His lawyers were unable to secure either shelter or maintenance, and he had been . .

Cited by:
Cited – Regina (Gazer) v Secretary of State for the Home Department CA 17-Dec-2004
The applicant, an asylum seeker had been placed in the dispersal programme. He complained that where he was sent he would be likely to be subject to harm from the local population. He said this should have been considered by the respondent. He had . .
Appeal from – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .

Lists of cited by and citing cases may be incomplete.

Immigration, Benefits, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.197770

Chau Le (Immigration Rules – De Minimis Principle) Vietnam: UTIAC 8 Apr 2016

UTIAC The de minimis principle is not engaged in the construction or application of the Immigration Rules. Properly analysed, it is a mere surrogate for the discredited ‘near miss’ or ‘sliding scale’ principle.

McLoskey J P
[2016] UKUT 186 (IAC)
Bailii
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.564171

Secretary of State for Home Department v MN and KY: SC 6 Mar 2014

The court was asked as to the use of linguistic analysis (provided by SPRAKAB) as evidence in immigration cases so as to identify the origin of an appellant.
Held: The Practice Directions already provided guidance on the use and admission of expert evidence. As new forms of evidence came along, new guidance would become required. However, SPRAKAB experts gave their evidence under conditions of anonymity as against the parties. The Court suggested amendments to the Guidance given by the Upper Tribunal, saying that it should emphasise the duty of the court in each case itself to examine the evidence and its reasoning critically. Secondly, the issue of anonimity should be assessed from case to case in the light of the particular evidence and submissions made.

Lord Neuberger, President, Lord Clarke, Lord Carnwath, Lord Hughes, Lord Hodge
[2014] UKSC 30, [2014] 1 WLR 2064, [2014] 4 All ER 443, [2014] WLR(D) 227, 2014 GWD 17-325, [2014] INLR 590, 2014 SLT 669, 2014 SC (UKSC) 183, UKSC 2013/0202
Bailii, Bailii Summary, WLRD, SC, SC Summary
Scotland
Citing:
At UTIAC – RB (Linguistic Evidence SPRAKAB) Somalia UTIAC 15-Sep-2010
1 Linguistic analysis reports from Sprakab are entitled to considerable weight. That conclusion derives from the data available to Sprakab and the process it uses. They should not be treated as infallible but evidence opposing them will need to deal . .
Appeal from – RB (Somalia) v Secretary of State for The Home Department CA 13-Mar-2012
The appellant claimed asylum on the basis that she was a member of the Bajuni minority clan from Koyama, an island in Somalia. If that was true, she risked persecution from the majority clan. She appealed against an adverse finding based in part on . .

Lists of cited by and citing cases may be incomplete.

Immigration, Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.526195

BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another: HL 30 Apr 2008

The House considered whether the Secretary of State for Health acted lawfully in issuing guidance as to the employment of foreign doctors to employing bodies within the National Health Service in April 2006.
Held: The secretary of state’s appeal failed. The fact that the guidance differentiated between NHS service and private medical care indicated that this was a matter of policy, not of employment law. As such, the guidance could only have been introduced under the 1971 Act. The guidance was unlawful. (Lord Scott dissenting)

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance
[2008] UKHL 27, Times 01-May-2008, [2008] 2 WLR 1073, [2008] LS Law Medical 265, [2008] 1 AC 1003, [2009] 1 All ER 93, [2008] ICR 659
Bailii, HL
Immigration Act 1971
England and Wales
Citing:
At First Instance – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another QBD 9-Feb-2007
The claimants said that changes to the Highy Skilled Migrant Programme were unfairly introduced, that they had effectively barred non-EU doctors from applying for first tier doctor appointments, and that the guidance could properly be derived only . .
Appeal from – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 9-Nov-2007
The action group appealed against refusal of a judicial review of guidelines as to the employment of non-EU doctors, saying that they were in effect immigration rules and issuable only under the 1971 Act. The court had said that since the guidance . .
Cited – Town Investments Ltd v Department of the Environment HL 2-Mar-1977
The House considered the application of Orders made under the Counter-Inflation Acts 1972 and 1973 to premises let initially to the Minister of Works and then to the Secretary of State for the Environment for occupation by civil servants. Each of . .
Approved – Mapere, Regina (on the Application of) v Secretary of State for the Home Department Admn 3-Jul-2000
To establish a legitimate expectation, the assurances relied on should be assurances that have been given by the decision-maker: ‘it would be wrong in principle for courts to rule that a decision-maker’s discretion should be limited by an assurance . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – S and others v Secretary of State for the Home Department CA 4-Aug-2006
The asylum applicants had complained that the appellant’s discretionary leave policy for the grant of temporary admissions was unlawful. As failed asylum seekers, they had been held on temporary admission rather than being granted discretionary . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Immigration

Updated: 01 November 2021; Ref: scu.267372

Bagdanavicius and Another, Regina (on the Application of) v: HL 26 May 2005

The claimants said they had been subjected to harassment and violence from non-state agents in their home country of Lithuania, and sought asylum.
Held: It was for the person claiming the protection of the Convention provisions for ill-treatment to show that the country would not provide them with adequate protection against non-state agents. It was implicit in the provisions that there might remain a real risk of harm through the state provided a reasonable level of protection. All that was said in Soering was that the court was not to be asked to decide whether a state not before the court would be in breach of article three. It was for the person seeking to avoid being expelled, to show substantial grounds for believing that he would face a real risk of being subject to treatment contrary to article 3. In any event though the appeal was dismissed, Lithuania having beocme part of the EU, the appellants had freedom of movement within the EU, and had now found work.
Lord Brown of Eaton-under-Heywood observed that it has long been established that article 3 of the Convention imposes an obligation on the part of a contracting state not to expel someone from its territory where substantial grounds are shown for believing that he will face in the receiving country a real risk of being subjected to treatment contrary to that article. He cited Soering v United Kingdom (1989) 11 EHRR 439 as the initial authority for the principle that the act of expulsion in such a circumstance constitutes the proscribed ill-treatment. The expulsion itself breaches article 3 if such risk in the receiving country emanates either from acts of the public authorities of that state or from persons or groups of persons who are not public officials. In the latter circumstance, it is not sufficient to show that there is a real risk of suffering serious harm at the hands of non-state agents.
He deprecated a failure in such cases to distinguish between the risk of serious harm on the one hand and the risk of treatment contrary to article 3 on the other: ‘In cases where the risk ’emanates from intentionally inflicted acts of the public authorities in the receiving country’ (the language of D v United Kingdom (1997) 24 EHRR 423, 447, para 49) one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the proscribed treatment. Where, however, the risk emanates from non-state bodies, that is not so: any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection . . Non-state agents do not subject people to torture or to the other proscribed forms of ill-treatment, however violently they treat them: what, however, would transform such violent treatment into article 3 ill-treatment would be the state’s failure to provide reasonable protection against it.’

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2005] UKHL 38, Times 30-May-2005, [2005] 2 WLR 1359, [2005] INLR 422, [2005] 2 AC 668, [2005] HRLR 24, [2005] Imm AR 430, [2005] UKHRR 907, [2005] 4 All ER 263
Bailii, House of Lords
European Convention on Human Rights 3, Nationality Immigration and Asylum Act 2002
England and Wales
Citing:
Appeal from – Regina on the Application of Ruslanas Bagdanavicius, Renata Bagdanaviciene v Secretary of State for the Home Department CA 11-Nov-2003
Failed Roma asylum applicants challenged an order for their return to Lithuania. There had been family objections to the mixed marriage leaving them at risk of violence from the local mafia, and an order for their return would infringe their article . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Cruz Varas And Others v Sweden ECHR 20-Mar-1991
Hudoc No violation of Art. 3; No violation of Art. 8; No violation of Art. 25-1 ‘Although the present case concerns expulsion as opposed to a decision to extradite, the Court considers that the above [Soering] . .
Cited – Tomic v United Kingdom ECHR 14-Oct-2003
The applicant sought to resist his expulsion from the UK.
Held: ‘The Court does not exclude that an issue might exceptionally be raised under Article 6 by an expulsion decision in circumstances where the person being expelled has suffered or . .
Cited – Vilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
Cited – HLR v France ECHR 29-Apr-1997
‘Owing to the absolute character of the right guaranteed, the court does not rule out the possibility that article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, . .
Cited – Ahmed v Austria ECHR 17-Dec-1996
ECHR Judgment (Merits and just satisfaction) Lack of jurisdiction (new complaint); Violation of Art. 3; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and . .
Cited – D v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
Cited – Svazas v The Secretary of State for the Home Department CA 31-Jan-2002
The two applicants appealed refusal of their applications for asylum. They had been former members of the communist party in Lithuania. Both had experienced persecution. The IAT had found that the constitution guaranteed them protection. Though they . .
Cited – McPherson v Secretary of State for the Home Department CA 19-Dec-2001
The appellant had entered the UK as a visitor on regular occasions and latterly had used false passport. She was then convicted of supplying Class A drugs, and ordered to be deported. She had children who also were in the UK, and did not wish to be . .
At First instance – Bagdanavicius, Bagdanaviciene v the Secretary of State for Home Department Admn 16-Apr-2003
The applicants sought asylum, saying they had been subjected to repeated ill-treatment by Lithuanian Mafiosi. The claims were rejected as clearly unfounded, denying any right to an appeal.
Held: The court could examine the basis upon which the . .

Cited by:
Cited – Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.225292

Hottak and Another, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs and Another: CA 9 May 2016

Appeal against refusal of judicial review of decision not to provide protection of Afghan nationals who had assisted armed forces as transalators. A declaration had been granted but the decision had not been quashed.
Held: The appeal failed. The Divisional Court’s decision to do no more than grant declaratory relief was an exercise of the court’s discretion which could not be faulted. Section 39(2) of the 2010 Act could not be extended in its ambit to cover the employment of the claimants.

Arden, David Richards LJJ, Sir Colin Rimer
[2016] EWCA Civ 438, [2016] WLR(D) 243
Bailii, WLRD
Equality Act 2010 39(2)
England and Wales
Citing:
Appeal from – Hottak and Another, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs and Another Admn 8-Jul-2015
‘The claimants are both Afghan nationals who served as interpreters with the British Forces in Afghanistan. There are two policies in place to provide protection and benefits to Afghan nationals who worked for the British Government in Afghanistan. . .

Lists of cited by and citing cases may be incomplete.

Immigration, Armed Forces, Discrimination

Updated: 01 November 2021; Ref: scu.563251

ZM and SK, Regina (on The Application of) v The London Borough of Croydon (Dental Age Assessment): UTIAC 11 Nov 2016

Great care before taking dental age assessment

UTIAC Considerable circumspection must always be deployed in responding to a claim that statistical evidence tends to prove a fact about an individual. Statistics may be more useful to decision-makers at the far ends of the scale (where they may be able to show the plausibility or implausibility of a proposition) than in the middle of the scale where they purport to show the likelihood of the correctness of a plausible proposition.
When considering statistical evidence it is always necessary to determine whether the population constituting the database from which the statistics are drawn is sufficiently identical to the population from which the individual is drawn.
The fact that all teeth are mature in the sense that all have reached Demirjian stage H is a sign of chronological maturity but is not a reliable indicator of whether an individual is more or less than 18 years old. The use of the Demirjian stages below stage H does appear to be more reliable in the prediction of age, particularly in the lower teens.
None of the three mandibular maturity markers so far identified appears yet to have attained such acceptance in the scientific community that it can be accepted as a reliable pointer to chronological age in the late teens in males.
Dental wear is not a guide to chronological age in the absence of data for a population with similar diet and masticatory habits to those of the person under examination.
The decision of the Court of Appeal in London Borough of Croydon v Y should not be read as prohibiting a person from refusing to undergo a dental examination. However, (i) the risk inherent in the exposure to x-rays during the taking of the dental panoramic tomograph is not likely to be a reasonable ground for refusing to allow the tomograph to be made, given the advantages stemming from ascertainment of an individual’s true age, and (ii) despite the reservations expressed herein, analysis of a person’s dental maturity may well have something to add to the process of assessing chronological age.
It therefore follows that generally speaking the taking of a dental tomograph should be ordered if a party seeks it, and (because of the process of dental maturity) the earlier the tomograph is taken, the more likely it is to be of assistance.

[2016] UKUT 559 (IAC)
Bailii
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.573726

Minh Khoa Vo: ECJ 10 Apr 2012

ECJ (French Text) Area of f?freedom, security and justice – Regulation (EC) No 810/2009 – Community Code on Visas – Articles 21 and 34 – National legislation – Introduction of illegal third country nationals in the territory of a Member State – fraudulently obtained visas – Criminal penalty the ferryman

JN Cunha Rodrigues R P
[2012] EUECJ C-83/12 – PPU, C-83/12
Bailii
e – Regulation (EC) No 810/2 21 34
European
Citing:
See Also – Minh Khoa Vo ECJ 26-Mar-2012
ECJ Urgent preliminary ruling procedure – Articles 21 and 34 of the Visa Code – Criminal liability of a smuggler helping illegal immigration of third country nationals who have visas fraudulently obtained but not . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 01 November 2021; Ref: scu.452643

Bensaid v The United Kingdom: ECHR 6 Feb 2001

The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed that his article 3 and 8 rights would be infringed if he were removed to Algeria. His claim focused both on the medical treatment in the UK of which he would be deprived and the lack of such treatment in Algeria.
Held: His case under article 3 was not made out: the risk that the applicant would suffer a deterioration in his condition if he were returned to Algeria was ‘speculative’. ‘Private life is a broad term not susceptible to exhaustive definition . . Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.’

44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, [2001] INLR 325, 11 BHRC 297
Bailii
European Convention on Human Rights 3 8
Human Rights
Citing:
Appeal from – Regina and H M Immigration Officer v Bensaid CA 17-Jul-1998
Renewed application for leave to seek judicial review of the Chief Immigration Officer’s decision of 24 March 1997 to refuse the applicant leave to enter the United Kingdom . .
See Also – Regina v H M Immigration Officer ex parte Bensaid CA 21-Jul-1997
Application for leave to seek judicial review of the Chief Immigration Officer’s decision of 24 March 1997 to refuse the applicant leave to enter the United Kingdom. . .

Cited by:
Cited – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .
Cited – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – N v the Secretary of State for the Home Department CA 16-Oct-2003
The applicant entered the UK illegally. She was unwell and was given treatment. She resisted removal on the grounds that the treatment available to her would be of such a quality as to leave her life threatened.
Held: D -v- UK should be . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – X, A Woman Formerly Known As Mary Bell v Stephen O’Brien, News Group Newspapers Ltd MGN Ltd QBD 21-May-2003
An injunction effective against the world, was granted to restrain any act to identify the claimant in the media, including the Internet. She had been convicted of murder when a child, and had since had a child herself. An order had been granted . .
Cited – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – A Local Authority v W L W T and R; In re W (Children) (Identification: Restrictions on Publication) FD 14-Jul-2005
An application was made by a local authority to restrict publication of the name of a defendant in criminal proceedings in order to protect children in their care. The mother was accused of having assaulted the second respondent by knowingly . .
Cited – British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y FD 24-Nov-2005
Application was made by the claimant for orders discharging an order made in 1991 to protect the identity of children and social workers embroiled in allegations of satanic sex abuse. The defendant opposed disclosure of the names of two social . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – IM (Medical Facilities, Bensaid) Kosovo IAT 17-Jul-2002
. .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – N, Regina (on the Application of) v Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust CA 24-Jul-2009
The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
Held: The right or freedom . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – In re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Cited – TN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health, Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.166023

Ogundimu (Article 8 – New Rules) Nigeria: UTIAC 8 Feb 2013

UTIAC 1 The expectation is that it will be an exceptional case in which permission to appeal to the Upper Tribunal should be granted where the lodging of the application for permission is more than 28 days out of time. Where, in such a case, a judge is minded to grant permission, the preferable course is to provide an opportunity to the respondent to make representations. This might be achieved by listing the permission application for oral hearing.
2 The introduction of the new Immigration Rules (HC 194) does not affect the circumstance that when considering Article 8 of the Human Rights Convention ‘for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country very serious reasons are required to justify expulsion.’ The principles derived from Maslov v Austria [2008] ECHR 546 are still be applied.
3 Paragraph 399(a) of the Immigration Rules conflicts with the Secretary of State’s duties under Article 3 of the UN Convention on the Rights of the Child 1989 and section 55 of the Borders, Citizenship and Immigration Act 2009. Little weight should be attached to this Rule when consideration is being given to the assessment of proportionality under Article 8 of the Human Rights Convention.
4 The natural and ordinary meaning of the word ‘ties’ in paragraph 399A of the Immigration Rules imports a concept involving something more than merely remote or abstract links to the country of proposed deportation or removal. It involves there being a connection to life in that country. Consideration of whether a person has ‘no ties’ to such a country must involve a rounded assessment of all of the relevant circumstances and is not to be limited to ‘social, cultural and family’ circumstances.

Blake J P, O’Connor UTJ
[2013] UKUT 60 (IAC)
Bailii
Borders, Citizenship and Immigration Act 2009 55, UN Convention on the Rights of the Child 1989 2, Immigration Rules 399(a), European Convention on Human Rights 8
England and Wales
Citing:
Cited – Maslov v Austria ECHR 23-Jun-2008
(Grand Chamber) The applicant came lawfully to Austria when 6. He committed a large number of offences when he was 14 and 15, and had been sentenced to imprisonment. He complained of a later decision to deport him.
Held: The court said: ‘ The . .
Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Children

Updated: 01 November 2021; Ref: scu.470863

Regina v Sectretary of State for the Home Department ex parte Razgar etc: HL 17 Jun 2004

The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was manifestly unfounded.
Held: Mental health was part of the respect for private life protected by article 8. Where it was forseeable that a claimant’s health would be damaged by a removal, then article 8 could be engaged. Henao’s case had not been argued under article 8. Decisions made within the procedures would only rarely be non-compliant with Human Rights law, and exceptions could only be identified individually. Here, the Home Secretary’s could not properly certify that the claim was manifestly unfounded.

Lord Bingham of Cornhill, Lord Steyn, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
[2004] UKHL 27, [2004] 3 WLR 58, Times 21-Jun-2004, [2004] 2 AC 369, [2004] 3 All ER 821, [2004] INLR 349
House of Lords, Bailii
European Convention on Human Rights 8, Immigration and Asylum Act 1999 72(2)(a)
England and Wales
Citing:
Appeal from – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
First Instance – Razgar, Regina (on the Application of) v Secretary of State for the Home Department Admn 2002
The claimant challenged the respondent’s certificate that his appeal was manifestly unfounded.
Held: The certificate was wrongly given. . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Incorporated – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Regina v The Immigration Appeal Tribunal and Another ex parte Rajendrakumar CA 11-Oct-1995
The three Tamil applicants had left the area of Sri Lanka controlled by the Tamil Tigers and gone to live in Colombo. It was asserted that in Colombo they had a well-founded fear of persecution because they were young male Tamils and were therefore . .
Cited – Henao v Netherlands ECHR 24-Jun-2003
The applicant was a national of Colombia. While serving a prison sentence in Holland for a drugs offence he was diagnosed HIV-positive. He sought to resist expulsion to Columbia on Article 3 grounds.
Held: ‘ . . the Court considers that, . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – D v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
Cited – Costello-Roberts v The United Kingdom ECHR 25-Mar-1993
‘Slippering’, a punishment by hitting a child with a slipper, when used as part of school discipline was not a degrading punishment under the convention. Conduct must attain a minimum level of severity to engage the operation of the Convention. . .
Cited – N v the Secretary of State for the Home Department CA 16-Oct-2003
The applicant entered the UK illegally. She was unwell and was given treatment. She resisted removal on the grounds that the treatment available to her would be of such a quality as to leave her life threatened.
Held: D -v- UK should be . .
Cited – Devaseelan v Secretary of State for the Home Department IAT 2003
The tribunal asked as to the relevance of the possible mistreatment of the applicant if returned to his home country: ‘The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case – where the right . .
Cited – Kacaj v Secretary of State for the Home Department Admn 2001
The relevant test of whether an order returning an asylum applicant to another country would infringe his human rights was whether there were substantial grounds for believing that the petitioner faced a real risk of relevant ill treatment if . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .

Cited by:
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Atkinson v Secretary of State for the Home Department CA 5-Jul-2004
The applicant sought judicial review of the respondent’s certification under s94 that his cliam for asylum was hopeless. He said that he had acted as an informer against criminal gangs in Jamaica, and that the state of Jamacia could not provide him . .
Cited – Government of the United States of America v Barnette and Montgomery (No 2) HL 22-Jul-2004
The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the . .
Cited – Regina (G) v Secretary of State for the Home Department CA 13-Apr-2005
The claimant had first sought asylum saying she was born in 1984. On being refused, she said she was born in 1988 and was only 15 years old, and that her removal and return to Somalia would breach the regulation, and interfere with her right to . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – Bermingham and others v The Director of the Serious Fraud Office QBD 21-Feb-2006
Prosecution to protect defendant not available
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . .
Cited – Regina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – Rainford, Regina (on the Application of) v Secretary of State for the Home Department Admn 17-Oct-2008
The claimant had been in England since he was 11, and was now 38. He had been repeatedly convicted. He had challenged a deportation notice on a human rights basis. He now challenged a certificate that this claim was manifestly ill founded.
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and Another QBD 29-Oct-2008
The applicant suffered mutiple sclerosis and considered that she might wish to go abroad to end her life. She asked the court to make more clear the guidance provided by the Director as to whether her partner might be prosecuted under section 2(1) . .
Cited – RG (Suicide, Risk, Razgar Considered) Sri Lanka IAT 23-Mar-2005
. .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and Another Admn 29-Oct-2008
The applicant said that the defendant had unlawfully failed to provide detailed guidance under section 10 of the 1985 Act, on the circumstances under which a prosecution might lie of a person performing acts which might assist another to commit . .
Cited – ZT (Kosovo) v Secretary of State for the Home Department HL 4-Feb-2009
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
Cited – N, Regina (on the Application of) v Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust CA 24-Jul-2009
The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
Held: The right or freedom . .
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – Zoumbas v Secretary of State for The Home Department SC 27-Nov-2013
The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .
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 – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.198185

MST and Others (National Service – Risk Categories) Eritrea (CG): UTIAC 7 Oct 2016

Eritrea – Country Guidance

UIAC Country guidance
1. Although reconfirming parts of the country guidance given in MA (Draft evaders – illegal departures – risk) Eritrea CG [2007] UKAIT 00059 and MO (illegal exit – risk on return) Eritrea CG [2011] UKUT 190 (IAC), this case replaces that with the following:
2. The Eritrean system of military/national service remains indefinite and since 2012 has expanded to include a people’s militia programme, which although not part of national service, constitutes military service.
3. The age limits for national service are likely to remain the same as stated in MO, namely 54 for men and 47 for women except that for children the limit is now likely to be 5 save for adolescents in the context of family reunification. For peoples’ militia the age limits are likely to be 60 for women and 70 for men.
4. The categories of lawful exit have not significantly changed since MO and are likely to be as follows:
(i) Men aged over 54
(ii) Women aged over 47
(iii) Children aged under five (with some scope for adolescents in family reunification cases
(iv) People exempt from national service on medical grounds
(v) People travelling abroad for medical treatment
(vi) People travelling abroad for studies or for a conference
(vii) Business and sportsmen
(viii) Former freedom fighters (Tegadelti) and their family members
(ix) Authority representatives in leading positions and their family members
5. It continues to be the case (as in MO) that most Eritreans who have left Eritrea since 1991 have done so illegally. However, since there are viable, albeit still limited, categories of lawful exit especially for those of draft age for national service, the position remains as it was in MO, namely that a person whose asylum claim has not been found credible cannot be assumed to have left illegally. The position also remains nonetheless (as in MO) that if such a person is found to have left Eritrea on or after August/September 2008, it may be that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of adverse credibility findings. For these purposes a lengthy period performing national service is likely to enhance a person’s skill profile.
6. It remains the case (as in MO) that failed asylum seekers as such are not at risk of persecution or serious harm on return.
7. Notwithstanding that the round-ups (giffas) of suspected evaders/deserters, the ‘shoot to kill’ policy and the targeting of relatives of evaders and deserters are now significantly less likely occurrences, it remains the case, subject to three limited exceptions set out in (iii) below, that if a person of or approaching draft age will be perceived on return as a draft evader or deserter, he or she will face a real risk of persecution, serious harm or ill-treatment contrary to Article 3 or 4 of the ECHR.
(i) A person who is likely to be perceived as a deserter/evader will not be able to avoid exposure to such real risk merely by showing they have paid (or are willing to pay) the diaspora tax and/have signed (or are willing to sign) the letter of regret.
(ii) Even if such a person may avoid punishment in the form of detention and ill-treatment it is likely that he or she will be assigned to perform (further) national service, which, is likely to amount to treatment contrary to Articles 3 and 4 of the ECHR unless he or she falls within one or more of the three limited exceptions set out immediately below in (iii).
(iii) It remains the case (as in MO) that there are persons likely not to face a real risk of persecution or serious harm notwithstanding that they will be perceived on return as draft evaders and deserters, namely: (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case specific analysis is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the War of Independence.
8. Notwithstanding that many Eritreans are effectively reservists having been discharged/released from national service and unlikely to face recall, it remains unlikely that they will have received or be able to receive official confirmation of completion of national service. Thus it remains the case, as in MO that ‘(iv) The general position adopted in MA, that a person of or approaching draft and not medically unfit who is accepted as having left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, is reconfirmed, subject to limited exceptions…’
9. A person liable to perform service in the people’s militia and who is assessed to have left Eritrea illegally, is not likely on return to face a real risk of persecution or serious harm.
10. Accordingly, a person whose asylum claim has not been found credible, but who is able to satisfy a decision-maker (i) that he or she left illegally, and (ii) that he or she is of or approaching draft age, is likely to be perceived on return as a draft evader or deserter from national service and as a result face a real risk of persecution or serious harm.
11. While likely to be a rare case, it is possible that a person who has exited lawfully may on forcible return face having to resume or commence national service. In such a case there is a real risk of persecution or serious harm by virtue of such service constituting forced labour contrary to Article 4(2) and Article 3 of the ECHR.
12. Where it is specified above that there is a real risk of persecution in the context of performance of military/national service, it is highly likely that it will be persecution for a Convention reason based on imputed political opinion.

[2016] UKUT 443 (IAC)
Bailii
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.570469

Okondu and Another, Regina (on The Application of) v Secretary of State for The Home Department (Wasted Costs; SRA Referrals; Hamid) IJR: UTIAC 20 Aug 2014

okonduUTIAC1408

UTIAC (1) Section 29 of the Tribunals, Courts and Enforcement Act 2007 confers on the Upper Tribunal a discretionary power to order a legal or other representative to pay ‘wasted costs’ incurred by the other party. ‘Wasted costs’ are defined in section 29(5) as costs incurred by a party: ‘(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or (b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.’ The words: ‘improper, unreasonable or negligent act or omission’ are explained in Ridehalgh v Horsefield [1994] EWCA Civ 40. Rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is also relevant. It provides (inter alia) that the Upper Tribunal may not make an order in respect of costs except in judicial review proceedings, under section 29(4) of the TCEA and ‘if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings’. The wasted costs jurisdiction applies to all parties. It can arise in the case of a winning party whose conduct, on the way to success, has fallen below the requisite standard and caused wasted costs to be incurred by the losing party.
(2) The overriding duty of all representatives is to the court or the Tribunal. It is improper for any practitioner to advance arguments which they know to be false or which they know, or should know, are inconsistent with their own evidence, including medical or other expert evidence. It is also incumbent upon practitioners to ensure that the Tribunal is provided with a fair and comprehensive account of all relevant facts, whether those facts are in favour or against the legal representative’s client. It will also not be acceptable to say that as of the date of the service of the application the representative was not in possession of all relevant facts because of time constraints. Time pressures might mean that applications that are less than perfect or comprehensive or complete might in actual fact reflect the very best that can be done in urgent circumstances. However, this does not excuse a failure, following service of the application, to complete the fact finding and verification exercise, and then seek to amend the application accordingly so as to ensure that the Tribunal is fully informed of the relevant facts and matters.
(3) The attention of representatives is drawn to the judgment of the High Court (Divisional Court) in R (on the application of Hamid) v SSHD [2012] EWHC 3070 (Admin), the importance of which is underscored. Given the assumption by the Upper Tribunal of much of the jurisdiction of the High Court for dealing with judicial reviews in the field of immigration, the Tribunal will, as it has in this case, adopt a similar procedure in those circumstances where it considers it appropriate to do so.
(4) The Upper Tribunal recognises that applicants with weak cases are entitled to seek to advance their case and have it adjudicated upon; that is a fundamental aspect of having a right of access to a court. But there is a wealth of difference between the advancing of a case that is held to be unarguable in a fair, professional and proper manner and the advancing of unarguable cases in a professionally improper manner.

Green J, Gill UTJ
[2014] UKUT 377 (IAC)
Bailii
England and Wales

Immigration, Legal Professions

Updated: 01 November 2021; Ref: scu.536463

Nimako-Boateng (Residence Orders – Anton Considered) Ghana: UTIAC 4 Jul 2012

UTIAC A residence order or prohibited steps order made by a judge of the family court under s.8 of the Children Act 1998 do not bind the Secretary of State for the Home Department.
The decisions of family courts in respect of the welfare and best interest of children are important sources of information for judges considering immigration appeals. If an appellant wishes to advance a case that the child’s welfare will be jeopardised by removal because it would break up existing patterns of contact with another parent or relative, one would expect to see clear and reliable evidence submitted to that effect. See RS (immigration and family court proceedings) India [2012] UKUT 00218(IAC).

McFarlane LJ
[2012] UKUT 216 (IAC)
Bailii
England and Wales

Immigration, Family

Updated: 01 November 2021; Ref: scu.461940

AM (Evidence – Route of Return) Somalia: UTIAC 11 Feb 2011

UTIAC (i) In HH (Somalia) v Secretary of State [2010] EWCA Civ 426 at para 84 the Court of Appeal when referring to the Claimant raising a cogent argument that there might not be a safe route of return was not setting down a threshold requirement for cogent evidence before it was open to the Tribunal to consider the issue but making the point that the issue need only be considered if there was a proper evidential basis for doing so.
(ii) In the light of the comprehensive rejection of the appellant’s credibility, the issue of the safety of returning from Mogadishu to Afgoye had to be assessed in the light of the general background evidence on this issue: MA (Somalia) v Secretary of State [2010] UKSC 49 applied.
(iii) The general evidence before the Upper Tribunal failed to establish that generalised or indiscriminate violence was at such a high level along this route that the appellant would face a real risk to his life or person entitling him to a grant of humanitarian protection.

Lord Bannatyne, Latter SIJ
[2011] UKUT 54 (IAC)
Bailii
England and Wales
Citing:
Cited – HH (Somalia) and Others v Secretary of State for The Home Department CA 23-Apr-2010
There is no right of appeal against directions of a ‘technical’ nature in relation to the removal, such as the specifying of a particular ship or aircraft and other detailed ‘mechanics’ of return or ‘technical’ matters . .
Cited – MA (Somalia) v Secretary of State for The Home Department SC 24-Nov-2010
The asylum applicant had been found to have lied to exaggerate the risk of persecution if he was returned to Somalia. The Court was now asked as to the relevance of that finding, and as to the legitimacy of an appeal court interfering with the . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 01 November 2021; Ref: scu.428698

FH (Bangladesh) v Secretary of State for the Home Department: CA 13 May 2009

The applicant had entered the UK as a visitor in 1986 but overstayed until 2004. Proceedings for his removal were begun. The claimant said that delay in such proceedings were prejudicial.
Held: The delay of nearly three years in dealing with the application for indefinite leave was undue and produced conspicuous unfairness, in that if it had been processed properly he would have been able to apply under an extra statutory concession which was now unavailable. The appeal was allowed and the case remitted to the AIT for reconsideration.

Maurice Kay LJ
[2009] EWCA Civ 385, Times 18-May-2009
Bailii
England and Wales

Immigration, Administrative

Updated: 01 November 2021; Ref: scu.343054

B, Regina (on The Application of) v Secretary of State for The Home Department (Rule 33A Jr Amendments and Transfers) (IJR): UTIAC 15 Mar 2016

UTIAC (i) Neither s.18, nor any other provision in the Tribunals, Courts and Enforcement Act 2007 (‘the 2007 Act’), nor any provision in the Tribunal Procedure (Upper Tribunal) Rules 2008 gives the Upper Tribunal a discretionary power to transfer to the High Court a case which has been begun in the Upper Tribunal. Where a case has been transferred to the Upper Tribunal, it is only in circumstances bringing the case within rule 33A(3)(b) that a discretionary power to transfer the case back to the High Court will arise.
(ii) Section 18(11) of the 2007 Act contemplates that Tribunal Procedure Rules should provide for the making of amendments to judicial review proceedings in the Upper Tribunal which would have the effect that, once made, the application would be required to be transferred to the High Court. Rule 33A does this by expressly giving the tribunal control over the making of such amendments, and it ensures also that the tribunal controls whether there can be reliance on additional grounds which would have the same effect.

Walker J
[2016] UKUT 182 (IAC)
Bailii
Tribunals, Courts and Enforcement Act 2007 18
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.564162

Tan Te Lam v Superintendent of Tai A Chau Detention Centre: PC 27 Mar 1996

(Hong Kong) Migrants from Vietnam of Chinese ethnic origin had landed in Hong Kong by boat, and been refused refugee status. They were detained for several years under section 13D of the Immigration Ordinance ‘pending . . removal from Hong Kong’. However the Ordinance only permitted detention if the period of detention was ‘reasonable having regard to all the circumstances’. It was submitted that the very long period of detention rendered further detention for an indefinite period unreasonable, and therefore unlawful, and that as the Vietnam authorities would not accept repatriation of those they regarded as non-Vietnamese nationals there was no possibility of compulsory removal from Hong Kong, so the detention could not be ‘pending removal’.
Held: Adopting the principle set out in Hardial Singh, in the absence of contrary indications in the statute which confers the powers to detain ‘pending removal’ the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time.
The burden lies on the executive to prove on the balance of probabilities the facts necessary to justify the conclusion that a detainee is being detained ‘pending removal’.

Lord Browne-Wilkinson
[1996] UKPC 5, [1997] AC 97, [1996] 4 All ER 256
Bailii
(Hong Kong) Immigration (Amendment) Ordinance 1991 2 13D
England and Wales
Citing:
Approved – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .

Cited by:
Cited – Regina (on the application of Baram etc) v Secretary of State for the Home Department Admn 7-Sep-2001
Asylum seekers had been detained on arrival in the UK, and then released. They challenged the propriety of the detention. The policy was that detention was appropriate where entry had been achieved through breach of immigration control, and did not . .
Cited – I, Regina (on the Application of) v Secretary of State for the Home Department CA 28-Jun-2002
The appellant obtained asylum but was convicted of offences after entering, and ordered to be deported. Whilst serving his sentence the deportation order was served, but he was not released on licence at the time he would normally have been . .
Cited – Secretary of State for the Home Department v Regina on the Application of Khadir CA 3-Apr-2003
The Secretary of State appealed an order requiring him to reconsider refusal of exceptional leave to remain. The applicant was an Iraqi Kurd. It was not possible to make immediate arrangements for repatriation after the order.
Held: The . .
Cited – Regina v Secretary of State for the Home Department Ex parte Saadi and others HL 31-Oct-2002
The applicants were Kurdish asylum seekers. The Home Secretary introduced powers to detain certain asylum seekers for a short period in order to facilitate the speedy resolution of their applications. Only those who it was suspected might run away . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Khadir, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Jun-2005
The applicant who had entered England hidden in a lorry, claimed asylum, and had his claim rejected. It was said that as an Iraqi Kurd, he would be safe in the Kurdish area of Iraq. No safe means had been found of ensuring his return over some four . .
Cited – Hwez and Khadir v Secretary of State for the Home Departmentand Another Admn 29-Jul-2002
. .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – SK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
Cited – Rostami, Regina (on the Application of) v Secretary of State for the Home Department QBD 7-Aug-2009
The claimant had been detained for nearly three years while his application for asylum was determined. He sought judicial review, saying that the detention was unlawful. Whilst in detention he had self harmed and said: ‘I will stay in detention for . .
Cited – Saleh, Regina (On the Application of) v Secretary Of State for the Home Department Admn 5-Oct-2009
The claimant challenged his past and continuing detention pending deportation. He had a long series of convictions for dishonesty.
Held: ‘it is indeed disconcerting to find that a non-violent person subject to immigration control has been in . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for the Home Department Admn 16-Jun-2003
The claimant challenged his continued detention under the 1971 Act after his appeal to the Immigration Appeal tribunal had been successful. He had been accused of rape, but was convicted of a sexual assault, though still serious. Before being . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .
Cited – B (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.159161

Aan (Veil) Afghanistan: UTIAC 17 Jan 2014

(1) Where the face of a party or witness is substantially covered by a veil or other form of attire, it is incumbent on the Tribunal to strike the balance between the rights of the person concerned, the administration of justice and the principle of open justice. The Tribunal will consider options which should, simultaneously, facilitate its task of assessing the strength and quality of the evidence, while respecting as fully as possible the rights and religious beliefs of the person concerned.
(2) Such measures may include the following:
(a) A sensitive enquiry about whether the cover can be removed, in whole or in part.
(b) Where appropriate, a short adjournment to enable the person concerned to reflect and, perhaps, seek guidance or advice.
(c) The adoption of limited screening of the person and/or minimising the courtroom audience.
This is not designed to operate as an exhaustive list.
(3) In cases where a Tribunal considers that the maintenance of the cover might impair its ability to properly assess the person’s evidence and, therefore, could have adverse consequences for the appellant, the Tribunal must ventilate this concern.
(4) Issues of religious attire and symbols must be handled by tribunals with tact and sensitivity.

McCloskey P, Ockleton VP, Grubb UTJ
[2014] UKUT 102 (IAC)
Bailii
England and Wales

Immigration

Updated: 01 November 2021; Ref: scu.523487

LZ (Homosexuals) Zimbabwe CG: UTIAC 26 Jan 2012

UTIAC (i) There has been much public expression of extreme homophobia at the highest levels in recent years.
(ii) Male homosexual behaviour is criminalised, but prosecutions are very rare. Lesbianism is not criminalised.
(iii) Some homosexuals suffer discrimination, harassment and blackmail from the general public and the police. Attempted extortion, false complaints and unjustified detentions are not so prevalent as to pose a general risk. There are no records of any murders with a homophobic element. ‘Corrective rape’ is rare, and does not represent a general risk.
(iv) There is a ‘gay scene,’ within limitations.
(v) Lesbians, living on their own or together, may face greater difficulties than gay men.
(vi) GALZ (Gays and Lesbians of Zimbabwe) takes a realistic view: Zimbabwe is ‘not the worst place in the world to be gay or lesbian even though the President, government officials and church leaders have whipped up a climate of hysterical homophobia.’
(vii) Applying HJ and HT [2010] UKSC 31, [2010] Imm AR 729, there is no general risk to gays or lesbians. Personal circumstances place some gays and lesbians at risk. Although not decisive on its own, being openly gay may increase risk. A positive HIV/AIDS diagnosis may be a risk factor. Connections with the elite do not increase risk.
(viii) The police and other state agents do not provide protection.
(ix) A homosexual at risk in his or her community can move elsewhere, either in the same city or to another part of the country. He or she might choose to relocate to where there is greater tolerance, such as Bulawayo, but the choice of a new area is not restricted. The option is excluded only if personal circumstances present risk throughout the country.

MacLeman UTJ
[2011] UKUT 487 (IAC)
Bailii
England and Wales

Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.450988

Y (Sri Lanka) and Another v Secretary of State for the Home Department: CA 29 Apr 2009

The applicants appealed against orders for them to be returned to Sri Lanka where they would be subject to arrest and where there were uncontested findings that they had already been tortured and raped whilst in official custody before fleeing Sri Lanka.
Held: It would infringe the applicants’ human rights to order their return under such circumstances. There was a real risk of suicide if they were ordered to return, and the court was entitled to give weight to that in addition to any matters identified in J.

Lord Justice Sedley, Lady Justice Arden and Lord Justice Moses
[2009] EWCA Civ 362, Times 05-May-2009, [2009] HRLR 22
Bailii
European Convention on Human Rights 83
England and Wales
Citing:
Cited – J v Secretary of State for the Home Department CA 24-May-2005
The applicant, a Tamil threatened to commit suicide if returned to Sri Lanka. It had been accepted by the Home Secretary that he suffered from post traumatic stress disorder and depression. The medical evidence was that ‘His prognosis (was) . .

Cited by:
Cited – AN (Pakistan) v Secretary of State for The Home Department CA 6-Jul-2010
The claimant appealed against refusal of indefinite leave to remain. She said that she feared if she returned to Pakistan she would be subject to domestic violence. Though her husband had received prison sentences of three years for offences of . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 01 November 2021; Ref: scu.341572

TS, Regina (on The Application of) v Secretary of State for The Home Department: Admn 26 Oct 2010

The claimant had sought asylum as a child, declaring that he had not applied for asylum elsewhere. His fingerprints were matched to an applicant in Belgium.
Held: Wyn Williams J construed section 55 and the statutory guidance referred to in section 55(3) as imposing upon the decision maker, the UK Borders Agency caseworker, a duty to treat the best interests of the child concerned as a primary consideration when exercising an immigration/asylum function. Section 55(3) placed a personal responsibility upon the decision maker to have regard to the statutory guidance which included the requirement, at paragraph 6, that the decision maker must apply the guidance as to the welfare of children, and, ‘if they decide to depart from it, have clear reasons for doing so’. The judge found that since UKBA had not addressed the claimant’s case that a removal to Belgium would be ‘detrimental to his welfare’ the decision made was unlawful.

Wyn Williams J
[2010] EWHC 2614 (Admin), [2011] Imm AR 164
Bailii
Borders Citizenship and Immigration Act 2009 55
England and Wales
Cited by:
Cited – Castle and Others v Commissioner of Police for The Metropolis Admn 8-Sep-2011
The claimants, all under 17 years old, took a peaceful part in a substantial but disorderly demonstration in London. The police decided to contain the section of crowd which included the claimants. The claimants said that the containment of children . .
Cited – Alladin, Regina (on The Application of) v Secretary of State for The Home Department CA 16-Oct-2014
The court was asked whether the decisions of the Secretary of State to give limited (discretionary) leave to remain as opposed to indefinite leave to remain are unlawful because they were given in breach of the Secretary of State’s duty under . .
Cited – Ali, Regina (on The Application of) v The Secretary of State for The Home Department Admn 9-Jan-2015
The claimant complained that the respondent when granting her a time limited leave to remain only, had by making her immigration status incompatible with that of her five children failed to comply with her obligations under the 2009 Act. The . .

Lists of cited by and citing cases may be incomplete.

Immigration, Children

Updated: 01 November 2021; Ref: scu.425575

Sanneh, Regina (on The Application of) v The Secretary of State for Work and Pensions and Another: Admn 10 Apr 2013

[2013] EWHC 793 (Admin)
Bailii
England and Wales
Citing:
See Also – Sanneh, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 30-Apr-2012
Challenge to payment of Zambrano Income Support . .
Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .

Cited by:
Cited – Phonographic Performance Ltd v Ellis (T/A Bla Bla Bar) CA 18-Dec-2018
Additional infrimgement damages were not a fine.
The Society had succeeded in its claim of copyright infringement. The defendant having continued his breaches, it sought additional damages and committal for contempt. Having granted the committal the trial judge declined to award additional . .

Lists of cited by and citing cases may be incomplete.

Benefits, Immigration

Updated: 31 October 2021; Ref: scu.472511

Spahiu and Another, Regina (on The Application of) v Secretary of State for The Home Department (Judicial Review – Amendment – Principles (IJR): UTIAC 25 Apr 2016

UTIAC (i) The amendment of a judicial review claim form preceding the lodgement of the Acknowledgement of Service does not require the permission of the Tribunal. Such permission is required in all other instances.
(ii) In deciding whether to exercise its discretionary power to permit amendment, the Tribunal will have regard to the overriding objective, fairness, reasonableness and the public law character of the proceedings. The Tribunal will also be alert to any possible subversion or misuse of its processes.
(iii) Every application to amend should be made formally, in writing, on notice to all other parties and paying the appropriate fee which, with effect from 21 March 2016, is andpound;255.
(iv) Where an amendment is permitted in the course of a hearing the Tribunal may, within its discretion, not require compliance with the aforementioned requirements.
(v) There is a sharp distinction between an application to amend grounds and an application to amend the Respondent’s decision under challenge: R (HM) v Secretary of State for the Home Department (JR – Scope – Evidence) IJR [2015] UKUT 437 (IAC) applied.

[2016] UKUT 230 (IAC)
Bailii
England and Wales

Immigration, Judicial Review

Updated: 31 October 2021; Ref: scu.565671

McCarthy and Others v Secretary of State for the Home Department: ECJ 18 Dec 2014

ECJ Judgment – Grand Chamber – Citizenship of the European Union – Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of a Member State – Right of entry – Third-country national who is a family member of a Union citizen and in possession of a residence card issued by a Member State – National legislation requiring an entry permit to be obtained prior to entry into national territory – Article 35 of Directive 2004/38/EC – Article 1 of the Protocol (No 20) on the application of certain aspects of Article 26 of the Treaty on the Functioning of the European Union to the United Kingdom and to Ireland

V. Skouris, P
C-202/13, [2014] EUECJ C-202/13, ECLI:EU:C:2014:2450, [2014] WLR(D) 555
Bailii, WLRD
Directive 2004/38/EC 35
European

Immigration

Updated: 31 October 2021; Ref: scu.540331

EM and Others (Returnees) Zimbabwe CG: UTIAC 14 Mar 2011

UTIAC 1. Evaluating the position as at the end of January 2011, the country guidance at paragraph 267 of this determination replaces that in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, as follows:
(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) [2010] EWCA Civ 1285).
(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.
(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.
2. Guidance is also given on the assessment of the private and family life of a Zimbabwean national present in the United Kingdom for over 11 years with children born and/or resident most of their lives in the United Kingdom.
3. In the absence of countervailing factors, residence of over 7 years with children well-integrated into the educational system in the United Kingdom, is an indicator that the welfare of the child favours regularisation of the status of mother and children.

Blake P, J, Lane SIJ, Campbell IJ
[2011] UKUT 98 (IAC)
Bailii
England and Wales
Cited 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 . .

Lists of cited by and citing cases may be incomplete.

Immigration

Leading Case

Updated: 31 October 2021; Ref: scu.430549

De Oliveira, Regina (on the Application of) v Secretary of State for the Home Department: Admn 9 Mar 2009

The claimant wished to be allowed to stay in the UK to complete her studies. The respondent said that her course did not meet the criteria, being for professional membership of the British Computer Society, and not at a formal degree level throughout.
Held: The course if completed would lead to a degree level qualification. The statute was not to be read restrictively, but purposively. ‘the sensible and reasonable conclusion on the facts of this case is that the Claimant has embarked on a course of study leading to a level 6 qualification; and that the contrary view taken by the SSHD was wrong.’

[2009] EWHC 347 (Admin)
Bailii
England and Wales
Citing:
Applied – Odelola v Secretary of State for the Home Department CA 10-Apr-2008
The claimant applied for leave to remain in the United Kingdom as a postgraduate doctor. The immigration rules which had been laid before Parliament in accordance with section 3(2) of the 1971 Act and which were current at the time of her . .
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 – TY (Student; ‘Satisfactory Progress’; Course of Study) Burma IAT 16-Jan-2007
AIT A person seeking an extension of leave as a student must show under paragraph 60(v) of HC 395 satisfactory progress in the ‘course of study’ for which he was last granted leave to enter or remain or, if . .
Cited – MG (‘Degree Level’ Study) South Africa IAT 30-Jul-2007
AIT The requirement of ‘a course of study at degree level or above’ in paragraph 60(i)(c) of HC 395 which has to be interpreted in accordance with paragraph 6 of the Rules means that the constituent parts of the . .

Lists of cited by and citing cases may be incomplete.

Immigration, Education

Updated: 31 October 2021; Ref: scu.317863

The Queen v Secretary of State for the Home Department, ex parte Barkoci and Malik and similar: ECJ 27 Sep 2001

The EU Treaty provisions recognising the rights of entry of certain citizens of Czechoslovakia, Poland and Bulgaria had direct effect. Three applicants had entered the UK misrepresenting their intentions to stay as temporary. Rights of entry and residence as corollaries of the right of establishment, were conferred on such nationals wishing to pursue activities of an industrial or commercial character, activities of craftsmen or activities of the professions in a member state. The rights are not absolute, and applicants could be required to make proper applications.
ECJ External relations – Association Agreement between the Communities and the Czech Republic – Freedom of establishment – Czech nationals wishing to establish themselves in a Member State as self-employed workers.

Rodriguez Iglesias P
Times 13-Nov-2001, C-63/99, C-257/99, [2001] EUECJ C-257/99, [2001] EUECJ C-63/99, C-235/99, [2002] INLR 152, [2001] 3 CMLR 48, [2001] All ER (EC) 903, [2001] ECR I-6557
Bailii, Bailii
European

Immigration, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.166666

YS v Minister voor Immigratie, Integratie en Asiel: ECJ 17 Jul 2014

ECJ Request for a preliminary ruling – Protection of individuals with regard to the processing of personal data – Directive 95/46/EC – Articles 2, 12 and 13 – Concept of ‘personal data’ – Scope of the right of access of a data subject – Data relating to the applicant for a residence permit and legal analysis contained in an administrative document preparatory to the decision – Charter of Fundamental Rights of the European Union – Articles 8 and 41
By reference to the forty-first Recital to the Directive the court emphaisised that ‘the protection of the fundamental right to respect for private life means . . that that person may be certain that the personal data concerning him are correct and that they are processed in a lawful manner’.

M Ilesic Rap, P
[2014] EUECJ C-141/12, [2014] WLR(D) 324, [2015] 1 WLR 609, ECLI:EU:C:2014:2081, C-141/12, C-372/12
Bailii, WLRD
Directive 95/46/EC 2 12 13, Charter of Fundamental Rights of the European Union 8 41
European
Citing:
Opinion – YS v Minister voor Immigratie, Integratie en Asiel ECJ 12-Dec-2013
ECJ Opinion – Personal data and processing – Legal analysis . .

Cited by:
Cited – Kololo v Commissioner of Police for The Metropolis QBD 9-Mar-2015
The claimant sought disclosure of information under the 1998 Act. The defendant said that the application was an abuse of process and an attempt to circumvent the 2003 Act. The claimant had been convicted of involvement in kidnapping and murder in . .

Lists of cited by and citing cases may be incomplete.

European, Immigration, Human Rights

Updated: 31 October 2021; Ref: scu.544325

Secretary of State for The Home Department v ZAT and Others (Syria): CA 2 Aug 2016

Entry from Calais for Asylum Applicants

The Secretary of State appealed against orders granting entrance to seven respondents ordering that they be admitted to the UK from Calais with a view to determining their refugee status.
Held: The tribunal had failed to apply the correct test.

Moore-Bick, Longmore, Beatson LJJ
[2016] EWCA Civ 810, C2/2016/071
Bailii, Judiciary
Europran Convention on Human Rights 8
England and Wales

Immigration, News, Human Rights

Updated: 31 October 2021; Ref: scu.567882

EM (Lebanon) v Secretary of State for the Home Department: HL 22 Oct 2008

The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but in this case, the appeal was allowed, and the decision quashed. The order would infringe the claimant’s human rights. The effect of such a removal would be completely to deny or nullify her right to family life in the destination country. She had lived as a muslim in Lebanon, but if returned, the father of the child would be free to remove him to Saudi Arabia under Lebanese law, and any rights of visitation would be no more than nominal. Lebanon was not a party to the Convention, and therefore was not bound by it, though its family law reflected its own traditions which were themselves respected and observed throughout the world.
Lord Hope said: ‘The mutual enjoyment by parent and child of each other’s company is a fundamental element of family life. Under our law non-discrimination is a core principle for the protection of human rights. The fact is however that Shari’a law as it is applied in Lebanon was created by and for men in a male dominated society. The place of the mother in the life of a child under that system is quite different under that law from that which is guaranteed in the Contracting States by article 8 of the Convention read in conjunction with article 14. There is no place in it for equal rights between men and women. It is, as Lord Bingham points out, the product of a religious and cultural tradition that is respected and observed throughout much of the world. But by our standards the system is arbitrary because the law permits of no exceptions to its application, however strong the objections may be on the facts of any given case. It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women. That is why the appellant removed her child from that system of law and sought protection against its effects in this country. ‘
Lady Hales said: ‘Separate consideration and separate representation are, however, two different things. Questions may have to be asked about the situation of other family members, especially children, and about their views. It cannot be assumed that the interests of all the family members are identical. In particular, a child is not to be held responsible for the moral failures of either of his parents. Sometimes, further information may be required. If the Child and Family Court Advisory and Support Service or, more probably, the local children’s services authority can be persuaded to help in difficult cases, then so much the better. But in most immigration situations, unlike many ordinary abduction cases, the interests of different family members are unlikely to be in conflict with one another. Separate legal (or other) representation will rarely be called for.’

Lord Hope of Craighead, Lord Bingham of Cornhill, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2008] UKHL 64, [2008] 3 WLR 931, [2009] HRLR 6, [2009] AC 1198, [2009] 1 FCR 441, [2009] 1 All ER 559, [2009] UKHRR 22, [2008] Fam Law 1190, [2008] 2 FLR 2067
Bailii, Times, HL
European Convention on Human Rights 8
England and Wales
Citing:
Appeal from – EM (Lebanon) v Secretary of State for the Home Dept CA 21-Nov-2006
The asylum applicant said that if she was returned to her home country, she would be judged under Sharia law, and would thereby lose custody of her son, and this would deny her her right to family life.
Held: Any such loss would not be . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Mamatkulov and Askarov v Turkey ECHR 4-Feb-2005
(Grand Chamber) The applicants had resisted extradition to Uzbekistan from Turkey to stand trial on very serious charges, saying that if returned they would be tortured. There was material to show that that was not a fanciful fear. On application . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Devaseelan v Secretary of State for the Home Department IAT 2003
The tribunal asked as to the relevance of the possible mistreatment of the applicant if returned to his home country: ‘The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case – where the right . .
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – F v United Kingdom ECHR 22-Jun-2004
An Iranian citizen claimed asylum saying that he feared persecution as a homosexual. When his application was rejected, he claimed that there would be a breach of article 8 if he were to be removed to Iran because a law in that country prohibited . .
Cited – N v The United Kingdom ECHR 27-May-2008
(Grand Chamber) The appellant was found after her arrival in this country from Uganda to have an AIDS-defining illness for which she was still receiving treatment. She claimed that the treatment would not be available in Uganda and she would die . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Gul v Switzerland ECHR 19-Feb-1996
A Turkish father, who had been permitted on humanitarian grounds to reside with his wife in Switzerland, failed to establish that, by refusing to allow their seven-year-old son to join them in Switzerland, the state had interfered with respect for . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Z and T v United Kingdom ECHR 28-Feb-2006
The applicants were Christian Pakistanis. Their asylum claims having failed, they feared that if returned to Pakistan, they would be persecuted, and asked for their article 9 rights, saying that the flagrant denial test should not be applied, as . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Cited – D v The United Kingdom ECHR 2-May-1997
The applicant, an AIDS sufferer, resisted his removal to St Kitts where lack of medical treatment would hasten his death.
Held: The deportation of a convicted person suffering from Aids to a country with less care facilities was inhuman or . .
Cited – Mamatkulov and Abdurasulovic v Turkey ECHR 6-Feb-2003
A retrospective complaint of extradition to Uzbekistan was made. The applicants sought to resist their extradition from Turkey to Uzbekistan, saying they would be tortured.
Held: Convention states must comply with orders made by the European . .
Cited – McMichael v United Kingdom ECHR 2-Mar-1995
In the course of care proceedings, medical and social services’ reports were disclosed to the courts, but not to the parents involved.
Held: The courts’ failure to show reports to the parents in care proceedings was a breach of the Convention. . .
Cited – Johansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Al-Nashif v Bulgaria ECHR 20-Jun-2002
Hudoc Judgment (Merits and just satisfaction) Preliminary objections dismissed (non-exhaustion, abuse of right of petition); Violation of Art. 5-4; Violation of Art. 8; Violation of Art. 13; Not necessary to . .
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – BeokuBetts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Cited – Government of the United States of America v Barnette and Montgomery (No 2) HL 22-Jul-2004
The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the . .

Cited by:
Cited – Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence Admn 19-Dec-2008
The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the . .
Cited – RB (Algeria) and Another v Secretary of State for the Home Department; OO (Jordan) v Same; MT (Algeria) v Same HL 18-Feb-2009
Fairness of SIAC procedures
Each defendant was to be deported for fear of involvement in terrorist activities, but feared that if returned to their home countries, they would be tortured. The respondent had obtained re-assurances from the destination governments that this . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Children

Leading Case

Updated: 31 October 2021; Ref: scu.277127

GJ v Secretary of State for The Home Department (Post-Civil War: Returnees) Sri Lanka CG: UTIAC 3 Jul 2013

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

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

Immigration

Updated: 31 October 2021; Ref: scu.513578

Dano v Jobcenter Leipzig: ECJ 11 Nov 2014

ECJ Judgment – Free movement of persons – Citizenship of the Union – Equal treatment – Economically inactive nationals of a Member State residing in the territory of another Member State – Exclusion of those persons from special non-contributory cash benefits under Regulation (EC) No 883/2004 – Directive 2004/38/EC – Right of residence for more than three months – Articles 7(1)(b) and 24 – Condition requiring sufficient resources)

V Skouris, President, K. Lenaerts, Vice-President, A. Tizzano, L Bay Larsen, T von Danwitz, C Vajda, S Rodin, Presidents of Chambers, E Juhasz, A Borg Barthet, J Malenovsky, E Levits, M Berger (Rapporteur) and JL da Cruz Vilaca, Judges
[2014] EUECJ C-333/13, ECLI:EU:C:2014:2358, [2015] 1 CMLR 48, [2015] CEC 1045, [2015] 1 WLR 2519, [2014] WLR(D) 477, ECLI:EU:C:2014:2358, [2015] All ER (EC) 1
Bailii, WLRD
Regulation (EC) No 883/2004, Directive 2004/38/EC 7(1)(b) 24
European
Cited by:
Cited – Mirga v Secretary of State for Work and Pensions, Samin v Westminster City Council SC 27-Jan-2016
The claimants, a Polish national and an Austrian national, appealed against decisions of the Court of Appeal upholding decisions that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to . .

Lists of cited by and citing cases may be incomplete.

Immigration, Benefits

Leading Case

Updated: 31 October 2021; Ref: scu.538689

MA (Bangladesh) v Secretary of State for The Home Department: CA 22 Mar 2016

Two appeals concerning the principles established in Tanveer Ahmed v Secretary of State for the Home Department [2002] INLR 345 in relation to the authenticity and reliability of documents in asylum cases.

Davis, Lloyd Jones, Underhill LJJ
[2016] EWCA Civ 175
Bailii
England and Wales

Immigration

Updated: 31 October 2021; Ref: scu.561213

PM v Secretary of State for Work and Pensions (IS) (Tribunal Procedure and Practice (Including UT) : Evidence): UTAA 14 Oct 2014

pm_sswp1410

UTAA Appeal against the decision allowed. At the time of the claim for income support and that of the decision refusing it the appellant had a right to reside as the family member of a worker. She was accordingly, not a ‘person from abroad’ so as to have an applicable amount of andpound;Nil.

Ward UTJ
[2014] UKUT 474 (AAC)
Bailii
England and Wales

Benefits, Immigration

Updated: 31 October 2021; Ref: scu.539095

Ramalingum, R (on the application of) v Secretary of State for the Home Department: Admn 10 Mar 2009

Application for Judicial Review of a decision of the Secretary of State for the Home Department whereby her application for registration as a British citizen under Section 3(1) of the British Nationality Act 1981 was refused.

Justice Burnett
[2009] EWHC 453 (Admin)
Bailii
England and Wales

Immigration

Updated: 31 October 2021; Ref: scu.317904

HM (Risk Factors for Burmese Citizens) Burma CG: IAT 23 Jan 2006

IAT The following comprise general guidelines in assessing risk on return to Burma of a Burmese citizen:
(1) A Burmese citizen who has left Burma illegally is in general at real risk on return to Burma of imprisonment in conditions which are reasonably likely to violate his rights under Article 3 of the ECHR. Exit will be illegal where it is done without authorisation from the Burmese authorities, however obtained, and will include travel to a country to which the person concerned was not permitted to go by the terms of an authorised exit. We consider it is proper to infer this conclusion from the effect in the Van Tha case of the employment of Article 5(j) of the Burma Emergency Act 1950, either on the basis of the application of that Article in that case or also as a consequence of a breach of the exit requirements we have set out in paragraph 83.
(2) A Burmese citizen is in general at real risk of such imprisonment if he is returned to Burma from the United Kingdom without being in possession of a valid Burmese passport.
(3) It is not reasonably likely that a Burmese citizen in the United Kingdom will be issued with a passport by the Burmese authorities in London, unless he is able to present to the Embassy an expired passport in his name.
(4) If it comes to the attention of the Burmese authorities that a person falling within (1) or (2) is a failed asylum seeker, that is reasonably likely to have a significant effect upon the length of the prison sentence imposed for his illegal exit and/or entry. To return such a person from the United Kingdom would accordingly be a breach of Article 33 of the Refugee Convention. Whether that fact would come to the attention of the authorities will need to be determined on the facts of the particular case, bearing in mind that the person is highly likely to be interrogated on return.
(5) It has not been shown that a person who does not fall within (1) or (2) above faces a real risk of persecution or Article 3 ill-treatment on return to Burma by reason of having claimed asylum in the United Kingdom, even if the Burmese authorities have reason to believe that he has made such a claim, unless the authorities have reason to regard him as a political opponent.

[2006] UKAIT 00012
Bailii
England and Wales

Immigration

Leading Case

Updated: 31 October 2021; Ref: scu.240180

IA and others (Ahmadis: Rabwah) Pakistan CG: IAT 23 Oct 2007

Contrary to what is said in KM (Pakistan) [2004] UKAIT 00302, MM (Pakistan) CG [2002] UKIAT 05714, KK (Pakistan) [2005] UKIAT 00033, MC (Pakistan) [2004] UKIAT 00139, and AZ (Pakistan) CG [2002] UKIAT 02642, Rabwah does not constitute a safe haven for any Ahmadi at risk of persecution elsewhere in Pakistan and should not, without more, be treated as an appropriate place of internal relocation.

[2007] UKAIT 00088
Bailii
England and Wales

Immigration

Updated: 31 October 2021; Ref: scu.261627

K v Staatssecretaris van Veiligheid en Justitie, F v Belgium – Allegations De Crimes De Guerre: ECJ 2 May 2018

Free movement for those suspected of War Crimes

Grand Chamber – Citizenship of The European Union – Right To Move and Reside Freely Within The Territory of The Member States – Restrictions – Judgment – Reference for a preliminary ruling – Citizenship of the European Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Second subparagraph of Article 27(2) – Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health – Expulsion on grounds of public policy or public security – Conduct representing a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society – Person whose asylum application has been refused for reasons within the scope of Article 1F of the Geneva Convention or Article 12(2) of Directive 2011/95/EU – Article 28(1) – Article 28(3)(a) – Protection against expulsion – Residence in the host Member State for the previous ten years – Imperative grounds of public security – Meaning

K Lenaerts P
ECLI:EU:C:2018:296, [2018] EUECJ C-331/16, [2018] WLR(D) 272
Bailii, WLRD
European

Crime, Immigration

Updated: 31 October 2021; Ref: scu.609513

BL (Jamaica) v The Secretary of State for The Home Department: CA 13 Apr 2016

‘The central issue on this appeal is whether in its decision dated 6 February 2014 the Upper Tribunal (McCloskey J and UTJ Perkins) (‘the UT’) made an error of law in allowing an appeal by BL, a foreign convicted offender aged 31 years and a national of Jamaica, against the order of the First-tier Tribunal dismissing BL’s appeal against the deportation order dated 16 January 2013 made by the Secretary of State under section 32 of the Borders Act 2007.’

Arden, McFarlane, Macur LJJ
[2016] EWCA Civ 357
Bailii
England and Wales

Immigration, Crime

Updated: 31 October 2021; Ref: scu.562147

RS and Others (Zimbabwe – Aids) Zimbabwe CG: UTIAC 14 Oct 2010

UTIAC (1) A significant number of people are receiving treatment for HIV/AIDS in Zimbabwe, and hence a Zimbabwean returnee will not succeed in a claim for international protection on the basis of a diagnosis of HIV/AIDS unless their case crosses the threshold identified in N v United Kingdom.
(2) Though there is some evidence of discrimination in access to AIDS medication and food in Zimbabwe, it is not such as to show a real risk of such discrimination.
(3) The return to Zimbabwe of a Zimbabwean diagnosed with HIV/AIDS does not place the United Kingdom in breach of its obligations under the Disability Discrimination Act.

[2010] UKUT 363 (IAC)
Bailii
England and Wales

Immigration

Leading Case

Updated: 31 October 2021; Ref: scu.425496

Public social welfare center in Louvain-La-Neuve v Abdida: ECJ 4 Sep 2014

pswc_abdidaECJ1409

ECJ Advocate General’s Opinion – Preliminary reference – Common European Asylum System – Directive 2003/9/EC – Minimum standards for the reception of applicants for asylum in Member States – Directive 2004/83 / EC – Minimum standards for the conditions to be fulfilled third country nationals or stateless persons as refugees – Person eligible status and subsidiary protection – Article 2 e) – Real risk of suffering serious harm – Article 15 b) -Treatments inhuman or degrading – Directive 2005/85 / EC – Minimum standards on procedures for granting and withdrawing refugee status in Member States – Directive 2008/115 / EC – Common standards and procedures for the return of third country nationals residing – Article 13, paragraph 2 – suspensive effect of the appeal – Article 14, paragraph 1 – Safeguards pending return – Charter of Fundamental Rights of the European Union – Refusal by the Member State to grant a nationals of third countries seriously ill for a residence permit for medical reasons, with an obligation to leave the territory – Not a suspensive appeal as of right from the enforcement of the removal – Lack of support needs basic non-medical – Grant of emergency medical assistance

Yves Bot AG
C-562/13, [2014] EUECJ C-562/13 – O, ECLI: EU: C: 2014, [2014] EUECJ C-562/13
Bailii, Bailii
Directive 2003/9/EC

European, Immigration

Updated: 31 October 2021; Ref: scu.536481

MYH And Others v Sweden (LS): ECHR 27 Jun 2013

ECHR Article 3
Degrading treatment
Inhuman treatment
Expulsion
Proposed deportation of Christian family to Iraq: deportation would not constitute a violation
Facts – The applicants, who were Iraqi nationals, applied for asylum in Sweden after fleeing their country of origin because, as Christians living in a predominantly Muslim neighbourhood in Baghdad, they feared persecution. They stated that they had been subjected to threats and demands for money from masked men and that an attempt had been made to kidnap a member of their family when they had been unable to pay the sum demanded. The Swedish Migration Board rejected their applications and that decision was upheld by the Migration Court on the grounds that the evidence did not suggest that there was an individualised threat against the applicants upon return.
Law – Article 3: While the international reports on Iraq attested to a continuing difficult situation, including indiscriminate and deadly attacks by violent groups, and discrimination and heavy-handed treatment by the authorities, it appeared that the overall situation was slowly improving. Indeed, the applicants did not claim that, by itself, the general situation in Iraq precluded their return; instead, it was that situation combined with the fact that they were Christians that put them at real risk of being subjected to prohibited treatment. However, while noting that Christians formed a vulnerable minority that had been subjected to escalating and targeted attacks in the southern and central parts of Iraq, the Court noted that an internal relocation alternative was available in the Kurdistan Region. According to international sources this was a relatively safe area in which large numbers of Christians had found refuge and where their rights were generally considered to be respected.
The Court reiterated that as a precondition to relying on an internal flight or relocation alternative, certain guarantees had to be in place: persons due to be expelled had to be able to travel to the area concerned, gain admittance and settle there, particularly if in the absence of such guarantees there was a possibility of their ending up in a part of the country of origin where there was a real risk of ill-treatment. As regards entry to the Kurdistan Region, difficulties that had been faced by some at the checkpoints did not seem to be relevant for Christians, who, it appeared, were given preferential treatment. There was also evidence to suggest that no-one was required to have a sponsor, whether for entry or for continued residence. While various sources had attested that people relocating to the Kurdistan Region could face difficulties, for instance, in finding proper jobs and housing, the evidence before the Court suggested that there were jobs available and that settlers had access to health care and to financial and other support from the UNHCR and local authorities. In any event, there was no indication that the general living conditions in the region for Christian settlers would be unreasonable or in any way amount to treatment prohibited by Article 3. Nor was there a real risk of their ending up in other parts of Iraq. Relocation to the Kurdistan Region was thus a viable alternative for a Christian fearing persecution or ill-treatment in other parts of Iraq. Lastly, there was nothing in the applicants’ personal circumstances to indicate that they would be at risk in the Kurdistan Region, especially bearing in mind that the incidents to which they had been subjected had all occurred in Baghdad.
Conclusion: deportation would not constitute a violation (five votes to two).
(See also, on the question of internal flight alternatives: Salah Sheekh v. the Netherlands, no. 1948/04, 11 January 2007, Information Note no. 93; Sufi and Elmi v. the United Kingdom, no. 8319/07, 28 June 2011, Information Note no. 142; and two judgments – D.N.M. v. Sweden, no. 28379/11, and S.A. v. Sweden, no. 66523/10, both delivered on the same day as the instant case of M.Y.H. and Others v. Sweden – in which the applicants alleged that they would be at risk of honour-related crimes if deported to Iraq. In both cases, the Court found that although the evidence indicated that the applicants might not receive effective protection from the authorities, as honour killings were often committed with impunity in Iraq, and although it was unclear whether relocation in the Kurdistan Region was a viable option for persons such as the applicants who were Sunni Muslims, it would nevertheless be possible, on the facts, for them to relocate elsewhere in Iraq where they would not be in danger of persecution from the families and clans who had threatened them. Lastly, for another case on the risk of honour-related crime in the country of destination, see N. v. Sweden, no. 23505/09, 20 July 2010, Information Note no. 132)

50859/10 – Legal Summary, [2013] ECHR 736
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Legal Summary – Myh And Others v Sweden ECHR 27-Jun-2013
. .

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 31 October 2021; Ref: scu.514306

Ozhogina and Tarasova (Deception Within Para 320(7B) – Nannies) Russia/Russian Federation: UTIAC 24 May 2011

UTIAC Where a nanny lived in an employer’s home during a period where the employer had come to live in the United Kingdom, she: (a) was not living under the same roof as an employer but qualified under the alternative provision of 159A (ii) of ‘in a household the employer uses for himself on a regular basis’; (b) could not comply with 159A (iii) ‘intends to travel to the United Kingdom in the company of his employer’; but the appeal could be allowed without remittal for reconsideration where the Tribunal was satisfied that the respondent was bound to conclude that the appellant met the terms of a policy in an IDI.
Where the respondent relies on paragraph 320(7B) (d) to refuse an application for entry clearance because of a breach of the UK’s immigration laws by using ‘Deception in an application for entry clearance’ it is necessary to show that a false statement was deliberately made for the purpose of securing an advantage in immigration terms.

[2011] UKUT 197 (IAC)
Bailii
England and Wales

Immigration

Updated: 31 October 2021; Ref: scu.441706

WKA v The Secretary of State for The Home Department: SCS 7 Jun 2013

Extra Division, Inner House

Lord Mackay of Drumadoon, Lady Paton
[2013] ScotCS CSIH – 51
Bailii

Scotland, Immigration

Updated: 31 October 2021; Ref: scu.510223

AAA v The Secretary of State for The Home Department: SCS 23 May 2013

[2013] ScotCS CSOH – 77
Bailii
Scotland

Immigration

Updated: 31 October 2021; Ref: scu.510126

B2 v Secretary of State for The Home Department: CA 24 May 2013

Appeal from the Special Immigration Appeals Commission in which the issue was whether the Secretary of State for the Home Department was entitled to deprive a British Citizen originating from Vietnam of British nationality following his alleged involvement in terrorism related activities. The Secretary of State alleges that she was so entitled. The respondent contended that the Secretary of State was not so entitled, because the effect would be to render him stateless.
Held: The appeal succeeded, and the matter was remitted to SIAC for reconsideration. In such an appeal it is for the appellate body to determine for itself whether the ground exists and/or whether the order would make the person stateless (albeit that in those respects it may choose to give some weight to the views of the Secretary of State) and not simply to determine whether she had reason to be satisfied of those matters

Jackson, Lloyd Jones, Floyd LJJ
[2013] EWCA Civ 616
Bailii
British Nationality Act 1981 40(4)
England and Wales
Citing:
Appeal from – B2 v Secretary of State for The Home Department (Deportation – Preliminary Issue – Allowed) SIAC 26-Jul-2012
The appellant was vietnamese by birth, but had later been granted British Citizenship. The Secretary of State came to seek to deprive him of that citizenship on conducive grounds for reasons of national security, and his deportation to Vietnam. The . .

Cited by:
Cited – Secretary of State for The Home Department v Al-Jedda SC 9-Oct-2013
The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .
See Also – Pham v The United States of America Admn 12-Dec-2014
The defendant appealed against an order for his extradition to the USA to face extra-territorial terrorist charges.
Held: The court dismissed the appeal: ‘whether the appellant is a British citizen or not makes no difference to his relevant . .
At CA (1) – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 31 October 2021; Ref: scu.510072

Kheirollahi-Ahmadroghani v Secretary of State for The Home Department: Admn 22 May 2013

[2013] EWHC 1314 (Admin)
Bailii
England and Wales

Immigration

Updated: 31 October 2021; Ref: scu.510078

C1, Regina (on The Application of) v Secretary of State for The Home Department: Admn 10 Feb 2021

Jay J
[2021] EWHC 242 (Admin), [2021] WLR(D) 90, [2021] 3 WLR 1
Bailii, WLRD
England and Wales

Updated: 31 October 2021; Ref: scu.658045

A-S v Secretary of State for The Home Department: Admn 17 Jan 2011

The claimant, a Kuwaiti resident and a failed asylum seeker, sought judicial review of the decision of the defendant Home Secretary communicated in a letter dated 19 March 2010, whereby the Secretary of State refused to treat further representations made by the claimant as a fresh claim for the purposes of paragraph 353 of the Immigration Rules as amended.
Kaye QC J
[2011] EWHC 564 (Admin)
Bailii
England and Wales

Updated: 31 October 2021; Ref: scu.430546

Mohamud, Regina (on The Application of) v Secretary of State for The Home Department: Admn 14 Mar 2011

The court was asked whether a decision by the Secretary of State for the Home Department that a second application for asylum does not amount to a fresh claim means that the asylum seeker, who had become entitled to work under Article 11, is no longer entitled to seek or remain in employment.
Ouseley J
[2011] EWHC 573 (Admin)
Bailii
Council Directive 2003/9/EC 11
England and Wales

Updated: 31 October 2021; Ref: scu.430548

Thamby, Regina (on The Application of) v Secretary of State for The Home Department: Admn 8 Jul 2011

Application for judicial review of a decision of the Secretary of State for the Home Department refusing the Claimant’s application for naturalisation as a British citizen.
Sales J
[2011] EWHC 1763 (Admin)
Bailii
England and Wales

Updated: 31 October 2021; Ref: scu.441557

A B C v Secretary of State for The Home Department: Admn 22 May 2013

Reasons for granting the claimants permission to apply for judicial review of a decision of the Upper Tribunal refusing the claimants permission to appeal a determination of the First tier Tribunal.
Anthony Thornton QC
[2013] EWHC 1272 (Admin)
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.510017

SM (Afghanistan) v Secretary of State for The Home Department: CA 10 Apr 2013

Maurice Kay, Rafferty, Ryder LJJ
[2013] EWCA Civ 533
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.509981

AJ (Bangladesh) v Secretary of State for The Home Department: CA 21 Mar 2013

[2013] EWCA Civ 493
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.509245

MK, Regina (on The Application of) v Secretary of State for Home Department: Admn 16 Jan 2012

Burnett J
[2012] EWHC 18 (Admin)
Bailii
Nationality, Immigration and Asylum Act 2002 94(2)
England and Wales

Updated: 30 October 2021; Ref: scu.450310

Akram, Regina (on The Application of) v Secretary of State for The Home Department: Admn 4 Nov 2010

Claim for judicial review of a decision of the Border Agency, certifying his claim for asylum as clearly unfounded.
Stewart QC J
[2010] EWHC 3437 (Admin)
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.431938

Mohamed, Regina (on The Application of) v Secretary of State for The Home Department: Admn 20 Apr 2010

The claimant had, as a child, been given asylum, his family having fled Somalia. He had however persistently offended, and the respondent wished to withraw his leave to remain.
Hickinbottom J
[2010] EWHC 1244 (Admin)
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.440871

Ivlev, Regina (on The Application of) v Entry Clearance Officer, New York: Admn 9 May 2013

[2013] EWHC 1162 (Admin)
Bailii

Updated: 27 October 2021; Ref: scu.503514

Harrisingh and Others, Regina (on The Application of) v Secretary of State for The Home Department: Admn 8 Mar 2012

Sir John Thomas P, Cranston J
[2013] EWHC 1125 (Admin)
Bailii

Updated: 27 October 2021; Ref: scu.503510

Secretary of State for The Home Department v Ahmadi: CA 9 May 2013

Sullivan, Briggs LJJ, Sir Stanley Burnton
[2013] EWCA Civ 512, [2013] WLR(D) 170, [2013] 4 All ER 442, [2014] INLR 117, [2013] Imm AR 1081, [2014] 1 WLR 401
Bailii, WLRD
England and Wales
Citing:
Appeal from – Ahmadi (S47 Decision: Validity; Sapkota) Afghanistan UTIAC 14-May-2012
UTIAC (1) A removal decision under s. 47 of the Immigration, Asylum and Nationality Act 2006 cannot be made in respect of a person until written notice of the decision to refuse to vary that person’s leave to . .

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

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.503507

PS (Sri Lanka) v Secretary of State for the Home Department: CA 6 Nov 2008

[2008] EWCA Civ 1213
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.277564

Majera, Regina (on The Application of v Secretary of State for The Home Department: SC 20 Oct 2021

The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been granted immigration bail with conditions, but these conditions were varied on the order of the Respondent. The Tribunal had not complied with the necessary requirements under the 1971 Act.
Held: The appeal was allowed, and the order placing the claimant on bail under conditions was restored.
A court order must be obeyed unless and until it has been set aside or varied by the court or unusually by legislation. This applies to court orders whether they are valid or invalid, regular or irregular. Court orders should not be ignored by anyone, including the government.
The Court of Appeal did not apply that decided, but on the basis of unlawful administrative acts and decisions, held that the Bail Order had no legal effect, and the Secretary need not comply with it. Even in the context of administrative acts and decisions, it is an over-simplification to say that an unlawful act has no legal effect at all. There are many circumstances in which an unlawful administrative act has legal consequences. Here the court was concerned with not an unlawful administrative act but with an order of a tribunal. Different issues principles applied.
The allegation that the Bail Order was invalid was not a relevant defence to Mr Majera’s application for judicial review. With no other basis for the Court of Appeal’s reversal of the decision of the Upper Tribunal, and with no other grounds, the appeal succeeded.
Even had any invalidity of the Bail Order had been relevant, the SS had opportunity to challenge the Bail Order if she thought it was defective: she might have raised it with the First-tier Tribunal, or the Upper Tribunal, or sought judicial review.
Lord Reed, President, Lord Sales, Lord Leggatt, Lord Burrows, Lady Rose
[2021] UKSC 46, UKSC 2020/0008
Bailii, Bailii Press Summary, Bailii Issues and Facts, SC, SC Summary, SC Summary Video, SC 2021 May 10 am Video, SC 2021 May 10 pm Video
Immigration Act 1971
England and Wales
Citing:
Cited – Gedi, Regina (on The Application of) v Secretary of State for Home Department CA 17-May-2016
The court considered the power of the Secretary of State for the Home Department and her immigration officials to impose conditions of curfew and electronic monitoring on those who have been released from immigration detention pending the conclusion . .
At UTIAC – Majera, Regina (on The Application of) v Secretary of State for The Home Department (Bail Conditions: Law and Practice) UTIAC 13-Mar-2017
(1) A defect in framing the primary condition of bail granted by the First-tier Tribunal under paragraph 22 of Schedule 2 to the Immigration Act 1971 does not render the grant of bail void. There has, rather, been a valid but defective grant of . .
Cited – The Secretary of State for The Home Department v SM (Rwanda) CA 11-Dec-2018
. .
Cited – Smith (Kathleen Rose) v East Elloe Rural District Council HL 26-Mar-1956
The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Durayappah of Chundikuly, Mayor of Jaffna v Fernando and Others PC 15-Dec-1966
(Ceylon) . .
Cited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Cited – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
Cited – Percy and Another v Hall and Others CA 10-May-1996
The claimants, demonstrators at Menwith Hill Station, asserted that repeated arrests for trespass were made under unlawful byelaws. Iparticular they said that the restrictions on trespass were unlawful, since the area was not clearly defined. . .
Cited – Mossell (Jamaica) Ltd (T/A Digicel) v Office of Utilities Regulations and Others PC 21-Jan-2010
(Jamaica) Lord Phillips, after referring to the speech of Lord Irvine in Boddington, rejected the submission that the principle in Boddington applies only within criminal prosecutions, adding: ‘What it all comes to is this. Subordinate legislation, . .
Cited – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
Cited – Fishermen and Friends of The Sea v The Minister of Planning, Housing and The Environment PC 27-Nov-2017
(Court of Appeal of Trinidad and Tobago) . .
Cited – Chuck v Cremer 24-Jul-1846
The plaintiff’s solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been . .
Cited – Kruse v Johnson QBD 16-May-1898
The validity of a by-law prohibiting the playing of music in a public place within fifty yards of any dwelling after being requested by a constable or resident of that dwelling to desist was upheld. A private citizen taxed with a criminal charge . .
Cited – Hadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
Cited – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
Cited – Regina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .
Cited – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .
Cited – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Cited – Johnson v Walton 1990
There was a continuing obligation to obey a court order until it was discharged. . .
Cited – Crown Prosecution Service v T Admn 5-Apr-2006
The prosecutor appealed after the district judge had at first granted an anti-social behaviour order, but had later thought it too wide and that it was unenforceable and void.
Held: the district judge had exceeded his powers. There were . .
Cited – B v B (Residence: Imposition of conditions) CA 28-May-2004
The court was asked whether it had jurisdiction to hear applications with regard to a child removed from Scotland. The father lived in Scotland, and the mother and child in England. The child had been habitually resident in Scotland and removed to . .
Cited – Regina v Central London County Court and Managers of Gordon Hospital ex parte AX London CA 15-Mar-1999
An application to the court to exclude a person as a patient’s relative under the Act, could be made ex parte in appropriate situations, though it was preferable to take that application to an inter partes determination before other procedures . .
Cited – Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others CA 28-Jun-2002
The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as . .
Cited – Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others CA 28-Jun-2002
The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as . .
Cited – KW and Others v Rochdale Metropolitan Borough Council CA 20-Oct-2015
The court heard an appeal as to care directions given under the 2005 Act, and in particular whether they infringed the patient’s human rights. The judge of the Family Division took the view that a decision of the Court of Appeal was ultra vires.
Cited – Kirby, Regina v CACD 21-Feb-2019
Breach of non-molestation order that was subsequently set aside because of a procedural irregularity.
Held: The appeal failed. Singh LJ based the decision on ‘a long-standing principle of our law that there is an obligation to obey an . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.668647

KTT, Regina (on The Application of) v Secretary of State for The Home Department: Admn 12 Oct 2021

Linden J
[2021] EWHC 2722 (Admin)
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.668464

Pathan, Regina (on The Application of) v Secretary of State for The Home Department: SC 23 Oct 2020

Lord Kerr, Lord Wilson, Lady Black, Lord Briggs, Lady Arden
[2020] UKSC 41, [2021] INLR 91, [2020] 1 WLR 4506
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.655459

EK (Article 4 ECHR: Anti-Trafficking Convention) Tanzania: UTIAC 19 Jun 2013

UTIAC (1) Trafficking, as defined in Article 3(a) of the Palermo Protocol of 2000, falls within the ambit of Article 4 of the ECHR (prohibition of slavery and forced labour), as held in Rantsev v Cyprus and Russia [2010] ECHR 22.
(2) There is no distinction, for the purposes of Article 4, between a domestic worker who was trafficked by way of forced labour and one who arrived voluntarily and was then subjected to forced labour.
(3) Quite apart from the duties arising under Article 4, which in particular are set out in IDIs, the Secretary of State’s duty to provide assistance under the Anti-Trafficking Convention is engaged no later than the point at which a decision is made that there are conclusive grounds to believe a particular appellant to be a victim of trafficking.
(4) The duties arising under the Convention include an obligation to adopt such measures as may be necessary to assist victims in their physical, psychological and social recovery (Article 12 paragraph 1) and to issue a renewable residence permit to victims if their stay is necessary owing to their personal situation (Article 14), which must include consideration of his or her medical needs.
(5) The immigration decision in the present case was made without taking account of (i) the link between the appellant’s precarious state of health and the breach of the respondent’s protective obligations, in terms of her policy regarding foreign domestic workers and Article 4 of the ECHR; and (ii) the duties engaged under Articles 12, 14 and 16 of the Anti-Trafficking Convention. As a result, that decision was not in accordance with the law.
(6) Where there is no error of law in a First-tier judge’s conclusions on a discrete issue or issues, the conclusion that there is an error in respect of another issue or issues does not require a re-visiting of the issue(s) where no error was found, when the decision is re-made. Kizhakudan [2012] EWCA Civ 566 distinguished.
Turnbull L, Allen UTJ
[2013] UKUT 313 (IAC)
Bailii
European Convention on Human Rights 4
England and Wales

Updated: 26 October 2021; Ref: scu.513566

Reyes v Secretary of State for The Home Department (EEA Regs: Dependency): UTIAC 19 Jun 2013

UTIAC 1 The mere fact that a person is in the United Kingdom without lawful permission to work does not mean that he or she is to be considered as meeting the test of dependency under the Immigration (European Economic Area) Regulations 2006.
2 Whether a person qualifies as a dependent under the Regulations is to be determined at the date of decision on the basis of evidence produced to the respondent or, on appeal, the date of hearing on the basis of evidence produced to the tribunal.
Storey, Reeds UTJJ
[2013] UKUT 00314
Bailii
Immigration (European Economic Area) Regulations 2006
England and Wales

Updated: 26 October 2021; Ref: scu.513571

R, Regina (on The Application of) v London Borough of Croydon: Admn 14 Jun 2011

The Claimant, R, challenged the determination of his age by the Defendant, the London Borough of Croydon. R was an asylum seeker originally from Afghanistan. He claimed presently to be a child aged 17. R was unaware of his exact date of birth but said he was born in the Afghan year 1372. The Afghan year runs from March to March. The year 1372 is equivalent to 1993/94 so R’s case was that he was born on a date between 21 March 1993 and 20 March 1994.
Kenneth Parker J
[2011] EWHC 1473 (Admin)
Bailii
England and Wales

Updated: 26 October 2021; Ref: scu.440865

A, Regina (on The Application of) v Cardiff County Council and Others: Admn 7 Mar 2011

The claimant pursued an application for permission to apply for judicial review against the Secretary of State. He had entered unlawfully, and been held in immigration detention, but said that as a child at the time, he should not have bee detained.
Held: Blake J dismissed the application describing the appellant’s argument as intermingling matters of policy with the requirements of the statutory regime for detention. Paragraph 16 permitted the detention of children if the statutory conditions were met, but there were strong policy reasons against such detention unless it was necessary in all the circumstances. He continued: ‘Insofar as the applicant relies upon policy, then in my judgment the application of policy depends upon the assessment of facts made by the decision maker at the material time. At the time this applicant was detained the Secretary of State knew that Hampshire had assessed him to be over 18 in an assessment which they claimed was Merton-compliant. Secondly he knew that the immigration judge, acting on all material available to him in February 2010, had reached a similar conclusion not entirely dependant upon the approach of Hampshire. Thirdly, no discrete submissions had been made to the Secretary of State as to why the immigration judge and/or Hampshire assessment was wrong in fact.’
He held that in the circumstances the Secretary of State had no reason to have reached a conclusion contrary to that of the other authorities.
Blake J
[2011] EWHC 1216 (Admin)
Bailii
England and Wales
Cited by:
At first instance – AA, Regina (on The Application of) v Secretary of State for The Home Department SC 10-Jul-2013
The issue on this appeal is the effect of section 55 on the legality of the appellant’s detention under paragraph 16 over a period of 13 days. At the time of the detention the Secretary of State acted in the mistaken but reasonable belief that he . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.512265

New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department: SC 17 Jul 2013

The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor students had been revoked with no notice. They now appealed saying that the respondent’s Guidance was unlawful insofar as it purported to alter the effect of the stautory Rules but without parliamentary scrutiny.
Held: The appeals failed: ‘The Immigration Act does not prescribe the method of immigration control to be adopted. It leaves the Secretary of State to do that, subject to her laying before Parliament any rules that she prescribes as to the practice to be followed for regulating entry into and stay in the United Kingdom. Different methods of immigration control may call for more or less elaborate administrative infrastructure. It cannot have been Parliament’s intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the regulation of entry into or stay in the United Kingdom. If the Secretary of State is entitled (as she plainly is) to prescribe and lay before Parliament rules for the grant of leave to enter or remain in the United Kingdom which depend upon the migrant having a suitable sponsor, then she must be also be entitled to take administrative measures for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act. This right is not of course unlimited. The Secretary of State cannot adopt measures for identifying suitable sponsors which are inconsistent with the Act or the Immigration Rules. Without specific statutory authority, she cannot adopt measures which are coercive; or which infringe the legal rights of others (including their rights under the Human Rights Convention); or which are irrational or unfair or otherwise conflict with the general constraints on administrative action imposed by public law.’
Orse R (New London College Ltd) v Secretary of State for the Home Department (Migrants’ Rights Network intervening)
Lord Hope, Deputy President, Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 51, [2014] Imm AR 151, [2013] PTSR 995, [2014] INLR 66, [2013] WLR(D) 294, [2013] 4 All ER 195, [2013] 1 WLR 2358, UKSC 2012/0060
Bailii, WLRD, Bailii Summary, SC Summary, SC
Immigration Act 1971 1(2)
England and Wales
Citing:
At first instance – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 19-Oct-2010
The claimant sought interim relief in relation to it’s Tier 4 Sponsor Licence (A rating). The Secretary of State through the UK Border Agency had suspended it, jeopardising the business of the claimant, which involved the provision of education to . .
Appeal from – New London College Ltd, Regina (on the application of) v Secretary of State for the Home Department CA 2-Feb-2012
The court was asked whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non-EEA students lacked the necessary legislative authority . .
Cited – West London Vocational Training College Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 16-Jan-2013
. .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
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 – Regina v Secretary of State for Health, ex parte C CA 21-Feb-2000
An extra-statutory database maintained by the Secretary of State of the names of people considered to be unsafe to work with children was lawful. Two competing and genuine interests were to be balanced. The right to pursue employment without being . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
The House was asked whether the payment of widow’s payment and widowed mother’s allowance to women alone discriminated against men.
Held: The Secretary’s appeal succeded. Section 6 of the 1998 Act permitted the discrimination as an existing . .
Cited – MO (Nigeria) v Secretary of State for Home Department CA 10-Apr-2008
The claimant appealed refusal of his claim of a right to remain in the UK working as a postgraduate doctor. The rules had changed and there were no transtional provisions.
Held: The claim was to be heard under the new provisions despite the . .
Cited – Shrewsbury and Atcham Borough Council and Another v Secretary of State for Communities and Local Government and Another CA 4-Mar-2008
The basis of the Crown’s power to exercise certain administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority, was the Crown’s status as a common law . .

Cited by:
Cited – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.512425

The Secretary of State for The Home Department v SM (Rwanda): CA 11 Dec 2018

Haddon-Cave LJ
[2019] INLR 384, [2018] EWCA Civ 2770, [2019] Imm AR 714
Bailii
England and Wales
Cited by:
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.631172

BE, Regina (on The Application of) v Secretary of State for The Home Department: Admn 23 Mar 2011

The claimant sought a declaration that his administrative detention pending return to Iran was unlawful and sought damages for false imprisonment.
Stephen Morris QC J
[2011] EWHC 690 (Admin)
Bailii
England and Wales

Updated: 25 October 2021; Ref: scu.430838

FU, Regina (on The Application of) v Secretary of State for The Home Department: Admn 1 Nov 2010

The claimant challenged the refusal to treat as valid an application submitted under paragraph 34 of the Immigration Rules for leave to remain as a Tier 4 (General) Student Migrant.
Mitting J
[2010] EWHC 2922 (Admin)
Bailii
England and Wales

Updated: 25 October 2021; Ref: scu.425964