Category: Immigration

Arturas (Child’s Best Interests: NI Appeals) Lithuania: UTIAC 8 Sep 2021

(1) Under the laws of England and Wales and the law of Scotland, a failure by the Secretary of State to comply with her duties under section 55(1) or (3) of the Borders, Citizenship and Immigration Act 2009 is highly unlikely to prevent the Tribunal from reaching a lawful decision in a human rights appeal involving a child: AJ (India) v Secretary of State for the Home Department [2011] EWCA Civ 1191; ZG v Secretary of State for the Home Department [2021] CSIH 16.
(2) Under the law of Northern Ireland, the position is different: JG v Upper Tribunal Immigration and Asylum Chamber [2019] NICA 27.
[2021] UKUT 237 (IAC)
Bailii
England and Wales

Updated: 25 October 2021; Ref: scu.668138

Hirsi Jamaa v Italy: ECHR 23 Feb 2012

The court was asked whether the asylum seekers were subject to the jurisdiction of Italy while they were detained on the ship flying the Italian flag.
Held: The court need not concern itself with the question whether the state is in a position to guarantee Convention rights to that individual other than those it is said to have breached.
27765/09 – HEJUD, [2012] ECHR 1845
Bailii
European Convention on Human Rights
Cited by:
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.465565

Dogan v Sicherheitsdirektion Fur Das Bundesland Vorarlberg (External Relations): ECJ 7 Jul 2005

Europa EEC-Turkey Association – Free movement of workers – Decision No 1/80 of the Association Council – Article 6(1), third indent, and Article 6(2) – Duly registered as belonging to the labour market of a Member State – Criminal conviction – Prison sentence – Effect on right of residence.
C-383/03, [2005] EUECJ C-383/03
Bailii
European

Updated: 23 October 2021; Ref: scu.228456

Tum, Regina (on the Application of) v Secretary of State for Home Department: Admn 19 Nov 2003

The applicants were Turkish citizens appealling refusal of temporary admission pending the outcome of their asylum applications. Each applicant had been refused saying that the application should have been made to a third country. They now sought treatment under the former procedure applicable to those seeking to establish business here.
Held: A turkish applicant was entitled to the benefit of the stand-still provisions of article 41(1). Leave had been incorrectly refused.
[2003] EWHC 2745 (Admin), Times 27-Nov-2003
Bailii
Brussels Additional Protocol 1970 Art 41
England and Wales

Updated: 23 October 2021; Ref: scu.188142

Badjoko, Regina (On the Application of) v Secretary Of State for the Home Department: Admn 12 Sep 2003

[2003] EWHC 3034 (Admin)
Bailii
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.373973

AM (Somalia), Regina (on the Application of) v Secretary of State for the Home Department: CA 25 Feb 2009

The claimant sought to appeal refusal of his asylum claim. The respondent prepared a notice to certify that it was unfounded, but it was defective. The claimant then appealed on human rights grounds, and the respondent then issued a further notice. The claimant objected.
Held: The claimant’s appeal succeeded. The Secretary of State could not stifle the in-country appeal by the subsequent issue of a notice.
Lord Justice Sedley, Lord Justice Jacob and Lord Justice Lloyd
[2009] EWCA Civ 114, Times 01-Apr-2009
Bailii
England and Wales

Updated: 22 October 2021; Ref: scu.303134

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 bail. In such a situation, it is the responsibility of the parties (in particular, the respondent) immediately to draw the defect to the attention of the Tribunal, so that it can be corrected.
(2) Paragraph 2 of Schedule 3 to the 1971 Act gives the respondent power to impose restrictions on taking employment etc in respect of persons who are subject to immigration control. It is difficult to see how any condition of bail granted by the First-tier Tribunal could affect this freestanding power.
(3) Licence conditions imposed by the National Probation Service serve aims wider and different from the conditions that may be imposed by the First-tier Tribunal on a grant of bail. Rather than imposing bail conditions ‘in the same terms as the licence’, which is what the First-tier Tribunal’s Bail Guidance recommends, the better course is for the First-tier Tribunal to state that its conditions of bail are without prejudice to any conditions contained in the licence, and for judges to ensure there is no conflict between bail conditions and licence conditions.
‘The respondent’s contention that the judge’s grant of bail was a nullity does not mean that a person may ignore a bail decision of the tribunal which he or she considers invalid. As a judicial action (albeit by a body of limited jurisdiction) the tribunal’s order has effect unless and until a court or tribunal seized of jurisdiction in respect of the matter decides that it was invalid.’
A grant of bail was of no legal effect was liable to have serious consequences, and inferred that it could not have been Parliament’s intention that defects in the grant of bail should render it void. Rather, there was a valid but defective grant of bail. The defect could be corrected by the judge on its being drawn to his attention, as the Secretary of State should immediately have done. Since the grant of bail on 30 July 2015 was valid, albeit defective, it remained in force. Its defective nature could be remedied by the First-tier Tribunal. It followed that the restrictions purportedly imposed by the Secretary of State were of no effect.
[2017] UKUT 163 (IAC)
Bailii
England and Wales
Cited by:
At UTIAC – 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: 22 October 2021; Ref: scu.588797

SH (Palestinian Territories) v Secretary of State for the Home Department: CA 22 Oct 2008

The court considered the claimants appeal against refusal of asylum and for his return to Palestine, against the case of MA which decided that denial of return to a stateless person to his country of former habitual residence did not of itself give rise to recognition as a refugee under the 1951 Geneva Convention relating to the status of refugees.
[2008] EWCA Civ 1150, [2009] Imm AR 306
Bailii
England and Wales

Updated: 20 October 2021; Ref: scu.277111

Mohammed, Regina (On the Application of) v Secretary Of State for the Home Department: Admn 8 Jun 2009

The claimant challenged the Secretary of State’s decision to refuse to treat his claim to indefinite leave on family grounds as a fresh claim under paragraph 353 of the Immigration Rules and her decision to refuse to grant him and his wife and four children indefinite leave to remain under the family concession policy.
Mitting J
[2009] EWHC 1402 (Admin)
Bailii
England and Wales

Updated: 20 October 2021; Ref: scu.347255

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 operation of the so-called ‘one-stop’ procedures.
Held: The appeals failed. The Home Secretary did not have a duty to issue a direction for removal from the United Kingdom at the same time as refusing an application for an extension of limited leave to remain in the United Kingdom. The First Tier Tribunal when hearing an appeal was not limited in the matters submitted on the application, but had to consider additional later evidence. However in the cases under appeal the additional evidence was not of such weight as to disturb the result.
Mance, Kerr, Reed, Carnwath, Hughes LL
[2013] UKSC 72, [2014] Imm AR 456, [2014] 1 AC 651, [2014] 1 All ER 1157, [2014] INLR 205, [2013] 3 WLR 1517, UKSC 2012/0177, [2013] WLR(D) 450
Bailii, Bailii Summary, SC Summary, SC, WLRD
Immigration Act 1971 3, Nationality, Immigration and Asylum Act 2002 120, Immigration and Asylum Act 1999 10, Immigration, Asylum and Nationality Act 2006 47
England and Wales
Citing:
Appeal from – Patel and Others v Secretary of State for The Home Department CA 1-Jun-2012
Where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary . .
Cited – Alam and Others v Secretary of State for The Home Department CA 13-Jul-2012
. .
Not followed – Mirza and Others, Regina (on The Application of) v Secretary of State for The Home Department CA 23-Feb-2011
The Secretary of State’s failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. . .
Cited – AS (Afghanistan) v Secretary of State for the Home Department CA 20-Oct-2009
An appeal to the FTT covers not only any ground before the Secretary of State when she made the decision under appeal but also any grounds raised in response to a one-stop notice issued under section 120 of the 2002 Act, even if they had not been . .
Not Followed – Sapkota and Another (Pakistan) v Secretary of State for The Home Department CA 15-Nov-2011
In each case, the respondent had refused an application for leave to remain, but had taken no prompt steps for their removal. The applicants now said that this rendered the original decision ‘not in accordance with the law’ under section 84(1)(e) of . .
Cited – AQ (Pakistan) v Secretary of State for The Home Department CA 20-Jul-2011
The claimant appealed against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dismissed his appeal against a decision of an Immigration Judge in turn dismissing his appeal under section 82 of the 2002 Act against the decision of . .
Cited – 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 . .
Cited – Miah and Others v Secretary of State for The Home Department CA 7-Mar-2012
The applicant had been refused leave to remain as a Tier 2 (General) Migrant at a time even though he was only two months short of the five years’ continuous residence necessary to support a case for indefinite leave to remain under the rules. He . .
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 – EA (Section 85, Explained) Nigeria IAT 30-Jan-2007
New evidence admitted by the tribunal had to be ‘relevant to the decision actually made’. . .
Cited – Lekstaka, Regina (on the Application of) v Immigration Appeal Tribunal and Another Admn 18-Apr-2005
Collins J said: ‘one is entitled to see, whether in all the circumstances, this case falls within the spirit of the Rules or the policies, even if not within the letter.’ . .
Cited – SB (Bangladesh) v Secretary of State for the Home Department CA 31-Jan-2007
A Bangladeshi woman entered into an arranged polygamous marriage in Bangladesh and many years later dishonestly (led by her husband) obtained entry clearance as a visitor before then unsuccessfully seeking leave to remain as being financially . .
Cited – Ekinci, Regina (on the Application of) v Secretary of State for the Home Department CA 17-Jun-2003
The appellant, a Turkish citizen entered illegally and claimed asylum. He falsely said he had not sought asylum in another EC country. He had lived in Germany for eight years, and had twice unsuccessfully claimed asylum. Shortly after arrangements . .
Cited – Mongoto v Secretary of State for the Home Department CA 19-May-2005
Laws LJ referred to the argument that the applicant could derive ‘analogical support’ from the Concession, even though it did not in terms apply to him as a ‘spurious’ argument. . .
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 – Rudi, Regina (on the Application of) v Secretary of State for the Home Department CA 14-Dec-2007
Carnwath LJ said of the ‘near-miss’ argument: ‘This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it . .
Cited – Mansoor, Regina (on The Application of) v Secretary of State for The Home Department Admn 23-Mar-2011
The claimant sought judicial review of the defendant’s decision not to allow her indefinite leave to remain in the UK with her husband and family.
Held: On the facts presented, the interference with the applicant’s family life was such as to . .

Cited by:
Cited – Rhuppiah v Secretary of State for The Home Department SC 14-Nov-2018
Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 October 2021; Ref: scu.518306

Rhuppiah v Secretary of State for The Home Department: SC 14 Nov 2018

Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused because of gaps in the lawfulness of her stay, and her application had been on the wrong form, and before re-applying, the Rules changed against her, and she could only rely on Human Rights grounds. Leave was refused. The court considered the meaning of having a precarious immigration status, and the regard to be had to her private life.
Held: Her appeal (now academic) was granted. A refusal of leave to remain was capable of interfering with article 8 rights, with limited discretion to justify that interference. The HS was prompted by section 110A(2) to regard the public interest in using that discretion, and that may include maintenance of immigration control. The result was that a person’s presence might be precarious though lawful. Applying the concept of precariousness does not depend on a subtle evaluation of the overall circumstances as suggested by the Court of Appeal. Therefore, it differentiated the situation of an applicant who was no more than tolerated by the host state during her applications for residence, from ‘settled migrants’ with a right of residence. The Court had already addressed this ECtHR decision, finding that family life will be precarious if created when an applicant was here unlawfully or temporarily.
ECHR jurisprudence approached the concept of precariousness in the context of the right to family life by asking whether the family life was created at a time when the parties knew that the immigration status of one of them made its persistence in the host state precarious from the outset.
Precariousness within section 117B applies to private life. The UT had held that an immigration status under the section 117B if his presence was dependent upon a further grant of leave. That decision was now approved.
A non UK citizen, present in the UK with leave to reside other than indefinitely, has a precarious immigration
status for the purposes of section 117B(5). The FTT nonetheless erred in concluding that Ms R was not financially independent within section 117B(3). The Supreme Court holds that ‘financially independent’ in section
117B(3) means ‘not financially dependent upon the state’. It therefore allowed her appeal.
Lord Wilson, Lord Carnwath, Lord Hughes, Lady Black, Lord Lloyd-Jones
[2018] UKSC 58, UKSC 2017/0075, [2019] 1 All ER 1007, [2019] INLR 233, [2019] Imm AR 452, [2019] HRLR 4, [2018] 1 WLR 5536
Bailii, Bailii Summary, SC, SC Summary, SC Videos Summary, SC 2018 Jul 10 am Video, SC 2018 Jul 10 pm Video
European Convention on Human Rights, Nationality, Immigration and Asylum Act 2002 117A(2) 117B(5), Human Rights Act 1998 6
England and Wales
Citing:
Appeal from – Rhuppiah v Secretary of State for The Home Department CA 2-Aug-2016
The claimant had entered as a student but had overstayed, and having exhausted her appeal rights she sought proection under human rights law. . .
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 . .
Cited – AR, Regina (on The Application of) v Chief Constable of Greater Manchester Police and Another SC 30-Jul-2018
The appellant had been tried for and acquitted on a criminal charge. He now challenged the disclosure by the respondent of the charge in an Enhanced Criminal Record Certificate.
Held: His appeal failed. The critical question was whether the . .
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.
Updated: 18 October 2021; Ref: scu.628674

Rhuppiah v Secretary of State for The Home Department: CA 2 Aug 2016

The claimant had entered as a student but had overstayed, and having exhausted her appeal rights she sought proection under human rights law.
Moore-Bick, Sales LJJ, Sir Stephen Richards
[2016] EWCA Civ 803
Bailii
European Convention on Human Rights 8
England and Wales
Cited by:
Appeal from – Rhuppiah v Secretary of State for The Home Department SC 14-Nov-2018
Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 October 2021; Ref: scu.567881