Category: Immigration

Velaj (EEA Regulations – Interpretation, Reg 16, Zambrano) Kosovo: UTIAC 3 Jun 2021

(1) In considering a piece of legislation designed to implement European law, a purposive construction should be adopted as set out in Marleasing S.A v LA Commercial Internacional de Alimentacion S.A. [1992] 1 CMLR 305 and applying the principles set out in British Gas Trading Ltd v Lock and Anor [2016] EWCA Civ 983 at [38].
(2) Where implementing legislation goes beyond what is required by a Directive or to ensure compliance with rulings of the Court of Justice, there is no imperative to achieve a ‘conforming’ interpretation, but a careful analysis must be undertaken to determine if it was intended that the implementing legislation was to go beyond what flows from the Directive; in any event, the same means of construction set out in (1) must apply.
(3) On that basis, in construing reg. 16 (5) of the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’), a purposive approach must be followed, bearing in mind also that the question of whether a child would be compelled to leave is a practical test to be applied to the actual facts and not to a theoretical set of facts (Patel v SSHD) [2019] UKSC 59 at [30] (applying Chavez-Vilchez [2017] EUECJ C-133/15). That is a necessary corollary of the use of ‘unable’ in reg. 16(5).
(4) In order to meet the requirements of reg 16(5), the key issue is inability to reside in the United Kingdom which requires a detailed consideration of the circumstances of both carers.
(5) The EEA Regulations were revoked on 31 December 2020. Schedule 3 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020/1309) sets out those parts of the EEA Regulations preserved for immigration (but not social security) purposes; reg.16 is not one of the provisions preserved.
[2021] UKUT 235 (IAC)
Bailii
England and Wales

Updated: 12 October 2021; Ref: scu.668133

Al-Sirri v Secretary of State for The Home Department: SC 21 Nov 2012

The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the exemption under which they were to be excluded.
Held: The appeals failed. The exemption must be construed tightly and applied only with caution, recognising the need for it to be applied only for serious criminal acts with international implications and adequate evidence of responsibility.
The article required acts inconsistent the United Nations purposes and principles, and it was not open to member states to adopt their own definition. At the moment there was no internationally recognised defition of terrorism, which meant in turn that even greater caution was required and that it should be triggered only in extreme circumstances. The test was whether the resulting acts had the requisite serious effect upon international peace. The definition of terrorism in the 2000 Act was significantly wider than in article 1F(c) of the 1951 Convention relating to the Status of Refugees.
The applicant DD had fought against the ISAF and UNAMA forces in Afghanistan. Whilst the standards applicable might differ as between such forces, the ISAF at least was clearly a force seeking to apply the UN principles and purposes, and DD’s Acts were contrary to it.
In Al-Sirri’s case the real issue was as to the presence of proof of his involvement. He had been tried and acquitted for the offence on which his exclusion was based. ‘Serious reasons for considering’ was not the same as proof beyond reasonable doubt, and its meaning was autonomous. It required more than ‘reasonable grounds’. Strong or clear and credible evidence had to be present and the considered judgment of the decision-maker was required.
Lady Hale and Lord Dyson said: ‘there is as yet no internationally agreed definition of terrorism’ and ‘no comprehensive international Convention binding Member States to take action against it’.
Lord Phillips, Lady Hale, Lord Kerr, Lord Dyson, Lord Wilson
[2012] UKSC 54, [2012] 3 WLR 1263, [2012] WLR(D) 333, UKSC 2009/0036, [2013] 1 AC 745, [2013] 1 All ER 1267
Bailii, Bailii Summary, SC Summary, SC, WLRD
Geneva Convention on the Status of Refugees 1F(c), Immigration, Asylum and Nationality Act 2006 54
England and Wales
Citing:
Cited – Pushpanathan v Canada (Minister of Citizenship and Immigration) 3-Sep-2002
FCC (Federal Court of Canada – Trial Division) – Application by Pushpanathan for judicial review of a decision of the Convention Refugee Determination Division that he was not a Convention refugee. Pushpanathan . .
Appeal from – Secretary of State for The Home Department v DD (Afghanistan) CA 10-Dec-2010
The claimant appealed against rejection of his claim for asylum and protection on human rights grounds. He said that if returned to Afghanistan he would face a real risk of serious harm. . .
Appeal from – Al-Sirri v Secretary of State for the Home Department and Another CA 18-Mar-2009
The applicant appealed against rejection of his asylum claim on the basis of his alleged involvement in acts of terrorism. He had been set to face trial but the charges were dropped for insufficient evidence.
Held: Sedley LJ considered the . .
Cited – JS (Sri Lanka), Regina (on The Application of) v Secretary of State for The Home Department SC 17-Mar-2010
The asylum seeker was accused of complicity in war crimes in Sri Lanka. He had worked as an intelligence officer but his cover had been broken and he fled to the UK. It was said that he was excluded from protection as an asylum seeker.
Held: . .
Cited – B v Germany ECJ 9-Nov-2010
ECJ (Grand Chamber) Directive 2004/83/EC – Minimum standards for the grant of refugee status or of subsidiary protection – Article 12 – Exclusion from refugee status – Article 12(2)(b) and (c) – Notion of . .
Cited – B v Germany ECJ 9-Nov-2010
ECJ Directive 2004/83/EC – Minimum standards for the grant of refugee status or of subsidiary protection – Article 12 – Exclusion from refugee status – Article 12(2)(b) and (c) – Notion of ‘serious non-political . .
Cited – Adan v Secretary of State for the Home Department HL 6-Apr-1998
A fear of persecution which was justified only historically, was insufficient to justify an asylum claim. The applicant must show justification for contemporary fears. The applicant had been granted exceptional leave to remain in the UK, but wanted . .
Cited – W97/164 v Minister for Immigration and Multicultural Affairs 10-Jun-1998
Austlii (Administrative Appeals Tribunal – Australia) IMMIGRATION AND CITIZENSHIP – application for a protection visa – whether applicant excluded from protection under the Refugees Convention by reason of . .
Cited – Arquita v Minister for Immigration and Multi-cultural Affairs 22-Dec-2000
Federal Court of Australia – MIGRATION – refugees – application for protection visa – whether serious reasons for considering commission of serious non-political crime outside country of refuge – application of Art 1F(b) of Convention Relating to . .
Cited – Regina v Uxbridge Magistrates and Another ex parte Adimi; R v CPS ex parte Sorani; R v SSHD and Another ex parte Kaziu Admn 29-Jul-1999
The three asylum seeker appellants arrived in the United Kingdom at different times in possession of false passports. They were prosecuted for possession or use of false documents contrary to section 5, and for obtaining air services by deception . .

Cited by:
Cited – Gul, Regina v SC 23-Oct-2013
Mr Gul appealed against a dismissal of his appeal against his conviction for dissemination of terrorist publications contrary to section 2 of the 2006 Act. The Court was now asked as to the meaning of ‘terrorism’ in section 1 of the Terrorism Act . .
Cited – VB and Others v Westminster Magistrates SC 5-Nov-2014
Extraditions to follow normal open justice rules
Application was made by Rwanda for the extradition of four individuals to face crimes said to have been committed during their civil war. Witnesses were prepared to give evidence but only in private and not being seen by the representatives of . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.465934

Pengeyo and Others v Secretary of State for The Home Department: CA 11 Nov 2010

These three appeals raise a common issue: if the immigration decision which is being appealed to the Immigration and Asylum Chamber carries no right of in-country appeal, but the point is not taken on appeal to the First-Tier Tribunal, can it thereafter be contended that there was no jurisdiction to entertain the appeal?
Sedley, Lloyd, Sullivan LJJ
[2010] EWCA Civ 1275, [2011] 1 WLR 2552
Bailii
England and Wales

Updated: 10 October 2021; Ref: scu.425904

Rashid, Regina (on the Application of) v Secretary of State for the Home Department: CA 16 Jun 2005

The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it was unfair to treat this applicant differently.
Held: The appeal failed. It was unfair and an abuse of power for the Secretary of State to refuse to afford asylum to an applicant in circumstances where had the Secretary of State properly applied his own policies when the claim had originally been made he would have done so, and where others had been allowed asylum in precisely the same circumstances: ‘there plainly is a legitimate expectation in a claimant for asylum that the Secretary of State will apply his policy on asylum to the claim. Whether the claimant knows of the policy is not in the present context relevant. It would be grossly unfair if the court’s ability to intervene depended at all upon whether the particular claimant had or had not heard of a policy, especially one unknown to relevant Home Office officials.’ The court declared that the claimant is entitled to a grant indefinite leave to remain in the United Kingdom. That provides a remedy for the unfairness and is the appropriate response in the circumstances.
Pill, May, Dyson LJJ
[2005] EWCA Civ 744, Times 12-Jul-2005, [2005] Imm AR 608
Bailii
England and Wales
Citing:
Appeal from – Rashid, Regina (on the Application Of) v Secretary of State for Home Department Admn 22-Oct-2004
The claimant sought asylum, being an Iraqi Kurd. He was not told by the defendant of its policy not to require internal relocation within the Kurdish autonomous zone. The policy had been applied for the benefit of others, as was revealed only in . .
Cited – HTV Ltd v Price Commission CA 1976
Policies created by public bodies are a means of promoting consistency while not fettering the discretion of a public body. They allow others to know how the authority will respond to those who must deal with the authority. In maiing such policies: . .
Cited – Regina v Inland Revenue Commission ex parte Preston; In re Preston HL 1984
Duty of Fairness to taxpayer – Written Assurance
The applicant was assured by the Inland Revenue that it would not raise further inquiries on certain tax affairs if he agreed to forgo interest relief which he had claimed and to pay a certain sum in capital gains tax.
Held: Where the . .
Cited – Regina (On the Application of Bajram Zeqiri) v Secretary of State for The Home Department CA 12-Mar-2001
The applicant’s case had been delayed to allow a test case as to whether Germany was to be treated as a safe country for the return of asylum seekers. Before the test case appeal was abandoned, circumstances changed so as to allow certification of . .
Cited – HTV Ltd v Price Commission CA 1976
Policies created by public bodies are a means of promoting consistency while not fettering the discretion of a public body. They allow others to know how the authority will respond to those who must deal with the authority. In maiing such policies: . .
Cited – Regina v Secretary of State for Home Department ex parte Mohammed Hussain Ahmed and Idris Ibrahim Patel Admn 27-Apr-1998
The ratification by the government of a Treaty may create a legitimate expectation that its terms will be applied in dealing with an individual affected by it. (Woolf) ‘I will accept that the entering into a treaty by the Secretary of State could . .
Cited – Regina v Commissioners of Inland Revenue, ex parte Unilever plc CA 1996
The Revenue had refused to exercise a discretion in favour of the taxpayer in the same form it had granted for over twenty years. The taxpayer complained that this was unfair.
Held: The new approach to late applications, brought in without any . .
Cited – Adan v Secretary of State for the Home Department HL 6-Apr-1998
A fear of persecution which was justified only historically, was insufficient to justify an asylum claim. The applicant must show justification for contemporary fears. The applicant had been granted exceptional leave to remain in the UK, but wanted . .
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 – Regina v London Borough of Newham and Manik Bibi and Ataya Al-Nashed CA 26-Apr-2001
CS The housing authority had mistakenly thought that it was obliged to re-house the applicants under the Act with secure accommodation, and promised them accordingly.
Held: That promise had created a . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan Admn 11-Dec-1998
There had been no transfer to Social Service Authorities of the Health Services’ statutory duty to provide specialist nursing and related care to the elderly, and having made a promise to provide a home for life, the Health Authority would be held . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
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 by:
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change and Another CA 3-Jun-2011
The company had developed a means of generating electricity from their excess sugar supplies, and challenged the support given to it by the respondent and in particular that the 2009 Order allowed the respondent to favour some types of energy . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.226312

Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur: HL 20 Dec 2000

The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore an asylum seeker returned to those countries would in turn face return to his country of origin. Accordingly neither France and Germany was a safe country for return in these circumstances. There can be only one correct interpretation of the treaty, and cases of dispute, should be dealt with by the International Court of Justice under article 38. In the absence of such a decision, national courts must make their decisions, but do so untrammelled by national legal culture. No criticism was intended of interpretations adopted in good faith by Germany and by France.
Lord Slynn observed that an international treaty has only one meaning. The courts: ‘cannot simply adopt a list of permissible or legitimate or possible or reasonable meanings and accept that any one of those when applied would be in compliance with the Convention.’
Times 20-Dec-2000, Gazette 25-Jan-2001, [2001] 1 All ER 593, [2001] 2 WLR 143, [2000] UKHL 67, [2001] 2 AC 477
House of Lords, House of Lords, Bailii
Geneva Convention and Protocol relating to the Status of Refugees 1951 (1951) (Cmd 9171)
England and Wales
Citing:
See Also – Adan v Secretary of State for the Home Department HL 6-Apr-1998
A fear of persecution which was justified only historically, was insufficient to justify an asylum claim. The applicant must show justification for contemporary fears. The applicant had been granted exceptional leave to remain in the UK, but wanted . .

Cited by:
Cited – Mohammad, Manoharan, Sakhee, Yogarajah v The Secretary of State for the Home Department QBD 24-Jan-2002
The applicants were asylum seekers. They were made subject to certificates issued by the Secretary of State which would require refoulement, for them to be returned to the country into which they first made their escape for their application for . .
Cited – Sepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
Cited – Hoxha and Another v Secretary of State for the Home Department HL 10-Mar-2005
The claimants sought to maintain their claims for asylum. They had fled persecution, but before their claims for asylum were determined conditions in their home country changed so that they could no longer be said to have a well founded fear of . .
Cited – HC v Secretary of State for the Home Department CA 20-Jul-2005
The applicant challenged refusal of his asylum application saying that the court had failed to take account of the fact that as a homosexual moslem, he would face persecution if returned home.
Held: The IAT had not properly recognised that at . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department Admn 2-Dec-2002
The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Cited – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.87923