Regina v Secretary of State for the Home Department, Ex parte Zamir: CA 21 Dec 1979

The claimant appealed refusal of his request for a writ of habeas corpus. He had been detained for return to Pakistand. He had obtained an entry certificate, but then married, but did not disclose that on entry.
Held: The failure amounted to a deception and the detention and intended removal were correct.

Stephenson, Eveleigh and Brandon, LJJ
[1980] QB 378, [1980] 1 All ER 1041
Immigration Act 1971
Citing:
Appeal fromRegina v Secretary of State for the Home Department, Ex parte Zamir QBD 14-Mar-1979
The applicant sought a writ of habeas corpus having been detained pending his removal after failing to disclose his subsquent marriage on entry under an entry certificate.
Held: The request failed on the basis that entry had been obtained by a . .

Cited by:
Appeal fromRegina v Secretary of State for the Home Department, Ex parte Zamir HL 17-Jul-1980
A person who obtained leave to enter, but did so by fraud, was an illegal entrant, on the basis that the fraud had the effect of vitiating the leave to enter which had been granted: ‘it is clear on general principles of law that deception may arise . .
At court of AppealZamir v United Kingdom ECHR 1983
(Commission) Review of the lawfulness of a detention must be by a court, by a body which is judicial in character, and the review must be speedy. The right under Article 5.4 ‘must be seen as independent of the possibility of applying to a court for . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 December 2021; Ref: scu.271024

Gu v Secretary of State for The Home Department: Admn 20 May 2014

Foskett J held: ‘something cannot be ‘missing’ from a sequence until the sequence itself exists. To my mind that means that at least the start and the end of the sequence must be in evidence for the sequence to exist. Something missing from it can only, therefore, be from within those two limits.’

Fosjett J
[2014] EWHC 1634 (Admin), [2015] 1 All ER 363
Bailii
England and Wales
Cited by:
CitedMandalia v Secretary of State for The Home Department SC 14-Oct-2015
The Court considered the guidance given to UK Border Agency case workers when considering document submitted by persons applying for leave to enter or stay in the UK as foreign students. M had applied to study here, but had not accompanied his . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 04 December 2021; Ref: scu.526426

TN (Ap), Re Judicial Review: SCS 14 May 2014

Judicial Review of a decision by the Secretary of State for the Home Department made on 25 November 2013 to certify in terms of section 96(2) of the Nationality Immigration and Asylum Act 2002 an application made by the petitioner for the revocation of a deportation order

[2014] ScotCS CSOH – 85
Bailii
Scotland

Immigration

Updated: 03 December 2021; Ref: scu.526026

Syed and Another, Regina (on The Application of) v Secretary of State for The Home Department: CA 4 Mar 2014

Both cass raised issues concerning the qualifications necessary for the grant of leave to remain as a Tier 1 (General) Migrant or a Tier 1 (Post-Study Work) Migrant under the points based system in Part 6A of the Immigration Rules.

Richards, Patten, Gloster LJJ
[2014] EWCA Civ 196
Bailii
England and Wales

Immigration

Updated: 01 December 2021; Ref: scu.521953

NK v France: ECHR 19 Dec 2013

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

Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Immigration

Updated: 28 November 2021; Ref: scu.519537

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

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

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

Immigration

Updated: 20 November 2021; Ref: scu.515453

Re Filev and Osmani: ECJ 19 Sep 2013

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

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

Immigration

Updated: 20 November 2021; Ref: scu.515362

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

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

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

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration

Updated: 20 November 2021; Ref: scu.515140

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

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

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

Immigration

Updated: 18 November 2021; Ref: scu.514293

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 defendant had issued a supplementary decision directly addressing section 55, but the claimant said that this had been merely an ex post facto attempt at justification.
Held: ‘the substance of the Secretary of State’s duty pursuant to section 55 was discharged by the decision of 5 November 2012 to grant the Claimant five years leave to remain pursuant to the staged settlement policy. In any event the decision letter of 3 October 2014 was a free-standing reconsideration of the issue and has rendered these proceedings academic. The relief sought is therefore refused. ‘
This is a clear case of the substance of the section 55 duty being discharged by the granting of five years leave to remain to the Claimant under the rules in circumstances where her children’s status was not in question and there is nothing to suggest that there are factors showing detrimental impact upon the children which require consideration as to whether indefinite leave should be granted: ‘an applicant who wishes to persuade the Secretary of State to grant leave for a period longer than that provided for by the staged settlement policy has to do more than point to the fact that she is a child.’
The court summarised the effect of the Alladin case: ‘i) It is sufficient if the substance of the duty under section 55 was discharged and the decision maker does not have to refer explicitly to the statute or guidance: paragraph 51.
ii) Having a staged route to settlement as opposed to immediate grant of indefinite leave to remain is lawful: paragraphs 53 and 59
iii) Even where children are applicants (which is not the present case), it does not follow from the duty under section 55 that the Secretary of State is bound, on a first application, to grant indefinite leave to remain: paragraph 59
iv) ‘An applicant who wishes to persuade the Secretary of State to grant her leave for a period longer than that provided by the staged settlement policy has to do more than point to the fact she is a child’ : paragraph 59
v) The practice of issuing supplementary decision letters following an initiation of an application for judicial review is not necessarily coloured by the existence of the judicial review claim and can be a ‘free-standing reconsideration of the case’ : paragraph 64
vi) Where indefinite leave to remain was not even requested by the Claimant this is a compelling reason for not granting it: paragraph 71′

David Casement QC
[2015] EWHC 7 (Admin)
Bailii
Borders, Citizenship and Immigration Act 2009 55, Council Directive 2004/83/EC 24, Immigration Rules 339Q(i)
England and Wales
Citing:
CitedTS, 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 . .
CitedAlladin, 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 . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 12 November 2021; Ref: scu.540508

OQ (India) and Another v Secretary of State for the Home Department; SM (India) v Same: CA 25 Nov 2009

The claimants sought a right of entry and of residence as dependants of EU citizens. They had been refused by the entry clearance officer.
Held: The test of the status of a dependent member of a worker’s family was the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker’s support. It was therefore inappropriate to question the applicant on that basis or to refuse entry for that reason.

Lord Justice Ward, Lord Justice Etherton and Lord Justice Sullivan
Times 07-Dec-2009
Parliament and Council Directive 2004/38/EC (OJ April 30, 2004 L158/77)
England and Wales
Citing:
LeaveOQ (India) v Entry Clearance Officer CA 11-Jun-2009
. .

Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 11 November 2021; Ref: scu.392549

NK v France (LS): ECHR 19 Dec 2013

ECHR Article 3
Expulsion
Risk of ill-treatment in Pakistan owing to applicant’s conversion to Ahmadism: deportation would constitute a violation
Facts – The applicant, who was from a Sunni Muslim family in Pakistan, converted to the Ahmadiyya religion. In 2009 he arrived in France where his asylum application was rejected.
Law – Article 3: Concerning the general situation in Pakistan, the risk of inhuman or degrading treatment for members of the Ahmadi movement was well documented, both in the international reports consulted and in the country guidance of the UK Upper Tribunal. The authorities did not generally protect them and even frequently participated in their persecution, in particular on the basis of anti-blasphemy legislation. However, the Upper Tribunal’s guidance specifically emphasised the risks incurred by the Ahmadis who preached their religion in public and engaged in proselytising, unlike those who practised their faith in private and were not bothered by the authorities. In the light of the latter, for the Article 3 protection to be engaged, the fact of belonging to the Ahmadi movement did not suffice. The applicant had to show that he openly practised this religion and that he was a proselytiser, or was at least perceived as such by the Pakistani authorities.
The applicant had presented a detailed account, supported by numerous documents. However, that material had been dismissed by the authorities with brief reasoning. Moreover, the Government had not adduced any evidence that manifestly cast doubt on the authenticity of the documents produced. Accordingly, there was no reason to doubt the applicant’s credibility. He could not be expected to substantiate further the veracity of his account or the authenticity of the evidence that he had adduced. As to the question whether he ran a risk of sustaining ill-treatment in the event of his return to Pakistan, the applicant had produced documents showing that he was perceived by the Pakistani authorities not as a mere follower of the Ahmadi movement but as a proselytiser and he therefore had a marked profile capable of drawing hostile attention on the part of the authorities should he return. Consequently, as the Government had failed to call seriously into question the reality of the applicant’s fears and given his profile and the situation of Ahmadis in Pakistan, the applicant’s return to his country of origin would expose him to a risk of ill-treatment in breach of Article 3 of the Convention.
Conclusion: removal would constitute a violation (unanimously).
Article 41: no claim made in respect of damage.

7974/11 – Legal Summary, [2013] ECHR 1321 – LS
Bailii
European Convention on Human Rights 3
Human Rights
Cited by:
Legal SummaryNK v France ECHR 19-Dec-2013
. .

Lists of cited by and citing cases may be incomplete.

Immigration, Ecclesiastical

Updated: 11 November 2021; Ref: scu.539938

AM and AM (Armed Conflict: Risk Categories) Somalia CG: AIT 1 Dec 2008

AIT 1. When considering the question of whether a person is eligible for refugee protection on the basis of exposure to armed conflict, Adan [1998] 2 WLR 702 does not permit decision makers to reject their claims per se.
2. A person may be able to succeed in a claim to protection based on poor socio-economic or dire humanitarian living conditions under the Refugee Convention or Article 15 of the Qualification Directive or Article 3, although to succeed on this basis alone the circumstances would have to be extremely unusual.
3. In the context of Article 15(c) the serious and individual threat involved does not have to be a direct effect of the indiscriminate violence; it is sufficient if the latter is an operative cause.
4. The Opinion of the Advocate General in Elgafaji, 9 September 2008 in Case C-465/07, BAILII: [2008] EUECJ C-465/07 – O, does not afford an adequately reasoned basis for departing from the guidance given on the law in the reported cases of the Tribunal on Article 15(c), namely HH and others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 and KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023.
5. Before the Tribunal will take seriously a challenge to the historic validity of a Tribunal country guidance case, it would need submissions which seek to adduce all relevant evidence, for or against, the proposed different view. The historic validity of the guidance given in HH is confirmed.
6. However, as regards the continuing validity of the guidance given in HH, the Tribunal considers that there have been significant changes in the situation in central and southern Somalia, such that the country guidance in that case is superseded to the following extent:
(i)There is now an internal armed conflict within the meaning of international humanitarian law (IHL) and Article 15(c) of the Refugee Qualification Directive throughout central and southern Somalia, not just in and around Mogadishu. The armed conflict taking place in Mogadishu currently amounts to indiscriminate violence at such a level of severity as to place the great majority of the population at risk of a consistent pattern of indiscriminate violence. On the present evidence Mogadishu is no longer safe as a place to live in for the great majority of returnees whose home area is Mogadishu;
(ii) Assessment of the extent to which internally displaced persons (IDPs) face greater or lesser hardships, at least outside Mogadishu (where security considerations are particularly grave,) will vary significantly depending on a number of factors;
(iii) For those whose home area is not Mogadishu, they will not in general be able to show a real risk of persecution or serious harm or ill treatment simply on the basis that they are a civilian or even a civilian internally displaced person (IDP) and from such and such a home area, albeit much will depend on the precise state of the background evidence relating to their home area at the date of decision or hearing;
(iv) As regards internal relocation, whether those whose home area is Mogadishu (or any other part of central and southern Somalia) will be able to relocate in safety and without undue hardship will depend on the evidence as to the general circumstances in the relevant parts of central and southern Somalia and the personal circumstances of the applicant. Whether or not it is likely that relocation will mean that they have to live for a substantial period in an IDP camp, will be an important but not necessarily a decisive factor;
(v) As a result of the current conflict between the TFG/Ethiopians and the insurgents, the Sheikhal clan (including the Sheikhal Logobe), by virtue of the hostile attitude taken towards them by Al Shabab, is less able to secure protection for its members than previously, although both as regards their risk of persecution and serious harm and their protection much will depend on the particular circumstances of any individual clan member’s case.
7. Where a particular route and method of return is implicit in an immigration decision it is within the jurisdiction of the Tribunal to deal with issues of en route safety on return: see AG (Somalia) [2006] EWCA Civ 1342. But in the context of Somali appeals currently, the method of return is far too uncertain and so any opinion the Tribunal expresses on such issues can only be given on an obiter basis.

[2008] UKAIT 00091
Bailii
England and Wales

Immigration

Updated: 11 November 2021; Ref: scu.278546

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 infirm and whose infirmity was not a consequence of their destitution, had not been excluded. Only able bodied destitute asylum seekers were excluded from benefit, and they had to rely upon the respondent. The House considered the value of the Explanatory notes now published with Acts: ‘Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have.’ Lord Steyn: ‘The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen.’

Steyn, Slynn, Hoffmann, Millett and Rodger LL
Times 18-Oct-2002, [2002] UKHL 38, [2002] 1 WLR 2956, [2002] 4 All ER 654, [2002] HLR 58, (2002) 5 CCL Rep 511, [2003] BLGR 23
House of Lords, Bailii
National Assistance Act 1948 21, Immigration and Asylum Appeals Act 1999 95 116
England and Wales
Citing:
CitedPrenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
CitedReardon Smith Line Ltd v Yngvar Hansen-Tangen (The ‘Diana Prosperity’) HL 1976
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedRiver Wear Commissioners v Adamson HL 1877
It was not necessary for there to be an ambiguity in a statutory provision for a court to be allowed to look at the surrounding circumstances.
As to the Golden Rule of interpretation: ‘It is to be borne in mind that the office of the judge is . .
CitedRegina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
CitedRobinson v Secretary of State for Northern Ireland and Others HL 25-Jul-2002
The Northern Ireland Parliament had elected its first minister and deputy more than six weeks after the election, but the Act required the election to be within that time. It was argued that as a creature of statute, the Parliament could not act . .
CitedRegina v Westminster City Council ex parte A, London Borough of Lambeth ex parte X and similar CA 17-Feb-1997
This was an appeal from orders of certiorari quashing the decisions of three local authorities refusing to provide accommodation for the respondents, four asylum seekers, whose applications for asylum were presently being considered by the Secretary . .
CitedRegina 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 . .
CitedWahid 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 . .
Appeal fromWestminster City Council v National Asylum Support Service CA 10-Apr-2001
. .
At first instanceWestminster City Council v National Asylum Support Service Admn 27-Feb-2001
. .

Cited by:
CitedRegina (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 . .
CitedRegina (on the Application of A) v National Asylum Support Service, London Borough of Waltham Forest CA 23-Oct-2003
A family of asylum seekers with two disabled children would be destitute without ‘adequate’ accommodation. What was such accommodation?
Held: The authority was under an absolute duty to house such a family. In satisfying such duty, it was . .
CitedRegina, ex parte O v The London Borough of Haringey, The Secretary of State for the Home Department CA 4-May-2004
The court considered the duties of local authorities to support infirm asylum seekers with children.
Held: The authority had an obligation to support the adult, but the responsibility for the children fell on the National Asylum Support . .
AppliedS, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
CitedAttorney General’s Reference (No 5 of 2002) HL 14-Oct-2004
The Attorney General sought the correct interpretation of section 17 where a court was asked as to whether evidence obtained from a telephone tapping had been taken from a public or private network. A chief constable suspected that the defendants, . .
CitedRegina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
CitedIn re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
CitedPhillips v Rafiq and Motor Insurers Bureau (MIB) CA 13-Feb-2007
The MIB appealed from a judgment making it liable for an award of damages to the estate of the deceased who had been a passenger in a vehicle which he knew to be being driven without insurance. The estate had not sued the MIB directly, but first . .
CitedKing v The Serious Fraud Office CACD 18-Mar-2008
Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders . .
CitedM, 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 . .
CitedPersimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
CitedMucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice) HL 21-Jan-2009
The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court. . .
CitedRollins, Regina v SC 28-Jul-2010
The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The . .
CitedOceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
CitedHorton v Henry CA 7-Oct-2016
No obligation on bankrupt to draw on pension fund
The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension . .

Lists of cited by and citing cases may be incomplete.

Local Government, Health, Immigration, Benefits, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.177452

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 a way which complied with the Convention.
Held: Germany did apply the convention criteria differently, but the difference was not so great as to mean that they did not apply it correctly, and other protections may be available to them under German law. The order for removal stood. However: ‘Before certifying as ‘manifestly unfounded’ an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full-blown merits review. It is a screening process to decide whether a deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail’

Bingham, Hope, Hutton, Millett, Scott LL
Times 18-Oct-2002, [2002] UKHL 36, [2002] 3 WLR 1276, [2003] 1 AC 920, [2002] 4 All ER 785, [2002] INLR 620, [2003] Imm AR 227, [2002] 14 BHRC 185
House of Lords, Bailii
Geneva Convention and Protocol relating to the Status of Refugees, Immigration and Asylum Act 1999 11(1)(b)
England and Wales
Citing:
Appeal fromRegina (Yogathas) v Secretary of State for the Home Department CA 9-Sep-2001
When assessing the propriety of an order requiring an asylum seeker to be removed and returned to a third country, it was wrong to look at the processes which might be applied by that third country. The court should look at the outcome of the . .
At first instanceRegina on the Application of Santia Yogathas v Secretary of State for Home Department Admn 25-May-2001
When asking whether it was correct to certify the removal of an asylum seeker to a third country, in the light of a country’s compliance with the Convention, the issue should be approached in an intensely practical fashion. The question was not . .

Cited by:
CitedBagdanavicius, 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 . .
CitedSecretary 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, . .
CitedAtkinson, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Oct-2003
. .
CitedAtkinson 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 . .
CitedRegina 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 . .
CitedRegina (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, . .
CitedRegina (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 . .
CitedTemiz, Regina (on the Application of) v Secretary of State for the Home Department Admn 13-Oct-2006
The claimant sought judicial review of the refusal by the respondent to give him permission to stay in the United Kingdom. As a Turkish national he had absconded after being ordered to be removed, and had since gone into business here.
Held: . .
CitedSecretary of State for the Home Department v JN CA 14-May-2008
The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country . .
CitedZT (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. . .
CitedST Eritrea, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Mar-2012
The Tribunal had confirmed the appellant’s refugee status, but the respondent had ordered nevertheless that she be returned. The judge’s order setting aside that decision had been overturned in the Court of Appeal.
Held: The claimant’s appeal . .
CitedEM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 19-Feb-2014
SSHD must examine safety of country for return
The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.177451

X and X v Etat belge: ECJ 7 Mar 2017

Human Rights Law does ot extend visa rights

ECJ Judgment – Reference for a preliminary ruling – Regulation (EC) No 810/2009 – Article 25(1)(a) – Visa with limited territorial validity – Issuing of a visa on humanitarian grounds or because of international obligations – Concept of ‘international obligations’ – Charter of Fundamental Rights of the European Union – European Convention for the Protection of Human Rights and Fundamental Freedoms – Geneva Convention – Issuing of a visa where a risk of infringement of Article 4 and/or Article 18 of the Charter of Fundamental Rights is established – No obligation

Lenaerts P
C-638/16, [2017] EUECJ C-638/16, ECLI:EU:C:2017:173, [2017] WLR(D) 160, [2017] EUECJ C-638/16 – O
Bailii, WLRD, Bailii
Regulation (EC) No 810/2009, Charter of Fundamental Rights of the European Union
European

Human Rights, Immigration

Updated: 10 November 2021; Ref: scu.579689

Dulger v Wetteraukreis: ECJ 19 Jul 2012

dulgerECJ2012

ECJ EEC-Turkey Association Agreement – Association Council Decision No 1/80 – Article 7, first paragraph – Right of residence of members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State – Thai national who was married to a Turkish worker and lived with him for more than three years

Cunha Rodrigues, P
[2012] EUECJ C-451/11, C-451/11, [2012] WLR(D) 249
Bailii
Citing:
See AlsoDulger v Wetteraukreis ECJ 7-Jun-2012
Opinion – EEC-Turkey Association Agreement – Interpretation of Association Council Decision No 1/80 – Right of residence of members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State – Thai national . .

Lists of cited by and citing cases may be incomplete.

European, Immigration

Updated: 09 November 2021; Ref: scu.464648

Regina v Secretary of State for the Home Department ex parte Anufrijeva: HL 26 Jun 2003

The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several months, during which time her benefits were cancelled.
Held: The result was to leave the appellant in a Kafka-esque world where she was affected by a decision she was not told of, and which she could not challenge. The Act should be read so that the decision was deemed completed not merely when the decision was made, but also when that decision was communicated: ‘Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule, it is simply an application of the right of access to justice.’ Exceptions to the need to general provide notice might be allowed in exceptional cases, perhaps in criminal matters, but otherwise it was necessary.
Lord Steyn pointed out: ‘the Convention is not an exhaustive statement of fundamental rights under our system of law. Lord Hoffmann’s dictum (in Ex p Simms) applies to fundamental rights beyond the four corners of the Convention.’

Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Millett, Lord Scott of Foscote
[2003] UKHL 36, Times 27-Jun-2003, Gazette 04-Sep-2003, [2003] INLR 521, [2003] HRLR 31, [2003] Imm AR 570, [2004] 2 WLR 603, [2004] 1 AC 604, [2004] 1 All ER 833
House of Lords, Bailii
Asylum and Immigration Appeals Act 1993, Asylum and Immigration Act 1996, Asylum Appeals (Procedure) Rules 1996, Income Support (General) Regulations 1987 (SI 1987/1967) 70(3A)(b)(i), European Convention on Human Rights
England and Wales
Citing:
Appeal fromAnufrijeva v Secretary of State for the Home Department CA 22-Mar-2002
Three asylum-seekers brought claims of breach of their Article 8 rights. One complained of a local authority’s failure to provide accommodation to meet special needs, the other two of maladministration and delay in the handling of their asylum . .
CitedSalem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
CitedRegina 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 . .
CitedRacke v Hauptzollamt Mainz (Judgment) ECJ 25-Jan-1979
A fundamental principle in the Community legal order requires that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it. . .
CitedRaymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
At First InstanceRegina (on the Application of Anufrijeva) v Secretary of State for the Home Department and Another Admn 25-Oct-2001
. .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .

Cited by:
CitedLord, Regina (on the Application of) v Secretary of State for the Home Department Admn 1-Sep-2003
The claimant was a category A prisoner serving a sentence of life imprisonment for murder. He sought the reasons for his categorisation as a Class A prisoner. Unhappy at the disclosure made, he sought information under the 1998 Act. It was argued . .
CitedAli v The Head Teacher and Governors of Lord Grey School CA 29-Mar-2004
The student had been unlawfully excluded from school. The school had not complied with the procedural requirements imposed by the Act.
Held: Though the 1996 Act placed the responsibilty for exclusion upon the local authority, the head and . .
CitedAndrews v Reading Borough Council QBD 29-Apr-2004
The claimant sought damages for increased road noise resulting from traffic control measures taken by the respondent.
Held: The defendants action to strike out the claim could not succeed. They had not shown that the claim was unarguable, . .
CitedVan Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
CitedMurchison v Southend Magistrates’ Court Admn 24-Jan-2006
The defendant faced an accusation of having slapped a child in the street. The child’s carer had called the police to say that she thought the complaint a practical joke. The defendant did not give evidence. The magistrates retired and came back to . .
CitedSK, 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 . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedMedical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
CitedLumba (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 . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .

Lists of cited by and citing cases may be incomplete.

Immigration, Benefits, Administrative

Leading Case

Updated: 09 November 2021; Ref: scu.183878

AJ (Risk To Homosexuals) Afghanistan CG: AIT 5 Jan 2009

AIT 1. Though homosexuality remains illegal in Afghanistan, the evidence of its prevalence especially in the Pashtun culture, contrasted with the absence of criminal convictions after the fall of the Taliban, demonstrates a lack of appetite by the Government to prosecute.
2. Some conduct that would be seen in the West as a manifestation of homosexuality is not necessarily interpreted in such a way in Afghan society.
3. A homosexual returning to Afghanistan would normally seek to keep his homosexuality private and to avoid coming to public attention. He would normally be able to do so, and hence avoid any real risk of persecution by the state, without the need to suppress his sexuality or sexual identity to an extent that he could not reasonably be expected to tolerate.
4. So far as non-state actors are concerned, a practising homosexual on return to Kabul who would not attract or seek to cause public outrage would not face a real risk of persecution.
5. If some individual, or some gay lobby, tried to make a political point in public or otherwise behaved in a way such as to attract public outrage, then there might be a sharp response from the Government.
6. A homosexual may be relatively safe in a big city (especially Kabul) and it would take cogent evidence in a particular case to demonstrate otherwise. The position in smaller towns and in rural areas could be different and will depend on the evidence in a specific case.
7. Relocation to Kabul is generally a viable option for homosexuals who have experienced problems elsewhere, though individual factors will have to be taken into account.
8. The evidence shows that a considerable proportion of Afghan men may have had some homosexual experience without having a homosexual preference. A careful assessment of the credibility of a claim to be a practising homosexual and the extent of it is particularly important. The evaluation of an appellant’s behaviour in the UK may well be significant.

[2009] UKAIT 00001
Bailii
England and Wales

Immigration

Updated: 09 November 2021; Ref: scu.279868

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 previous exercise by him of his right of free movement in the territory of the Member States – Grant, in the same circumstances, of a derived right of residence, to an ascendant relative, a third country national, upon whom the minor child is dependent – Consequences of the right of residence of the minor child on the employment law requirements to be fulfilled by the third-country national ascendant relative of that minor
A Colombian national who had been living in Belgium with his wife, and working (and paying social security contributions), but without a right to reside. Their three children, born between 2003 and 2005, acquired Belgian nationality at birth, and with it European citizenship and the right of free movement, under article 20 of the Treaty on the Functioning of the European Union (‘TFEU’). When in 2005 he lost his job, he was refused unemployment benefit, because under the relevant national law that depended on his having a right to reside. The European court held that the refusal of such a right was unlawful because it would result in the children being deprived of effective enjoyment of their rights as European citizens.

Skouris P
[2011] EUECJ C-34/09, C-34/09, [2011] All ER (EC) 491, [2011] 2 FCR 491, [2011] ECR I-1177, [2011] Imm AR 521, [2012] QB 265, [2011] INLR 481, ECLI:EU:C:2011:124, [2011] 2 CMLR 46, [2012] 2 WLR 886
Bailii
Charter of Fundamental Rights of the European Union, TFEU 20
European
Citing:
OpinionRuiz Zambrano (European Citizenship) ECJ 30-Sep-2010
ECJ Opinion – Articles 18, 20 and 21 TFEU – Fundamental rights as general principles of European Union law – Article 7 of the Charter of Fundamental Rights of the European Union – European citizenship – . .

Cited by:
CitedCampbell (Exclusion; Zambrano) Jamaica UTIAC 21-Mar-2013
UTIAC 1. Exclusion decisions are not be confused with exclusion orders.
2. It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v . .
CitedNzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .
CitedAgyarko 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 . .
CitedDereci 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 . .
CitedHC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
CitedSanneh, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 30-Apr-2012
Challenge to payment of Zambrano Income Support . .
CitedDH (Jamaica) v Secretary of State for The Home Department CA 21-Dec-2012
Elias LJ said: ‘The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality of life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to . .
CitedSanneh, Regina (on The Application of) v The Secretary of State for Work and Pensions and Another Admn 10-Apr-2013
. .
CitedSanneh and Others v Secretary of State for Work and Pensions CA 10-Feb-2015
The appeals concerned the question of whether ‘Zambrano carers’, who are non-EU citizens responsible for the care of an EU citizen child, are entitled to social assistance (that is, non-contributory welfare benefits) on the same basis as EU citizens . .
CitedSecretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom . .
CitedRendon Marin (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
ECJ (Grand Chamber) Reference for a preliminary ruling – Citizenship of the Union – Articles 20 and 21 TFEU – Directive 2004/38/EC – Right of a third-country national with a criminal record to reside in a Member . .

Lists of cited by and citing cases may be incomplete.

European, Immigration, Children

Leading Case

Updated: 02 November 2021; Ref: scu.452172

Limbu and Others, Regina (on the Application of) v Secretary of State for the Home Department and others: Admn 30 Sep 2008

The applicants who were retired Gurkha soldiers challenged the decision of the Secretary of State to impose a cut off of disallowing those who had retired from the armed forces before 1997.
Held: The rules applied to the Ghurkas were substantially similar to those applied to other commonwealth citizens retring from the armed forces. However the examples set out as the basis for the exercise of the decision were so restrictive as to be irrational and did not reflect the policy as expressed. The instructions given to the entry clearance officers were unlawful and needed urgent revisiting.

Blake J
[2008] EWHC 2261 (Admin), Times 07-Oct-2008
Bailii
England and Wales
Citing:
See AlsoGurung, Pun and Thapa v Ministry of Defence QBD 27-Nov-2002
The applicants were British Nepalese soldiers who had been imprisoned by the Japanese in the second world war. They challenged the decision of the respondent in November 2000 to exclude them from a compensation scheme, but to allow other British . .
See AlsoRegina (Purja) v Ministry of Defence; Regina (Lama) v Same Admn 21-Feb-2003
The applicants served as Gurkha soldiers with the army. They claimed that the pensions they received, being substantially less than those paid to other servicemen were discriminatory.
Held: The positions of a retired serviceman in England and . .
See AlsoGurung and Shrestha, Regina (on the Application of) v Secretary of State for Defence Admn 2-Jul-2008
Second challenge to the lawfulness of the Terms and Conditions of Service and the pension arrangements of the Gurkha soldier retired from the British Army. . .
See AlsoPurja and others v Ministry of Defence CA 9-Oct-2003
The applicants were Gurkha soldiers who complained at the differences in treatment of them as against other members of the forces as regards payment, pensions and otherwise, alleged infringement oftheir Article 14 rights, which prevented . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Immigration

Updated: 02 November 2021; Ref: scu.276535

Regina v Home Secretary, ex parte Sivakumaran: HL 16 Dec 1987

The House of Lords were concerned with the correct test to be applied in determining whether asylum seekers are entitled to the status of refugee. That in turn gave rise to an issue, turning upon the proper interpretation of Article 1.A(2) of the Convention.
Held: When deciding whether an asylum applicant’s fear of persecution was well-founded, it was sufficient for a decision-maker to be satisfied that there was a reasonable degree of likelihood that the applicant would be persecuted for a Convention reason if returned to his own country. In asylum cases and cases involving Articles 2 or 3 of the ECHR, the risk to the claimant only has to be established to the extent of showing a reasonable likelihood of persecution or treatment amounting to a breach of one of those Articles. The task of the court is to ascertain the real reason for the treatment, the reason which operates on the mind of the alleged discriminator. This may not be the reason given, and may not be the only reason, but the test is an objective one.
Lord Templeman: ‘Applications for leave to enter and remain do not in general raise justiciable issues. Decisions under the Act are administrative and discretionary rather than judicial and imperative. Such decisions may involve the Immigration Authorities in pursuing enquiries abroad, in consulting official and unofficial organisations and in making value judgements. The only power of the Court is to quash or grant other effective relief in judicial review proceedings in respect of any decision under the Act of 1971 which is made in breach of the provisions of the Act or the Rules thereunder or which is the result of procedural impropriety or unfairness or is otherwise unlawful …… Where the result of a flawed decision may imperil life or liberty a special responsibility lies on the Court in the examination of the decision-making process.’
Lord Keith: ‘The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law.’ and ‘In my opinion the requirement that an applicant’s fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country.’ The Home Secretary is entitled to obtain information from many sources including diplomatic, official and other channels.
Lord Goff: ‘But once it is accepted that the Secretary of State is entitled to look not only at the facts as seen by the applicant, but also at the objective facts as ascertained by himself in relation to the country in question, he is, on the High Commissioner’s approach, not asking himself whether the actual fear of the applicant is plausible and reasonable; he is asking himself the purely hypothetical question whether, if the applicant knew the true facts, and was still (in the light of those facts) afraid, his fear could be described as plausible and reasonable. On this approach, the Secretary of State is required to ask himself a most unreal question. His appreciation is in any event likely to be coloured by his own assessment of the objective facts as ascertained by him; and it appears to me that the High Commissioner’s approach is not supported, as a matter of construction, by the words of the Convention, even having regard to its objects and to the travaux preparatoires. In truth, once it is recognised that the expression ‘well-founded’ entitles the Secretary of State to have regard to facts unknown to the applicant for refugee status, that expression cannot be read simply as ‘qualifying’ the subjective fear of the applicant – it must, in my opinion require that an inquiry should be made whether the subjective fear of the applicant is objectively justified. For the true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people whose fear of persecution is in reality well-founded.’

Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Templeman and Lord Griffiths, Lord Goff
[1988] AC 958, [1987] UKHL 1, [1988] 1 All ER 193, [1988] Imm AR 147, [1988] 2 WLR 92, [2002] INLR 310
Bailii
Geneva Convention (1951) and Protocol (1967) relating to the Status of Refugees, European Convention on Human Rights 2 3
England and Wales
Citing:
ApprovedRegina v Governor of Pentonville Prison, Ex parte Fernandez: Fernandez v Government of Singapore HL 1971
Test for police protection need
The court considered the degree of risk to an individual which should give rise to a duty on the police to protect him under article 2.
Held: Lord Diplock said: ‘My Lords, bearing in mind the relative gravity of the consequences of the court’s . .

Cited by:
CitedEuropean Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
CitedSecretary of State for Home Department v Ravichandran CA 6-Jun-1997
Application for leave to appeal granted.
Held: This was a case where the relationship of the Tribunal to the Special Adjudicator can and should be considered. ‘I have indicated some of the difficulties which may arise. There is no doubt that . .
CitedRegina v Secretary of State for the Home Department Ex Parte Abdi, Same v Same, Ex Parte Gawe HL 15-Feb-1996
Two Somali nationals were refused asylum and sought to challenge a decision rejecting their claim that to be sent to Spain would be contrary to the United Kingdom’s obligations under the Geneva Convention of 1951.
Held: Adjudicators are . .
CitedRegina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
CitedRegina 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 . .
CitedAli v Secretary of State for the Home Department CA 3-May-2006
The applicants sought asylum. Their child had a right of residence as a European citizen.
Held: The applicants could not rely upon their child’s right of residence to establish one for themselves. . .
CitedRegina v Fregenet Asfaw HL 21-May-2008
The House considered the point of law: ‘If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 . .
CitedLondon Borough of Lewisham v Malcolm HL 25-Jun-2008
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
CitedRT (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, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.182470

HJ (Iran) v Secretary of State for The Home Department; HT (Cameroon) v Same: SC 7 Jul 2010

The claimants sought to prevent their removal and return to their countries of origin saying that as practising homosexuals they would face discrimination and persecution. They appealed against a judgment saying that they could avoid persecution by adapting their behaviour on return. In both countries practising homosexuality would risk imprisonment and in Iran, execution.
Held: The appeals succeeded.
A gay man was entitled to live freely and openly in accordance with his sexual identity and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so. The Convention recognised groups subject to persecution according to their sexual orientation. Though simple acts of discrimination or disapproval might not give rise to protection under the Convetion, more serious acts such death torture or imprisonment could amount to perscution, and if that risk existed it was not enough that the claimants might avoid it by takig avoiding action. A fundamental purpose of the Convention was to counteract discrimination, and it could not be contemplated that a return should be ordered requiring as a condition of its effectiveness that the claimants hide their natures. The Court rejected the ‘reasonable tolerability’ test adopted by the Court of Appeal, and gave guidance to lower courts accordingly.
Lord Hope said: ‘The group is defined by the immutable characteristic of its members’ sexual orientation or sexuality. This is a characteristic that may be revealed, to a greater or lesser degree, by the way the members of this group behave. In that sense, because it manifests itself in behaviour, it is less immediately visible than a person’s race. But, unlike a person’s religion or political opinion, it is incapable of being changed. To pretend that it does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are.’

Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lord Collins, Sir John Dyson SCJ
UKSC 2009/0054, [2010] UKSC 31, [2010] WLR (D) 174, [2010] 3 WLR 386, [2011] 1 AC 596
Bailii Summary, SC Summary, SC, Bailii, WLRD
Convention relating to the Status of Refugees
England and Wales
Citing:
See AlsoJ v Secretary of State for the Home Department CA 26-Jul-2006
(Iran) ‘Does it amount to persecution according to these broad tests if the clandestine character of the homosexual activity which there has been in the past and will be on return in the future is itself the product of fear engendered by . .
Appeal FromHJ (Iran) v Secretary of State for the Home Department; HT (Cameroon) v Same CA 10-Mar-2009
Each applicant had had his appeal for asylum rejected. They had said that they were practising homosexuals, and that they would face persecution if returned home.
Held: The appeals failed. In each case the social norms of the country of origin . .
CitedRegina v Immigration Appeal Tribunal and Another ex parte Shah HL 25-Mar-1999
Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as . .
CitedSecretary 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 . .
CitedHorvath v Secretary of State for the Home Department HL 7-Jul-2000
When considering the fear of prosecution in an applicant for asylum, the degree of persecution expected from individuals outside the government was to be assessed in the context also of the attitude of the government of the country to such . .
CitedSepet 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 . .
CitedAppellant S395/2002 v Minister for Immigration and Multicultural Affairs 9-Dec-2003
(High Court of Australia) McHugh and Kirby JJ said: ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. . .
CitedJanuzi v Secretary of State for the Home Department and others HL 15-Feb-2006
The claimants sought to challenge the refusals of asylum in each case based upon the possibility of internal relocation. They said that such internal relocation would place them in areas where they could not be expected to live without undue . .

Cited by:
CitedMedical Justice, Regina (on The Application of) v Secretary of State for The Home Department Admn 26-Jul-2010
The claimant, a charity assisting immigrants and asylum seekers, challenged a policy document regulating the access to the court of failed applicants facing removal. They said that the new policy, reducing the opportunity to appeal to 72 hours or . .
AppliedRT (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 . .
CitedRT (Zimbabwe) and Others v Secretary of State for The Home Department CA 18-Nov-2010
The apellants had sought asylum from Zimbabwe. They appealed against rejection of their claims, saying that it was wrong to require them to return to a place where hey would have to dissemble as to their political beliefs.
Held: The appeals . .
CitedBrown (Jamaica), Regina (on The Applications of) v Secretary of State for The Home Department SC 4-Mar-2015
B, an homosexual immigrant for Jamaica, resisted his return, saying that he would be prosecuted. The Secretary of State now appealed against a finding that his inclusion of Jamaica within the statutory list of safe countries for return was not . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Discrimination

Updated: 02 November 2021; Ref: scu.420385

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 InstanceM, 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 fromSlough 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 . .
CitedWestminster 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 . .
CitedSteane 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. . .
CitedChief 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’ . .
CitedRegina 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 . .
CitedRegina 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 . .
CitedRegina 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 . .
CitedRegina 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 . .
CitedRegina 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 . .
CitedAdam, 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 . .
CitedWahid 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 . .
CitedRegina (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:
CitedSL 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 . .
CitedHotak 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

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

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

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

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 fromRegina 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 . .
CitedSoering 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 . .
CitedCruz 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] . .
CitedTomic 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 . .
CitedVilvarajah 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 . .
CitedHLR 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, . .
CitedAhmed 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 . .
CitedD 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 . .
CitedSvazas 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 . .
CitedMcPherson 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 instanceBagdanavicius, 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:
CitedLord 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

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

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 fromRegina 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 AlsoRegina 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:
CitedAhsan 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 . .
CitedSecretary 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, . .
CitedRe 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 . .
CitedAnufrijeva 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 . .
CitedN 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 . .
CitedRegina 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 . .
CitedRegina 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 . .
CitedX, 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 . .
CitedN 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 . .
CitedE 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 . .
CitedA 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 . .
CitedBritish 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 . .
CitedBrown 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. . .
CitedG, 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 . .
CitedIM (Medical Facilities, Bensaid) Kosovo IAT 17-Jul-2002
. .
CitedEM (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 . .
CitedMarper 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: . .
CitedN, 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 . .
CitedE 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. . .
CitedIn 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 . .
CitedH 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 . .
CitedTN, 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

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

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

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

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

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 SummaryMyh 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

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

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 UTIACMajera, 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