Tag: Immigration

Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department: SC 22 Feb 2017

Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the Secretary of State by the 1998 Act to act compatibly with the right to respect for family life guaranteed by article 8 of the ECHR. In each case, the Secretary of State concluded that the appellant did not qualify for leave to remain under the applicable provisions of Appendix FM to the Immigration Rules and that, applying the Immigration Directorate Instructions, ‘Family Members Under the Immigration Rules, Section FM 1.0, Partner and ECHR Article 8 Guidance’ there were no exceptional circumstances warranting the grant of leave to remain outside the Rules.
Held: The appeals failed. The Rules and Instructions applied in these cases were consistent with the proper application of article 8.
In the first case, there was no evidence placed before the respondent that there were exceptional circumstances. Ms Agyarko’s claim could not be regarded as very strong or compelling.
As to Ms Ikuga, part of the decision was incorrectly based. However, looking at the decision taken, the result would have been the same, and she not having put forward anything which might constitute ‘exceptional circumstances’ as defined in the Instructions, that is unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate.
The ground of challenge under Article 20 EU failed. If a situation were to arise in which the refusal of a third-country national’s application for leave to remain in the UK would force his or her British partner to leave the EU, in breach of article 20 TFEU, such a situation could be addressed under the Rules as one where there were ‘insurmountable obstacles’, or in any event under the Instructions as one where there were ‘exceptional circumstances’. Typically, however the British citizen would not be forced to leave the EU, any more than in the case of Dereci, and the third-country national would not, therefore, derive any rights from article 20 .

Judges:

Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hughes
Lord Hodge

Citations:

[2017] UKSC 11, [2017] WLR(D) 126, [2017] 3 CMLR 3, [2017] 1 WLR 823, [2017] Imm AR 764, [2017] INLR 548, UKSC 2015/0129

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Human Rights Act 1998, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Tuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Sezen v The Netherlands ECHR 31-Jan-2006
The case concerned ‘a functioning family unit where the parents and children are living together’. The court considered wehether a deportation would infringe the human rights of te applicant: ‘The Court has previously held that domestic measures . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – MF (Nigeria) v Secretary of State for The Home Department CA 8-Oct-2013
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Cited – Secretary 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 . .
Cited – Alokpa and Moudoulou v Ministre Du Travail, De L’Emploi Et De L’Immigration ECJ 10-Oct-2013
ECJ Citizenship of the Union – Articles 20 TFEU and 21 TFEU – Directive 2004/38/EC – Right of residence of a third-country national who is a direct relative in the ascending line of Union citizens who are minor . .
Cited – Iida v Stadt Ulm ECJ 8-Nov-2012
ECJ Articles 20 TFEU and 21 TFEU – Charter of Fundamental Rights of the European Union – Article 51 – Directive 2003/109/EC – Third-country nationals – Right of residence in a Member State – Directive 2004/38/EC . .

Cited by:

Cited – HC, 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 . .
Cited – Rhuppiah v Secretary of State for The Home Department SC 14-Nov-2018
Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, European

Updated: 16 May 2022; Ref: scu.575309

Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve: ECJ 20 Sep 2001

ECJ Reference for a preliminary ruling: Tribunal du travail de Nivelles – Belgium. Articles 6, 8 and 8a of the EC Treaty (now, after amendment, Articles 12 EC, 17 EC and 18 EC) – Council Directive 93/96/EEC – Right of residence for students – National legislation which guarantees a minimum subsistence allowance only for nationals, persons covered by Regulation (EEC) No 1612/68 and stateless persons and refugees – Foreign student who has met his own living expenses during the first years of his studies.
One member state could not apply conditions for the grant of benefits to students to citizens of other member states which it did not apply to its own nationals. A citizen of the European Union, lawfully resident in the territory of a host member state, could rely on article 6 of the Treaty in all situations which fell within the scope ratione materiae of Community law, including the exercise of the right conferred by article 8a to move and reside freely in another member state. This applied even though otherwise benefits for students had been ruled to be outside the scope of this regulation.

Judges:

GC Rodriguez Iglesias, President and Judges C. Gulmann, M. Wathelet, V. Skouris, D. A. O. Edward, P. Jann, L. Sevon, R. Schintgen and F. Macken Advocate General S. Alber

Citations:

Times 16-Nov-2001, [2001] EUECJ C-184/99, C-184/99, [2003] All ER (EC) 385, [2001] ECR I-6193

Links:

Bailii

Jurisdiction:

European

Citing:

Cited – Brown v Secretary Of State For Scotland (Rec 1988,P 3205) (Sv88-489 Fi88-489) (Judgment) ECJ 21-Jun-1988
. .

Cited by:

Cited – Ali 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. . .
Cited – Collins v Secretary of State for Work and Pensions CA 4-Apr-2006
The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
Held: The . .
Cited – Kaczmarek v Secretary of State for Work and Pensions CA 27-Nov-2008
The claimant entered the UK as a student coming from Poland. She then worked as a kitchen maid, but having left that job on becoming a mother was refused income support. She later returned to work. She said that the rules which denied her benefit . .
Cited – Wightman and Others v Secretary of State for Exiting the European Union ECJ 10-Dec-2018
Art 50 Notice withrawable unilaterally
Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – Conditions
The . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 16 May 2022; Ref: scu.166205

Regina v Secretary of State for the Home Department Ex Parte Xuereb: QBD 14 Jun 2000

The fact that an alien was detained under the Mental Health Acts did not mean that he could not be ordered to be removed and returned to his own country. The power given to the Secretary of State was discretionary, and though the treatment he might receive was of a lower standard, it was not an unreasonable exercise of the discretion. He also retained the powers under the earlier act and could rely upon those powers. The later Act was not an exhaustive statement of his powers.

Citations:

Times 14-Jun-2000

Statutes:

Mental Health Act 1983 86, Immigration Act 1971 SCh 2

Jurisdiction:

England and Wales

Health, Immigration

Updated: 15 May 2022; Ref: scu.85527

Regina (Husan) v Secretary of State for the Home Department: QBD 24 Feb 2005

The applicant sought asylum from Bangladesh. His application was refused, and the respondent issued a certificate to say that his claim was hopeless. He sought judicial review.
Held: There was so much evidence that Bangladesh suffered persecution and human rights abuses that no rational decision maker could list it as country to which asylum seekrs could safely be returned, and its listing was unlawful. Persecution within the meaning of the Refugee Convention will by its nature often be directed towards minorities. Nevertheless, the applicant had failed to establish that he had taken any proper steps which might have reduced the risks to him personally if returned, and his claim for asylum still failed.

Judges:

Wilson J

Citations:

Times 01-Mar-2005, [2005] EWHC 189 (Admin)

Links:

Bailii

Citing:

Contrasted – Singh v Secretary of State for the Home Department and Another Admn 14-Nov-2001
Mistreatment was found to be only localised in India, allowing an asylum seeker to be returned. . .
Cited – Secretary of State for the Home Department v Asif Javed and Zuifiqar Ali and Abid Ali CA 17-May-2001
A designation of Pakistan as a safe place for the return of a failed asylum applicant was unlawful because there was plain evidence that persecution of women who left the marital home, whether voluntarily or by compulsion, was widespread. . .
Cited – Regina v Immigration Appeal Tribunal and Another ex parte Shah HL 25-Mar-1999
Both applicants, Islam and Shah, citizens of Pakistan, but otherwise unconnected with each other, had suffered violence in Pakistan after being falsely accused them of adultery. Both applicants arrived in the UK and were granted leave to enter as . .

Cited by:

Cited – Brown (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

Updated: 15 May 2022; Ref: scu.223059

Kacaj v Secretary of State for the Home Department: Admn 2001

The relevant test of whether an order returning an asylum applicant to another country would infringe his human rights was whether there were substantial grounds for believing that the petitioner faced a real risk of relevant ill treatment if returned. There must be substantial grounds for believing that the claimant would face a real risk of the adverse effect which he or she claims to fear. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal: ‘although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.’

Judges:

Collins J, Mr C M G Ockelton and Mr J Freeman

Citations:

[2001] INLR 354, [2002] Imm AR 213

Jurisdiction:

England and Wales

Citing:

Appealed to – Kacaj v Secretary of State for the Home Department CA 14-Mar-2002
. .

Cited by:

Appeal from – Kacaj v Secretary of State for the Home Department CA 14-Mar-2002
. .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 12 May 2022; Ref: scu.181861

Regina (Puspalatha) v The Immigration Appeal Tribunal: 2001

Citations:

[2001] EWHC Admin 333

Jurisdiction:

England and Wales

Cited by:

Cited – Choudhrey v Immigration Appeal Tribunal Admn 1-Aug-2001
The applicant sought to review refusal of his request to appeal in turn the refusal of his request for asylum as an Ahmadi from Pakistan. He had twice been assaulted by a non-government racist group. There was legislation having the effect of . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 12 May 2022; Ref: scu.182196

Ayman Ibrahim: CA 2001

Citations:

[2001] Imm AR 430, [2001] EWCA Civ 519

Jurisdiction:

England and Wales

Cited by:

Cited – Mohammad, Manoharan, Sakhee, Yogarajah v The Secretary of State for the Home Department QBD 24-Jan-2002
The applicants were asylum seekers. They were made subject to certificates issued by the Secretary of State which would require refoulement, for them to be returned to the country into which they first made their escape for their application for . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 12 May 2022; Ref: scu.180668

Teame v Aberash and Others; Regina v Secretary of State for Home Dept ex parte Teame: CA 8 Apr 1994

Home Secretary may order deportation of a child’s guardian despite a pending appeal for residence order in favour of the applicant. Such a deportation would not be a contempt of court.

Citations:

Ind Summary 02-May-1994, Times 08-Apr-1994

Statutes:

Immigration Act 1971

Jurisdiction:

England and Wales

Immigration, Children

Updated: 11 May 2022; Ref: scu.89759

Macharia v Secretary of State for the Home Department: CA 25 Nov 1999

The Immigration Appeal Tribunal does not have discretion, whether implied or otherwise, to admit new or further evidence without notice having first been given. The Rules explicitly required advance notice to be given, and nor was it proper for the tribunal itself to introduce evidence. The absence of a rule against such admission of evidence was not conclusive.

Citations:

Times 25-Nov-1999, Gazette 01-Dec-1999

Statutes:

Asylum (Appeals) Procedure Rules 1996 No 2070

Jurisdiction:

England and Wales

Immigration, Litigation Practice, Administrative

Updated: 10 May 2022; Ref: scu.83275

Howarth v Secretary of State for the Home Department: CA 8 Dec 1999

The degree of protection from non-state persecution available to an asylum seeker is a relevant factor. Where that protection was inadequate for reasons not related to the nature of that persecution, that also was relevant. It affected the issues of whether persecution existed, whether the fear of it was well founded, and whether the fear of persecution made the protection of the state unavailable. A state cannot guarantee the safety of its citizens.

Citations:

Times 08-Dec-1999

Statutes:

Convention and Protocol relating to the Status of Refugees 1951 1A

Jurisdiction:

England and Wales

Immigration

Updated: 10 May 2022; Ref: scu.81501

Danian v Secretary of State for the Home Department: CA 9 Nov 1999

The protection given to an asylum applicant is not lost by acts which might otherwise put his stay here in doubt, provided these were purely for the purpose, even if manipulative, of allowing him to stay. The test remains whether he has a well founded fear of persecution if he returned. Such behaviour would no doubt affect his credibility but was not dispositive of the issue.

Citations:

Times 09-Nov-1999, Gazette 10-Nov-1999

Statutes:

Convention and Protocol relating to the Status of Refugees 1951

Jurisdiction:

England and Wales

Immigration

Updated: 10 May 2022; Ref: scu.79792

Ahmed (Iftikhar) v Secretary of State for the Home Department: CA 8 Dec 1999

The fact that an asylum seeker might not refrain from activities which would attract persecution if he was returned to his country of origin, was not fatal to his application for asylum. There is only one question to be asked: whether, if returned, he would face a serious risk of persecution. The option of internal flight had been not directly relevant, if the claimant’s activities would still be a criminal offence.

Citations:

Times 08-Dec-1999

Statutes:

Convention and Protocol relating to the Status of Refugees 1951 1A

Jurisdiction:

England and Wales

Immigration

Updated: 10 May 2022; Ref: scu.77677

Dritan Gashi v Secretary of State for the Home Department: IAT 2001

Referring to the decsision in Aissaoui, the tribunal set out guidelines: ‘(1) As a general rule it is best practice for an adjudicator hearing an appeal de novo not to read the Determination of a previous adjudicator unless expressly invited to do so, so as to avoid any misunderstanding of what has influenced him. There is no prohibition, however, on reading the Determination.
(2) If the adjudicator considers it appropriate to read the Determination, he should not do so until he has told the parties of his intention, and invited their comments.
(3) There will be instances where parties invite him to read the Determination because, for example, the findings of fact have been accepted, and the re-hearing is to consider the conclusions to be drawn from those findings. This invitation should be recorded in his Determination.
(4) The previous record of proceedings, and not the earlier Determination, can if necessary provide confirmation of what evidence was given at a previous hearing.
(5) If an Appellant does not attend the de novo hearing, an adjudicator may rely on the evidence given at the previous hearing when forming his independent view of the case, but without reference to an earlier Determination.
(6) Parties seeking to challenge a Determination on the basis that an adjudicator has read a previous Determination should only do so where there are clear grounds for challenge, other than the mere fact of reading the Determination. Reading a previous Determination of itself is not a proper ground of appeal.’

Citations:

(2001) Appeal No: 01TH02902

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department ex parte Aissaoui Admn 1997
The IAT had remitted an appeal to be heard de novo by another adjudicator. The second adjudicator dismissed the appeal, but recorded that the determination of the first adjudicator had been on file and that he had ‘had the advantage of having . .

Cited by:

Cited – Swash v Secretary of State for the Home Department CA 26-Jul-2006
The appellant challenged refusal of the grant of leave to remain in the UK. The court was asked as to the approach to be adopted by the AIT on reconsideration of an appeal when it has concluded that there was an error of law in the original . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 10 May 2022; Ref: scu.244738

Regina v Immigration Appeal Tribunal ex parte Khan: 1983

The court considered the need for a judge to give reasons
Lord Lane CJ said: ‘The important matter which must be borne in mind by Tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties and they should indicate the evidence on which they have come to their conclusions. Where one gets a decision of a Tribunal which either fails to set out the issue which the Tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this Court and in normal circumstances would result in the decision of the Tribunal being quashed. The reason is this. A party appearing before a Tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the Tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the Tribunal; in other cases it may not. Second, the Appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in others it may not.’

Judges:

Lane CJ

Citations:

[1983] QB 790

Jurisdiction:

England and Wales

Cited by:

Cited – AA069062014 and Others AIT 30-Aug-2017
Several appellants, all from the same judge, complained of his handling of their cases.
Held: The complaints about the decisions were entirely well-founded: ‘Nobody reading them could detect how the judge reached the conclusion he did, acting . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 May 2022; Ref: scu.595470

ex parte Gondolia: 1991

In dismissing the claimant’s application for judicial review, Henry J held: ‘Secondly, it is said, and again correctly, that there is no mention in the adjudicator’s determination and reasons that the initiative for the first introduction of the husband to wife in this arranged marriage came from the wife’s family and not from the husband’s. There is no reference to these matters in the adjudicator’s decision. The first question is: can it be assumed from that that the adjudicator had not taken them into account? In my judgment, it clearly cannot because Mr Weiniger, who appeared then and who has appeared before me, makes it plain to me that they were matters that he relied on before the adjudicator as he relied on them before me. They were there before the adjudicator. They are plain points that would not be overlooked or misunderstood.
The fact they are not referred to is the next point that I deal with. Can it be said that the adjudicator has not given sufficient reasons for his decision? It seems to me that he has given ample reason of his finding and the reasons for it. The reasons for his finding, when finally analyzed, are, first, the lack of credibility so far as the applicant and the sponsor and her father are concerned allied with the economic incentive. In reaching that conclusion, he would have had regard to these points made and it cannot be assumed against him that he gave no regard to them.
When faced with that argument, Mr Weiniger for the applicant said that the vice of it lay in that as the adjudicator had not himself referred to them, so they might not have come to the attention of the Appeal Tribunal. But when one looks at the procedure rules, one sees that the Appeal Tribunal gets the full case papers.
The points were raised in the notice of appeal lodged with that Tribunal. Therefore, they would have had those points before them and would have been able to take them into account. In short, there is nothing here that shows that there is any error of law either relating to the decision of the adjudicator or relating to the decision of the Immigration Appeal Tribunal in refusing leave to appeal.’

Judges:

Henry J

Citations:

[1991] Imm AR 519

Jurisdiction:

England and Wales

Cited by:

Limited – OA163042012 AIT 23-Jul-2014
. .
Explained – IA307162014 AIT 5-Feb-2016
. .
Cited – AA069062014 and Others AIT 30-Aug-2017
Several appellants, all from the same judge, complained of his handling of their cases.
Held: The complaints about the decisions were entirely well-founded: ‘Nobody reading them could detect how the judge reached the conclusion he did, acting . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 09 May 2022; Ref: scu.595467

Regina (Nadarajah) v Secretary of State for the Home Department: Admn 2 Dec 2002

The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, where he was imprisoned and tortured; that his wife procured his release, following which he fled to the UK. The Secretary of State believes that the Claimant never left Germany, but simply went to ground before illegally and clandestinely entering the UK in 1998. After his arrest as an illegal entrant he claimed asylum. At that time, his asylum claim in Germany was still subject to an appeal to the German courts. When he arrived in the UK, he concealed the fact that he had previously applied for asylum in Germany or anywhere else; that he had done so was discovered when fingerprints were taken. The Home Secretary sought to remove him to Germany as a safe third country. Judicial review proceedings were begun on his behalf, but were held in abeyance pending the appeals in Adan and Aitsegeur [2001] 2 AC 477 and Yogathas [2002] UKHL 41 [2002] 4 All ER 785.
In August 2001, the Claimant’s wife entered this country and claimed asylum. In November 2001, the Home Secretary certified the Claimant’s asylum claim under section 11 of the Immigration and Asylum Act 1999. In January 2002, the Claimant’s solicitors withdrew the first judicial review claim on account of judicial decisions on third country certification (in the case of Yogathas that of the Court of Appeal).’

Judges:

Stanley Burnton J

Citations:

[2002] EWHC 2595

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .

Cited by:

Appeal from – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Appeal from – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
See Also – Nadarajah and Amirhanathan v Secretary of State for the Home Department CA 8-Dec-2003
The Secretary of State’s published policy was that, if legal proceedings were initiated, removal would not be treated as imminent even if it otherwise was. The Secretary of State also had an unpublished policy, namely that information that . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 07 May 2022; Ref: scu.236523

Regina v Kishietine: CACD 29 Nov 2004

The defendant had been convicted of providing false information to the immigration authorities when applying for asylum. She appealed her sentence of nine months imprisonment.
Held: She had been raped and beaten by soldiers in her own country and fled to England. She only claimed asylum three months after arriving, but said that she had arrived the day before. The fact that her claim might be genuine and succeed was not relevant. It was a matter for the immigration authorities. The sentence was appropriate.

Judges:

Pill LJ, Sir Ian Kennedy

Citations:

Times 09-Dec-2004

Statutes:

Immigration Act 1971 24A

Jurisdiction:

England and Wales

Criminal Sentencing, Immigration

Updated: 06 May 2022; Ref: scu.221441

Medical Justice and Others v Secretary of State for The Home Department and Another: Admn 10 Oct 2017

Contention that the SSHD, had issued unlawful statutory Guidance, and policies, albeit for the lawful purpose of preventing those who are more vulnerable to harm in immigration detention from entering immigration detention, or for removing them from it, unless there are sufficiently strong countervailing reasons. Being a victim of torture is an indicator of such vulnerability. The unlawfulness is said to arise from the way in which victims of torture are defined, through the adoption, with a variation, of the definition of ‘torture’ to be found in the United Nations Convention against Torture, UNCAT. This had the effect, it was said, of excluding those who are victims of torture by non-state actors, from those whose circumstances indicate vulnerability to harm in detention.
Ouseley J set out the history of the provisions and noted that: ‘The reference to acts carried out by terrorist groups is not part of the UNCAT definition, but was added following discussions between the SSHD and an NGO, Freedom from Torture; it was suggested by Sir Keir Starmer MP.’

Judges:

Ouseley J

Citations:

[2017] EWHC 2461 (Admin), [2017] WLR(D) 654

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Cited – Taylor, Regina v SC 13-Nov-2019
(Redacted) The court was asked to consider the meaning of ‘torture’ from events in a rebellion in Liberia in 1990. The CACD certified the following point of law of general public importance: ‘What is the correct interpretation of the term ‘person . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 06 May 2022; Ref: scu.598394

SC (Double Jeopardy, WC Considered) China CG: IAT 23 Jan 2006

IAT For a Chinese citizen convicted of a crime in the United Kingdom on return to China there is not a real risk of a breach of protected human rights whether by way of judicial or extra-judicial punishment, even if the crime has a Chinese element. WC (no risk of double punishment) China [2004] UKIAT 00253 applied and considered.

Citations:

[2006] UKAIT 00007

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 05 May 2022; Ref: scu.238369

Secretary of State for the Home Department v Savchenkov: 1996

Citations:

[1996] Imm AR 28

Jurisdiction:

England and Wales

Cited by:

Cited – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 01 May 2022; Ref: scu.247607

Oludoyi and Others, Regina v Home Secretary (Article 8 – MM (Lebanon) and Nagre) (IJR): UTIAC 29 Oct 2014

UTIAC There is nothing in R (Nagre) v SSHD [2013] EWHC 720 (Admin), Gulshan (Article 8 – new Rules – correct approach) Pakistan [2013] UKUT 640 (IAC) or Shahzad (Art 8: legitimate aim) [2014] UKUT 85 (IAC) that suggests that a threshold test was being suggested as opposed to making it clear that there was a need to look at the evidence to see if there was anything which has not already been adequately considered in the context of the Immigration Rules and which could lead to a successful Article 8 claim. These authorities must not be read as seeking to qualify or fetter the assessment of Article 8. This is consistent with para 128 of R (MM and Others) v SSHD [2014] EWCA Civ 985, that there is no utility in imposing a further intermediate test as a preliminary to a consideration of an Article 8 claim beyond the relevant criterion-based Rule. As is held in R (Ganesabalan) v SSHD [2014] EWHC 2712 (Admin), there is no prior threshold which dictates whether the exercise of discretion should be considered; rather the nature of the assessment and the reasoning which are called for are informed by threshold considerations.

Judges:

Gill Utj

Citations:

[2014] UKUT 539 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 01 May 2022; Ref: scu.543189

Regina v Hammersmith and Fulham LBC ex part D: 1999

It was not outside a local authority’s powers to supply an air ticket to assist a failed asylum seeker to return home with her children.

Judges:

Kay J

Citations:

[1999] 1 FLR 642

Jurisdiction:

England and Wales

Cited by:

Cited – M v London Borough of Islington and Another CA 2-Apr-2004
The applicant asylum seeker had had her application refused, and was awaiting a removal order. She had a child and asked the authority to house her pending her removal.
Held: Provided she was not in breach of the removal order, the council had . .
Lists of cited by and citing cases may be incomplete.

Local Government, Children, Immigration

Updated: 29 April 2022; Ref: scu.196548

In re H (a Minor) (Child abduction: Mother’s Asylum): FD 25 Jul 2003

The mother fled Pakistan and secured asylum here, proving a well founded fear of persecution if she returned. She had brought her son. The father applied for the child to be returned for the courts there to decide his future, saying he had been abducted.
Held: To order the return of the child anticipating the mother could pursue her claim in Pakistan anticipated her being required to return to the country where she had been found to have a proper fear of persecution. The father offered undertakings which it was concluded could provide adequate protection to the mother. Pakistan was not party to the 1980 Convention. The child’s welfare was paramount. The 1980 Convention provided that the optimum programme for the child should be determined from his history, that a decision should be made without reference to a unilateral relocation by one parent, and the duty where tow jurisdictaions may be in conflict for one to cede jurisdiction quickly. In a difficult balancing exercise, the undertakings would make it possible for the wife to plead her case in Pakistan, and the child should be returned.

Judges:

Wilson J

Citations:

Times 08-Aug-2003

Statutes:

Children Act 1989 1, Hague Convention on the Civil Aspects of International Child Abduction 1980 (Cmnd 8281), Child Abduction and Custody Act 1985 P-1, Convention Relating to the Status of Refugees 1951 (Cmd 9171)

Jurisdiction:

England and Wales

Children, Immigration

Updated: 29 April 2022; Ref: scu.185844

Regina v Westminster City Council ex parte M: 1997

Citations:

(1997) 1 CCLR 85

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (on the Application of Mani) v London Borough of Lambeth CA 9-Jul-2003
Where a destitute and disabled asylum seeker had a clear need for care and attention, the local authority had a duty to provide it. The claimant was an asylum seeker, with impaired mobility and a history of mental halth difficulties. At first he was . .
Lists of cited by and citing cases may be incomplete.

Benefits, Housing, Immigration

Updated: 29 April 2022; Ref: scu.185835

Regina v Secretary of State for the Home Department, Ex parte Yousuf: 1989

Citations:

[1989] Imm AR 554

Jurisdiction:

England and Wales

Cited by:

Clarified – Regina (Linda Boafo) v Secretary of State for the Home Department Admn 6-Feb-2001
The applicant had appealed a refusal to grant her permanent residence. The adjudicator granted her appeal, but the Home Secretary had declined on the bass that the adjudicator’s decision had not been accompanied by directions.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 29 April 2022; Ref: scu.183009

Regina v Kensington and Chelsea Royal London Borough Ex Parte Kihara; Similar: CA 25 Jun 1996

Four asylum seekers had been deprived of benefits, and left destitute. They had sought housing assistance from the authority, claiming that the complete absence of resources left to them was an ‘other special reason’ leaving them vulnerable within s59.
Held: Such destitution was capable of being a reason within the Act, and the appeal against refusal of the assistance was allowed. Deprivation of asylum seekers of benefits made them vulnerable and in housing need. Case law suggested that the ejusdem generis rule should not be applied in construing the section so as to restrict its application.

Judges:

Simon Brown, Waite, Neill LJJ

Citations:

Times 10-Jul-1996, Independent 03-Jul-1996, [1996] 29 HLR 147

Statutes:

Housing Act 1988 59(1)(c), Social Security (Persons from Abroad) Miscellaneous Amendment Regulations 1996 30

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Kensington and Chelsea London Borough Council Ex Parte Kihara; Regina v Similar QBD 1-May-1996
The words ‘other special reason’ for housing need within the section are to be to be read narrowly. The section was to be read as a whole and was not indended to cover impecuniosity through the denial of benefits. . .
Doubted – Ortiz v City of Westminster CA 1994
The applicant was a twenty four year old woman with a history of drug addiction and alcoholism. There was in fact suitable hostel accommodation available which had been offered to the applicant at the relevant time and it was hard to see why she . .
Approved – Wilson v Nithsdale District Council 1992
An eighteen year old girl had been sexually assaulted, was unable to return home, had been expelled from a hostel for suspected theft and was said to be at risk of further sexual assault if not provided with suitable accommodation. She sought . .

Cited by:

Cited – Regina 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Housing

Updated: 28 April 2022; Ref: scu.87058

H v Secretary of State for The Home Department: Admn 16 Aug 2018

The court was asked whether the Secretary of State for the Home Department (‘SSHD’) breached his legal duties to provide support and assistance for the Claimant who had been trafficked as a youngster into the UK. The Claimant also alleges that the treatment he received is illustrative of systemic failings in the treatment of victims of trafficking such that the Court should grant declaratory relief.
Held: There had been failings an errors, but these had now been acknowledged and decision

Citations:

[2018] EWHC 2191 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Benefits

Updated: 26 April 2022; Ref: scu.621158

BA and Another v JA and Others (Female Genital Mutilation Protection Orders and Immigration Appeals): FD 3 Jul 2018

Appeal from refusal of asylum claims – Nigerian family – parents’ fear of FGM for their daughters.
Held: Refused.

Judges:

Holman J

Citations:

[2018] EWHC 1754 (Fam), [2018] 4 WLR 105, [2018] WLR(D) 426

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Immigration, Children

Updated: 26 April 2022; Ref: scu.621054

Matthews, Regina (on The Application of) v Secretary of State for The Home Department: Admn 1 Aug 2018

Application for judicial review of the decision of the Secretary of State to refuse to issue the Claimant a passport on the basis that she was not satisfied that the Claimant is a British citizen.

Judges:

David Elvin QC

Citations:

[2018] EWHC 2026 (Admin)

Links:

Bailii

Statutes:

British Nationality Act 1948

Jurisdiction:

England and Wales

Immigration

Updated: 26 April 2022; Ref: scu.620668

State Secretary for Security and Justice v C and Others: ECJ 5 Jul 2018

(Order)
Reference for a preliminary ruling – urgent preliminary ruling procedure – Article 99 of the Rules of Procedure of the Court – Common procedures for the grant and withdrawal of international protection – Directive 2013/32 / EU – Article 46 (6) and (8) – Application of manifestly unfounded international protection – Right to an effective remedy – Authorization to remain in the territory of a Member State – Directive 2008/115 / EC – Articles 2, 3 and 15 – Illegal stay – Detention

Citations:

C-269/18, [2018] EUECJ C-269/18PPU – CO, ECLI:EU:C:2018:544

Links:

Bailii

Jurisdiction:

European

Immigration

Updated: 25 April 2022; Ref: scu.620003

AT v Secretary of State for The Home Department: Admn 4 Oct 2017

Judicial review application on behalf of AT, FF and BT against the Secretary of State for the Home Department with respect to the lawfulness of her decisions, in particular with respect to the detention and removal of the first claimant, AT.

Citations:

[2017] EWHC 3210 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 25 April 2022; Ref: scu.619954

Al Enein, Regina (on The Application of) v Secretary of State for The Home Department: Admn 26 Jun 2018

The Claimant challenged the decision of the Defendant not to reconsider an earlier decision refusing the Claimant’s application for naturalisation as a British citizen on the basis that the Claimant had worked illegally in the United Kingdom during time and had remained in the UK without leave between those dates and so was not compliant with UK immigration laws.

Citations:

[2018] EWHC 1615 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 24 April 2022; Ref: scu.618991

Bajratari v Secretary of State for The Home Department: CANI 15 Dec 2017

Requests to the ECJ to provide a preliminary ruling on an issue of EU law relating to the status of a non-EU citizen claiming a derivative right of residence in the United Kingdom relying on the EU citizenship status of her child.

Citations:

[2017] NICA 74

Links:

Bailii

Jurisdiction:

Northern Ireland

Immigration, European

Updated: 24 April 2022; Ref: scu.618455

Baraka, Regina (on The Application of) v Secretary of State for The Home Department: Admn 20 Jun 2018

The Claimant seeks to challenge the failure of the Defendant to provide him with accommodation under section 4 of the Immigration and Asylum Act 1999 so as to enable his release on bail from immigration detention.

Citations:

[2018] EWHC 1549 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Housing, Immigration

Updated: 24 April 2022; Ref: scu.618414

Connell, Regina (on The Application of) v Secretary of State for The Home Department: CA 15 Jun 2018

This appeal concerns the relationship between the deportation provisions of the UK 2007 Act, the provisions relating to deportation of EEA nationals contained in the 2006 Regulations, and the Secretary of State’s policy relating to deportation of Irish nationals.

Citations:

[2018] EWCA Civ 1329

Links:

Bailii

Statutes:

Borders Act 2007, Immigration (European Economic Area) Regulations 2006

Jurisdiction:

England and Wales

Immigration, European

Updated: 24 April 2022; Ref: scu.618375

Omar and Others, Regina (on The Application of) v Secretary of State for The Home Department: Admn 28 Mar 2018

Six claimants sought judicial review challenging the lawfulness of the Defendant’s decision (i) to remove them to another EU member state for the purposes of examining their asylum claims and (ii) to detain them for the purposes of their removal.

Judges:

Lambert J

Citations:

[2018] EWHC 689 (Admin), [2018] WLR(D) 287

Links:

Bailii, WLRD

Statutes:

Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017

Jurisdiction:

England and Wales

Immigration

Updated: 23 April 2022; Ref: scu.618098

MT and ET (Child’s Best Interests; Ex Tempore Pilot) Nigeria: UTIAC 1 Feb 2018

1. A very young child, who has not started school or who has only recently done so, will have difficulty in establishing that her Article 8 private and family life has a material element, which lies outside her need to live with her parent or parents, wherever that may be. This position, however, changes over time, with the result that an assessment of best interests must adopt a correspondingly wider focus, examining the child’s position in the wider world, of which school will usually be an important part.
2. The giving of ex tempore decisions furthers the aim of dealing with immigration and asylum appeals as efficiently as possible. But any formal attempt to identify and manage in advance those cases which may lend themselves to the giving of ex tempore decisions needs careful handling; not least to ensure procedural fairness.

Citations:

[2018] UKUT 88 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617019

Quaidoo (New Matter: Procedure/Process) Ghana: UTIAC 1 Feb 2018

1. If, at a hearing, the Tribunal is satisfied that a matter which an appellant wishes to raise is a new matter, which by reason of section 85(5) of the Nationality, Immigration and Asylum Act 2002, the Tribunal may not consider unless the Secretary of State has given consent, and, in pursuance of the Secretary of State’s Guidance, her representative applies for an adjournment for further time to consider whether to give such consent, then it will generally be appropriate to grant such an adjournment, rather than proceed without consideration of the new matter
2. If an appellant considers that the decision of the respondent not to consent to the consideration of a new matter is unlawful, either by reference to the respondent’s guidance or otherwise, the appropriate remedy is a challenge by way of judicial review.

Citations:

[2018] UKUT 87 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617020

Charles (Human Rights Appeal: Scope) Grenada: UTIAC 1 Feb 2018

(i) A human rights appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’) can be determined only through the provisions of the ECHR; usually Article 8.
(ii) A person whose human rights claim turns on Article 8 will not be able to advance any criticism of the Secretary of State’s decision making under the Immigration Acts, including the immigration rules, unless the circumstances engage Article 8(2).
(iii) Following the amendments to ss.82, 85 and 86 of NIAA 2002 by the Immigration Act 2014, it is no longer possible for the Tribunal to allow an appeal on the ground that a decision is not in accordance with the law. To this extent, Greenwood No. 2 (para 398 considered) [2015] UKUT 629 (IAC) should no longer be followed.

Citations:

[2018] UKUT 89 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617018

Watson, Regina (on The Application of) v Secretary of State for The Home Department and Another: UTIAC 5 Apr 2018

Extant Appeal: S94B Challenge: Forum – (1) Where an appellant’s appeal has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 and the appellant has been removed from the United Kingdom pursuant to that certificate, the First-tier Tribunal is the forum for determining whether, in all the circumstances, the appeal can lawfully be decided, without the appellant being physically present in the United Kingdom. The First-tier Tribunal is under a continuing duty to monitor the position, to ensure that the right to a fair hearing is not abrogated. In doing so, the First-tier Tribunal can be expected to apply the step-by-step approach identified in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC).
(2) If the First-tier Tribunal stays the appeal proceedings because it concludes that they cannot progress save in a manner which breaches the procedural rights safeguarded by Article 8, then it is anticipated the Secretary of State will promptly take the necessary action to rectify this position. If this does not happen, then an application for judicial review can be made to the Upper Tribunal to challenge the Secretary of State’s decision and compel him to facilitate the appellant’s return.
(3) If the First-tier Tribunal decides that the appeal process is Article 8 compliant, the Tribunal’s substantive decision will be susceptible to challenge, on appeal to the Upper Tribunal, on the ground that the Tribunal was wrong so to conclude.

Citations:

[2018] UKUT 165 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617024

Elsakhawy (Immigration Officers: Pace) Egypt: UTIAC 30 Jan 2018

1. The respondent’s instructions and guidance to immigration officers correctly reflect the operation of sections 66 and 67 of the Police and Criminal Evidence Act 1984 (PACE) and of the Immigration (PACE Codes of Practice) Direction 2013, in drawing a distinction between administrative enquiries and formal criminal enquiries. The fact that immigration officers have powers of investigation, administrative arrest and criminal arrest does not require them to follow the PACE codes of practice concerning the giving of a ‘criminal’ caution, when questioning a person whom they reasonably suspect of entering into a marriage of convenience, in circumstances where the investigation is merely into whether an administrative breach has occurred.
2. Section 78 of PACE, which gives a criminal court power to refuse to allow evidence which, if admitted, would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, has little to say about the task facing a Tribunal, in civil proceedings under the EEA Regulations.

Citations:

[2018] UKUT 86 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617015

AS (Safety of Kabul) Afghanistan CG: UTIAC 28 Mar 2018

Risk on return to Kabul from the Taliban
(i) A person who is of lower-level interest for the Taliban (i.e. not a senior government or security services official, or a spy) is not at real risk of persecution from the Taliban in Kabul.
Internal relocation to Kabul
(ii) Having regard to the security and humanitarian situation in Kabul as well as the difficulties faced by the population living there (primarily the urban poor but also IDPs and other returnees, which are not dissimilar to the conditions faced throughout may other parts of Afghanistan); it will not, in general be unreasonable or unduly harsh for a single adult male in good health to relocate to Kabul even if he does not have any specific connections or support network in Kabul.
(iii) However, the particular circumstances of an individual applicant must be taken into account in the context of conditions in the place of relocation, including a person’s age, nature and quality of support network/connections with Kabul/Afghanistan, their physical and mental health, and their language, education and vocational skills when determining whether a person falls within the general position set out above.
(iv) A person with a support network or specific connections in Kabul is likely to be in a more advantageous position on return, which may counter a particular vulnerability of an individual on return.
(v) Although Kabul suffered the highest number of civilian casualties (in the latest UNAMA figures from 2017) and the number of security incidents is increasing, the proportion of the population directly affected by the security situation is tiny. The current security situation in Kabul is not at such a level as to render internal relocation unreasonable or unduly harsh.
Previous Country Guidance
(vi) The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to Article 15(c) of the Qualification Directive remains unaffected by this decision.
(vii) The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to the (un)reasonableness of internal relocation to Kabul (and other potential places of internal relocation) for certain categories of women remains unaffected by this decision.
(viii) The country guidance in AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC) also remains unaffected by this decision.

Citations:

[2018] UKUT 118 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617021

BA (Deprivation of Citizenship: Appeals) Ghana: UTIAC 24 Jan 2018

(1) In an appeal under section 40A of the British Nationality Act 1981, the Tribunal must first establish whether the relevant condition precedent in section 40(2) or (3) exists for the exercise of the Secretary of State’s discretion to deprive a person (P) of British citizenship.
(2) In a section 40(2) case, the fact that the Secretary of State is satisfied that deprivation is conducive to the public good is to be given very significant weight and will almost inevitably be determinative of that issue.
(3) In a section 40(3) case, the Tribunal must establish whether one or more of the means described in subsection (3)(a), (b) and (c) were used by P in order to obtain British citizenship. As held in Pirzada (Deprivation of citizenship: general principles) [2017] UKUT 196 (IAC) the deception must have motivated the acquisition of that citizenship.
(4) In both section 40(2) and (3) cases, the fact that the Secretary of State has decided in the exercise of her discretion to deprive P of British citizenship will in practice mean the Tribunal can allow P’s appeal only if satisfied that the reasonably foreseeable consequence of deprivation would violate the obligations of the United Kingdom government under the Human Rights Act 1998 and/or that there is some exceptional feature of the case which means the discretion in the subsection concerned should be exercised differently.
(5) As can be seen from AB (British citizenship: deprivation: Deliallisi considered) (Nigeria) [2016] UKUT 451 (IAC), the stronger P’s case appears to the Tribunal to be for resisting any future (post-deprivation) removal on ECHR grounds, the less likely it will be that P’s removal from the United Kingdom will be one of the foreseeable consequences of deprivation.
(6) The appeal is to be determined by reference to the evidence adduced to the Tribunal, whether or not the same evidence was before the Secretary of State when she made her decision to deprive.

Citations:

[2018] UKUT 85 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617014

Yussuf (Meaning of ‘Liable To Deportation’) Somalia: UTIAC 9 Mar 2018

Section 32 of the UK Borders Act 2007 impliedly amends section 3(5)(a) of the Immigration Act 1971 by (a) removing the function of the Secretary of State of deeming a person’s deportation to be conducive to the public good, in the case of a foreign criminal within the meaning of the 2007 Act; and (b) substituting an automatic ‘deeming’ provision in such a case. The judgments of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 make this plain. To that extent Ali (section 6 – liable to deportation) Pakistan [2011] UKUT 250 (IAC) is wrongly decided.

Citations:

[2018] UKUT 117 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617023

Williams (Scope of ‘Liable To Deportation’) Nigeria: UTIAC 2 Mar 2018

(1) A person who has been deported under a deportation order that remains in force is a person who is liable to deportation within the meaning of section 3 of the Immigration Act 1971 and is therefore unable to bring himself within section 117B(6) of the Nationality, Immigration and Asylum Act 2002.
(2) By the same token, the fact that such a person has been deported does not mean he or she is thereby able to avoid the application of the considerations listed in section 117C.

Citations:

[2018] UKUT 116 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617022

Ahmad (Scope of Appeals) Pakistan: UTIAC 23 Jan 2018

(1) A notice of removal window (Form RED.0004 (fresh)) is not an EEA decision for the purposes of the Immigration (European Economic Area) Regulations 2006. The notice cannot accordingly be appealed under those Regulations. Even if it could constitute a decision, the notice of removal window will constitute an EEA decision only if it concerns a person’s removal from the United Kingdom under regulation 19 of those Regulations.
(2) Section 85(1) of the Nationality, Immigration and Asylum Act 2002 does not enable the Tribunal hearing an appeal in the United Kingdom to treat that appeal as including an appeal which has been certified under section 94 as clearly unfounded and which, as a result, can be brought only once the appellant is outside the United Kingdom.
(3) A statement made by an appellant under section 120 of the 2002 Act in response to a One-Stop notice is a statement made to the Secretary of State or an Immigration Officer. Accordingly, a statement made only in a ground of appeal to the Tribunal is not a statement under that section.

Citations:

[2018] UKUT 84 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617013

Baihinga (R 22; Human Rights Appeal: Requirements) Sierra Leone: UTIAC 5 Feb 2018

1. The scope for issuing a notice under rule 22 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (circumstances in which the Tribunal may not accept a notice of appeal) is limited. A rule 22 notice may be issued at the stage where the First-tier Tribunal scrutinises a notice of appeal as soon as practicable after it has been given. Where no rule 22 notice is issued at that stage and the matter proceeds to a hearing, the resulting decision of the First-tier Tribunal may be challenged on appeal to the Upper Tribunal, rather than by judicial review (JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78; Practice Statement 3).
2. An application for leave or entry clearance may constitute a human rights claim, even if the applicant does not, in terms, raise human rights. In cases not covered by the respondent’s guidance (whereby certain applications under the immigration rules will be treated as human rights claims), the application will constitute a human rights claim if, on the totality of the information supplied, the applicant is advancing a case which requires the caseworker to consider whether a discretionary decision under the rules needs to be taken by reference to ECHR issues (eg Article 8) or requires the caseworker to look beyond the rules and decide, if they are not satisfied, whether an Article 8 case is nevertheless being advanced.
3. The issue of whether a human rights claim has been refused must be judged by reference to the decision said to constitute the refusal. An entry clearance manager’s decision, in response to a notice of appeal, cannot, for this purpose, be part of the decision of the entry clearance officer.
4. A person who has not made an application which constitutes a human rights claim cannot re-characterise that application by raising human rights issues in her grounds of appeal to the First-tier Tribunal.

Citations:

[2018] UKUT 90 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 22 April 2022; Ref: scu.617017

Joshi and Another, Regina (on The Application of) v Secretary of State for The Home Department: CA 15 May 2018

The appeal raises two issues: first, whether the application made by the first appellant was properly characterised as a human rights claim for the purposes of s.94(1) of the Nationality, Immigration and Asylum Act 2002; and second whether the decision on the application was void or nullified on the grounds of illegality?

Citations:

[2018] EWCA Civ 1108

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Human Rights

Updated: 22 April 2022; Ref: scu.616326

Youssef v Secretary of State for The Home Departmen: CA 26 Apr 2018

The Respondent argued that each Appellant was properly excluded from reliance on (and the benefit of) the United Nations Refugee Convention 1951 as their differing activities were sufficient to satisfy the test in Article 1F(c) of the Convention: each ‘has been guilty of acts contrary to the purposes and principles of the United Nations’.

Citations:

[2018] EWCA Civ 933, [2018] WLR(D) 259

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Immigration

Updated: 20 April 2022; Ref: scu.614913

Ryanair Ltd v Secretary of State for The Home Department: CA 24 Apr 2018

The airline complained of the imposition on it of liability carrying passengers without an entry visa. He had produced a residence card for Austria. The appeal failed. Under the Directive, a valid card must bear the words ‘Residence card of a family member of a Union citizen’ or a translated version. A card of the sort produced might go toward establishing the necessary right, but was not itself sufficient.

Judges:

King, Newey LJJ, Macdonald J

Citations:

[2018] EWCA Civ 899, [2018] WLR(D) 250

Links:

Bailii, WLRD

Statutes:

Council Directive 2004/38/EC 5(2), Immigration and Asylum Act 1999 40

Jurisdiction:

England and Wales

Immigration, Transport

Updated: 20 April 2022; Ref: scu.614908

VB and Another (Draft Evaders and Prison Conditions : Ukraine) (CG): UTIAC 6 Mar 2017

1. At the current time it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act, although if a draft-evader did face prosecution proceedings the Criminal Code of Ukraine does provide, in Articles 335, 336 and 409, for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of developing evidence, whether there were aggravating matters which might lead to imposition of an immediate custodial sentence, rather than a suspended sentence or the matter proceeding as an administrative offence and a fine being sought by a prosecutor.
2. There is a real risk of anyone being returned to Ukraine as a convicted criminal sentenced to a term of imprisonment in that country being detained on arrival, although anyone convicted in absentia would probably be entitled thereafter to a retrial in accordance with Article 412 of the Criminal Procedure Code of Ukraine.
3. There is a real risk that the conditions of detention and imprisonment in Ukraine would subject a person returned to be detained or imprisoned to a breach of Article 3 ECHR.

Citations:

[2017] UKUT 79 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 16 April 2022; Ref: scu.588801