Tag: Immigration

EA039862015: UTIAC 8 Jan 2018

Jurisdiction to hear appeal against the decision of the respondent to refuse to grant residence card as an extended family member of an EEA national based on the decision in Sala (EFM’s: right of appeal) [2016] UKUT 411 (IAC).

Citations:

[2018] UKAITUR EA039862015

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 01 February 2022; Ref: scu.602997

Mmk, Regina (on The Application of) v Secretary of State for The Home Department (Consent Orders – Legal Effect – Enforcement): UTIAC 5 May 2017

(i) The commonly used forms of consent order do not expose either party to possible contempt action or other sanction.
(ii) The remedy for non-compliance with a consent order will normally be the initiation of a fresh judicial review claim

Citations:

[2017] UKUT 198 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588808

RN, Regina (on The Application of) v Secretary of State for The Home Department (Paragraph 245Aaa): UTIAC 12 Jan 2017

(i) On a proper construction of paragraph 245AAA(a)(i) of HC 395, an absence from the United Kingdom for a period of more than 180 days in one of the relevant 12 month periods will entail a failure to satisfy the requirements of paragraph 245CD.
(ii) The term ‘residence’ in paragraph 245AAA(a) is to be equated to presence.

Citations:

[2017] UKUT 76 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588786

H, Regina (on The Application of) v The Secretary of State for The Home Department (Application of AA (Iraq) CG: UTIAC 14 Feb 2017

A proper reading of the Upper Tribunal’s decision in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC) reveals the importance of making findings of fact regarding P’s circumstances, in order properly to apply the country guidance in that case. A finding that P cannot currently be returned, owing to a lack of particular travel documentation, will not be determinative of P’s claim to international protection if P faces a real risk of serious harm, otherwise than (solely) by reason of P’s lack of such documentation.

Citations:

[2017] UKUT 119 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588789

BA (Returns To Baghdad Iraq CG): UTIAC 23 Jan 2017

(i) The level of general violence in Baghdad city remains significant, but the current evidence does not justify departing from the conclusion of the Tribunal in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC).
(ii) The evidence shows that those who worked for non-security related Western or international companies, or any other categories of people who would be perceived as having collaborated with foreign coalition forces, are still likely to be at risk in areas which are under ISIL control or have high levels of insurgent activity. At the current time the risk is likely to emanate from Sunni insurgent groups who continue to target Western or international companies as well as those who are perceived to collaborate with the Government of Iraq.
(iii) The current evidence indicates that the risk in Baghdad to those who worked for non-security related Western or international companies is low although there is evidence to show that insurgent groups such as ISIL are active and capable of carrying out attacks in the city. In so far as there may be a low level of risk from such groups in Baghdad it is not sufficient to show a real risk solely as a perceived collaborator.
(iv) Kidnapping has been, and remains, a significant and persistent problem contributing to the breakdown of law and order in Iraq. Incidents of kidnapping are likely to be underreported. Kidnappings might be linked to a political or sectarian motive; other kidnappings are rooted in criminal activity for a purely financial motive. Whether a returnee from the West is likely to be perceived as a potential target for kidnapping in Baghdad may depend on how long he or she has been away from Iraq. Each case will be fact sensitive, but in principle, the longer a person has spent abroad the greater the risk. However, the evidence does not show a real risk to a returnee in Baghdad on this ground alone.
(v) Sectarian violence has increased since the withdrawal of US-led coalition forces in 2012, but is not at the levels seen in 2006-2007. A Shia dominated government is supported by Shia militias in Baghdad. The evidence indicates that Sunni men are more likely to be targeted as suspected supporters of Sunni extremist groups such as ISIL. However, Sunni identity alone is not sufficient to give rise to a real risk of serious harm.
(vi) Individual characteristics, which do not in themselves create a real risk of serious harm on return to Baghdad, might amount to a real risk for the purpose of the Refugee Convention, Article 15(c) of the Qualification Directive or Article 3 of the ECHR if assessed on a cumulative basis. The assessment will depend on the facts of each case.
(vii) In general, the authorities in Baghdad are unable, and in the case of Sunni complainants, are likely to be unwilling to provide sufficient protection.

Citations:

[2017] UKUT 18 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588783

HU049962016: UTIAC 2 Jan 2018

1. The appellant is a national of Bangladesh, born on 10 August 1987. She appeals with permission against the decision of the First-tier Tribunal Judge who dismissed her appeal against the respondent s decision refusing her application for settlement in the UK with her sponsor. The decision was promulgated on 13 July 2017.
2. In granting permission to appeal, Upper Tribunal Judge Pitt found that it was arguable that the Judge took an incorrect approach to the evidence of indirect contact by way of telephone calls, which also included a large number of calling cards and telephone records. She noted that it was apparently undisputed that those records showed multiple calls on numerous days to the home where the appellant lives, albeit with other family members and the evidence of the appellant and the sponsor regarding regular telephone calls, consistent.
3. Although the sponsor gave evidence about cash remittances for which there was no documentary evidence, the Judge did not indicate why that evidence or that of the appellant and sponsor in general, was not reliable as to the genuineness of the relationship.
4. Judge Pitt also found that it is arguable that the Judge had been required to conduct a separate assessment as to the genuineness of the marriage in the Article 8 assessment outside the Rules, taking into account the evidence as at the date of hearing rather than as at the date of decision. There was post-decision evidence by way of telephone calls, remittances and a further visit, arguably capable of allowing a different conclusion to that under the Rules.

Citations:

[2018] UKAITUR HU049962016

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.603007

Ahmed and Others (Deprivation of Citizenship) (Pakistan): UTIAC 10 Feb 2017

(i) While the two fold duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 are imposed on the Secretary of State, the onus of making representations and providing relevant evidence relating to a child’s best interests rests on the appropriate parental figure.
(ii) A failure to discharge this onus may well defeat any argument that there was a proactive duty of enquiry on the Secretary of State in a given context.
(iii) In deprivation of citizenship cases, section 55 issues arise at two stages: at the deprivation of citizen stage and at the later stage of proposed removal or deportation.
(iv) As the subject of national citizenship lies exclusively within the competence of Member States, EU law has no role to play in deprivation cases: G1 v SSHD [2012] EWCA Civ 867 applied.
(v) The Secretary of State’s deprivation of citizenship policy confers a wide margin of appreciation on the decision maker.
(vi) Part 5A of the Nationality, Immigration and Asylum Act 2002 does not apply to deprivation of citizenship decisions as such decisions are not made under the Immigration Acts.
(vii) There would be a considerable saving of human and financial resources with consequential reduced delay if deprivation of citizenship and deportation or removal decisions were to be made jointly.

Citations:

[2017] UKUT 118 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588788

JO and Others (Section 55 Duty) Nigeria: UTIAC 1 Dec 2014

(1) The duty imposed by section 55 of the Borders Citizenship and Immigration Act 2009 requires the decision-maker to be properly informed of the position of a child affected by the discharge of an immigration etc function. Thus equipped, the decision maker must conduct a careful examination of all relevant information and factors.
(2) Being adequately informed and conducting a scrupulous analysis are elementary prerequisites to the inter-related tasks of identifying the child’s best interests and then balancing them with other material considerations.
(3) The question whether the duties imposed by section 55 have been duly performed in any given case will invariably be an intensely fact sensitive and contextual one. In the real world of litigation, the tools available to the court or tribunal considering this question will frequently be confined to the application or submission made to Secretary of State and the ultimate letter of decision.

Citations:

[2014] UKUT 517 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.543195

Naziri and Others, Regina (on The Application of) v Secretary of State for The Home Department (JR – Scope – Evidence (IJR): UTIAC 27 Jul 2015

(i) It is intrinsically undesirable that judicial review proceedings be transacted in circumstances where material evidence on which the Applicants seek to rely has not been considered by the primary decision maker.
(ii) There is a strong general prohibition in contemporary litigation against rolling review by the Upper Tribunal in judicial review proceedings. .
(iii) Where a judicial review applicant is proposing to make further representations to the Secretary of State in circumstances where a new decision will forseeably be induced, it will normally be appropriate, to refuse permission or to dismiss the application substantively on the ground that it will be rendered moot and/or an alternative remedy remains unexhausted and/or giving effect to the prohibition against rolling review.
(iv) The principles rehearsed above are to be similarly applied to applications for permission to appeal to the Court of Appeal.
(v) Where a draft judgment is circulated in advance of handing down the function of parties and their representatives is confined to notifying mis-spellings, formatting defects, inadvertent factual errors, ambiguities of expression and kindred blemishes: Edwards and Ors R (on the application of) v Environment Agency and Ors [2008] UKHL 22 applied

Citations:

[2015] UKUT 437 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.551570

Aydogdu, Regina (on The Application of) v Secretary of State for The Home Department (Ankara Agreement – Family Members – Settlement): UTIAC 20 Mar 2017

(I) The settlement of migrant Turkish nationals and their family members does not fall within the scope of the ‘stand-still clause’ in Article 41(1) of the Ankara Agreement (ECAA) Additional Protocol as it is not necessary for the exercise of freedom of establishment under Article 13. Thus the status of settlement in the UK for such Turkish nationals and their family members cannot derive in any way from the ECAA or its Additional Protocol;
(II) Where a Turkish national who exercised rights under the ECAA has been granted settlement in the UK the rights of such person and his family members are not derived from the ECAA or its Additional Protocol.

Citations:

[2017] UKUT 167 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588795

PA065462016: UTIAC 3 Jan 2018

This is a case where a Palestinian national is accepted by the respondent to be a Palestinian national from Ain al-Hilweh refugee camp in Lebanon. The issue in the appeal was whether the appellant was at risk from the Lebanese authorities. It is arguable that the FtTJ has made an error of fact in paragraph 16 which may have affected the credibility findings as a whole.

Citations:

[2018] UKAITUR PA065462016

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.603056

Neshanthan (Cancellation or Revocation of ILR : Sri Lanka): UTIAC 17 Jan 2017

i) Article 13 of the Immigration (Leave to enter and Remain) Order 2000/1161 (the ‘2000 Order’) applies to holders of indefinite leave to remain (‘ILR’) who travel to a country or territory outside the common travel area so that their ILR does not lapse but continues if Article 13(2)-(4) are satisfied.
ii) If the leave of such an individual continues pursuant to Article 13(2)-(4) of the 2000 Order, an immigration officer has power to cancel their ILR upon their arrival in the United Kingdom.
iii) The grounds upon which such leave may be cancelled are set out at para 321A of the Immigration Rules.
iv) Section 76 of the Nationality, Immigration and Asylum Act 2002 Act is an alternative and additional power, available to the Secretary of State, to revoke indefinite leave to enter or ILR in the circumstances described at s.76(1)-(3) of the 2002 Act.

Citations:

[2017] UKUT 77 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588785

Zei and Others (Decision Withdrawn – Ftt Rule 17 – Considerations : Palestine): UTIAC 8 May 2017

Rule 17 clearly envisages that in general the appeal is to be treated as withdrawn. It will continue only if a good reason is identified for allowing it to proceed despite being an appeal against a decision that will not have effect in any event. The appellant needs the opportunity to advance a case why he considers an appeal should not be treated as withdrawn, and the SSHD needs the opportunity to respond. The Tribunal has no power to require the Secretary of State to give (or even to have) a good reason for her decision.
The list below cannot and should not be regarded as a comprehensive account of all reasons that might be urged on judges, but we trust that as well as giving guidance on the arguments discussed the reasoning may be adapted to other cases.
(i) The following are not likely to be considered good reasons:
– The parties wish the appeal to proceed.
– The applicant is legally aided and if he has to appeal against a new decision, he will not (or will probably not) be legally aided because the legal aid regime has changed.
– The withdrawal is for reasons the judge considers inappropriate is very unlikely to be a good reason to proceed. An example is that of a Presenting Officer who seeks adjournment of a hearing and when that is refused, withdraws the decision.
– The witnesses are ready to be heard and can only with difficulty or expense be gathered again.
(ii) The following are likely to be capable of being a good reason.
– The appeal regime has changed since the first decision, so that if a new decision is made in the same sense, the rights of appeal will be reduced.
– Undue delay by the respondent.
– The appeal turns on a pure point of law that the judge thinks that even after argument is certainly or almost certainly to be decided in the appellant’s favour.
– If there has already been a considerable delay in a decision the appellant is entitled to expect, the fact that children are affected.

Citations:

[2017] UKUT 292 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.595799

Zia and Hossan, Regina (on The Application of) v Secretary of State for The Home Department (Strike Out – Reinstatement Refused – Appeal): UTIAC 8 Mar 2017

(i) A decision of the Upper Tribunal refusing to exercise its power to reinstate a judicial review claim which has been struck out may be the subject of an application for permission to appeal to the Court of Appeal.
(ii) Such a decision, given its nature and consequences, is not to be equated with a mere case management decision.
(iii) Every decision upon an application to reinstate must give effect to the overriding objective.
(iv) Rule 8 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides the only mechanism for challenging a strike out order. Rule 43 has no application in this context.

Citations:

[2017] UKUT 123 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588802

HU021462016 and HU021482016: UTIAC 4 Jan 2018

Appeals of a citizen of Bangladesh, and of his dependent wife against the decision of the First-tier Tribunal, to refuse their appeal on human rights against the decision of the Secretary of State to refuse their applications for leave to remain on human rights grounds.

Citations:

[2018] UKAITUR HU021462016

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.603002

Awuah and Others (Wasted Costs Orders – Hopos – Tribunal Powers : Ghana): UTIAC 13 Jul 2017

(i) The First-tier Tribunal (‘FtT’) is not empowered to make a Wasted Costs Order (‘WCO’) against a Home Office Presenting Officer (‘HOPO’).
(ii) The relationship of Secretary of State and HOPO is governed by the Carltona principle.
(iii) The answerability of HOPOs to the tribunal is achieved through a range of judicial functions and duties.
(iv) In every case where a WCO is in contemplation common law fairness requires that the respondent be alerted to this possibility, be apprised of the case against him and be given adequate time and opportunity to respond.
(v) While expedition and summary decision making are desirable in WCO matters, the basic requirements of fairness to the respondent must always be respected.
(vi) A causal nexus between the impugned conduct of the respondent and the costs unnecessarily incurred by the aggrieved party is an essential pre-condition of a WCO.
(vii) The tribunal’s ‘own motion’ power to make a WCO is to be exercised with restraint.

Citations:

[2017] UKFTT 555 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.595802

TA and Others (Kareem Explained): UTIAC 18 Jun 2014

Following the decision in Kareem (proxy marriages – EU law) [2014] UKUT 24, the determination of whether there is a marital relationship for the purposes of the Immigration (EEA) Regulations 2006 must always be examined in accordance with the laws of the Member State from which the Union citizen obtains nationality.

Citations:

[2014] UKUT 316 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.536210

Sleiman (Deprivation of Citizenship; Conduct : Lebanon): UTIAC 19 Jul 2017

In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation ‘by means of’ fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship.

Citations:

[2017] UKUT 367 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.595804

Owolabi (Tier 2 – Skilled Occupations) Nigeria: UTIAC 18 Jul 2011

The relevant provisions of the Immigration Rules dealing with Tier 2 (General) Migrants, were first laid before Parliament on 4 November 2008 and came into effect on 27 November 2008. The fact the UKBA list of skilled occupations, which is referred to in paras 69 and 82 of Appendix A to the Rules, was not placed on UKBA’s website until 28 November i.e. 24 days after Appendix A was laid before Parliament, together with the fact that such a list was capable of being amended by the Secretary of State, means that reliance by the respondent on the requirements set out in para 69 was unlawful: Pankina [2010] EWCA Civ 719 and R (on the application of Alvi) v Secretary of State for the Home Department [2011] EWCA Civ 681 applied. (This decision does not address the implications of the amendment made to para 69 by HC382 which came into effect on 12 August 2010.)

Citations:

[2011] UKUT 313 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.444048

SF and Others (Guidance, Post-2014 Act): UTIAC 16 Feb 2017

Even in the absence of a ‘not in accordance with the law’ ground of appeal, the Tribunal ought to take the Secretary of State’s guidance into account if it points clearly to a particular outcome in the instant case. Only in that way can consistency be obtained between those cases that do, and those cases that do not, come before the Tribunal.

Citations:

[2017] UKUT 120 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588792

Agha, Regina (on The Application of) v Secretary of State for The Home Department (False Document): UTIAC 21 Feb 2017

For a document to be a false document under the Immigration Rules there must have been an element of dishonesty in its creation and if this is not immediately obvious in a case of an inaccurate document then that element must be engaged with in any refusal.

Citations:

[2017] UKUT 121 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588787

Sivapatham (Appearance of Bias : Sri Lanka): UTIAC 7 Jul 2017

(i) Indications of a closed judicial mind, a pre-determined outcome, engage the appearance of bias principle and are likely to render a hearing unfair.
(ii) Provisional or preliminary judicial views are permissible, provided that an open mind is maintained.
(iii) An appellant does not require the permission of the tribunal to give evidence. This does not prevent the application of fair and sensible case management and, further, is subject to the doctrine of misuse of the tribunal’s process.

Citations:

[2017] UKUT 293 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.595803

Tm (Eea Nationals – Meaning; Ni Practitioners : Zimbabwe): UTIAC 14 Mar 2017

1. Schedule 1, paragraph 1 (d) of the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547) amended the definition of EEA national to exclude those who are also British Citizens, but that change was subject to the transitional provisions set out in Schedule 3 of those regulations. Similar provisions were added to the Immigration (European Economic Area) Regulations 2016 by the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1) which amended schedule 6 of the 2016 Regulations by adding a new paragraph 9.
2. Although the reg 1 (2) of the 2016 regulations revoked the Immigration (European Economic Area) Regulations 2006, they are preserved for the purposes of appeals, as are the rights of appeal by an amendment to Schedule 4 of the new EEA Regulations made by the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1).
3. While the representatives regulated by OISC and members of the Bar of Northern Ireland are both entitled under section 84 of the Immigration and Asylum Act 1999 to provide immigration services, section 11 of the Code of Conduct of the Bar of Northern Ireland precludes barristers from taking instructions from persons other than lawyers who are governed by a professional body (which does not include OISC).

Citations:

[2017] UKUT 165 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588800

Saha and Another, Regina (on The Application of) v Secretary of State for The Home Department (Secretary of State’s Duty of Candour): UTIAC 13 Jan 2017

UTIAC (I) It is impossible to overstate the importance of the duty of candour in judicial review proceedings. Any failings by the Executive in this respect threaten the guarantees upon which judicial review is founded and are inimical to the rule of law.
(II) A failure by the Executive to conduct judicial review proceedings with the necessary degrees of candour, efficiency and attention compromises the ability of its legal representatives to discharge their ethical and professional duties.
(III) All of the aforementioned duties are encompassed within an overarching obligation of good faith rooted in respect for the rule of law.
(IV) Failings of this kind may be reflected in various ways, including how the judicial exercise of discretion in the matter of costs is performed.

Citations:

[2017] UKUT 17 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.573291

IA101442015: UTIAC 2 Jan 2018

1. The Appellant is a national of Nigeria, born on 6 June 1976. He claimed to have arrived in the United Kingdom illegally on 24 November or 24 December 2004. He fathered a child, PGN, who was born on 22 June 2008 to NI, a national of Nigeria without leave to remain in the United Kingdom. The Appellant then made applications for a residence card on 8 May 2009 and on 1 April 2011 but these applications were refused. He fathered another child, KEAN, who was born on 19 December 2011 to OS, a national of Nigeria without leave to remain in the United Kingdom.

2. The Appellant was encountered working illegally by the Immigration Service on 28 May 2012 and informed of his liability for removal. On 20 June 2012, the Appellant made a further application for a residence card, which was rejected on 23 August 2012. He made a further application for a residence card on 29 August 2012, which was refused on 30 January 2013 and his appeal against that decision was dismissed on 6 June 2013. On 19 September 2013, the Appellant made an application for leave to remain on the basis of his private and family life. This application was refused on 11 October 2013 without the right of appeal but following a judicial review, which was settled by consent, the Respondent reconsidered her decision and issued a further refusal with the right of appeal on 12 February 2015.

3. The basis of the refusal was that the Appellant failed to meet the eligibility requirements E-LTRPT 2.2.-2.4 of Appendix FM of the Rules, in the absence of evidence that he has access rights to his children or is taking an active role in their upbringing. It was further not accepted that the requirements of EX1(a) were met as the Appellant’s children are not British nor living in the United Kingdom continuously for at least 7 years. It was not considered that the private life requirements of the Rules were met nor that there were exceptional circumstances justifying the grant of leave pursuant to Article 8 outside the Rules. The Appellant appealed against this decision. A subsequent male child, GN, was born to OS on 27 November 2015.

4. The appeal came before FtTJ Swinnerton for hearing on 12 January 2017. In a decision and reasons promulgated on 1 February 2017, the Judge dismissed the appeal. At the hearing of the appeal, the FtTJ took into consideration additional documentation viz an undated and untimed photograph of the Appellant purportedly having contact with his son PGN, a letter to the Appellant from the Respondent in 2012 confirming his entitlement to work and two computer printouts submitted by the Respondent dated 12 January 2017 showing that the Appellant’s partner, OS, had been refused leave to remain in the United Kingdom and had appealed and that NI was an overstayer who had been refused leave to remain but had not appealed that decision at the time of the printout. The Judge found the Appellant’s oral evidence lacked credibility [17]. She took into account the fact that the Family Court had granted the Appellant indirect contact with his son, PGN from 1 November 2016 and that he could have direct contact commencing on 7 January 2017, on an increasing incremental basis rising to 4 hours from March 2017.

5. The FtTJ took into account her section 55 duty at [35] but at [38] found that the evidence from the Family Court shows that the Appellant has had minimal contact with his son in the last few years and the child’s mother described the Appellant’s relationship with his son in 2016 as non-existent, but accepted that the Appellant does wish to establish a caring relationship with the child and that under the terms of the interim court order he has been granted limited contact until the end of March 2017 [38]. She went on at [40] to find that, whilst she accepted that it is in the best interests of PGN to re-establish and maintain a relationship with the Appellant but as he is not a UK citizen and neither is his mother, if she chooses to leave the UK to return to Nigeria then the Appellant’s son would be residing in a different country from him. She found that the Appellant would be able to maintain and develop a relationship with his son through social media and skype [46] and whilst she accepted that the Appellant does have a genuine and subsisting relationship with his son, PGN for the purposes of section 117B(6) of the NIAA 2002, it was reasonable to expect the child to leave the UK because he resides with his mother who is a Nigerian citizen with no leave to remain in the UK [49] and [50]. She further found that it would not be unreasonable or unduly harsh to expect the Appellant and his partner and their two children to leave the UK as a unit and go to Nigeria to live together as a family [51].

6. An application for permission to appeal to the Upper Tribunal was made in time on 13 February 2017. The grounds in support of the application asserted that the First tier Tribunal Judge had erred materially in law:

(i) in allowing the Respondent to adduce late evidence, which prejudiced the Appellant due to the fact that it was produced after cross-examination; that this was unfair and due to his strained relationship with NI, the Appellant was unable to rebut the late evidence. The Appellant’s evidence was that NI intended to remain in the United Kingdom with PGN;

(ii) in her determination of the reasonableness of expecting the Appellant’s son, PGN, which was determined solely on the basis of the late evidence as to NI’s immigration status [50] refers and the First tier Tribunal Judge erred in failing to apply the principles set out in MA (Pakistan) [2016] EWCA Civ 705 at [49] and [50] that leave to remain should be granted unless there are powerful reasons to the contrary, if a child has been in the UK for seven years and the First tier Tribunal Judge failed to identify any powerful reasons to depart from that starting point.

7. Permission to appeal to the Upper Tribunal was granted by Designated Judge Murray in a decision dated 17 August 2017, on the basis that there are arguable errors of law in the Judge’s decision.

Citations:

[2018] UKAITUR IA101442015

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.603028

Ayache, Regina (on The Application of) v The Secretary of State for The Home Department (Paragraph 353 and S94B Relationship): UTIAC 8 Mar 2017

1. Although paragraph 353 does not refer in terms to certification, a decision certified pursuant to s 94b is plainly a decision on a ‘human rights claim’ albeit a claim regarding temporary removal as opposed to removal for a more lengthy period if a statutory appeal is unsuccessful. In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant’s Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim.
2. Paragraph 353 Immigration Rules provides the appropriate remedy where further information and evidence is sought to be placed before the respondent, rather than such material being considered in judicial review proceedings

Citations:

[2017] UKUT 122 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588794

Arranz (EAA Regulations – Deportation – Test : Spain): UTIAC 22 Aug 2017

(i) The burden of proving that a person represents a genuine, present and sufficiently threat affecting one of the fundamental interests of society under Regulation 21(5)(c) of the EEA Regulations rests on the Secretary of State.
(ii) The standard of proof is the balance of probabilities.
(iii) Membership of an organisation proscribed under the laws of a foreign country does not without more satisfy the aforementioned test.
(iv) The ‘Bouchereau’ exception is no longer good law: CS (Morocco) applied

Citations:

[2017] UKUT 294 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.595807

Munyua, Regina (on The Application of) v Secretary of State for The Home Department (Parties’ Responsibility To Agree Costs): UTIAC 13 Feb 2017

Where judicial review proceedings are resolved by settlement, the parties are responsible for doing all they can to agree costs, both as to liability and amount, rather than leaving this to the decision of the Tribunal, which is likely to carry its own penalty.

Citations:

[2017] UKUT 78 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588790

Capparrelli (Eea Nationals – British Nationality : Italy): UTIAC 20 Jan 2017

(i) An EEA national exercising Treaty rights in the United Kingdom is not ‘settled’ within the compass of section 1(1) of the British Nationality Act 1981 since such person’s lawful residence is conditional upon remaining economically active: Gal affirmed.
(ii) The statutory phrase ‘the immigration laws’ does not encompass the EU rules on free movement: Gal modified.
(iii) Being ordinarily resident in the United Kingdom does not confer the status of British nationality.
(iv) The dichotomy of persons lawfully present in the United Kingdom under (a) the EEA Regulations 2006 and (b) the Immigration Rules is reflected in paragraph 5 of the latter.
(v) The question of whether a person is ordinarily resident in the United Kingdom is one of fact and degree.

Citations:

[2017] UKUT 162 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588784

SS, Regina (on The Application of) v Secretary of State for The Home Department (‘Self-Serving’ Statements): UTIAC 13 Mar 2017

(1) The expression ‘self-serving’ is, to a large extent, a protean one. The expression itself tells us little or nothing. What is needed is a reason, however brief, for that designation. For example, a letter written by a third party to an applicant for international protection may be ‘self-serving’ because it bears the hallmarks of being written to order, in circumstances where the applicant’s case is that the letter was a spontaneous warning.
(2) Whilst a statement from a family member is capable of lending weight to a claim, the issue will be whether, looked at in the round, it does so in the particular case in question. Such a statement may, for instance, be incapable of saving a claim which, in all other respects, lacks credibility.

Citations:

[2017] UKUT 164 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588799

Iqbal (Para 322 Immigration Rules): UTIAC 16 Jul 2015

(i) The effect of the words ‘are to be refused’ in paragraph 322 of the Immigration Rules is to render refusal of leave to remain the United Kingdom obligatory in cases where any of the listed grounds arises. The decision maker has no discretion.
(ii) The doctrine of substantive legitimate expectations is a nuanced, sophisticated one which should not be prayed in aid without careful reflection.

Citations:

[2015] UKUT 434 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.551566

Al-Anizy, Regina (on The Application of) v Secretary of State for The Home Department (Undocumented Bidoons – Home Office Policy): UTIAC 25 Apr 2017

1) The Home Office family reunification policy embraces a series of flexible possibilities for proof of identity.
2) In any case where withdrawal or a consent order is proposed judicial scrutiny and adjudication are required.

Citations:

[2017] UKUT 197 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.588803

RLP (BAH Revisited – Expeditious Justice) Jamaica: UTIAC 11 Apr 2017

(i) The decision of the Upper Tribunal in BAH (EO – Turkey – Liability to Deport) [2012] UKUT 00196 (IAC) belongs to the legal framework prevailing at the time when it was made: it has long been overtaken by the significant statutory and policy developments and reforms effected by the Immigration Act 2014 and the corresponding amendments of the Immigration Rules, coupled with YM (Uganda) [2014] EWCA Civ 1292 at [36] – [39].
(ii) In cases where the public interest favouring deportation of an immigrant is potent and pressing, even egregious and unjustified delay on the part of the Secretary of State in the underlying decision making process is unlikely to tip the balance in the immigrant’s favour in the proportionality exercise under Article 8(2) ECHR.

Citations:

[2017] UKUT 330 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.595797

AB (Ahmadiyya Association UK: Letters) Pakistan: UTIAC 18 Sep 2013

In deciding a claim to international protection based on a person’s Ahmadi faith where credibility is in issue, the more that a letter from the Ahmadiyya Association UK contains specific information as to the claimant’s activities in the United Kingdom, the more likely the letter is to be given weight.

Citations:

[2013] UKUT 511 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 31 January 2022; Ref: scu.536224