Tag: Immigration

MS (Uganda) v Secretary of State for The Home Department: SC 22 Jun 2016

The issue in this case concerns the true meaning and ambit of the additional right of appeal specific to asylum claims which was given by section 83 of the 2002 Act.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Wilson, Lord Hughes, Lord Toulson
[2016] UKSC 33
Bailii, Bailii Summary
Nationality, Immigration and Asylum Act 2002 83
England and Wales

Immigration

Updated: 18 January 2022; Ref: scu.565831

MK and IKR, Regina (on The Application of) v Secretary of State for The Home Department: UTIAC 24 May 2016

UTIAC Calais; Dublin Regulation – Investigative Duty – (IJR) (i) In making a decision whether to accept a ‘take charge’ request under the Dublin Regulation, the Secretary of State is obliged to take all material considerations into account and to comply with the ‘Tameside’ duty of enquiry.
(ii) The Dublin Regulation and its sister instrument, Commission Regulation (EC) 1550/2003, subject the Secretary of State to duties of enquiry, investigation and evidence gathering. The discharge of these duties will be factually and contextually sensitive and is governed by the principle that the Secretary of State is obliged to take reasonable steps.
(iii) In a context where there are successive ‘take charge’ requests and successive decisions in response thereto, the aforementioned duties apply throughout.
(iv) The aforementioned duties may also arise via the procedural dimension of Article 8 ECHR, under Section 6 of the Human Rights Act 1998.
(v) The principles rehearsed above may give rise to a remedy comprising a mandatory order requiring the Secretary of State to take all reasonable steps and use her best endeavours in certain specified respects.

[2016] UKUT 231 (IAC)
Bailii, Bailii
England and Wales

Immigration

Updated: 17 January 2022; Ref: scu.565388

AAW (Expert Evidence – Weight): UTIAC 5 Nov 2015

UTIAC A failure to comply with the Senior President’s Practice Direction may affect the weight to be given to expert evidence. Any opinion offered that is unsupported by a demonstration of the objectivity and comprehensive review of material facts required of an expert witness is likely to be afforded little weight by the Tribunal. In particular, a witness who does not engage with material facts or issues that might detract from the view being expressed risks being regarded as an informed advocate for the case of one of the parties to the proceedings rather than an independent expert witness.

Upper Tribunal Judge Southern
[2015] UKUT 673 (IAC)
Bailii
England and Wales

Immigration

Updated: 17 January 2022; Ref: scu.565369

Hussein, Regina (on The Application of) v First-Tier Tribunal (Para 353: Present Scope and Effect)(IJR): UTIAC 8 Aug 2016

UTIAC (1) Lord Neuberger’s judgment in R (ZA (Nigeria)) v Secretary of State for the Home Department [2010] EWCA Civ 926 is an authoritative pronouncement on the scope of the Supreme Court’s judgments in R (BA (Nigeria)) v Secretary of State for the Home Department [2009] UKSC 7.
(2) Parliament’s actions in amending paragraph 353 (fresh claims) of the immigration rules in the light of the changes to the appeal regime made by the Immigration Act 2014, together with its decisions:-
(i) to amend, but without bringing into force, the prospective amendments made in 2006 to the definition of ‘human rights claim’ in section 113 of the Nationality, Immigration and Asylum Act 2002; and
(ii) to amend the existing definition of ‘human rights claim’ in the light of the 2014 Act,
show that Parliament intends paragraph 353 to be used to determine whether further submissions constitute a fresh human rights claim for the purpose of ‘new’ section 82 of the 2002 Act.
(3) If, in the post-2014 Act world, Parliament had intended paragraph 353 to apply only to the Secretary of State’s certification decisions, then Parliament would have made this plain. If the applicant were correct that paragraph 353 currently has only such a limited ambit, commencing the 2006 amendments to section 113 of the 2002 Act would not enable the Secretary of State to make any significantly greater and/or coherent use of paragraph 353.
(4) Parliament’s decision to leave in place the expressions ‘submissions’ and ‘if rejected’ in paragraph 353 are indicative that they continue to serve the function of permitting the Secretary of State to categorise cases as between those that do not amount to a claim at all and those which, though rejected, amount to a fresh human rights claim for the purposes of ‘new’ section 82.
(5) The Secretary of State is not the sole arbiter of whether, in any particular case, she has made a decision to refuse a human rights claim, as opposed to refusing to treat submissions as amounting to a fresh claim.

[2016] UKUT 409 (IAC)
Bailii
England and Wales
Cited by:
Cited – Robinson (Formerly JR (Jamaica)) v Secretary of State for The Home Department SC 13-Mar-2019
Statutory right of appeal against decisions by the Secretary of State for the Home Department to refuse protection claims and human rights claims under Part 5 of the 2002 Act. Where a person has already had a human rights claim refused and there is . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 16 January 2022; Ref: scu.570459

Regina v Secretary of State for the Home Department Ex Parte Onibiyo: CA 28 Mar 1996

More than one asylum claim may be made, but they must be sufficiently different to justify a second claim. The court considered when an application could be treated as having been finally determined and when it was necessary for the Secretary of State to consider afresh further representations that the applicant was entitled to refugee status. Any person resisting deportation is liable to wish to draw out the process as long as possible and will often decline to accept any adverse decision continuing to protest that he has valid grounds for being treated as a refugee and that the Secretary of State is failing to fulfil his obligations under the Convention. When is the Secretary of State entitled to say enough is enough and draw a line under the application?
Held: A distinction had to be drawn between the determination of the application which had been made and representations about that claim, and on the other hand the making of a fresh application. There was a continuing duty upon the Secretary of State to observe the Convention but there came a time when the Secretary of State, having heard the case which the applicant was making and having made such investigations as he thought proper, was entitled to come to a conclusion. The Secretary of State thereafter was not under any obligation to re-open that conclusion and need only consider further representations if they disclosed that there was some fresh basis, typically some change of circumstances, which, notwithstanding the earlier determination, would justify a fresh application and a conclusion on that fresh application that the applicant should have refugee status.
Sir Thoma Bingham MR discussed what would be a fresh asylum claim: ‘The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim.’

Sir Thomas Bingham MR
Gazette 09-May-1996, [1996] QB 768, [1996] 2 All ER 901, [1996] Imm AR 370, [1996] EWCA Civ 1338, [1996] 2 WLR 490
Bailii
Asylum and Immigration Appeals Act 1993 1
England and Wales
Citing:
Appeal from – Regina v Secretary of State for the Home Department Ex Parte Ademola Onibiyo QBD 24-Jan-1996
The applicant, a Nigerian, applied for judicial review of the respondent’s decision not to revoke a deportation order. He had overstayed his limited leave. He wanted the respondent to refer new material back to the immigration authorities. The . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Cited by:
Approved – Regina v Secretary of State for the Home Department ex parte Nassir CA 11-Dec-1998
The court should not allow too much complexity in issues of whether an applicant had submitted a renewed application for asylum. The Home Secretary’s discretion had to be preserved. . .
Cited – Salem v Secretary of State for Home Department CA 6-Mar-1998
The Secretary of State having decided against an application for asylum could direct non-payment of benefits although he would hear representations.
Held: Regulation 70(3A)(b)(i) defines a date by reference to the recording by the Secretary of . .
Cited – Regina (Nigatu) v Secretary of State for the Home Department QBD 9-Jul-2004
The claimant had had his asylum application and appeals rejected. His benefits were stopped. He submitted fresh matters to the respondent.
Held: The respondent was given responsibility by statute to decide fairly whether the new matters . .
Cited – Gungor, Regina (on the Application Of) v Secretary of State for the Home Department Admn 7-Sep-2004
The claimant made a further claim for asylum after his first claim had failed and his appeal rejected. He claimed that as a Kurd, he would face arrest if returned to Turkey. His passport had had a false visa stamp attached.
Held: While the . .
Cited – Regina v Warwickshire County Council ex parte Powergen Plc CA 31-Jul-1997
The council as highway authority had objected to a development on the grounds of road safety. The application was subsequently approved by the Secretary of State, but the Council sought to maintain its safety objection.
Held: The highway . .
Cited – ZT (Kosovo) v Secretary of State for the Home Department HL 4-Feb-2009
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
Cited – BA (Nigeria) v Secretary of State for The Home Department and Others SC 26-Nov-2009
The court was asked whether the expression ‘an asylum claim, or a human rights claim’ in section 92(4)(a) of the 2002 Act includes any second or subsequent claim that the asylum seeker may make, or only a second or subsequent claim which has been . .
Cited – Robinson (Formerly JR (Jamaica)) v Secretary of State for The Home Department SC 13-Mar-2019
Statutory right of appeal against decisions by the Secretary of State for the Home Department to refuse protection claims and human rights claims under Part 5 of the 2002 Act. Where a person has already had a human rights claim refused and there is . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 16 January 2022; Ref: scu.87890

Robinson, Regina (on The Application of) v Secretary of State for The Home Department and Another: CA 4 May 2017

Appeal by a foreign criminal asylum claimant against a decision that his additional submissions were not ‘fresh claims’ and that he had no right to a second appeal before the First-tier Tribunal.

Jackson, Hamblen, Flaux LJJ
[2017] EWCA Civ 316
Bailii
England and Wales
Cited by:
Appeal from – Robinson (Formerly JR (Jamaica)) v Secretary of State for The Home Department SC 13-Mar-2019
Statutory right of appeal against decisions by the Secretary of State for the Home Department to refuse protection claims and human rights claims under Part 5 of the 2002 Act. Where a person has already had a human rights claim refused and there is . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 16 January 2022; Ref: scu.582111

Secretary of State for The Home Department v Said: CA 6 May 2016

The court was asked whether the Upper Tribunal (Immigration and Asylum Chamber) was right to conclude that the deportation of the respondent, AS, to Somalia would violate his rights guaranteed by article 3 of the European Convention on Human Rights.

Christopher Clarke, Sharp, Burnett LJJ
[2016] EWCA Civ 442
Bailii
European Convention on Human Rights 3
England and Wales

Immigration, Human Rights

Updated: 14 January 2022; Ref: scu.563144

JN v Staatssecretaris Van Veiligheid En Justitie: ECJ 15 Feb 2016

ECJ Reference for a preliminary ruling – Urgent preliminary ruling procedure – Standards for the reception of applicants for international protection – Directive 2008/115/EC – Lawful residence – Directive 2013/32/EU – Article 9 – Right to remain in a Member State – Directive 2013/33/EU – Point (e) of the first subparagraph of Article 8(3) – Detention – Protection of national security or public order – Validity – Charter of Fundamental Rights of the European Union – Articles 6 and 52 – Limitation – Proportionality

ECLI:EU:C:2016:84, [2016] EUECJ C-601/15, [2016] WLR(D) 166, [2016] 1 WLR 3027
Bailii, WLRD
Directive 2013/32/EU 9, Directive 2013/33/EU 8(3)(e), Charter of Fundamental Rights of the European Union 6 52
European

Immigration, Human Rights, Limitation

Updated: 10 January 2022; Ref: scu.559879

Warsame v The Secretary of State for The Home Department: CA 21 Jan 2016

The court was asked as to the extent to which a sentence of imprisonment legally interrupts a period of continuous residence which is required for the purpose of acquiring a right not to be deported from one EU Member State to another.

Longmore, Lewison. Kitchin LJJ
[2016] EWCA Civ 16, [2016] 4 WLR 77, [2016] Imm AR 645, [2016] WLR(D) 29, [2016] INLR 619, [2016] 2 CMLR 28
Bailii, WLRD
England and Wales

Immigration

Updated: 09 January 2022; Ref: scu.559159

Tall v Centre public d’action sociale de Huy: ECJ 17 Dec 2015

ECJ Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2005/85/EC – Minimum standards on procedures in Member States for granting and withdrawing refugee status – Article 39 – Right to an effective remedy – Multiple asylum claims – Non-suspensory effect of an appeal against a decision of the competent national authority not to further examine a subsequent application for asylum – Social protection – Charter of Fundamental Rights of the European Union – Article 19(2) – Article 47

[2015] EUECJ C-239/14, ECLI:EU:C:2015:824
Bailii
Directive 2005/85/EC
European

Immigration

Updated: 08 January 2022; Ref: scu.557038

Byndloss, Regina (on The Application of) v The Secretary of State for The Home Department: CA 23 Jun 2015

Permission to appeal – certificate as to need for out of country appeals

Lord Dyson MR, Underhill LJ
[2015] EWCA Civ 678
Bailii
England and Wales
Cited by:
Leave – Kiarie, Regina (on The Application of) v The Secretary of State for The Home Department CA 13-Oct-2015
The claimants challenged the rules disallowing their appeal against a decision for their expulsion as unconducive to the public good, unless made ‘out of country’, saying that this infringed their human rights to private and family life.
Held: . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 January 2022; Ref: scu.553838

Kiarie, Regina (on The Application of) v The Secretary of State for The Home Department: CA 13 Oct 2015

The claimants challenged the rules disallowing their appeal against a decision for their expulsion as unconducive to the public good, unless made ‘out of country’, saying that this infringed their human rights to private and family life.
Held: The appeals succeeded. Each had served terms of imprisonment for drugs related offences.

Richards, Elias, McCombee LJJ
[2015] EWCA Civ 1020, [2016] 3 All ER 741, [2016] Imm AR 209, [2015] WLR(D) 410, [2016] 1 WLR 1961, [2016] INLR 212
Bailii, WLRD
Nationality, Immigration and Asylum Act 2002, European Convention on Human Rights 6
England and Wales
Citing:
Leave – Byndloss, Regina (on The Application of) v The Secretary of State for The Home Department CA 23-Jun-2015
Permission to appeal – certificate as to need for out of country appeals . .

Cited by:
Appeal from – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Updated: 04 January 2022; Ref: scu.553289

Khan v Secretary of State for The Home Department and Another: CA 9 Nov 2017

The Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The Court was asked whether there is jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for the Home Department to exercise her discretion to grant a Residence Card to a person claiming to be an Extended Family Member – whether the decision in question was one which ‘concerns . . an entitlement’ to enter and be granted a residence card? Both the appellant and the Secretary of State had argued then that there was a two stage process: first the factual decision whether the appellant fell within the definition of an extended family member; and second the decision whether it was appropriate to grant entry and a residence card; once granted, this would result in an entitlement to enter and reside; hence the decision ‘concerns’ that entitlement because it ‘is relevant to or important to’, ‘relates to’ or ‘is about’ the entitlement to a residence card.
Held: The decision in Sala was overruled.
Irwin LJ held that ‘a decision which ‘concerns’ an entitlement appears to me naturally to include a decision whether to grant such an entitlement’
Longmore LJ, agreeing, added that, even where there was a discretion, it had to be exercised in accordance with the correct legal principles: a litigant was entitled to a decision exercised in that way.

Sir Terence Etherton MR, Longmore, Irwin LJJ
[2017] EWCA Civ 1755, [2017] WLR(D) 747, [2018] Imm AR 440, [2018] 1 WLR 1256, [2018] INLR 39
Bailii, WLRD
England and Wales
Citing:
Wrongly Decided – Sala (EFMS: Right of Appeal : Albania) UTIAC 19-Aug-2016
UTIAC There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. Because decisions concerning . .

Cited by:
Cited – SM (Algeria) v Entry Clearance Officer, UK Visa Section SC 14-Feb-2018
The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been . .

Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 04 January 2022; Ref: scu.599373

Banger (Unmarried Partner of British National : South Africa): UTIAC 30 Mar 2017

The Upper Tribunal has referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU:
(1) Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
(2) Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (‘the Directive’)?
(3) Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?
(4) Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?

[2017] UKUT 125 (IAC)
Bailii
England and Wales
Cited by:
ECJ decision awaited – SM (Algeria) v Entry Clearance Officer, UK Visa Section SC 14-Feb-2018
The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been . .

Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 04 January 2022; Ref: scu.588796

SM (Algeria) v Entry Clearance Officer, UK Visa Section: SC 14 Feb 2018

The Court was asked two questions, first as to its jurisdiction according to the meaning of an ‘EEA Decision’ within the 2006 Regulations, and second as to the position under the Directive of a child who is a third country national but has been placed in the legal guardianship of European Union citizens under the Islamic ‘kefalah’ system in her own country.
Held: The Court had jurisdiction to hear the matter but referred three questions to the European Court of Justice.
S would fall within article 3.2(a) if she does not fall within article 2.2(c). The 2006 Regulations have caused confusion by introducing the word ‘relative’ which nowhere appears in article 3.2(a). ‘Family member’ is a wider term than ‘relative’ as it is well capable of including people who are not related by consanguinity or affinity. All that is required is that the person (i) falls within the broad concept of ‘family member’; (ii) was either a dependant or a member of the household of the Union citizen; and (iii) that dependency or household membership was in the country from which the person has or would come. A child for whom the Union citizen has parental responsibility under the law of the child’s country of origin is clearly capable of being regarded as a family member; S was both a dependant and a member of the household of Mr and Mrs M; and this was in Algeria, the country from which she would be coming to this country.
‘If some member states recognise ‘kefalah’ children as direct descendants but others do not, this clearly places barriers to free movement for those European Union citizens who have such children. It also discriminates against those who, for religious or cultural reasons, are unable to accept the concept of adoption as it is understood in the UK and some other European countries, that is, as the complete transfer of a child from one family and lineage to another. On the other hand, the fact that the term ‘direct descendant’ may have an autonomous meaning does not necessarily entail that it should have a broad meaning.
We therefore cannot consider it acte clair that a child in Susana’s position is not to be regarded as a direct descendant of her guardians for the purpose of article 2.2(c). At the same time, we are concerned that such an interpretation could, in some cases, create opportunities for exploitation, abuse and trafficking in children, which it was the object of the Hague Convention to prevent and deter. We are also concerned that an automatic right of entry for ‘kefalah’ children might lead to some of them being placed in homes which domestically would have been rejected as unsuitable.’

Lady Hale, President, Lord Kerr, Lord Wilson, Lord Reed, Lord Hughes
[2018] UKSC 9, [2018] 1 WLR 1035, [2018] 3 All ER 177, [2018] INLR 368, [2018] WLR(D) 91, UKSC 2015/0243
Bailii, Bailii Summary, WLRD, SC, SC Summary,
Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), Council Directive 2004/38/EC, Adoption and Children Act 2002 83, Adoption with a Foreign Element Regulations 2005
England and Wales
Citing:
At AIT – IM240192005 (Unreported) AIT 12-Feb-2007
Reconsideration of the appeal of the appellant, a citizen of India, against the decision of the respondent on 12 March 2004 refusing her entry clearance to the United Kingdom as an adoptive child.
Held: The case was ordered to be reviewed. . .
Cited – MN (India) v Entry Clearance Officer (New Delhi) v Secretary of State for the Home Department CA 5-Feb-2008
The Court set out four avenues for entry to the UK provided by the Rules in respect of a child adopted or intended to be adopted from abroad. . .
Appal from (CA) – SM (Algeria) v Entry Clearance Officer, UK Visa Section CA 4-Nov-2015
The Entry Clearance Officer appealed from a decision that a child assigned to be under guardianship under the Islamic ‘kefalah’ system in her own country was to be treated on the basis that she did fall within the definition of ‘extended family . .
Cited – Secretary of State for The Home Department v Islam and Another ECJ 5-Sep-2012
ECJ Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Article 3(2) – Obligation to facilitate, in accordance with . .
Cited – Sala (EFMS: Right of Appeal : Albania) UTIAC 19-Aug-2016
UTIAC There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. Because decisions concerning . .
Cited – Coman and Others v Inspectoratul General Pentru Imigrari and Others ECJ 11-Jan-2018
(Opinion) Reference for a preliminary ruling – Citizenship of the Union – Directive 2004/38/EC – Article 2(2)(a) – Concept of ‘spouse’ – Right of citizens of the Union to move and reside within the territory of the Union – Marriage between persons . .
Cited – Khan v Secretary of State for The Home Department and Another CA 9-Nov-2017
The Secretary of State had refused to grant a residence card to the Pakistani nephew of a German national. The Court was asked whether there is jurisdiction for the First-tier Tribunal to hear an appeal from a refusal by the Secretary of State for . .
ECJ decision awaited – Banger (Unmarried Partner of British National : South Africa) UTIAC 30-Mar-2017
The Upper Tribunal has referred the following questions to the CJEU for a preliminary ruling under Article 267 TFEU:
(1) Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State . .

Lists of cited by and citing cases may be incomplete.

Immigration, European, Children, Adoption

Updated: 04 January 2022; Ref: scu.604792

MAB (Para 399; ‘Unduly Harsh’): UTIAC 16 Jul 2015

1. The phrase ‘unduly harsh’ in para 399 of the Rules (and s.117C(5) of the 2002 Act) does not import a balancing exercise requiring the public interest to be weighed against the circumstances of the individual (whether child or partner of the deportee). The focus is solely upon an evaluation of the consequences and impact upon the individual concerned.
2. Whether the consequences of deportation will be ‘unduly harsh’ for an individual involves more than ‘uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging’ consequences and imposes a considerably more elevated or higher threshold.
3. The consequences for an individual will be ‘harsh’ if they are ‘severe’ or ‘bleak’ and they will be ‘unduly’ so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.
(MK (section 55 – Tribunal options) Sierra Leone [2015] UKUT 223 (IAC) at [46] and BM and others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) at [109] applied.)

Grubb UTJ, Phillips DUTJ
[2015] UKUT 435 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551567

Forman (SS 117A-C Considerations): UTIAC 19 Jun 2015

(i) The public interest in firm immigration control is not diluted by the consideration that a person pursuing a claim under Article 8 ECHR has at no time been a financial burden on the state or is self-sufficient or is likely to remain so indefinitely. The significance of these factors is that where they are not present the public interest is fortified.
(ii) The list of considerations contained in section 117B and section 117C of the Nationality, Immigration and Asylum Act 2002 (the ‘2002 Act’) is not exhaustive. A court or tribunal is entitled to take into account additional considerations, provided that they are relevant in the sense that they properly bear on the public interest question.
(iii) In cases where the provisions of sections 117B-117C of the 2002 Act arise, the decision of the Tribunal must demonstrate that they have been given full effect.

McCloskey J P, Macleman UTJ
[2015] UKUT 412 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551561

NA and VA (Protection: Article 7, Qualification Directive): UTIAC 19 Jun 2015

The word ‘generally’ in Article 7(2) of Council Directive 2004/83/EC (the Qualification Directive) denotes normally or in the generality of cases. Thus the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and access to such system by the claimant may not, in a given case, amount to protection. Article 7(2) is non-prescriptive in nature. It prescribes neither minima nor maxima. The duty imposed on states to take ‘reasonable steps’ imports the concepts of margin of appreciation and proportionality.

McCloskey J P
[2015] UKUT 432 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551562

Bossade (Ss117A-D-Interrelationship With Rules): UTIAC 16 Jul 2015

1. For courts and tribunals, the coming into force of Part 5A of the Nationality, Immigration and Asylum Act 2002 (ss.117A-D) has not altered the need for a two-stage approach to Article 8 claims.
2. Ordinarily a court or tribunal will, as a first stage, consider an appellant’s Article 8 claim by reference to the Immigration Rules that set out substantive conditions, without any direct reference to Part 5A considerations. Such considerations have no direct application to rules of this kind. Part 5A considerations only have direct application at the second stage of the Article 8 analysis. This method of approach does not amount to according priority to the Rules over primary legislation but rather of recognising their different functions.
3. In the context of foreign criminal cases (because the provisions found in Part 13 of the Rules are a complete code encompassing both stages of the Article 8 assessment), this means that Part 5A considerations have no direct role at the first stage when a court or tribunal is deciding whether an applicant meets the substantive conditions of paragraphs 399 or 399A of the Immigration Rules. They only have direct application at the second-stage, viz. assessment under the rules that involve a proportionality assessment: viz. paragraph 398 and (in revocation cases) paragraph 390A. In cases other than those concerning deportation of foreign criminals, where the Rules are not a complete code, it may still be necessary to conduct this second stage outside the Rules: see Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 at [39]. 4. Whilst Part 5A considerations may have indirect application to the Immigration Rules, including those setting out substantive conditions such as paragraphs 399 and 339A, this is limited to their role as statements of principles that can be used where appropriate to inform the meaning of key terms set out in such paragraphs.
5. New paragraph 399A of the Immigration Rules remains similar to the old in considering the foreign criminal deportee’s situation both in the UK and in the country of return. However, so far as concerns focus on a person’s situation in the UK, time in the UK is no longer relevant as such except in the context of lawful residence (399A(a)) and paragraph 399A(b) introduces new criteria that relate to social and cultural integration in the UK. So far as concerns focus on the situation in the country of return, paragraph 399A no longer looks at ‘ties’ per se but at the more inclusive notion of integration and obstacles thereto. By requiring focus on integration both in relation to a person’s circumstances in the UK as well as in the country of return, the new Rules achieve a much more holistic assessment of an appellant’s circumstances. Thereby they bring themselves closer to Strasbourg jurisprudence on Article 8 in expulsion cases which has always seen consideration of both dimensions as requiring a wide-ranging assessment: see e.g. Jeunesse v Netherlands (GC) App.No. 12738/10, 31 October 2014, paragraphs 106-109.

Storey, Dawson UTJJ
[2015] UKUT 415 (IAC), [2016] INLR 242, [2015] Imm AR 1281
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.551565

D, Regina (on The Application of) v Secretary of State for The Home Department: Admn 9 Jul 2010

Application for judicial review of a decision by the Secretary of State to certify as clearly unfounded the claimant’s claim that his deportation to Jamaica would infringe his rights under Articles 3 and 8 of the European Convention on Human Rights.

Nicol J
[2010] EWHC 2110 (Admin)
Bailii
England and Wales

Immigration, Human Rights

Updated: 03 January 2022; Ref: scu.550655

BM and Others (Returnees – Criminal and Non-Criminal) (CG): UTIAC 2 Jun 2015

1. A national of the Democratic Republic of Congo (‘DRC’) who has acquired the status of foreign national offender in the United Kingdom is not, simply by virtue of such status, exposed to a real risk of persecution or serious harm or treatment proscribed by Article 3 ECHR in the event of enforced return to the DRC.
3. A national of the DRC who has a significant and visible profile within APARECO (UK) is, in the event of returning to his country of origin, at real risk of persecution for a Convention reason or serious harm or treatment proscribed by Article 3 ECHR by virtue of falling within one of the risk categories identified by the Upper Tribunal in MM (UDPS Members – Risk on Return) Democratic Republic of Congo CG [2007] UKAIT 00023. Those belonging to this category include persons who are, or are perceived to be, leaders, office bearers or spokespersons. As a general rule, mere rank and file members are unlikely to fall within this category. However, each case will be fact sensitive, with particular attention directed to the likely knowledge and perceptions of DRC state agents.
4. The DRC authorities have an interest in certain types of convicted or suspected offenders, namely those who have unexecuted prison sentences in the DRC or in respect of whom there are unexecuted arrest warrants in the DRC or who allegedly committed an offence, such as document fraud, when departing the DRC. Such persons are at real risk of imprisonment for lengthy periods and, hence, of treatment proscribed by Article 3 ECHR.

[2015] UKUT 293 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550619

AA (Upper Tribunal – Review Power) Uzbekistan: UTIAC 1 Jun 2015

1. By virtue of rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008 a condition precedent to a review is an application for permission to appeal against the decision of the Upper Tribunal.
2. Pursuant to s.10 of the Tribunals, Courts and Enforcement Act 2007, rules 45 and 46 make no provision for an application for a review; the power is exercisable only on the initiative of the Upper Tribunal.
3. The clear purpose behind rule 45, which is to provide a filter mechanism to help ensure that obvious errors based on oversight of a legislative provision or binding authority can be corrected (and set aside under rule 47) without unnecessarily burdening the Court of Appeal.

[2015] UKUT 330 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550618

Khan, Regina (on The Application of) v Secretary of State for The Home Department (Right of Appeal – Alternative Remedy) (IJR): UTIAC 15 Jun 2015

Although each case must be determined on its own facts, in cases where a person seeks to dispute the Secretary of State’s assertions as to the availability of an appeal to the First-tier Tribunal, the appropriate course is for such person to lodge a notice of appeal with the First-tier Tribunal requesting that it determine this issue. Given the existence of this suitable alternative remedy, it will only be in exceptional circumstances that the Upper Tribunal will exercise its discretion and grant relief to a person who seeks to raise this same issue before it in judicial review proceedings brought against the Secretary of State.

[2015] UKUT 353 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550620

Oladeji (S3 Bna 1981): UTIAC 21 May 2015

Whilst s.65 of the Immigration Act 2014, which came into force on 6 April 2015 inserts new provisions into the British Nationality Act 1981 for persons born before 1 July 2006 that create a registration route for those who would currently have an entitlement to registration under the British Nationality 1981 Act but for the fact that their parents are not married, those provisions (like the pre-existing policy set out in Chapter 9 of the UK Visas and Immigration and Nationality Instructions), are predicated on there having been an application made under s. 3(1) of the British Nationality Act 1981.

Nicol J
[2015] UKUT 326 (IAC)
Bailii
England and Wales

Immigration

Updated: 03 January 2022; Ref: scu.550617

Oboh and Others, Regina (on The Applications of) v Secretary of State for The Home Department: CA 21 May 2015

These linked appeals concern the lawfulness of a Home Office guidance document, ‘Requests for removal decisions’, as it applied prior to its withdrawal on 13 April 2015

[2015] EWCA Civ 514, [2015] INLR 633, [2015] Imm AR 1216
Bailii
England and Wales

Administrative, Immigration

Updated: 30 December 2021; Ref: scu.547013

Sehwerert, Regina (on The Application of) v Secretary of State for The Home Department: CA 5 Sep 2014

The claimant appealed against a refusal to grant him permission to enter the UK to address a series of meetings. As on of the ‘Miami 5’ he had been wrongfully imprisoned in the US for 12 years.

Patten, Beatson, Underhill LJJ
[2014] EWCA Civ 1415
Bailii
England and Wales

Immigration

Updated: 30 December 2021; Ref: scu.547019