Asylum & Immigration

Rimas v Lithuania [2011] EWHC 2084

Wed, 07 Sep 2011 12:04:11 GMT

The appellant (R) appealed against a decision ordering his extradition to the respondent requesting state, Lithuania. A European arrest warrant had been issued arising out of R's conviction for murder. The warrant was issued on March 21, 2011 and sent to the Serious Organised Crime Agency (SOCA) on April 15, 2011. On April 23, authority was given by a SOCA officer to certify the warrant and on the same day a certificate was given. The SOCA certificate was signed but, by oversight, not dated. R was arrested on April 27, 2011. On appeal, R raised an argument not put to the district judge to the effect that, since it was not dated, it was possible that the certificate might not have been signed before his arrest was effected. He submitted that there was inadequate evidence to prove that the certificate had been certified before he was arrested. The respondent state subsequently produced a witness statement from a SOCA employee (T) stating that she had checked the electronic case file and could confirm that the certificate had been signed on April 23. A copy of the electronic file from which T had made her check was placed before the court in the course of R's appeal. HELD: Appeal dismissed. The copy of the case file demonstrated conclusively that the warrant had been certified on April 23, 2011. The only possible ground of challenge was thereby rebutted since that evidence established beyond doubt that the warrant had been duly certified before R's arrest. There was, accordingly, no reason to set aside the extradition order.

Bat v Germany [2011] EWHC 2029 (Admin)

Wed, 07 Sep 2011 12:00:54 GMT

The appellant (B), the Head of the Office of National Security in Mongolia, appealed against an order for his extradition to the respondent requesting state. A European arrest warrant issued in April 2010 asserted that B had committed offences of abduction and serious bodily injury in 2003 in Germany. B had been arrested and remanded in custody upon arrival in the United Kingdom from Mongolia on an official visit. B's case was that, under customary international law, he was entitled to diplomatic immunity. He maintained that the crimes he was alleged to have committed in 2003 had been official acts ordered by his country's government and that he was entitled to immunity in respect of them. He considered the extradition proceedings to be an abuse of process. The Foreign and Commonwealth Office stated that as no invitation had been issued, no meeting arranged or agenda prepared, B's arrival in the UK was not part of a special mission. HELD: Appeal dismissed. (1) A special mission was the temporary performance of the functions ordinarily taken care of by a permanent diplomatic mission. Not every official visit was a special mission. The FCO had undoubtedly not consented to the visit being a special mission and B was therefore not entitled to immunity (paras 34-46). (2) It was accepted that the UK Government was under no obligation to tell Mongolia that B was wanted under a European arrest warrant. (3) In terms of state immunity, it did not follow that a person acting as an official on behalf of his state was immune from criminal liability just because there was immunity from civil suit, R. v Bow Street Metropolitan Stipendiary Magistrate Ex p. Pinochet Ugarte (No.3) [2000] 1 A.C. 147 considered. That authority was not binding where the official was not a Head of State and in any event the court was entitled to have regard to the evidence of State practice which had emerged since that decision.

Application for leave to appeal under section 13 of the Tribunals, Courts and Enforcement Act 2007 by A.J. against a decision of the Upper Tribunal (Asylum and Immigration Chamber) [2011] CSIH 49

Sat, 13 Aug 2011 11:31:28 GMT

The applicant was a national of Pakistan, who had claimed asylum upon his arrival in the UK in 2009. The applicant had left Pakistan following heavy fighting in his home region, after it came under the control of the Taliban. The respondent had refused the applicant’s claim for asylum and subsequent appeals against this decision were refused by the Asylum and Immigration Tribunal. In this action, the applicant applied to the Court of Session for leave to appeal against these decisions, and the tribunal’s refusal to grant further leave to appeal.

Having heard submissions, the court concluded that the Tribunal was guilty of an error of law in its decision making, as it did not apply the correct standard of proof to determine whether an important document, critical to the applicant’s case, was indeed a forgery, as the Tribunal suspected. The court ruled that if the Tribunal were persuaded the document was a forgery, they should have expressly said so in terms and had to set out reasons with reference to the evidence led, as to why this was the case.

Moreover, the court further found that the Tribunal had made another material error of law, as it failed to give proper consideration to section 8(4) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, and specifically, the qualifying words “reasonable opportunity” in that section. In light of these matters, the court found that the applicant had successfully demonstrated material errors on the part of the Tribunal, and the court also found that the applicant was likely to have a reasonable prospect of success in his challenge to the Immigration Judge’s decision. Leave to appeal was accordingly granted and the case was remitted to the Upper Tribunal for further consideration.

M.N. for judicial review of a decision of the Secretary of State for the Home Department [2011] CSOH 121

Thu, 11 Aug 2011 21:46:17 GMT

The petitioner was born in Zimbabwe, but had settled in South Africa, latterly gaining citizenship there. The petitioner had entered the UK in 2003 and subsequently in 2005, and had been illegally resident since 2006. In July 2010, the respondent refused the petitioner’s application for asylum, and also certified her claim as “clearly unfounded” under sections 94(2) and (3) of the Nationality, Immigration and Asylum Act 2002, with the result that the petitioner was unable to appeal to the First Tier Tribunal. The petitioner sought reduction of that decision, in order that she might appeal the refusal of asylum.

The petitioner argued that whether the asylum application was “clearly unfounded” required an examination of whether there was more than a fanciful prospect of an Immigration Judge concluding that the petitioner would not secure sufficient protection from the police in South Africa, were she to return there. It was submitted that the test of whether a claim was "clearly unfounded" was a similar but marginally lower test than the very low test in Immigration Rule 353 of a "realistic prospect of success".

Having heard submissions, the Lord Ordinary noted that in order for the respondent to justify certification under section 94(2)of the 2002 Act, the petitioner's claim had to have been, after anxious scrutiny, so clearly lacking in substance that it was bound to fail, with no prospect of success. Taking account of materials before the respondent, the Lord Ordinary found that there was no basis for contending that the South African authorities had exhibited the kind of systemic failures required for the petitioner to succeed with an insufficiency of protection argument. Accordingly, the Lord Ordinary found that an Immigration Judge would reject the petitioner's claim, and that if all the material were presented to the Immigration Judge, the application would still be bound to fail. The Lord Ordinary therefore found the respondent correct to certify the case under the 2002 Act and refused the petition.

Petition of A.N.A. for Judicial Review of a decision of the Secretary of State for the Home Department [2011] CSOH 120

Wed, 10 Aug 2011 22:02:36 GMT

In this petition for judicial review, the petitioner sought review of a decision of the Secretary of State for the Home Department, who had ruled that representations made on behalf of the petitioner did not amount to a fresh claim for asylum or subsidiary protection. The petitioner was a citizen of Iraq, who had come to the UK in March 2010, and had claimed asylum upon arrival. By August 2010, his rights of appeal against the refusal to grant asylum were exhausted, and fresh representations were submitted to the respondent in October 2010. It was argued by the respondent that the country guidance case of HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC), had been argued and heard, but not reported, until September 2010; it had therefore not been before the Immigration Judge in June 2010, during the judge's decisions on the petitioner’s claim for asylum.

In this petition, it was argued that the respondent had failed to generally have regard to the significance of the HM case and had specifically failed to have regard to that case when considering what an immigration judge would do in respect of a new application brought by the petitioner. It was argued that the proper question for the respondent was whether there was a realistic chance that a new immigration judge might, on the new information available, make a decision favourable to the petitioner.

Having heard submissions, the Lord Ordinary came to the conclusion that the respondent had indeed failed to explain why view that the petitioner would not succeed before a new immigration judge with the new material before them, and that the respondent had posed the question when making her decision. The Lord Ordinary quashed the respondent’s decision and remitted the case to the respondent for further consideration.

Reclaiming motion by J.O. in petition for judicial review against the Secretary of State for the Home Department [2011] CSIH 44

Wed, 10 Aug 2011 21:56:18 GMT

In this reclaiming motion, the reclaimer sought to appeal against a decision of the Lord Ordinary, whereby the reclaimer’s petition for judicial review of a decision of the Secretary of State for the Home Department was dismissed. In that decision, the Secretary of State had ruled that new material submitted by the reclaimer did not create a realistic prospect of success before an Immigration Judge, that the reclaimer’s asylum should be granted.

It was argued by the reclaimer that the Lord Ordinary had not adequately addressed his concerns regarding a Country of Origin Report. These concerns were not however shared by the Inner House, who found that there was no merit in the criticisms of the Lord Ordinary’s approach.

The Inner House noted that the Lord Ordinary had taken the reclaimer’s personal circumstances fully into account when making a decision, and had recognised that the task of the court was to strike a fair balance between the Article 8 rights of the reclaimer and the interests of the community as a whole. Having carried out the correct balancing exercise, the court found that the Lord Ordinary had correctly found that the reclaimer had produced no material that would justify finding that the reclaimer’s removal from the UK would be disproportionate, having regard to his Article 8 ECHR rights. Reclaiming motion refused.

Kishor Dangol v. The Secretary of State for the Home Department [2011] CSIH 20

Thu, 30 Jun 2011 22:38:49 GMT

In this appeal, the reclaimer argued that his imminent removal to his country of origin unnecessarily and unlawfully interfered with his Article 8 ECHR rights to a private life. The respondent had previously declined to treat submissions on the reclaimer’s private as fresh representations for asylum, under Rule 353 of the Immigration Rules.

The reclaimer submitted that the respondent’s decision letter was so muddled, both in terms of content and sequence of issues considered, that it was neither possible to conclude that the respondent had applied anxious scrutiny to the factors bearing upon the proportionality of ordering the removal, nor possible to find that the respondent's decision was based on an objective assessment of prospects before any immigration judge.

The Inner House agreed with the submissions of the respondent and the first instance decision of the Lord Ordinary, finding that it was clear from the decision letter what factors were taken into account by the respondent, and that they were indeed relevant factors. The court found that the letter was overall a clear one, and that proper regard had been had to all the factors favourable to the reclaimer’s application; the requirement for anxious scrutiny had therefore been met. Moreover, the court determined that the respondent had addressed the issues raised by the engagement of Article 8 in the correct order, and had asked herself the right questions in so doing. Reclaiming motion refused.

Petition of K.M. for judicial review of a decision by the Secretary of State for the Home Department [2011] CSOH 48

Wed, 22 Jun 2011 21:58:05 GMT

The petitioner, who claimed to have left Iran with the help of an agent in 2009, had come to the United Kingdom seeking asylum. His application for asylum was refused by the respondent in October 2009, and subsequent appeals against that decision were dismissed. In April 2010, further representations were made to the respondent on behalf of the petitioner, relying on documents which were alleged to be court citations from the Islamic Revolutionary Court of Boukan. In May 2010, the respondent made a decision not to treat the petitioner’s further representations as amounting to a fresh claim within the meaning of Article 353 of the Immigration Rules. The petitioner sought review and reduction of that decision.

It was submitted by the petitioner that the test under Article 353 was conspicuously low, and that the respondent only had to consider whether the fresh evidence presented more than a fanciful prospect of success before an Immigration Judge. It was submitted that the documents were apparently credible, and it could not be said that no-one would accept them. It was moreover submitted that at his first hearing, the petitioner had been a teenage boy, and had been unrepresented, therefore any findings on his credibility or reliability were wholly inadequate.

Having heard submissions, the Lord Ordinary noted that when considering fresh claims, the Secretary of State is obliged to look at all the evidence in the round and to have regard to the findings of the original Immigration Judge. The onus was moreover on the petitioner to satisfy both the Immigration Judge and the court of the genuineness of the documents; in the opinion of the Lord Ordinary, the petitioner had failed to do so. Moreover, the Lord Ordinary found even if the documents were genuine, they were likely to be citations unrelated to political activity, given that the vast majority of the Iranian court’s work related to drug offences. Further, the Lord Ordinary noted that the risk of persecution upon return was low; country guidance for Iran currently notes that a return to Iran having illegally exited does not in itself give rise to any risk of persecution or ill-treatment. Petition dismissed.

F.A.H. for judicial review of a decision of the Secretary of State for the Home Department [2011] CSIH 17

Mon, 30 May 2011 21:39:26 GMT

The petitioner was a citizen of Tanzania, who had arrived in the UK in October 2006 on a student visa. Upon expiry of that visa in 2008, the petitioner failed to leave the country and accordingly became an overstayer.

The petitioner was detained at Dungavel Immigration Removal Centre on 3 February 2011, and directions for his immediate removal were served on him by the UK Border Agency. Agents for the petitioner submitted written representations to the Secretary of State, outlining that the petitioner had a family life in the UK with his pregnant fiancé, protected by Article 8 of the European Convention on Human Rights. On 11 February 2011, the present petitioner was lodged, seeking reduction of the decision of the Secretary of State to remove the petitioner to Tanzania. At the hearing for first orders for intimation and service, the claim was refused by the Lord Ordinary.

The petitioner reclaimed against that decision, arguing that the Lord Ordinary had refused the order because he had reached the overall conclusion that the petitioner’s human rights claim would fail because of: (a) the precariousness of the petitioner's immigration status when the petitioner and his fiancé had entered into their relationship; (b) the petitioner's failure to remedy his status as an overstayer; and (c) the possibility of the petitioner applying from Tanzania for leave to enter and leave to remain in the United Kingdom and resume cohabitation with his fiancé. In this respect, the petitioner argued that the Lord Ordinary had erred in law, by failing to follow the guidance relating to the application of Rule of Court 58.7., which was to be found in E. Y. v The Secretary of State for the Home Department [2011] CSIH 3, dated 12 January 2011.

The Inner House agreed that the opinions in the case of E.Y. were of relevance to the facts of this case, in particular because of the change in the petitioner's family and private life since the petitioner had last sought to have his leave to remain extended and because the UK Border Agency had not dealt with the human rights claim submitted on behalf of the petitioner. The court agreed that it was not appropriate for the Lord Ordinary to refuse the motion for first orders and had erred in law in so refusing it. Reclaiming motion allowed.

R (on the application of SK (Zimbabwe)) (FC) v Secretary of State for the Home Department [2011] UKSC 23 (25/05/2011)

Thu, 26 May 2011 17:19:18 GMT

The issue in this appeal is whether a failure by the Respondent to comply with a procedural requirement in its policy relating to the detention of foreign national prisoners results in their detention being unlawful, so as to allow the detainee to advance a claim in tort for false imprisonment.

Shepherd Masimba Kambadzi is a Zimbabwean national. He entered the UK lawfully, but remained here after his leave to remain expired. In 2005, he was convicted of assault and sexual assault, sentenced to one year’s imprisonment and ordered to be registered as a sex offender for five years. Prior to his being released from prison, the Respondent decided to make a deportation order against the Appellant. Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (the 1971 Act) gives the Secretary of State the power to detain foreign nationals pending the making of a deportation order and the Appellant was detained under that power on 7 March 2006. On 24 August 2007, a deportation order was made against the Appellant, after which he was detained under paragraph 2(3) of Schedule 3 to the 1971 Act. In all, he was detained for 27 months until 13 June 2008, when he was granted bail. He has not yet been returned to Zimbabwe because of conditions in that country.

The common law has recognised limits on the extent of the power to detain under paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act (the Hardial Singh principles, set down in R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 904). The Respondent had a policy which detailed how the power to detain was to be exercised. It provided, for example, that all reasonable alternatives to detention must be considered before detention was authorised. The policy also provided for detention to be subject to “review at regular intervals”. It specified the frequency of review and the grade of official which was to carry them out. The policy required the Appellant’s detention to be reviewed on five occasions during the first month and then monthly thereafter. The Appellant’s detention was not reviewed in accordance with that policy. By the date of the first instance hearing of this claim, he had been entitled to 22 monthly reviews of the lawfulness of his detention, in addition to the five reviews which should have taken place in the first month. His detention had been reviewed only ten times. Only six of those reviews had been conducted by officials of the required seniority and, of those six, two were flawed by material errors of fact. The substantive requirements for detaining the Appellant were, however, met throughout the period of his detention: had the Respondent carried out the reviews, it could justifiably have decided to continue to detain him.

While still detained, the Appellant raised a judicial review, seeking a declaration that he was unlawfully detained and damages. At first instance, Munby J granted a declaration that the Appellant had been unlawfully detained for various periods amounting to about 19 months and gave directions for the assessment of damages, but he declined to order his release. (The Appellant was subsequently granted bail in other proceedings.) The Court of Appeal allowed the Secretary of State’s appeal and held that the Appellant’s detention had been lawful throughout.

Although the Supreme Court heard the appeal in February 2010, it delayed handing down its judgment so as to be enable a court of nine Justices to consider the case of R (Lumba) v Secrteary of State for the Home Department [2011] UKSC 12. That case also considered the legality of the detention of foreign national prisoners where the Secretary of State has not complied with the terms of the published policy relating to detention.

Home Department [2011] UKSC 12. That case also considered the legality of the detention of foreign national prisoners where the Secretary of State has not complied with the terms of the published policy relating to detention.

FA (Iraq) (FC) v Secretary of State for the Home Department [2011] UKSC 22 (25/05/2011)

Thu, 26 May 2011 16:15:00 GMT

This appeal concerns the relationship between two rights which enable non-nationals to remain in the United Kingdom: humanitarian protection, which derives from European law, and asylum, which derives from a combination of domestic law, European law, and international law. The issue in the appeal is whether, because a right of appeal exists against a refusal of an asylum application, European law requires that a right of appeal also be available against a refusal of an application for humanitarian protection.

FA is an Iraqi national who arrived unaccompanied in the United Kingdom in August 2007 when he was 15 years old. He made an application for asylum which the Secretary of State refused on the grounds that his claim was not credible. The Secretary of State also considered whether FA qualified for humanitarian protection and / or discretionary leave to remain in the United Kingdom. Humanitarian protection is the domestic means of providing the ‘subsidiary protection’ which Directive 2004/83/EC (“the Qualification Directive”), a European legislative instrument, requires to be given to certain third country nationals and stateless persons. The Secretary of State decided that FA did not qualify for humanitarian protection, but granted him discretionary leave to remain until he was 17 and a half years old.

Section 83(2) of the Nationality Immigration and Asylum Act 2002 entitled FA to appeal to the Asylum and Immigration Tribunal against the refusal of his claim to asylum. FA made such an appeal and also appealed against the refusal of his claim for humanitarian protection. The Tribunal dismissed both the asylum and humanitarian protection appeals, deciding in respect of the latter that no appeal was available to FA in relation to humanitarian protection.

On appeal to the Court of Appeal, FA relied upon the European law principle of equivalence. This provides that, although it is for Member States to prescribe the procedural conditions necessary for the protection of European law rights, national rules regarding those procedural conditions must not be less favourable than those governing comparable domestic actions. FA argued that he must be entitled to a right of appeal against the humanitarian protection decision since the lack of an appeal would mean that this claim, based as it was on European law, was being subjected to rules which were less favourable than those which applied to the asylum claim, such a claim being based on national law.

The Court of Appeal acceded to this argument and allowed FA’s appeal. The Secretary of State appealed to the Supreme Court against that decision.

The Supreme Court unanimously decides that a number of issues arise on the appeal which require a reference to the Court of Justice of the European Union for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union. Lord Kerr delivers the judgment of the panel.

R.A. for judicial review of a decision of the Secretary of State [2011] CSOH 42

Sun, 22 May 2011 21:30:04 GMT

The petitioner was a national of Afghanistan, who entered the UK in September 2008 and sought asylum. The petitioner maintained that he left Afghanistan after he had been falsely accused of committing adultery with his sister-in-law, and contended that were he to be returned to Afghanistan he would be at risk of persecution at the hands of his brother, his sister-in-law's father, the local community and the State as a perceived adulterer. The petitioner's claim for asylum was refused by the respondent on 11 May 2010. An appeal against this decision was refused in July 2010.

In September 2010, after directions for the petitioner’s removal had been granted by the respondent, the petitioner made further representations that he should be granted leave to remain in the UK Kingdom on compassionate grounds and that his removal would be in breach of his rights under Article 8 of the ECHR. These further representations contained evidence that the petitioner had a long-term partner in the UK, who was pregnant with the petitioner’s child, and that the petitioner acted as a father figure to his partner’s existing child. Considering these further representations as a fresh claim for asylum in terms of Rule 353 of the Immigration Rules, the respondent rejected the claim in a decision letter issued 10 September 2010.

Having heard submissions from the parties, the Lord Ordinary noted that the decision letter of the respondent in rejecting the petitioner’s fresh claim was not drafted in as clear terms as it might have been. Crucially, it did not focus on the questions which the provisions of Rule 353 required the respondent to ask herself. The Lord Ordinary found that the decision letter contained no indication that the respondent had given any consideration to the question of what an immigration judge would have made of the petitioner’s fresh representations, and whether the fresh material would give rise to a realistic prospect of success. The Lord Ordinary noted that the respondent’s failure to ask herself the right questions amounted to an error in law and that accordingly, her decision could not stand. Petition granted.

T.N. v. The Secretary of State for the Home Department [2011] CSOH 35

Sun, 10 Apr 2011 23:03:43 GMT

The petitioner, who was a citizen of Zimbabwe, sought judicial review of a decision of the respondent to not treat his further representations as a fresh claim for asylum under Rule 353 of the Immigration Rules. Having entered the UK in September 2008 and had his claims for asylum subsequently refused, the petitioner had become "appeal rights exhausted" by January 2009. In March 2010, fresh representations were made on the petitioner's behalf, on grounds that firstly, he was a refugee and secondly, under Article 3 of the European Convention on Human Rights.

The court heard that in the petitioner’s previous application asylum, the Immigration Judge had accepted that the petitioner was from Zimbabwe, but had comprehensively rejected his account of being unable to provide details of the circumstances of his arrival in the United Kingdom as incredible. The Immigration Judge has also rejected claims that the petitioner was at risk of persecution as a person who was a supporter of the Movement for Democratic Change ("MDC") because he showed no sound knowledge of the party, its beliefs, its structure or its members. The Immigration Judge also held that his claim to be a homosexual in danger of persecution lacked all credibility. In the petitioner’s fresh claim for asylum, while the previous adverse findings on credibility were not challenged, it was argued that the Secretary of State had failed to take account of the risk factors in returning to Zimbabwe, namely: (i) that the petitioner had been in the United Kingdom for an extended period and (ii) that he was a failed asylum seeker.

Having considered the fresh submissions, the Lord Ordinary found that the new material, alongside the previous adverse findings on credibility, did not create a realistic prospect of success before a new Immigration Judge, despite the fact that the test was a modest one to satisfy. The court found that the new submissions of the petitioner did not advance his case materially, and ruled that being a failed asylum seeker who had spent time in the UK did not place a person at risk on his return to Zimbabwe if he is able to demonstrate an alignment to the regime or he returns to an area where that loyalty is assumed. The court was accordingly satisfied that the petitioner had no more than a fanciful prospect of success before another Immigration Judge, and therefore had no realistic prospect of success. Petition refused.

C.L. for Judicial Review of decisions of the Secretary of State for the Home and Health Department to detain the petitioner [2011] CSOH 31

Wed, 23 Mar 2011 22:57:50 GMT

The petitioner claimed to be a national of the Democratic Republic of Congo (DRC), who had entered the UK illegally in July 2006. Following unsuccessful attempts to claim asylum, the petitioner became “rights of appeal exhausted” in November 2006 and has since remained in the UK illegally. In this action, the petitioner sought review of the decision of the respondent to detain him at Dungavel Immigration Removal Centre pending deportation, and for interim liberation from immigration detention.

The petitioner argued that a prima facie case for interim liberation existed because he could not be deported in the foreseeable future due to his lack of travel documentation permitting him to return to the DRC; it was therefore argued that the balance of convenience favoured release. The respondent by reply argued that the petitioner’s lack of cooperation in helping obtain travel documentation, and his high risk of absconding upon release, were factors favouring continued detention.

Having heard submissions, the Lord Ordinary determined that the reason the petitioner was in detention in the first place was due to the high risk he posed in absconding to evade immigration controls, and of committing further criminal offences if released. It was moreover noted that deportation was not imminent; it was merely delayed, in part due to the petitioner’s lack of cooperation in attempts to obtain appropriate travel documentation. In this regard, the Lord Ordinary found that continued detention was proportionate and that the balance of convenience favoured detention. Petition refused.

J.M.K. for Judicial Review of decisions of the Secretary of State for the Home and Health Department to detain the petitioner [2011] CSOH 30

Tue, 22 Mar 2011 23:06:00 GMT

The petitioner was an illegal immigrant, detained at Dungavel Immigration Removal Centre awaiting deportation. The petitioner claimed to be a national of the Democratic Republic of Congo (DRC), who entered the UK in April 2004, claiming asylum shortly thereafter. This claim for asylum was refused and following subsequent unsuccessful appeals, the petitioner was “rights of appeal exhausted” by December 2004. After this date, the petitioner did not leave the UK and remained illegally.

In March 2008, the petitioner had been convicted of using a false passport and was sentenced to 12 months imprisonment with a recommendation for deportation. The petitioner appealed against deportation on the ground that his life would be in danger if deported to DRC; this appeal was latterly refused in February 2010. The petitioner had not yet been deported at the time of the hearing because of the unavailability of travel papers that would permit him to obtain a travel document from the DCR authorities. The petitioner, in this action, sought judicial review of the decision to continue detaining him, because it was submitted there was no realistic prospect of the petitioner acquiring a travel document for re-admission to the DRC.

Having heard submissions, the Lord Ordinary determined that the reason the petitioner was in detention in the first place was because the Border Agency had determined that it would be possible to effect deportation within a reasonable period of time, and that the petitioner was at a high risk of absconding and committing further offences. In light of this context, the Lord Ordinary came to the conclusion that the decision to continue detaining the petitioner was correct and was proportionate in the context of Article 5 ECHR. The Lord Ordinary found that the petitioner did not have a prima facie case, and that in any event, the balance of convenience favoured continued detention. The Lord Ordinary found that the petitioner’s lack of cooperation in obtaining the appropriate travel documents had made his detention “self-induced” to an extent, but that in any event, the prospect of obtaining the documents in the foreseeable future was not merely fanciful. Petition refused.

D.E.F.K. for judicial review of a decision of the Secretary of State for Home Department [2011] CSOH 20

Tue, 08 Mar 2011 22:58:04 GMT

The petitioner, who was a national of Cameroon, arrived in the UK in January 2007 and claimed asylum. This claim was rejected and subsequent appeals failed. Previous immigration judges had held that they did not believe the petitioner in his account of how he had been detained by the authorities in Cameroon and neither did they believe that the petitioner would be of any interest to the authorities upon his return.

In this present action, the petitioner claimed that he was the subject of a newspaper article, which referred to him as a person who was politically active in Cameroon in 2004; the petitioner submitted that this article had not been before previous immigration judges. It was submitted that the further information contained in the newspaper article amounted to a fresh claim for asylum, and that his rights under Article 8 of the European Convention on Human Rights would be infringed if he were returned to Cameroon.

Noting that it was plain that the newspaper article had not been considered by previous immigration judges, the Lord Ordinary observed that the main issue in this case was whether, when taken together with the other evidence, it created a realistic prospect of success. The Lord Ordinary noted that there was no evidence of the genuineness of the article, and no one could vouch for its authenticity. It was unclear how it came to be in the hands of the petitioner, and also did not support the petitioner’s account of detention in, and escape from, Cameroon. The Lord Ordinary concluded that there was no realistic prospect that another immigration judge would reach a different conclusion from the original decision with the benefit of the article. The Lord Ordinary moreover ruled that the lack of detail on the petitioner’s new relationship hindered his establishing evidence of a family life before an immigration judge and that in any event, any interference with the petitioner’s Article 8 ECHR rights was necessary and proportionate, bearing in mind that any relationship would have been entered into by the petitioner when his immigration status was precarious. Petition refused.

ZH (Tanzania) (FC) (Appellant) v Secretary of State for the Home Department (Respondent), [2011] UKSC 4, 01/02/2011

Fri, 11 Feb 2011 00:08:18 GMT

This is a mother’s appeal to the Supreme Court on the ground that her removal from the United Kingdom will constitute a disproportionate interference with her right to respect for her private and family life, guaranteed by article 8 of the European Convention on Human Rights.

The over-arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this is a more specific question: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?

The Supreme Court unanimously allows the appeal. Lady Hale gives the leading judgment. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother’s
appalling immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. In those circumstances, the Secretary of State was clearly right to concede that there could only be one answer.

A.J.A. v. The Advocate General for Scotland, as representing the Secretary of State for the Home Department [2011] CSOH 17

Sun, 30 Jan 2011 15:58:11 GMT

The petitioner was a national of Nigeria, who had entered the UK in December 2006, having been granted a visitor’s visa for six months. After the expiry of this visa, the petitioner did not return home and became an “overstayer”, during which time he formed a relationship with his now fiancée. Because of their joint concerns about his immigration status, the petitioner sought legal advice from a Scottish solicitor, who advised him to return to Nigeria and make a fresh application to enter the United Kingdom.

The petitioner followed that advice and returned to Nigeria in August 2009. On his return, his application for leave to enter the UK again was refused by an Entry Clearance Officer in Abuja. The petitioner lodged an appeal against that decision. A hearing took place in March 2010 in Glasgow before Immigration Judge Reid, who issued a determination in his favour dated 23 March 2010. Despite this decision, the Entry Clearance Officer again refused to grant leave to enter the UK and the petitioner challenged this decision in the present proceedings.

The petitioner contended that the decision to refuse the entry clearance again was unlawful and unreasonable because: (a) the material facts were placed in front of the Immigration Judge; (b) that was the correct point for the respondent to challenge them; and (c) it would undermine the rule of law to allow an Entry Clearance Officer to subvert the Immigration Judge's decision.

Accepting the petitioner’s submissions, the Lord Ordinary noted that when an Immigration Judge has ruled in an applicant’s favour, an Entry Clearance Officer will only be entitled to re-refuse an application for leave in a very limited class of cases. The court affirmed that there had to be very cogent and compelling reasons for refusal after the determination of the Immigration Judge. Noting that there was no evidence suggesting a change in circumstances since the determination of the Immigration Judge, the Lord Ordinary decreed that the Entry Clearance Officer had acted unreasonably in refusing leave to enter the UK and reduced that decision.

Petition of C.P.O. for judicial review of a decision of the Secretary of State for the Home Department [2011] CSOH 12

Fri, 28 Jan 2011 00:41:51 GMT

The petitioner was a national of Nigeria who had arrived in the UK in November 2007 and subsequently claimed asylum on the ground that she feared persecution. This claim for asylum was rejected by the respondent, and was upheld on appeal to an Immigration Judge in April 2009. At that hearing, the Immigration Judge noted that he did not find the petitioner’s account to be credible and raised suspicions surrounding the possibility that the petitioner may have been trafficked to the UK for the purposes of exploitation. The Immigration Judge noted however that it was impossible to reach a firm view about this as the petitioner herself had not given evidence to this effect. Nevertheless, he went on to conclude that even if the petitioner had been trafficked to the UK, it would be possible to relocate within Nigeria and that she should be returned there. The petitioner applied for reconsideration of this determination of the immigration judge but her application was refused in May 2009, when her appeal rights became exhausted.

Latterly, the petitioner submitted a fresh claim for asylum under the auspices of Rule 353 of the Immigration Rules, relying on a statement which confirmed the petitioner had been trafficked to the UK but had been too fearful to speak of this incident earlier. In March 2010, the respondent rejected the petitioner’s fresh claim for asylum, on the grounds that there was no realistic prospect of an Immigration Judge, applying anxious scrutiny, reversing the decision of the original Immigration Judge. The petitioner sought reduction of that decision in the present proceedings for judicial review.

Rejecting the petition, the Lord Ordinary noted that the original Immigration Judge had already considered the matters identified in the fresh claim, namely, the petitioner’s trafficking into the UK. Noting that the original Immigration Judge had made a finding that it would not be unduly harsh or unreasonable to ask the petitioner to relocate when she returned to Nigeria, the court moreover noted that it was bound by the current Country Guidance in respect of Nigeria, in the case of PO (Trafficked Women) Nigeria CG [2009] UKAIT 00046. The Lord Ordinary noted that it had been held in this guidance it was not unduly harsh or unreasonable to expect petitioners to relocate in Nigeria after trafficking, and that this guidance overrode any evidence to the contrary presented by the petitioners, unless and until the Country Guidance for Nigeria was revised by the UK Supreme Court. Petition dismissed.

A.K. v. The Secretary of State for the Home Department [2011] CSOH 7

Sun, 23 Jan 2011 20:31:51 GMT

The petitioner was a citizen of Bangladesh, who had entered the UK in 2003 using a false passport. He did not claim international protection upon his entry to the UK. It was only following his arrest in January 2006 that he claimed asylum. The claim was based upon the petitioner's fear that if returned to Bangladesh he would face mistreatment because of his political opinions and that his removal from the UK would be contrary to articles 2 and 3 of the European Convention on Human Rights. He claimed that he had fled Bangladesh because, as a supporter of the Awami League, he was being persecuted by the Bangladesh National Party. He also feared the police and army in Bangladesh. The Secretary of State refused the petitioner’s application in January 2006, ruling that that involvement with the Awami League did not in itself gave rise to a well-founded fear of persecution on the grounds of political opinion and in any event, it would be open to the petitioner to seek the necessary avenues of protection within Bangladesh before seeking international protection.

Subsequent appeals and fresh hearings by new Immigration Judges took places in the years that followed, until the petitioner made fresh submissions in 2010, which he argued amounted to a fresh claim for asylum under Rule 353 of the Immigration Rules. The Secretary of State ruled that the fresh submissions did not amount to a fresh claim. That decision was appealed against in this petition for judicial review.

The Lord Ordinary noted that the question for him was whether the petitioner would have more than a fanciful chance of success before an Immigration Judge and noted that this test was a low hurdle for the petitioner to clear. Noting that the Secretary of State had placed much weight on the fact that previous Immigration Judges had found the petitioner to be unreliable and not credible, the Lord Ordinary found that conversely, previous positive findings about the petitioner’s credibility had been ignored by the respondent. The Lord Ordinary found there was no good reason as to why only the negative findings on credibility had been given any weight. Moreover, the Lord Ordinary found that the respondent had placed too much weight on the fact that the Awami League was now in government in Bangladesh, noting that the government was not necessarily synonymous with the state and that this was a matter that should be considered before an Immigration Judge. Petition allowed.

Petition of M.A. for judicial review of a decision of the Secretary of State for the Home Department [2011] CSOH 8

Sun, 23 Jan 2011 19:52:12 GMT

The petitioner was a national of Iran, who had entered the UK illegally in April 2009. Following his subsequently refused claim for asylum and various appeals, the petitioner became “rights of appeal exhausted” in July 2009. In September 2009, fresh representations were made by petitioner, but these were not held by the respondent to amount to a “fresh claim for asylum” in terms of Rule 353 of the Immigration Rules. The petitioner sought judicial review of that decision.

The petitioner founded his claim for asylum based on fear that if he returned to Iran, he would face a real risk of death or torture, following an incident in March 2009 where the Iranian authorities allegedly caught the petitioner and his cousin carrying Kurdish Democratic Party of Iran literature which had been smuggled from Iraq. On this occasion, it was averred that the petitioner escaped from firing security forces, but that the petitioner’s cousin had been shot dead. The respondent accepted that if this account were true, the petitioner would be entitled to have a well-founded fear of persecution in Iran, due to his political opinion; however this account of the petitioner was disbelieved. It was moreover submitted that the new representations supporting this account would not, taken together with previous evidence, create a realistic prospect of success before a new immigration judge.

The Lord Ordinary noted that the original immigration judge had found the evidence of the petitioner to be incredible. The court moreover noted that the petitioner had failed to prove that the fresh documentary evidence submitted by him was reliable; consequently, the fresh evidence did nothing to change the adverse findings of credibility and reliability in this case. The court found that the respondent was entitled to find on application of the Rule 353 test that there was no realistic prospect of success in the fresh claim. The Lord Ordinary found that the new submissions, along with the previously considered material, did not disturb the essential balance of evidence and did not substantially advance the petitioner’s claim. Petition dismissed.

R.S. v. The Secretary of State for the Home Department [2011] CSOH 6

Sun, 23 Jan 2011 19:47:55 GMT

The petitioner was a national of India, who had claimed asylum in the UK. The petitioner claimed his removal from the UK back to India would result in a breach of Article 3 of the European Convention on Human Rights. In this application for judicial review, the petitioner sought quashing of decisions of the Secretary of State, who had certified the petitioner’s claim for asylum as “clearly unfounded” in terms of sections 94(2) and (3) of the Nationality, Immigration and Asylum Act 2002.

The petitioner had claimed that his return to India would result in abuse and torture from his estranged wife’s family, who were alleged to be politically powerful. The Secretary of State for the Home Department had rejected claims that the petitioner’s return to India would result in a breach of Article 3 ECHR, noting that the petitioner could obtain sufficient protection from his wife’s family in India and could also relocate within India should problems develop. It was therefore considered that the petitioner’s situation did not meet the threshold for protection under Article 3 and that the petitioner therefore did not qualify for humanitarian protection.

The petitioner averred that the decision to certify his claim as “clearly unfounded” was unlawful and irrational. It was submitted that the respondent could only certify a claim as such if “reasonably and conscientiously satisfied that the claim must fail or if the claim cannot on any legitimate view succeed”.

Dismissing the petition, the court noted that the averments of the petitioner on his domestic situation in India were unsubstantiated, vague and lacking in specification. Having heard submissions, the court ruled that no substantial grounds had been shown for believing that the petitioner, if removed to India, would face a real risk of being subjected to treatment contrary to Article 3. The court ruled that the respondent’s certification under the 2002 Act was justified and refused the application for judicial review.

Petition of O.A., A.A. and A.A. for judicial review of a decision of the Secretary of State for the Home Department [2011] CSOH 1

Thu, 13 Jan 2011 19:32:13 GMT

The first petitioner was a Nigerian national; the second and third petitioners were her 12 year old son and 8 year old daughter, respectively. The petitioner also had a son, aged 4. The petitioners had entered the UK in June 2005, but since February 2007 had no right to remain in the UK, the visa of the first petitioner’s husband having expired at that point. By May 2009, the first petitioner’s husband had abandoned her and their children.

The first petitioner claimed that she had a well-founded fear of persecution due to her religion and her status as a woman and a single mother. She maintained that there were substantial grounds for believing that she would face a real risk of unlawful killing or serious harm, or inhuman or degrading treatment, amounting to a breach of articles 2 or 3 of the European Convention on Human Rights. She also argued that she and her family had established a private life in the UK and that their removal to Nigeria would be disproportionate and in breach of their article 8 rights to private and family life.

In January 2010, further representations were made to the respondent on behalf of the petitioner, however they were not accepted as a fresh claim in terms of Rule 353 of the Immigration Rules. The petitioners sought judicial review of that decision.

Having heard submissions, the Lord Ordinary dismissed the petition. The court concluded that the further representations contained no new material advanced on behalf of the petitioners and all material raised by the petitioner had previously been considered by the respondent. The new material merely amounted to "bald repetition" of previous representations. The respondent was therefore entitled to treat the submission as not significantly different from those advanced previously. Nevertheless, the court noted that the respondent had gone on to consider whether removal from the UK was a proportionate breach of the petitioners’ Article 8 rights.

Noting that the first petitioner had a far stronger connection with Nigeria than the UK and that her family/friends continued to live there, the Lord Ordinary concluded that removal was proportionate. The court noted that while the petitioners appeared to have some community connections in the UK, these were not particularly strong and had been built to a large extent while the petitioner had been an unlawful overstayer (when her residence had been precarious). The Lord Ordinary concluded that the circumstances in this case fell very far short of the sort of circumstances where a decision taken pursuant to lawful immigration control might be argued to be disproportionate. Petition dismissed.

Petition by SKM for judicial review of a decision of the Secretary of State for the Home Department [2010] CSOH 172

Sun, 09 Jan 2011 17:03:39 GMT

The petitioner had identified himself as a national of the Democratic Republic of Congo born on 14 June 1972, and had claimed asylum at the Liverpool Asylum Screening Unit on 15 July 2008. On 4 November 2008, the petitioner was refused asylum and ordered to be removed from the United Kingdom. A subsequent appeal was dismissed in January 2009 and the petitioner was eventually recorded as being appeal rights exhausted on 26 May 2009. Latterly, further representations for asylum were submitted to the respondent on behalf of the petitioner, but these were dismissed as not amounting to a “fresh claim” in terms of Rule 353 of the Immigration Rules. The petitioner brought judicial review against that decision in the present case, and argued that the decision violated in Article 8 ECHR rights.

The court noted that the question for it to adjudicate upon was whether the content of the further submissions created a realistic prospect of success before an Immigration Judge, properly directed. The court noted that if there was no 'realistic prospect of success' for the purposes of Rule 353, there was no 'fresh claim' to be adjudicated on by an Immigration Judge.

The Lord Ordinary observed that it was trite law that Article 8 does not guarantee the right of free movement or the right of settlement. In considering how substantial the petitioner’s private life was in the UK, the Lord Ordinary noted that the petitioner had only been in the country for something short of two years, always with precarious immigration status. On the material provided, it could not be said of the petitioner that his ties in the United Kingdom were such that his private life could not reasonably be expected to be enjoyed elsewhere.

Moreover, the Lord Ordinary noted that any waiver of immigration rules for individual benefit would disrupt and undermine firm immigration control. Therefore, the respondent had identified a legitimate aim in breaching the petitioner’s Article 8 ECHR rights (if they were engaged), and this breach was moreover proportionate because of the relatively insubstantial nature of the petitioner's private life in the United Kingdom and by reference to the fact that no adverse consequences to the petitioner were envisaged. Petition dismissed.

Petition of A.B. for judicial review of a decision of the Secretary of State for the Home Department [2010] CSOH 171

Sun, 09 Jan 2011 16:45:52 GMT

The petitioner had arrived in the United Kingdom in December 2006 and claimed asylum that month. The petitioner’s asylum claim was refused in January 2007, and a subsequent appeal against its refusal was dismissed in March 2007. The petitioner became appeal rights exhausted in May 2007. On 17 March 2010 the petitioner submitted fresh representations to the respondent in the form of two documents bearing to be from Iran. On 20 April 2010, the respondent issued a decision letter to the petitioner advising him that the respondent declined to treat the representations as a fresh claim for asylum. The petitioner sought reduction of that decision.

The petitioner submitted that the respondent had erred and misapplied the test under Rule 353 of the Immigration Rules, by attaching too much weight to the negative credibility findings of the previous Immigration Judge. It was submitted that the documents which were submitted were capable of having an important influence on the result of the case, even though they might not be decisive. It was submitted that it was not for the respondent to make a judgment on the credibility of the new material, unless it was possible to say that no person could reasonably accept it as believable.

Having heard submissions, the Lord Ordinary noted that the respondent was obliged to follow the three part test as set out in Rule 353. This required the respondent to firstly consider whether the new material has previously been considered. Secondly, if the new material has not previously been considered, the question for the respondent was not whether she believed the new material made it a well founded claim. Rather, the court noted that the respondent had to keep clearly in mind that the separate and distinct question for her was whether there was a realistic prospect of a new Immigration Judge applying the rule of anxious scrutiny would think the petitioner would be subject to a real risk of persecution on return. Thirdly when considering the issue of whether there is a realistic prospect of success, the court noted that the respondent could assess the reliability of the new evidence and in doing so could have regard to previous adverse credibility findings of the Immigration Judge.

The court concluded that the respondent’s approach to the new material conformed to this test under Rule 353, noting that the factors the respondent had regard to where all clearly relevant to the issue of apparent credibility of the documents and where therefore matters to which she was entitled to consider. Petition dismissed.

Petition by M.O. for judicial review of a decision of the Secretary of State for the Home Department [2010] CSOH 170

Sun, 09 Jan 2011 16:28:00 GMT

The petitioner was a citizen of Iran and arrived in the United Kingdom on 7 July 2008, before claiming asylum on 9 July 2008. That application was refused on 28 October 2008 and a subsequent appeal against that decision dismissed on 24 December 2008. Thereafter further representations were made on behalf of the petitioner by letter from his agent dated 10 September 2009. These representations included a medical report, allegedly supporting his ill-treatment in Iran. The petitioner sought to have the claim reconsidered in terms of Rule 353 of the Immigration Rules. The present action was a petition for judicial review against that decision of the Secretary of State for the Home Department to refuse to accept that the representations made on behalf of the petitioner constituted a fresh claim for asylum.

The Lord Ordinary noted that in a case where a person claims physical ill-treatment and/or torture as in the present case, it is very important to consider whether or not the person has in fact sustained such ill-treatment. The Lord Ordinary noted that the marks of injury on the person's body may assist with that decision and a supportive medical opinion may be very powerful evidence. If a person has sustained such injury and trauma, that had to be borne in mind when assessing credibility.

Allowing the petition, the court noted that the respondent had considered the evidence of the petitioner’s account of ill-treatment was not worth sending to another Immigration Judge because of significant and serious doubts about the credibility of the petitioner. The court noted that the decision was made without any analysis of the reasons given by the Immigration Judge or considering the impact that the medical report might have in relation to credibility and reliability issues. The Lord Ordinary thought the contents of the medical report might have changed the Immigration Judge’s approach to the assessment of credibility and reliability, which might have led to a different conclusion on the substantive question. In noting that the evidence submitted on behalf of the petitioner was important, significant and directly bore upon the core issue, the Lord Ordinary ruled that the decision making process of the respondent had been unreasonable and irrational.

Petition by O.A. for judicial review of a decision of the Secretary of State for the Home Department [2010] CSOH 169

Sun, 09 Jan 2011 11:52:45 GMT

The petitioner had claimed to be a Somali national born on 25 May 1988. He claimed to have moved to Yemen with his family on 5 July 2007 and left on 5 September 2007 by aeroplane and to have arrived in the United Kingdom on 6 September 2007. Following the rejection of his claim and subsequent appeals, the petitioner was recorded by the respondent as being "rights of appeal exhausted" on 6 March 2008. By letter dated 7 August 2009 the petitioner made further representations to the respondent, however by letter dated 2 October 2009, the UK Border Agency, acting on behalf of the respondent determined that the Petitioner's submissions did not amount to a fresh claim in terms of the Immigration Rules, Rule 353 and that the Petitioner had no basis to stay in the United Kingdom and should make arrangements to leave without delay. The petitioner sought to appeal that decision through judicial review on grounds of breach of his human rights under Articles 7, 8 and 9 of the European Convention on Human Rights.

The Lord Ordinary noted that it was not disputed that the petitioner’s further representations made in August 2009 had not previously been considered. The first element of the Rule 353 "fresh claim" test was therefore satisfied. The remaining question was whether, applying the rule of anxious scrutiny, the content of the further submissions, taken together with the previously considered material, created a realistic prospect of success.

The Lord Ordinary agreed with the submissions of the respondent that the new material did not create a realistic prospect of success. The Lord noted that the petitioner (who had already failed to give a credible account of his history and circumstances), could not easily show that he belonged to a new category of risk. There was no acceptance by the original decision maker of where the petitioner had claimed to originate from, and on that basis, any decision maker, applying the correct tests and exercising anxious scrutiny, would be entitled to conclude that the petitioner did not face the risks he claimed to be associated with in his claimed home area. The Lord Ordinary noted that the decision-maker concluded that there was no realistic prospect of success, and that in reaching this decision, the decision-maker did not err in law, did not act unreasonably or irrationally, did not apply the Rule 353 test in the wrong manner, did not fail to exercise anxious scrutiny and did not arrive at a conclusion which was not truly supported by the information. Accordingly, the determination of 2 October 2009 was entirely lawful and there was and is no "fresh claim" for the purposes of Rule 353. Petitioner dismissed.

A.K. v. The Secretary of State for the Home Department [2010] CSIH 98

Sun, 09 Jan 2011 11:16:59 GMT

The petitioner was an Israeli citizen of Russian origin who arrived in the United Kingdom, with his wife and two daughters, on 18 August 2005. The petitioner had a six month visitor visa. He claimed asylum, but this was refused on 6 October 2005 and his appeal rights became exhausted on 20 January 2006.

On 14 June 2007 the petitioner presented what purported to be a fresh application for asylum and ECHR protection. This repeated allegations that the petitioner's daughter E had experienced discrimination within the Israeli educational system. It stated that this daughter was attending primary school in Glasgow and was settled there. The application founded upon what was said to be Article 20(5) of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Subsequently, the petitioner repeated variations of these claims over a number of years, before a fresh claim for asylum was made in January 2009. The new application, which was dealt with in conjunction with the earlier applications, was rejected by the respondent, concluding that there was no evidence of mistreatment by reason of discrimination in education.

The petitioner sought a judicial review of the respondent’s decision. The petitioner claimed that the respondent had failed to take into account United Nations Convention on the Rights of the Child Article 3, requiring the respondent to take the best interests of the children as her primary consideration in making a decision. The Lord Ordinary at first instance rejected the petitioner’s claims, noting that the respondent had taken into account the best interests of the children, as part of wider Article 8 ECHR considerations. On appeal, the petitioner submitted that the respondent had erred in failing to consider the best interests of the children at all, and that the Lord Ordinary had not recognized that.

The Inner House noted that if the respondent had taken into account the best interests of the children that should have been so stated expressly in her decision. Moreover, the court did not agree with the Lord Ordinary that the best interests of the children should be merely a relevant consideration; they had to be afforded a prominent or important status in the decision making process. However, the Inner House did agree with the Lord Ordinary that notwithstanding the absence of any express reference by the respondent to the general principle of best interests of the children, it was plain from the decision letter that the respondent did address these interests, current and future, in the light of the information presented to her. The court concluded that if any error were made, the information provided to the respondent would not have resulted in a different decision being made. Reclaiming motion refused.

H.S. v. The Secretary of State for the Home Department [2010] CSIH 97

Wed, 05 Jan 2011 23:53:30 GMT

The applicant was an Algerian citizen who entered the United Kingdom with her husband on 12 August 2005. On 23 January 2006 she gave birth to a son. On 17 February 2006 she made a claim for asylum, but that claim was rejected and her rights of appeal became exhausted on 7 December 2006. She subsequently gave birth to a daughter on 10 April 2008. On 5 November 2008 the petitioner applied for discretionary leave to remain in the United Kingdom, partly on the basis that any attempt to remove her would amount to a contravention of her rights, and those of her family, under Article 8 of the European Convention on Human Rights. This application was refused and was appealed against through judicial review.

At first instance, the applicant had submitted that in making her decision, the Secretary of State had failed to have regard to Article 3.1 of the United Nations Convention on the Rights of the Child. The petitioner submitted that there was no reference to Article 3 in the decision letter and that there had been no assessment on where the best interests of the children lay. It was submitted that the respondent appeared to have proceeded upon the basis that immigration control was a more compelling factor than the best interests of the children. The respondent's position in answer was that best interests only had to be considered as part of the Article 8 balancing exercise as a primary, but not the over-riding, consideration. Having heard submissions, the Lord Ordinary found for the respondent.

In refusing the appeal against the decision at first instance, the Inner House noted that the application for discretionary leave had been based upon the applicant's rights under Article 8 ECHR being infringed, not under Article 3.1 of the UNCRC. The Inner House held that under these circumstances, the respondent could not be criticised for making the decision which she was invited to make. The Inner House moreover noted that the respondent had indeed considered the welfare of the children, but that the applicant was not able to point to any direct evidence of why it would be best for the children to remain in the UK. The Inner House found that this absence of material was not surprising, as the applicant had not advanced a case that it was in the best interests of the children for them to stay. Accordingly, the appeal was refused.

O.M.L. for Judicial Review of a decision by the Secretary of State for the Home Department dated 25 November 2008 [2010] CSOH 155

Sun, 02 Jan 2011 19:47:05 GMT

The petitioner was a national of the Democratic Republic of Congo who entered the UK in or around 11 October 2007. He had claimed asylum on the ground that he feared persecution in DRC on account of his political opinion and the previous ill-treatment to which he had been subjected. The respondent rejected his claim on 22 February 2008. His appeal to an immigration judge was refused on 18 April 2008 and his application for a reconsideration of this decision was rejected by a senior immigration judge on 20 May 2008.

By letter dated 15 August 2008, agents for the petitioner submitted an application to the respondent that fresh consideration be given to the petitioner's claim for asylum. By a decision letter dated 25 November 2008, the Secretary of State refused to reverse her decision on the earlier claim and determined that the petitioner's submissions did not amount to a fresh claim, with the consequence that the petitioner had no further right of appeal. The petitioner sought reduction of that decision.

Accompanying the disputed fresh claim, the petitioner had included certain documents seeking to verify his political status in DRC. The petitioner submitted that these documents should have been regarded as genuine unless proved otherwise. It was submitted that that the Secretary of State had erred in law by applying the wrong test in assessing whether or not the petitioner's further submissions amounted to a fresh claim and, secondly, that in any event the Secretary of State's decision that an appeal to an immigration judge would have no reasonable prospect of success was irrational.

The court noted that while the respondent had applied the correct test, the court was not able to conclude that the documents accompanying the disputed fresh claim were not genuine. The court therefore concluded that the petitioner did have more than a fanciful prospect of success in persuading an Immigration Judge of his political status. Nonetheless however, the court noted that in the absence of any information whatsoever regarding his alleged persecution, the petitioner did not have any realistic prospect of success before an Immigration Judge.

The court therefore held that the respondent had asked herself the correct question, had satisfied the requirement of anxious scrutiny, and that her decision not to treat the representations of the petitioner as a fresh claim was not irrational or unreasonable. Petition refused.

L E (Turkey) for Judicial Review of a decision by the Secretary of State for the Home Department dated 27 July 2010 [2010] CSOH 153

Sun, 02 Jan 2011 18:45:01 GMT

The petitioner was a Turkish national, who was granted leave to enter the UK in March 2005, when his then spouse was already resident. That leave expired in March 2007. On 2 April 2008 he applied to the respondent Secretary of State for leave to remain in the UK on grounds connected with the establishment of a business. In so doing, he relied inter alia on the EEC-Turkey Association Agreement which pre-dated the UK's accession to the Community by a number of years. In terms of Article 41(1) of the Additional Protocol to that Agreement, commonly referred to as the "standstill clause", the UK was and is barred from imposing conditions for business applicants less favourable than those which were in force when the UK became bound by the Agreement in 1973.

The primary issue in this judicial review was whether, in refusing the petitioner’s application of 2 April 2008, the respondent approached the issue on a basis more restrictive than would have been appropriate in 1973 and thereby acted in contravention of the standstill clause. The petitioner also advanced Article 8 ECHR grounds that removing him from the UK would unlawfully contravene his right to family life, having recently begun co-habiting with a UK national whom the petitioner intended to marry following her divorce.

The petitioner submitted that the standstill clause conferred direct and enforceable rights which would be infringed if the application was treated on a more restrictive basis than would have been the case in 1973. It was clear the petitioner averred that his application had been treated on a basis more restrictive than had ever applied prior to June 2009, because of internal guidance released at that time.

The court concluded that the petitioner’s claim was well-founded, and concluded that the standstill clause did confer direct rights which may be enforced by an individual against a State. On comparing instructions and internal guidance both before and subsequent to June 2009, it was clear that a more restrictive approach had been introduced. However, the Lord Ordinary was not persuaded that there was anything objectionable about the respondent’s treatment of Article 8 issues in this case. The court noted that the relationship in question was commenced and developed by the petitioner in the full knowledge of his own long-term breach of immigration control, and of the precarious residential status which he enjoyed in this country. The court was accordingly not persuaded that any violation of Article 8 had taken place.

However, this did not affect the ultimate disposal of the judicial review, because of the earlier successful finding of a breach of the standstill clause. Petition granted.

Petition of HCS for judicial review of a decision to detain the petitioner [2010] CSOH 151

Sun, 02 Jan 2011 17:11:25 GMT

The petitioner was a national of Somalia, who arrived in the UK in 2003 and applied for asylum. His claim was refused, he appealed against refusal, and his appeal was dismissed. His rights of appeal became exhausted on 20 January 2004. The petitioner subsequently remained in the UK and was convicted of several criminal offences between July 2004 and October 2006, including burglary, theft, shoplifting and possession of cannabis. A notice of intention to deport was served on the petitioner on 14 August 2007 and he was detained on 16 August 2007. A Deportation Order was served on him on about 16 January 2008. The petitioner was subsequently liberated on a motion by the Lord Ordinary in June 2010, ad interim while the present action was heard.

Here, the petitioner sought declarator that the decision of the respondent to detain him was unlawful and irrational, reduction of that decision and damages for wrongful imprisonment.

The court noted that the petitioner had been detained for a period of two years and ten months, a lengthy period by any standards. While the Lord Ordinary had liberated the petitioner in June 2010, the court noted that it did not follow that the petitioner’s detention up until that point had been unreasonable or unlawful. The court noted that the petitioner was detained for the purpose of deportation, despite the receipt of a Rule 39 order by the ECtHR. The court agreed that the effect of the Rule 39 order was to delay the deportation of the petitioner, but it did not change the underlying purpose ofthe detention, which remained his deportation.

Accordingly, the court concluded that the respondent had intended to deport the petitioner and that the period of detention was for that purpose. The court was also satisfied that throughout the period of detention the respondent had acted with reasonable diligence and expedition to effect removal. While the court was satisfied that the petitioner’s detention could no longer be justified by June 2010, the Lord Ordinary concluded that the petitioner was not unlawfully detained at any stage prior to that date. Petition dismissed.

Application for leave to appeal by CB against a decision of the Asylum and Immigration Tribunal [2010] CSIH 89

Sun, 02 Jan 2011 16:08:00 GMT

The applicant arrived in the UK as a visitor on 30 December 1991 and was subsequently granted indefinite leave to remain in 1993, as the spouse of a UK national. The applicant’s wife already had a daughter of her own, and subsequently also gave birth to a son with the applicant during the course of the marriage. The applicant was convicted of one act of gross indecency and two of indecent assault over a three week period with his step-daughter, then aged 9. The applicant was sentenced to four years in prison. On 10 August 1998, as a consequence of the conviction, the applicant was served with a notice of intention to deport on the grounds that his presence in the UK was not conducive to the public good.

Following a lengthy process of appeals and reviews, the Asylum and Immigration Tribunal in 2008 considered whether the proposal removal of the applicant, in breach of his Article 8 ECHR rights to family life, was proportionate to the legitimate public end sought to be achieved by his removal. In that regard, the AIT were satisfied, that in the event of deportation, the applicant would be able to maintain the amount of contact which he had had with the children in the years 2006 to 2009 - by telephone (eg Skype) and written correspondence. The AIT concluded that he might also be visited by his wife, and the children, from time to time.

The applicant appealed against this decision of the AIT on three basis. Firstly, it was submitted that the AIT had erred in not holding that the respondent had erred in failing to take into account the terms of policy DP5/96 (IA ('applying principles') Mauritius v Secretary of State for the Home Department [2006] UKAIT 82). The court rejected this ground, noting that the respondent could not have applied the policy when he made the original decision to deport, since the policy did not then apply to the applicant’s situation and that there was no obligation to consider the policy subsequently.

Secondly, the applicant submitted that the AIT had erred in their consideration of how the supervised contact between the applicant and the children might develop. In rejecting this argument, the court noted that the AIT had indeed considered that it was in the best interests of the children that they should have continuing contact with the applicant. This ground was accordingly without merit.

Thirdly, the applicant submitted that the AIT had failed properly to take account of the Strasbourg jurisprudence in stating that they had not found it useful to analyze the facts of the European Court of Human Rights cases. The court rejected this submission also, noting that the AIT did not ignore the Strasbourg jurisprudence altogether; all they had said was that each case depended upon its own facts and circumstances.

Accordingly, the court found that the AIT had balanced all the various factors in line with the Strasbourg guidance and had correctly reached the view that it was proportionate to deport the applicant, despite its interference with the applicant’s Article 8 rights. Application for leave to appeal refused.

F.A. v. Secretary of State for the Home Department [2010] CSOH 159

Thu, 02 Dec 2010 22:56:55 GMT

The petitioner sought judicial review of a decision of the Secretary of State for the Home Department, that certified his claim not to be removed from the United Kingdom as clearly unfounded under paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The petitioner claimed that his removal from the United Kingdom would constitute a breach of Article 8 of the European Convention of Human Rights. The petitioner is a citizen of Afghanistan, born on 8 April 1988. He first arrived in the United Kingdom when aged 13 in late 2001 and claimed asylum. During his adolescent years, he lived and was educated in Scotland. While he did return to Afghanistan for a period of ten months in 2008, it was argued that the petitioner had spent a significant period of time in the UK and had formed close family ties in the UK during this period. It was further argued that the fact the petitioner had returned to the UK after a short period spent in Afghanistan demonstrated the strength of the petitioner’s bond to the UK and his life here. In balancing the rights of the petitioner, it was argued that the respondent had failed to give adequate weight to the period of time the petitioner had spent in the UK and the family life he had established.

In reply, it was argued that the respondent’s decision was lawful and reasonable. The respondent argued that the petitioner had no continuity of residence, and that any starting point of residence would run from the date when he returned to the UK, after having spent a period of time in Afghanistan. It was argued that when the petitioner left the UK, that brought his family life to an end, and all family ties were ruptured. The correct approach was to concentrate on events only after the petitioner had returned to the UK.

The court deemed this approach to be wrong. The court noted that the petitioner had spent almost all of his teenage years in the UK prior to his departure, and noted that this was an important factor that required to be taken into account. The court did not accept that the petitioner’s lack of a credible explanation as to why he left the UK effectively ruptured his ties to his family life, and moreover accepted that his speedy return to the UK demonstrated the strength of his family attachment.

The court noted that the threshold that the petitioner was required to surmount in this review was low. The court did not consider that the petitioner's claim that removal from the United Kingdom would constitute an interference with his Article 8 rights was clearly unfounded. Reduction granted.

Application for leave to appeal under Nationality, Immigration and Asylum Act 2002, section 103b by Mr A.A.S. and Miss S.A.A.S. v. Secretary of State for the Home Department [2010] CSIH 90

Tue, 16 Nov 2010 21:35:01 GMT

The applicants sought leave to appeal against a decision of the Asylum and Immigration Tribunal, made on 26 November 2008, dismissing their appeals against the decisions of the respondent by letters of 4 January 2007, to refuse their claims for asylum and remove them to Somalia.

The first applicant was father of the second who was born on 1 February 2006. The first applicant arrived in the United Kingdom with the second applicant, his wife and their male son on 16 November 2006. The first applicant claimed asylum on behalf of his family on the basis that he was a member of a persecuted minority clan in Somalia. An additional claim for asylum was made on behalf of the second applicant on the basis that she was at risk of requiring to undergo female genital mutilation if returned to Somalia.

The applicants presented six grounds of appeal. The first was confined to the additional claim for the second applicant and was that the Tribunal had failed to provide an adequate explanation for deciding that female genital mutilation could be avoided in this case. The others related to the claim of the first applicant on behalf of himself and his family. The second and third concerned the treatment of the evidence of witnesses FA S and L S H led on behalf of the first applicant, which the first applicant contended the Tribunal had failed to consider along with the other evidence, particularly that of the first applicant and his wife, before deciding on their credibility. The fourth ground also related to the treatment of evidence, on this occasion the Tribunal's assessment of the plausibility of the first applicant's account of his escape from enslavement without having regard to the significance of cultural context as a source of explanation for his actions. The fifth ground concerned the first applicant's mental health; it was asserted that in considering whether the high threshold required to establish failure to comply with Article 3 of the European Convention on Human Rights had been met the Tribunal left significant material out of account. The final ground, which was not argued at any earlier stage, depended upon the decision by the United Kingdom government on 22 September 2008 to revoke its derogation to the ratification of the United Nations Convention on the Rights of the Child in respect of immigration matters; as a result the Tribunal was bound to have regard to the best interests of the second applicant as a primary consideration in determining both claims and had failed to do so.

In the opinion of the court, the Inner House addressed only one of these grounds before allowing the appeal on that ground alone, and remitting to the Upper Tribunal. The Inner House concluded that the tribunal did err in law in assessing the credibility of the first applicant and his wife. They concluded that the tribunal had reached conclusions as to the incredibility of the accounts of the first applicant and his wife, without also considering the significance of the evidence of the other witnesses. The court ruled that to leave out consideration of the other witnesses’ evidence, particularly where it related to corroborative personal experience, was an error of law so significant as to vitiate the decision of the tribunal.

The court found that the tribunal had failed to consider the evidence of the first applicant and his wife in the round; they also failed to take this evidence into account in its proper context, and thus erred in law. Application for leave to appeal allowed, appeal allowed, case remitted to the Upper Tribunal.

M.D. v. The Secretary of State for the Home Department [2010] CSIH 88

Sun, 14 Nov 2010 22:22:12 GMT

The applicant was a national of Guinea, who arrived in the UK in March 2007 and claimed asylum. His claim was refused, and his subsequent appeal against this decision was also refused in April 2008. Thereafter, a reconsideration hearing in June 2008 concluded that the reasoning on which the Immigration Judge had based his adverse credibility finding was flawed. However, it was also determined that the adverse credibility finding made no material difference to the outcome of the appeal because the applicant had failed to show that he would face a real risk of persecution or serious harm on return to Guinea at any time after March 2007 and accordingly his fear of returning to Guinea was not well founded. The applicant appealed against this decision to the Court of Session, however leave was denied by the Asylum and Immigration Tribunal in July 2008. In the present action, the applicant sought judicial review of that decision.

Counsel for the applicant submitted that the tribunal had previously acknowledged that the applicant faced a real risk of persecution in the early part of 2007, and that this was a good indicator of future mistreatment. There was crucially no evidence of a change of circumstances resulting in the removal of the risk to the applicant. Secondly, the applicant argued that the tribunal was not entitled to conclude that he was only at risk in 2007 prior to a change of government. Finally, it was submitted that the tribunal failed to comment on the relevance and significance of the applicant’s evidence that his wife had been arrested because the authorities had been unable to find the applicant, and that following her arrest, had been tortured while in detention. The respondent submitted by reply that it had refused the claim because it had no reasonable prospects of success, and this was a conclusion reasonably open to it, having heard all the evidence available. The respondent argued that the Tribunal was entitled to take the view that it did because the letter related to the situation in Guinea before the change of Government. Similarly the applicant's evidence about the detention and torture of his wife predated the change of Government. In all the circumstances there was no evidence to suggest that the applicant would be persecuted on his return and, for that reason, counsel for the respondent invited the court to refuse the application.

The court concurred with the applicant’s submissions. The court noted that the tribunal having been aware of the mistreatment of the applicant and the human rights abuses he had suffered, it was for them to explain, by reference to a material change in circumstances, why they considered the applicant was no longer at risk. The court noted that in light of the systemic abuse of human rights over the last 10 years in Guinea, it was incumbent upon the tribunal to justify their conclusion that the applicant would no longer be at risk of persecution. The court was not satisfied that the tribunal’s judgment had sufficiently done this. Application for leave to appeal allowed, case remitted to the Upper Tribunal.

N.M. for Judicial Review of the Secretary of State for the Home Department [2010] CSOH 146

Thu, 04 Nov 2010 23:13:00 GMT

The petitioner, an Iranian national, arrived in the UK on 19 July 2006 and applied for asylum on that date, but this was refused. After subsequent appeals, her rights of appeal were finally exhausted on 26 February 2007. On 15 September 2009 the Petitioner's solicitors made a fresh claim for asylum under Immigration Rule 353 on the ground that fresh evidence had become available. On 29 September 2009 the UK Border Agency refused the fresh claim. In this action, the petitioner sought judicial review of that decision.

The petitioner submitted that the collective weight of new material presented in support of her asylum was sufficient to entitle her to a fresh hearing before an Immigration Judge. The respondent contended that, viewed in the round, the new material did not give rise to a realistic prospect of success at a fresh hearing.

The court noted generally that the only way to determine whether the Secretary of State’s decision to refuse a fresh asylum claim was a rational one, is to ask itself the same question as the Secretary of State had to address. Therefore, in terms of threshold, the court is entitled to exercise its own judgement, but it must do so on the basis of the material which was available to the Secretary of State. The court further noted that the petitioner need only have shown that she would have more than a fanciful prospect of success at a new hearing, a modest test.

The fresh material supplied by the petitioner consisted of a medical report from a clinical psychologist, which concluded that the petitioner was suffering from Post Traumatic Stress Disorder, caused by her alleged imprisonment and mistreatment by the authorities in Iran. It also consisted of a copy of a document, allegedly a summons from the Iranian Revolutionary Court, to answer unspecified charges. Thirdly, it included photographs from websites, showing the petitioner taking part in public demonstrations against the outcome of the Iranian elections in 2009.

The court noted that findings at first instance were highly damning of the petitioner, and noted that the Immigration Judge had found her neither plausible nor credible as a witness. There were many discrepancies in her version of events. On this basis, the Immigration Judge had ultimately concluded that the petitioner had fabricated an account of her alleged experiences of persecution in Iran. Having regard to these findings, and the new evidence submitted, the Lord Ordinary concluded that the petitioner would have no better than a fanciful prospect of success at a fresh hearing. The medical report was based entirely on the pursuer’s own version of accounts in Iran, which the Immigration Judge had already found incredible; the court concluded this evidence would not advance the petitioner’s credibility or reliability. The document purporting to be a court summons was unconvincing, with the petitioner offering no explanation as to how it came to be in her hands in the UK, and that the photographs showing the petitioner protesting were of a sufficient generality as to ensure that the Iranian authorities would likely take little interest in her limited involvement in protests. The Lord Ordinary noted that many thousands protested openly inside and outside of Iran following the elections, but that there was no evidence that the petitioner, who was not a significant political figure in Iran, would be singled out for persecution.

The Lord Ordinary concluded that he was unconvinced the fresh material would give rise to a reasonable prospect of success before an Immigration Judge, and dismissed the petition.

A.A. v. The Secretary of State for the Home Department [2010] CSOH 98

Thu, 16 Sep 2010 21:27:44 GMT

Judicial review:- The petition sought reduction of a decision of the Secretary of State for the Home Department, in which the petitioner was refused leave to remain in the UK.

In 2003, the petitioner submitted to the respondent an application for leave to remain in UK, on the basis of his marriage to a UK national. This was rejected; the petitioner had the opportunity to appeal against this determination, but did not do so. The petitioner made a further application, which was later rejected in November 2009, and which formed the subject to this petition for review. The respondent gave the petitioner no right of appeal against this decision.
The petitioner argued the respondent had erred in law in failing to provide a right of appeal against the second decision and had approached consideration of the petitioner’s Article 8 ECHR rights (right to a private and family life) in a manner which was Wednesbury irrational.

First, the petitioner submitted that the second decision was an “immigration decision” in terms of sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002, the court being obliged to employ a liberal construction to the interpretation of the Act. A consequence of this interpretation was that the petitioner was entitled to a right of appeal on that decision. Secondly, the petitioner submitted that the respondent was personally barred from refusing a right to appeal, having previously offered a right to appeal in its first decision. Thirdly, the petitioner submitted the respondent had omitted to have due regard to his Article 8 ECHR rights, in failing to have appropriate respect for his family life, particularly his relationship with his wife, and with his child.

In relation to the respondent’s refusal of a right of appeal on the second decision, the court opined that on a proper construction of section 82, the decision concerned did not qualify as an “immigration decision”. The court ruled that a liberal construction was not open to the court on this occasion, noting the closely regulated nature of the provisions of the Act, to construe otherwise would be to run counter to the clear intention of Parliament. Further, the two decisions being of a different nature, the court did consider offering a right of appeal in one decision personally barred the respondent from refusing a right of appeal in another decision. Moreover, the court was of the opinion that the respondent had adequately taken into account all factors relating to the petitioner’s family life and was entitled to come to the view that his family life would not be interfered with as a result of his removal from the UK. Petition for reduction rejected.

G.A.O. for Judicial Review of a decision of the Secretary of State for the Home Department [2010] CSOH 92

Tue, 31 Aug 2010 20:17:41 GMT

The petitioner was a citizen of Sudan, who arrived and claimed asylum in the UK in June 2008; her claim for asylum was subsequently rejected in July 2008. By January 2009, she had become “appeal rights exhausted” and in December 2009, she requested the Secretary of State reconsider her application for asylum, indicating it was a fresh claim for asylum under Rule 353 of the Immigration Rules. Her new representations were not recognized by the UK Border Agency, on behalf of the Secretary of State, as constituting a fresh asylum application. Invoking judicial review of this decision, the petitioner sought reduction of the refusal of her fresh asylum claim.

The court noted that the Immigration Judge did not find the petitioner to be credible in all respects, further noting that while she was at risk of persecution upon her return, she could easily relocate within South Sudan, safely and without undue hardship. The Immigration Judge had further noted that the petitioner was a single woman who was fit, able to work and able to support herself in a relatively troubled environment. The petitioner argued that new medical evidence submitted on her behalf in December 2009 was to the effect she was not fit and able to work. While the UK Border Agency did consider this medical evidence, it only did so in the context of the high threshold required for “medical cases” in the context of Article 3 rights.

The court noted Rule 353 of the Immigration Rules requires the decision maker to consider the content of any further submissions and decide if the content has not already been considered and, taken together with the previously considered material, creates a realistic prospect of success. The court noted that this means only more than a fanciful such prospect. Taking the fresh information together with previously considered material, the Secretary of State would have to bear in mind that the petitioner would be able to succeed before the other Immigration Judge on the basis of medical needs, only in extreme and exceptional circumstances. The court found the contents of the letter fell very far short of extreme and exceptional circumstances. Considering the medical evidence submitted in December 2009 could not possibly support a conclusion that internal location to South Sudan would be unduly harsh, the court concluded that there was not enough fresh material to create a realistic prospect of success before an Immigration Judge and that the Secretary of State had approached the test in the correct manner. Petition dismissed.

S.Y. of the Democratic Republic of Congo for Judicial Review of a decision of the Secretary of State for the Home Department [2010] CSOH 89

Mon, 23 Aug 2010 20:42:29 GMT

The petition was a national of the Democratic Republic of Congo (DRC), who claimed she was a supporter of the Mouvement pour la Liberation du Congo (MLC) led by Jean Pierre Bemba. She claimed to have run a bar and restaurant in Kinshasa and that the premises were used for meetings during the 2006 election, and to hold mobile and satellite telephones on behalf of the party. She claimed that following the MLC’s defeat in the 2006, relations between the party and the government broke down, and she claimed her premises had been raided in 2007. She was assaulted and imprisoned, only escaping when a commander she bribed helped release her, she claimed. The petitioner claimed that she would be at a real risk of persecution because of her involvement with MLC and in any event, that she would face a real risk of persecution returning to DRC as a failed asylum seeker.

The respondent had rejected the petitioner’s claim for asylum in July 2007, finding her account to be incredible and implausible in a number of respects. The petitioner’s subsequent appeal to the Asylum and Immigration Tribunal was rejected in September 2007, along with her appeal to the Court of Session in January 2008. At this moment, the petitioner became “appeal rights exhausted”.

In June 2008, the petitioner made fresh submissions to the respondent, including medical reports diagnosing the petitioner with Post-Traumatic Stress Disorder and a major depressive disorder, following her ordeal in DRC. This application was refused; subsequently, in February 2010, the petitioner once again made a claim using fresh submissions, this time arguing that her medical diagnosis provided an explanation for her previous lack of credibility, due to its symptoms of memory loss. In March 2010, the respondent decided this material also did not give rise to a fresh claim, noting in particular that there was no realistic prospect of success before an Immigration Judge with this fresh material.

In rejecting the petitioner’s judicial review of this decision on grounds of irrationality, the court considered that the new material, taken together with the old, did not constitute a fresh claim. The court noted that the petitioner had been inconsistent in a number of respects, including the name of her husband and the ages of her children. Contrary to the petitioner’s submissions, these were not peripheral matters that could be attributed to memory loss as a result of her condition. The court considered the poor prospects of the claim succeeding before an Immigration Judge, noting that her chances of success were only fanciful. Decision found to be lawful; petition dismissed.

L.A. for the Judicial Review of a decision of the Secretary of State for the Home Department [2010] CSOH 83

Tue, 17 Aug 2010 11:47:40 GMT

Petition for Judicial Review:- The petition and appellant was a citizen of Pakistan, who came to the UK in September 2006. He sought asylum on grounds of his persecution in Pakistan, as a result of his adherence to, and involvement in, the Ahmadi faith. His application at that time was refused, and subsequent appeals were also refused, with his appeal rights ending in May 2008. Thereafter, the petitioner had made further representations, which he considered constituted a fresh claim of asylum.

In March 2008, the Immigration Judge rejected the petitioner’s claim for asylum. Although the judge accepted that the petitioner was of the Ahmadi faith, he did not accept that he was active in that faith in Pakistan, nor that he was involved in the faith as a preacher. The Immigration Judge further noted that the petitioner’s actions once in the UK were not consistent with those of a genuine asylum seeker, that it was likely he had forged documents purporting to be from the Pakistani court authorities, and that he found the petitioner’s claims of persecution to be simply not credible.

The court noted that Immigration Rule 353 requires the decision maker to consider whether new submissions constitute a fresh claim for asylum, having not already been considered, and taken together with previously submitted material, create a realistic prospect for success, despite the earlier rejections.

The fresh evidence brought by the petitioner sought to vouch for the authenticity of the allegedly forged documents noted above. The Secretary of State found that the documents submitted, while not having been considered before, did not result in a realistic prospect for success in a fresh claim of asylum, as a result of the Immigration Judge additionally finding all other aspects of the petitioner and his claim uncredible. The court agreed with this reasoning, noting that there was nothing to suggest the Immigration Judge would take a different view on credibility than that which he had already taken. The issue of the apparent falsity of the documentation relied on was only one amongst many points which were decided unfavourably for the petitioner. Petition dismissed.

HJ (Iran) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) and one other action, [2010] UKSC 31

Thu, 08 Jul 2010 18:56:56 GMT

HJ and HT are homosexual men – from Iran and Cameroon, respectively – who seek asylum in the United Kingdom on the basis that they would face the risk of persecution on grounds of sexual orientation if returned to their home countries.

The Supreme Court unanimously allows the appeal, holding that the ‘reasonable tolerability’ test applied by the Court of Appeal is contrary to the Convention and should not be followed in the future. HJ and HT’s cases are remitted forreconsideration in light of the detailed guidance provided by the Supreme Court.

HK, SK, HK and GCS v. Secretary of State for the Home Department [2010] CSIH 30

Wed, 14 Apr 2010 12:24:53 GMT

In this action the appellants are citizens of Pakistan, Sikhs, and members of the same family. The first, second and third appellants arrived in the United Kingdom on 4 December 2006. The fourth appellant arrived three days later. They all claimed asylum in January 2007 and their applications were refused the following month. Under section 82(1) of the Nationality, Immigration and Asylum Act 2002 they appealed to the Asylum and Immigration Tribunal. On 22 May 2007 the appeals were refused by the Designated Immigration Judge. On 29 June 2007 a Senior Immigration Judge ordered reconsideration. With the consent of parties, he decided that the Immigration Judge had made a material error of law and the reconsideration was heard at a fresh hearing before a second Designated Immigration Judge. On 30 May 2008 he refused the appeals and Leave to appeal was refused by the Tribunal but was granted on appeal. Here the court considered the four applications for asylum separately rather than together as it appears had occurred previously. The second Designated Immigration Judge set out the main issue of the claim:- "Crucially, they say that on or around 28 November 2006 a neighbour warned them that Islamist fanatics were enraged over a false accusation that one or more members of the family had desecrated the Koran at or near the family home. The fanatics were about to leave the mosque and attack the family home...The Appellants all claim to be at real risk on return of persecution because they are Sikhs”. Here the court considered whether the second Designated Immigration Judge adequately addressed the material issues, in particular, whether a proper assessment of the objective evidence and the issues of sufficiency of protection and internal relocation had been dealt with. In addition, the court considered whether the immigration judge erred in dealing with the appeals on the basis that all that was in issue was a claim of persecution by reason of being Sikhs or whether there were other factors which the immigration judge should have had regard to.

R (on the application of JS) (Sri Lanka) (Respondent) v. Secretary of State for the Home Department (Appellant), [2010] UKSC 15

Thu, 25 Mar 2010 15:00:38 GMT

The respondent is a Sri Lankan Tamil. In 1992, at the age of 10, he became a member of the Liberation Tigers of Tamil Eelam (“LTTE”), the following year joining the LTTE’s Intelligence Division. He occupied various positions of responsibility and gained promotions within the organisation. At 18 he was appointed to lead a mobile unit transporting military equipment and other members of the Intelligence Division through jungles to a point where armed members of the Division could be sent in plain clothes to Colombo. He continued to do this for some three years from September 2000 until early 2004 except for some two and a half months where he was appointed one of the chief security guards to the Intelligence Division’s leader, whom he accompanied as a trusted aide on visits to the LTTE District Leader and other prominent LTTE members. From early 2004 he served as second in command of the combat unit of the Intelligence Division. In October 2006 he was sent incognito to Colombo to await further instructions.

In December 2006 the respondent learned that his presence in Colombo had been discovered by the Sri Lankan government and his LTTE membership known. On 7 February 2007 he arrived in the UK and two days later applied for asylum on the basis that if he returned to Sri Lanka he would face mistreatment due to his race and LTTE membership.

The respondent’s application for asylum was refused by the Secretary of State (“SoS”) in September 2007 solely by reference to article 1F(a) of the Refugee Convention. It states that a person is not to be recognised as a refugee where “there are serious reasons for considering that (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes”.

In his decision letter the SoS referred to the case of Gurung [2002] UKIAT 04870 (starred), which the SoS considered was authority for the proposition that voluntary membership of an extremist group could be presumed to amount to personal and knowing participation, or at least acquiescence amounting to complicity in the crimes in question. The SoS was of the view that the respondent’s own evidence showed voluntary membership and command responsibility within an organisation that has been responsible for widespread and systemic war crimes and crimes against humanity, such that there were serious reasons for considering that the respondent was aware of and fully understood the methods employed by the LTTE.

The respondent sought judicial review of the SoS’s decision. The Court of Appeal quashed the SoS’s decision. The Court of Appeal held that as it was the design of some members of the LTTE to carry out international crimes in pursuit of the organisation’s political ends, the SoS acted on a wrongful presumption that the respondent, as a member of the LTTE, was guilty of personal and knowing participation in such crimes. He should have considered whether there was evidence affording serious reasons for considering that he was party to that design, that he had participated in a way that made a significant contribution to the commission of such crimes and that he had done so with the intention of furthering the perpetration of such crimes. The SoS appealed the decision.

BA (Nigeria) (FC) (Respondent) v Secretary of State for the Home Department (Appellant) & Ors; PE (Cameroon) (FC) (Respondent) v Secretary of State for the Home Department (Appellant) (Consolidated Appeals), [2009] UKSC 7

Tue, 05 Jan 2010 12:57:48 GMT

Supreme Court Press Summary – 26 November 2009

Background to the appeal
BA and PE were each served a deportation order after unsuccessful appeals on human rights and asylum grounds against the decision to deport them. Both unsuccessfully made further submissions to the Secretary of State in an attempt to have the order revoked. They then applied to judicially review the decision not to revoke the deportation order, maintaining that their removal from the United Kingdom would be in breach of their human rights. (Paras [3]-[5])

This appeal concerns whether, once a claimant has had his appeal against a decision of the Secretary of State determined, he can make another appeal in-country on the same grounds which were rejected on the earlier occasion. The Secretary of State argued that a repetitive claim did not fall within section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002, which provides for an in-country appeal where the claimant has made “an asylum claim, or a human rights claim” whilst in the UK. The Secretary of State argued that where, as in BA’s case, further representations have not been advanced as a fresh claim as defined under rule 353 of the Immigration Rules, or, as in PE’s case, have not been accepted as such by the Secretary of State, they can only be considered out of country and that there is no obstacle to the deportations. (Paras [8]; [13]-[15])

Judgment
The appeal by the Secretary of State is dismissed by a majority of four to one. A claim for asylum which has been rejected should be allowed to proceed to appeal in-country under sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002, unless it has been certified as clearly unfounded under section 94 or excluded under section 96. This should be so whether or not the Secretary of State has accepted it as a fresh claim. (Paragraph [32]) Lord Hope gave the majority judgment of the Court. Lady Hale dissented.

Reasons for the judgment
· Lord Hope considered the phrase “an asylum claim, or a human rights claim” in s 92(4)(a) in the context of the 2002 Act as a whole and rejected the Appellant’s argument that the Supreme Court should follow the interpretation in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768. In Onibiyo, “claim” in the context of the 1993 Act was held to mean a first claim, or a second or subsequent claim which has been accepted as a “fresh claim” by the Secretary of State, but not a claim which is repetitious. Lord Hope determined that whilst the 2002 Act uses substantially the same words as the 1993 Act, the statutory system is markedly different given the addition of a range of powers enabling the Secretary of State or immigration officer to deal with repetitious claims. No inference was drawn from the amendment of s 113 by s 12 of the Immigration, Asylum and Nationality Act 2006 as it is not yet in force. (Paras [25]-[29]; [44]– [46])
· In a case such as this where no certification has been given under s 94 (providing for the exclusion of appeals that are clearly unfounded) or s 96 (removing the right of appeal if the claim raises an issue which has been or ought to have been dealt with in an earlier appeal), there is no need to impose a further requirement which is not mentioned elsewhere in the 2002 Act, namely that the words “a…claim” exclude a further claim which has not been held under rule 353 to be a fresh claim. (Para [29])
· The Appellant’s construction risks undermining the beneficial objects of the Refugee Convention, as it would exclude, by s 95, claims which the Secretary of State considers not to be fresh claims from the ground of appeal in s 84(1)(g), when claims which are certified as clearly unfounded under s 94 would still be given the benefit of that section. (Section 84(1)(g) provides for an appeal where removal would place the UK in breach of its international or human rights obligations.) (Paras [30]–[32]; [47])
· Rule 353 does not affect the operation of the legislative scheme, which provides the complete code for dealing with repeat claims. (Para [33])

Lady Hale, dissenting, would have allowed the appeal.
· Lady Hale concluded “a…claim” in s 92(4)(a) of the 2002 Act ought to be given the same meaning ascribed to the phrase in the 1993 Act in Onibiyo. There was no need for it to be defined in the 2002 Act given it had already been judicially interpreted. (Paras [39]–[40]) The addition of sections 94 and 96 should not be taken to mean that Parliament had abandoned the old meaning of “claim” without expressly saying so, particularly as the additional sections are not apt to cater for repetitious claims. (Paras [41]–[42])
· Lady Hale disagreed that the Appellant’s construction would undermine the UK’s international obligations. A person who presents a repeat claim on asylum or human rights grounds has already enjoyed the right of appeal on these grounds within this country. The current system allowing for an initial decision followed by an appeal system in the UK is sufficient compliance with those obligations. (Paras [42]-[43])

M.E. v. The Secretary of State for the Home Department [2009] CSOH 156

Thu, 26 Nov 2009 21:42:04 GMT

Application for Leave to Appeal:- On 20 November 2006 the applicant, an Iranian national who had fled from there, entered the United Kingdom. The applicant claimed asylum and breach of his protected rights under the European Convention on Human Rights and on 24 January 2007 the respondent refused his application. The applicant exercised his right of appeal which was rejected by the Asylum and Immigration Tribunal in a decision dated 21 June 2007. The applicant successfully applied for reconsideration of that decision by the Tribunal and on 15 October 2007 a Senior Immigration Judge decided that the original Tribunal had made no material error of law in reaching its decision of 21 June 2007 and that there was no basis for interfering with it. This was an application for leave to appeal against that decision of the Asylum and Immigration Tribunal refusing the applicant leave to appeal against a decision of the Tribunal dated 15 October 2007. On 21 June 2007 the Immigration Judge rejected the applicant's account and although he noted that there was medical evidence before him which confirmed that the applicant bore scars that were consistent with his account that he had been subject to serious ill treatment whilst he was in detention he concluded that the medical evidence did not provide any significant support for the applicant's claim. It was submitted on behalf of the applicant that the Immigration Judge had failed to consider the medical evidence properly and had been coloured by his assessment of the applicant's credibility and the doctor's opinion. It was submitted on behalf of the respondent that the Immigration Judge had made no error of law in relation to the medical evidence and even if the Senior Immigration Judge was right to hold that the original Immigration Judge had made an error of law, that error had no impact on his decision. Here the court considered whether the original Immigration Judge made an error of law in relation to his treatment of the medical evidence and whether the application for leave to appeal should be granted.

A.B. v. The Secretary of State for the Home Department [2009] CSIH 50

Thu, 18 Jun 2009 06:58:00 GMT

Application for leave to appeal against a decision of an Immigration Judge of the Asylum and Immigration Tribunal under Section 103B of the Nationality, Immigration and Asylum Act 2002:- The appellant, an Iranian man born on 12 September 1971, entered the United Kingdom illegally on 1 February 2005 and sought asylum the following day. On 4 April 2005 the respondent decided that the appellant had not established a well-founded fear of persecution and that he did not qualify for asylum and concluded that the appellant's removal from the United Kingdom would not be contrary to the United Kingdom's obligations under the European Convention on Human Rights and Fundamental Freedoms. The appellant appealed against those decisions to the Asylum and Immigration Tribunal. That appeal was heard by an Immigration Judge, who dismissed the appeal on 1 June 2005. The appellant sought a reconsideration of that decision in terms of Section 103(A) of the 2002 Act by a senior Immigration Judge, who determined that the original tribunal did not make a material error of law and that the original determination of the appeal should stand, in a decision on 3 August 2006. The appellant sought permission from the Asylum and Immigration Tribunal to appeal to the Court of Session, but leave was refused in a determination dated 1 September 2006. Here the appellant sought leave to appeal in terms of Section 103B(3)(b) of the Nationality, Immigration and Asylum Act 2002. Here the court considered whether leave to appeal should be granted.

Petition of W.O. for Judicial Review [2009] CSOH 75

Tue, 02 Jun 2009 03:17:00 GMT

The petitioner, a Nigerian national born 25 May 1980, sought judicial review of a decision of the Secretary of State for the Home Department dated 7^{th August 2008 to refuse to treat the petitioner's representations based on further information as a fresh claim for asylum. The petitioner had arrived in the UK on 30 January 2006 and claimed asylum and breach of her human rights on 2 February 2006 which was refused on 11 May 2005. The petitioner appealed and an immigration judge dismissed the appeal in August 2007. On 8 April 2008 the solicitors of the petitioner wrote to the respondent advising that the petitioner wished to lodge a fresh claim for asylum and human rights in terms of paragraph 353 of the Immigration Rules on the basis that she had significant new evidence. In response, on 8 April 2008, an official of the Home Office UK Border Agency, acting on behalf of the respondent, considered inter alia the further information and by a letter dated 7 August 2008 advised that the submissions did not amount to a fresh claim. In this petition for judicial review the petitioner claimed the respondent made her decision under error of law and sought reduction of the decision of 7 August 2008. It was submitted on behalf of the petitioner that the cumulative effect of the three items of further information was important and, taken together, the respondent erred and was not entitled to reach the view that the further information, which had not been considered, did not satisfy Rule 353 and that there was a fresh claim. It was submitted that the respondent had erred in law because of a failure to approach the matter taking into account the cumulative effect of the information. Further, it was submitted that the petitioner had developed a private and family life and a claim for the protection of Article 8 of the Convention of Human Rights 1950 was made.}

Rashpal Singh for Judicial Review

Fri, 29 May 2009 05:12:00 GMT

Petition for Judicial Review of a Decision of the Secretary of State for the Home Department dated 20 January 2009:- The petitioner arrived in the United Kingdom in July 2000 and claimed asylum which was refused on 16 May 2001 and an appeal was dismissed on 22 January 2002. His application for permission to appeal to the Tribunal was refused in March 2002. The petitioner was found on 1 March 2007 working at the Rupee Room in Ayr and stated his name as Rashpal Singh, born 8 July 1979. Subsequent Police checks revealed that the petitioner was wanted for three criminal offences and was due to appear at Glasgow Sheriff Court on 2 March 2007 but failed to appear. On 18 May 2007, a warrant was issued for his arrest. He was supposed to report on a weekly basis to the UK immigration authorities but had failed to do so since the middle of April 2007. He resisted as an absconder on 6 September 2007 and was arrested on 9 January 2009 following an enforcement visit to the Cinnamon Club, Cambuslang, Glasgow. On 20 January 2009, the Secretary of State directed that the petitioner be removed from the United Kingdom on 30 January 2009 after the Secretary of State determined that the further submissions made on behalf of the petitioner did not amount to a fresh Human Rights claim. Here the petitioner sought judicial review of that decision on the basis that the decisions were unlawful.

Kishor Dongol for Judicial Review

Fri, 29 May 2009 04:18:00 GMT

Petition for Judicial Review of a Decision of the Secretary of State for the Home Department dated 12 December 2008:- The petitioner arrived in the United Kingdom on 27 August 1999 as the holder of a work permit valid until 5 September 1999. He failed to leave the country on the expiration of that permit and was subsequently found working illegally at the Amritsar restaurant in Kirkcaldy on 13 October 2001. Having been served with illegal entry papers he claimed asylum on 17 October 2001. That claim was refused on 2 August 2002 and his appeal rights were exhausted on 1 May 2003. An application for leave to remain as a student was submitted on 23 March 2004 and refused on 19 March 2005. On 2 October 2005 he was again found working illegally in the Amritsar restaurant and was arrested and detained. On 4 October 2005 a fresh asylum application was made. On 26 October 2005 a decision refusing to treat this as further representations was made and removal directions were set for 4 November 2005. Following a petition for judicial review removal directions were cancelled and he was released on bail on 5 November 2005. On 22 September 2006 the pettioner was given an indication that his representations were accepted as amounting to a fresh asylum claim. That claim was refused on 12 April 2007 and his appeal rights were exhausted on 24 July 2007. On 4 March 2007 the petitioner was found for a third time working illegally at the Amritsar restaurant. The petitioner was advised that he had failed to provide any sufficiently compelling or compassionate circumstances to justify allowing him to remain in the UK outside of the immigration rules. On 2 June 2008 he applied to the IOM for assistance to return to Nepal but failed to follow up that interest and the offer of assistance was withdrawn on 6 October 2008. Further representations were made on 19 November 2008 and by a decision dated 12 December 2008 the Secretary of State for the Home Department refused to treat those representations as a fresh claim for asylum. Here the petitioner sought judicial review of that decision on the basis that over the nine years the petitioner had been in the United Kingdom he had built up a sufficiently strong private life in the United Kingdom to make his removal from the United Kingdom disproportionate and in breach of Article 8 of the European Convention of Human Rights. On behalf of the petitioner it was submitted that the Secretary of State had erred in:-(1) failing to weigh the extent of the petitioner's private life; (2) failing to take account of alleged delay in dealing with the petitioner's case; (3) failing to take account of the fluctuating situation in Nepal as a relevant factor which might weigh with an Immigration Judge; and (4) failing to consider whether an Immigration Judge might make different findings.

Odelola (FC) (Appellant) v Secretary of State for the Home Department (Respondent), [2009] UKHL 25

Wed, 20 May 2009 14:13:00 GMT

This case turns on the construction of the Statement of Changes in Immigration Rules 2006, which came into force on 3 April 2006. Until then, a foreigner with any medical qualification was entitled to apply for leave to remain in the UK as a postgraduate doctor. The new rule confined the entitlement to those with medical qualifications from UK institutions. Did the new rule apply to all cases in which leave still had to be granted? Or only to doctors who had not yet applied? The distinction was vital to the appellant Dr Odelola, whose qualification was gained in Nigeria. She had applied on 17 January 2006 but when the new rule came into force her application had not yet been determined.

The House unanimously dismissed the appeal. Taken together, the wording of the 2006 Statement and the effect and wording of para 4 of the Immigration Rules 1994 established that the 2006 Statement did extend to existing applications, notwithstanding the unfairness of that result in relation to some such applications. The natural meaning of the language of the 2006 Statement, when read together with para 4 of the 1994 Rules, was too strong to be rebutted by the comparatively slight, albeit real, unfairness which resulted in some cases (including that of the appellant) if the 2006 Statement did extend to current applications.

A.A.H. v. Secretary of State for the Home Department [2009] CSIH 38

Thu, 14 May 2009 10:28:00 GMT

This was an application for leave to appeal under Section 103(b) of the Nationality Immigration and Asylum Act 2002 against a decision of the Asylum and Immigration Tribunal, dated 17 September 2007, which refused leave to appeal against a decision of the Tribunal dated 4 July 2007. The applicant had fled from the Sudan to the United Kingdom on 21 November 2005 and applied for asylum here. The Secretary of State for the Home Department rejected the application and he appealed to an Immigration Judge who rejected his appeal by a decision dated 27 June 2006. The applicant requested reconsideration of this decision and a Senior Immigration Judge indicated that he agreed there had been a material error in law and invited parties to agree to a full reconsideration of the case. The case was accordingly remitted for a full reconsideration hearing before the Tribunal presided over by two designated Immigration Judges, which took place on 13 June 2007. Their decision was issued on 4 July 2007 when they dismissed the applicant's appeal. Here it was submitted the Tribunal erred in law:- (1) because their reasons for concluding that evidence in regard to a list of detainees published by Amnesty International was an aspect of the evidence which they found to be adverse to the applicant's credibility; (2) because it was not open to them to conclude from evidence in regard to the circumstances in which the applicant was detained that the submissions of the applicant were confused and contradictory and no reliance could be placed upon them; and (3) these errors of law rendered the conclusions reached in the other parts of the Tribunal's consideration evidence unsafe. Here the court considered whether the Tribunal had made any error of law.

A.S.D. for Judicial Review of the Secretary of State for the Home Department [2009] CSOH 60

Thu, 07 May 2009 08:22:00 GMT

Here the petitioner, a 29 year old Sudanese national, sought judicial review of a decision of the Secretary of State for the Home Department dated 25 May 2007 certifying that the petitioner had no right of appeal in relation to claims for asylum and violation of his ECHR rights. The petitioner arrived in the UK on 22 September 2004 and claimed asylum and violation of his ECHR rights. His claims were rejected and he appealed to an Immigration Adjudicator who rejected his claim. The petitioner sought leave to appeal further, but his appeal was dismissed and his rights of appeal were exhausted on 4 August 2005. After August 2005, the petitioner became aware of fresh information and the petitioner submitted a fresh claim for asylum and violation of his ECHR rights relying on this fresh information and the respondent received and considered the petitioner's fresh claims. He rejected them in terms of a letter dated 25 May 2007. He certified in terms of section 96(1) of the Asylum and Immigration (Treatment, etc.) Act 2004 that the fresh claim relied on a matter which could have been raised in an earlier appeal and that there was no satisfactory reason why it had not been raised earlier. It was submitted on behalf of the petitioner that the respondent had erred in law, in particular, he sought reduction of the decision dated 25 May 2007 insofar as it certified in terms of section 96(1) that the petitioner had no right of appeal against that decision. Here the court considered whether the decision complained of was unlawful or irrational.

Secretary of State for the Home Department (Respondent) v Nasseri (FC) (Appellant), [2009] UKHL 23

Wed, 06 May 2009 12:52:00 GMT

Mr Nasseri is an Afghan national who crossed into Greece in Dec 2004 and claimed asylum. The application was rejected in April 2005. By then he may already have been on his way to the UK, which he entered in September 2005 concealed under a lorry. When detected he again claimed asylum.

Council Reg (EC) No 343/2003 (“the Dublin II Regulation”) provides in art.10 that if an asylum seeker has crossed the border from a third country into a Member State, that Member State, and only that Member State, shall be responsible for examining his application. Pursuant to the Reg, the Home Office asked the Greek authorities to accept responsibility for determining Mr Nasseri’s application. The Greek authorities agreed to do so and he was notified that he would be removed to Greece.

Mr Nasseri objected on the ground that there was a real risk that, if sent to Greece, he would be returned to Afghanistan to face inhuman or degrading treatment, contrary to art.3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The House of Lords unanimously dismissed Mr Nasseri’s ultimate appeal to the House. Lord Hoffmann stated that it may be that the asylum seeker would be entitled to say that the refusal of his application is contrary to European and Convention law and that his failure to remove himself is not unlawful. But the Secretary of State is not concerned with Greek law. Like the operation of the Greek system for processing asylum applications and the conditions under which asylum seekers are kept, that is a Greek problem. The Secretary of State is concerned only with whether in practice there is a real risk that a migrant returned to Greece will be sent to a country where he will suffer inhuman or degrading treatment. There was no evidence of such a risk.

Application for Leave to Appeal by K.B.O. [2009] CSIH 30

Thu, 09 Apr 2009 09:26:00 GMT

Application for Leave to Appeal under Section 103B of the Nationality Immigration and Asylum Act 2002:- On 2 December 2005 the appellant applied to the respondent for indefinite leave to remain in the United Kingdom. On 16 February 2006 the application was refused. The appellant appealed against that decision to the Asylum and Immigration Tribunal on the ground that the decision was unlawful under section 6 of the Human Rights Act 1998, as being incompatible with the appellant's Convention rights under Article 8 of the European Convention on Human Rights. The appeal was heard by an immigration judge and on 10 April 2006 the appeal was allowed. The respondent then applied for an order requiring the Tribunal to reconsider its decision on the appeal. That application was decided by a senior immigration judge and on 2 May 2006 the senior immigration judge ordered the Tribunal to reconsider its decision on the appeal, on the grounds set out in the respondent's application notice. The appeal was reconsidered by a senior immigration judge and a designated immigration judge. On 23 April 2007 they decided that the original Tribunal had made a material error of law, and substituted a fresh decision dismissing the appeal. The appellant then applied for leave to appeal under section 103B of the 2002 Act after permission was refused by the Tribunal. The senior immigration judges concluded that the immigration judge had erred in law by failing to address the second of the five questions by Lord Bingham of Cornhill in R. v. Secretary of State for the Home Department [2004] 2 AC 368, namely, "...will such interference have consequences of such gravity as potentially to engage the operation of article 8?..." Here it was submitted on behalf of the appellant that the senior immigration judges had no jurisdiction to consider an error of law which had not been identified in the order for reconsideration. Further, the court considered whether the immigration judge committed an error in law in relation to the second of Lord Bingham of Cornhill's questions and, if not, whether the original determination of the appeal should stand.

L.K. v. Secretary of State for the Home Department [2009] CSIH 20

Wed, 18 Mar 2009 14:54:00 GMT

Application for Leave to Appeal:- The appellant was a 41 year old woman from the Democratic Republic of Congo who claimed asylum on 18 October 2004. The claim was refused by the respondent on 28 November 2004. She appealed unsuccessfully to an Adjudicator, but a Senior Immigration Judge, and the Asylum and Immigration Tribunal ordered a reconsideration because it was held that the Adjudicator had:- (1) failed to set out the requisite standard of proof; (2) failed to deal with the background material on risk on return; and (3) failed to provide sufficient reasoning for rejecting certain documentary evidence produced by the appellant.The appellant's claim was reconsidered by two judges of the AIT on 30 January 2007. The appeal was refused and inter alia found that documents produced by the appellant were forgeries. Here the court was invited to treat the hearing as if it were one on the substantive merits of the appeal, even although this was only an application for leave to appeal. Four grounds of appeal were advanced the which all related to the Attestation de Confirmation which was provided by the appellant which purported to be a certificate of the appellant's membership of the "Union pour La Democratie et le Progres Social" signed by an acting general secretary of the party. It was submitted on behalf of the respondent that there was no discernible error of law in the AIT's Determination. Here the court considered whether there was any error of law in the AIT's Determination or whether there was any other substantial reason for leave to appeal being granted.

H.K. v. Secretary of State for the Home Department[2009] CSOH NUMBER35

Tue, 10 Mar 2009 17:25:00 GMT

The petitioner, an Iraqi national, arrived in the United Kingdom during 2000 and claimed asylum. He was granted indefinite leave to remain in the United Kingdom, however, was convicted at Plymouth Crown Court and sentenced to three years imprisonment and recommended for deportation. On 31 August 2007 the petitioner was due to be released, however, the respondent served him with a notice that she intended to make a deportation order and detained him under the Immigration Act 1971. Here the petitioner sought:- (1) declarator that the decision of the respondent to detain him on 31 August 2007 and continue his detention was unlawful, unreasonable and irrational; (2) reduction of that decision; (3) payment of a sum of damages; (4) liberation and liberation ad interim; and (5) such other orders as may seem to the court to be just and reasonable in all the circumstances of the case. It was submitted on behalf of the petitioner that the petition should be treated as an application for an interim remedy and the court should consider whether the petitioner had made out a prima facie case to the effect that his continued detention was unlawful and, if so, then consider whether he should be liberated on the basis of an assessment of the balance of convenience. It was submitted that interim liberation was a distinct remedy for which the petitioner was entitled to apply. Here the court considered whether the petitioner had set out a prima facie case to the effect that his continuing detention was unlawful and, if so, to consider the balance of convenience. In the event that the court considered that the balance of convenience favoured the petitioner and that the petitioner should be liberated a number of conditions aimed at managing the risks of the petitioner absconding and reoffending were considered.

ZT (Kosovo) (Respondent) v Secretary of State for the Home Department (Appellant), [2009] UKHL 6

Wed, 04 Feb 2009 21:52:00 GMT

In December 2005 the Secretary of State rejected the respondent’s asylum and human rights claims and certified that they were clearly unfounded under s.94(2) of the Nationality, Immigration and Asylum Act 2002. The respondent was then served with a decision under s.82(2)(h) to remove him from the UK as an illegal immigrant. Twice in 2006 he made further submissions in support of his claims. In November 2006, the Secretary of State maintained her certification of the claims under s.94. It was still open to the respondent to appeal under s.82(1) against the decision to reject his claims. But the effect of the s.94 certificates was that he could not do so while he remained in the UK. He could only bring an appeal under s.82(1) while he was out of the country. So he sought to challenge the certificates by bringing them under judicial review.

The Court of Appeal held that when she considered the further submissions, the Secretary of State had adopted the wrong procedure. She should have considered them under rule 353 and that, if she accepted them, the respondent would then have had an in-country right of appeal against their rejection as fresh claims under that rule. The Court of Appeal stated that the refusal letter should be quashed so that the renewed application could be considered under that rule.

The Secretary of State appealed to the House of Lords maintaining that this was a s.94 case, and that it was with reference to the test that that section laid down that the question whether her decision was sound or not should be considered.

The House of Lords unanimously allowed the appeal but on differing grounds. Per Lord Carswell, the sequence of consideration which the Secretary of State should have followed in a case such as this was (1) if she accepted that the further material now gave the claimant a valid claim to asylum, she should have reversed the previous refusal, with the consequence that the claimant could remain in the UK; (2) if she considered that the further material still did not give the claimant a valid claim to asylum, but satisfied the criteria for a fresh claim, she should have refused the claim, whereupon the claimant could pursue an appeal from within the UK against the refusal; (3) if she did not accept that the further material satisfied the criteria for a fresh claim, she should have rejected the submissions as further representations, leaving the s.94 certificate still standing.

However, in this case, if the Secretary of State had followed the correct procedure of considering the further material under rule 353, she would have reached just the same conclusion.

N.B.E. Against a Decision of the Asylum and Immigration Tribunal [2008] CSIH62

Tue, 02 Dec 2008 14:45:00 GMT

Application for Leave to Appeal:- On 7 May 2004 the appellant, an Eritrean national, applied for asylum in the United Kingdom. The Secretary of State for the Home Department refused to grant her asylum and she appealed to an adjudicator. The adjudicator was not persuaded that the appellant had any well-founded fear of persecution for a refugee convention reason and refused the asylum claim, however, he considered that there was a real risk that if the appellant were returned to Eritrea she might be maltreated in a way which would infringe her Article 3 ECHR rights and he allowed the appeal on human rights grounds. The Secretary of State then appealed to the Immigration Appeal Tribunal against the adjudicator's allowance of the human rights appeal. The Immigration Appeal Tribunal held that the adjudicator had made a material error of law and proceeded to allow the appeal by the Secretary of State reversing the adjudicator's decision. The issue in this appeal was whether the error claimed in the Secretary of State's grounds of appeal, and subsequently accepted by the Immigration Appeal Tribunal, was properly a material error of law. The grounds of appeal by the Secretary of State were:- "(1) the objective evidence ...does not demonstrate a real risk or reasonable likelihood of mistreatment contrary to Article 3 of the ECHR ...The adjudicator has thus applied the wrong standard of proof in allowing this appeal; (2) The adjudicator inferred at paragraph 52 that returnees to Eritrea face a real risk of article 3 mistreatment. It is submitted that this inference is unsupported by the objective evidence; (3) ...the adjudicator has not explained why the claimant would face any risk of Article 3 mistreatment on her return to Eritrea; and (4) ...the adjudicator has erred in law and that the approach of the Tribunal in SE Eritrea [2004] 00295 is to be preferred." It was submitted on behalf of the appellant that the conclusion which the adjudicator reached was one which he was entitled to reach. On behalf of the respondent it was submitted that the adjudicator had failed to give adequate reasons for considering that this appellant was at risk. Here the court considered whether the adjudicator, in dealing with the appellant's claim, committed an error of law.

Zalewska (AP) (Appellant) v Department for Social Development (Respondents) (Northern Ireland), [2008] UKHL 67

Wed, 12 Nov 2008 14:12:00 GMT

The appellant is a national of the Republic of Poland. She came to Northern Ireland for the purpose of seeking employment in July 2004. From July 2004 to January 2005 she worked for Monaghan Mushrooms Ltd. She applied for a registration certificate under reg 8 of the Accession (Immigration and Worker Registration) Regulations 2004 which she received in November 2004.

In January 2005, the appellant left Monaghan Mushrooms and secured work with two other employers (Smirnoff and Linwoods) until July 2005 at which time she stopped working. By that date she had worked for an uninterrupted period of 12 months. However, she had not applied for a registration certificate in connection with her employment either with Smirnoff (which did not matter as she was with them for less than a month) or with Linwoods (which did matter once her initial period of one month had been completed). The end result of not working for an authorised employer was that she no longer had a right of residence.

The appellant applied for income support. Her claim was disallowed on the ground that she had no right to reside in the UK. She appealed to a Social Security Appeal Tribunal which allowed her appeal on the ground that income support was a social advantage and that the Income Support Regulations discriminated against her.

The respondent appealed to the Social Security Commissioner. The Commissioner allowed the appeal and set aside the decision of the tribunal. The appellant then appealed to the Court of Appeal in Northern Ireland by way of case stated. The Court of Appeal upheld the decision of the Commissioner. The appellant had failed to satisfy the requirements of the 2004 Regulations. They had a national legal basis which was consistent with the right given to member states. The appellant had been unable to demonstrate that the registration scheme lacked rationality or proportionality. So she was not entitled to the benefit.

The appellant appealed to the House of Lords. The central issue was whether the registration requirements in the 2004 Regulations were compatible with Community law. The appellant argued that she was entitled to the same social and tax advantages as workers who were nationals of the UK. If this argument was right, any failure to comply with the registration requirements would have to be disregarded. Her second argument was that the right to reside test was unnecessary and disproportionate.

The House of Lords, by a majority of 3:2, dismissed the appeal and affirmed the decision of the Security Commissioner. The requirement to register, and more particularly the adverse consequences of non-registration, were not disproportionate so as to invalidate the scheme.

EM (Lebanon) (FC) v Secretary of State for the Home Department (Respondent), [2008] UKHL 64

Wed, 22 Oct 2008 13:29:00 GMT

The appellant EM is a Lebanese national. She came to this country in December 2004 with her son AF, the second intervener, who is now aged 12. She claimed asylum.

EM married in Lebanon but later divorced her husband because of his violence. Under the prevailing law the father retained legal custody of AF, but the divorce court ruled that the child should remain in EM’s care until he reached the age of seven. Thereafter, Islamic law as applied in Lebanon entitled the father to require that physical custody should be transferred to himself or to a male member of his family.

When AF was approaching the age of seven, EM managed to leave the country for the UK to avoid having the child taken from her. It appears that, if she returned to Lebanon, she would be at risk of imprisonment on a charge of kidnapping AF.

EM’s application for asylum was refused by the Secretary of State. He rejected her claim under art. 8 of the ECHR, ruling that she had not demonstrated a real risk of mistreatment such as to engage art. 8. It was not accepted that she would be unable to obtain a reasonable, fair and impartial administration of her case in both the religious and civil courts.

EM appealed. The Immigration Judge found that EM did not have a well-founded fear of persecution for a (Refugee) Convention reason, and so rejected her asylum claim. He also held that she could not choose where she wished to lead her life, and that her removal would not engage art. 8.

On an application for reconsideration of this decision, a Senior Immigration Judge thought it arguable that inadequate consideration had been given to whether removal would violate EM’s human rights and (perhaps) those of AF, if those were justiciable. He was also troubled at the prospect that the case had to be considered on the basis of EM’s rights, paying scant regard to those of AF. He acknowledged the difficulty of ruling on the best interests of AF in the absence of the father. He was also concerned about certain aspects of the asylum claim. He ordered reconsideration.

The matter then came before the Asylum and Immigration Tribunal. The AIT first considered, and rejected, EM’s asylum claim. With reference to her claim under art. 8, the AIT referred to recent decisions of the House which established that EM could only succeed if she could show that the country to which she was to return had a flagrant disregard for the rights protected by art. 8. On the material before the AIT, it held that this was clearly not so.

EM’s appeal to the Court of Appeal was also rejected. Although the Court held that EM’s art. 8 right would be flagrantly violated if she were returned to Lebanon, it felt unable to conclude that her right would be completely denied or nullified.

EM appealed to the House of Lords. The House unanimously allowed her appeal, set aside the orders below and quashed the Secretary of State’s decision. The House held that it was clear that on return to Lebanon, both EM’s and AF’s right to respect for their family life would not only be flagrantly violated but would also be completely denied and nullified. The House noted that the Court of Appeal and the courts below were disadvantaged by the absence of representations on behalf of AF. The hearing before the House had underscored the importance of ascertaining and communicating to the court the views of a child such as AF.

Helow (AP) (Appellant) v Secretary of State for the Home Department and another (Respondents) (Scotland), [2008] UKHL 62

Wed, 22 Oct 2008 10:47:00 GMT

The appellant is a Palestinian by birth. The appellant claimed asylum in this country on a number of grounds. Her application was refused by the Home Secretary and, on appeal, by an adjudicator. The appellant was refused leave to appeal by the Immigration Appeal Tribunal. She then lodged a petition in the Court of Session seeking a review of that refusal under s.101 of the Nationality, Immigration and Asylum Act 2002. The petition was considered by Lady Cosgrove who dismissed it.

The appellant made no criticism of Lady Cosgrove’s reasons for dismissing her petition. Instead, in a petition to the nobile officium, she craved the court to set aside Lady Cosgrove’s interlocutor on the ground that it was vitiated for “apparent bias and want of objective impartiality".

The Extra Division of the Inner House of the Court of Session refused the prayer in the appellant’s petition. The appellant appealed to the House of Lords.

The appellant did not suggest that the judge could not be impartial merely because she was Jewish. Rather, the contention was that, by virtue of her membership of the International Association of Jewish Lawyers and Jurists (“the Association”), Lady Cosgrove gave the appearance of being the kind of supporter of Israel who could not be expected to take an impartial view of a petition for review concerning a claim for asylum based on the petitioner’s support for the Palestinian Liberation Organisation and involvement in certain legal proceedings against Mr Sharon.

The House of Lords noted that the legal test to be applied was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

The appellant’s arguments centred around Lady Cosgrove’s membership to the Association, various articles in the Association’s journal (which, inter alia, contained criticisms of the legal proceedings against Mr Sharon) and the views of fellow members of the Association.

The House of Lords unanimously dismissed the appeal. It was satisfied that the fair-minded and informed observer would not impute to Lady Cosgrove the published views of other members, by reason only of her membership of the Association. Further, it dismissed the argument that the observer would think that, by reading the Association’s Journal, Lady Cosgrove might have absorbed the more extreme views expressed in its pages by a process of osmosis.

R (on the application of M) (FC) (Respondent) v Slough Borough Council (Appellants), [2008] UKHL 52

Wed, 30 Jul 2008 16:48:00 GMT

The issue before the House is whether a local social services authority is obliged, under s.21(1)(a) of the National Assistance Act 1948, to arrange (and pay for) residential accommodation for a person subject to immigration control who is HIV positive but whose only needs, other than for a home and subsistence, are for medication prescribed by his doctor and a refrigerator in which to keep it. The answer to that issue turns on the meaning of the words “in need of care and attention which is not otherwise available to [him]” in s.21(1)(a). But there is also an issue as to whether, if he does need care and attention, that need arises solely because of his destitution, in which case s.21(1A) provides that the local authority is not obliged to accommodate him. If the local authority is not so obliged, it is common ground that, in this particular case, his needs for housing and subsistence will be met by the National Asylum and Support Service.

The local authority took the view that the respondent was not owed any duty under s.21(1)(a) of the 1948 Act because he had no current need for care and attention and that if later such a duty did arise, it would be excluded by s.21(1A) because the need would arise solely from his destitution.

The respondent challenged the local authority’s decision and the authority was ordered to provide him with accommodation. The respondent’s application for judicial review was then granted. Mr Justice Collins held that in his view, the fact that medication and regular medical attention were required was sufficient to show a need for care and attention. That need arose from a combination of destitution and illness and not solely from destitution. The Court of Appeal dismissed the local authority’s appeal. Care and attention could extend to the provision of shelter, warmth, food and other basic necessities. If the need was made “more acute” by some other circumstances than mere lack of accommodation and funds, it did not arise “solely” from destitution and the local authority was responsible. The local authority appealed to the House of Lords.

The House of Lords unanimously allowed the appeal and set aside the order quashing the local authority’s decision. Baroness Hale of Richmond stated that s.21(1)(a) requires that the person is in need of care and attention. So that the primary focus is to be on the present rather than future needs. Although the respondent was HIV positive, his medical needs were being catered for by the NHS. So even if they did amount to a “need for care and attention” within the meaning of s.21(1)(a), he would not qualify. In any event, she did not think that his medical needs amounted to a “need for care and attention”. She noted that there may come a time when his medical needs did amount to such a need but that people with HIV can live normal lives for many years as would hopefully be the case with the respondent.

AL (Serbia) (FC) (Appellant) v Secretary of State for the Home Department; R (on the application of Rudi) (FC) (Appellant) v Secretary of State for the Home Department, [2008] UKHL 42

Wed, 25 Jun 2008 11:32:00 GMT

In October 2003, the Home Secretary, announced a one-off exercise to clear some long-standing asylum cases off the books by giving the claimants indefinite leave to remain in this country. Those who were given this indefinite leave were families with children who had claimed asylum before 2 October 2000 and who were still living here as a family unit in October 2003. The appellants were among those who did not benefit from this indefinite leave as, although they had arrived here as children and had claimed asylum before 2 October 2000, they were not part of a family unit. The appellants claimed that to treat them less favourably than other people who arrived here as children, simply because they had no parents or children of their own in this country, was unlawful discrimination, either under the Human Rights Act or at common law.

Both appellants claimed that they have been the victims of discrimination contrary to art.14 of the ECHR. Mr Rudi additionally claimed that the decision to remove him was irrational on ordinary judicial review principles as well as contrary to the common law principle that like cases must be treated alike.

Article 14 provides, “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The issue in both cases was essentially one of proportionality.

The House of Lords noted that eligibility for the indefinite leave was not extended to young adults who were not living as part of a family because this was not where the problem was thought to lie in clearing the backlog. Essentially, (1) the Secretary of State’s policy was devised as a solution to pressing administrative and financial problems in the sphere of immigration control; (2) the fact that the appellants were treated differently fell within the discretionary area of judgment that belonged to the executive; and (3) there was nothing to indicate that single young adults were being targeted for unfavourable treatment just because of what they were. It was the fact that the group to which they belonged was not seen to create a problem in the clearing of the backlog that was decisive in their case.

The House of Lords held that both appeals should be dismissed.

Beoku-Betts (FC) (Appellant) v Secretary of State for the Home Department (Respondent), [2008] UKHL 39

Wed, 25 Jun 2008 07:34:00 GMT

The appellant is a citizen of Sierra Leone, who in 1997, arrived in the UK from Senegal following a military coup in Sierra Leone. Initially he was granted 12 months’ leave to enter as a student. Having completed his A-levels he began to study law at university, obtaining the necessary extensions of leave until December 2000 when his final leave expired.

The appellant’s elder sister is a British citizen and has lived here continuously since 1993. His father registered as a British citizen in May 1998 but died in December 1998. Under the immigration policy then in force, the appellant’s mother and Candace (the appellant’s younger sister), as dependants, were both granted indefinite leave to remain. The appellant was unable to benefit from the policy.

In June 2001 (shortly after discovering that his leave had expired) the appellant claimed asylum and also the right to remain under arts. 3 and 8 of ECHR. In February 2002, the Secretary of State refused both claims. The appellant appealed.

In January 2003, the adjudicator dismissed the appellant’s asylum appeal but allowed his human rights appeal on the art.8 ground. When considering the human rights appeal, the adjudicator placed considerable importance on the relationship between the appellant and his family members.

In September 2003, the Immigration Appeal Tribunal allowed the Secretary of State’s appeal, the grounds of which were that the adjudicator has placed too much emphasis on the position of the respondent’s mother and siblings.

In November 2003, the Immigration Appeal Tribunal gave leave to appeal to the Court of Appeal on one ground only, namely as to the extent to which the position of the claimant’s family members was to be taken into account.

In June 2005, the Court of Appeal held that the adjudicator had allowed his judgment to be affected unduly by the effect of removal on the remainder of the family in particular his mother. Further, the adjudicator did not suggest that the effect on the family, let alone the appellant, amounted to an exceptional circumstance.

The appellant appealed to the House of Lords. He argued that the legislation allowed, indeed required, the appellate authorities, in determining whether the appellant’s art.8 rights had been breached, to take into account the effect of his proposed removal upon all the members of his family unit. Together those members enjoyed a single family life and whether or not the removal would interfere disproportionately with it had to be looked at by reference to the family unit as a whole and the impact of removal upon each member. If overall the removal would be disproportionate, all affected family members were to be regarded as victims.

The appellant went on to argue that, in making her initial decision on removal, the Secretary of State must necessarily have regard to the art.8 rights of each and all of the family members. So too the European Court of Human Rights on a complaint by the family of an art.8 violation by the UK’s removal of a family member would look at the overall impact on family life. So too, therefore, should the immigration appeal authorities consider the matter on appeal. Otherwise, other family members would have no alternative but to bring separate proceedings under s.7 of the Human Rights Act 1998, parallel or sequential to the s.65 appeal.

The Secretary of State argued that the wording of the legislation was clear and restrictive. Both s.65 of the Immigration and Asylum Act 1999 and s. 84 of the Nationality, Immigration and Asylum Act 2002 referred repeatedly to the appellant’s human rights and to no one else’s. The appellate authorities must decide whether his human rights would be breached, whether removal would be compatible with his Convention rights.

The House of Lords held (unanimously) that the appeal should be allowed. They therefore set aside the decisions of the Court of Appeal and the Immigration Appeal Tribunal and reinstated the adjudicator’s determination in the appellant’s favour. The House of Lords noted that in previous cases it had been decided that, “there is only one family life". Assuming the appellant’s proposed removal would be disproportionate looking at the family unit as a whole then each affected family member was to be regarded as a victim. Accordingly, s.65 seemed comfortably to accommodate the wider construction.

Petition of A.A. for Judicial Review [2008] CSOH 83

Tue, 03 Jun 2008 10:44:00 GMT

Judicial Review:- In this action the petitioner, a 26 year old Iraqui Kurd, sought judicial review of a decision of the Secretary of State intimated by letter dated 24 April 2007 refusing the petitioner's application for Indefinite Leave to Remain made on 25 August 2006. In January 2001 the petitioner left Iraq to escape persecution by the Islamic Movement. He entered the United Kingdom, illegally, on 17 February 2001 and his claim for asylum was refused by the Secretary of State on 29 March 2001. The petitioner appealed against that refusal. On 27 January 2003 an Immigration Judge refused the appeal. The Immigration Judge was not satisfied that the petitioner had shown that he had a well-founded fear of being persecuted in Iraq for a Refugee Convention reason or that his human rights would be breached on return to Iraq. The petitioner's application for permission to appeal to the Asylum and Immigration Tribunal was refused on 11 April 2003. On 25 August 2006 the petitioner made an application for Indefinite Leave to Remain to the Secretary of State which was refused. On behalf of the petitioner it was submitted that the Secretary of State had failed properly to apply the Iraq Policy Bulletin 2/2006 in coming to the decision notified by letter of 24 April 2007 in that the Secretary of State acted unlawfully in regarding the petitioner as being from the former Kurdish Autonomous Zone when in terms of the policy he was to be regarded as having been from the Government Controlled Area of Iraq. Here the court considered whether it was reasonable for the petitioner to be regarded as coming from the Kurdish Autonomous Zone.

Petition of F.O. (A.P.) for Judicial Review [2008] CSOH 80

Tue, 03 Jun 2008 10:42:00 GMT

Judicial Review:- In this action the petitioner, a 33 year old woman from Nigeria, sought judicial review of a decision of the respondent by letter dated 5 February 2008 to the petitioner's solicitors.The petitioner arrived in the United Kingdom in March 2006 and made an application for asylum which was refused on 20 December 2006. She appealed and her appeal was heard by an Immigration Judge on 9 February 2007 who held that the petitioner's fear of persecution was well founded, but dismissed her appeal because he concluded that the petitioner could relocate within Nigeria without undue difficulty. The petitioner applied for a reconsideration of the appeal. Her application was rejected. She submitted a petition for reconsideration to the Court of Session which was refused. On 12 December 2007 a petition for judicial review was dismissed on the unopposed motion of the petitioner because she wished her solicitors to submit further information. On 13 December 2007, the petitioner's solicitors provided further information to the respondents submitting that it amounted to a fresh claim for asylum. Here the petitioner sought declarator that the decision of the respondent dated 5 February 2008 intimating that the submissions for the petitioner did not amount to a fresh claim was unlawful and irrational, and sought reduction of that decision. It was submitted on behalf of the petitioner that the respondent had erred in law in the decision letter dated 5 February 2008 because:- (1) he had failed to apply the correct test in deciding whether the new information amounted to a fresh claim; and (2) because he failed to apply the correct test in the particular circumstances of this claim in deciding whether the further information amounts to a fresh claim.

Application for Leave to Appeal under section 103B of the Natinality, Immigration and Asylum Act 2002 by N.O. v. The Secretary of State for the Home Department [2008] CSIH 29

Thu, 03 Apr 2008 12:46:00 GMT

On 5 October 2004 the applicant, a 30 year old Sudanese man, entered the U.K. and claimed asylum the following day. By decision letter dated 28 November 2004 the respondent refused the applicant's claim. The applicant appealed. That appeal was refused in terms of a determination by an adjudicator dated 9 March 2005. A further appeal appeal was refused by the Immigration Judge in terms of a determination dated 6 April 2006. The applicant applied to the Asylum and Immigration Tribunal for permission to appeal the decision of the Immigration Judge to the court on a point of law. The application was refused by the Senior Immigration Judge on 24 July 2006. The application was renewed by an application to the court under section 103B(3)(b) of the Nationality, Immigration and Asylum Act 2002, as amended, in terms of an application lodged on 7 September 2006. Here an application for permission to appeal against a decision of an Immigration Judge following upon a reconsideration of an appeal against refusal of a claim for asylum was heard. Counsel for the applicant sought:- (1) to grant permission to appeal; (2) to treat the application as an appeal; (3) to grant the appeal; and (4) to remit to the Tribunal for further reconsideration. It was submitted on behalf of the respondent that the determination by the Immigration Judge disclosed no error in law. Here the court considered whether it would be unduly harsh to expect the applicant to relocate to part of his home country other than the part in which he experienced persecution and whether the Immigration Judge had sufficient regard to the circumstances particular to the applicant.

R.A.B. Against a Decision nof the Asylum and Immigration Tribunal [2008] CSIH 17

Thu, 21 Feb 2008 09:11:00 GMT

Application for leave to appeal under section 103B of the Nationality, Immigration and Asylum Act 2002:- The applicant, a 50 year old Russian female, claimed asylum on 17 August 2005. She was interviewed in connection with her claim on 1 September 2005. By letter dated 17 October 2005 the Immigration and Nationality Directorate of the Home Office refused her application and an appeal against that decision was refused, but on reconsideration it was held that the Immigration Judge who had made that decision had made a material error in law, and the appeal therefore came before another Immigration Judge for a full rehearing the decision of which on 7 August 2006 the applicant sought leave to appeal. Leave to appeal was refused by the Tribunal on 7 September 2006. Here the applicant sought (1) to grant leave to appeal; (2) to treat the application for leave to appeal as the appeal; (3) to grant the appeal; and (4) to remit the proceedings to the Tribunal for reconsideration. On behalf of the respondent counsel invited the court to refuse leave to appeal or, in the event it was granted, to refuse the substantive appeal. It was claimed on behalf of the applicant that to return her to Russia would be contrary to the obligations of the United Kingdom (a) under the 1951 United Nations Convention relating to the status of refugees and also (b) under Articles 2 and 3 of the European Convention on Human Rights. Here the court considered whether the applicant put forward any ground of appeal which had real prospects of success.

J.R.J. Against a Determination of the Asylum and Immigration Tribunal [2008] CSIH 13

Wed, 13 Feb 2008 10:25:00 GMT

Appeal under section 103B of the Nationality Immigration and Asylum Act 2002:- The appellant, a 35 year old man from Iran, arrived in the United Kingdom on 22 November 2000 and claimed asylum. His application for asylum was refused by the Secretary of State for the Home Department and a Notice of Decision dated 12 February 2001 containing Removal Directions to Iran was served on him. He appealed against that Notice claiming that any removal would be in breach of the 1951 Refugee Convention and the European Convention on Human Rights on the ground that he feared persecution in Iran because of his conversion to evangelical Christianity and his political opinions. The appeal was heard by an adjudicator on 18 September 2003 and his determination refusing the appeal was promulgated on 8 October 2003. In his determination the adjudicator accepted that the appellant was a converted Christian but held that the evidence did not disclose a reasonable likelihood that he would be persecuted for being a Christian convert if he were returned to Iran. The appellant appealed to the Immigration Appeal Tribunal and on 8 September 2004 dismissed the appeal. It was submitted on the appellant's behalf that the IAT had failed to distinguish between Christian converts in general and proselytising evangelical Christians and how they may be treated in Iran. Here the court considered whether the adjudicator had erred in law in failing to give consideration to the question whether the appellant was a proselytising Christian.

In Appeal by D.M. v. The Secretary of State for the Home Department [2008] CSIH 10

Thu, 31 Jan 2008 07:48:00 GMT

Appeal Against the Secrectary of State for the Home Department:- The appellant, from Zimbabwe, arrived in the United Kingdom on 22 December 2004 and claimed asylum. The basis of her claim was that she had a well-founded fear of persecution arising out of certain actions taken by the Zanu-PF Youth against her husband and herself. Her claim to asylum was refused by the respondent by letter dated 28 January 2005. She appealed against that refusal to the Asylum and Immigration Tribunal and by determination dated 9 April 2005 an Immigration Judge dismissed her appeal. The appellant sought an order requiring the Tribunal to reconsider its decision under section 103A of the Nationality, Immigration and Asylum Act 2002. On 10 May 2005 a Senior Immigration Judge ordered reconsideration. The appeal was reconsidered in the first instance by two members of the Tribunal on 23 September 2005 and decided that there hadbeen an error of law in the previous determination and at an adjourned hearing it was determined on 25 November 2005 that inter alia "...after fresh hearing the determination remains that the appeal is dismissed on asylum and human rights grounds". Here the appellant appealed under section 103B of the 2002 Act, with leave of the Tribunal, against the decision of the designated Immigration Judge on reconsideration.

Mr P G Nesbitt & Mrs A E Nesbitt v Secretary of State for Trade & Industry UKEAT/0091/07

Thu, 13 Sep 2007 07:00:00 GMT

Contract of Employment - Definition of employee
The Appellants were a husband and wife who entered into contracts of employment with a company which they managed and which they between them owned 99.99% of the shares (the wife having just 51.99% and the husband 48%). When the company became insolvent they claimed against the Secretary of State under the insolvency provisions of the Employment Rights Act 1996. The Employment Tribunal held that by reason of their joint control of the company they could not be employees. Appeal allowed: the fact of their control was not sufficient to deprive them of employment status if they otherwise satisfied all the criteria for employment. Secretary of State for Trade and Industry v Bottrill [1999] ICR 592, Fleming v Secretary of State for Trade and Industry [1997] IRLR 682, Connolly v Sellers Arenascene Ltd [2001] ICR 760 and Gladwell v Secretary of State for Trade and Industry [2007] ICR 264 considered.

Ali Ashgar Hasbibi for Judicial Review of a Determination of the Immigration Appeal Tribunal [2007] CSOH 83

Tue, 15 May 2007 00:00:00 GMT

Petition for Judicial Review of a Determination of the Immigration Appeal Tribunal to Refuse Leave to Appeal

Qu Wen Cai v. The Secretary of State for the Home Department [2006] CSIH 59

Fri, 08 Dec 2006 00:00:00 GMT

Appeal under section 103B of the Nationality, Immi

In the Petition of Gholan Hossein Shirazi Farschi for Judicial Review of a Decision of the Immigration Tribunal dated 26 January 2002 [2006] CSOH 138

Wed, 06 Sep 2006 00:00:00 GMT

Petition for for Judicial Review of a Decision of

Morteza Fafschi for Judicial Review of a Determination of an Adjudicator and a Determination of the Immigration Appeal Tribunal 2006 CSOH125

Tue, 15 Aug 2006 00:00:00 GMT

Petition for Judicial Review of (1) a determinatio

Petition of Noreen Saeed for Judicial Review [2006] CSOH

Thu, 03 Aug 2006 00:00:00 GMT

Judicial Review of a decision of the Immigration A

Petition of Ali Horos for Judicial Review of a Decision of the Immigration Appeal Tribunal [2006] CSOH 109

Fri, 14 Jul 2006 00:00:00 GMT

Judicial Review of a Decision of the Immigration A

Dilaver Mrija v. The Secretary of State for the Home Department for Judicial Review of a Decision by the Adjudicator and a Decision of the Immigration Appeal Tribunal [2006] CSOH 98

Thu, 29 Jun 2006 00:00:00 GMT

Immigration - Judicial Review

Dilaver Mrija v. The Secretary of State for the Home Department for Judicial Review of a Decision by the Adjudicator and a Decision of the Immigration Appeal Tribunal [2006] CSOH 98

Thu, 29 Jun 2006 00:00:00 GMT

Immigration - Judicial Review

Fatema Torabi v. The Secretary of State for the Home Department Against A Determination of the Immigration Appeal Tribunal [2006] CSIH24

Fri, 05 May 2006 00:00:00 GMT

Immigration Appeal Tribunal

Ms Gulnaz Esen Against Refusal of Leave to Appeal by the Immmigration Appeal Tribunal v The Secretary of State for the Home Department [2006] CSIH23

Fri, 05 May 2006 00:00:00 GMT

Appeal to the Court of Session under section 103(2

Petition of Nauroz Akhund for Judicial Review [2006] CSOH 62

Thu, 27 Apr 2006 21:00:00 GMT

Petition for Judicial Review of a decision by an e

Petition of Mwanasiti Ali Abdulaziz for a Judicial Review of the Immigration Appeal Tribunal

Sun, 13 Nov 2005 00:00:00 GMT

Immigration

Cangir Duman (ap) for Judicial Review of a Determination of an Immigration Appeal Adjudicator in terms of Section 65 and 69(5) of the Immigration and Asylum Act 1999

Fri, 11 Nov 2005 00:00:00 GMT

Immigration and Asylum:

Farah Butt for a Judicial Review of a Decision of the Immigration Appeal Tribunal

Mon, 08 Aug 2005 00:00:00 GMT

Asylum:

Andrey Davidov v. The Secretary of State for the Home Department

Thu, 23 Jun 2005 00:00:00 GMT

Asylum:

Beena Rashid v. The Secretary of State for the Home Department

Fri, 17 Jun 2005 00:00:00 GMT

Asylum:

Mehmet Koca (AP) v. Secretary Of State for the Home Department for Judicial Revieew of an Immmigration Appeal Decision

Fri, 27 May 2005 00:00:00 GMT

Asylum:

Ponnakutige Fernando for a Judicial Review of Decision Of Immigration Appeal Tribunal

Wed, 18 May 2005 00:00:00 GMT

Asylum:

Tariq Mahmood for Judicial Review v. The Secretary of State for the Home Department

Fri, 15 Apr 2005 00:00:00 GMT

Asylum:

Andrei Harbachou for Judicial Review of a Decision of the Secretary of State for the Home Department [2007] CSOH 18

Wed, 02 Feb 2005 00:00:00 GMT

Judicial Review