Asylum & Immigration

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.

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.

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.

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])

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.

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.

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.

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.

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.