Asylum & Immigration

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

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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

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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

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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