Asylum & Immigration

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.

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