Immigration

A.O. (A.P.) (Petitioner) for Judicial Review of a decision of the Secretary of State for the Home Department dated 25th February 2009 to refuse to treat representations on behalf of the petitioner as a fresh claim for asylum.

Thu, 07 Jan 2010 11:52:24 GMT

Outer House: Petition; Petition for reduction of Secretary of State decision to refust to treat representations on behalf of the petitioner as a fresh claim for asylum. The petitioner was a citizen of Iraq. His claim for asylum was refused. Leave to appeal that decision was refused by an immigration adjudicator. Leave to appeal to the Inner House was refused. The Inner House then granted warrant for service on the Advocate General. That action was dismissed by the petitioner. Thereafter, the petitioner made further representations on human rights grounds to the respondent. The respondent determined that these representations did not amount to a fresh claim. Petition to have that decision reduced. Disputed; whether the respondent adopted the correct test when determining that the representations did not amount to a new claim; whether the removal of the petitioner would be proportionate; if there had been a 'delay' by the respondent in dealing with the application and whether, if there had been a delay, that delay affected the rationality of the decision. Reference made to Paragraph 353 of the Immigration Rules HC 395. Petition refused.

D.B.N.B.K. (AP) v. The Secretary of State for the Home Department [2009] CSIH 83

Thu, 19 Nov 2009 15:44:22 GMT

On 30 July 2004 the applicant, and his sister DK, both Iraqi nationals, had their claims for asylum refused and they were refused leave to enter the United Kingdom. On 6 October 2004 an adjudicator dismissed the applicant's appeal without consideration of the merits when there was no appearance by or on behalf of the applicant. The Tribunal subsequently held that the adjudicator had made a material error of law and the case was sent for reconsideration before a differently constituted Tribunal. On 6 January 2006 the Immigration Judge dismissed the applicant's appeal. The applicant sought leave from the Asylum and Immigration Tribunal to appeal to the Court of Session but that was refused on 20 February 2006. The applicant lodged the present application. Here it was submitted that the Immigration Judge had erred in law by stating that the applicant could relocate to northern Iraq and failed to take account of the difficulties that the applicant would experience in lawfully residing there. In relation to the alleged lateness of the application to the Asylum and Immigration Tribunal for leave to appeal to the Court of Session, it was submitted that the application had not been late. It was submitted on behalf of the respondent that the court should refuse the application because there had been no material error of law in the decision complained of and as far as the procedural irregularity was concerned it was submitted that if the application had not been lodged timeously it was incompetent for the Tribunal to extend the time limit. It was submiitted on behalf of the respondent that the Immigration Judge had reached a conclusion that was reasonably open to him in light of the evidence and the fact that different decision makers could reach a different view of the same facts did not amount to an error of law. Here the court considered whether the application was in a competent form and within the presecribed time limits. Further, the court considered whether the Immigration Judge took sufficient account of the issues surrounding the applicant relocating to northern Iraq.

S.M.G. v. The Secretary of State for the Home Department [2009] CSIH 30

Thu, 19 Nov 2009 15:41:50 GMT

Application for Leave to Appeal under Section 103B of the Nationality Immigration and Asylum Act 2002:- On 5 September 2005 the applicant, an Iranian national, applied to the respondent for asylum in the United Kingdom. That application was refused on 3 November 2005. He appealed that decision to the Asylum and Immigration Tribunal and the appeal was heard by an immigration judge who, on 19 January 2006, refused the appeal. The applicant then sought an order requiring the Tribunal to reconsider its decision on the appeal. which it did and, with the consent of parties, decided that the immigration judge had made a material error of law and that the Tribunal should re-hear the appeal. The appeal was then re-heard by an immigration judge who, on 17 July 2007, dismissed the appeal. The applicant then applied for permission to appeal under section 103B of the 2002 Act which was refused by the Tribunal and here he sought leave to appeal. The applicant's case before the Tribunal was that he was at risk of execution if he was returned to Iran due to his sexuality, however, the applicant's assertions were disbelieved by the Tribunal. Here the court considered whether the Tribunal had materially misdirected itself by reason of a failure to consider his claim on the correct basis.

H.S. for Judicial Review of a Decision of the Secretary of State for the Home Department [2009] CSOH 124

Wed, 09 Sep 2009 09:25:37 GMT

The petitioner and her husband, both Algerian nationals, arrived in the UK in 2005 and had a son, born 23 January 2006 and a daughter born 10 April 2008. The petitioner thereafter claimed asylum and was unsuccessful in her attempts under the statutory procedures. On 5 November 2008 the petitioner's solicitors submitted to the respondent that any attempt to remove the petitioner from the UK would amount to contravention of her rights and the respondent's duties under Article 8 of the European Convention on Human Rights and that the respondent had not properly considered the petitioner's claim in terms of the review exercise known as the Case Resolution Programme. It was conceded by counsel on behalf of the respondent that in reaching a decision the respondent required to take into account "as a primary consideration the best interests of the children" or "the principle" . Here it was submitted on behalf of the petitioner that the decision letter demonstrated that "the principle" had not been applied in the assessment which had been carried out by the respondent and the letter made no express reference to "the principle" in stating the reasons for the decision, there only being a tentative indication in the decision letter of what might be best for the children. It was submitted on behalf of the respondent that the issue of the best interests of the child as a primary consideration is one which arises because the respondent requires to address Article 8 ECHR and is part of a balancing process which the respondent requires to undertake in terms of Article 8(2) and "the principle" is defined in terms of "a primary consideration" but it is not the over-riding consideration and may be outweighed by other important competing considerations. Here the court considered whether the respondent sufficiently carried out a balancing exercise which included reference to the best interests of the children and adequately set out the reasons relevant to a decision in relation to the children.

M v Secretary of State for the Home Department [2006] EWCA Civ 927 (26 May 2006)

Fri, 26 May 2006 00:00:00 GMT

A decision of an adjudicator that an asylum seeker should be granted refugee status and that her removal would violate the European Convention on Human Rights 1950 Art.3 could not be faulted and the Asylum and Immigration Tribunal were wrong to hold that the adjudicator had erred in law in its decision.

London Borough of Barnet v Ismail & Anor [2006] EWCA Civ 383 (06 April 2006) (View without highlighting)

Thu, 06 Apr 2006 00:00:00 GMT

It was held that the 2 applicants for housing – EEA nationals who were not “qualified persons”, but who were in receipt of income support- were subject to immigration control. This brought them within the exemption in Regulation 3 of the Homelessness (England) Regulations 2000, Class 1. As EEA nationals, they had not required leave to enter the UK, but the Court of Appeal was satisfied that they needed leave to remain under the Immigration Act 1971 because they had no right of abode in the UK. This rendered them subject to imigration control.

R(ON THE APPLICATION OF MORRIS) v WESTMINSTER CITY COUNCIL; R(ON THE APPLICATION OF BADU) v LAMBETH [2005] EWCA Civ 1184 (Date Uncertain)

Thu, 01 Dec 2005 00:00:00 GMT

In this case, the Court of Appeal held section 185(4) of the 1996 Housing Act to be incompatible with Article 14 of the European Convention of Human Rights, “to the extent that it requires a dependent child of a British citizen, if both are habitually resident in the United Kingdom, to be disregarded when determining whether the British citizen has a priority need for accommodation, when the child is subject to immigration control”.

Benabbas, R. v [2005] EWCA Crim 2113 (12 August 2005)

Fri, 12 Aug 2005 00:00:00 GMT

Deportation Appropriate Sentence: The Court of Appeal held that a judge had been entitled to find that the continued residence of the accused in England was a detriment to the country, and as such ought to be deported. The accused had been found guilty of using a forged passport, but had contended that the circumstances of his conviction did not justify his deportation since the manner of his arrival in the UK was irrelevant. The Court agree with the sentencing judge in finding that the use of stolen passports was harmful to society, and that it was acceptable to distinguish the position of the accused from that of someone who had entered the country unlawfully and who was subsequently convicted of a crime unrelated to his status as an illegal immigrant.

Bagdanavicius & Anor, R (on the application of) v [2005] UKHL 38 (26 May 2005)

Thu, 26 May 2005 00:00:00 GMT

The House of Lords held that where an applicant for asylum was resisting deportation, it was not sufficient for him/her to demonstrate that they would be at risk from suffering serious harm from persons or bodies that were not organs of the state. Rather, the applicant must also demonstrate that the state did not provide reasonable protection from such ill-treatment. The fact that such protection would not “obviate” the threat of serious harm was not relevant. The relevant state authorities must take only ‘reasonable’ measures to prevent such persecution from occurring.

Machado v Secretary of State for the Home Deptment [2005] EWCA Civ 597 (19 May 2005) [2005] EWCA Civ 597, Court of Appeal, 19th May 2005

Thu, 19 May 2005 00:00:00 GMT

The court held that where the IAT was proposing to remove an applicant for asylum on public policy grounds, it was not sufficient for it merely to consider whether the decision taken by the Secretary of State was one which he could reasonably have reached. Rather, it was necessary to consider whether the applicant posed a threat to the public, and so whether it was proportionate to interfere with his article 8 rights by deporting him.

Price & Ors v Leeds City Council [2005] EWCA Civ 289 (16 March 2005)

Wed, 16 Mar 2005 00:00:00 GMT

Pre-eminence of House of Lords: The proceedings concerned gypsies who had occupied land belonging to the City Council without the latter’s consent, and the Court of Appeal had to determine whether the Council was entitled to seek possession of the land in light of the gypsies human rights pursuant to Article 8. In reaching its decision the court was referred to decisions of the House of Lords (Harrow LBC v Qazi) and the European Court of Human Rights (Connors v United Kingdom) which it found to be incompatible. In such circumstances it considered itself bound to follow the decision of the House of Lords. (Leave to appeal granted).

Rusiga v Secretary of State for the Home Department [2005] EWCA Civ 407 (14 March 2005)

Mon, 14 Mar 2005 00:00:00 GMT

Linguistic Finding Of Fact: The Court of Appeal concluded that the Appeals Tribunal were not entitled to disturb the finding made by the Adjudicator that an individual might hail from a particular country (Burundi), notwithstanding that she was unable to speak the dominant language of that region (Kirundi). The Adjudicator had made a finding of fact, having taken into the relevant in-country evidence.

Secretary of State for the Home Department v Makke [2005] EWCA Civ 176 (25 February 2005)

Fri, 25 Feb 2005 00:00:00 GMT

Appeal Made Out Of Time: Where an appellant sought to appeal the decision of an asylum adjudicator, but was substantially out of time, it was necessary for him/her to demonstrate that the appeal stood a real prospect of success on its merits. The Court of Appeal considered that permission to bring such an appeal should not be granted on a purely procedural ground.