Immigration

Immigration Controls - R (Quila & Anor) v SSHD; R (Bibi & Anor) v SSHD [2011] UKSC 45, 12 October 2011

Thu, 05 Jan 2012 20:42:00 GMT

In another case in which the courts have overturned policy that is designed to control immigration without adequate regard to rights arising under the ECHR, the Supreme Court has decided that Article 8 of the ECHR prevents a complete ban on the entry for settlement of foreign spouses or civil partners unless both parties were aged 21 or over. This was contained in the Immigration Rules, para 277, and was meant to deter forced marriages. However, it might achieve also the prevention of many non-forced marriages. Indeed, it would keep apart more bona fide young couples (or compel them to live outside the UK) than it would prevent forced marriages: the Secretary of State could not produce evidence as to how many forced marriages affected those aged from 18 to 21. The Supreme Court noted that these blanket bans had already been found to be problematic: see R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53, which related to a blanket prohibition on persons subject to immigration control marryi ng without the Secretary of State's written permission, which was also found to be unlawful. In a nice turn of phrase, Lord Wilson noted that the measure amounted to a sledgehammer used to crack a nut, and the size of the nut had not been identified.

Omotunde (best interests - Zambrano applied - Razgar) Nigeria [2011] UKUT 00247 (IAC)

Fri, 15 Jul 2011 09:17:13 GMT

1. When applying the judgment of the Court of Justice of the European Union in Ruiz Zambrano (European citizenship) [2011] EUECJ Case C-34/09 OJ 2011 C130/2 and that of the Supreme Court in ZH (Tanzania) [2011] UKSC 4; [2011] 2 WLR 148, in relation to the proposed administrative removal or deportation of one or both of his non-national parents, the welfare of a child, particularly a child who is a British citizen, is a primary consideration.

2. National courts must engage with the question whether removal of a particular parent will 'deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen'.

3. Where there are strong public interest reasons to expel a non-national parent, any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality. There is no substantial difference between the human rights based assessment of proportionality of any interference considered by Lady Hale in ZH (Tanzania) and the approach required by Community law.

4. In this particular context, the Article 8 assessment questions set out in Razgar [2004] UKHL 27 should be tailored as follows, placing the assessment of necessity where it most appropriately belongs in the final question dependent on the outcome of proportionality and a fair balance, rather than as part of the identification of the legitimate aim:

1. Is there family life enjoyed between the appellant and a minor child that requires respect in the context of immigration decision making?
2. Would deportation of the parent interfere with the enjoyment of that family life?
3. Is such an interference in accordance with the law?
4. Is such an interference in pursuit of a legitimate aim?
5. Is deportation necessary, proportionate and a fair balance between the rights to respect for the family life of the appellant and the child and the particular public interest in question?

Jahangara Begum and others (maintenance – savings) Bangladesh [2011] UKUT 00246 (IAC)

Fri, 15 Jul 2011 09:14:57 GMT

Where the likely income of a family falls below the level of adequacy as established in the case of KA and others (Adequacy of Maintenance) Pakistan [2006] UKAIT 00065 the shortfall can be met where there are sufficient savings. The assessment of the appropriate level of savings is not an arbitrary calculation and the proper reference is to the length of the initial visa. If an appellant is able to meet the requirements of adequacy for the period of the initial visa, and there is no reason to believe that he will not be able to meet the maintenance requirements in the longer term, then he is entitled to entry clearance.

Rana (PBS – Appendix C – overdraft facility) India [2011] UKUT 00245 (IAC)

Fri, 15 Jul 2011 09:12:50 GMT

Proof of the requisite funds for ‘Maintenance’ under the Points Based System is retrospective. For example, a student must show that the funds were available for a continuous period of 28 days before the application for entry clearance or leave to remain was made. If, throughout that period, an overdraft facility could have been used to withdraw the requisite funds, there is nothing in principle or in the Rules to prevent that from demonstrating that the requisite funds were available. PO (points based scheme: maintenance: loans) Nigeria [2009] UKAIT 47, which takes the opposite view, was decided pre-Pankina on the basis of the Policy Guidance.

Ejifugha (Tier 4 – funds – credit) Nigeria [2011] UKUT 00244 (IAC)

Fri, 15 Jul 2011 09:10:57 GMT

The requirement in paragraph 11 of Appendix C of the Statement of Changes in the Immigration Rules HC 395 (as amended) is that the funds be “available”. It is unhelpful to ry to paraphrase that.

Funds required by paragraph 11 of Appendix C can take the form of a credit card limit.

SA (Divorced woman – illegitimate child) Bangladesh CG [2011] UKUT 00254 (IAC)

Fri, 15 Jul 2011 09:08:28 GMT

(1) There is a high level of domestic violence in Bangladesh. Despite the efforts of the government to improve the situation, due to the disinclination of the police to act upon complaints, women subjected to domestic violence may not be able to obtain an effective measure of state protection by reason of the fact that they are women and may be able to show a risk of serious harm for a Refugee Convention reason. Each case, however, must be determined on its own facts.

(2) Under Muslim law, as applicable in Bangladesh, the mother, or in her absence her own family members, has the right to custody of an illegitimate child.

(3) In custody and contact disputes the decisions of the superior courts in Bangladesh indicate a fairly consistent trend to invoke the principle of the welfare of the child as an overriding factor, permitting departure from the applicable personal law but a mother may be disqualified from custody or contact by established allegations of immorality.

(4) The mother of an illegitimate child may face social prejudice and discrimination if her circumstances and the fact of her having had an illegitimate child become known but she is not likely to be at a real risk of serious harm in urban centres by reason of that fact alone.

(5) The divorced mother of an illegitimate child without family support on return to Bangladesh would be likely to have to endure a significant degree of hardship but she may well be able to obtain employment in the garment trade and obtain some sort of accommodation, albeit of a low standard. Some degree of rudimentary state aid would be available to her and she would be able to enrol her child in a state school. If in need of urgent assistance she would be able to seek temporary accommodation in a woman’s shelter. The conditions which she would have to endure in re-establishing herself in Bangladesh would not as a general matter amount to persecution or a breach of her rights under article 3 of the ECHR. Each case, however, must be decided its own facts having regard to the particular circumstances and disabilities, if any, of the woman and the child concerned. Of course if such a woman were fleeing persecution in her own home area the test for internal relocation would be that of undue harshness and not a breach of her article 3 rights.

Begum (EEA – worker – jobseeker) Pakistan [2011] UKUT 00275 (IAC)

Fri, 15 Jul 2011 09:05:17 GMT

(1) When deciding whether an EEA national is a worker for the purposes of the EEA Regulations, regard must be had to the fact that the term has a meaning in EU law, that it must be interpreted broadly and that it is not conditioned by the type of employment or the amount of income derived. But a person who does not pursue effective and genuine activities, or pursues activities on such a small scale as to be regarded as purely marginal and ancillary or which have no economic value to an employer, is not a worker. In this context, regard must be given to the nature of the employment relationship and the rights and duties of the person concerned to decide if work activities are effective and genuine.

(2) When considering whether an EEA national is a jobseeker for the purposes of EU law, regard must be had to whether the person entered the United Kingdom to seek employment and, if so, whether that person can provide evidence that they have a genuine chance of being engaged. If a person does not or cannot provide relevant evidence, then an appeal is bound to fail on this ground.

Rose (Automatic deportation - Exception 3) Jamaica [2011] UKUT 00276 (IAC)

Fri, 15 Jul 2011 09:01:31 GMT

1. The personal scope of the safeguards against expulsion which Article 27 of 2004/38/EC (the “Citizens Directive”) affords to “family members” does not include "other family members"(OFMs).

2. Hence Exception 3 to s.32(4) and (5) of the UK Borders Act 2007 (which arises where the removal of a foreign criminal from the United Kingdom in pursuance of a deportation order would breach the rights of the foreign criminal under the EU treaties [previously “Community treaties”] cannot be invoked by OFMs.

3. However, a person who has been found to be an OFM/extended family member under the Immigration (European Economic Area) Regulations 2006 needs to be considered by the Secretary of State as a person in respect of whom the discretion to issue a residence card under regulation 17 may be exercised.

4. The result of the exercise of that discretion may be that regulations 20-21 apply to the appellant’s removal, and the decision would not be lawful without regard to them.

5. So if consideration has not been given to the exercise of the discretion, the assessment of criteria going to deportation or removal cannot be completed.

Aladeselu (2006 Regs - reg 8) [2011] UKUT 00253 , 28/06/2011

Wed, 13 Jul 2011 14:01:00 GMT

The appellants (all adults) were in the UK unlawfully. They had a maternal cousin who was a Dutch citizen who they had previously lived with in Nigeria and who had been supporting them financially both in Nigeria and in the UK. In 2008, after the appellants had arrived in the UK, the cousin moved to the UK and began exercising her Treaty Rights. The appellants’ applications for Residence Cards as the “extended family members” of the cousin were refused by the UKBA. The Immigration Judge dismissed their appeals: he did not consider any of the appellants could meet the requirement set out in regulation 8 of the Immigration (European Economic Area) Regulations 2006 which stipulate that extended family members must either be accompanying or joining the EEA national sponsor in the UK.

The Upper Tier Tribunal set aside the decision of the IJ and found that:

1. For the purposes of establishing whether a person qualifies as an Other Family Member (OFM)/extended family member under regulation 8 of the Immigration (European Economic Area) Regulations 2006, the requirement that they accompany or join the Union citizen/EEA national exercising Treaty rights must be read as encompassing both those who have arrived before and those who have arrived after the Union citizen/EEA national sponsor.

2. The 2006 Regulations do not impose a requirement that an OFM/extended family member must be present in the United Kingdom lawfully.

3. But in the context of the exercise of regulation 17(4) discretion as to whether to issue a residence card, matters relating to how and when an OFM/extended family member arrives in a host Member State are not irrelevant.

The full determination can be found here:
http://www.ait.gov.uk/Public/Upload/j2387/00253_ukut_iac_2011_ta_nigeria.doc

R (Cart) v Upper Tribunal; R (MR (Pakistan)) v UT & SSHD [2011] UKSC 28

Mon, 27 Jun 2011 11:32:36 GMT

The Supreme Court held that an Upper Tribunal decision refusing permission to appeal to itself from a determination of the First-Tier Tribunal (including in an asylum case as per MR (Pakistan)) is amenable to judicial review in the High Court and that the Court of Appeals' approach in Cart was too restrictive in requiring 'outright excess of jurisdiction' or 'denial of procedural justice'. Rather the test to be applied by the High Court on such a judicial review application should be akin to the 'second appeals test' in that the appeal (or here JR claim) raises an important point of principle or practice or there is some other compelling reason for the court to hear it.

Alvi, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 681

Tue, 14 Jun 2011 17:01:52 GMT

The Court of Appeal allowed an appeal in a case of a Pakistani national who appealed against a UKBA decision to refuse him leave to remain as a Tier 2 (General) Migrant.

The appellant entered the UK lawfully as a student and after completing his studies obtained leave to remain as a work permit holder. For the next four years he worked as a physiotherapy assistant. His application for further leave to remain as a Tier 2 (General) Migrant was refused by the UKBA because his physiotherapy assistant position was not included on the skilled occupation list.

The Court of Appeal found, in line with Pankina, that for the purpose of leave to remain as a migrant worker, the threshold level for skilled occupation was a matter of substance which had to be set down in the Immigration Rules in order to be valid. The general guidance issued to case workers did not have the character of legal rules. The SSHD could not rely on the fact that the job of a physiotherapy assistant fell below NVQ level 3 in order to treat the sponsorship certificate issued by Kensington Clinic as invalid. The appeal was allowed.

RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651

Tue, 14 Jun 2011 16:54:26 GMT

The Court of Appeal unanimously dismissed an appeal against deportation of a Bangladeshi national who had come to the UK at the age of 14 and had lived in the UK for 30 years. He had obtained indefinite leave to remain in the UK. He committed a serious criminal offence which attracted a 15 year criminal sentence. The SSHD took deportation action. The foreign national appealed against the deportation decision.

The AIT allowed his appeal and found that although deportation was conducive to the public good, his deportation would not act as a deterrent to others as A was an individual and there was no reason why any other prospective offender would have knowledge of his deportation. At second stage reconsideration the First Tier Tribunal set aside the AIT's decision.

The Court of Appeal found that the AIT erred in law in relation to the point about deterrence which was not about whether the deportation of the foreign criminal might or might not have a deterrent effect on other prospective offenders. The Court of Appeal found that the AIT had missed something more fundamental. The UK immigration system had to take into account broad issues of "social cohesion" and the public had to have confidence in the system of immigration so that foreign nationals, including refugees, had to know that one of the consequences of criminality was deportation. Deterrence was a dimension of this. The Court of Appeal found that the AIT did not give appropriate weight to the "public interest" when evaluating Article 8(2) ECHR in the context of private life. The appeal was dismissed.

Cvetkovs (visa - no file produced - directions) Latvia [2011] UKUT 00212 (IAC)

Mon, 13 Jun 2011 07:51:59 GMT

The appellant was a stateless person resident in Latvia. He applied for a visa operating as leave to enter to visit his sister who was resident in the United Kingdom. His application was refused and he appealed. He asked for the appeal to be determined on the papers. The respondent failed to provide a respondent's bundle.

Mr Justice Blake took the opportunity to comment on the failure of the respondent to provide a bundle for the entry clearance appeal 'in flagrant breach of the obligations upon him':

6. The respondent's failure to provide the material documents in this case is a clear breach of the obligation on him imposed by rule 13 of the The Asylum and Immigration Tribunal (Procedure) Rules 2005. It is not sufficient to provide the IJ with simply the notice of the decision to which the appeal relates. The application form and any material submitted by the applicant needs to be provided under rule 13(1)(b) as does any other document referred to in the decision pursuant to 13(1)(c). A failure to provide this material is not merely a breach of the respondent's obligation under the Procedural Rules, it will usually frustrate the effective hearing of the appeal. In many cases the appellant himself will wish to rely upon material that he has already provided to the Visa Officer.

...

10. For the future, we consider that Immigration Judges of the First-tier Tribunal, Immigration and Asylum Chamber are entitled to be robust in determining Entry Clearance appeals where the Visa Officer is not satisfied as to the purpose of the visit from the documents produced but fails to provide those documents to the Tribunal.

The Upper Tribunal (Mr Justice Blake and Mr Batiste) held:

1. Where a visit visa application is refused because the Visa Officer is not satisfied of the appellant’s intentions as a result of only limited documents being produced and translated; and the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, directions can be given indicating that unless the respondent complies with the rules it may be that the Tribunal will assume that the appeal is unopposed.

2. Where the respondent breaches Procedure Rules by failing to send documentation to the Tribunal, and the First-tier Tribunal issues a reasoned decision, based on the material before it, allowing the appeal, a challenge by the respondent based on sufficiency of reason is unlikely to prosper on an application for permission to appeal to the Upper Tribunal.

Patel (revocation of sponsor licence - fairness) India [2011] UKUT 00211 (IAC)

Mon, 13 Jun 2011 07:31:57 GMT

The appellant had applied for further leave to remain under Tier 4 of the points-based system with a sponsorship letter from the Lyceum Academy. At the date of application, the Academy was a sponsor approved by the Home Office. The appellant heard nothing more about his application until he received a notice of decision refusing his application on the basis that the Academy had been removed from the list of approved sponsors and he therefore had no sponsorship letter capable of earning him points under the points-based system. According to the appellant's evidence, the Academy had been removed from the list of sponsors that day, or shortly before, and he was wholly unaware of this until he received his refusal letter.

The Upper Tribunal (Mr Justice Blake and Mr Batiste) held:

(1) Immigration Judges have jurisdiction to determine whether decisions on variation of leave applications are in accordance with the law, where issues of fairness arise.
(2) Where a sponsor licence has been revoked by the Secretary of state during an application for variation of leave and the applicant is both unaware of the revocation and not party to any reason why the licence has been revoked, the Secretary of State should afford an applicant a reasonable opportunity to vary the application by identifying a new sponsor before the application is determined.
(3) It would be unfair to refuse an application without opportunity being given to vary it under s.3C(5) Immigration Act 1971.
(4) Leave to remain granted by s.3C Immigration Act 1971 is relevant leave for the purposes of the Immigration Rules and the cases of QI (para 245ZX(1) considered) Pakistan [2010] UKUT 217 (IAC) and HM and others (PBS – legitimate expectation – paragraph 245ZX(I) [2010] UKUT 446 (IAC) have been overruled by QI (Pakistan) v SSHD [2011] EWCA Civ 614, 18 April 2011.
(5) Where the Tribunal allows an appeal on the grounds that the decision was not taken fairly and therefore not in accordance with the law, it may be sufficient to direct that any fresh decision is not to be made for a period of sixty days from the date of the reasoned decision being transmitted to the parties, in order to give the appellant a reasonable opportunity to vary his application.
(6) By analogy with the present UKBA policy on curtailment of leave where a sponsor licence is revoked a 60 day period to amend the application would provide such a fair opportunity.

MO (illegal exit – risk on return) Eritrea CG [2011] UKUT 00190 (IAC)

Fri, 10 Jun 2011 09:49:29 GMT

The Upper Tribunal has issued new Country Guidance on the issue of risk on return to Eritrea where (a) there has been illegal exit from Eritrea; and/or (b) a person has claimed asylum in the United Kingdom (regardless of status of exit).

The Upper Tribunal held as follows:

(i) The figures relating to UK entry clearance applications since 2006 – particularly since September 2008 – show a very significant change from those considered by the Tribunal in MA (Draft evaders-illegal departures-risk) Eritrea CG [2007] UKAIT 00059 and are among a number of indications that it has become more difficult for Eritreans to obtain lawful exit from Eritrea;

(ii) The Eritrean authorities continue to envisage lawful exit as being possible for those who are above national service age or children of 7 or younger. Otherwise, however, the potential categories of lawful exit are limited to two narrowly drawn medical categories and those who are either highly trusted government officials or their families or who are members of ministerial staff recommended by the department to attend studies abroad;

(iii) The general position concerning illegal exit remains as expressed in MA, namely that illegal exit by a person of or approaching draft age and not medically unfit cannot be assumed if they had been found wholly incredible. However, if such a person is found to have left Eritrea on or after August/September 2008, it may be, that inferences can be drawn from their health history or level of education or their skills profile as to whether legal exit on their part was feasible, provided that such inferences can be drawn in the light of the adverse credibility findings;

(iv) The general position adopted in MA, that a person of or approaching draft age (i.e. aged 8 or over and still not above the upper age limits for military service, being under 54 for men and under 47 for women) and not medically unfit who is accepted as having left Eritrea illegally is reasonably likely to be regarded with serious hostility on return, is reconfirmed, subject to limited exceptions in respect of (1) persons whom the regime’s military and political leadership perceives as having given them valuable service (either in Eritrea or abroad); (2) persons who are trusted family members of, or are themselves part of, the regime’s military or political leadership. A further possible exception, requiring a more case-specific analysis, is (3) persons (and their children born afterwards) who fled (what later became the territory of) Eritrea during the war of independence.

(v) Whilst it also remains the position that failed asylum seekers as such are not generally at real risk of persecution or serious harm on return, on present evidence the great majority of such persons are likely to be perceived as having left illegally and this fact, save for very limited exceptions, will mean that on return they face a real risk of persecution or serious harm.

Francis, R (on the application of) v. Secretary of State for Justice & Anor [2011] EWHC 1271 (Admin)

Mon, 06 Jun 2011 14:49:00 GMT

The claimant was a citizen of Jamaica. At the time of matters giving rise to her application for judicial review she was serving a sentence of two years' imprisonment and was therefore potentially liable to deportation on the completion of her sentence. Her complaint was that her eligibility for early release under the Home Detention Curfew Scheme had not been properly considered.

Lord Justice Toulson (Mr Justice Lloyd Jones concurring) held that the failure to release the foreign national prisoner under the Home Detention Curfew Scheme was not unlawful. The refusal was not made on the mistaken basis that the IS91 (detention order) was a statutory bar to eligibility under the scheme, but merely that the IS91 was the reason for refusal to release under the scheme. There was nothing perverse or irrational in this approach. The Home Detention Curfew Scheme permitted the release of a prisoner during a limited period (upto 135 days) before the end of the requisite custodial period for the specific purpose of managing more effectively the transition of the offender from custody back into the community. However, the issue of the IS91 meant that the claimant could not in fact be released into the community.

AD (reporting criteria - unreported cases) Somalia [2011] UKUT 00189 (IAC)

Wed, 01 Jun 2011 12:02:16 GMT

The appellant was a citizen of Somalia and a member of the Marehan sub-clan of the Darod clan. The issue before the Upper Tribunal was whether his removal to Somalia would violate article 3 ECHR.

Counsel for the appellant applied to cite a determination which had not been reported and, in support of the application, produced a copy of the determination of SIJ Latter in Ahmed Farah Mohamed (Appeal Number IA/16568/2007) heard on 17 June 2010.

In deciding the application, the Upper Tribunal had regard to the Immigration and Asylum Chambers' Practice Direction 11. The Upper Tribunal found that insofar as the decision was relevant and came from the same SIJ who decided AM (Somalia) UKUT 54 (IAC) it was materially assisted by its citation. The Upper Tribunal went on to comment, however, that in the final analysis it is a matter for the Tribunal to decide whether and how much an unreported decision assists, assessing the overall merits of the decision.

The Upper Tribunal observed more generally that given the criteria for reporting cases and the process of preparing decisions for reporting, it is likely to be rare that an unreported decision will contain sufficient material within it to offer significant assistance as guidance to decision-makers, practitioners or other judges in other cases.

Ozhogina and Tarasova (deception within para 320(7B) - nannies) Russia [2011] UKUT 00197 (IAC)

Tue, 31 May 2011 15:02:00 GMT

The appellants were both nannies at present in Russia and wishing to come to the United Kingdom in order to fulfil duties as domestic workers in a private household. They lived in their employer's home in Russia during a period when the employer had already come to live in the United Kingdom. They appealed against a decision to refuse leave to enter pursuant to the terms of paragraph 159A of the Immigration Rules.

The Upper Tribunal held:

(1) Where a nanny lived in an employer's home during a period where the employer had come to live in the United Kingdom, she: (a) was not living "under the same roof" as an employer but qualified under the alternative provision of 159A(ii) of "in a household the employer uses for himself on a regular basis"; (b) could not comply with 159A(iii) "intends to travel to the United Kingdom in the company of his employer"; but the appeal could be allowed without remittal for reconsideration where the Tribunal was satisfied that the respondent was bound to conclude that the appellant met the terms of a policy in an IDI.

(2) Where the respondent relies on paragraph 320(7B) (d) to refuse an application for entry clearance because of a breach of the UK's immigration laws by using 'Deception in an application for entry clearance' it is necessary to show that a false statement was deliberately made for the purpose of securing an advantage in immigration terms.

Secretary of State for the Home Department (Respondent) v AP (Appellant) ([2010] UKSC 24 & 26)

Thu, 24 Jun 2010 18:01:20 GMT

The three issues the Supreme Court had to reach a decision on in this appeal were as follows:

1) Whether conditions which are proportionate restrictions upon article 8 rights to respect for private and family life can ‘tip the balance’ in relation to article 5 (which guarantees the right to liberty and security), ie whether they can be taken into account in holding that a control order is a deprivation of liberty when, absent those restrictions, it would not have been held to be such.

2) Whether the judge can take into account subjective and/or person-specific factors, such as the particular difficulties of the subject’s family in visiting him in a particular location, when considering whether or not a control order amounts to a deprivation of liberty.

2) Whether it was permissible for the Court of Appeal to interfere with the first instance judgment on the ground that the judge had relied on findings of fact in respect of article 5 which were inconsistent with his findings of fact in respect of article 8.

MS (Palestinian Territories) (FC) (Appellant) v. Secretary of State for the Home Department (Respondent), [2010] UKSC 25

Thu, 24 Jun 2010 16:56:00 GMT

The appellant was born in Gaza in 1985. Having lived in Libya until about 2002, he then spent time in mainland Europe before arriving in the UK in April 2007. He subsequently claimed asylum and humanitarian protection. On 24 May 2007, the Home Secretary refused the appellant’s asylum and human rights claims. The letter sent by the Home Secretary recorded that a decision had been taken to remove the appellant from the UK and stated:

"If you do not appeal, or you appeal and the appeal is unsuccessful, you must leave the United Kingdom. If you do not leave voluntarily, directions will be given for your removal from the United Kingdom to Palestine National Authority."

The appellant appealed the decision under section 82 (2) (h) of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’). He did so on the grounds that the decision was ‘not in accordance with the law’ within the meaning of section 84 (1) (e) of the 2002 Act. The appellant argued that this was so because directions for his removal to the Palestinian Territories could not lawfully be given under Schedule 2 of the Immigration Act 1971 (‘the 1971 Act’), since paragraph 8 (1) (c) of Schedule 2 required that there was reason to believe that he would be admitted to the country chosen.

The immigration judge accepted the evidence given in support of the appellant that, owing to his lack of documents and the fact that he did not have any living parents, he would not be admitted to the Palestinian Territories. However, the immigration judge rejected the appellant’s argument that this meant that the decision was ‘not in accordance with the law’ under section 84 of the 2002 Act. The Immigration Tribunal and the Court of Appeal agreed with the immigration judge. The appellant appealed to the Supreme Court.

The Supreme Court unanimously dismissed the appeal. The Court held that there is no right of appeal against an immigration decision under section 82 (2) (h) of the 2002 Act on the ground that the country or territory stated in the notice of the decision is not one that would satisfy the requirements of paragraph 8 (1) (c) of Schedule 2 to the 1971 Act. Sir John Dyson SCJ gave the court’s judgment.

ZN (Afghanistan) (FC) and Others (Appellants) v. Entry Clearance Officer (Karachi) (Respondent) and one other action, [2010] UKSC 21

Thu, 13 May 2010 21:41:11 GMT

This appeal raises the question of which immigration rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and consequently obtained British Citizenship.

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.