Case law round-up

Er, it's a round up

There have been a number of recent determinations and judgments, not all of which quite justify a post all of their own, so I thought I would do a round-up.

The case that prompted the round-up is GS [2009] UKAIT 00010. It is actually just a direction in a case, it is not a determination as such, but because of its significance it has been reported and even been given country guideline status. It isn’t even a direction, really – it is a vehicle used to record an important concession by the Home Office, which is that there is an internal armed conflict across the whole of Afghanistan.

This won’t exactly be news to those who watch and read the news, but it is important for asylum lawyers because it means that Article 15(c) of the Qualification Directive comes into play in Afghan cases, as it has with Somali and Iraqi cases. It is a very complex area of law and ECJ judgments are in the pipeline, but in summary it offers a higher level of protection than was previously available in refugee type cases involving civil war situations. It is so very complicated that many lawyers and judges are probably ignoring it all. I have to admit there was a time when I too buried my head in the sand.

I can’t resist mentioning another recent case, SA and IA [2009] UKAIT 00006, which is another example of the tribunal treating Dr Alan George’s evidence with the respect it deserves. Quite a change from times past. It is amazing what a brush with Messirs Carter Ruck can do.

More importantly, the Court of Appeal in JH (Zimbabwe) [2009] EWCA Civ 78 made a very important (but how so dry!) decision on use of prescribed forms and the extension of leave by s.3C of the 1971 Act. The tribunal’s highly restrictive interpretation in DA (Section 3C – meaning and effect) Ghana [2007] UKAIT 00043 is disavowed and the Court concludes that:

(i) the appellant had used a ‘prescribed’ form, even if she had no chance of getting what she asked for, and therefore had made a valid application which therefore extended her leave under s.3C while the application was pending, and

(ii) that it is possible to vary an application for leave once it is made, even if leave is already extended by s.3C, as long as a decision has not yet been reached by the Home Office.

This case makes life considerably simpler for immigration applicants who are badly advised or use the wrong form.

The last case in the round up is ZT (Kosovo) [2009] UKHL 6, another rather dry and technical judgment, but this time from the House of Lords. It concerns fresh claims. The ILPA mailing says it is being ‘considered’ by asylum lawyers but no more. Thanks. Well, here’s a stab at some analysis.

Firstly, it is fairly narrow application as the judgment deals with cases where a s.94 of the 2002 Act clearly unfounded certificate has been made by the Home Office. This has the effect that the recipient can only appeal from outside the UK after removal.

The majority hold that the fresh claim rule, rule 353, does apply where a person in receipt of a s.94 certificate but who has not yet left the UK and therefore still has a right of appeal (albeit one that can only be exercised after departure) makes new representations to the Home Office. Lord Hope dissents on this point.

The majority then hold that there is a potential difference between the outcomes of considering a case under s.94 and rule 353. Lords Phillips and Brown dissent and hold that there is no difference, but Lords Hope, Carswell and Neuberger form the majority on this issue.

Where does this leave us? Well, on the facts of this case it was held that the case was doomed to fail under rule 353 as well as s.94. However, in future an asylum seeker who is certified under s.94 can apparently put in a fresh claim which must be considered by the Home Office under the rule 353 criteria.

At least, that is what I think the case says. It is always tricky trying to navigate one’s way through multiple judgments like these.