Archives For Cases

Angry cat

In the case of Jeunesse v. The Netherlands (Application no. 12738/10) the European Court of Human Rights has considered a refusal to allow a woman to settle in the Netherlands with her husband and three children. The case is particularly interesting because it is a Grand Chamber decision and because the court recognises that much of its case law on Article 8 and immigration issues involves the rather different scenario of expulsion of an already settled person as opposed to their admission. The court ultimately finds that there was a breach of Article 8 of the European Convention on Human Rights.

Those affected by the harsh requirements of Appendix FM and the spouse minimum income rule will be particularly interested in the case.

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Angry cat

In the case of YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 the Court of Appeal has examined the effect of the new Immigration Act 2014 human rights statutory considerations and the accompanying changes to the Immigration Rules. The court concludes that the new regime is irrelevant when considering whether an error of law was made but will be relevant where an appeal is being remade if an error of law is found.

The case concerned a thirty year old man born in Uganda who had entered the UK aged six. He had committed some violent offences between the ages of 15 and 19 and then later was convicted of attending a terrorist training camp. He was married to a British citizen and had three children. Continue Reading…

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In the case of Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC) the unnamed First-tier Tribunal judge had refused to adjourn a case. This was despite a letter from the appellant’s solicitors requesting a short adjournment on the grounds that the appellant was ill and stating that they had been unable to obtain evidence from the doctor or hospital “mainly to legal restraint under the Data Protection Act”. The appeal was dismissed but the appellant sought permission to appeal with a note saying that he had recently been diagnosed as diabetic and had been struggling with the medication. Continue Reading…

Image by David

Official headnote from Mohammed (Family Court proceedings-outcome) [2014] UKUT 419 (IAC):

Whilst it may be that in the Family Court jurisdiction prior to the coming into force on 22 April 2014 of the Children and Families Act 2014 there was always the possibility of a parent making a fresh application relating to contact, there is nothing in the guidance given in RS (Immigration and Family Court) India [2012] UKUT 218 (IAC) (which was approved by the Court of Appeal in Mohan v Secretary of State for the Home Department[2012] EWCA Civ 1363) that supports the notion that the mere possibility of such an application being made (or pursued) is a relevant criterion in the case of an immigration appeal when deciding whether to adjourn an appeal or to direct a grant of discretionary leave in order for such proceedings to be pursued. The guidance is concerned with whether there is a realistic prospect of the Family Court making a decision that will have a material impact on the relationship between a child and the parent facing immigration measures such as deportation.

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By Szlivka Róbert

Official headnote for MG (prison-Article 28(3) (a) of Citizens Directive) Portugal [2014] UKUT 00392 (IAC):

(1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion decision made against them must be based upon imperative grounds of public security.

(2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG in respect of the meaning of the “enhanced protection” provision.

(3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far as establishing integration is concerned.

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coffee grounds

In a fresh batch of cases from the reporting committee, two of those cases address the question of how grounds should be drafted, what constitutes an error of law and when permission should be granted. One of the cases concerns an appeal by a claimant and the other an appeal by the Home Office.

There is an interesting difference between the cases. In the first, VHR (unmeritorious grounds) Jamaica [2014] UKUT 367 (IAC), the judge admonishes the lawyers for mounting challenges. In the other, Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC) the judge states that the tribunal will deal robustly with deficient grounds. Continue Reading…

International arrivals

In July the High Court awarded an Indian lady, Radha Patel, £125,000 in damages for her treatment by immigration officials on and after arrival as a family visitor. The case is Radha Naran Patel v Secretary of State for the Home Department [2014] EWHC 501 (Admin) and it is extremely long judgment and has received mainstream press coverage, so I am not going to go over the full details here. As an interesting case I want to make sure I can easily find it in future, though, and that is as ever my main criterion for adding material to Free Movement.

It is an interesting one as it involves stark findings of dishonesty and manufacture of evidence by senior immigration officials.

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The phased withdrawal of US forces has not led to a return to generalised sectarian conflict and indeed appears to have resulted in a significant annualised drop in the number of security incidents … the most likely development is that the levels of violence will either continue to reduce or remain at around the same level as in 2010, 2011 and the first 9 months of 2012.

HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409 (IAC)

cuddly toys

The case of Ahmed and Another (PBS: admissible evidence) [2014] UKUT 365 (IAC) concerns the ‘genuineness’ test that was introduced for entrepreneur applications as the final death knell for the original concept of the Points Based System as a tool for objective decision making. On appeal, the tribunal holds that s.85A of the Nationality, Immigration and Asylum Act 2002 prevents a judge from considering evidence that was not submitted with the original application to the Home Office because the genuineness test relates to the award of points under the Points Based System.

This conclusion is itself questionable as the Home Office itself seems to consider that the genuineness part of the rules is ‘non points based’ and therefore exempt from s.85A. Perhaps more importantly, though, the tribunal seems blissfully unaware in this decision of how the genuineness test operates in practice.

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