Archives For Cases

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.

Continue Reading…

Marghia (procedural fairness) [2014] UKUT 366 (IAC)

Rather harsh but perhaps inevitable decision by Mr Justice Haddon Cave on a student left in the lurch when the start date for her course was changed at the last minute. International students really do get a raw deal from the rigidities of our increasingly absurd immigration system. The official headnote reads:

The common law duty of fairness is essentially about procedural fairness. There is no absolute duty at common law to make decisions which are substantively “fair”. The Court will not interfere with decisions which are objected to as being substantively unfair, except the decision in question falls foul of the Wednesbury test i.e. that no reasonable decision-maker or public body could have arrived at such a decision.

It is a matter for the Secretary of State whether she exercises her residual discretion. The exercise of such residual discretion, which does not appear in the Immigration Rules, is absolutely a matter for the Secretary of State and nobody else, including the Tribunal – Abdi [1996] Imm AR 148.

grass green sky blue

The immigration tribunal reporting committee has been selecting some rather odd cases for reporting. It is a good job there aren’t any difficult legal issues in immigration and asylum law still out there on which judges, lawyers and litigants need guidance and that the tribunal is able to turn its collective mind to matters such as Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC): Continue Reading…

Chelvan

In an e-mail posting on a practitioners’ discussion group last week, a representative asked the group for details of a psychiatrist in order to prove that the detained client is gay. In follow-up e-mails, it was revealed that the enquiry was prompted by Counsel’s advice, and that the author meant no offence. Luckily for the author of the enquiry, the Court of Justice of the European Union last Thursday published the Opinion of Advocate General Sharpston in the Cases of A, B and C , which relate to how an asylum seeker could establish that they are gay, or more importantly, what level of investigation would violate their human rights? Continue Reading…

wedding rings

The idea of a “proxy marriage” is rather alien in the UK and our fairly recently developed romantic love culture. It involves one or both parties to a marriage being represented by someone else at the marriage ceremony rather than attending in person. It is a sort of literal version of one’s mind being elsewhere, I suppose, and in an increasingly globalised and time-poor world will perhaps become more common…

Proxy marriages have been addressed in at least two previous tribunal determinations (and my first post on this subject was in 2008) and also featured in a recent Chief Inspector or Borders and Immigration report (and even more so in the ensuing media coverage). The latest case is TA and Others (Kareem explained) Ghana [2014] UKUT 316 (IAC). It usually means trouble where a previous determination or judgment needs to be “explained”. Continue Reading…

Pinnochio by Grand Parc - Bordeaux, France

Omenma (Conditional discharge – not a conviction of an offence) [2014] UKUT 314 (IAC) is an interesting case for two reasons. Firstly, the Home Office accepted that the decision was wrong and withdrew it. Nevertheless, because the case had reached the Upper Tribunal, the withdrawal of decision did not automatically deprive the Upper Tribunal of jurisdiction, and it went on to determine the appeal anyway.

The actual reason for it being reported is that the appellant had answered “no” to the standard visa application form question about previous convictions. In fact she had pleaded guilty to shoplifting some years previously and been given a conditional discharge. Was she dishonest in her answer? The Home Office and the First-tier judge answered “yes” and her application and appeal had therefore failed so far. Continue Reading…

Gaddafi mural with bullet holes by mojomogwai, on Flickr

Nearly 3 years after the end of the civil war in Libya that swept away the Qadhafi regime and its associated country guidance, and after nearly 8 months of deliberation, the Upper Tribunal has decided that Libya isn’t so bad after all, at least for men. The determination of AT and Others (Article 15c; risk categories) (CG) [2014] UKUT 318 (IAC) runs to 261 paragraphs plus 8 appendices, and the tribunal is to be commended for its lucid treatment of a huge amount of evidence, delay (and some conclusions) notwithstanding. The hearing itself was notable for taking live videolink evidence from a country expert in New York City. Continue Reading…

By Chris Beckett, on Flickr

No commentary is really needed, I think. The powerful judgment by Lord Justice Moses finds the residence test ultra vires (beyond the powers granted by Parliament) and unlawfully discriminatory. The judgment includes some choice wording. What follows are the words of the judgment, but with some missed out. You can read the whole thing here: R (On the Application Of The Public Law Project) v The Secretary of State for Justice the Office of the Children’s Commissioner [2014] EWHC 2365 (Admin)I’ve omitted most of the usual ellipses for ease of reading. Continue Reading…