Archives For Tribunal

Blog - Scales of Justice

In a handy case that arrived just after I’d finished a Court of Appeal skeleton on the same subject, Mr Justice McCloskey has delivered another of his characteristically interesting determinations. This one is MM (unfairness; E & R) Sudan [2014] UKUT 105 (IAC), on the subject of procedural fairness amounting to errors of law. The key question is whether an appealable error of law can arise through no fault on the part of the judge.

As an aside, most lawyers would consider this a bit of a no brainer, but it is interesting to see a detailed analysis and the context in which the issue arose in this case is also an interesting one. Continue Reading…

Shahzad (Art 8: legitimate aim) Pakistan [2014] UKUT 85 (IAC)

Like a bad itch that it can’t help but scratch, the tribunal returns again to the subject of Article 8 and ‘the proper approach’. Regretfully the distasteful, injudicious and simply impolite phrase “a run of the mill case” is again deployed, albeit this time in the context of a student rather than a pensioner and his wife. The Home Office appeal succeeds against an allowed First-tier Tribunal determination. Headnote as follows: Continue Reading…

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The Upper Tribunal has in a new judgment [R (on the application of Kumar & Anor) v Secretary of State for the Home Department (acknowledgement of service; Tribunal arrangements) (IJR) [2014] UKUT 104 (IAC)] now set out how it will deal with the vast majority of judicial reviews in which the Home Office fail to provide a timely Acknowledgment of Service. The ruling almost entirely follows the form anticipated in our blog post following the hearing.

The most surprising feature of the final form of the judgment is that, despite a pretty clear indication at the hearing that these ‘special arrangements’ would have a clear end date following which the ordinary rules would apply, upon reflection this has been watered down to keeping the arrangements ‘under regular review’. Despite the commitments made in Singh, and further claims before the hearing to be getting to grips with the backlog and that further improvement would soon follow, the Tribunal treated the promises of progress with some scepticism, and the Home Office was constrained to accept that the reality is that delays will continue for many months. Continue Reading…

No risk of persecution for gay men in India despite criminalisation

So says the tribunal in MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC), anyway. And even if there was risk in the home area, the tribunal considers that relocation within India is generally reasonable and “LGBT support organisations” can provide help going underground if need be (para 170). Some might think having to go underground and seeking protection from non state actors was a sign of being persecuted, but apparently not.

Pending Country Guidance case list

For we tribunal watchers the list is notably short. Judicial ambitions to categorise, measure and risk assess the entire world have been scaled back, perhaps because of the impossibility of the task but more likely because resources are being absorbed by the transfer of judicial review into the Upper Tribunal. There’s still an odd one on the list though. Risks to Angolan citizens returning to Cabinda? How many UK asylum claims raise that particular issue?

Blog - Scales of Justice

This determination was quietly released by the Judicial Office late last year. It is unusual for immigration cases to be publicised in this way. Presumably in this instance it was because of likely public interest in the final outcome rather than the procedural issues arising. It does seem to me, anecdotally, that the Judicial Office has recently released several cases where Home Office appeals against deportation orders were dismissed.

This case too ends with a good result for the appellant.

Continue Reading…

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It is sad when a judge tasked with deciding whether a British pensioner should live out his last days with his wife or without comments that

this was a very run of the mill case

Maybe for the judge. In which case the judge should consider his or her position as a judge. It certainly is not ‘run of the mill’ for those affected. Unfortunately, this patrician insouciance when determining other people’s lives infects many who work in immigration law.

In this case Cranston J goes on to comment that the pensioner concerned only “relatively recently became a British citizen”. He is but a ‘Plastic Brit‘, as The Daily Mail would say.

Continue Reading…

SD (military service – sexual identity) Turkey CG [2013] UKUT 612 (IAC)

Official headnote:

(1) All Turkish males are required to undergo military service but exemption can be granted on the grounds of physical or mental disability which includes “sexual identity disorder”.

(2) Homosexuality is regarded by the Turkish army as a sexual identity disorder but the perception of homosexuality in Turkey is not reduced to a person’s sexual preference but is informed by an assessment of his whole personality including his outward appearance and behaviour. It is associated with the passive role which is seen as unmanly whereas taking the active role does not attract the same disapproval and is not considered to undermine the essence of manliness.

(3) The exemption process for determining whether a recruit is entitled to exemption generally includes intrusive requirements which do not properly respect the human dignity of someone whose sexual identity would qualify him for exemption such that it can properly be categorised as degrading and involving a real risk of a breach of article 3.

(4) If during his military service a recruit (whether he has not sought exemption or has been refused) is discovered or is perceived to be homosexual as understood in Turkey, there is a reasonable degree of likelihood of ill-treatment of sufficient severity to amount to persecution on the basis of his sexual identity and there is no sufficiency of protection. The risk of such discovery or perception arising during his service will require a fact sensitive analysis of an individual’s particular circumstances including his appearance and mannerisms, the way in which he describes his sexual identity, the extent to which he fits the stereotype of a homosexual as understood within Turkish society and the extent to which he will conceal his sexual identity for reasons not arising from a fear of persecution.

(5) Any such risk likely to arise during service is not negated by the fact that there is an exemption process as that process itself carries a real risk of a breach of article 3.

(6) MS (Risk- Homosexual) Turkey CG [2002] UKIAT is no longer to be regarded as providing country guidance.

Interesting example of the tribunal getting stuck into anthropological issues in order to determine risk. However, I doubt I’m alone in feeling rather unhappy about the requirement the Upper Tribunal here imposes for asylum judges to assess “an individual’s particular circumstances including his appearance and mannerisms, the way in which he describes his sexual identity, the extent to which he fits the stereotype of a homosexual as understood within Turkish society and the extent to which he will conceal his sexual identity for reasons not arising from a fear of persecution.” It sounds pretty intrusive and demeaning and there is considerable potential for lawyers and judges to humiliate the individuals concerned, whether by accident or otherwise. It is also almost an invitation to dismiss cases because the individual concerned is the wrong sort of gay.