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Afghan interpreters for UK armed forces lose claim that relocation scheme was unlawful

Former interpreters for UK armed forces in Afghanistan have lost their claim that the Afghn interpreter relocation scheme was unlawful on the basis it was less generous than the Iraqi equivalent. They succeeded on the basis that the public sector equality duty had not been properly complied with but this made no difference overall. Judgment: Hottak & Anor, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs & Anor [2016] EWCA Civ 438 (09 May 2016)

10th May 2016 By Colin Yeo

Supreme Court to consider relationship between Article 8 and Immigration Rules

Some three years after the radical rewriting of the Immigration Rules for families in 2012, the Supreme Court has granted permission to appeal in two important cases, SS (Congo) [2015] EWCA Civ 387 and Agyarko [2015] EWCA Civ 440. SS (Congo) is reported to be linked with the MM case on the minimum income requirement for spouses but I am not sure about Agyarko. Hearing for SS (Congo) to be combined with #MMcase on 22nd-24th Feb. All of a sudden,three days does not seem enough https://t.co/nufDrCFbMl — BritCits (@BritCits) December 3, 2015 Permission was refused in: Iqbal [2015] EWCA Civ 169 on the Tier 1 Entrepreneur rules Dumliauskas and Others [2015] EWCA Civ 145 on…

3rd December 2015 By Colin Yeo

Report: “Serious irreversible harm” test case heard in Court of Appeal

This week, Lord Justices Elias, Richards and McCombe sat in the Court of Appeal and heard the first test cases against Section 94B of the Nationality, Immigration and Asylum Act 2002. Section 94B, introduced by the Immigration Act 2014 and which came into force on 28th July 2014, provides the Home Office the power to certify human rights claims made by people liable to deportation, so they are not entitled to an appeal within the UK. Instead they are expected to bring their appeal from the country in which the Home Office propose deportation. This logic has been catchily titled “deport first, appeal later” and the Conservatives pledged in their manifesto to…

25th September 2015 By Mia Light

Supreme Court admissibility decisions in immigration cases for March 2015

The Supreme Court has granted permission to appeal in the case of MP (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 829 and allocated reference number UKSC 2015/0027. Progress can be tracked on the Supreme Court website but the case does not yet appear there. It will be very interesting to see what the Supreme Court makes of the Sri Lankan country guidance. UPDATE: Alasdair McKenzie has kindly emailed to say that permission was granted “only on the question of whether Mr MP ought to have got HP in consequence of the accepted Article 3 case based on his mental health.  The challenge to the CG was refused PTA.” –…

21st April 2015 By Colin Yeo

Litigants in person, costs, consent orders …and Hamlet

The case of R (on the application of Muwonge) v Secretary of State for the Home Department (consent orders: costs: guidance) (IJR) [2014] UKUT 514 (IAC) makes for interesting law and interesting reading. It is, apart from anything, the first case I can immediately recall featuring a Prologue, a section entitled The Plot and and an Epilogue and which opens and closes with quotation from Hamlet. More importantly for litigants in person and claimant lawyers, though, it should put an end to dodgy dealing by Treasury Solicitors when it comes to costs.

21st November 2014 By Colin Yeo

Dano and the exclusion of inactive EU citizens from certain non-contributory social benefits

When the Grand Chamber handed down its judgment in Dano v Jobcenter Leipzig (C-333/13) on 11 November 2014, it was the subject of much media attention: Germany can deny benefits to jobless EU migrants, court rules (The Guardian), Landmark ECJ ruling boosts David Cameron’s bid to clamp down on EU benefit migrants (The Independent), EU court ruling backs curbs on ‘benefit tourism’ (BBC News) and The end for benefit tourism: European court rules unemployed EU migrants can be denied welfare payments (The Mirror). Such media interest for a judgment of a Court of Justice of the European Union is unusual, and for cases on social security it is practically unheard of….

19th November 2014 By Desmond Rutledge

Right to citizenship? Supreme Court to decide

The Supreme Court will today hear a case, Secretary of State for the Home Department (Respondent) v B2 (Appellant), concerning the definition of statelessness in international law and in which the Secretary of State’s power under section 40 (2) of the British Nationality Act 1981 to deprive a naturalised British citizen of that status will be examined. The case could determine the limits of the Secretary of State’s power to deprive a person of British nationality.

18th November 2014 By Grace Brown

Legacy cases “laid to rest” by Court of Appeal

Back in 2006, even before this blog first began and in the aftermath of his predecessor’s resignation, then Home Secretary John Reid declared that his department was “not fit for purpose”. A huge backlog of some half a million cases had been uncovered and the department would aim to deal with this “legacy”, one way or another, within five years. Since then the immigration functions of the Home Office have been farmed out to a separate agency, brought back in house and, as with its malformed parent, the Legacy somehow staggers on like an extra in a bad zombie flick. Plus ça change.

14th November 2014 By Colin Yeo

Tarakhel: another blow to the Dublin system

In Tarakhel v Switzerland [2014] ECHR 1185 (04 November 2014) the Grand Chamber of the European Court of Human Rights (“ECtHR”) has issued its long-awaited decision as to the lawfulness of returning asylum seekers to Italy, a subject that has engaged the refugee lawyers of Europe for some years. The ECtHR rules that individualised enquiries leading to individual assurances will be necessary in the case of child returnees including families with children.

13th November 2014 By Mark Symes

The new Somalia Country Guidance: green lights and red lights

Long-awaited guidance on returns to Mogadishu poses significant, but not insurmountable, challenges to Appellants It may be 286 pages long but the apparent effect of the new Somalia Country Guidance — MOJ & Ors (Return to Mogadishu) (CG) [2014] UKUT 442 (IAC) — can, from the Home Office’s perspective, be summed up in one phrase: a green light for returns to Mogadishu.

31st October 2014 By Taimour Lay

Strasbourg decides important case on respect for family life

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…

14th October 2014 By Colin Yeo

Court of Appeal examines new human rights statute and rules

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…

13th October 2014 By Colin Yeo

Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC)

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.

1st October 2014 By Colin Yeo

New country guidance on North Korean asylum cases

In GP and others (South Korean citizenship) North Korea CG [2014] UKUT 391 (IAC) the tribunal concludes, to cut a long story short, that North Koreans can jolly well go back to South Korea whether they like it or not. Henceforth. Whereforeunto. Hereafter. Thereof.

25th September 2014 By Colin Yeo

Reported immigration case on prospective family proceedings

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…

25th September 2014 By Colin Yeo

More case law on prison and protection against deportation in EU law

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…

25th September 2014 By Colin Yeo

Contrasting cases on grounds of appeal

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.

11th September 2014 By Colin Yeo

Family visitor receives £125,000 damages for mistreatment by immigration officials

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…

4th September 2014 By Colin Yeo

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

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.

15th August 2014 By Colin Yeo

Genuineness test for entrepreneurs and new evidence on appeal

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…

12th August 2014 By Colin Yeo

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…

12th August 2014 By Colin Yeo

Useful case (Pope is Catholic) [2014] UKUT 00000

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):

24th July 2014 By Colin Yeo

From ABC to DSSH: How to prove that you are a gay refugee?

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?

23rd July 2014 By S Chelvan

Proxy marriage and domicile

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…

21st July 2014 By Colin Yeo

Conditional discharge is not a conviction. Duh.

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…

18th July 2014 By Colin Yeo

Difference between domestic and EU law on deportation

The luggage carousel of the tribunal’s reporting committee has spewed forth a fresh batch of cases. Two of them concern deportation, one under domestic primary legislation and the other under European Union law. The facts are very different but the cases illustrate well the stark differences between domestic and EU law on deportation.

17th July 2014 By Colin Yeo

New Libya Country Guidance asylum case

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.

16th July 2014 By Jared Ficklin

Legal Aid residence test found unlawful. Big time.

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.

15th July 2014 By Colin Yeo

Detained fast track as presently operated unlawful

In Detention Action v Secretary of State for the Home Department [2014] EWHC 2245, Ouseley J considered a challenge to the lawfulness of the policy and practice applied by the Secretary of State in the operation of the detained fast track and concluded that it ‘carries with it too high a risk of unfair determinations’ ([221]).

15th July 2014 By Bijan Hoshi

Discretionary registration of children as British

In the case of R (on the application of FI) v Secretary of State for the Home Department [2014] EWHC 2287 (Admin) the court was asked to review a decision to refuse to register as a British citizen a 14-year-old who had been settled with Indefinite Leave to Enter the UK for 8 years and was coming up to his GCSEs.

14th July 2014 By Amanda Weston

Court of Appeal judgment critical of expert commenting on refusal letter

In MF (Albania) v SSHD [2014] EWCA Civ 902, the Court of Appeal considered and upheld the criticisms of the appellant’s country expert made by the Upper Tribunal. In doing so, the Court appeared to disapprove of the practice of instructing expert witnesses to comment on particular findings made by decision-makers in reasons for refusal letters.

10th July 2014 By Bijan Hoshi

No recourse to public funds challenges

R (on the application of NS & others) v SSHD [2014] EWHC 1971 (Admin) The challenge was primarily to the presumption of “no recourse to public funds” which was inserted into the Immigration Rules at Appendix FM paragraph D-LTRPT 1.2 in December 2012. The argument applies equally to paragraph 276BE. The linked case of Akhalu was also dismissed.

1st July 2014 By Amanda Weston

MORE evidential flexibility cases

Having been overruled by the Court of Appeal in the case of Rodriguez [2014] EWCA Civ 2 (FM post here), Mr Justice McCloskey, President of the Immigration and Asylum Chamber of the Upper Tribunal, has returned to the vexed issue of ‘evidential flexibility’ in a trio of cases: Durrani (Entrepreneurs: bank letters; evidential flexibility) [2014] UKUT 295 (IAC) Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC) Fayyaz (Entrepreneurs: paragraph 41-SD(a)(i) – “provided to”) [2014] UKUT 296 (IAC) This is an issue that the Supreme Court will be examining in the coming months, permission having been granted on 19 May 2014 in Rodriguez (now called Mandalia). These latest Upper…

27th June 2014 By Colin Yeo

Update on Haleemudeen vs Edgehill

Haleemudeen on remittal to UT: SoS conceded Edgehill applied, no need for deference to post-July 2012 and found disproportionate on Art 8 — Mansfield Chambers (@MansfieldImm) June 20, 2014 Free Movement write up and prediction here. And an update from Paul Richardson, Counsel for Mr Haleemudeen:

20th June 2014 By Colin Yeo

Woman who temporarily gives up work for childbirth still a worker

Court of Justice of the European Union in Saint Prix v UK (Case C‑507/12): Article 45 TFEU must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child. Astonishing that the UK Government fought this one so hard in this day and age.

20th June 2014 By Colin Yeo

Financial year for Appendix FM

In Hameed (Appendix FM – financial year) [2014] UKUT 00266 (IAC) the Upper Tribunal has no hesitation in finding that it is the tax year that applies when calculating income, not a business’ own accounting year. No actual reasons are discernible as such.

18th June 2014 By Colin Yeo

Italy and Dublin: Tabrizagh test case

Judgment has finally been handed down in the latest test case on Dublin removals to Italy, Tabrizagh and others v SSHD [2014] EWHC 1914 (Admin) and although it is on any view bad news, there is much in it to consider. In a carefully reasoned and frankly impressive decision the newly made up Laing J dismissed the claimants’ challenge on the facts. This is the first Dublin case to consider the principles in the Supreme Court’s ground-breaking EM (Eritrea) v SSHD [2014] UKSC 12.

16th June 2014 By Greg Ó Ceallaigh

Refusal of legal aid held unlawful

In a big win for legal aid lawyers and their clients, the High Court has held to be unlawful the refusal of legal aid in six test cases and has additionally held unlawful the guidance applied by the Legal Aid Agency in refusing legal aid: It follows from what I have so far said that in my view the Guidance is defective in that it sets too high a threshold and fails to recognise that Article 8 does apply even in immigration cases and, despite the exclusion of Article 6, carries with it procedural requirements which must be taken into account. The case is Gudanaviciene & Ors v Director of Legal…

13th June 2014 By Colin Yeo
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