Fresh claims *might* generate right of appeal after all

Two further cases have added to the jurisprudence on whether it is possible under the Immigration Act 2014 to appeal against a refusal of a fresh protection claim. The cases are R (on the application of Sharif Hussein) v First-Tier Tribunal (para 353: present scope and effect) IJR [2016] UKUT 409 (IAC) and  Sheidu (Further submissions; appealable decision) [2016] UKUT 412 (IAC). As background, I and others have argued since the passage of the Immigration Act 2014 that there is a right of appeal against a decision to reject a fresh human rights or asylum claim. By “fresh” I mean not the initial claim for protection but a second or…

26th September 2016 By Colin Yeo

Return of passport by Home Office to sit Secure English Language Test

The Home Office has confirmed that where it holds the passport of a migrant who wishes to sit the Secure English Language Test (SELT) it will either return the passport to enable the migrant to sit the SELT or will confirm directly with the SELT centre that the passport is held and is genuine. The full FOI response can be accessed here and the relevant parts are as follows: The Home Office does not has not issued any guidance specifically on the issue of the return of passports held by the Home Office to enable an individual to present identity documents at an approved Secure English Language Testing (SELT) centre. However,…

23rd September 2016 By Colin Yeo

No right of appeal against refusals for extended family members rules tribunal

In the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC) the Upper Tribunal has ruled that there is no right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member. The official headnote: There is no statutory right of appeal against the decision of the Secretary of State not to grant a Residence Card to a person claiming to be an Extended Family Member. The decision does not affect EEA nationals themselves nor family members, only “extended family members”, usually durable partners, dependent other relatives or members of household: see paragraph 8 of the…

21st September 2016 By Colin Yeo

Immigration tribunal to be merged into unified online justice model?

In a joint statement made yesterday, the Lord Chancellor, Lord Chief Justice and Senior President of Tribunals announced that all courts and tribunals will be moving towards an online model and will also merge into a single justice system. The proposals for the civil courts have been described as a “lawyerless” model in which lawyers are not required. This news comes the same day as the announcement that dramatic increases in immigration tribunal fees are to go ahead “as soon as possible.” There is no specific mention of the immigration tribunal int he joint statement but on tribunals generally the statement says: …The necessary ingredients are already in place to help…

16th September 2016 By Colin Yeo

Upper Tribunal can review Home Office decisions made concerning Scottish residents

The Upper Tribunal’s jurisdiction to decide an application for Judicial Review is not affected by the applicant’s being in Scotland. The Tribunal will, however, consider issues of forum non conveniens if it is suggested that its jurisdiction should not be exercised. Not sure that the Scottish judiciary will be terribly pleased about this. Some reactions on Twitter: @MalikZane very interesting- mechanics of raising a JR in England 'seems' easier than Scotland — Darren Stevenson (@HC395) August 12, 2016 Scottish bar will not be happy! — Deepak Bali (@iamdbali) September 5, 2016 Source: Kashif, R (on the application of) v Secretary of State for the Home Department (JR jurisdiction: applicant in Scotland…

5th September 2016 By Colin Yeo

No in-country right of appeal for two men accused of having their English tests taken by a proxy

Evidence had come to light that ETS tests in the case of these two men may have been taken by a proxy. Therefore their leave to remain in the UK was curtailed. The Court of Appeal agreed with the Home Office, quashing the decisions of the Upper Tribunal, which alongside the First-Tier Tribunal had accepted the two men’s arguments on the facts and law on appeal from the decision. The main point of law concerns section 92(4)(a) of the 2002 Act, and whether an appeal to a curtailment of leave which contains a human rights claim provides an in-country right of appeal in accordance with that section of the Act….

18th August 2016 By Paul Erdunast

Administrative Court judicial review guide: essential reading for practitioners

A new 152 page guide to judicial review applications has been issued by the Administrative Court Office. It is vitally important reading for all practitioners: The Guide does not have the force of law, but parties using the Administrative Court will be expected to act in accordance with it. There is no equivalent for immigration judicial reviews in the Upper Tribunal, but much of the guide is transferable as a matter of principle. Source: Administrative Court judicial review guide – Publications – GOV.UK

11th August 2016 By Colin Yeo

Fees for Upper Tribunal judicial review applications rise again

Fees for judicial review applications hare risen yet again from today, Monday 25 July 2016. A new fees order was quietly laid last Friday: The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016. The fees going up are for the permission stage and they rise by 10%. Other fees remain as they were. There is no convenient and accessible list of the different fees for Upper Tribunal judicial review applications, so I thought it might be useful to put them together into a blog post. Why the Upper Tribunal cannot do this on their website I do not really know, but it turns out the President does attach a schedule of…

25th July 2016 By Colin Yeo

Interesting report of tribunal expediting appeal after legal challenge

Available to ILPA members only, interesting report of the tribunal initially refusing to expedite a refugee family reunion appeal but agreeing to do so after a pre action letter was sent. Made a huge difference to the listing time. Source: Note on expediting cases in the First-tier Tribunal by Ben Gaston… · Resources · Immigration Law Practitioners’ Association

22nd July 2016 By Colin Yeo

Article 8 assessed at date of decision in entry clearance cases

Article 8 is to be assessed as at the date of decision in entry clearance cases, the Court of Appeal has found: Accordingly, I would reject the date of decision argument. The decision under appeal was, as regards article 8 as much as the policy issue, the ECO’s decision of 12 March 2012; and the relevant circumstances were thus, in accordance with section 85A (2), those appertaining at the date of that decision. Source: Gurung v The Entry Clearance Officer, New Delhi [2016] EWCA Civ 358 (07 April 2016) This post has been corrected. It originally suggested that Article 8 was to be assessed at the date of appeal, which is…

13th July 2016 By Free Movement

Should an application for judicial review be stayed while the decision maker reconsiders?

Paragraph 1: The situation in the present case raises again the question of whether it is appropriate to stay an application for judicial review when the defendant public authority has agreed to reconsider the decision in point, from scratch, with a fresh and open mind. The answer is that it is not appropriate to do so. Staying an application would have the effect of bringing the later decision within the scope of the judicial review. This would be unacceptable primarily because the decision-maker would have the Administrative Court’s shadow hanging over them when they make the decision. This is inconsistent with the function of the Administrative Court, which is to review discrete decisions by means of…

11th July 2016 By Paul Erdunast

Tribunal decides it has no jurisdiction to determine whether fresh protection claim test is met

More from the tribunal on how a “protection claim” implicitly means the paragraph 353 fresh claim must be met where it applies. The tribunal must decide its jurisdiction, apparently, but not in these circumstances, where someone else must decide it. I still don’t buy it, but so far the higher courts have shown zero interest in overturning this line of tribunal authority. 1.  A decision that further submissions do not amount to a ‘fresh claim’ under para 353 of the Immigration Rules is not a decision to refuse a protection or human rights claim and so does not give rise to a right of appeal to the First-tier Tribunal under s.82…

28th June 2016 By Colin Yeo

New case on effective service under 2013 amendments

Official headnote: 1. For the purposes of Art 8ZA(2) of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161)(as inserted by SI 2013/174 with effect from 12 July 2013), a notice is not sent to a postal address “provided for correspondence by the person” if the address is provided to the Secretary of State by a third party such as a sponsor educational institution unless the third party is the authorised agent of the person. 2. However, where no postal address (or e-mail address) for correspondence has been provided, an address provided by a third party may be the “last-known or usual place of abode” of the person…

23rd June 2016 By Colin Yeo

Is there an appeal against refusal of entry clearance under the Immigration Act 2014?

Yes, there is a right of appeal against a refusal of entry clearance, even under the appeals regime introduced by the Immigration Act 2014. I mention this because a client’s appeal was just rejected by the First-tier Tribunal under rule 22 of the procedure rules on the basis that there is no right of appeal against refusal of entry clearance. It is very worrying that a duty judge can get this so very wrong. We are attempting an appeal to the Upper Tribunal as the most appropriate remedy but the case of Abiyat and others (rights of appeal) Iran [2011] UKUT 00314 (IAC) is somewhat ambiguous on whether there is…

16th June 2016 By Colin Yeo

New entry clearance guidance on extant leave: ECB22

This documents contains information and guidance about how applicants who already hold an entry clearance can submit applications for another entry clearance. Applicants are not allowed to have two forms of leave at the same time. Source: Extant leave: ECB22 – GOV.UK

15th June 2016 By Colin Yeo

Get your visa in just five working days*… for an extra £400

Get a quicker decision on your visa application if you’ve already applied by post: what forms you need, the cost and how long it takes There are significant caveats. It costs an additional £400 on top of the normal application fee. The service is only available for applications on these forms: SET (AF) SET (F) SET (LR) SET (M) SET (O) Biometric residence permit for those already settled in the UK Only the first five applicants per day will be accepted, they say, although I would guess that will change once the service has been tested. And you might not get your visa in five days anyway if further checks…

7th June 2016 By Colin Yeo

Court of Appeal finds that Exceptional Case Funding regime is lawful

The Court of Appeal has found that the Exceptional Case Funding regime for legal aid is lawful, overturning the decision of Collins J in the High Court ([2015] EWHC Admin 1965). The issues are distinct to R (on the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 in that this was a generic challenge the new, amended scheme. The leading judgment is that of Laws LJ, whose decision on the legal aid residence test was overturned rather peremptorily by the Supreme Court half way through the hearing. Briggs LJ dissents: I have the misfortune to have reached the opposite conclusion to that of both my Lords….

20th May 2016 By Colin Yeo

Premium visa upgrade request form

New to me at any rate: Form to request for your submitted postal visa application to be transferred to our premium service. Source: Premium visa upgrade request form – Publications – GOV.UK

20th May 2016 By Colin Yeo

Tribunal no longer able to allow or dismiss appeals under Immigration Act 2014 regime

Upper Tribunal Judge Ockelton has drawn attention to the potential issues surrounding the evisceration of the tribunal’s statutory remit by the Immigration Act 2014 in a new reported decision, Katsonga v Secretary Of State For The Home Department (“Slip Rule” : FtT’s general powers : Zimbabwe) [2016] UKUT 2298 (IAC). He suggests that the tribunal is no longer empowered to allow or dismiss appeals, calling into question what exactly the point of the tribunal is any more.

19th May 2016 By Colin Yeo

Costs in public law cases: what counts as a win?

The issue of costs in immigration cases continues to vex the courts. It is supposed to be unusual for the higher courts to have to deal with costs issues but in recent years we have seen some very low quality and controversial costs decisions at first instance in the Administrative Court and the Upper Tribunal. The Court of Appeal has had to intervene repeatedly. Typically the overturned first instance decisions have been to the detriment of publicly funded claimant lawyers assisting clients with cases against the Government. A particular issue which has recurred in the Upper Tribunal is what decision on costs should be made where a decision is withdrawn…

17th May 2016 By Colin Yeo

Presidential guidance on amending claims for judicial review

Presidential guidance on amending claims for judicial review: (i) The amendment of a judicial review claim form preceding the lodgement of the Acknowledgement of Service does not require the permission of the Tribunal. Such permission is required in all other instances. (ii) In deciding whether to exercise its discretionary power to permit amendment, the Tribunal will have regard to the overriding objective, fairness, reasonableness and the public law character of the proceedings. The Tribunal will also be alert to any possible subversion or misuse of its processes. (iii) Every application to amend should be made formally, in writing, on notice to all other parties and paying the appropriate fee which,…

16th May 2016 By Colin Yeo

Claimant duty of candour in judicial review proceedings

Hot on the heels of a new consultation on the duty of candour in judicial review proceedings, the Court of Appeal has handed down an important judgment on the same subject: R (on the application of Khan) v Secretary of State for the Home Department [2016] EWCA Civ 416. It is specifically addressed to the claimant’s duty of candour and it endorses the comments of President McCloskey in the earlier Upper Tribunal case of Bilal Mahmood [2014] UKUT 439 (IAC) (FM post: Judicial toolkit for dealing with miscreant immigration lawyers). The consultation and case also follow on from the high profile referral of a prominent solicitors firm to the SRA for failing to…

9th May 2016 By Colin Yeo

Judiciary consults on Defendant and Claimant Duty of Candour and Disclosure in Judicial Review Proceedings

A consultation on amendments to the practice direction on duty of candour in judicial review proceedings has been launched by the judiciary. The consultation paper has been prepared by Lewis and Cranston JJ. The headline refers to the Defendant’s duty of candour but in fact very little indeed is proposed on that front. The paper does, though, propose a major change to the practice direction on Claimant duty of candour, though… The Lord Chief Justice has issued a Discussion Paper by Mr Justice Cranston and Mr Justice Lewis, which considers the defendant’s duty of candour and disclosure in judicial review proceedings. The Discussion Paper proposes reforms to CPR Practice Direction…

4th May 2016 By Colin Yeo

Immigration tribunal can appoint litigation friend despite no provision in the rules

In the recent case of R (on the application of C) v First-Tier Tribunal and Others [2016] EWHC 707 (Admin) (not yet on BAILII but available on Westlaw) Picken J ruled that the immigration tribunal can appoint a litigation friend to represent a person who lacks capacity even though there is no provision to do so in the procedure rules, nor indeed in the statutory underpinnings of the tribunal. The context to this case is that in July 2015 the Law Society issued a Practice Note (see section 4.7 and 4.7.1) which suggests that where a person lacks capacity to give instructions to a lawyer, a solicitor will not be able…

27th April 2016 By Colin Yeo

Massive increase in immigration appeal fees proposed

The Government is proposing a massive fivefold increase in immigration appeal fees in order to make the immigration tribunal the only part of the court and tribunal service entirely self funded by fees: We therefore propose increasing fees in the First-tier Tribunal from £80 to £490 for an application for a decision on the papers and from £140 to £800 for an application for an oral hearing. We also propose introducing a new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal. We also believe that the same principles should apply to appeals to the Upper Tribunal (Immigration and Asylum Chamber) so…

21st April 2016 By Colin Yeo

Supreme Court allows appeal against residence test for legal aid

The Supreme Court has allowed the appeal against the residence test for legal aid, overturning the Court of Appeal judgment in favour of the Home Office. The basis for the Supreme Court’s decision is that the Lord Chancellor, Chris Grayling at that time, did not have the legal power to introduce the residence test. A second issue was to be argued regarding whether the test was unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998 but the Court did not hear argument on that question. The residence test limited legal aid to children under 12 months old and those who have been lawfully residence for 12…

19th April 2016 By Colin Yeo

Does limiting judicial resources change judicial behaviour?

In a VERY interesting paper, Robert Thomas of the University of Manchester analyses the statistics on judicial review cases since they were transferred from the Administrative Court to the Upper Tribunal. He finds that the number and proportion of claims certified as “totally without merit” has increased considerably and so has the length of time it takes a claim to get to a substantive hearing. He goes on to suggest that the massive increase in tribunal workload with no increase in judicial resources has affected judicial decision making.

19th April 2016 By Colin Yeo

Immigration decision triggers right of appeal, not notice of decision

It is the immigration decision that triggers the right of appeal, not the notice of decision: Singh (No immigration decision – jurisdiction)[2013] UKUT 440 (IAC) is authority for proposition that the First-tier Tribunal has jurisdiction to hear an appeal only where there has been an immigration decision. It is not authority for the proposition that where an immigration decision has been made the First-tier Tribunal has no jurisdiction to hear an appeal against such decision unless the SSHD has first complied with her obligations under the Immigration (Notices) Regulations 2003. This decision was made under the old appeal regime prior to the Immigration Act 2014. I would have thought it…

18th April 2016 By Colin Yeo

Section 3C leave does not always protect during appeals

The Home Office has issued a new updated version of its policy on section 3C and 3D leave: Leave extended by section 3C (and leave extended by section 3D in transitional cases). Section 3C and 3D leave is an automatic type of leave created by an amendment to the Immigration Act 1971 so that where a person makes a valid application to extend his or her leave to enter or remain and the application is refused, that person’s immigration status would be extended during any waiting time for the application to be decided or for an appeal to be decided. Except that is not quite true any more. Section 3C was amended…

11th April 2016 By Colin Yeo

Increases to immigration judicial review fees from 21 March 2016

Big increase to fees for immigration judicial review applications from 21 March 2016. See paragraph 4 of the Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016: (a)  for the entry corresponding to fee 2.1 (application on notice where no other fee is specified) for “£80” substitute “£255”; (b)  for the entry corresponding to fee 2.2 (application by consent or without notice where no other fee is specified) for “£45” substitute “£100”; (c)  for the entry corresponding to fee 2.3 (application for a summons or order for a witness to attend the Tribunal) for “£40” substitute “£50”; (d)  for the entry corresponding to fee 3.1(a) (request for a copy…

17th March 2016 By Colin Yeo

Date stamp does not not confer ILR in returning resident cases

A date stamp in a passport or travel document does not confer ILR in cases of returning residents, the Upper Tribunal has held in an interesting case. The facts make it all the more interesting: it involves a recognised refugee from Libya who had returned to live in that country and obtained a Libyan passport, has been absent for more than two years and on return did not present his passport but instead his refugee travel document. The official headnote: (1) The judgments of the Court of Appeal in R v Secretary of State for the Home Department ex parte Bagga [1991] 1 QB 485 are authority for the proposition that, if…

15th March 2016 By Colin Yeo

Tribunal sticks to its guns on Waqar, fresh claims and appeals

The tribunal is sticking to its guns on whether a human rights claim must meet the paragraph 353 test for fresh claims in order to give rise to a right of appeal: 1. Notwithstanding the amendments brought about by the Immigration Act 2014 to the types of decisions appealable under s82 of the Nationality, Immigration and Asylum Act 2002, para 353 of HC395 continues to perform a gateway function in respect of access to a right of appeal. Arguments to the contrary, founded upon dicta in BA (Nigeria) v SSHD[2009] UKSC 7, are misconceived because, as explained in ZA (Nigeria) v SSHD [2010] EWCA Civ 926, in BA (Nigeria) immigration decisions (of a type that…

14th March 2016 By Colin Yeo

No special rule for public authorities in litigation

In the case of Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 the claimant was a Pakistani national aged 70. She had applied for leave to remain in the UK, her application had been refused by the Home Office and she had appealed. Her appeal was allowed under an old version of paragraph 276ADE of the Immigration Rules, which then permitted a person to remain who “has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK”. Unhappy with this outcome and — as with the more whitenewsworthy case of Myrtle Cothill — unwilling…

7th March 2016 By Colin Yeo

High Court finds Claimants grounds of appeal are “plainly right”, despite refusals of permission by both the FTT and UT

The case of G and H v Upper Tribunal and SSHD [2016] EWHC 239 (Admin) is notable as the first reported case of a successful substantive Cart JR against a decision of the Upper Tribunal (Immigration and Asylum Chamber) refusing permission to appeal from the First Tier Tribunal (FTT) to the Upper Tribunal (termed “an Upper Tribunal permission refusal” in the judgment). As background, in the case of Cart [2011] UKSC 28 the Supreme Court held that a refusal by the Upper Tribunal of permission to appeal to itself can be judicially reviewed. See this post by Desmond Rutledge for a full exploration of the current rules and procedure in Cart judicial reviews, as they are…

2nd March 2016 By Lucy Mair

Massive increase in family immigration fees for 2016-17

UPDATE: for the fees for 2017-18 see here. The Home Office first proposed and is now going ahead with a massive 25% increase in already high immigration application fees for families for the year 2016-17. The changes will be implemented on 18 March 2016 rather than the usual date of 6 April. Family and spouse visas will in future cost £1,195 and the fee for Adult Dependant Relatives is going up to £2,676. The fee for a settlement application within the UK will increase to £1,875. British citizen naturalisation fees for adults will increase to £1,156 and child registration fees to £936, which also represent 25% increases. By comparison, a large multinational company applying for a…

2nd March 2016 By Colin Yeo

Secret Evidence in Immigration Tribunal Hearings: R (on the Application of ILPA) v Tribunal Procedure Committee and Lord Chancellor

Open justice is one of the most crucial features of a free state. In weighing up individual cases, courts have sometimes decided that open justice shoud give way to other, equally necessary, ideals. For instance, national security won the day in the Court of Appeal decision in the Erol Incedal case. This was inevitably criticised by the press. In Immigration Law Practitioners Association, R (On the Application Of) v Tribunal Procedure Committee & Anor [2016] EWHC 218 (Admin), Mr Justice Blake in the High Court deals whether in appropriate circumstances information can be withheld from an appellant, or both an appellant and their representative, in immigration tribunals. Rule 13 of the 2014 Immigration Tribunal Procedure Rules…

29th February 2016 By Paul Erdunast

Upper Tribunal can make wasted costs orders for appeals under 2005 rules

Section 29(4) of the Tribunals, Courts and Enforcement Act 2007 results in the Upper Tribunal having powers in relation to the making of wasted costs orders (as defined in section 29(5)) which are not subject to the limitations in s.29(3) or r.10 of the Tribunal Procedure (Upper Tribunal) Rules 2008. This decision contrasts with Cancino where in effect the First-tier Tribunal held that it could interpret the provisions either way and elected not to take on jurisdiction to award costs in appeals commenced under the old rules. Notably, the flip-flopping Home Office position has been adopted by the tribunal in both these costs cases. Wasted costs were not actually awarded; that…

18th February 2016 By Colin Yeo

Sending an immigration decision to an email address is effective service

Sending an immigration decision to an email address is effective service, subject to rebuttal: (1)    Notice of a decision (not falling within the Immigration (Notices) Regulations 2003) is “given” for the purposes of s.4(1) of the Immigration Act 1971 when it is (a) “sent” in accordance with Art 8ZA of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) as inserted by the Immigration (Leave to Enter and Remain) Amendment Order 2013 (SI 2013/1749) with effect from 12 July 2013 and (b) according to the method used, is delivered to the individual’s postal or e-mail address according to that method. (2)    Where Art 8ZB applies, both delivery and the date…

11th February 2016 By Colin Yeo

Proper reasons must be given for totally without merit certificates

The Court of Appeal has returned to the issue of “totally without merit” certificates in judicial review cases. These certificates can be imposed by a judge who refuses permission for an application for judicial review on the papers and it prevents the applicant from seeking an oral hearing. There is a rght of appeal to the Court of Appeal but with no right to an oral hearing. The background and the Court of Appeal’s previous consideration of this issue in the case of Grace [2014] EWCA Civ 1091 was previously covered on Free Movement here: Meaning of “totally without merit” The new guidance in the case of Wasif v The Secretary of State for…

11th February 2016 By Colin Yeo

Appeal lapses if leave is granted unless active notice is given to tribunal

The headnote is a tad Delphic on this one: Inaction is not giving notice for the purposes of s 104(4B). Section 104(4B) concerns whether appeals might be treated as abandoned in certain circumstances. Where leave is granted during an appeal, section 104(4B)(b) requires notice to be given for the appeal to continue. What the unnecessarily terse and obscure headnote means is that an appeal will lapse if leave is granted unless active notice is given to the tribunal. Source: Vigneswaran (abandonment: s 104(4B)) [2016] UKUT 54 (IAC) (7 January 2016)

10th February 2016 By Colin Yeo