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

Upper Tribunal criticises Home Office for unfair and unrealistic appeals

In the case of VV (grounds of appeal) [2016] UKUT 53 (IAC) (13 November 2015) the Upper Tribunal yet again criticises Home Office conduct of appeals to the Upper Tribunal against decisions of the First-tier. This case comes on top of Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC) (FM post: Contrasting cases on grounds of appeal) and MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 00029 (IAC) (FM post: “Wing and a prayer” grounds of appeal criticised by President). This time, the tribunal criticises first the general approach to the drafting of Home Office appeals:

9th February 2016 By Colin Yeo

Upper Tribunal emphasises again that out of country appeal is adequate remedy

A Tier 4 student prohibited from working was accused of the Home Office of breach of his conditions of leave by taking part time employment. A decision was taken to remove him under the pre-Immigration Act 2014 version of section 10 of the Immigration and Asylum Act 1999. he was served with removal directions and lodged an application for judicial review of that decision. Sitting in the Upper Tribunal Blake J found that there was an alternative remedy in the form of an out of country appeal: see R (Mehmood and Ali) v SSHD [2015] EWCA Civ 744 (FM blog post: Court of Appeal dismisses ETS challenges). This issue has not been raise…

21st January 2016 By Colin Yeo

Presidential guidance on errors of law and proportionality

This is an interesting case in which an entry clearance application by an elderly relative was refused by the ECO but the appeal allowed on human rights grounds by a First-tier Tribunal judge, whose decision is here upheld by President McCloskey. It is also interesting because it sounds like an appeal under the Adult Dependent Relative rules may finally have reached the Upper Tribunal for reporting: the appeal was allowed on human rights grounds but dismissed under the Immigration Rules, but paragraph 27 seems to suggest that the latter decision still seems to be the subject of a live appeal. The official headnote (i)             A tribunal’s failure to make…

20th January 2016 By Colin Yeo

Online application forms do not always function as intended

A national of Kazakhstan applied for an extension of stay as a Tier 4 student. As a national of that country, he was required by the Immigration Rules to register with the police. His application was rejected by the Home Office as invalid on the basis that he was also required to submit with his application his Police Registration Certificate but had failed to do so. The applicant asserted that he had at no point been required by the application form or process to submit the certificate and neither was there any accompanying guidance that might impose such a requirement. The Home Office produced screenshots of a “typical” application supposedly showing that the…

20th January 2016 By Colin Yeo

Excellent new Law Society practice note on immigration judicial review applications

The Law Society’s Immigration Law Committee has put together an excellent and comprehensive practice note on immigration judicial review practice, procedure and conduct issues. It is aimed at: All practitioners bringing immigration judicial review claims on behalf of claimants before the Administrative Court in England and Wales (High Court) and the Upper Tribunal Immigration and Asylum Chamber (Upper Tribunal). It covers the case law on the obligations of representatives as well as a really good overview of the process of applying for judicial review on behalf of a client. The acknowledgements reveal that the practice note was reviewed by President McCloskey before publication. Basically, you would be nuts not to…

18th January 2016 By Colin Yeo

Upper Tribunal cases on fair hearings in immigration cases

Three recent cases on fair hearings in immigration cases, all from President McCloskey. All make interesting reading. Firstly, the headnote from AM (fair hearing) Sudan [2015] UKUT 656 (IAC): (i) Independent judicial research is inappropriate. It is not for the judge to assemble evidence. Rather, it is the duty of the judge to decide each case on the basis of the evidence presented by the parties, duly infused, where appropriate, by the doctrine of judicial notice. (ii) If a judge is cognisant of something conceivably material which does not form part of either party’s case, this must be brought to the attention of the parties at the earliest possible stage,…

13th January 2016 By Colin Yeo

Upper Tribunal latest on ETS appeals and common costs orders

I am starting to detect subtle* signs that the Upper Tribunal is unimpressed by attempts to litigate ETS cases from within the UK. These are the cases where a person stands accused (on unknown, undisclosed evidence) of cheating in English language tests administered by the company Educational Testing Services. In many such cases, a decision to revoke leave was made by the Home Office with the effect that an appeal can only be pursued from abroad, after departure.

7th January 2016 By Colin Yeo

Costs protection in the Upper Tribunal for legally aided and other litigants

With many thanks to the excellent and eagle-eyed Tim Buley of Landmark Chambers, this post covers the procedural protections against costs orders for legally aided and other litigants in the Upper Tribunal. This is a major issue in judicial review proceedings in the Upper Tribunal; no-one who has been following the gradually growing judicial review jurisprudence of the Upper Tribunal can have failed to notice the significant number of increasingly high costs awards against litigants other than the Secretary of State for the Home Department. This has included costs awards against legally aided litigants.

17th December 2015 By Colin Yeo

Upper Tribunal says experts should comply with Practice Direction on expert evidence

A failure to comply with the Senior President’s Practice Direction may affect the weight to be given to expert evidence. Any opinion offered that is unsupported by a demonstration of the objectivity and comprehensive review of material facts required of an expert witness is likely to be afforded little weight by the Tribunal. In particular, a witness who does not engage with material facts or issues that might detract from the view being expressed risks being regarded as an informed advocate for the case of one of the parties to the proceedings rather than an independent expert witness. Source: AAW (expert evidence – weight) [2015] UKUT 673 (IAC) (5 November…

15th December 2015 By Colin Yeo

Waiting for legal aid not an excuse for missing time limits

In R (on the application of Kigen & Anor) v Secretary of State for the Home Department [2015] EWCA Civ 1286 the Court of Appeal considers the question of whether waiting for the outcome of an application for legal aid funding made to the Legal Aid Agency is sufficient justification for missing a time limit in public law court proceedings. The answer is a pretty resounding “no”. The applicant in this case had missed the original three month deadline for an application for judicial review by one day. That may not sound like much but the deadline is actually “promptly” or no later than 3 months. Permission was refused twice, presumably for good…

14th December 2015 By Colin Yeo

Tribunal cannot consider asylum appeal against EU law decision

In the case of TY (Sri Lanka) v The Secretary of State for the Home Department [2015] EWCA Civ 1233 (01 December 2015) the Court of Appeal held that the immigration tribunal cannot consider an appeal on asylum grounds against an application and decision made under EU law. If a section 120 notice is served by the Secretary of State then the situation would be different. The Court of Appeal more or less approves the Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC) case (FM post here: No human rights in EEA appeals says Upper Tribunal. As far as can be seen from the judgment this was without having heard argument on…

10th December 2015 By Colin Yeo

More Presidential guidance on judicial review conduct

Yet more Presidential guidance on how to conduct judicial review in the Upper Tribunal, this time in the context of granting permission to proceed with judicial review claims to the lead applicants and grants of interim relief preventing removal in challenges by Afghan nationals to their removal to Afghanistan based on the reported reluctance of the Afghan authorities to accept them. There is a substantive hearing scheduled for March 2016, I understand. The case, R (on the application of Naziri and Others) v Secretary of State for the Home Department (JR – scope – evidence) IJR [2015] UKUT 437 (IAC), is from a while back and I just found it in my…

9th December 2015 By Colin Yeo

Upper Tribunal continues to refuse to enforce procedure rules against Home Office

In the recent case of R (on the application of Turay) v Secretary of State for the Home Department IJR [2015] UKUT 485 (IAC) Mr Ockelton, the Deputy President of the Immigration and Asylum Chamber of the Upper Tribunal, concludes (1) that applicants for judicial review cannot supplement or amend their position but (2) the Home Office can. It is important reading if you have been following the whole moving goalposts issue in reasons-based challenges to Home Office decisions, which the Upper Tribunal is doing its darndest to make utterly pointless by encouraging post decision amendments to reasons.

2nd December 2015 By Colin Yeo

Legal aid residence test found lawful by Court of Appeal

UPDATE 26/2/16: permission to appeal from the Court of Appeal has been granted so the Court of Appeal judgment will not be the last word. Supreme Court grants our client @publiclawprojct permission tochallenge racially discriminatory Residence Test: https://t.co/hw46QnTnWZ — Bindmans LLP (@BindmansLLP) February 26, 2016 In Public Law Project v The Lord Chancellor [2015] EWCA Civ 1193, a judgment that contrasts markedly with that of the High Court, the Court of Appeal has allowed the Lord Chancellor’s appeal and found that the residence test for legal aid is lawful. Bindmans are acting in the case and have put out a good press release, available here: Senior judges split on legality of legal aid residence…

26th November 2015 By Colin Yeo

Protocol on communications between judges of the Family Court and Immigration and Asylum Chambers

I’d heard of the existence of this protocol, full title Protocol on communications between judges of the Family Court and Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal, but never particularly had cause to take a look. Here it is for reference. The protocol governs disclosure between family and immigration proceedings with a view to ensuring that judges in both jurisdictions are aware of what is going on in the other. The emphasis is firmly on judges doing the communicating, with little or no mention of the views of the affected parties being taken into account.

23rd November 2015 By Colin Yeo

Guidance on appealing Upper Tribunal costs decisions to the Court of Appeal

President McCloskey gives guidance on appealing Upper Tribunal costs decisions to the Court of Appeal in the case of R (on the application of Soreefan and Others) v Secretary of State for the Home Department (judicial review – costs – Court of Appeal) [2015] UKUT 594 (IAC). The headnote: (i) An appeal lies to the Court of Appeal against a costs order of the Upper Tribunal made in immigration judicial review proceedings. (ii) In determining cost issues the Upper Tribunal will apply M v London Borough of Croydon[2012] EWCA Civ 595. (iii) Provided that a costs decision of the Upper Tribunal is in harmony with established principles and has a tenable basis,…

10th November 2015 By Colin Yeo

President gives guidance on difference between human rights and public law challenges

The latest instalment of President McCloskey’s Massive Open Online Course (“MOOC“) on immigration judicial review is aimed as much at judges as lawyers. In R (on the application of SA) v Secretary of State for the Home Department (human rights challenges: correct approach) IJR [2015] UKUT 536 (IAC) we are instructed in the distinction between public law and human rights challenges to a decision. I mock, but the determination is something of an academic tour de force. Its heart lies at paragraph 31:

4th November 2015 By Colin Yeo

Basnet case on failed payments for immigration applications revisited by tribunal

The case of Basnet is revisited by Deputy President Ockelton in the new case of Mitchell (Basnet revisited) [2015] UKUT 562 (IAC). The headnote: 1. The decision of the Tribunal in Basnet v SSHD [2012] UKUT 113 (IAC) does not put the burden of proof on the Secretary of State where the application was, on its face, insufficiently completed. 2. The evidence shows that the payment pages are retained for 18 months. Thus, within that period, any question of the reason for failure to obtain payment can be investigated, although the reasons for declining a payment are available only to the bank account holder, not the Secretary of State. In the light of this, a…

4th November 2015 By Colin Yeo

One party is more equal than others in the Upper Tribunal

Seasoned public law lawyers have felt for some time that it is far harder to succeed in immigration judicial review applications in the Upper Tribunal than it ever was in the High Court. Cases that would have been very likely to succeed will not only now fail but will be certified as “totally without merit”. Costs decisions are… unpredictable. The litigation conduct of the Government Legal Department has if anything declined even further yet criticism is directed principally towards applicant lawyers.

9th October 2015 By Colin Yeo

President gives guidance on guidance in latest instalment of online training course

In the latest instalment of the ongoing online training course delivered by President McCloskey via BAILII on the nature, scope and practice of appeal and judicial review proceedings in the Immigration and Asylum Chamber, ONM (Remittal to FtT with directions) Jamaica [2015] UKUT 517 (IAC), we learn the following: (i) The power conferred on the Upper Tribunal, exercisable upon remittal to the First-tier Tribunal, by section 12(b)(i) of the Tribunals, Courts and Enforcement Act 2007 to give directions is distinct from the power conferred by section 12(3)(b) to give procedural directions. (ii) Directions under section 12(b)(i) encompass matters such as guidance on the law and the scope of the appeal…

22nd September 2015 By Colin Yeo

No human rights in EEA appeals says Upper Tribunal

The Upper Tribunal has issued the much awaited case addressing whether human rights grounds can be argued in an EU rights of residence appeal. The determination is Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC) and the official headnote reads: Where no notice under section 120 of the 2002 Act has been served and where no EEA decision to remove has been made, an appellant cannot bring a Human Rights challenge to removal in an appeal under the EEA Regulations. Neither the factual matrix nor the reasoning in JM (Liberia) [2006] EWCA Civ 1402 has any application to appeals of this nature.

21st September 2015 By Colin Yeo