No need to seek permission to appeal from lower court

The Court of Appeal has held that there is no mandatory requirement to seek permission to appeal from the lower court in family and civil litigation in the case of P v P [2015] EWCA Civ 447 but that it remains best practice. Jackson LJ: 68. In my view, even under the current rules, it is still good practice for any party contemplating an appeal in the first instance to seek permission from the lower court. Ideally the party should do so when the judge delivers or hands down judgment. This is for the five reasons set out in paragraph 52.3.4 of the White Book commentary. 69. On the other hand…

14th May 2015 By Colin Yeo

Wasted costs ordered against solicitor and counsel and case struck out

In the case of R (on the application of SN) v Secretary of State for the Home Department (striking out – principles) IJR [2015] UKUT 227(IAC) the President of the Upper Tribunal Immigration and Asylum Chamber not only strikes out the applicant’s judicial review claim but also goes on to make a wasted costs order against both the solicitors and counsel involved in the case. Counsel is not identified but the solicitors are identified in the judgment as CK Law Solicitors. IMPORTANT UPDATE: CORRECTION TO NAME OF SOLICITORS FIRM. The original version of the judgment that was first published named a completely different firm, CK Solicitors but that has now been corrected…

14th May 2015 By Colin Yeo

What amounts to a “human rights claim” generating a new right of appeal?

Rights of appeal under the Immigration Act 2014 are only available in refugee cases and if ‘the Secretary of State has decided to refuse a human rights claim made by [the person]’ (amended section 82 of the Nationality, Immigration and Asylum Act 2002). This will clearly require a human rights claim to have been made in the first place as well as requiring a refusal of that claim. But what constitutes a human right claim and a decision by the Secretary of State?

29th April 2015 By Colin Yeo

Can you make a new application while awaiting outcome of another application or appeal?

The word “hopeless” appears five times in the determination of R (on the application of Rashid) v Secretary of State for the Home Department IJR [2015] UKUT 190 (IAC). While the judge remains fairly cool she was clearly irritated with Counsel. Much of the case is devoted to salvaging some sense from the proliferating grounds or traversing territory that is already well known, but there is something new to take away. New to me, at any rate.

23rd April 2015 By Colin Yeo

Mind the gap: immigration rules and human rights are not coterminous

In a useful case the Upper Tribunal addresses one of the “mind the gap” differences between the Immigration Rules and the requirements of human rights law. There is a growing body of case law that recognises that the two bodies of law are not, contrary to the Home Office position, coterminous. The latest is R (on the application of Chen) v Secretary of State for the Home Department) (Appendix FM – Chikwamba – temporary separation – proportionality) IJR [2015] UKUT 189 (IAC) on, you guessed it, the House of Lords case of Chikwamba and the proportionality of having to travel abroad in order to apply from abroad. The recognition that…

22nd April 2015 By Colin Yeo

Rights and grounds of appeal: commencement and transition

The major changes to rights of appeal and removal powers wrought by the Immigration Act 2014 took full effect on 6 April 2015, although with some transitional provisions for existing cases. This blog post, based on the second edition of my Immigration Act 2014 ebook, examines and attempts to explain who has a right of appeal under the old regime and who has a right of appeal under the new regime. The ebook includes some additional material and worked examples. The online course available for Tier 1 members on the Immigration Act 2014 has also been updated if you would like to claim CPD for reading the material, and I have…

17th April 2015 By Colin Yeo

NHS surcharge for immigration applications

A new “health surcharge” was introduced for all new applications for entry clearance or leave to remain made on or after 6 April 2015. The charge is £150 per year for students and £200 per year for all other types of application. A charge is payable for each dependent as well as the main applicant. Information about the charge is available on the gov.uk website and there is also a specific mini site, Immigration Health Surcharge, where payment can be made and the “IHS reference number” required for making immigration applications can be generated.

15th April 2015 By Colin Yeo

Making a new entry clearance application while appeal is outstanding

Interesting snippet I just spotted while trawling appeals policies for a major update of the Immigration Act 2014 ebook and course: A person who has an appeal pending can make a fresh application for entry clearance in the same or any other category. There is no requirement for a person to withdraw an appeal. Comes from section 20 of Appeal procedures: APL01. I’d always have said this was the law but thought that ECOs nevertheless refused to process new applications while there was an outstanding appeal. Different provisions apply within the UK: it is not possible to make a new application within the UK while an appeal remains outstanding owing to…

14th April 2015 By Colin Yeo

New pre action protocols came into effect 6 April 2015

A new pre action protocol for judicial review applications came into effect on 6 April 2015. Rather unfortunately, it was not published. You can now find it here (h/t @NearlyLegal). The judicial review pre action protocol applies in both the Administrative Court and the Upper Tribunal: The Upper Tribunal Immigration and Asylum Chamber (UTIAC) has jurisdiction in respect of judicial review proceedings in relation to most immigration decisions.4 The President of UTIAC has issued a Practice Statement to the effect that, in judicial review proceedings in UTIAC, the parties will be expected to follow this protocol, where appropriate, as they would for proceedings in the High Court.

9th April 2015 By Colin Yeo

Out of country immigration appeals to be expanded

The Conservative Party is pledging radically to expand out of country appeals to any migrant with no leave after the election. The Daily Mail piece is clearly well informed and includes some examples that can only have come from a Home Officer brief. Given that appeals will only be on human rights grounds anyway from 6 April 2015, how easy it can be to become an overstayer, that the appeal might well be about whether you are indeed an overstayer or not and that appeals take many months to bring, during which time you might well lose your job, home and family, this plan might be thought rather harsh.

27th March 2015 By Colin Yeo

Immigration fees from 6 April 2015 published

The full list of fees for immigration applications from inside and outside the UK applying from 6 April 2015 has been published. There are some hefty and puzzling increases: a 50% hike to £162 for visiting academics for some reason, a 57% increase to £592 for relatives of refugees, a 37% increase to £1,500 for family of members of the British armed forces and for other applications for settlement, a 150% increase to £260 for a simple confirmation of immigration status document and hikes of between 10% and 50% for a range of nationality applications.

24th March 2015 By Colin Yeo

Meaning of “totally without merit”

Normally, where an application for judicial review is made the first stage is for a judge to consider the grounds for judicial review and the acknowledgement of service and summary grounds of defence, then decide without holding a hearing whether permission should be granted. Lawyers commonly refer to this decision as being “on the papers” because there is no oral hearing. If permission is refused “on the papers”, as often occurs even in cases that ultimately go on to succeed, it is normally possible to apply for an oral renewal, also called a reconsideration. This involves submitting short reasons why permission should be granted despite the refusal on the papers and…

19th March 2015 By Colin Yeo

Challenging a refusal of permission to appeal by the Upper Tribunal

This piece started life as a practice note for welfare benefits cases but the same principles are transferrable to the immigration jurisdiction so we thought it would be helpful to share it here on Free Movement as well. If permission to appeal against a decision of a First-tier Tribunal in a welfare benefits case is refused by the Upper Tribunal (Administrative Appeals Chamber), then the claimant will not be able to appeal that decision. This is because it is an excluded decision under s. 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007, and the Upper Tribunal has no jurisdiction to review its refusal of permission by virtue of s.10(1)…

16th February 2015 By Desmond Rutledge

Important Presidential decision on costs in immigration cases

The Presidents of the Immigration and Asylum Chambers sat together in the First-tier Tribunal case of Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC) in order to give guidance on when legal costs might become payable in immigration cases. The power to make awards of legal costs to a party in immigration appeals was only introduced in October 2014 and there has been no real guidance until now. The case should be good news for the administration of justice in the immigation tribunal. We see the norms of litigation conduct applied and special pleading disregarded. On the facts of this case this approach would have been…

13th February 2015 By Colin Yeo

Example of fresh decision triggering fresh judicial review proceedings

Just a quick one to highlight an example of a judicial review claim where a belated fresh decision was made by the Respondent in judicial review proceedings and the judge took the firm view that costs should be awarded for the proceedings so far. If the applicant wanted to challenge the fresh decision, fresh proceedings would be required. The case is R (on the application of Gorczak) v Secretary of State for the Home Department [2015] EWHC 168 (Admin). Free Movement Members can read a bit more material on costs and moving targets in the costs course (link to relevant section).

4th February 2015 By Colin Yeo

Mistake by lawyers fatal to student’s immigration application

An application one day late by immigration lawyers proves fatal to success in the unfortunate case of R (on the application of Han) v Secretary of State for the Home Department [2014] EWHC 4606 (Admin) (04 November 2014). The lawyers, Overseas Student Service Centre Limited (the “OSSC”), had everything they needed in time but because the Tier 4 student application was made by them one day late, the applicant was deemed not to have an “established presence” and therefore to require more funds than she actually held in her bank account. A strict application of the rules by Cranston J leads the claim to fail. Foreign students, welcome to Britain!

3rd February 2015 By Colin Yeo

Witness statements by advocates

Where something goes badly wrong at a hearing it is sometimes necessary for the advocate who was present to explain events as part of the appeal process. It has become customary in immigration proceedings for the advocate to have to write a witness statement and therefore, because he or she is by doing so giving evidence, to stand down from the case and hand over to a colleague. Upper Tribunal judges have seemed insistent that an advocate can barely breath a word of what might have happened at the previous hearing without spontaneously combusting.

28th January 2015 By Colin Yeo

“Wing and a prayer” grounds of appeal criticised by President

President Mr Justice McCloskey has criticised the Home Office for submitting “wing and a prayer” grounds of appeal to the Upper Tribunal and the judge who granted permission to appeal. The case is MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 00029 (IAC) and the language is forthright: To conclude, the decision of the FtT in this case was unimpeachable. On behalf of the Secretary of State, the application for permission to appeal was launched on a wing and a prayer. It was manifestly devoid of any substance or merit and should have been exposed accordingly. Essentially, the grounds attempted to argue that the First-tier judge had “diminished” certain…

27th January 2015 By Colin Yeo

Curtailment of leave not effective if someone else signs for it

Just a short one this, but perhaps important. In R (on the application of Javed) v Secretary of State for the Home Department [2014] EWHC 4426 (Admin) Neil Garnham QC sitting as a Deputy High Court Judge holds that where a notice of curtailment was sent by recorded delivery to the correct address but an unknown person who was not the intended recipient signed for receipt of the notice, the curtailment has not been effective. Whether the judgment is relevant in future is open to question given that the Immigration (Leave to Enter or Remain) Order 2000 was amended as of 12 July 2012 to permit service by post.

23rd January 2015 By Colin Yeo

Home Office misleads Tribunal Procedure Committee

In a curious turn of events, the Home Office wrote to the Tribunal Procedure Committee late last year to ‘fess up to having mislead the committee about Home Office policy on withdrawal of decisions. This is an issue we’ve covered before on Free Movement because under the old procedure rules this could cause huge inconvenience to appellants and was wide open to abuse by the Home Office. Only today, for example, the presenting officer I was against was instructed to apply for an adjournment and if not granted then to withdraw the decision and try and kill the appeal that way. In short, the Home Office had told the committee that “withdrawals…

20th January 2015 By Colin Yeo

Judicial toolkit for dealing with miscreant immigration lawyers

The previously reported case of R (on the application of Bilal Mahmood) v Secretary of State for the home Department (candour/reassessment duties; ETS :alternative remedy) IJR [2014] UKUT 439 (IAC) has been re-titled and I think the headnote has been supplemented as well. The case is important on the ongoing saga of how far out of country appeals are an adequate remedy (relevant but far from determinative in the context of the very different statutory context of section 94B “deport first appeal later” certificates) and the current President’s impatience with the conduct of judicial review proceedings (see also Muwonge). The judgment goes a lot further than that though, and the…

7th January 2015 By Colin Yeo

Legal Aid and ‘exceptional’ case funding

In an important and wide-ranging judgment the Court of Appeal in R (on the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 has upheld Collins J’s finding that the Exceptional Case Funding (‘ECF’) scheme has been operated unlawfully, while allowing the appeal in two, and dismissing the appeal in the remaining three, of the test cases. Rarely can the Court of Appeal have considered such a number of important and diverse issues in one judgment. While everyone will recognise the importance of the case, at 181 densely-written paragraphs over 60 pages, it is hard to make much headway on the…

22nd December 2014 By James Packer

Unwanted anonymity and gagging orders

I’ve now come across two cases in which judges of the First-tier Tribunal Immigration and Asylum Chamber have imposed unwanted anonymity orders on parties without any application or notice. One case is reported here and the other can’t be reported because of, well, the anonymity order. In both cases there was media interest beforehand and the orders acts as a gagging orders, preventing the parties from discussing their case with the media, even though the cases and the identities of the appellants had already been reported. In one of the cases the appellant had a child and that provided the reason or pretext for imposing anonymity. In the other unreported…

17th December 2014 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

New immigration tribunal procedure rules: analysis

The First-tier Tribunal now has a new set of procedure rules: the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, which came into force on 20 October 2014. The Rules are streamlined in some parts and the overriding objective is modified to emphasise fairness and justice more than speed. Case management powers are stated more generally, in line with the objective of flexibility. Appellants and their representatives should pay careful attention to the changes, especially as non-compliance can now result in a trip to the Upper Tribunal or an order for costs. Time limits have also changed. Some of the changes will in most cases be of benefit…

20th November 2014 By Natalie Wilkins

Tribunal criticised for conducting own research

East of England Ambulance Service Nhs Trust v Sanders (Practice and Procedure) [2014] UKEAT 0217/14/1710 is an interesting employment case involving a litigant in person via Neil Rose. I do not think it is at all unusual for immigration tribunal judges to conduct their own research and I’ve been presented by, for example, a Daily Mail article about a client’s relative by a judge on the morning of a hearing. There are obviously important differences between the employment and immigration jurisdictions and the role of the tribunal in each but nevertheless the issues around inquisitorial vs adversarial, descending into the arena and raising new issues of the tribunal’s own motion are all thought…

20th November 2014 By Colin Yeo

Awards of costs in immigration tribunal appeals

For the first time, it will now be possible for the immigration tribunal to make awards of costs in statutory appeals. The power is conferred by the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604), specifically by rule 9. The new rules come into effect on 20 October 2014 and apply immediately to any outstanding or future immigration appeal. One important consequence to note of the change to the procedure rules to the First-tier Tribunal Immigration and Asylum Chamber is that the Upper Tribunal also inherits the same power to award costs, presumably also as of 20 October 2014 given the commencement of the FTT rules. See rule…

17th October 2014 By Colin Yeo

Compensation awarded for hearing cancelled at short notice

Given my experience on the float list at Hatton Cross this week, this successful complaint to the Parliamentary and Health Ombudsman makes very interesting reading. An award of £3,600 plus interest for legal costs and £100 for inconvenience was made to a lady whose hearing was cancelled the day before by the court. Waiting around all day only for it later to be cancelled is surely worse, particularly if a load of witnesses and supporters are also put to the same inconvenience? Also interesting is the prospect of successful compensation from the Home Office where a decision is withdrawn at the last minute but the evidence was served in good time…

22nd August 2014 By Colin Yeo

New tribunal procedure rules from 20 October 2014?

At paragraph 4(b) of the newly laid Tribunal Procedure (Amendment No. 3) Rules 2014 is a reference to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. These latter rules do not exist yet. As paragraph 4(b) of the amendment rules commences on 20 October 2014, can we therefore expect entirely new rules to come into effect on that date? And will, as has been rumoured, the changes to appeal rights also take effect at the same time that the new rules commence?

11th August 2014 By Colin Yeo

Ethnographic study of “culture of disbelief” at Taylor House

A fascinating study of power play and relationships inside and outside the hearing room has been published as a working paper by the Refugee Studies Centre at the University of Oxford: The culture of disbelief: an ethnographic approach to understanding an under-theorised concept in the UK asylum system by Jessica Anderson, Jeannine Hollaus, Annelisa Lindsay, Colin Williamson. I highly recommend taking a look. It provides that rare thing: a fresh, external view of the work of the immigration tribunal and the key actors, judges, representatives and appellants.

6th August 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

Upper Tribunal procedure rule amendment on service

The Tribunal Procedure (Upper Tribunal) Rules 2008 are to be amended from 30 June 2014 to ensure that one party to proceedings gets notice before the other and indeed is responsible for serving the other party. Because the proceedings are immigration ones involving asylum seekers, the obvious bias in treatment of the parties, supposedly equal before the law, is not apparently generally considered to be problematic. There might be more of an uproar if the same approach were applied in housing possession proceedings, for example: you only find out you’ve lost when the bailiffs or police appear to forcibly evict you. In fact this service provision has existed in one…

11th June 2014 By Colin Yeo

“No right of appeal” human rights decisions

There can be few immigration practitioners who do not presently encounter decisions in relation to applications made on the basis of peoples’ private and family life which do not carry the right of appeal. In recent years the prevailing tendency has become to segregate decisions, where the applicant is an overstayer or illegal entrant, such that refusals to vary leave to remain are made without further steps to enforce removal, leaving migrants without an appealable immigration decision which would gain them access to a merits appeal in the First-tier Tribunal (because overstayers do not enjoy the right of appeal given section 82(2)(d) of the Nationality Immigration and Asylum Act 2002,…

2nd June 2014 By Mark Symes

Permission required to ensure public funding in JR proceedings

The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 came into force on 22 April 2014 with the effect that judicial review proceedings commenced on or after that day will not be funded unless: (a) the High Court or Upper Tribunal grants permission; or, (b) permission is neither granted nor refused and the Lord Chancellor considers that it is reasonable to pay remuneration in the circumstances of the case.

19th May 2014 By Bijan Hoshi

Immigration forms collection

The team at gov.uk are making definite progress with improving the immigration bits of the website. This latest collection of all the major immigration forms is very handy.

2nd May 2014 By Colin Yeo

Child victims and protective measures

This jumped out at me from the newspaper the other day: People who may find it difficult to give their best possible evidence in a courtroom environment and all child victims will be considered in the pilot areas. This allows them to give evidence and be cross-examined by both prosecution and defence barristers ahead of the trial, in front of a judge, and then it is shown to the jury as part of the trial. Three crown courts – Leeds, Liverpool and Kingston-upon-Thames – are testing pre-trial cross-examination this year.

29th April 2014 By Colin Yeo

Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 150 (IAC)

Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 150 (IAC) is a new case from the Upper Tribunal on the vexed issue of immigration applications the Home Office considers to be invalid. The tribunal takes the view that a Home Office decision that an application is invalid cannot itself be appealed to the tribunal and that sorting it out through the appeal system to show that the Home Office was mistaken requires a later application and formal immigration decision which can then be appealed. Applicants unwilling to take that chance and who feel they need to prove validity directly will need to pursue that in an application for…

28th April 2014 By Colin Yeo