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

High Court finds Legal Aid Agency “asked itself wrong question” about means assessment

In a judgment that may be of interest to legal aid lawyers, the High Court has overturned a rejection by the Legal Aid Agency (LAA) of a legal aid claim by Duncan Lewis solicitors. The Legal Aid Agency should have considered whether the means assessment conducted by Duncan Lewis, which had assessed a client KW as having provided sufficient evidence to show that she came within the financial threshold for legal aid, had made a reasonable judgement. The LAA had erred in refusing to fund the case on the basis that the documents relied upon were outside of the ‘assessment window’, Cranston J held in the case of R (On…

8th September 2015 By James Packer

Sir Brian Leveson admonishes immigration solicitors

The latest in the increasingly long line of cases in which the judiciary has administered public dressings down for immigration lawyers is R (On the Application Of Akram & Anor) v Secretary of State for the Home Department [2015] EWHC 1359 (Admin). The cases are often referred to as Hamid cases, after the first such case, Hamid [2012] EWCA 3070 (Admin). Sir Brian starts this latest judgment with a general warning or principle:

2nd September 2015 By Colin Yeo

Precedent facts, standards of review and deception

It turns out that Zayn Malik, formerly of One Direction, knew how to quit while he was ahead. It is a rare talent not universally shared, as shown by a number of recent cases in the higher courts, one of the latest being R (On the Application Of Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784. From the earlier defeat in the High Court, reported here on Free Movement, Counsel for the Claimant Mr Malik had salvaged some useful remarks from Mr Justice Jay on the issue of precedent fact and the level of scrutiny to which a court will subject a decision of the Secretary…

28th August 2015 By Colin Yeo

Costs in cases of new “supplementary” decisions

A judicial review of unlawful reasons given by the Home Office will, as inevitably as night follows day, be followed by “supplementary” reasons letters in the event of a legal challenge. This is a hugely frustrating and abusive practice by the Home Office. Essentially, rubbish and peremptory reasons are given in an initial decision by a barely trained bottom grade case worker but if the recipient of the decision has the wherewithal to challenge the decision it will be supplemented by additional reasons drafted by high grade Government Legal Service lawyers or barristers, usually just before a hearing. These “supplementary” decisions in effect concede that the original decision was unlawful…

26th August 2015 By Colin Yeo

Home Office reducing time limits for appeals by sending post 2nd class

The Home Office is systematically reducing the time available to lodge immigration appeals by exploiting a change in the procedure rules and sending decisions by second class post. In October 2014 the procedure rules changed so that appeals had to be lodged 14 days from the date a decision is sent. The previous rules had allowed for calculation of time from receipt of a decision. The Immigration Law Practitioners Association has written to the Home Office and the Tribunal Procedure Committee and the letter is available for members to see here. ILPA is asking that service be carried out according to normal Civil Procedure Rule standards or that the rules are…

29th July 2015 By Colin Yeo

Extending time limits for late appeals

The Upper Tribunal returns to the issue of extending time for late appeals in the case of RK (Allowed appeals – service on respondent) Albania [2015] UKUT 331 (IAC). The special pleading by the Home Office on this occasion is around the “agreement” between the entirely independent tribunal and a party to appeals to serve determinations on different places depending on the outcome of the determination. The agreement is to send to one team in the Home Office if appeals are allowed and if dismissed to be sent to another.

3rd July 2015 By Colin Yeo

Presidential Guidance Note No 1 of 2015: Wasted Costs and Unreasonable Costs

New (to me at any rate) is the Presidential Guidance Note No 1 of 2015: Wasted Costs and Unreasonable Costs, signed on 18 May 2015. It goes a bit further than Cancino in emphasising the high threshold for wasted costs. Arguably too far: Even where a hearing has to be adjourned because of an avoidable omission by one party, such as inadequate preparation, it would not normally be appropriate to make an order for costs. Representatives have many demands on their time and are subject to a multitude of pressures, which may lead even in well-managed organisations to occasional lapses. The making of an order for wasted or unreasonable costs should be…

23rd June 2015 By Colin Yeo

Unrepresented litigant must understand nature of case against her

In an interesting short Upper Tribunal judicial review determination, Upper Tribunal Judge Coker finds on the facts of the particular case that a judge in earlier, separate proceedings had erred in failing to ensure that the reasons for refusal of asylum were properly put to an unrepresented litigant in person. This was a procedural error that meant there had not been a fair hearing and therefore the original findings of fact could not lawfully be relied on by the Secretary of State later when refusing a fresh claim in subsequent litigation.

4th June 2015 By Colin Yeo

Indemnity costs in immigration judicial reviews

Discretion in relation to costs is a wide one and awarding costs on an indemnity basis against an unsuccessful party is a departure from the norm. The substantive matter in the case of R (on the application of Kaienga) v Secretary of State for the Home Department IJR [2015] UKUT 272 (IAC) was agreed by way of a consent order; however costs had not been agreed between the parties in advance of the hearing. An application was made by the applicant for costs on an indemnity basis as a result of the Home Office’s conduct. UTJ Kopiecek awarded the applicant their costs, but refused to do so on an indemnity basis…

29th May 2015 By Maria Moodie

Reconsideration of old human rights applications

The Home Office has introduced a new policy on reconsideration of old human rights claims that were refused before 6 April 2015 with no right of appeal: Requests for reconsiderations of human rights or protection based claims refused without right of appeal before 6 April 2015. The policy is important in the very many cases where a human rights application was made by an individual or family and the application was refused with no right of appeal because no removal decision was made. Under the new appeals regime introduced by the Immigration Act 2014 from 6 April 2014, no removal decision is needed for a right of appeal, only refusal of…

21st May 2015 By Colin Yeo

Mandatory orders in immigration judicial review applications

The issue of when the Upper Tribunal might make a mandatory order requiring the Home Office to act in a specific way was considered in the case of R (on the application of Sultana) v Secretary of State for the Home Department (mandatory order – basic principles) IJR [2015] UKUT 226 (IAC).

20th May 2015 By Colin Yeo

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