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

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