All Articles: Procedure

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) ...

28th August 2015 By

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 “agre ...

3rd July 2015 By

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 ...

23rd June 2015 By

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 asy ...

4th June 2015 By

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 Ho ...

29th May 2015 By

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 ...

21st May 2015 By

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 – bas ...

20th May 2015 By

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 applicant̵ ...

14th May 2015 By

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 ...

29th April 2015 By

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 Coun ...

23rd April 2015 By

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 ...

22nd April 2015 By

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 ...

17th April 2015 By

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 pa ...

15th April 2015 By

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 t ...

24th March 2015 By

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 per ...

19th March 2015 By

Full immigration appeals ended: Immigration Act 2014 brought into force

Full appeal rights for applications under the Points Based System are being ended with effect from today, 2 March 2015, and for all other cases from 6 April 2015. The initial change applies to those who make an application on or after 2 March 2015 und ...

2nd March 2015 By

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 agains ...

16th February 2015 By

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 ...

13th February 2015 By

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 st ...

28th January 2015 By

“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 app ...

27th January 2015 By

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 ...

20th January 2015 By

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 ...

7th January 2015 By

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 ( ...

22nd December 2014 By

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 ...

17th December 2014 By

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 c ...

21st November 2014 By

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 overridin ...

20th November 2014 By

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 judg ...

20th November 2014 By

New duty to keep Home Office informed

When reviewing the Home Office’s new Appeals Guidance policy document I was reminded of a new feature of the appeals regime that is an important one but which was tucked away in the schedules to the Immigration Act 2014. A new expanded section 1 ...

29th October 2014 By

Immigration Act 2014 Commencement Order No. 3: analysis

Even aside from the issue of an unpublished law purporting to have any effect, the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI 2014/2711) is a dog’s breakfast. At first blush it appears to bri ...

20th October 2014 By

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), ...

17th October 2014 By