Delays by Home Office in judicial review cases

An important recent case slipped under my radar last year, mainly because it has not been publicly reported on one of the publicly accessible case law repositories like BAILII. The case is R (on the application of Jasbir Singh) v Secretary of State for the Home Department [2013] EWHC 2873 (Admin) and it addresses the ongoing problems of delays and routine breaches of the Civil Procedure Rules by the Home Office in judicial review claims. It also has important implications on whether to ask for expedited consideration. If the judgment becomes publicly available I will post a proper link [UPDATE: here you go], but for now I’m stuck with quoting…

9th January 2014 By Colin Yeo

Duty to give reasons

MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC) is a corker of a decision from the incoming new President of the Immigration and Asylum Chamber of the Upper Tribunal, Mr Justice McCloskey. It is well worth a detailed read. Here, I just set out a few of the edited highlights.

6th January 2014 By Colin Yeo

More on judicial review transfer

Following on from two recent posts on this subject (Judicial review in the Upper Tribunal, Do not lodge Upper Tribunal judicial reviews by post if urgent), there has been another warning about the transfer of judicial reviews into the Upper Tribunal. A claim that includes an element of unlawful detention must remain in the High Court according to the Lord Chief Justice’s Practice Direction on transfers. In the case of R (on the application of Ashraf) v Secretary of State for the Home Department [2013] EWHC 4028 (Admin) Cranston J goes on the war path: It seems to me that to lodge a challenge to removal in the Administrative Court, including a ground…

19th December 2013 By Colin Yeo

Do not lodge Upper Tribunal judicial reviews by post if urgent

Following my previous post on Judicial review in the Upper Tribunal someone got in touch with a total horror story. She attempted to lodge a judicial review by fax to the Upper Tribunal. There was no initial response but on enquiry by telephone the next day she was invited to re-send by fax with an undertaking to pay the fee. However, this was a removal case. No written confirmation of issue was given until several days later. The client’s removal was therefore not suspended. The solicitor had to make an urgent injunction application at the High Court. The situation was fully explained and the order granted. The urgent injunction would…

17th December 2013 By Colin Yeo

Judicial review in the Upper Tribunal

Since 17 October 2011, some immigration judicial reviews have been heard in the Upper Tribunal. Until now this was confined to asylum fresh claims and disputed age assessments. From 1 November 2013 most new immigration judicial reviews are heard in the Upper Tribunal. There are a few teething difficulties, though. And given that my daughter is currently teething, do not for a moment think I’m minimising the seriousness…

12th December 2013 By Colin Yeo

R (Ignaoua) v Secretary of State for the Home Department, CA

The Court of Appeal has held, overturning the decision of the High Court (see previous blog), that the issue of a certificate under section 15 Justice and Security Act 2013 does not have the effect of terminating existing judicial review proceedings.

11th December 2013 By Grace Capel

Home Office immigration tribunal advocacy

Two mundane, day to day things are getting my goat at the moment. The first is the mislabeled “cross examination” many Home Office Presenting Officers are trained into and allowed to get away with at court. The other is Presenting Officer failure to put points to witnesses that are then used in closing submissions. This is also tolerated by immigration judges and I for one have given up objecting. Both of these are basic fair hearing issues.

4th December 2013 By Colin Yeo

Are asylum appeal hearings the same wherever they are heard?

Both parties and practitioners are entitled to expect that the practice and procedure of the court in which their case is heard will be consistent and fair irrespective of which court it is and where it is.  Yet a Freedom of Information Act 2000 request made by academics at the University of Exeter has revealed a dramatic disparity between regional hearing centres in the proportion of First-tier Tribunal asylum appeals that are allowed.  Strikingly, between 1 June 2010 and 31 March 2012, 42% of appeals were allowed at Taylor House in central London versus only 18% at Columbus House in Newport.

30th November 2013 By Bijan Hoshi

Mohammed (late application-First-tier Tribunal) Somalia [2013] UKUT 467 (IAC)

Short procedural point to this one and the use of some invisible magic hats: Where an application for permission to appeal to the Upper Tribunal is made to the First-tier Tribunal outside the prescribed period, rule 24(4) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 requires that the First-tier Tribunal must make a decision on whether the application should be admitted. There was a delay of 881 days in seeking permission to appeal to the Upper Tribunal against the dismissing of the appeal in the First-tier. The deadline is 5 days. A hearing was convened in the Upper Tribunal to investigate whether there was good reason for the delay….

28th November 2013 By Colin Yeo

R (Ignaoua) v Secretary of State for the Home Department

In R (Ignaoua) [2013] EWHC 2512, the Administrative Court held that under powers conferred by section 15 Justice and Security Act 2013 the Secretary of State can automatically and unilaterally terminate qualifying judicial review proceedings.  The appeal hearing concerning this controversial ruling is imminent. The Claimant was a Tunisian national who came to the UK in 2004 and claimed asylum.  In 2008, with a decision on his asylum claim still outstanding, he was extradited to Italy to face charges relating to terrorism.  He was acquitted of all charges on 8 July 2010.  Shortly after his acquittal, the Secretary of State made a decision that he be excluded from the UK because…

13th November 2013 By Grace Capel

Residence test threatens access to justice for children

On Wednesday 23rd October 2013, Parliament’s Joint Committee on Human Rights heard oral evidence on the government’s latest proposals to cut legal aid. The evidence was clear.  Those that will suffer the most from the proposals are society’s most vulnerable groups – children, care leavers, and victims of sexual abuse and human trafficking.

8th November 2013 By Samuel Hawke

Administrative review success rates

This entry is part 6 of 8 in the series Immigration Bill

The new Immigration Bill proposes removal of rights of appeal to an independent judge, to be replaced with  and replacement with ‘Administrative Review’ by one of its own staff. Immigration appeals have almost a 50% success rate according to the Government’s own figures: A recent Freedom of Information request I did reveals the following: Between July 2012 & Jun 2013, 6096 Administrative reviews were resolved and out of that 1,077 were overturned. This represents a proportion of 18%. This is why the Government wants to remove rights of appeal. It is the same reason the Government wants to reduce access to judicial review. It doesn’t like losing. The Government would…

4th November 2013 By Colin Yeo

Appeals and the Immigration Bill

This entry is part 5 of 8 in the series Immigration Bill

The new Immigration Bill (see Ronan’s previous post “Summary of clauses“) is so packed with nastiness that some really unpleasant parts of it – perhaps the whole of it – will make it to the statute book. No mainstream politician with influence will today stand up for the rights of immigrants and their families. The Lib Dems must have signed off on the contents of the Bill. Labour has said the party not only supports the Bill but would go further in introducing tougher measures. Appeal rights are too technical and complex to attract headlines. And the removal of appeal rights is far from being the most socially damaging, racist…

31st October 2013 By Colin Yeo

Home Office accused of ‘fixing’ asylum figures

The Observer has run a story on the use of withdrawal of appeals in order to hit success rate targets for Home Office officials. I’m quoted, as is the excellent James Packer of Duncan Lewis. For some background see previous post “Withdrawn decisions“.

27th October 2013 By Colin Yeo

Tony Blair (Hansard vol 213, col 43, 2 November 1992)

When a right of appeal is removed, what is removed is a valuable and necessary constraint on those who exercise original jurisdiction. That is true not merely of immigration officers but of anybody. The immigration officer who knows that his decision may be subject to appeal is likely to be a good deal more circumspect, careful and even handed that the officer who knows that his power of decision is absolute. That is simply, I fear, a matter of human nature, quite apart from anything else. Source

10th October 2013 By Colin Yeo

Appeals to Court of Appeal from Cart judicial reviews

Just a quick note on this. As I previously mooted (‘Judicial review of Upper Tribunal‘), it is possible to appeal to the Court of Appeal from refusal of permission in a Cart-type judicial review of a decision of the Upper Tribunal to refuse permission to appeal to itself. However, there is a seven day time limit — which is easy to be caught out by if you do not already know about it — and there is no possibility of oral renewal in the Court of Appeal.

25th September 2013 By Colin Yeo

Injunctions for removal from fast track

One overlooked solution to the one way asylum fast track to refusal and removal is to seek an injunction preventing consideration under the fast track process. This option should be seriously considered where the client has good grounds for asserting that a premature refusal decision by the Home Office will be an unfair one.

12th September 2013 By Colin Yeo

Transfer of immigration judicial reviews to Upper Tribunal

It is finally almost upon us: the transfer of judicial review claims from the High Court to the Upper Tribunal will take place on 1 November 2013. In addition, applications for permission lodged after 9 September 2013, including those where permission has been refused on the papers and oral renewal is pending, will also be transferred.

30th August 2013 By Colin Yeo

Level playing field for extensions of time

Don’t let this one slip by unnoticed: Wang & Chin (Extension of time for appealing) [2013] UKUT 00343 (IAC) Colin recently alerted readers by way of a short post to the recently promulgated determination in Wang & Chin. If you have not done so already, I strongly recommend you read this determination as it concerns the Secretary of State very nearly getting away with an untruthful application for an extension of time

6th August 2013 By Iain Palmer

How not to write a determination

From the very first sentence of ML (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 844, one of the many end of term judgments issued last week, one knows there is going to be trouble: Of all the hackneyed phrases in the law, few are more frequently deployed in the field of immigration and asylum claims than the requirement to use what is described as “anxious scrutiny”. It was clearly not bluebell time in Kent as far as Lord Justice Moses was concerned.

25th July 2013 By Colin Yeo

Hope for Families Divided by the Income Threshold

Last week Monday, I represented a married couple in the husband’s immigration appeal in the First-Tier Tribunal instructed by Yomi Oni-Williams of Owens Solicitors.  I have the couple’s consent to write this post although there is no need for me to publish any identifying information.

22nd July 2013 By Sarah Pinder

Khatel overturned

In the case of Secretary of State for the Home Department v Raju & Ors [2013] EWCA Civ 754 the Court of Appeal has overturned the Upper tribunal’s earlier judgment in Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC). The outcome is a further setback to victims of the stone-hearted Points Based System. However, it arguably only applies in quite narrow circumstances, and the new Evidential Flexibility policy may offer some relief in some circumstances if properly applied by Home Office officials or, if necessary, on appeal.

22nd July 2013 By Colin Yeo

Wang and Chin (extension of time for appealing) [2013] UKUT 343 (IAC)

Another short one. Not to be outdone, this time the Deputy President criticises a First Tier judge for extending time for appealing for the Secretary of State on the basis of an untrue and un-evidenced assertion. Guidance is given to judges (and by extension lawyers) on the correct approach to extending time for appealing.

19th July 2013 By Colin Yeo

Anoliefo (permission to appeal) [2013] UKUT 345 (IAC)

Another short case. President criticises First Tier judge for granting permission on a technicality. Where there is no reasonable prospect that any error of law alleged in the grounds of appeal could have made a difference to the outcome, permission to appeal should not normally be granted in the absence of some point of public importance that it is otherwise in the public interest to determine.

19th July 2013 By Colin Yeo

F (Para 320(8); type of leave) USA

F (Para 320(8); type of leave) USA [2013] UKUT 00309 (IAC) New reported immigration tribunal case on paragraph 320(18) of the immigration rules, one of the discretionary general grounds for refusal. The Entry Clearance Officer had failed to exercise discretion one way or t’other. In this case there was only one rational outcome and it was important to the appellant that he succeeded under the rules rather than on human rights grounds because otherwise he would face future difficulties extending his leave. Appeal allowed.

10th July 2013 By Colin Yeo

Will the real Article 8 please stand up!

In the reported case of Green (Article 8 – new rules) [2013] UKUT 254 (IAC), the Upper Tribunal again reaffirmed that despite the Immigration Rules pertaining to incorporate Article 8, tribunals should continue to consider the substantive Article 8 claim even if the Immigration Rules cannot be met. The official head note of Green states: ​(1) In Nagre v SSHD [2013] EWHC 720 (Admin) the Administrative Court approved the guidance of the Upper Tribunal in Izuazu [2013] UKUT 45 (IAC) in turn endorsing the two stage approach recommended by the Upper Tribunal in MF (Article 8 – new rules) Nigeria [2012] UKUT 393 (IAC). Sales J added the proviso that…

19th June 2013 By Sanaz Saifolahi

MOJ CUTS versus THE RULE OF LAW

If the cuts to the scope of legal aid brought by LASPO 2012 have been significant, the cuts proposed by the Ministry of Justice in the recent consultation “Transforming legal aid: delivering a more credible and efficient system” would be severe. It is of particular concern that the Government has seen fit to make proposals for changes by secondary legislation and contract amendment, so soon after the provisions of LASPO have taken effect, without any Parliamentary scrutiny.  The key proposals that will affect the fields of asylum and immigration include: 1)     Reforms to prison law to ensure that legal aid is not available to matters that do not justify the…

3rd June 2013 By Claire Physsas

Charter fights

  At Renaissance Chambers we have been involved with a number of recent Afghani and Pakistani (Ahmadi) charter flight cases and injunctions. I have noticed a couple of things that are troubling me. Firstly some of the factual immigration summaries prepared by the Home Office omit references to previous fresh claims made and give an impression to an Administrative Court judge that nothing is pending in a case. I have also noticed that decisions in relation to fresh claims made in good time are faxed over to the court first and then faxed to claimant solicitors after the judge has made a decision on the papers, despite the fact that…

31st May 2013 By Shivani Jegarajah

Ahmadis and fast track asylum appeals

Many thanks to Eric Fripp of Lamb Building for the following note: On 8th May 2013 in the First Tier Tribunal (Immigration and Asylum Chamber) at York House, a panel consisting of First Tier Tribunal Judges Woodcraft and Samimi dealt with two cases (references AA/04010/13 and AA/04016/13) in which asylum claimants accepted as being Ahmadi Muslims from Pakistan sought adjournment and transfer out of the Detained Fast Track (“DFT”). In each case the Respondent Secretary of State for the Home Department (“SSHD”) had accepted that the Appellant was an Ahmadi Muslim. SSHD was aware that in each case the Appellant had approached the Ahmadi Muslim Association UK seeking collation and…

30th May 2013 By Colin Yeo

Chikwamba delivers again

Last month saw the advent of a very useful decision from the High Court concerning the lack of provision in the Immigration Rules to allow migrants in the Points-Based System to switch whilst in-country into a PBS dependent category: Zhang, R (on the application of) v SSHD [2013] EWHC 891 (Admin).  The category analysed within this judgment is that relating to a Tier 2 migrant seeking to switch to become a Tier 1 (PSW) dependant – Paragraph 319C (h)(i).  Mr Justice Holman’s judgment has wider application and so it is certainly not a case to let slip under the radar. Rather remarkably, the claimant in this case brought the Judicial Review claim…

28th May 2013 By Sarah Pinder

The Court of Appeal’s judgment in Chapti/Bibi on pre-entry English tests

It has been over a year since the High Court heard a challenge to the introduction of pre-entry English language tests for spouses and partners (and fiancés and proposed civil partners). It was argued in Chapti & Ors, R (on the application of) v SSHD & Ors [2011] EWHC 3370 (Admin) that the changes to the Immigration Rules were unlawful by reference to Article 8, 12 (right to marry) and 14 (prohibition of discrimination) of the ECHR. In the High Court, Beatson J held that the amendment to the Rules did interfere with the right to respect for family life but that the interference was justified. The claimants appealed to…

15th April 2013 By Sarah Pinder

Withdrawn decisions

All appellant advocates appearing before the Immigration and Asylum Chamber of the First-tier Tribunal will be familiar with the growing trend for UK Border Agency Presenting Officers to withdraw decisions either very shortly before or even at the appeal hearing. At Renaissance Chambers we are experiencing this many times every week between us, sometimes in rather dubious circumstances, and just last week I had two decisions withdrawn in this way. Under rule 17(2) of the procedure rules, withdrawal of a decision terminates the appeal in the First-tier Tribunal. Not so in the Upper Tribunal, however, where different procedure rules apply. On the face of it, the withdrawal of a decision…

10th April 2013 By Colin Yeo

No Removals to Cyprus

The Court of Appeal in the UK has very recently granted stays preventing the removal of asylum-seekers to Cyprus under Dublin II. The proceedings have been stayed pending the appeal against the judgment in EM (Eritrea) & Ors v SSHD [2012] EWCA Civ 1336. The cases are: – MD (Guinea) v SSHD C4/2012/3166 (Order granted on the 7th March 2013) – ZJ (Iran) v SSHD C4/2012/2988 (Order dated the 8th March 2013) – FJ (Iran) v SSHD C4/2012/3361 (Order dated the 14th March 2013) EM concerns Dublin returns to Italy. In that case, the appellants challenged their removal to Italy on the basis that the conditions there for asylum-seekers and…

28th March 2013 By Claire Physsas

More Evidential Flexibility Policy instructions disclosed

A big thank you goes to Jane Heybroek of Bell Yard Chambers for persisting with her Freedom of Information request in relation to further documents concerning the Evidential Flexibility policy.  You can access the disclosure here.  The policy (but not Jane’s FoI instructions) was very recently covered by the Upper Tribunal in its decision of Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC), to which the other policy instructions are usefully annexed.  Related posts and documents previously uploaded by Free Movement can be accessed here. The documents within Jane’s FoI request are essentially the full sets of instructions that were issued to caseworkers back in August 2009 when the policy was…

6th March 2013 By Sarah Pinder

Evidence in the tribunal

CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) is important not only as Country Guidance on Zimbabwe but also on the law of evidence in the immigration tribunal. The broad effect of the Country Guidance findings are summarised in the headnote, already posted up last week on the blog. Essentially, the earlier EM [2011] UKUT 98 (IAC) guidance is restored subject to a modification flowing from the Supreme Court decision in RT (Zimbabwe) on the right to apathy. What interests me here are some of the procedural points that arose in the course of reaching the determination. There are three general issues the tribunal addresses, all on the…

13th February 2013 By Colin Yeo

Marriage and civil partnerships inspection report

The latest report by John Vine, the Independent Chief Inspector of Borders and Immigration, was published this week. It concerns applications to enter, remain and settle in the UK on the basis of marriage and civil partnerships and the summary of recommendations is that the UK Border Agency: Assesses all relevant aspects of the Immigration Rules in marriage cases and ensures that this is done in a consistent manner. Ensures that Human Rights are considered consistently in all relevant cases, including overseas applications. Ensures that reasons for its decisions under both the Immigration Rules and Human Rights are properly evidenced, recorded and communicated to applicants. Ensures that the best interests of…

31st January 2013 By Sanaz Saifolahi

Awards of costs in immigration cases

Litigation is an expensive business, and immigration is a litigious business. As the recent brouhaha around judicial review revealed, the vast majority of judicial review cases in the High Court and on appeal up to the Court of Appeal and Supreme Court are immigration cases. On top of that are a considerable number of statutory appeals to the higher courts from immigration tribunal decisions and an increasing number of civil damages claims in the county courts for false imprisonment in the immigration detention estate. The question of who pays the lawyers is therefore an important one, not just for us lawyers but also for those forced to litigate, the Legal…

28th January 2013 By Colin Yeo

Christmas time

Just a reminder that time does not run over the Christmas period for lodging appeals in the First-tier Tribunal against its decisions. See the Asylum and Immigration Tribunal (Procedure) Rules 2005 (as heavily amended) rule 2 definition of ‘business day’, which excludes 25 to 31 December, read with rule 57, which defines any period of 10 days or less as being one that excludes business days. The same applies in the Upper Tribunal in immigration cases by virtue of the Tribunal Procedure (Upper Tribunal) Rules 2008 rule 12(3A) read with rule 21(3)(aa). The tribunal itself forgot one year not so long ago and refused a bunch of applications as out…

27th December 2012 By Free Movement