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


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

Judicial review consultation

The consultation on changes to the procedure for judicial review has opened and it closes on 24 January 2013. Regular readers will recall that these proposals were said by David Cameron to be part of the Government’s efforts to combat the recession, an effort comparable to Britain’s wartime effort against the Nazis. The main consultation can be found here and the consultation on fees is here. Both look like quite whizzy and easy to use online consultations. More traditional downloads can be found here and here. The proposed changes are as follows: For planning cases – reducing the time after the initial decision that an application for Judicial Review can…

14th December 2012 By Free Movement

Two sides of the same coin

Following on from the case of Ahmadi ( s. 47 decision: validity; Sapkota) [2012] UKUT 00147 (IAC)  the Upper Tribunal has (for now) resolved the perplexing issue of what to do when the Secretary of State combines a refusal to vary leave with a Section 47 removal.  This issue is thrashed out in the case of Adamally and Jaferi (section 47 removal decisions: Tribunal Procedures) [2012] UKUT 00414 (IAC). The official head note in Adamally and Jaferi states: When a removal decision purportedly under s 47 of the Immigration, Asylum and Nationality Act 2006 is made concurrently with a decision refusing further leave: (i)             the s 47 decision is unlawful,…

29th November 2012 By Sanaz Saifolahi

“A series of small omissions and unfortunate developments…”

The reported Upper Tribunal case of Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC) underscores some important points of practice and procedure in the First Tier Tribunal (FTT). The case concerned an appeal before the FTT where it appears to have been agreed between the Appellant and Respondent representatives that credibility was not in issue. The issues to be determined in the appeal were sufficiency of protection and internal flight. The issues were ‘narrowed’ at an oral CMRH. The Upper Tribunal refers to the Judge’s note. The Judge’s note was a bit vague. Neither representative was provided with written confirmation of this agreement of the facts at the…

23rd November 2012 By Sanaz Saifolahi

Last minute judicial reviews: warning

The President of the Queens Bench Division, Sir John Thomas, has issued a dire warning to solicitors applying for last minute judicial reviews and injunctions in immigration cases. The comments come in the case of R (on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), which has still inexplicably not made its way to BAILII. Sir John refers to the revised Form N463 for urgent applications and also later flags up that a new form is shortly to be introduced for out of hours applications: The form was revised because the Administrative Court faces an ever increasing large volume of applications in…

14th November 2012 By Free Movement

Judicial review of Upper Tribunal

As of 1 October 2012 a new procedure has been introduced for judicial review of decisions by the Upper Tribunal to refuse permission to appeal to itself. This follows on from the Supreme Court’s judgment in Cart and MR (Pakistan) [2011] UKSC 28 (previous post). A new Rule 54.7A is inserted into the Civil Procedure Rules which provides for an accelerated timescale and no opportunity to apply for oral renewal. The time limit for lodging such an application for judicial review is reduced from three months to 16 days from the date on which the Upper Tribunal’s decision to refuse permission was sent. The Upper Tribunal and any interested party (in immigration…

10th October 2012 By Colin Yeo

Immigration appeals and executive discretion

Following on from his learned but — at least on the question of what a judge should actually do— slightly Delphic determination in AG and others (Policies; executive discretions; Tribunal’s powers) Kosovo [2007] UKAIT 00082, the Deputy President Mr Ockelton has returned to the issue of dealing with executive discretion in a new case, Ukus (discretion: when reviewable) Nigeria [2012] UKUT 307 (IAC). The appeal was a very odd one. Following a refusal under paragraph 320(18) of the rules, which provides that entry should normally be refused to those with a conviction for an offence punishable with a sentence of 12 months or more, an immigration judge allowed the appeal, finding that…

28th September 2012 By Colin Yeo

The ‘subjective’ element

A new “subjective” element has been discovered and can be found in the Immigration Appeals Family Visitor Regulations 2012 (SI 2012/1532). Watch out for this worrying little element as it has the potential to restrict the appeal rights of unmarried partners. The 2012 Regulations defines who is a “family member” for the purposes of Section 90 of the Nationality, Immigration and Asylum Act 2002 which, in turn, provides for when a visitor has a full right of appeal. To be a “family member”, under the 2012 Regulations, not only do unmarried partners have to show that they have been in a relationship for two years prior to the application but…

31st July 2012 By Frances Allen

Appealing a Zambrano ‘decision’

This is the second post in a short series on the Zambrano judgment. The first part was Making a Zambrano application. Next time: Whither Zambrano? by Iain Palmer. Following on from the last post on Zambrano, the position of the UK Border Agency is that a decision that a Zambrano application is invalid cannot be appealed to the immigration tribunal. Whether this is correct in law is questionable and in several cases Judges of the First-tier Tribunal Immigration and Asylum Chamber have held that there is a right of appeal against such decisions. Is there a right of appeal? The right of appeal in EEA rights and decision cases usually…

27th June 2012 By Colin Yeo

Fairness and the Points-Based System: A contradiction in terms?

Kezia Tobin and Sarah Pinder recently broached this topic at a seminar given by Renaissance Chambers on 13 June 2012 digesting the procedural issues and most recent case-law involved and this post has been put together by them both to highlight some of the issues covered. The notes highlight the “evidential flexibility policy” of the UKBA, which was covered on the blog last year.  Evidently (no pun intended) there has not been any further disclosure of the policy instructions to caseworkers so we are none the wiser as to exactly what criteria are being applied by UKBA caseworkers.   However it is important to note that the standard acknowledgement letters sent…

22nd June 2012 By Sarah Pinder

Crime and Courts Bill

As has been widely reported in the mainstream media, the Government proposes to scrap family visitor appeal rights. Again. The change is intended to come into full effect in 2014 but as early as July 2012 the definition of ‘family’ will be narrowed to exclude cousins, uncles, aunts, nieces or nephews. See the press release here. The full abolition is to be effected in yet another piece of legislation with a title that cements the subliminal link between crime and immigration, the Crime and Courts Bill. The justification is cost saving at both the Ministry of Justice and the Home Office. Appeal fees were introduced last December so increasing those would…

16th May 2012 By Free Movement

Allegations of Judges misconduct: proof needed, of course….

The Vice President of the Upper Tribunal has recently provided guidance applicable to cases where a party is alleging misconduct by a Judge. In the recently reported case of Azia (proof of misconduct by judge) [2012] UKUT 00096 (IAC) the official head note states: A party alleging misconduct by a judge needs to prove it. Parties and their representatives need to ensure that the evidence is collected while memories are fresh. Permission to call evidence before the Upper Tribunal may be refused where, in circumstances where a party has not acted promptly to prepare and disclose evidence, it would be unfair to the other party, or not in the interests…

24th April 2012 By Sanaz Saifolahi

Light at the end of the tunnel

Court of Session upholds an application for judicial review of Upper Tribunal refusal of permission to appeal. The Outer House of the Court of Session (equivalent to the Administrative Court) has upheld a judicial review of an Upper Tribunal refusal of permission to appeal. As far as is known to Scottish practitioners, this is the first successful such application on either side of the border since tribunal reorganization and the Supreme Court decision in Cart / Eba [2011] 3 WLR 107 and 149. Lord Glennie’s 20th March decision in Oke [2012] CSOH 50 is also important for its remittal to the Tribunal of an important question on the scope of Pankina. A…

10th April 2012 By Joe Bryce

Section 85A commencement order doesn’t mean what it says

Far too late to be of use to anyone, the Upper Tribunal has held that the controversial commencement of section 85A did not affect appeals that had already been lodged. The case is Shahzad (s. 85A: commencement) Pakistan [2012] UKUT 81 (IAC). It was heard by a panel including the Deputy President, Upper Tribunal Judge Ockelton, on 4 October 2011 and only promulgated on 13 March 2012. Counsel was, almost inevitably, Zane Malik. Incidentally, Zane’s first Treasury brief is next week against me and several others in a country guidance case on Ahmadis in Pakistan – should be fun. The tribunal is highly critical of the draftsman of the commencement order,…

23rd March 2012 By Free Movement

Second appeals test

UPDATED AND REVISED Judgment was handed down this morning by the Court of Appeal in a test case on the nature of the second appeals test in immigration and asylum cases. The case name is JD (Congo) & Ors v Secretary of State for the Home Department & Anor [2012] EWCA Civ 327. Paragraph 709 of the Bar Code of Conduct forbade me from expressing personal opinion in this case at the time it was handed down and a colleague never quite got round to writing it up, frustratingly. At the time, I merely quoted directly from the judgment of Sullivan LJ: 22. We accept Mr. Beloff’s submission on behalf of…

16th March 2012 By Colin Yeo

No changing horses in mid stream

In the second Court of Appeal judgment from last week in which Zane Malik was Counsel for the Appellant, that of Lamichhane v Secretary of State for the Home Department [2012] EWCA Civ 260, the same bench has given another judgment that many migrants will find unhelpful. Essentially, the Court holds that it is not possible to pursue an appeal on grounds other than precisely those pleaded to the Secretary of State or Entry Clearance Officer in the original application. For example, it is not possible to apply for leave under one Immigration Rule but then appeal on the basis that even if the applicant cannot succeed on the basis of…

15th March 2012 By Free Movement

The asylum merry-go-round

Lord Justice Ward is at it again: This is another of those frustrating appeals which characterise – and, some may even think, disfigure – certain aspects of the work in the immigration field. Here we have one of those whirligig cases where an asylum seeker goes up and down on the merry-go-round leaving one wondering when the music will ever stop. It is a typical case where asylum was refused years ago but endless fresh claims clog the process of removal. This are the first words of his judgment yesterday in the case of R (on the application of TM) v Secretary of State for the Home Department [2012] EWCA…

19th January 2012 By Free Movement

Tribunal’s view on Sapkota

The Upper Tribunal haven’t hung around in turning their attention to the recent case of Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320, which was only reported here on the blog three weeks ago. They have also reviewed the authorities leading up to Sapkota and have outlined guidance for the tribunal when dealing with cases where Sapkota points are raised and/or may be applicable. The official headnote to Patel (consideration of Sapkota – unfairness) India [2011] UKUT 00484 (IAC) reads as follows: (1) There is no substantive segregation of considerations going to an extension of stay and removal where the appellant seeks leave to remain outside the rules on 395C…

21st December 2011 By Sanaz Saifolahi

Tribunal obliged to seek out representation in Country Guidance cases

The Court of Appeal last week handed down a very interesting judgment on the need for ‘proper argument’ in Country Guidance cases, the obligation on the tribunal itself to seek to secure that proper argument and how far the tribunal determination process can morph from an adversarial to an inquisitorial one. The case is HM (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1536 and Richards LJ gives the leading judgment. This was the case where the tribunal decided to plough ahead with a CG case on Iraq despite the appellants being unrepresented, in controversial circumstances, at the hearing. See previous blog coverage here and here. On the need for proper…

19th December 2011 By Free Movement

Immigration appeal fees coming soon

As previously highlighted on this blog, fees are to be introduced for immigration appeals. The date has now been set for this to begin: for notices of decision dated 19 December 2011 or later. Strangely, as far as I can see, you won’t find anything about this on the Immigration and Asylum Chamber website. One might have thought some forewarning for litigants and their lawyers might be useful there in order to avoid invalid appeals come commencement. There is a short item about it on the UKBA website, at least. The headlines are that, for now, the moment fees will only apply in the First Tier Tribunal and that the fees…

14th December 2011 By Free Movement

Segregation of immigration decisions

In a dense judgment that more than once has caused me to question my will to live the Court of Appeal has held that it is unlawful for the Secretary of State to separate a decision to refuse to extend leave from a decision to remove. The case is Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320. This ‘segregation’ of decisions, as it is referred to in the judgment, is unlawful because it effectively deprives a person of the right to rely on paragraph 395C of the rules. Such segregation is contrary to the one-stop philosophy of appeals. At this point I pause to wonder why…

30th November 2011 By Free Movement

Evidence by electronic means

An interesting case on the use of electronic means (telephone, video link, Skype, Morse, that sort of thing) has been determined in North Shields. As the tribunal comes close to saying, it is serendipitous that it should be here where this issue would arise again, after the notorious case of R (on the application of AM (Cameroon)) v Asylum and Immigration Tribunal [2007] EWCA Civ 131. The official headnote to this new case, Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443 (IAC), reads as follows: The decision whether to allow evidence to be given by electronic means is a judicial one, requiring consideration of the need to do so, the arrangements…

24th November 2011 By Colin Yeo

Procedural fairness in asylum appeals

The recent Court of Appeal decision in SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 repays reading for the way it reiterates the centrality of procedural fairness, especially in asylum cases. At the heart of the case is a challenge to an Immigration Judge’s refusal to adjourn to admit independent expert evidence. SH had claimed asylum and claimed to be a minor. Lincolnshire social services assessed him to be an adult. The Refugee Council strongly believed him to be a minor and arranged for an independent expert to carry out an age assessment. An adjournment of his fast track hearing was sought on that basis…

21st November 2011 By Ed Mynott