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

New evidence in Points Based System appeals

The Upper Tribunal has reported a decision on the effect of the new section 85A of the Nationality, Immigration and Asylum Act 2002: Alam (s 85A – commencement – Article 8) Bangladesh [2011] UKUT 00424 (IAC). The official headnote reads as follows: (1) Where it applies, s. 85A of the Nationality, Immigration and Asylum Act 2002 precludes certain evidence from being relied on, in order to show compliance with the Immigration Rules. (2) “Fairness” arguments concerning the application of the transitional provisions regarding s. 85A, in article 3 of the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011, may have a legitimate part to play in…

26th October 2011 By Free Movement

Yet more Tribunal decisions

After what felt like something of a hiatus early in the year, the tribunal has been churning out new reported cases in recent months as if there was no tomorrow. As far as I know no-one has suggested scrapping the Immigration and Asylum Chamber YET, although it is surely only a matter of time! September’s batch follows below, with the official headnotes inset and in italics and any commentary by Free Movement in normal text before the headnote. With some of these, one wonders what cases aren’t reported these days. However, highlights include two from El Presidente, one in which Treasury hotshot James Eadie QC, normally reserved for serious terrorism…

4th October 2011 By Free Movement

Second appeal criteria tighter than expected

Mark Symes has posted an article over at the HJT Immigration Blog on a new case from the Court of Appeal on the ‘second appeal criteria’. The case is PR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 988. These criteria are the legal gateway not only to the Court of Appeal on appeal from the Upper Tribunal but also, following Cart and Eba, also to judicial review of the Upper Tribunal. The criteria are: (a) the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Court of Appeal to hear it. Mark…

15th August 2011 By Free Movement

Judicial review of the Upper Tribunal

Last week, while I was away, the Supreme Court held that the Upper Tribunal can be judicially reviewed, and in much wider circumstances than envisaged previously by the High Court and the Court of Appeal. For England and Wales the case is Cart and MR (Pakistan) [2011] UKSC 28 and for Scotland it is Eba v Advocate General for Scotland [2011] UKSC 29. This is extremely important in immigration and asylum cases. Where an appeal fails in the First Tier Tribunal, permission is sought from the FTT to appeal to the Upper Tribunal and refused and then sought from the UT and again refused, there was until last week no…

29th June 2011 By Free Movement

‘Unnecessary’ appeals to end

I’m full of good news today! The rumours were true and section 19 of the UK Borders Act 2007 is being brought into force as of 23 May 2011. It makes most Points Based System appeals, er, pointless. There’s a news item on the UKBA website and Damian Green had this to say about it: “Section 19 of the UK Borders Act 2007 will come into force on 23 May 2011. Section 19 restricts the evidence an appellant can rely on at such an appeal to that which is submitted to and considered by the UK Border Agency in support of an application. Reforming the immigration system and reducing the…

19th May 2011 By Free Movement

Fees for immigration appeals from October

The Ministry of Justice has confirmed that fees will be charged for lodging appeals in the immigration tribunal from October 2011. There is no summary and the important details are spread out all over the place, meaning the document requires careful and close reading to comprehend. Frankly, it is not well written or set out, and there is at least one odd contradiction. As ever at your service, I’ve saved you the bother: Fees to be set at £80 for paper hearings and £140 for oral hearings to begin with, but with increases likely, starting with the managed migration and settlement appeals No fees to be charged in the Upper…

17th May 2011 By Free Movement

BA (Nigeria) judgment

Following on from my earlier alerter post, I’ve now had time to properly read and start digesting the Supreme Court judgment in BA (Nigeria) v SSHD [2009] UKSC 7. It is certainly good news in terms of streamlining and ensuring that there is proper protection available to those who make a human rights claim. Essentially, the Court holds by a majority (Baroness Hale dissenting) that where a human rights claim is made it will always generate an in-country right of appeal if it generates a right of appeal at all. I will return to the italics below. This is because section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002…

2nd December 2009 By Colin Yeo