All Articles: Procedure

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 ...

28th March 2013 By

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 n ...

6th March 2013 By

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 ...

13th February 2013 By

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 rec ...

31st January 2013 By

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 Cour ...

28th January 2013 By

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 ‘busi ...

27th December 2012 By

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 recess ...

14th December 2012 By

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 Sectio ...

29th November 2012 By

“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 app ...

23rd November 2012 By

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 Sec ...

14th November 2012 By

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 ...

10th October 2012 By

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 Dep ...

28th September 2012 By

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 unmarrie ...

31st July 2012 By

Immigration judicial reviews to be transferred

The Government is amending the Crime and Courts Bill to allow transfer of any or all immigration, asylum and nationality judicial review cases from the High Court to the Upper Tribunal. This seems to have pretty much universal support from Government, ...

4th July 2012 By

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 tha ...

27th June 2012 By

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 o ...

22nd June 2012 By

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 ...

16th May 2012 By

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 ...

24th April 2012 By

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 o ...

10th April 2012 By

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 ...

23rd March 2012 By

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 Departmen ...

16th March 2012 By

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 ...

15th March 2012 By

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 asyl ...

19th January 2012 By

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 ...

21st December 2011 By

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 deter ...

19th December 2011 By

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 anyth ...

14th December 2011 By

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 Sapko ...

30th November 2011 By

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 ...

24th November 2011 By

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 ...

21st November 2011 By

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 ...

26th October 2011 By

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, a ...

4th October 2011 By

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 ...

15th August 2011 By

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 ...

29th June 2011 By

Legacy cases criteria

Not much to report on this one, just that I tried a Freedom of Information request on the criteria for deciding Legacy cases and get a non-answer back in return. The request was refused to begin with but that decision was overturned on appeal. The inf ...

1st June 2011 By

‘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 a ...

19th May 2011 By

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 a ...

17th May 2011 By

Disclosure from family proceedings

A very good solicitor I know nearly came a cropper on this the other day, so I thought I would post up some advice on the subject. I suspect quite a few immigration lawyers are not really familiar with the issues around disclosure. Given the increasin ...

28th April 2011 By

New tribunal rules and procedure

I’ve been working on new training notes and having fun (noooooo!) deleting all of the references to the unlamented Asylum and Immigration Tribunal for the next edition of the HJT Immigration Manual. I thought I would share some of the fruits of ...

17th February 2010 By

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 prop ...

2nd December 2009 By

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