How we overturned Sala in the Court of Appeal

The Court of Appeal (Etherton MR, Longmore LJ, Irwin LJ) heard the appeal against the findings in Sala yesterday. Those findings, briefly, are that by virtue of the discretion available to a decision-maker under regulation 17 of the Immigration (EEA) Regulations 2006, a decision on an application under regulation 8 is not a decision which concerns the applicant’s entitlement to be issued with a residence card. Therefore it is not an “EEA decision” under regulation 2 and so is not appealable under regulation 26. Our position for the appellant was the same as the appellant’s position in Sala: that the regulations provide a right of appeal against an adverse decision on...

13th October 2017 By Rajiv Sharma

Tribunal criticises government lawyers for “trench warfare” mentality and “inappropriate” conduct

In one of his final judgments as outgoing President, Mr Justice McCloskey launched a bitter broadside at the conduct of government lawyers in long-running litigation over the entry of refugee children. While the criticism of the solicitors at the Government Legal Department and of previous barristers instructed for the Home Office is robust and unambiguous, the background is hard to discern from the judgment itself, which arises essentially as satellite litigation around the failure of the Home Office to comply with previous orders made by the tribunal. The case is R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply –...

9th October 2017 By Colin Yeo

Tribunal can (but won’t) hold Home Office in contempt for ignoring consent orders

The facts of R (on the application of MMK) v Secretary of State for the Home Department (consent orders – legal effect – enforcement) [2017] UKUT 198 (IAC) involved the not uncommon scenario of the Home Office withdrawing its decision in response to an application for judicial review, agreeing a consent order which included an agreement to pay the costs of the claimant and to make new decision be made within a certain time and then failing to comply with that consent order. As an aside, this is why the headline figures on success rates for applications for judicial review are so misleading: because a very significant number of claims are settled...

21st September 2017 By Colin Yeo

Explainer: Can the Home Secretary really be guilty of contempt of court for breach of a court order?

The Home Office has been in the news for what one judge described as a “prima facie case of contempt of court.” Officials are reported to have breached multiple orders for the return of asylum seeker Samim Bigzad from Afghanistan to the United Kingdom. Ultimately, though, in legal terms it is Home Secretary Amber Rudd who is responsible for those actions. It is unlikely she personally sanctioned breach of the order. Can she really be in contempt of court for the actions of one of her officials? At the time of writing there has been no finding of contempt of court in the case of Samim Bigzad. However, clear and deliberate...

18th September 2017 By Colin Yeo

Fee waiver policy: who qualifies and what does the Home Office policy say?

Fees for immigration applications continue to increase every year. Most applications for leave to remain submitted from the UK (other than under the Point Based System) cost £993. In addition, applicants may need to pay an Immigration Health Surcharge (usually £500). On average, therefore, an applicant will need to spend almost £1500 to get leave to remain in the UK. This is, in fact, the very bare minimum. One may also need to pay £150 to pass an English language test for applications where there is an English language requirement; £590 for the Premium Service Centre for those who simply cannot leave their passport with the Home Office for months;...

4th September 2017 By Nath Gbikpi

Upper Tribunal provides guidance in cases of judicial bias

In Sivapatham (Appearance of Bias: Sri Lanka) [2017] UKUT 293 (IAC) (7 July 2017) frustrated novelist and president of the Upper Tribunal McCloskey J considers the law surrounding judicial bias in the tribunal. As with previous exponents of the art (see Denning LJ, or Moses LJ), judgments of the President are almost always entertaining on some level, written with eloquence and a sense of the dramatic, in ornate prose. This determination is no different, and brings together important guidance on the steps to be taken where judicial bias is alleged, and the relevant legal principles for a court hearing any such allegation. The Sivapatham allegations The particular facts of the...

18th August 2017 By Nick Nason