Zimbabwean national unlawfully detained after Home Office fails to serve immigration decision

Substantial damages of £10,500 have been awarded to a claimant who was unlawfully detained for a period of 70 days. The Home Office had failed to serve the Claimant with notice of a decision on his application to vary his leave to remain in the UK before detaining him, rendering his detention unlawful. The case is R (on the application of) Godwin Chaparadza v Secretary of State for the Home Department [2017] EWHC 1209 (Admin). Background The Claimant, a Zimbabwean national, entered the UK on 5 September 2004 with leave to remain as a student. His leave to remain was extended on a number of occasions, the last such extension...

7th June 2017 By Rebecca Carr

When must the tribunal allow appeals against Home Office decisions containing errors of law?

Where the Secretary of State makes an error of law in a decision which is then appealed to the tribunal, does the tribunal have to allow that appeal on the basis that the decision contains an error of law? Not unless the decision as a whole is unlawful, finds the Court of Appeal in Singh (India) v Secretary of State for the Home Department [2017] EWCA Civ 362 (24 May 2017). Case outline Mr. Singh’s case was weak. He arrived in 2001 as a visitor for 6 months. He overstayed, and later made two Hail Mary applications in 2010 and 2012 to regularise his stay based on, apparently, little more...

5th June 2017 By Nick Nason

No human rights issues to be raised in EEA appeals, confirms Court of Appeal

In September 2015, the Upper Tribunal decided the case of Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC). The decision states that if an appeal is brought in the First-Tier Tribunal against an EEA decision then the only relevant issues that can be raised during the appeal are those directly connected to that EEA decision. Human rights issues, the Upper Tribunal ruled, were not justiciable. This case was covered at the time by Free Movement, where several issues were raised in respect of the reasoning of the tribunal, and the policy of attempting to artificially distinguish between European law rights and other rights guaranteed under domestic human rights...

19th May 2017 By Nick Nason

When can a tribunal be forced to pay the costs of judicially reviewing it?

“Not often” is the answer. Only if the tribunal acts in an improper way. Incompetence or unlawfulness is not sufficient. In this case, R (on the application of Gudanaviciene) v Immigration and Asylum First Tier Tribunal [2017] EWCA Civ 352, an EU national was facing deportation. She appealed the decision to deport but no legal aid was available to assist her and she could not afford to pay for legal representation. A good firm of solicitors, Turpin Miller in Oxford, agreed to take on her case but only to the extent that they would, unfunded, help her apply to the Legal Aid Agency for “Exceptional Case Funding”. Her application for...

18th May 2017 By Colin Yeo

Family life succeeds in defeating s.94B ‘deport first, appeal later’ certification

The judgment in OO (Nigeria), R (on the application of) v Secretary of State for the Home Department [2017] EWCA Civ 338 is one of a series of cases challenging the lawfulness of the certification regime under s.94B Nationality Immigration Asylum Act 2002 (as amended). The issue has been considered several times on Free Movement, and judgment is still awaited on the lead test case of Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020, heard by the Supreme Court in March. This case is notable for its treatment of family life issues in respect of a (potentially) temporary absence from the United Kingdom whilst an appeal is ongoing, and a...

15th May 2017 By Nick Nason

Waiting time in the immigration tribunal now 83 weeks for some appeals

The latest tribunal statistics, published in March 2017, show that the average waiting time for appeals to be heard in the immigration tribunal is now 48 weeks. This is the time between the appeal being lodged and the appeal being promulgated, I understand. The breakdown for different types of appeal reveals major disparities between different types of appeal, though, with waiting times for entry clearance appeals — for example for spouses or children applying to join family members in the UK — as high as 83 weeks. That is over a year and a half. With 51% of all entry clearance appeals being allowed in Q3 2016, that is a very...

5th May 2017 By Colin Yeo