High Court finds Adult Dependent Relative rule lawful but opens door to individual challenges

The challenge by organisation Britcits to the virtual prohibition on the entry of adult dependant relatives introduced in 2012 has been dismissed: R (on the application of Britcits) v Secretary of State for the Home Department [2016] EWHC 956 (Admin). Despite the disappointing outcome, though, there is a distinct silver lining to the judgment. For background reading on the rule, see this earlier blog post: The new immigration rules for Adult Dependant Relatives: out with the old… In short Mr Justice Mitting felt constrained to dismiss the application due to Aiken LJ’s judgment in MM (Lebanon) and if he had not been bound by that authority he would have declared the rule…

20th May 2016 By Colin Yeo

High Court finds Claimants grounds of appeal are “plainly right”, despite refusals of permission by both the FTT and UT

The case of G and H v Upper Tribunal and SSHD [2016] EWHC 239 (Admin) is notable as the first reported case of a successful substantive Cart JR against a decision of the Upper Tribunal (Immigration and Asylum Chamber) refusing permission to appeal from the First Tier Tribunal (FTT) to the Upper Tribunal (termed “an Upper Tribunal permission refusal” in the judgment). As background, in the case of Cart [2011] UKSC 28 the Supreme Court held that a refusal by the Upper Tribunal of permission to appeal to itself can be judicially reviewed. See this post by Desmond Rutledge for a full exploration of the current rules and procedure in Cart judicial reviews, as they are…

2nd March 2016 By Lucy Mair

Secret Evidence in Immigration Tribunal Hearings: R (on the Application of ILPA) v Tribunal Procedure Committee and Lord Chancellor

Open justice is one of the most crucial features of a free state. In weighing up individual cases, courts have sometimes decided that open justice shoud give way to other, equally necessary, ideals. For instance, national security won the day in the Court of Appeal decision in the Erol Incedal case. This was inevitably criticised by the press. In Immigration Law Practitioners Association, R (On the Application Of) v Tribunal Procedure Committee & Anor [2016] EWHC 218 (Admin), Mr Justice Blake in the High Court deals whether in appropriate circumstances information can be withheld from an appellant, or both an appellant and their representative, in immigration tribunals. Rule 13 of the 2014 Immigration Tribunal Procedure Rules…

29th February 2016 By Paul Erdunast

Babbage: Court orders release of Zimbabwean foreign criminal, criticises Government lawyers

In the case of R (on the application of Babbage) v Secretary of State for the Home Department [2016] EWHC 148 (Admin) Mr Justice Garnham ordered the release of a detained Zimbabwean foreign criminal. In the process, he was corruscating critical of the conduct of Government lawyers acting for the Secretary of State for the Home Department. The case has received press coverage because Mr Babbage is still considered a risk to the British public; the press reports fail to mention that there was simply no prospect of removing Mr Babbage from the UK and therefore there is no power to detain him. Zimbabwean criminal Andre Babbage freed despite ‘significant risk’ to…

3rd February 2016 By Colin Yeo

Human rights and best interests relevant in ALL decisions

In Granovski v Secretary of State for the Home Department [2015] EWHC 1478 (Admin) HHJ Coe QC sitting as a Deputy Judge of the High Court rejects the Home Office contention that the best interests of children and private and family life of the applicant and his family could only be considered in response to a specific paid human rights application:

7th July 2015 By Colin Yeo

Unlawful for Home Office to ignore expert evidence in trafficking decisions

The Administrative Court last week (22.5.15) handed down judgment in the case of R (on the application of AB) v Secretary of State for the Home Department [2015] EWHC 1490 (Admin), quashing a decision not to recognize AB as a victim of human trafficking for the purposes of the Council of Europe Convention on Action against Trafficking (CAT), and mandating that the Secretary of State remake that decision.

27th May 2015 By Lucy Mair

Court has no “superhero” jurisdiction says Home Office in unlawful detention case

In the case of Xue v Secretary of State for the Home Department [2015] EWHC 825 (Admin) the Home Office claimed that the court had no “superhero” jurisdiction and could not or should interfere with the right of the Secretary of State indefinitely to detain a foreign national. Happily for the woman concerned, who was detained for two years at the Yarl’s Wood detention camp before being released and who during that time underwent a catastrophic decline in mental and physical health, Mrs Justice Laing disagreed. A finding of unlawful detention was made and some very limited damages were awarded covering only the final month of her detention.

2nd April 2015 By Colin Yeo

Successful judicial review claim by trafficking victim

A successful judicial review claim by a trafficking victim is reported at R (on the application of FM) v Secretary of State for the Home Department [2015] EWHC 844 (Admin) (26 March 2015). Philip Mott QC sitting as a Deputy High Court Judge found that the Home Office had unlawfully refused to grant status to the victim, who it was agreed was a genuine trafficking victim. The Home Office reasoning had been essentially that that was all in the past now:

27th March 2015 By Colin Yeo

High Court finds Tier 1 Entrepreneur landline requirement irrational

The High Court has found part of the Tier 1 Entrepreneur rules to be irrational in the case of R (on the application of Sabir & Ors) & Anor v The Secretary of State for the Home Department [2015] EWHC 264 (Admin). Despite succeeding on part of the challenge, though, the case ultimately failed because there were other parts of the rules that the claimant has also been refused under and which the claimant failed to convince the judge were unlawful. The case is instructive for non specialists on the arcane and bizarre bureaucratic requirements that entrepreneurs are required to establish in order to obtain a visa. Designed by civil servants who…

23rd March 2015 By Colin Yeo

Curtailment of leave not effective if someone else signs for it

Just a short one this, but perhaps important. In R (on the application of Javed) v Secretary of State for the Home Department [2014] EWHC 4426 (Admin) Neil Garnham QC sitting as a Deputy High Court Judge holds that where a notice of curtailment was sent by recorded delivery to the correct address but an unknown person who was not the intended recipient signed for receipt of the notice, the curtailment has not been effective. Whether the judgment is relevant in future is open to question given that the Immigration (Leave to Enter or Remain) Order 2000 was amended as of 12 July 2012 to permit service by post.

23rd January 2015 By Colin Yeo

Family visitor receives £125,000 damages for mistreatment by immigration officials

In July the High Court awarded an Indian lady, Radha Patel, £125,000 in damages for her treatment by immigration officials on and after arrival as a family visitor. The case is Radha Naran Patel v Secretary of State for the Home Department [2014] EWHC 501 (Admin) and it is extremely long judgment and has received mainstream press coverage, so I am not going to go over the full details here. As an interesting case I want to make sure I can easily find it in future, though, and that is as ever my main criterion for adding material to Free Movement. It is an interesting one as it involves stark findings…

4th September 2014 By Colin Yeo

Legal Aid residence test found unlawful. Big time.

No commentary is really needed, I think. The powerful judgment by Lord Justice Moses finds the residence test ultra vires (beyond the powers granted by Parliament) and unlawfully discriminatory. The judgment includes some choice wording. What follows are the words of the judgment, but with some missed out. You can read the whole thing here: R (On the Application Of The Public Law Project) v The Secretary of State for Justice the Office of the Children’s Commissioner [2014] EWHC 2365 (Admin). I’ve omitted most of the usual ellipses for ease of reading.

15th July 2014 By Colin Yeo

Detained fast track as presently operated unlawful

In Detention Action v Secretary of State for the Home Department [2014] EWHC 2245, Ouseley J considered a challenge to the lawfulness of the policy and practice applied by the Secretary of State in the operation of the detained fast track and concluded that it ‘carries with it too high a risk of unfair determinations’ ([221]).

15th July 2014 By Bijan Hoshi

Discretionary registration of children as British

In the case of R (on the application of FI) v Secretary of State for the Home Department [2014] EWHC 2287 (Admin) the court was asked to review a decision to refuse to register as a British citizen a 14-year-old who had been settled with Indefinite Leave to Enter the UK for 8 years and was coming up to his GCSEs.

14th July 2014 By Amanda Weston

No recourse to public funds challenges

R (on the application of NS & others) v SSHD [2014] EWHC 1971 (Admin) The challenge was primarily to the presumption of “no recourse to public funds” which was inserted into the Immigration Rules at Appendix FM paragraph D-LTRPT 1.2 in December 2012. The argument applies equally to paragraph 276BE. The linked case of Akhalu was also dismissed.

1st July 2014 By Amanda Weston

Italy and Dublin: Tabrizagh test case

Judgment has finally been handed down in the latest test case on Dublin removals to Italy, Tabrizagh and others v SSHD [2014] EWHC 1914 (Admin) and although it is on any view bad news, there is much in it to consider. In a carefully reasoned and frankly impressive decision the newly made up Laing J dismissed the claimants’ challenge on the facts. This is the first Dublin case to consider the principles in the Supreme Court’s ground-breaking EM (Eritrea) v SSHD [2014] UKSC 12.

16th June 2014 By Greg Ó Ceallaigh

Refusal of legal aid held unlawful

In a big win for legal aid lawyers and their clients, the High Court has held to be unlawful the refusal of legal aid in six test cases and has additionally held unlawful the guidance applied by the Legal Aid Agency in refusing legal aid: It follows from what I have so far said that in my view the Guidance is defective in that it sets too high a threshold and fails to recognise that Article 8 does apply even in immigration cases and, despite the exclusion of Article 6, carries with it procedural requirements which must be taken into account. The case is Gudanaviciene & Ors v Director of Legal…

13th June 2014 By Colin Yeo

Two new cases on dishonesty in immigration applications

The first of these is a useful short case that came out while I was away called Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 (IAC). It is another example of an applicant with a driving conviction who ticked the ‘no’ box to the question about previous convictions standard on all immigration application forms. As previously discussed, even Home Office policy guidance recognises that mandatory refusal is not necessarily justified on such facts. In this case the applicant’s evidence was that she did not realise she had been convicted because she had not received any further communication from the police about her case. As is standard in paper appeals, the Home Office…

10th June 2014 By Colin Yeo

Refugee Action wins case on behalf of destitute asylum seekers

The present Government has declared its intention to create a ‘hostile environment’ for migrants. True to its word, the Go Home vans, the ‘papers please’ raids on public transport hubs, the targeting of foreign students, the increasingly demented bureaucracy of the immigration rules and the harsh family migration rules are all delivering on that pledge. Perhaps as part of that campaign, Theresa May decided in June 2013 to maintain a freeze on the level of support for destitute asylum seekers in the UK. The High Court has now held in the case of R (On the Application Of Refugee Action) v The Secretary of State for the Home Department [2014]…

10th April 2014 By Colin Yeo

Good character and applications for citizenship

In Hiri v Secretary of State for the Home Department [2014] EWHC 254 (Admin) the Administrative Court found for the Claimant in an application for Judicial Review of the Secretary of State’s decision to refuse naturalisation on grounds of ‘good character’. The judgment provides useful judicial comment as to how the Secretary of State must approach assessments of an applicant’s character by reference to her policy and otherwise. The Secretary of State’s policy on ‘good character’ has undergone several iterations since the justiciable decision in this case; however, the utility of Mrs Justice Lang’s remarks reach beyond the relevant policy in Hiri and bears application to the Secretary of State’s…

4th March 2014 By Raza Halim

Delays by Home Office in judicial review cases

An important recent case slipped under my radar last year, mainly because it has not been publicly reported on one of the publicly accessible case law repositories like BAILII. The case is R (on the application of Jasbir Singh) v Secretary of State for the Home Department [2013] EWHC 2873 (Admin) and it addresses the ongoing problems of delays and routine breaches of the Civil Procedure Rules by the Home Office in judicial review claims. It also has important implications on whether to ask for expedited consideration. If the judgment becomes publicly available I will post a proper link [UPDATE: here you go], but for now I’m stuck with quoting…

9th January 2014 By Colin Yeo

Incompetence, neglect and failure to show due diligence

In the week before Christmas, at a time when national procrastination levels are at an annual high, the Home Office has had another warning about the need to get on with things when people are locked up.  Hot on the heels of JS (Sudan) v SSHD [2013] EWCA Civ 1378 (Free Movement report here) the High Court again held detention unlawful in an automatic deportation case where the Home Office failed to make much of an effort to consider whether the detainee should be deported.

18th December 2013 By Greg Ó Ceallaigh

Update on Home Office appeal against spouse minimum income judgment

I’ve had quite a few queries asking for updates on the spouse minimum income case, MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). The challenge to the rules essentially succeeded in the High Court but the Home Office have appealed to the Court of Appeal (blog post: “High Court finds minimum income rules disproportionate and unjustified“). Sanjeev Sharma of JM Wilson Solicitors in Birmingham is the leading solicitor in the case and the Home Office appeal in the Court of Appeal is to be heard between 3 and 5 March 2014. Judgment is likely to come some time after that. [UPDATE: blog post on how the hearing…

28th October 2013 By Colin Yeo

Spirited away

The harsh reality of immigration law enforcement is dramatically exposed by the facts of the case of R (on the application of Shaw & Anor) v Secretary of State for the Home Department [2013] EWHC 42 (Admin). In this case a Jamaican woman and her five year old son who had been resident in the UK since 2002 and since birth in 2005 respectively were detained at the airport without warning when they attended there as requested. They were then bundled onto the first flight to Jamaica.

18th October 2013 By Colin Yeo

Transfer of immigration judicial reviews to Upper Tribunal

It is finally almost upon us: the transfer of judicial review claims from the High Court to the Upper Tribunal will take place on 1 November 2013. In addition, applications for permission lodged after 9 September 2013, including those where permission has been refused on the papers and oral renewal is pending, will also be transferred.

30th August 2013 By Colin Yeo

The Born Again Legacy ?

Following an oral renewal hearing on permission, our colleague Ripon Akther, instructed by Waleed Hassan of Malik and Malik, and their client were granted permission by His Honour Judge Thornton QC in the Legacy case of R (on the application of Prenga) v SSHD [2013] EWHC 1981 (Admin).

23rd July 2013 By Sarah Pinder

Divided Families Day of Action – 9 July 2013

Following the All Party Parliamentary Group on Migration’s report published on 10 June 2013 – covered on Free Movement earlier last month – the ‘new’ family migration rules have been debated twice in Parliament.  First, within a Westminster Hall debate on 19 June 2013 (Hansard & video footage) and more recently, in the House of Lords on 4 July 2013 (Hansard & video footage).  The latter was rather ominous, as we now know, that was the day before Mr Justice Blake’s judgment in MM & Ors v SSHD [2013] EWHC 1900 (Admin) handed down on Friday in relation to the income threshold of £18,600 and covered on Free Movement here. In the…

8th July 2013 By Sarah Pinder

High Court finds minimum income rules disproportionate and unjustified

Almost exactly a year after they were first introduced, Mr Justice Blake sitting in the High Court has in a lengthy, complex and very carefully considered judgment found that the controversial immigration rules requiring a minimum income of at least £18,600 for spouse visa applications are ‘unjustified and disproportionate’ where the sponsor is a refugee or a British citizen. The case is MM & Ors v Secretary of State for the Home Department [2013] EWHC 1900 (Admin). At paragraph 126 Blake J holds as follows: “…to set the figure significantly higher than even the £13,400 gross annual wage effectively denies young people and many thousands of low-wage earners in full…

5th July 2013 By Colin Yeo

Win For Children With Discretionary Leave

The Administrative Court declared that a policy which does not give effect to section 55 of the Borders, Citizenship and Immigration Act 2009 is not lawful.  The excellent Amanda Weston of Tooks Chambers for the Claimants and Joanne Rothwell of No 5 CHambers for the intervener, Coram Children’s Legal Centre (CCLC), argued that where there had been findings that the removal of a child would breach his or her human rights, the SSHD’s failure to consider granting Indefinite Leave to Remain (ILR), when requested to do so, and to, instead, grant Discretionary Leave (DL) as a matter of course is wrong. Holman J in SM & Ors v Secretary of…

18th June 2013 By Ripon Akther

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

Further judicial warnings on urgent injunction applications

Sir John Thomas has given a further warning to solicitors and barristers acting in urgent injunction applications. The case is R (on the application of Rehman) v Secretary of State for the Home Department [2013] EWHC 1351 (Admin). No names are named this time, at least not so far: In the present case the explanation given for everything being done at the last moment is one where those concerned, following counsel’s clear and cogent advice, did try to satisfy the obligations of disclosure. It is deeply regrettable that because of the way in which that firm was organised and the commitments of counsel that the application was made late. We take this…

23rd May 2013 By Free Movement

ACCA not a degree

ACCA not a degree says High Court Zane has suggested on Twitter he is appealing but this looks pretty authoritative, at least in cases that were decided before the Supreme Court decision in Alvi. Note that the claimant in this case, Syed, had to argue that non binding ‘policy guidance’ changed the meaning of the quasi-statutory immigration rules. For cases after July 2012, if there are any, the legal arguments are a little different.

29th April 2013 By Free Movement

High Court rejects May’s high politics

The High Court has endorsed the controversial approach of the Upper Tribunal towards the new immigration rules on human rights. Mr Justice Sales, drawing on concessions made by the Home Office, has found that the correct approach is a two stage one whereby the rules must first be considered and then human rights must be separately considered afterwards. The case is R (on the application of Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin). Home Secretary Theresa May has forcefully argued outside the legal arena that this is the wrong approach and that judges following this two stage approach are somehow frustrating the will of…

18th April 2013 By Colin Yeo

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

More judicial warnings to immigration lawyers

A barrister … must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person (para 302, Code of Conduct of the Bar of England & Wales) Sir John Thomas has delivered two further full blooded warnings to immigration lawyers in the cases of R (on the application of B & Anor) v Secretary Of State For The Home Department & Anor [2012] EWHC 3770 (Admin) and Awuku (No 2) & Ors v Secretary of State for the Home Department [2012] EWHC 3690 (Admin). In the B case both…

11th January 2013 By Free Movement

Application fee may breach human rights

In the case of R (on the application of Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin) (30 November 2012) the High Court has held that charging a fee for a human rights based immigration application will itself breach human rights law where the individual concerned cannot afford the fee. The judgment potentially brings relief to a considerable number of applicants for whom lawful status is tantalisingly possible in a legal sense but in reality impossible because it is simply unaffordable. I say ‘potentially’ because it seems highly likely that the UK Border Agency will attempt to appeal this. The fact that a QC (senior…

10th December 2012 By Colin Yeo

Open season on immigration lawyers

There has been a lot of media coverage of judicial review applications in the last few days, as most readers will no doubt have noticed. The Government has announced plans to (a) reduce the time limit for judicial review from three months, (b) increase the court fees for bringing a judicial review application and (c) curtail the number of ‘appeals’ in judicial review cases. Prime Minister David Cameron himself trailed the proposed reforms in a rather ill-judged and frankly rather tasteless comparison between George Osborne’s faltering response to a downturn in the economic cycle and total existential war against the Third Reich. If Churchill’s response to the invasion of Egypt had…

21st November 2012 By Free Movement

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

Legacy case WINS!

Following on from Hakemi, the High Court has again scrutinised the leave to remain under the “Legacy” cases, and found the SSHD’s adherence to the policy wanting. In a welcome move last Friday Mr Stephen Morris QC, sitting as Deputy High Court Judge, quashed as unlawful the decision to refuse the Claimant leave to remain without having full regard to the provisions in Chapter 53. Mohammed v SSHD [2012] EWHC 3091 (Admin), handed down on Friday 2 November 2012, is the latest decision in which the court found the decision to refuse leave under Paragraph 395 unlawful: “In taking the decision in the 7 February 2011 letter, the Defendant (through…

6th November 2012 By Ripon Akther

More on pre-entry English language challenge

In his judgment in the case of R (On the Application Of Bhavyesh & Ors) v Secretary of State for the Home Department [2012] EWHC 2789 (Admin) Blake J has dismissed the latest attempt to challenge the requirement that foreign spouses learn English before entering the UK. This challenge is described by the judge as a footnote to the original Chapti judgment by Beatson J and concerns a slightly late attempt to add EU law and gender discrimination challenges to the original case. The new judgment was given on 26 July 2012 but has only just made its way on to BAILII. Many thanks to the eagle-eyed and ever-watchful Adam Wagner of the…

18th October 2012 By Free Movement