Secretary of State criticised by Court of Appeal for “confused” and “messy” legal analysis in deportation case

The Home Office has been criticised by the Court of Appeal for its “confused” and “messy” legal analysis in the matter of Secretary of State for the Home Department v Mosira [2017] EWCA Civ 407. The Secretary of State sought to apply refugee cessation provisions to a non-refugee deportee; rigidly sticking to its increasingly untenable position throughout the proceedings. The individual – a Zimbabwean national – had never in fact been granted refugee status but was bestowed it on a technicality for the purposes of family re-unification. By the time the Secretary of State had realised her errors, it was too late as far as the Court of Appeal was…

26th June 2017 By Rebecca Carr

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

UK unlawfully denies transfer to UK of refugees living for 18 years in Cyprus British Sovereign Base

R (Bashir) v Secretary of State for the Home Department [2017] EWCA Civ 397 The British Sovereign Base Areas (“SBAs”) are small British-run areas on the Cyprus islands that survived the former colony’s independence. The Home Office has taken the position for a number of years that the Refugee Convention does not apply there. The Court of Appeal has unanimously held that in doing so, then-Home Secretary Theresa May acted unlawfully in denying refugees from the SBAs access to the UK. Background facts The claimants had been rescued from a fishing boat in the Mediterranean in 1998. They had been taken to one of the British Sovereign Base Areas in…

6th June 2017 By Thomas Beamont

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

Court of Appeal dismisses challenge to rules on Adult Dependent Relatives

The Court of Appeal has dismissed the challenge brought by campaign group Britcits to the restrictive Immigration Rules on the admission to the UK of parents, grandparents and other adult dependent relatives. The case is BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368. On 9 July 2012, the Immigration Rules on parents, grandparents and other dependent relatives were fundamentally changed, making it virtually impossible for them to be admitted to the UK to join a carer. The main stumbling blocks are these paragraphs from Appendix FM: E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must…

30th May 2017 By Colin Yeo

Country guidance issued between hearing and promulgation will still bind tribunal

Is the First-Tier Tribunal (FTT) bound to take into account a Country Guidance (CG) case that is issued by the Upper Tribunal after the date of the FTT hearing, and after the date the FTT judge signs the determination, but before that determination is promulgated? The short answer, in general, and for the very unfortunate appellant in NA (Libya) v Secretary of State for the Home Department [2017] EWCA Civ 143, is yes. Timeline The Libyan appellant in this case had been refused asylum and appealed against the decision to the tribunal. The appeal was heard by the FTT and allowed. The decision was made on the basis of information…

26th May 2017 By Nick Nason

Court of Appeal: “Particularly where children are concerned, there is no such thing as an average case”

By the tone of this judgment, the Court of Appeal in SSHD v RF (Jamaica) [2017] EWCA Civ 124 appears to be suffering from deportation fatigue, considering ‘yet another case’ [1] involving a foreign national criminal appealing against a decision to deport. It is testament to the high stakes involved, both politically for the Secretary of State, and individually for the foreign national subjects, that these cases are so regularly reaching the highest courts in the land. Exceptional vs Compelling Under Immigration Rule 398, a foreign criminal who has been sentenced to longer than 4 years imprisonment must show ‘exceptional circumstances’ if he or she is to outweigh the public interest in deportation….

25th May 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

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

Home Office unlawfully relies on Albania guidance for five years

LC (Albania)  v Secretary of State for the Home Department [2017] EWCA Civ 340 The Home Office has relied on outdated guidance to determine asylum applications from Albanian nationals, the Court of Appeal has held. The judgment in LC (Albania) will have far-reaching effects for those people denied protection under bad law over a number of years. The judgment also reiterates the approach to be taken when considering the future behaviour of asylum applicants if they return to their home country. Asylum claims based on sexuality Guidance for determining asylum applications on sexuality identity grounds was articulated in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31 (“HJ (Iran)”)….

12th May 2017 By Thomas Beamont

Court of Appeal decides Supreme Court ruling in Hesham Ali is already redundant

Well, that did not take long. The Court of Appeal has in the case of NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 decided that the Supreme Court’s landmark judgment in Hesham Ali [2016] UKSC 60 is confined to cases in which the Immigration Rules are applied and does not apply to cases decided under the statutory human rights considerations introduced by the Immigration Act 2014. As background, in 2012 the Government introduced new Immigration Rules which in effect set a series of strict quasi-statutory tests to be applied in immigration cases in which human rights were pleaded. The intended effect was to reduce the…

18th April 2017 By Colin Yeo

Court of Appeal gives guidance on meaning of ‘unlawful residence’

The case of Akinyemi v SSHD [2017] EWCA Civ 236 concerns the deportation of a man born and raised in the United Kingdom, a country he has never left. It provides valuable guidance on the meaning of the word ‘unlawful’ within the context of deportation provisions introduced by the Immigration Act 2014 and shows just how far the law has moved in this area. Facts Remi Akinyemi is a man for whom one struggles to feel any great sympathy. Over the course of a prolific criminal career he accumulated 20 convictions and was found guilty of, amongst other offences, causing death by dangerous driving, possession of heroin with intent to supply, and…

11th April 2017 By Nick Nason

Court of Appeal reaffirms position on adult dependent relatives

In Butt v SSHD [2017] EWCA Civ 184 the Court of Appeal considers the weight to be given to the relationship between parents and their adult dependent children in the Article 8 balancing exercise. It is notable – and this was the principle reason it managed to reach the Court of Appeal – because of the original decision of the First-Tier Tribunal (FTT) to make separate findings in relation to parents and those adult dependent children: allowing the appeals of the latter, while rejecting the former. The facts The Butt family arrived in the UK on 7 July 2004. They had been granted visit visas for a 6 month stay but did…

30th March 2017 By Nick Nason

Upper Tribunal wrong all along on Kareem and proxy marriages of EU citizens

The Court of Appeal has held that the Upper Tribunal has been wrong all along about proxy marriages and EU law. The case is Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 and it overrules the earlier tribunal cases of Kareem (Proxy Marriages – EU Law) Nigeria [2014] UKUT 24 and TA and Others (Kareem explained) Ghana [2014] UKUT 316. It is always a bad sign when a judgment subsequently has to be “explained”. And so it was here. The Home Office had already conceded that the approach of the Upper Tribunal was wrong and the Court of Appeal had to resort to appointing an Advocate…

23rd March 2017 By Colin Yeo

Scarring evidence in asylum cases

“The Tribunal’s conclusion was… that [in order to fabricate an asylum claim] the appellant had allowed himself to be anaesthetised and then branded with a hot metal rod”  – Elias LJ, KV (Sri Lanka) In this area of law, it is sometimes hard to live with the reality of what human beings can do to one another. It is trite to say that the white heat of a traumatic experience can be lost in the cold sterility of judicial evaluation. But it bears repeating that judges who specialise in immigration and asylum law are human beings, too. They have the capacity to become inured to the sea of trauma and…

15th March 2017 By Nick Nason

Home Office is obliged to serve relevant policy documents otherwise hearing is unfair

Lord Justice Irwin gives the leading judgment in UB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 85, in which the Home Office failed to serve a relevant policy document during an appeal: 16. In my view there was the clearest obligation on the Secretary of State to serve relevant material and ensure it was before the Tribunals at both levels. In AA (Afghanistan) v SSHD [2007] EWCA Civ 12, Keene LJ made the point clear beyond doubt: “27. [It was submitted by the appellant that] the attention of the adjudicator should have been drawn by the Secretary of State’s representative to the policy on…

1st March 2017 By Colin Yeo

Court of Appeal testing new shorts

The Court of Appeal is testing out a new style of “short form” judgment. Given the backlogs at the Court of Appeal at the moment, this seems eminently sensible. Although the particular judgment — yet another appeal by the Secretary of State against a deportation appealbeing allowed — does beg the question of whether permission is granted rather too readily to the Secretary of State despite the supposed strictures of the second appeals test: This is a short form judgment which, with the encouragement of Sir Terence Etherton MR, judges of the Court of Appeal may in future use for appellate decisions in appropriate cases. This appeal raises no issue…

22nd February 2017 By Colin Yeo

Court of Appeal endorses Home Office practice of issuing supplementary decision letters

The Court of Appeal has in effect endorsed the Home Office practice of issuing “supplementary” decision letters during judicial review litigation to try and make good defects in the original refusal. The case is Caroopen & Myrie v The Secretary of State for the Home Department [2016] EWCA Civ 1307. Underhill LJ concludes as follows: In summary, I would reject the submission that there is anything inherently wrong in the deployment by the Secretary of State in judicial review proceedings of supplementary letters post-dating the challenge. They may be effective in any one of three ways identified above. Ms Anderson sensibly acknowledged in her oral submissions that their use was…

18th January 2017 By Colin Yeo

Court of Appeal gives go-ahead for Dublin returns to Italy

If the case of Tarakhel was considered another body blow to the Dublin system, the recent Court of Appeal case of NA (Sudan) v The Secretary of State for the Home Department [2016] EWCA Civ 1060 has picked up the Dublin system up off the ropes for another round. The Court decided that Tarakhel did not extend to other vulnerable persons and was only ever intended to apply to families with children. And the two appellants in NA (Sudan) were extremely vulnerable, suffering a range of health problems including severe depressive disorder, and the risk of suicide, with one appellant suffering a history of rape and sexual abuse in Italy….

3rd January 2017 By Chris Desira

Upper Tribunal approach to proxy marriages conceded to be wrong by Home Office

In an interesting development on the validity of proxy marriages, the Home Office has taken the view in a Court of Appeal case that the Upper Tribunal’s approach in Kareem [2014] UKUT 24 is wrong in law. The Court of Appeal has declined to simply overrule Kareem on this basis, though, and is asking the Attorney General to appoint an advocate to the court. Those following this blog for some time will be aware that I have previously expressed some scepticism about the correctness of Kareem and the cases which follow it. The general rule of private international law is that a marriage which was lawful in the country in which it occurred…

21st December 2016 By Colin Yeo

Changes to appeals to Court of Appeal from 3 October 2016

Access to the Court of Appeal is being restricted with effect from 3 October 2016 by means of important changes to the Civil Procedure Rules (CPR). The headline changes are: Removal of the automatic right to an oral hearing when renewing an unsuccessful application for permission to appeal. Renewed applications will be determined on the papers, but a judge can exceptionally direct an oral hearing. The test for permission on second appeals is re-worded to require “a real prospect of success” (in addition to an important point of principle or practice). New seven day time limit for appeals from refusals of permission to apply for judicial review by the Upper Tribunal….

3rd October 2016 By Colin Yeo

Dura Lex, Sed Lex: Refugee children must remain in Calais says Court of Appeal

The UK government, and Europe, has spared no expense to ensure that wherever the people trying to get to Europe end up, it isn’t here. But the courts are seemingly doing their best to help. The Court of Appeal’s judgment in Secretary of State for the Home Department v ZAT & Ors (Syria) [2016] EWCA Civ 810 keeps unaccompanied children in the Jungle. There are more than 10 million child refugees in the world today. Millions of them are unaccompanied. Families make what are to most people unimaginable choices about which child will be sent away from their families to seek safety alone. But the UK government has argued successfully…

7th September 2016 By Jared Ficklin

No in-country right of appeal for two men accused of having their English tests taken by a proxy

Evidence had come to light that ETS tests in the case of these two men may have been taken by a proxy. Therefore their leave to remain in the UK was curtailed. The Court of Appeal agreed with the Home Office, quashing the decisions of the Upper Tribunal, which alongside the First-Tier Tribunal had accepted the two men’s arguments on the facts and law on appeal from the decision. The main point of law concerns section 92(4)(a) of the 2002 Act, and whether an appeal to a curtailment of leave which contains a human rights claim provides an in-country right of appeal in accordance with that section of the Act….

18th August 2016 By Paul Erdunast

Challenge to Detained Asylum Casework process fails

The Court of Appeal has refused permission to appeal the decision by Mr Justice Cranston in the Detained Asylum Casework challenge test case. The latest judgment is R (On the Application Of TH (Bangladesh) & Ors) v Secretary of State for the Home Department [2016] EWCA Civ 815. You can find the newly released policy equality statement on the DAC process here. In short, this means that the general process challenge has failed, but it is still potentially possible for individuals to show unfairness in their particular case.

10th August 2016 By Colin Yeo

New Home Office API on Gay Asylum Claims: Not Fit For Purpose

The new Asylum Policy Instruction on Sexual Orientation Issues in the Asylum Claim, published last Wednesday, marks an unwelcome retrograde step for the Home Office, which still continues to apply the ‘voluntary discretion test’ to gay asylum claims, even though this has been held to be unlawful, as a matter of EU law, since July 2015. Having made positive strides with respect to the quality of decision-making since the public outcry over the sexually explicit methods of questioning gay asylum seekers in February 2014, in August 2016 this API will lead to sub-standard and unlawful decisions by the Home Office, and arguably Courts and Tribunals who rely on the API,…

8th August 2016 By S Chelvan

Section 3C does not apply to EU law residence applications

The question before us is whether a person who at one stage was the spouse of an EEA citizen with a right of abode in the United Kingdom but no longer has that status and right is to be treated as having leave either under the Immigration Act 1971 or otherwise after his application for permanent residence as the former spouse of an EEA citizen has been rejected. The answer is a firm “no”. Under the Immigration Act 1971 sections 3C and 4, someone applying for variation of leave under that Act — that is under UK immigration law, rather than the 2006 Immigration (EEA) Regulations — has their leave extended…

5th August 2016 By Paul Erdunast

Certification of Albanian asylum claims as clearly unfounded overturned by Court of Appeal

Certification of Albanian asylum claims as clearly unfounded were in this case overturned by the Court of Appeal. Much turns on the individual circumstances of the case. An important point of law is on the threshold for certifying an asylum claim as “totally without merit” is as follows: 75. The correct test, however, is, as Ms Anderson observed, not whether there is any prospect of “anyone” believing an account to be true, but whether the First-tier Tribunal, properly directing itself as to the law and as to the facts on the evidence before it, would so conclude. The tribunal has to assess the evidence of a claimant in the round and…

4th August 2016 By Paul Erdunast

Refusal to investigate trafficking claim did not breach ECHR

The Competent Authority, the Home Office body which deals with human trafficking claims, did not, in refusing to investigate a claim, breach the procedural obligations of Article 4 ECHR, the Court of Appeal ruled. The Respondent claimed to have been trafficked into Russia from Vietnam where he worked in slave labour conditions, and then to the UK. The Competent Authority decided, after receiving relevant evidence, that there was no credible suspicion that he was trafficked. The decision of the High Court was that the decision was flawed because it did not follow the procedure laid out in the UN Anti-Trafficking Convention, which the judge took as “persuasive evidence that there…

4th August 2016 By Paul Erdunast

Seven year rule for children must be satisfied at date of application

This family life case highlights the important point that the ‘7-year rule‘ – that young people under 18 must have lived in the UK for at least 7 years – must be satisfied at the date of application. It is not sufficient that the rule, in Immigration Rules paragraph 276ADE (iv) has been satisfied at the date of the Secretary of State’s decision. This was unfortunate for the family in Koori who fell foul of the rule, despite serious confusion running through the Upper Tribunal case: 21. There appears to have been considerable confusion about the way in which this ground was dealt with in the UT. First, for some reason neither the…

3rd August 2016 By Paul Erdunast

Court of Appeal gives (more) guidance on deportation cases

The Court of Appeal has given further guidance on the convoluted and badly drafted statutory presumptions on human rights in UK law. Trying to make sense of interlocking provisions in the UK Borders Act 2007, the Immigration Rules as amended (and amended and amended) and the Immigration Act 2014, the court concludes that the latter is so badly drafted that it must considered to be a drafting error. Specifically, the court finds that as drafted the Act gives greater protection to more serious criminals than less serious ones, which must be a mistake. The key provision is subsection (3) of section 117C of the 2014 Act. The whole section reads…

3rd August 2016 By Colin Yeo

Serial criminal to be deported despite impact on his children

If you attempt to murder someone with a gun, and after release from prison for attempted murder (a sentence of over four years), are caught again with a loaded gun and imprisoned, do not be surprised that only the most exceptional circumstances will save you from deportation. This was all in the context of running a drug-dealing ‘business’. The main point in the Home Office appeal in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 concerns the Article 8 argument which was rejected. Lady Justice Rafferty stated that the effect on the children of having only one parent subsequently remaining in the UK was not enough to pass…

15th July 2016 By Paul Erdunast

Article 8 assessed at date of decision in entry clearance cases

Article 8 is to be assessed as at the date of decision in entry clearance cases, the Court of Appeal has found: Accordingly, I would reject the date of decision argument. The decision under appeal was, as regards article 8 as much as the policy issue, the ECO’s decision of 12 March 2012; and the relevant circumstances were thus, in accordance with section 85A (2), those appertaining at the date of that decision. Source: Gurung v The Entry Clearance Officer, New Delhi [2016] EWCA Civ 358 (07 April 2016) This post has been corrected. It originally suggested that Article 8 was to be assessed at the date of appeal, which is…

13th July 2016 By Free Movement

Court of Appeal says when it is “reasonable” to remove a child resident for 7 years or more

The issue of when a child should be expected to relocate to another country because of UK immigration laws is an emotive one. In 2012 a new Immigration Rule was introduced stating that a foreign child would be permitted to remain if the child had lived in the UK for at least 7 years AND it was not reasonable to expect the child to relocate. This was paragraph 276ADE(vi) of the Immigration Rules. It was implied that the parents would also be permitted to stay to look after the child. This rule was discussed in detail earlier on Free Movement: Can children and parents apply to remain after seven years residence?

7th July 2016 By Colin Yeo

Home Office unlawfully imposes curfew on migrant

Gedi, R (On the Application Of) v Secretary of State for Home Department [2016] EWCA Civ 409 (17 May 2016) is a case where the Home Office took it into their own hands to impose curfew restrictions over and above bail conditions those imposed by the First Tier Tribunal, as well as those they are entitled to impose as afforded to the Home Office by statute. The Court of Appeal were clear they had no such power to do so.

6th June 2016 By Chris McWatters

Court of Appeal finds £22.15 annual shortfall does not qualify as de minimis

The extension application of a Tier 2 skilled worker whose annual salary was found to be £22.15 per year short of the specified requirement was refused. The First-tier and Upper Tribunal allowed her appeal on the basis that the shortfall was so small it should be disregarded under the de minimis principle. The Court of Appeal overturns these decisions on the basis that the rule is a “bright line” one that is either satisfied or not; it was not. The First-tier Tribunal judge may well have resorted to the de minimis principle, as the Upper Tribunal judge said, because of his view that the respondent’s application (though falling marginally short of…

27th May 2016 By Colin Yeo

Court of Appeal says children can be required to be x-rayed to challenge age assessment in court

Interesting and controversial case on X-rays and age assessment from the Court of Appeal: London Borough of Croydon v Y [2016] EWCA Civ 398 (26 April 2016). Essentially, the Court holds that the claimant would have to agree to an age assessment by means of a dental X-ray in order to continue with his claim against the local authority. The claimant was arguing that he had been incorrectly age assessed as an adult when in fact he was a child. This is not an order that the child must be X-rayed. It does though require him to agree to it as the price of continuing with his attempt to prove…

18th May 2016 By Colin Yeo

Removal of married lesbians to India not a flagrant violation of family life

The Court of Appeal has held that the removal of married lesbians to India would not be a flagrant violation of their family life. Paragraph 7 sums up the issues: The FTT found that the appellants would continue to live together as a couple in India and could not be prevented from doing so there, even if they could not have as open a lifestyle as they did in the UK or enjoy a status having legal recognition, such as a civil partnership, under Indian law. Whilst the FTT accepted that the appellants shared family life with each other, it decided that their removal would not have such an effect…

18th May 2016 By Colin Yeo

Costs in public law cases: what counts as a win?

The issue of costs in immigration cases continues to vex the courts. It is supposed to be unusual for the higher courts to have to deal with costs issues but in recent years we have seen some very low quality and controversial costs decisions at first instance in the Administrative Court and the Upper Tribunal. The Court of Appeal has had to intervene repeatedly. Typically the overturned first instance decisions have been to the detriment of publicly funded claimant lawyers assisting clients with cases against the Government. A particular issue which has recurred in the Upper Tribunal is what decision on costs should be made where a decision is withdrawn…

17th May 2016 By Colin Yeo

Court of Appeal unhappy with Home Office position and submissions in student case

“Technical”, “deeply unattractive”, “disingenuous”, “singularly lacks merit”, “ridiculous”, “inappropriate”, “extraordinary”. All words used by Elias or Vos LLJ to describe the arguments advanced by the Home Office in the course of their judgments in the remarkable case of R (On the Application Of Ufot) v Secretary of State for the Home Department [2016] EWCA Civ 298. Vos LJ rounds off his criticism of the arguments thus: The background was striking. In short, a Nigerian student said he had made an application to extend his leave to study a BSc in Business Management at BPP University. With the application still pending, or so he thought, he began his studies. The Home…

16th May 2016 By Colin Yeo

Evidential flexibility policy is additional to the provisions of the Immigration Rules

In yet another case highlighting the absurdly hostile, bureaucratic and inflexible nature of the UK’s Points Based System the Court of Appeal has held that a Tier 1 Entrepreneur might benefit from a policy on evidential flexibility that was “much broader” than the rules themselves. The case is SH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426. The refusal arose because the claimant had to make his immigration application before his graduation certificate was issued; his leave was going to run out so an application had to be made. He needed the degree certificate to show that he met the English language requirement of the rules….

11th May 2016 By Colin Yeo