Court of Appeal overturns President’s decision to allow deportation appeal

BL (Jamaica) v The Secretary of State for the Home Department [2016] EWCA Civ 357 is essentially an unhelpful judgment for convicted criminals arguing against deportation orders on Article 8 grounds. It overturned a McCloskey J and UTJ Perkins decision in the Upper Tribunal that allowed the appeal from a refusal by the First Tier Tribunal, criticising the UT judges for failing to follow the guidance in of SS (Nigeria) v Secretary of State [2014] 1 WLR 908 and MF (Nigeria) v Secretary of State [2014] 1 WLR 544: The UT did not follow the holdings of this Court, in the two authorities that I have referred to at the…

29th April 2016 By Chris McWatters

Evidential Inflexibility: SSHD v Rodriguez

In one of the earliest cases of the year, Secretary of State for the Home Department v Rodriguez [2014] EWCA Civ 2, the Court of Appeal has overturned the decision of the Upper Tribunal under the new president McCloskey J, Rodriguez (Flexibility Policy) [2013] UKUT 00042 (IAC).

29th January 2014 By Sonali Naik

How not to write a determination

From the very first sentence of ML (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 844, one of the many end of term judgments issued last week, one knows there is going to be trouble: Of all the hackneyed phrases in the law, few are more frequently deployed in the field of immigration and asylum claims than the requirement to use what is described as “anxious scrutiny”. It was clearly not bluebell time in Kent as far as Lord Justice Moses was concerned.

25th July 2013 By Colin Yeo

Court of Session rules on linguistic analysis

There has been a significant decision in the Inner House of the Court of Session – the Scottish equivalent to the Court of Appeal – on the Home Office’s use of language analysis for the determination of origin, or ‘LADO’. The decision allowing the two conjoined appeals both by a two to one majority, is available on the Court of Session’s own website at M.AB.N. and K.A.S.Y. v. The Advocate General for Scotland representing the Secretary of State for the Home Department [2013] CSIH 68 (12 July 2013). The Home Office have (it is calculated) until 23rd August to decide whether to appeal to the Supreme Court, but the Inner…

24th July 2013 By Joe Bryce

Khatel overturned

In the case of Secretary of State for the Home Department v Raju & Ors [2013] EWCA Civ 754 the Court of Appeal has overturned the Upper tribunal’s earlier judgment in Khatel and others (s85A; effect of continuing application) [2013] UKUT 44 (IAC). The outcome is a further setback to victims of the stone-hearted Points Based System. However, it arguably only applies in quite narrow circumstances, and the new Evidential Flexibility policy may offer some relief in some circumstances if properly applied by Home Office officials or, if necessary, on appeal.

22nd July 2013 By Colin Yeo

Chen children and employment

Chen children and employment Interesting new case on Chen children and whether income from the lawful employment of their parents can create self sufficiency for the purposes of EU law: Seye (Chen children; employment) [2013] UKUT 178 (IAC). Tribunal suggests that it can, but unlawful employment or s.3C leave employment cannot.

18th April 2013 By Free Movement

Burmese Country Guidance case found legally flawed

The Court of Appeal has in the case of KS (Burma) v Secretary of State for the Home Department [2013] EWCA Civ 67 found that the 2009 Country Guidance case of TL (Sur Place activities-risk) Burma [2009] UKAIT 00017 was legally flawed, effectively overturning it in what had become a proxy appeal. The Court of Appeal has at a stroke re-opened all Burmese asylum claims decided since 2009 that turned on the relevant point of law, which has been a central one in many rejected Burmese cases. It has also highlighted one of the glaring legal problems with what Laws LJ once described as the exotic notion of a factual…

19th February 2013 By Colin Yeo

Country Guidance on Burma unlawful

The Court of Appeal has ruled that Country Guidance on Burma dating back to 2009 was legally flawed. Decisions based on the earlier TK case are therefore flawed. Full post and analysis to follow.

13th February 2013 By Free Movement

Acquiring and losing free movement rights

The Court of Appeal recently gave judgment in a very important decision in European Union deportation cases, Secretary of State for the Home Department v FV (Italy) [2012] EWCA Civ 1199. The case concerns the question of whether or how far a period of imprisonment interferes with rights of residence by EEA nationals living in a Member State other than their own. The UK Border Agency line has been that any period of imprisonment cannot be considered ‘residence’ within the meaning of the Treaties or Directive 2004/38/EC (‘the Citizen’s Directive’). Building on this, UKBA argued that what might be called the ‘enhanced’ rights of residence, permanent residence after five years and very…

2nd October 2012 By Colin Yeo

Significant step forward for young asylum seekers

The Court of Appeal’s judgement in KA (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 1014 makes it absolutely clear that the Secretary of State’s duty toward unaccompanied minors, in particular her duty to trace family members, is not discharged by giving them leave until they reach 17½ and pointing them in the direction of the Red Cross’s offices. The judgment goes much further than this, though, and is required reading for all of us happily involved in representing the young. The facts were straightforward. The eight appellants had arrived from Afghanistan as unaccompanied minors and were at that time aged between 15 and 16….

24th August 2012 By Iain Palmer

Zimbabwe Country Guidance case overturned

In a follow up to my last post on Country Guidance cases generally and the Court of Appeal judgment in SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940, the existing Country Guidance case on Zimbawe, that of EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC), has been overturned by the Court of Appeal. There is no judgment as such because the appeal was allowed by consent: the Secretary of State agreed that the determination was too legally flawed to stand. The grounds of appeal were particularly strong: that the tribunal had wrongly relied on completely anonymous evidence where the identity of the source…

16th July 2012 By Free Movement

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 determination process can morph from an adversarial to an inquisitorial one. The case is HM (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1536 and Richards LJ gives the leading judgment. This was the case where the tribunal decided to plough ahead with a CG case on Iraq despite the appellants being unrepresented, in controversial circumstances, at the hearing. See previous blog coverage here and here. On the need for proper…

19th December 2011 By Free Movement

Iraq Country Guidance Overturned

The controversial Country Guideline case of HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) has been quashed by the Court of Appeal. See the order here. The case of HM should no longer be followed as paragraph 2 of the order provides that: determination of the IAC [Immigration and Asylum Chamber] in this appeal dated 21st September 2010 is quashed with the consequence that it ceases on all issues to be authoritative country guidance The case of HM was an excellent example of the difficulties facing the tribunal in determining country guidance cases. See my original post on it here. The representatives for the appellants withdrew representation at…

2nd December 2011 By Free Movement

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 Sapkota v Secretary of State for the Home Department [2011] EWCA Civ 1320. This ‘segregation’ of decisions, as it is referred to in the judgment, is unlawful because it effectively deprives a person of the right to rely on paragraph 395C of the rules. Such segregation is contrary to the one-stop philosophy of appeals. At this point I pause to wonder why…

30th November 2011 By Free Movement

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 case is a challenge to an Immigration Judge’s refusal to adjourn to admit independent expert evidence. SH had claimed asylum and claimed to be a minor. Lincolnshire social services assessed him to be an adult. The Refugee Council strongly believed him to be a minor and arranged for an independent expert to carry out an age assessment. An adjournment of his fast track hearing was sought on that basis…

21st November 2011 By Ed Mynott

“Still the merry-go-round goes round, and round, and round again”

The Court of Appeal shows its despair at the immigration tribunal in the case of RM (Zimbabwe) v Secretary of State for the Home Department [2011] EWCA Civ 428 (13 April 2011). All three judges lament the fact that they have to remit the case back to the tribunal for yet further consideration, but the comments of Ward LJ are particularly heartfelt: “Regrettably that undermines his decision. I say regrettably because it means that the Secretary of State’s appeal must be allowed and the matter remitted, yet again, for further reconsideration, now in the light of even more country guidance of the up to date state of affairs in Zimbabwe. This…

13th April 2011 By Free Movement

Zambrano case

This entry is part 1 of 9 in the series Zambrano series

[UPDATE 22/3/11: see latest post on Zambrano] In a judgment just out, Zambrano v ONEm Case C-34/0 the European Court of Justice seems to have held that the parents of a child who is a national of a Member State must be granted the right to work and the right of residence in that Member State in order to protect the right of the child to live in Europe. This is an astonishing proposition, if my reading of the case is correct, and represents a massive extension of the principle in the Chen case. The facts were that a Colombian couple claimed asylum in Belgium and were refused but never removed. They…

8th March 2011 By Colin Yeo

Best interests of children: new Supreme Court case

The Supreme Court has today handed down judgment in a major case on the best interests of children generally and the best interests of British Citizen children specifically. ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 finally addresses the weight to be given to the right to a British Citizen child to grow up int he country of his or her nationality. In short: a lot. The best interests of children are a primary consideration and although they will not always determine the outcome of a case, no other factor should be given more weight. Lady Hale gives the leading judgment with which the other…

1st February 2011 By Free Movement

PBS decision not being appealed

The Points Based System test case, Pankina, is not being appealed by UKBA. This has been confirmed by Treasury Solicitors. Interim guidance has apparently been issued to UKBA caseworkers. More information and links if/when I get a chance.

21st July 2010 By Free Movement

Meaning of ‘false representation’: AA Nigeria case

The Court of Appeal has adopted a helpfully limited approach to the meaning of ‘false representation’ in Immigration Rules 320(7A) and 322(1A), restricting it to cases of deliberate falsehood rather than accidental mistake. The case is AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773 and the outcome is completely opposite to the tribunal’s consideration of the same issue in FW (Paragraph 322: untruthful answer) Kenya [2010] UKUT 165 (IAC). It really is remarkable how often the tribunal adopt the most restrictive possible interpretation and how often the higher courts disagree. It rather starts to call into question the judgment of some senior members of…

13th July 2010 By Free Movement

Future behaviour and the Refugee Convention

HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 represents a fundamental change in UK asylum law. The previous settlement, established by the case of Iftikar Ahmed [2000] INLR 1, was a very British and pragmatic one. Essentially, the question of whether future behaviour could make a person a refugee became a simple question of fact: would the person in question in fact, despite the dangers, behave in a way that would expose him or her to risk of persecution? Most of us are not committed political or religious activists and would not be willing to expose ourselves and perhaps our families to…

12th July 2010 By Free Movement

Big Gay Case Allowed

UPDATE: see proper post here with analysis. Sorry for the headline, which is in fact an accurate description of what has happened. Although from the half of the judgment I’ve managed to read so far, their Lordships prefer to refer to ‘practising homosexuals’. A bit like the apocryphal ‘popular beat combo’, I guess. More to follow when I have time, but the judgment is here and the press release here. Bizarrely, I’ve seen a quote from Thersea May welcoming the judgment as a vindication of the coalition government’s stance. I had not heard that they attempted to withdraw their refusals and they did seem to argue the case on the…

7th July 2010 By Free Movement

Points Based System appeal succeeds

The appeal against the Home Office interpretation of the Points Based System has succeeded in the Court of Appeal. Regular readers may remember I went along to and reported on part of the hearing. The case is Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719. The Court does not strike down the entire PBS system but holds that the only binding and effective part of the PBS rules and guidance are those set out in the Immigration Rules themselves. This is because these are the only provisions that have been properly laid before Parliament in accordance with section 3(2) of the Immigration Act 1971. In…

23rd June 2010 By Free Movement

Permanent right of residence

Attorney General Trstenjak has given his opinion in the Lassal case (referred to the ECJ by the Court of Appeal) and has concluded that five years of residence under previous Directives does impart a right of permanent residence under the Citizens Directive (Directive 2004/38/EC). See paragraphs 81 to 93 and this conclusion at paragraph 93: ‘In conclusion, it must be stated that, irrespective of the meaning finally to be given to the second sentence of recital 17 in the preamble to the directive, it is in my opinion clear at least that it does not justify the conclusion that only a period of residence completed in accordance with the national…

25th May 2010 By Free Movement

ZN (Afghanistan) judgment handed down

Supreme Court press release here and judgment here. The reasoning is remarkably short: the Court simply disagrees with Laws LJ on the ordinary and natural meaning of the words ‘has been granted asylum’.

12th May 2010 By Free Movement

Removals to war zones

The Court of Appeal has again revisited the vexed question of removals to war torn countries like Somalia in the major new case of HH (Somalia) v Secretary of State for the Home Department [2010] EWCA Civ 426. The issues at stake have also been the subject of a major decision of the European Court of Justice in Elgafaji and of the Court of Appeal in QD (Iraq). It is noteworthy that the earlier tribunal case of HH (Somalia) is found to have been comprehensively wrong on the law (always in a way that is adverse to the asylum seeker, oddly) and has ‘a strong air of unreality’ about it…

27th April 2010 By Free Movement

Major Article 8 case law

There have been two interesting recent cases on Article 8. The most recent and far and away most important is SS (India) v Secretary of State for the Home Department [2010] EWCA Civ 388, handed down yesterday. The Court of Appeal holds that the now withdrawn seven year children policy, DP5/96, applied to British citizens as much as to foreign nationals. One might have thought it was an obvious point, as it would be surprising if the position of foreign national children was in law better than that of British citizen children. The Court reiterates the point made in AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA…

16th April 2010 By Free Movement

New Supreme Court judgement: exclusion clauses

Judgment is out in JS (Sri Lanka), an appeal to the Supreme Court from KJ (Sri Lanka) in the Court of Appeal. Judgment here, summary here. The Secretary of State’s appeal was dismissed and the Court of Appeal judgment largely upheld, other than in respect of too tightly defining liability for exclusion under Article 1F of the Refugee Convention. Gurung is held to be unhelpful and simplistic in key respects, encouraging over-use of the exclusion clauses. This passage provides some useful pointers: It could not be said of the LTTE – nor even, on the available evidence, of its Intelligence Division – that as an organisation it was (it seems inappropriate in…

17th March 2010 By Free Movement

ECO loses in Supreme Court

The appeal to the Supreme Court against the Court of Appeal judgment in DL (DRC) and ZN (Afghanistan) [2008] EWCA Civ 1420 succeeded yesterday, on the day it was heard. Judgment is to follow. The case turns on the question of whether a recognised refugee who has now been granted British citizenship can benefit from the refugee family reunion rules, with their waiver of the normal maintenance and accommodation rules. Common sense, the natural and ordinary meaning of the words of the rules and the underlying humanitarian principle that motivates the refugee family reunion rules (reuniting families divided by repression) would all suggest ‘yes’. A particular division of the tribunal and…

16th February 2010 By Free Movement

New removals policy

UKBA have changed their removals policy, and not in a nice way. The announcement letter to stakeholders is available here and does not really tell half the story. In essence, the 72 hour notice period for removals is to be waived in a wide range of cases and no-notice removals will become more widespread. This prevents access to a lawyer or the courts, basically, and it means that unlawful (why we don’t just say illegal still escapes me) removals can go ahead unchallenged. Irritatingly, the new policy allegedly becomes effective on 11 January 2010, but in the meantime the old policy has been removed from the UKBA website and only the…

21st December 2009 By Free Movement

3rd party support judgment

Further to my earlier posts on this, the judgment in Mahad and Others [2009] UKSC 16 (as it can now be called) is now available on the Supreme Court website [update: and on BAILII). It makes interesting reading for any immigration lawyer. I will pick out some of my edited highlights. Firstly, there is commentary on how the Immigration Rules should be interpreted. The earlier Lords case of Odelola is, inevitably, approved. Lord Brown, delivering the leading judgment, goes on to say that nevertheless, the meaning of the rules “…is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary…

20th December 2009 By Free Movement

Dependency a question of fact

Many thanks to the encyclopedic John O of NCADC for this information. The Court of Appeal has allowed an appeal against the reasoning of the tribunal in AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048 and has found that in European Community free movement law, dependency is a question of fact. There should be no inquiry into how or why the situation of dependency arose, as long as there is as a matter of fact a relationship of dependency. The judgment is not yet available on BAILII (link to follow here when it does appear) but was reported in The Times, from which I think I’m…

8th December 2009 By Free Movement

3rd party support: correction

[UPDATE: see later post for judgment] My bad, as I believe some young people today sometimes say. Many thanks to the excellent Philip Nathan of 36 Bedford Row, one of the juniors in the case, for a more authoritative explanation of the 3rd party Supreme Court case, which I reproduce from another forum with his permission: The Supreme Court heard the linked cases of AM, VS, SA, KA and AM(2) during the  first three days of this week. After hearing from counsel for the ECOs, Monica Carrs Frisk QC, the Court indicated that they didn’t need to hear replies from the Appellants on the issues of joint sponsorship under the rules and whether…

13th November 2009 By Free Movement

Supreme Court allows 3rd party support

[UPDATE: see later post] News just in, more to follow tomorrow, if there’s anything to say. AM (Somalia) was heard and allowed today. I’m currently at the Hammersmith and Fulham Community Law Centre AGM so not much chance to deal with this properly right now. Word is that the Supreme Court has overturned the Court of Appeal and tribunal and third party support is once again allowed under the immigration rules for spouses and dependent relatives. The written judgment will probably not be available for several weeks or months, unfortunately. In short, this means that support from benevolent uncles is once more permitted as a contribution to maintenance under the…

11th November 2009 By Free Movement

Grounds of appeal in one stop appeals

Do not be fooled by the first judgment in AS (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1076 by Lady Justice Arden. She holds that the appeal should be dismissed, but is out-voted by the rest of the bench, Lord Justice Moore-Bick and Lord Justice Sullivan. The judgment concerns the nature of appeals and the convoluted link between rights of appeal and grounds of appeal created unnecessarily in the 2002 Act at sections 82 and 84. By a majority, the Court holds that as long as there is a right of appeal then any ground of appeal can be argued, no matter what the nature…

26th October 2009 By Free Movement

More on Metock

There has been a spate of big cases in the last few days. I’ll deal first with what is probably the most legally significant, ZH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1060. In ZH the Court of Appeal have confirmed for anyone that did not already know it that Regulation 12(1)(b)(ii) of the 2006 EEA Regulations is unlawful following Metock. Remarkably, a Deputy President of the tribunal, Ms Arfon-Jones, had refused to accept this, but the Home Office conceded at the Court of Appeal that the appellant had been right. However, the Home Office attempted to prop up the tottering decision by arguing that…

16th October 2009 By Free Movement

Post flight spouse

Since 2005, refugees have been granted five years of limited leave, at the end of which they are eligible to apply for settlement, or ILR. Before 2005, they were granted settlement straight away, on the grounds that this policy promoted integration. One of the consequences of this change is that refugees with limited leave are unable to sponsor a new spouse or other family members under the main immigration rules (rules 281, 297, 317 and so forth). There is provision for admission of a pre-existing spouse or child (i.e. a spouse to whom the refugee was married or a child born before the sponsor fled to the UK) but this…

16th September 2009 By Free Movement

Sexual identity

An interesting judgment has been handed down today: NR (Jamaica) v SSHD [2009] EWCA Civ 856. It touches on a thorny issue on which I have to say some immigration judges have not exactly covered themselves with glory. Sadly, the Court of Appeal fails to name the responsible senior immigration judges in this case. One of my very first asylum appeals as an advocate was back in 2001, when I was representing a Kenyan professional who said he was gay. He claimed that he had experienced some very unpleasant difficulties as a consequence of being out-ed. There was absolutely no reason to think that he was lying, either about his…

5th August 2009 By Free Movement

Older dependent relatives

Just a quick post on this to highlight an extremely useful case that’s been handed down today. I’ve been horribly busy so the blog has been suffering a bit, I’m afraid. The case is ZB (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 834. It provides a really useful summary of the domestic and Strasbourg case law relevant to relationships between an older parent and his or her adult children and wider family. In the judgment, the Court of Appeal emphasises the importance of Article 8 relationships, holds that Article 8 must be examined holistically, not compartmentalised into individual one-on-one relationships in a divide-and-conquer type approach,…

30th July 2009 By Free Movement