Appeals law cases

Right of appeal

MA (Somalia) v SSHD [2009] EWCA Civ 4 – no appeal from specifying removal directions

BA (Nigeria) v SSHD [2009] UKSC 7 – revocation of deportation order generates in-country appeal [post]

Abiyat and others (right of appeal) Iran [2011] UKUT 00314 (IAC) – (a) s.83 appeal lies from asylum refusal as long as a grant of leave made at some point historically, (b) there is a right of appeal against a determination on jurisdiction [post]

JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78 – can apply to vary section 3C leave up until decision is made by Home Office but not once a decision is made

Date of consideration of facts

DR (ECO: post decision evidence) Morocco [2005] UKIAT 00038 – post decision facts and evidence can be relevant to the facts at the date of decision

LS (post decision evidence; direction; appealability) Gambia [2005] UKAIT 00085 – s.85(4) requires consideration of facts at date of appeal in in-country appeals

SO (Nigeria) v SSHD [2007] EWCA Civ 76 – IDIs could not apply Immigration Rule 27 to in-country appeals, so turning 18 is relevant at in-country appeal

Odelola v SSHD [2009] UKHL 25 – in absence of transitional arrangements it is the rules at date of decision not date of application that apply, no matter how unfair [post]

SSHD v Pankina [2010] EWCA Civ 719, [2011] All ER 1043 – in Points Based System appeals the date of assessment is the date of application not appeal [post]

Shahzad (s.85A: commencement) Pakistan [2012] UKUT 81 (IAC) – s.85A was only lawfully commenced for appeals lodged on or after 23 May 2011 [post]

Basis and scope of the appeal

Beoku-Betts v SSHD [2008] UKHL 39 – third party rights must be considered [post]

HH (Somalia) v SSHD [2010] EWCA Civ 426 – route of return to safe area to be considered at appeal [post]

SA (section 82(2)(d): interpretation and effect) Pakistan [2007] UKAIT 00083 – the relevant section excludes the effect of s.3C otherwise it makes no sense

EN (Serbia) v SSHD [2009] EWCA Civ 630 – the tribunal could in theory allow an appeal against secondary legislation that was unlawful [post]

AS (Afghanistan) v SSHD [2009] EWCA Civ 1076 – where a s.120 notice is served any ground in s.84 can be relied on at appeal [post]

Lamichhane v SSHD [2012] EWCA Civ 260 – where a s.120 notice is not served only grounds relevant to the decision made can be relied on at appeal [post]

FA (Iraq) v SSHD [2010] EWCA Civ 696 – humanitarian protection can be pleaded in an appeal under s.83

Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304 (IAC) – procedure when granting permission to appeal to Upper Tribunal

Witnesses

MD (Good reasons to consider) Pakistan [2004] UKIAT 00197 – evidence served late cannot be excluded simply for late service

MA (rule 51(4) – not oral evidence) Somalia [2007] UKAIT 00079 – oral evidence cannot be excluded at an appeal

AA (Somalia) v SSHD [2007] EWCA Civ 1040 – Devaseelan approved, a second determination is conceptually distinct to an earlier one, the earlier one is a starting point but can be departed from

Documents and evidence

A* (Pakistan) [2002] UKIAT 00439 – authenticity of documents must be established by party relying on them

RP (proof of forgery) Nigeria [2006] UKAIT 00086 – allegation of forgery must be proven to civil standard using evidence by he who alleges

Ishtiaq v SSHD [2007] EWCA Civ 386 – any evidence can be considered going to a requirement of the rules

OA (alleged forgery; section 108 procedure) Nigeria  [2007] UKIAT 00096 – guidance on exclusion of appellant in s.108 cases

Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443 (IAC) – guidance on arranging and relying on evidence by electronic means [post]

Directions

Ex p. Boafo [2002] EWCA Civ 44 – an allowed determination need not be accompanied by specific directions to be binding on ECO

LS (post decision evidence; direction; appealability) Gambia [2005] UKAIT 00085 – a direction under s.87 is part of the determination and can be appealed

Fairness at hearing

MNM (Surendran guidelines for Adjudicators) Kenya [2000] UKIAT 00005 – Art 6 ECHR does not apply in immigration appeals but common law requires the same standards of fairness in any event

AM (Cameroon) v SSHD [2007] EWCA Civ 131 – behaviour of judge in refusing to countenance electronic evidence examined and criticised

SH (Afghanistan) v SSHD [2011] EWCA Civ 1284 – adjournments must be granted where fairness demands it [post]

Azia (proof of misconduct by judge) [2012] UKUT 00096 (IAC) – a party alleging misconduct by a judge must prove it with evidence

Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC) – procedure for agreeing facts

Representation

FP (Iran) v SSHD [2007] EWCA Civ 13 – a party is not always fixed with the errors of his representative

AK (Iran) v SSHD [2008] EWCA Civ 941; [2009] Imm AR 93 – it had been an error not to adjourn where an appellant’s representative withdrew at the last minute [post]

Termination of appeals

Kanyenkiko v SSHD [2003] EWCA Civ 54 – an action causing statutory abandonment (e.g. s.104) has immediate effect with no further steps necessary

Shirazi v SSHD [2003] EWCA Civ 1562 – leaving the UK for a very short time might not trigger statutory abandonment

R (Chichvarkin) v SSHD [2011] EWCA Civ 91 – Home Office entitled to withdraw immigration decision if for genuine reconsideration even if has effect of terminating appeal unilaterally. Obiter: FTT procedure rule 17(2) probably not ultra vires

CS (Tier 1 home regulator) United States of America [2010] UKUT 163 (IAC) – Home Office cannot withdraw immigration decision and thereby terminate appeal jn Upper Tribunal without permission

Errors for onward appeals

R (Iran) v SSHD [2005] EWCA Civ 982 – reiteration of errors of law heads of challenge

Miftari v SSHD [2005] EWCA Civ 481 – appeals on errors of law are limited in extent to the grounds of appeal

PR (Sri Lanka) v SSHD [2011] EWCA Civ 988 – nature and application of second tier appeals test [post]

JD (Congo) v SSHD [2012] EWCA Civ 327 – nature and application of second tier appeals test [post]

Procedural issues

Mohammed (late application-First-tier Tribunal) Somalia [2013] UKUT 467 (IAC) – FTT must decide question of whether to extend time to appeal to the UT.