Category: IAU

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A JR by an asylum seeker whose application for asylum was refused in 2013 by the SSHD and whose appeals from that refusal to the FtT and the UT were rejected. She made a further application for asylum on 13 May 2014.

The C succeeded in showing the Defendant failed to follow one of her own policies re medical reports from the Helen Bamber and Medical Foundations, and to suspend a decision pending the report.

It was held that detention was lawful pursuant to a Rule 35 report: the Defendant was entitled not to regard the report as independent evidence of torture, or of a serious mental health condition. However, detention was unlawful as result of the failure to suspend the decision to remove. A suspended decision meant that removal was unlikely to occur soon.

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The C renewed his permission application, challenging the D’s refusal of his naturalisation application. As the D took into account the C’s asylum interview and other submissions made, it was not unreasonable of her not to offer a further interview.  The court also found it to be clear that the D was entitled to find that the C’s admitted support for the LTTE and their cause was sufficient to “cast serious doubt” on his good character.  As the claimant and his family all have ILR in the UK, there is nothing in the D’s decision that is detrimental to the interests of his children.  Permission refused.

Sanneh & Ors v The Secretary of State for Work and Pensions [2015] EWCA Civ 49

The CA considered whether and at what stage and to what extent Zambrano carers were entitled to claim social assistance. The Court held that entitlements to assistance arose in principle as soon as an individual becomes the carer of a relevant child; and the status of being a Zambrano carer was not contingent upon the carer in question being destitute or subject to removal; but that the level of support to which they were entitled was limited to providing sufficient support to meet the carer’s basic needs, which needs included the need to be able to care for the EU citizen child, and so not to the same level of social assistance as EU citizens lawfully residing in the EU. The UK’s obligation can be met by ‘basic support’ under section 17 Children Act 1989.

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1. Dublin cases require the R to undertake a thorough and individuated examination of the situation and circumstances of the person concerned.

2. The ECtHR in Tarakhel v Switzerland [App.no. 29217/12 (GC)] was not purporting to promulgate a general rule or principle that a sending state is required to secure specific assurances from the destination state as to accommodation or the like.

3. In light of the considerable body of relevant background country information considered by the R, it was open to her to find that there was neither systemic deficiency nor serious operational failure in the conditions prevailing in Italy for the reception, processing and treatment of asylum seekers. [Headnote]

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This case concerns the conflicting decisions of the CA: Edgehill v SSHD [2014] EWCA Civ 402 and Haleemudeen v SSHD [2014] EWCA Civ 558 and whether the old or new rules should apply to Article 8 applications made prior to 9 July 2012 and/or following further changes made and in force from 6 September 2012. Held that the SSHD is entitled to apply Appendix FM to decisions following the statement of changes in force from 6 September 2012 regardless of when that decision was made.  Decisions made between 9 July and 2012 and 5 September 2012 will fall to be decided under the old rules, as per Edgehill.

A second issue raised considers the two-stage Article 8 approach (§3). In §§60-67 there is an outline of the approach in Izuazu and Nagre, cited with approval and an ‘explanation’ of some passages from Ganesabalen v SSHD [2014] EWHC 2712 (Admin), including the need for there to always be a second stage consideration.

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A JR of the refusal of an application for ILR.  The challenge was against the requirement for the C to produce forms P60 and P45 (or a suitable letter from HMRC) so as to evidence the asserted facts of his employment in the UK. It was argued that these were not required as pre Alvi.

Decided that this does not raise an issue comparable with Alvi. That case concerned requirements which a migrant had to satisfy as a condition of being given leave to enter or remain in the UK. The SSHD had effectively promulgated a substantive rule by introducing a list of skilled occupations. It was that list which governed the question whether the job was sufficiently highly skilled to attract the relevant number of points. Such a rule should have been put before Parliament.

Here, the substantive rule found in paragraph 134, concerned satisfaction of (among other things) the requirements of §128(iv). In R(Global Vision College Ltd v Secretary of State for the Home Department [2014] EWCA Civ 659 the CA made the point that the decision in Alvi does not require officials to take what they are told at face value. The SSHD was perfectly entitled to ask for evidence of the C’s work history and, when that evidence was not forthcoming, not to be satisfied about his compliance, with the inevitable result that his application had to be refused because of the terms of  §135.

Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 00059 (IAC)

Guidance from the President of the UT, sitting as a JFtT on the new power of the Tribunal to award wasted costs under Rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the “2014 Rules”).  The Rules apply to appeals coming into existence subsequent to commencement on 20 October 2014.  There is a long headnote and a review of case law which provides guidance on the threshold for negligent, improper or unreasonable acts or omissions (§§13-27).  Costs are discretionary, every case will be fact sensitive and the award of costs will be the exception rather than the rule.

The 2014 Rules did not apply to A’s case however, the Tribunal found that had they done costs would have been awarded.  The R failed to provide evidence, which she had been required to do, and then withdrew the appeal on the day of the substantive hearing (see §45).

Read the new 2014 Procedure Rules here.

R (on the application of Han) v The Secretary of State for the Home Department [2014] EWHC 4606 (Admin)

The C’s immigration advisors had sent her application for an extension of her Tier 4 General Migrant visa one day late. This meant that the C had to prove she had sufficient funds to cover her tuitions fees for the master’s degree as well as nine months rent instead of £1,600 for two months, had the application been submitted in time. As she could not demonstrate sufficient funds, her application was refused and she was not granted a right of appeal. Cranston J recognised that the C had been badly let down by her immigration advisors and that for an outsider the case was very much an application of technical rules. But for the reasons given by the Court of Appeal in,Miah v Secretary of State for the Home Department [2012] EWCA Civ 261 the application had to be dismissed as the technical rules are absolutely vital to the proper administration of immigration control.

R (on the application of Kallal Taludker) v The Secretary of State for the Home Department IJR [2015] UKUT 57 (IAC)

The A challenged the refusal of leave to remain as a Tier 4 student, as he claimed not to have received the R’s curtailment notice of Tier 4 leave.  This challenge had already been litigated through to an oral hearing in the Administrative Court and found to be unarguable.  As the A adduced no new evidence and provided no fresh material, the court held that the doctrine of res judicata and the principles in Opoku applied.  The A’s present claim of lack of effective service of the curtailment notice was an abuse of process. Judicial Review dismissed.

R (on the application of Ali) v The Secretary of State for the Home Department [2015] EWHC 7 (Admin)

After eventually succeeding in an asylum claim, the Somalian C was granted leave to remain for five years. The C’s husband and her six children were British Citizens and she challenged her grant of limited leave, as it would be in the best interests of her children for her to be granted indefinite leave in line with their status.  In the absence of the C being able to identify any disadvantage to her children arising out of the grant to her of only limited leave, it was held that the R had discharged her duty under Section 55 of the 2009 Act by granting the C limited leave to remain pursuant to the staged settlement policy. Judicial Review refused.

R (on the application of Geller) v The Secretary of State for the Home Department  [2015] EWCA Civ 45

The two US Citizen As challenged the R’s decision to deny them entry to the UK.  The R argued that their exclusion was conducive to the public good. The As’ planned visit followed the murder of Drummer Lee Rigby and their potentially Islamophobic views might undermine community cohesion and provoke serious violence. The court held that it was entitled to attach special weight to the assessment of the R as to whether a restriction on freedom of expression was necessary in order to prevent public disorder. Permission to apply for JR refused.