Category: IAU

Read the full judgment here.

An application to JR a decision of Isleworth Crown Court to refuse to state a case. However, the High Court treated it as a challenge to the J’s decision to refuse to exercise his discretion to extend time to appeal.

The C, a Somali national, entered a guilty plea at Uxbridge Magistrates’ Court in 2006 to an offence contrary to section 2(1) of the Asylum and Immigration (Treatment of Claimants) Act 2004 of failing to produce an “immigration document” at an asylum interview. The C was subsequently granted refugee status in 2007. His application for British citizenship was refused on the basis that he had failed to disclose his criminal conviction. He appealed to Isleworth Crown Court on the basis that he had not known at the time that a defence under section 2(4)(c) of the Act may have been available to him. The argument was that the C’s plea had been equivocal and that he would have a very good chance of establishing a statutory defence.

The Crown argued that an application should have been made to the Criminal Cases Review Commission which has the power under sections 11 and 13 of the Criminal Appeal Act 1995 to refer a case to the Crown Court including in circumstances where a person had entered a guilty plea at the Magistrates’ Court.

The Court held that the J had been entitled to conclude that the application for permission to extend time for appeal was too late because it would be impractical to investigate the position regarding legal advice properly.

Read the full judgment here.

This case has attracted significant media interest as the C is a LGBT rights campaigner who is challenging her own removal to Nigeria by way of JR. Her challenge against the decision to remove was made by way of JR on the basis of human rights (Articles 2, 3 and 8) and the refusal to accept new evidence of risk as a fresh claim.  The FtT dismissed the C’s appeal, making significant adverse findings on her credibility. The C sought to appeal to the UT but withdrew her appeal to the UT claiming she wanted to leave the UK.

At the JR hearing, the SSHD contended the C had been playing the system for 10 years by her repeated and different applications: “she has made false asylum claims, pursued an appeal claiming she was in a subsisting relationship with an EEA national when she was not. She overstayed, worked illegally, studied illegally”. Considering the expert evidence the following conclusions were drawn: “having reviewed the medical evidence available to him [Dr McKay] and notwithstanding the apparent suicide attempt, “I would consider the Claimant’s psychiatric presentation as simulation.” Dr McKay notes that even in the incomplete material that he has seen, two other consultant psychiatrics had doubted the Claimant’s symptoms”.

Additional evidence was presented to the Administrative Court, which included DVD’s of the C engaging in lesbian activity.

John Bowers QC sitting as a Deputy Judge of the High Court found:

i. The findings of the FtT are binding as to matters existing at the time of the finding;
ii. Although the C produced evidence of her lesbian sexual orientation, she did have heterosexual relationships, marriages to men and two children. It was contended by the SSHD that “a particular social group” (“PSG”) is defined as a characteristic incapable of being changed so changing one’s sexual orientation did not fall within the Convention definition of a PSG. The Court rejected this finding that ‘changes’ in sexuality did not preclude the C from belonging to a PSG for the purposes of the Convention. The extent of such homosexual experience will weigh, however, in the determination as to whether a person is genuinely a member of a PSG;
iii. The Court accepted the contention by the SSHD that C has adjusted her conduct so as to adopt other customs, dress and mores of a PSG;
iv. There was nothing irrational, perverse, or irrational in the decision to remove the C to Nigeria;
v. If she returned to Nigeria, the C will not have lesbian relations nor be perceived as a lesbian and her willingness to return to Nigeria when she was said to be a lesbian demonstrates she does not possess a well-founded fear;
vi. Her fears in relation to her campaigning work were not properly pleaded in the grounds but there is insufficient evidence to suggest she would suffer persecution on this ground.
vii. The Article 8 claim was not made out; and
viii. Although the fresh claim ground was not been properly pleaded, it was not been made out in any event, as the substance of the material has already been considered by the SSHD. When taken together with the other material, the material does not create a realistic prospect of success.

Read the full case here.

This is a troubling case in which E Laing J considered the lawfulness of the detention pending deportation, for over two years, of a Chinese woman whose mental and physical health deteriorated very seriously.

The difficulty was that the C had a history of committing repeated but not very serious offences (for which she had served a total of 10 months) and of absconding many times. Her asylum claimed had been dismissed as entirely false and once in detention she co-operated with obtaining a travel document only belatedly. Her application for revocation of the deportation order was refused.

The J ultimately found that the SSHD had breached public law principles by failing when served with medical reports by the C’s representative to take reasonable steps to inform herself to make a proper judgment about whether her health conditions could be satisfactorily managed in detention. The SSHD’s remarkable submission was that the reports were “medical advocacy” and the SSHD was not obliged to give them any weight. This was rejected as were other extreme submissions.

The C was awarded nominal damages for a period in which the SSHD had failed in her public law duties but the J considered that had the SSHD complied with her duty of inquiry, she could and would lawfully have continued to detain the C. However from the date after the C had fallen down stairs and broken her back she was awarded damages to reflect a breach of the Hardial Singh principle that detention may continue only for such period is reasonable in all the circumstances.

Read the full judgment here.

The C arrived in the UK in 2009 and escaped from the family who trafficked her about six months later. She claimed asylum and was referred to the National Referral Mechanism about five years later and eventually accepted to be a victim of trafficking. However the D refused DL on the basis that although she was trafficked those circumstances no longer existed.

There is a useful summary of the provisions relating to trafficking at §§10-16. The standard of review required for Article 4 ECHR is one of anxious scrutiny: §§30-35.

There were failures in the police investigation and the analysis of the personal circumstances of C.

Even if a C does not succeed in a grant of leave on account of having been trafficked, the personal circumstances will be relevant to Article 8 (§59):

“…the personal circumstances relevant to the trafficking claim will also be relevant to the Article 8 claim, and the fact that they are not sufficient to lead to a grant of DL on the basis of trafficking should not lead to them being ignored or given less weight in the Article 8 claim. The consideration, rules and thresholds are different.”

The decision not to grant DL on trafficking grounds was quashed; the conclusive grounds decision that the C was trafficked remains; the D is to make a fresh decision on whether to grant DL. A declaration that the C’s rights under Article 4 ECHR have been breached was granted.

Read the full judgment here.

C the Academy, is a Church of England state funded mainstream secondary school in Islington, North London. It wished to enter into an exchange arrangement by which up to 10 Chinese students aged 16 to 18 would be admitted into its sixth form to spend up to a year studying an International Baccalaureate Diploma course. To achieve this aim it would be necessary for the Academy to become a “Tier 4 sponsor” under the Immigration Rules, and in that capacity to issue the students with valid Confirmations of Acceptance for Studies (CAS). The Academy therefore applied on 4 July 2013 to the defendant Secretary of State, via the UK Border Agency (UKBA), for a Tier 4 sponsor licence. State schools, including those with sixth forms, cannot admit students who come to the UK under Tier 4.

The challenge brought was an Alvi point, this was dismissed as the Guidance, wholly concerned with the position of the sponsor. It is an exclusionary rule (in the ordinary sense of the word), concerned with the entitlement of a particular category of institution to obtain a sponsor’s licence, and to admit students from outside the EEA. It reflects a policy as to who may be admitted to a state-funded school, rather than a policy as to who may be admitted to the UK to study. Individuals such as the Chinese exchange students envisaged in this case are not thereby prevented from entering the country. They are required to obtain a valid CAS. That can only be issued by a licensed sponsor. But a fee-paying institution can be a sponsor (and whether it actually charges the student is a matter between them). However, a challenge brought on failure to address the application of her policy to the particular circumstances of the Academy’s case with flexibility, fairness and good sense (pursuant to Pankina) that the law requires of her was upheld. The SSHD applied her policy too rigidly.

Read the judgment here.

This was a JR of the SSHD’s decision to refuse the Cs leave to remain as Tier 1 (Entrepreneur) Migrants under the Points-Based System.

In respect of ground (3) the Court reiterated that the discretion in paragraph 245AA of the Immigration Rules only arises in relation to formal, not substantive defects (Akhter and another (paragraph 245AA: wrong format) [2014] UKUT 297 (IAC)).

With regard to grounds (1) and (2) the Court held that the power in section 3 of the Immigration Act 1971 to impose conditions governing immigration control is very wide, but that an Immigration Rule would be condemned for being unreasonable if the conditions were outside the rational ambit of the purpose of the power, partial in their operation or Wednesbury unreasonable (see Kruse v Johnson [1898] 2 QB 91, Manshoora Begum [1986] Imm AR 385, O’Connor v Chief Adjudication Officer [1999] 1 FLR 1200 and MM (Lebanon) [2014] EWCA Civ 985).

The Court went on to conclude that the types of evidence specified in paragraph 41-SD(c)(iii) do not go beyond what the SSHD may legitimately require to show that a business is genuine and that the applicant is genuinely linked to it.

However, the Court accepted the Claimants’ argument that the absolute requirement in paragraph 41-SD(c)(iv) that the client business must have a landline telephone which must appear in the contract in order for it to count as proof of genuine trading, was a rule that was partial between those who contract with a business which has a landline, and those who contract with a business which has only a mobile telephone or where the landline details can be supplied but are not included in the contract itself. There was no rational justification for this distinction.

But to have the decision quashed the Claimants had needed to succeed on both grounds (1) and (2): application dismissed.

Read the full judgment here.

The C’s application for naturalisation was refused as the SSHD was not satisfied he is of good character, even though he had not committed criminal acts but had played an active role within the LTTE. The C’s good character in the UK is relevant and ‘good character redemption’ cannot be ruled out for the future but, at present, C’s previous conduct in Sri Lanka outweighed more recent events.  It was also claimed that the refusal failed to consider the best interests of the C’s child, who is a British Citizen.  It was held that the child has all the benefits and advantages of British citizenship and the C holding a different nationality does not detract from this.

Read the full case here and the press summary here.

This case concerned a challenge the benefit cap that was imposed on non-working households.

The Benefit Cap (Housing Benefit) Regulations 2012 limited the amount that a non-working single person could claim in benefits to £350 per week and £500 for those with dependents. The question was whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits that could be received. The legislation was challenged under the Human Rights Act 1998. It was argued that the cap constituted indirect discrimination between men and women, contrary to Article 14 of the European Convention on Human Rights (ECHR) read with Article 1 of Protocol No. 1 ECHR (right to property). The Supreme Court dismissed the appeal finding that the benefit cap did not constitute unjustified discrimination against single mothers. Lady Hale and Lord Kerr dissenting.

There was a detailed analysis of whether the UN Convention on the Rights of the Child is incorporated into domestic law.

Follow the link to read the case.

The applicant, who was HIV positive, alleged a violation of Articles 3, 8 and 13 of the ECHR on account of the risk that she would not have access to treatment if she and her children were expelled to Nigeria. The Grand Chamber, by a majority, agreed to strike out the case because the parties had reached a friendly settlement with the A and her children granted ILR on humanitarian grounds.

The case is notable however for the passionate dissenting judgment of Judge Pinto de Albuquerque who regretted that the Court had not taken the opportunity to revisit N. v. the United Kingdom. According to the dissenting judge, N v UK “distorts the reasoning behind Article 3 of the Convention, by watering down the legal force of that provision” and “legal reasoning is abandoned in favour of politics.” He concludes:

Too much time has elapsed since N.’s unnecessary premature death and the Court has not yet remedied the wrong done. I wonder how many N.s have been sent to death all over Europe during this period of time and how many more will have to endure the same fate until the “conscience of Europe” wakes up to this brutal reality and decides to change course…Refugees, migrants and foreign nationals are the first to be singled out in a dehumanised and selfish society. Their situation is even worse when they are seriously ill. They become pariahs whom Governments want to get rid of as quickly as possible. It is a sad coincidence that in the present case the Grand Chamber decided, on the World Day of the Sick, to abandon these women and men to a certain, early and painful death alone and far away. I cannot desert those sons of a lesser God who, on their forced path to death, have no one to plead for them.

Please follow this link to read the full judgment.

Preliminary issues trial in respect of a claim for damages against the D, Secretary of State, for alleged breaches in consideration of an asylum claim. The claim was that the D had breached her duties in certifying the claim as clearly unfounded and returning the C to their country of origin where they suffered further persecution which was subsequently accepted by the FTT. The court considered three issues and taking the claim at its highest found against the C, in that:

The Qualification Directive and the Procedures Directive relied upon do confer rights on the individual;
any breaches alleged were not “sufficiently serious” so as to give rise to a claim for reparation under EU law;
in any event the breaches were not directly causative of the damage sustained.

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The High Court exceptionally heard this age assessment case, it having been mis-listed: the UTIAC has sufficient jurisdiction for judicial review of this type of case and is the appropriate forum not the High Court (R (FZ) v LB of Croydon [2011] EWCA Civ 59).

A brief overview of the current age assessment law is at §§6-9. After a fact finding hearing the C was found to be 22 years old. The J found that the age assessment was fair and Merton compliant.

Click here for the case.
A case dealing with approach to Article 8 in entry clearance cases, and the significance of compliance/non-compliance with the terms of the Immigration Rules where there is no jurisdiction to consider a ground alleging that a decision is not in accordance with the Rules. In such a case the ability to satisfy the Rules represents a material consideration that illuminates the decision on proportionality in the context of an Article 8 inquiry, the relative significance of which can only be determined on case by case basis.

The Tribunal itself elaborated upon the above in the following way:

• With effect from 25 June 2013, section 52 of the Crime and Courts Act 2013 amended section 88A of the Nationality, Immigration and Asylum Act 2002 so that there is no right of appeal against refusal of entry clearance in a family visitor case, except on grounds alleging that the decision shows unlawful discrimination or is unlawful under Section 6 of the Human Rights Act 1998.
• There can be no question of entertaining an appeal on grounds alleging that the decision was not in accordance with the law or the Rules. These are not permissible grounds. Following the decision in Virk & Ors v SSHD [2013] EWCA Civ 652, that the parties cannot agree to the Tribunal exercising a jurisdiction that has not been given it by Parliament.
• In such a case the Tribunal does have power to consider a ground of appeal contending that the decision was incompatible with a claimant’s Convention rights.
• The ability to satisfy the Rules, although not the question before the Tribunal, may be capable of being a weighty factor in an appeal based on human rights but they will not be determinative. They will only become relevant if the interference is such as to engage Article 8(1) ECHR and a finding by the Tribunal that an appellant does satisfy the requirements of the rules will not necessarily lead to a finding that the decision to refuse entry clearance is disproportionate to the proper purpose of enforcing immigration control. However it may be capable of being a strong reason for allowing the appeal that must be weighed with the others facts in the case.
• The decision in Shamin Box [2002] UKIAT 02212 is to be followed and the obligation imposed by Article 8 is to promote the family life of those affected by the decision.  Undoubtedly the paradigm Article 8 entry clearance case concerns applicants seeking to join close family members for the purposes of settlement. However it cannot be excluded that where one party to a marriage is entitled to be in the United Kingdom a qualified obligation to facilitate spousal unification for the limited purpose of a short visit and sojourn may arise.
• We refrain from suggesting that, in this type of case, any particular kind of relationship would always attract the protection of Article 8(1) or that other kinds of relationship would never come within its scope. We are, however, prepared to say that it will only be in very unusual circumstances that a person other than a close relative will be able to show that the refusal of entry clearance comes within the scope of Article 8(1). In practical terms this is likely to be limited to cases where the relationship is that of husband and wife or other close life partners or a parent and minor child and even then it will not necessarily be extended to cases where, for example, the proposed visit is based on a whim or will not add significantly to the time that the people involved spend together.
• In the limited class of cases where Article 8 (1) ECHR is engaged the refusal of entry clearance must be in accordance with the law and proportionate. If a person’s circumstances do satisfy the Rules and they have not acted in a way that undermines the system of immigration control, a refusal of entry clearance is liable to infringe Article 8.