Category: IAU

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A claim to recover back-payments in income support in respect of the period before the A’s refugee status was established. It was common ground the claim could not succeed under UK legislation but the issue was whether the claim could succeed under international instruments.

The Court of Appeal found: “the UK is entitled to establish a support scheme for asylum seekers which is less generous than mainstream benefits, provided that it complies with the requirements of Council Directive 2003/9/EC (the Reception Directive). Successful asylum seekers receive the same welfare benefits as UK citizens as from the date when their refugee status is established. The international instruments upon which the appellant relies do not require the UK Government to make lump sum payments to successful asylum seekers representing the difference between previous asylum support and mainstream benefits.“

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An application for JR of the decision of the SSHD to refuse to accept further submissions as a fresh claim. The application was refused, the J finding that the SSHD was entitled to place little weight on the medical evidence on account of failures to comply with the Istanbul Protocol and to conclude that further evidence submitted did not disturb the adverse credibility findings made previously by the Tribunal. In any event, the J found that the A could not establish risk under the new country guidance.

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JR refused. The SSHD did not refuse the A’s application for leave to remain on the basis that she did not have leave or because she was barred from making the application while she was still in the UK and as such there was no error in the decision. Should the A want the SSHD to consider that s/he would meet the Immigration Rules, save for the entry clearance requirement, s/he must specifically request that the SSHD considers that point. “The Chikwamba v SSHD [2008] UKHL 40 [2008] 1 WLR 1420 principle is only engaged if, in the terms of [30] (a) of SSHD v Hayat (Pakistan) [2012] EWCA Civ 1054, the SSHD has refused the application in question “on the procedural ground that the policy requires that the applicant should have made the application from his home state”.”

The full opinion can be read here.

Opinion of AG Kokott as to two questions that had been referred for preliminary ruling.

(1) Under Directive 2004/38, a third-country national loses his right of residence in the host Member State if the EEA citizen married to him departs from the host Member State. That is so even if, at the time of the EEA citizen’s departure, the marriage had lasted at least three years (including one year in the host State) and was dissolved by decree absolute only after the EEA national spouse had departed to another Member State. The date on which the non-EEA national loses his right of residence is the date that his EEA spouse leaves the host Member State, not the date on which the divorce is finalised by decree absolute.

(2) The resources of the non-EEA national spouse must be taken into account, if they were lawfully acquired, in determining whether the EEA citizen has at her disposal sufficient resources within the meaning of Articles 7(1)(b) and 8(4) of Directive 2004/38.

The full judgment can be read here.

The Tribunal re-made the decision on the Appellant’s deportation appeal and allowed his appeal. There had been a total failure to consider the best interests of the Appellant’s child.

In such a case the court found it has three options. These are: to re-make the decision of the FtT; to remit the case to the FtT; or to remit the case to the SSHD as not having been in accordance with the law. There is also a power to adjourn, in line with the Tribunal’s case management powers and the overriding objective.

The Tribunal decided to re-make the deportation decision in this case. The Tribunal found that under the new legal regime, including section 117 of the 2014 Act, the duties imposed by Section 55 of the 2009 Act are undiluted and unmodified in any way. Appeal allowed.

A link to the case can be found here.

This was a JR on behalf of two Afghan interpreters who had worked for the British government in Afghanistan as local support staff. They claimed that discrepancies between schemes (set up to provide benefits, for e.g. relocation packages) for them and their counterparts in the Iraq war contravened the Equality Act 2010 in two ways:

i) substantively, in that they were discriminated against on grounds of nationality (sections 39(2) and 29(6)) ; and
ii) procedurally, in that HM Government failed to comply with Public Sector Equality Duty (“PSED”) by not carrying out an Equality analysis (section 149(1)).‬

Discrimination was also argued under the common law. This failed, the HC holding that the case could not reach the necessary Wednesbury threshold on the facts.

The substantive claim failed on the grounds of territorial reach, it being held that the employment of local interpreters is bound by the law of the country in which they are employed, not of the employer, even when that employer is a State (see the discussion at §§ 26-49).

The procedural claim succeeded, however the HC accepted that recent work done to the scheme would be compliant with the PSED (§61). As such it was held that the best course of action was to make a declaration outlining the failures to take the PSED into consideration. The scheme was not quashed as the HC considered that would adversely impact those currently taking advantage from it and nor did they give a mandatory order requiring a fresh analysis of the PSED. ‬

24 January 2015 The 1MCB Immigration and Asylum Update (IAU) provides regular short summaries about notable or informative immigration and asylum cases to assist practitioners quickly assess new reported cases. The updates will not provide a lengthy analysis but a practical summary to ensure ease of reference.

MR (permission to appeal: Tribunal’s approach) Brazil [2015] UKUT 29 (IAC)

Further procedural guidance given by the President of the IAC to judges regarding the grant or refusal of permission to appeal.  In particular, where grounds for permission argue that the JFtT should have reached a different conclusion, permission should be refused on the basis that no error of law has been identified.

Safi, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 95 (Admin)

C asserted that had D applied the correct policy in 2002, he would have been entitled to ELR under the policy relevant to Afghan asylum seekers at that time.  This case considers the ‘corrective relief’ principles and case law following Ravichandran v Secretary of State for the Home Department[1996] Imm AR 97 and Rashid v Secretary of State for Home Department [2005] INLR 550 [§§25-55].  The Court focuses on: whether the initial decision taken was unlawful or illegal; whether a reasonable SSHD would have taken decisions after 2002 without reference to the past failure to grant ELR; and delay.  JR dismissed.

Elashmawy v Court of Brescia, Italy & Ors [2015] EWHC 28 (Admin)

A had been convicted of raping a 15 year old girl and resisted his extradition to Italy on the grounds that he would face Article 3 ill treatment if returned to an Italian prison.  The Court found that the situation had moved on since Torreggiani and others v Italy (2009) App. No 43517/09 and Badre v Court of Florence, Italy [2014] EWHC 614.  Although prison conditions in Italy remain problematic and many more reforms may be necessary, there were not substantial grounds for believing that there is a real risk that A would face prison conditions in breach of Article 3.

Cogan v The Provincial Court of Algeria [2015] EWHC 89 (Admin)

A challenged his extradition on the basis of mental health problems (including the risk of suicide), fear of potential problems with interpreters in Spain, and difficulties resulting from being separated from his wife.  The court applied the legal principles in Wolkowicz and found that, on the evidence, there was no basis for supposing that the authorities would not discharge all their obligations, including the taking of appropriate steps to protect A from the risk of suicide.  Appeal dismissed.

Pesut v Republic of Croatia [2015] EWHC 46 (Admin)

Appeal against the proposed extradition of A to Croatia to face prosecution for a war crime. A alleged that the true purpose of the extradition was only for the suspected offence to be investigated.  A also claimed that the lapse of time, as well as his physical and mental condition, would make the extradition oppressive.  The court found that the extreme seriousness of the alleged offence added to the importance of Croatia being able to conduct A’s trial.  Appeal dismissed.

Balazs v Casa Judeteana de Pensii Cluj (Regulation (EEC) No 1408/71) Joined Cases C-401/13 and C-432/13

A preliminary ruling concerning the interpretation of Article 7(2)(c) of Regulation (EEC) No 1408/71 in the context of a bilateral agreement between the Greek and Romanian Governments, concluded in 1996, concerning final settlement of the compensation in respect of the social security contributions made by Greek political refugees repatriated from Romania.