Recent Cases
HA & Ors v SSHD [2023] EWHC 1876 (Admin); [2023] WLR(D) 336 – successful claims by two claimants for breaches of statutory duties by the Defendant and her public sector contractors to facilitate access to the scheme of asylum support;
WAS (Pakistan) v SSHD [2023] EWCA Civ 894 – Court endorsed and extended the ‘common-sense point’ of Sedley LJ at YB (Eritrea) v SSHD [2008] EWCA Civ 360 that in a sur place case examining risk arising from activity in the United Kingdom ‘a tribunal cannot be criticised if it is prepared to infer successful covert activity on the basis of limited direct evidence’- ‘Those observations have even more force in the light of the great changes since 2008 in the sophistication of such methods, in the availability of electronic evidence of all sorts, and in the ease of their transmission.’ The UT erred by ‘losing sight of the fact that direct evidence about “the level of and the mechanics of monitoring” in the United Kingdom is unlikely to be available to an asylum claimant or to a dissident organisation’ as well as imposing too high a standard of proof.
R (SWP) v SSHD [2023] EWCA Civ 439 – Court of Appeal dismissed appeal against exclusion of Tier 2 PBS migrant spouse from Destitution Domestic Violence Concession (‘DDVC’), but also refused Secretary of State’s application to file late evidence on appeal, applying Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489, and reiterating public law defendant’s ‘duty of candour and cooperation with the court’ it being ‘important that the defendant public authority should set out an accurate factual position to the court’. Procedural rigour ‘applies as much to defendant public authorities as it does to claimants’. Public funding granted for application to Supreme Court.
Home Office v ASY & Ors [2023] EWHC 196 (KB) – Correct scope of the ECHR Article 3 duty to avoid the risk of inhuman and degrading treatment by reason of destitution. Group damages claim based on breaches of the anticipatory duty in Article 3 for over 90 individuals, including single mothers of British children, prohibited by the Defendant from accessing benefits due to the mothers’ limited leave to remain.
Hussein (Ismail) v SSHD UKSC Ref 2020/0198 [2022] 12 WLUK 664; [2022] Lexis Citation 145; [2022] All ER (D) 13 (Sept) – Supreme Court allowed appeal from Court of Appeal re enhanced protection from deportation of long resident EU national, by consent, SSHD accepting CA erred in accepting reasons of FTT as adequately addressing question of ‘enhanced protection’ from deportation for EEA nationals who had gained permanent residence status and been continuously resident for 10 years ;
SSHD v Joseph [2022] UKUT 218 (IAC); [2023] INLR 73- UT(IAC) (Presidential panel- Lane J, President and UTJ Stephen Smith) reviewed requirements for permission to appeal applications, upholding successful appeal in First-tier Tribunal..
R (ZU) v Kent County Council [2022] UKAITUR JR015402021- UT (UTJ C Lane) Credibility assessment erred in failing to consider different features of applicant’s society of origin such as attitudes to chronological age, age assessment set aside and revised (§43; ‘in common with many children or young adults, especially those from societies which do not record or celebrate birthdays, the applicant has no idea how old his parents or siblings are; the ages of much older adults are of little, if any, interest to him’,);
R (otao Akter) v SSHD [2021] EWCA Civ 704- The Secretary of State’s review of earlier decision was arguably a reconsideration within a single process so there was no break in continuous lawful residence disapplying entitlement to indefinite leave to remain.
ST & Anor v SSHD [2021] EWHC 1085- The Secretary of State’s ‘No Recourse to Public Funds’ scheme was unlawful as inconsistent with requirement to best interests of child as a primary consideration as required by section 55 Borders, Citizenship and Immigration Act 2009.
R (DMA, AHK, BK and ELN) and R (AA) v SSHD – [2020] EWHC 3416 (Admin), [2020] WLR(D) 683- The Secretary of State was in breach of section 4(2) Immigration and Asylum Act 1999 duty to provide accommodation or arrange for the provision of accommodation in failing to provide accommodation to the claimants within a reasonable period of time or to monitor the provision of accommodation, and breached public sector equality duty in failing to monitor accommodation.
Unuane v United Kingdom – appn 80343/17 (ECtHR Fourth Section), [2020] ECHR 832; [2021] INLR 152 – decision come to in accordance with Part 5A Nationality Immigration Asylum Act 2002 was nonetheless incompatible with article 8 ECHR for failure to weigh relevant right adequately against public interest, including to attach sufficient weight to the best interests of affected children.
Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 350 (IAC) – whether an offence ‘has caused serious harm’ rendering the person a ‘foreign criminal’ under Part 5A of the Nationality, Immigration and Asylum Act 2002 is a matter for the judge; the FTT was entitled to find that mere possession of a bladed article in a public place did not meet the threshold, but was still required to conduct a full proportionality assessment under Article 8(2) ECHR.
R (Abidoye) v SSHD [2020] EWCA Civ 1425; [2020] All ER (D) 17 (Nov)- the application of the presumption against retrospectivity to Part 5A of the 2002 Act; whether the engagement of human rights constitutes an exception to the principle in Henderson v Henderson.
SSHD v Devani [2020] EWCA Civ 612; [2020] 1 WLR 2613- whether the Upper Tribunal slip rule can reverse disposal; the weight to be given to assurances as to prison conditions.
Uddin v SSHD [2020] EWCA Civ 338; [2020] 1 WLR 1562- the test for whether family life exists between an adult and his foster family is the same as in cases where the relationship arose from birth – namely real, effective, or committed support; family life is a question of substance, not form; continuing cohabitation after adulthood is suggestive of family life.
Hussein v SSHD [2020] EWCA Civ 156; [2020] All ER (D) 148 (Mar)- how to qualify for ‘enhanced protection’ against deportation for permanently resident EEA nationals continuously resident for 10 years and the test of ‘serious grounds of public policy or public security’ as required by Article 28 of Directive 2004/38/EC.
Patel (British citizen child – deportation) [2020] UKUT 45 (IAC); [2020] All ER (D) 126 (Feb) – a child’s British citizenship is relevant when assessing whether the ‘unduly harsh’ test in s117C(5) of the 2002 Act is met, but is not necessarily a weighty factor; all depends on the facts.
Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 216 (IAC) – Guidance from the UT President on the correct procedure for seeking permission to appeal in the Upper Tribunal where an individual’s appeal has been allowed in part by the First-tier Tribunal.
MS (British citizenship; EEA appeals) Belgium [2019] UKUT 00356 (IAC)- British citizenship is a relevancy when assessing whether expulsion of a parent us ‘unduly harsh’ for purposes of 117C(5) Nationality, Immigration and Asylum Act 2002; weight depends on the facts.
R (on the application of Khajuria) v SSHD) [2019] EWHC 1226 (Admin)- Requirements of Points Based System hard edged, but given arguability that in particular circumstances there had been equivalent job creation application could be considered outside the Immigration Rules.
Bhavsar (late application for PTA- procedure) [2019] UKUT 196 (IAC)- There is nothing in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 that prevents the First-tier Tribunal from refusing to admit an out of time application for permission to appeal to the Upper Tribunal where the First-tier Tribunal does not extend time- refusal of admission is appropriate in such a case.
WA (Pakistan) v SSHD, [2019] EWCA Civ 302; [2019] All ER (D) 124 (Mar)- important appeal on freedom of religion and belief and refugee status, including the application of the ‘right to live freely’ in a protected identity per HJ (Iran) v SSHD; HT
(Cameroon) v SSHD [2010] UKSC 31; the Court held that the Upper Tribunal had erred in its country guidance on the risk to Ahmadis in Pakistan by imposing illegitimate restrictions on the refugee definition.
OA (Nigeria) v SSHD [2018] EWCA Civ 3042 where expert evidence has been provided in an asylum claim, it is not only relevant to the risk relating to the Appellant’s health, but also as potential corroboration of the truth of her account.
Forrester v SSHD, [2018] EWCA Civ 2653; [2018] All ER (D) 11 (Dec)- the correct approach to ‘very compelling circumstances’ in respect of a foreign criminal sentenced to four years’ imprisonment or more; there is no need for ‘very compelling circumstances’ to consist of factors independent of the exceptions in s117C(4) and (5); in a sufficiently strong case there may be factors relating to a particular exception that can amount to something over and above the exception constituting compelling circumstances within the meaning of the statute.
Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320; [2017] All ER (D) 23 (May)- Article 8 family life between adults is made out by support which is real, effective, or committed; s117B Nationality, Immigration and Asylum Act 2002 does not alter the outcome in historic injustice cases.
In the matter of B (a Child) [2016] UKSC 4; [2017] 1 All ER 899; [2016] 2 WLR 557 – [Interaction of immigration and family law – Supreme Court judgment about habitual residence and the parens patriae inherent jurisdiction in the context of a same-sex relationship in which the non-biological mother has no legal status vis-à-vis the child;
GS (India) v SSHD [2015] EWCA Civ 40; [2015] 1 WLR 3312 – Challenge to treatment of article 3 ECHR medical cases testing scope of guidance in N v United Kingdom (2008) 47 EHRR 39, N v SSHD [2005] 2 AC 296; [2005] UKHL 31, and D v United Kingdom (1997) 25 EHRR 31.
KK (Congo) & Ors v SSHD [2014] EWCA Civ 415- the Court of Appeal indicated arguable need for clarification of exigent judicial guidance in article 3 and 8 ECHR medical cases in light of features such as lawful residence prior to diagnosis and treatment, and long lawful or mainly lawful residence.
Shebl (Entrepreneur- proof of contracts) [2014] UKUT 216 (IAC) a ‘contract’ for the purposes of the Immigration Rules is not defined more narrowly than in contract law; a Tier 1 (Entrepreneur) applicant need not, therefore, produce a contract contained in a single document in order to succeed.
R (Gurung) v SSHD [2013] EWCA Civ 8; [2013] 1 WLR 2546- historic injustice is based on causation, not the weight to be given to egregious state conduct, and creates a strong claim to settlement where Article 8 is engaged.
MS (Coptic Christians; Egypt) CG [2013] UKUT 611 (IAC) – Country Guidance on the risk of persecution of Coptic Christians at hands of the state and non–state agents on return to Egypt.
RT (Zimbabwe) & Ors v SSHD – [2012] UKSC 38; [2013] 1 AC 152- All of the article 1A(2) 1951 Refugee Convention ‘Convention reasons’ reflected characteristics or statuses which the individual could not, or could not be expected to, change because they were so closely linked to his identity or expressed fundamental rights; a person obliged to conceal protected beliefs to avoid persecution was entitled to protection; there is no principled basis for treating differently a person who had no political beliefs but to avoid persecution, would be forced to pretend that he did.
Bah (EO (Turkey) – Liability to deport) [2012] UKUT 009196 (IAC)- Use of intelligence in deportation proceedings against a suspected member of a gang.
R (ST (Eritrea)) v SSHD [2012] UKSC 12; [2012] 2 AC 135- effect of article 32 Refugee Convention on the proposed expulsion of a refugee after a successful appeal.
R (Quila and another) v SSHD [2011] UKSC 45; [2012] 1 AC 621- Immigration Rules raising the minimum age for leave to enter or remain as a spouse found unlawful as breached Article 8 read with Article 12 ECHR.
R (Bahta) & ors v SSHD [2011] EWCA Civ 895; [2011] 5 Costs LR; [2011] All ER(D) 244 (Jul) – Very important Court of Appeal decision on costs in judicial review – Administrative Court erred in failing to award costs against SSHD where claim settled on terms positive to claimant- defendants not addressing issues after receipt of adequate letter of claim is unacceptable, and a claimant who then files proceedings and obtains substantial relief, even by agreement, should obtain costs from defendant.
R (otao ZO (Somalia)) v SSHD; R (otao MM (Burma)) v same [2010] UKSC 36; [2010] 4 All ER 649 – Article 11 of Council Directive (EC) 2003/9 obliged member states to make provision for access to the labour market by applicants for asylum after a claim had been outstanding for a year, and this included both first time applicants and those seeking acknowledgement of fresh claim.
MA (Ethiopia) v SSHD [2009] EWCA Civ 289, [2010] INLR 1 – Tribunal erred in law by asking how claimant would be treated if returned to country of former nationality, not whether she faced exclusion which prevented her return and gave rise to valid persecution claim.
R (Baiai and others) v SSHD, [2008] UKHL 53; [2009] 1 AC 287 – Certificate of Approval scheme for marriages involving specified non-citizens found unlawful as over-extensive and disproportionate to aim of preventing marriages of convenience.
EB (Ethiopia) v SSHD [2007] EWCA Civ 809, [2009] QB 1 – The Refugee Convention covers adverse measures including arbitrary deprivation of nationality and attached rights of protection and/or return where a Convention reason arises,.
VNM v SSHD [2006] EWCA Civ 47, [2006] All ER (D) 242 (Jan) – A tribunal considering reasonableness of internal relocation must consider adequately whether presenting a false history and explanation for displacement is practicable and consistent with ability to sustain reasonable life on a false basis beyond the short term.
Hysi v SSHD [2005] EWCA Civ 711; [2005] INLR 602 – requirement of concealment of important features of protected identity as a condition of internal relocation renders such relocation unreasonable.