1

Lexis®PSL Immigration2016 cases: review of the year so far

2

Lexis®PSL Im

migration

2016 cases: review

of the year so far

Immigration cases 2016—a review of the year so farImmigration analysis: Adam Pipe, barrister at No 8 Chambers, picks out 2016’s key cases to date for immigration lawyers, and why they are of interest. The review includes a number of decisions by the President of the Upper Tribunal (Immigration and Asylum Chamber) which look at the rights of children, with other cases being drawn from the areas of EU law, bail, deportation, judicial review and practice and procedure. Other decisions consider Refugee Convention exclusion clause cases, evidential flexibility, the application of the de minimis procedure to the Immigration Rules, the rules on adult dependent relatives, and the Educational Test Services (ETS) saga.

The President and childrenThis year has seen a number of further decisions from McCloskey J on the rights of children, which has been a theme of his presidency of the Upper Tribunal (Immigration and Asylum Chamber) (UT).

In Abdul (section 55—article 24(3) Charter: Nigeria) [2016] UKUT 106 (IAC) (13 January 2016), an EEA deportation case, the UT considers the best interest principle set out in article 24 of the EU Charter of Fundamental Rights and in particular art 24(3) (every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless this is contrary to his or her interests).

In PD and Others (article 8: conjoined family claims) Sri Lanka [2016] UKUT 108 (IAC) (17 March 2016), the President provides some hope in ‘seven-year children’ cases (ie, where a non-EEA national child has lived in the UK for at least seven years). The President sets out how cases should be approached where there are claims by a number of family members including a ‘seven-year child’.

In AT and another (article 8 ECHR—Child Refugee—Family Reunification: Eritrea) [2016] UKUT 227 (IAC) (24 March 2016), the President considers article 8 of the European Convention on Human Rights (ECHR) in the context of family reunification concerning a child refugee.

EU lawR (Lounes) v Secretary of State for the Home Department [2016] EWHC 436 (Admin), [2016] All ER (D) 80 (Mar) (8 March 2016)

It appears that McCarthy Case C-434/09, [2011] All ER 729 may not be the last word on dual nationals and their family members. In Lounes, Lang J has referred a question to Court of Justice of the European Union. The case concerns a Spanish national who had exercised Treaty rights in the UK before becoming a British Citizen. After becoming a British citizen and dual national she married Mr Lounes, a third country national. Mr Lounes had sought judicial review of the decision to refuse him a residence card as a family member of his wife.

Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14, [2016] All ER (D) 86 (Jan) (15 January 2016)

The Court of Appeal, building on the earlier decisions of Entry Clearance Officer, Nicosia v Papajorgji [2012] UKUT 00038 (IAC)

and Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198, [2015] All ER (D) 263 (Nov), again confirms that the legal burden of proof in respect of an alleged marriage of convenience in EU law is on the Secretary of State for the Home Department (the evidential burden can shift). See also paras [40]–[41] as to the focus being on the intention of the parties at the time the relationship was entered into.

Cudjoe (Proxy marriages: burden of proof) (rev 1) Ghana [2016] UKUT 180 (IAC) (14 December 2015)

A big issue in EEA law over recent years has been the validity of proxy marriages carried out with third country nationals. In Cudjoe, the UT illustrates the correct approach in proxy marriage cases and also provides a good summary of Dutch law.

Bail R (on the application of Raza) v Secretary of State for the Home Department (Bail—conditions—variation—article 9 ECHR) (IJR) [2016] UKUT 132 (IAC) (1 February 2016)

The question of bail is often a paramount concern of clients and therefore an important issue for practitioners. In this case the President gave guidance on bail. The substantive consideration is at paras [14]–[69] of the judgment where the President reviews the law and the powers of the First-tier Tribunal (FTT) and the Chief Immigration Officer. The President finds that the Bail Guidance for Judges Presiding over Immigration and Asylum Hearings should normally be followed in bail hearings—it is therefore worth citing this in bail applications.

Adult dependent relativesR (on the application of Britcits) v Secretary of State for the Home Department [2016] EWHC 956 (Admin), [2016] All ER (D) 136 (Apr) (20 April 2016)

This ‘test case’ judicial review challenge to the very difficult adult dependent relative rule failed upon all grounds. However Mitting J, while noting the current binding authority of the Court of Appeal in R (on the application of MM (Lebanon) v Secretary of State for the Home Department [2014] EWCA Civ 985, [2014] All ER (D) 133 (Jul), makes some useful comments which may assist in an ECHR, art 8 appeal (see for example, paras [1.32]–[1.33]).

3

Lexis®PSL Im

migration

2016 cases: review

of the year so far

Judicial reviewR (on the application of Spahiu & Anor) v Secretary of State for the Home Department (Judicial review—amendment—principles (IJR) [2016] UKUT 230 (IAC) (25 April 2016)

The President gives guidance on amending grounds for judicial review. This is important given the frequency with which the SSHD issues supplementary/further decisions. The President reminds practitioners that ‘there is a sharp distinction between an application to amend a ground or grounds of challenge and an application to amend the respondent’s decision under challenge.’

R (on the application of Ufot) v Secretary of State for the Home Department [2016] EWCA Civ 298 (10 February 2016)

This is a very helpful Court of Appeal decision concerning whether a valid Tier 4 application had been made. The Court of Appeal finds for the appellant, questioning how the SSHD came to be in possession of three of the appellant’s passports including his current one. What is also interesting is the relief granted by the Court of Appeal when this was only an appeal against the refusal of permission for judicial review.

R (on the application of MG) v First-tier Tribunal (Immigration and Asylum Chamber) (‘fresh claim’; para 353: no appeal) (IJR) [2016] UKUT 283 (IAC) (17 May 2016)

In MG Blake J, sitting as a judge of the UT, found that a decision that further submissions do not amount to a ‘fresh claim’ the Immigration Rules, Part 12, para 353 is not a decision to refuse a protection or human rights claim and so does not give rise to a right of appeal to the FTT under section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended by section 15 of the Immigration Act 2014). It was also held that while the FTT must determine whether it has jurisdiction to entertain an appeal, it cannot decide whether a decision that further submissions do not amount to a fresh claim under para 353 was lawful or correct. Such a decision can only be challenged on public law principles in judicial review proceedings. This decision builds upon R (Waqar) v SSHD (statutory appeals/paragraph 353) IJR [2015] 00169 (IAC) and Robinson, R (on the application of) v Secretary of State for the Home Department (paragraph 353—Waqar applied) (IJR) [2016] UKUT 133 (IAC).

The ETS sagaSM and Qadir (ETS—Evidence—Burden of Proof) [2016] UKUT 229 (IAC) (21 April 2016)

This is the reported version (it was thought for some time that the judgment may remain unreported) of the ETS test case in which the SSHD’s generic evidence was found to be suffering from multiple frailties such that she had failed to discharge the legal burden upon her. The case was an appeal against the decision to curtail leave to remain on the basis of securing an English language qualification by fraud. Similar enforcement action had been taken in numerous cases following a BBC Panorama

4

Lexis®PSL Im

migration

2016 cases: review

of the year so far

documentary aired on 10 February 2014. The judgment also contains some interesting comments in relation to Tanveer Ahmed at para [60]. The preliminary rulings at the end of the decision are also worth looking at, especially where the SSHD raises an issue in respect of one of the judicial panel who had previously acted as an advocate in ETS cases.

PBS & Evidential FlexibilitySH (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 426 (18 February 2016)

The Court of Appeal allowed the appeal of a Tier 1 (Entrepreneur), who had not produced his academic transcript, on the basis that the SSHD had not applied her evidential flexibility policy contained in the Modernised Guidance, which the court held to be wider than the Immigration Rules, Part 6A, para 245AA. Beatson LJ also makes some interesting obiter observations as to EK (Ivory Coast) v Secretary of State for the Home Department [2015] EWCA Civ 1517, [2014] All ER (D) 272 (Nov) stating ‘that case should not be taken as excluding the common law duty of fairness in such cases or confining it to cases in which the problem is caused by the Secretary of State’s conduct’.

Discretionary Leave PolicyR (on the application of SB (Jamaica) and ABD) v Secretary of State for the Home Department [2016] EWCA Civ 400 (22 April 2016)

The Court of Appeal considered what would amount to ‘significant change’ to an appellant’s circumstances for the purposes of the transitional provisions of the SSHD’s Discretionary Leave policy. The court found that the appellant’s circumstances had significantly changed as she had been a dependent child at the time of her original application for discretionary leave, but was now an independent adult in employment and living independently with her daughter.

Article 1F and conductRuhumuliza (article 1F and ‘undesirable’: Rwanda) [2016] UKUT 284 (IAC) (19 May 2016)

In this appeal, involving an individual accused of being complicit in the Rwanda genocide, the UT found that the fact that a person is excluded from the Refugee Convention does not of itself mean that his presence in the UK is undesirable within the meaning of the Immigration Rules and that the wording of the Immigration Rules, Part 7, para 276B(ii) (which sets out the public interest considerations for ten-year rule applications) is not that of discretion—it is that of assessment.

In relation to art 1F(c), the UT held in Youssef (Refugee Convention—article 1F(c)) [2016] UKUT 137 (IAC) (2 March 2016) that for a person to be excluded from refugee protection on the basis that they knowingly incited and encouraged acts contrary to the purposes and principles of the United Nations it is not necessary to show that such acts have actually been committed or attempted.

No ‘de minimis’ principle in respect of the Immigration RulesIn Chau Le (Immigration Rules—de minimis principle) Vietnam [2016] UKUT 186 (IAC) (8 April 2016) the UT President found that the de minimis principle is not engaged in the construction or application of the Immigration Rules as it is a mere surrogate for the discredited ‘near miss’ or ‘sliding scale’ principle. This approach was confirmed, in respect of points-based system applications, by the Court of Appeal in Secretary of State for the Home Department v KG (India) [2016] EWCA Civ 477, [2016] All ER (D) 164 (May) (23 May 2016). Interestingly these cases do not address the relevance of ‘near miss’ arguments to ECHR, art 8. In my view ‘near miss’ arguments are still relevant in the assessment of proportionality see para [56] of Secretary of State for the Home Department v SS (Congo) & Ors [2015] EWCA Civ 387, [2015] All ER (D) 210 (Apr).

Practice and procedureSingh v Secretary of State for the Home Department [2016] EWCA Civ 492, [2016] All ER (D) 16 (Jun) (27 May 2016)

In this case the Court of Appeal gave guidance as to the approach to be taken in cases concerning an allegation of bias or misconduct against a judge (see in particular para [53]). The court refers to the legal test set out in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 (whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased). Davis LJ refers to guidance given by the Employment Appeal Tribunal (para 13 of Employment Appeal Tribunal—Practice Direction 2013) and to para [12] of Wagner (advocates’ conduct – fair hearing) [2015] UKUT 655 (IAC).

In terms of applications for extensions of time for seeking permission to appeal the UT gave guidance in R (on the application of Onuwu) v First-tier Tribunal (Immigration and Asylum Chamber) (extension of time for appealing: principles) (IJR) [2016] UKUT 185 (IAC) (31 March 2016) making reference to the principles set out in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 2 All ER 430, Denton v White [2014] EWCA Civ 906, [2015] 1 All ER 880 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663.

DeportationAs always, this year has provided more guidance in relation to deportation cases.

In MM (Uganda) & Anor v Secretary of State for the Home Department [2016] EWCA Civ 450, [2016] All ER (D) 72 (Jun) (20 April 2016), the Court of Appeal found that the decision of the UT in MAB (USA) [2015] UKUT 435 was incorrect in respect to the approach to the assessment of ‘unduly harsh’ in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and the Immigration Rules, Part 13, para 399(a), (b). The provisions require regard to be had to all the circumstances including the

5

Lexis®PSL Im

migration

2016 cases: review

of the year so far

Adam Pipe Produced in partnership with No 8 Chambers

Adam is experienced in all aspects of immigration and asylum law. He is particularly interested in refugee law. Adam undertakes cases in the First-tier Tribunal, Upper Tribunal, Administrative Court and Court of Appeal.

Adam is ranked Band 1 for Immigration in the Midlands by Chambers and Partners 2016.

The 2013 edition of Chambers and Partners observed - Adam Pipe is “the counsel in the Midlands for immigration and asylum work. He is well versed in tribunal proceedings and has unparalleled experience of the immigration judges in the Midlands.”

Adam is a contributing editor to Butterworths Immigration Law Service and regularly provides case law analysis for LexisNexis Legal News and LexisPSL Immigration.

criminal’s immigration and criminal history.

In Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488, [2016] All ER (D) 02 (Jun) (25 May 2016), the Court of Appeal overturned a decision of the UT where a deportation appeal had been allowed in respect of an individual who was sentenced to in excess of four years’ imprisonment. Rafferty LJ said at para [38]:

‘Neither the British nationality of the Respondent’s children nor their likely separation from their father for a long time is exceptional circumstances which outweigh the public interest in his deportation. Something more is required to weigh in the balance and nothing of substance offered. The approach of both the FtT and the UT failed to give effect to the clearly expressed Parliamentary intention.’

The UT also gave guidance in deportation appeals in OLO and others (para 398—‘foreign criminal’) [2016] UKUT 56 (IAC) (15

January 2016), Chege (‘is a persistent offender’) Kenya [2016] UKUT 187 (IAC) (12 April 2016) and Johnson (deportation—four years’ imprisonment: Sierra Leone) [2016] UKUT 282 (IAC) (13 May 2016).

In relation to a person who has been deported under the immigration (European Economic Area) Regulations 2006, SI 2006/1003 prior to the hearing of their appeal but wants to return pursuant to reg 29AA(3) in order to give evidence at the appeal, the test to be applied by the SSHD is that they must be admitted unless their appearance may cause serious troubles to public policy or public security. This test was considered by the Vice President of the UT in R (on the application of Kasicky) v Secretary of State for the Home Department (Reg 29AA: interpretation) (IJR) [2016] UKUT 107 (IAC) (28 January 2016). There is a presumption of re-admission and the Vice President interprets the exception restrictively.

Review prepared on 19 June 2016.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

RELX (UK) Limited, trading as LexisNexis®. Registered office 1-3 Strand London WC2N 5JR. Registered in England number 2746621. VAT Registered No. GB 730 8595 20. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. © 2016 LexisNexis SA-0616-058. The information in this email is current as of June 2016 and is subject to change without notice.

For more information or for a free trial visit www.lexisnexis.co.uk/immigration/casereview2016H1

Immigration and EU free movement case law resources on LexisNexis

Keeping up to date with case law, and finding relevant cases, can be a challenge in immigration practice.

In addition to providing links to all cases referred to in our Practice Notes and topic pages, LexisPSL Immigration also gives you fully searchable access to a wealth of relevant cases drawn from LexisNexis’ authoritative case resources.

Keep up to date: alertsSubscribers to LexisPSL Immigration can opt to receive emailed case alerts, which can be customised for frequency of receipt (daily, weekly or monthly) and topic. All case alerts covering the last month, together with all other types of news alert, can be viewed on one page, which is linked to from the home page.

Alerts cover all immigration decisions of the Upper Tribunal (Immigration Asylum Chamber) (UT(IAC)), plus all cases digested by the All England Reporter team.

The key facts and the full story: digests and judgmentsAll ER digests provide a summary of the facts and findings of a case, together with a link to the full judgment. Our digests are written and signed off by qualified lawyers, giving them citeability in court (see Halsbury’s Laws of England, Civil Procedure (Volume 11 (2009), paras 91–106).

Coverage includes: High Court, Court of Appeal, Supreme Court and CJEU judgments, plus selected reported immigration judicial review (IJR) decisions of the UT(IAC). Selected determinations of the IAT/AIT are also available.

The practical view: news analysis piecesWhere a case is of particular interest to immigration advisers, LexisPSL Immigration will commission a news analysis piece from an external expert, to summarise the decision from a practitioner’s perspective and draw out key themes and practical tips.

The long read: All England Law ReportsWhere a case has significant precedent value or is of wider interest beyond immigration advisers it may be selected for inclusion in the All England Law Reports.

All ER cases are presented with catchwords and headnotes summarising the judgments with clarity and accuracy in the long-established All England style.

Cross-references and hypertext links are given to other major legal works such as Halsbury’s Laws and Halsbury’s Statutes and to other All England cases and legislation cited in the report.

Proofs of all High Court and Court of Appeal judgments reported are approved by the appropriate judges before publication.

The full picture: LexisLibraryA relevant Lexis Library subscription will give you access to immigration cases in the full suite of case resources mentioned above, plus to additional case sources including Butterworths Human Rights Cases, European Court of Human Rights Cases, Scottish Case Digests, Scottish Court Opinions, Northern Ireland Law Reports and Law Reports of the Commonwealth. Subscribers with a relevant LexisLibrary subscription can also receive case alerts, which will include wider scope on asylum/protection cases than those included within LexisPSL Immigration.