Updates, commentary, training and advice on immigration and asylum law
Batch of tribunal cases
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A few reported determinations from late last year have so far escaped comment here. There’s not much to say about these ‘Ronseal’ style determinations. Lest they be forgotten, though, here are the links and official headnotes:
Haque (adjournment for asylum interview) Bangladesh  UKUT 481 (IAC)
An Immigration Judge is obliged to determine a ground of appeal brought under section 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, even if the appellant raises for the first time in his grounds of appeal that he is a refugee. There is no obligation to adjourn any hearing before the First-tier Tribunal in order to allow the appellant to be interviewed by the Secretary of State.
Wusa (para 159A(ii): Connection) Nigeria  UKUT 482 (IAC)
The requirement of a connection between employer and employee in paragraph 159A(ii) of the Immigration Rules, when it applies, is a requirement of a connection going beyond that of employment.
Daby (Forgery; appeal allowed; subsequent applications) Mauritius  UKUT 485 (IAC)
Where an in-country application is refused on the ground that a document is false, and the respondent fails to prove the falsity before a Tribunal, with the result that an appeal against the refusal is allowed:-
(1) the respondent is obliged to comply with the terms of the Tribunal’s decision and make a grant in accordance with the original application;
(2) it may be open to a respondent to raise the question of the falsity of the document in response to any subsequent application.
Mehmud (timing of deportation notice) Bangladesh  UKUT 486 (IAC)
(1) The Secretary of State may serve a deportation decision under s.32 of the UK Borders Act 2007 despite the fact that, unknown to her, the appellant had lodged a notice of application to appeal against conviction out of time.
(2) A notice of deportation can be revoked or the appeal adjourned pending an out of time challenge to the conviction on which automatic deportation depends.
(3) There is a strong public interest in deporting those whose entry has been obtained by fraud and who then participate in a large scale commercial fraud to facilitate illegal entry by use of fraudulent documents.
Aswatte (fiancé(e)s of refugees) Sri Lanka  UKUT 476 (IAC)
1. The Immigration Rules make no provision for the admission of fiancé(e)s of refugees who are in the United Kingdom with limited leave. In FH (Post-flight spouses) Iran  UKUT 275 (IAC), the Upper Tribunal found that the spouse of a refugee with limited leave was in an unjustifiably worse position than the spouses of students, businessmen etc, where the immigration rules make provision for a spouse to enter with limited leave. Unlike such persons, the refugee could not return home to enjoy married life there.
2. By the same token, a refugee cannot return home in order to marry the fiancé(e) and it may be unreasonable to expect the couple to marry in a third country. Where that is the case, and where all the requirements of paragraph 290 of the rules are met, save that relating to settlement, it is unlikely that it will be proportionate to refuse the admission of the fiancé(e).
Kabaghe (removal- no consideration of paragraph 395C) Malawi  UKUT 473 (IAC)
1) A person who has been removed from the United Kingdom pursuant to an immigration decision may not appeal against that decision to the First-tier Tribunal on human rights grounds (except where a human rights/asylum claim has been certified as clearly unfounded.
2) The statutory jurisdiction to consider whether an immigration decision is in accordance with the law includes consideration of whether the decision has been made fairly, because there is a public law duty on the Secretary of State to act fairly.
3) Where an appellant challenges a removal decision on the basis that it is unlawful and unfair, and gives an apparently credible account of the treatment constituting the unfairness, the judge is entitled to expect some form of evidential response from the respondent, identifying what happened and what factors informed the decision making. As the AIT held in EO (Turkey)  UKAIT 00062, the respondent should demonstrate that the relevant considerations in paragraph 395C of HC 395 were taken into account, in reaching the decision that the appellant should be removed.
Mumtaz (s.85A commencement order : adjournment hearing) Pakistan  UKUT 472 (IAC)
The transitional provision in article 3 of the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011, concerning the commencement of s. 85A of the Nationality, Immigration and Asylum Act 2002 (Matters to be considered: new evidence: exceptions), adopts an unusual approach, in making the applicability of that section turn on whether there has been a hearing before the commencement date (23 May 2011). Whatever the problems such an approach may cause, it is plain that, for the purposes of article 3, an oral hearing at which an application for an adjournment was considered by a judge (and granted) was a hearing for the purposes of article 3, with the result that section 85A did not apply, so as to restrict the evidence that the judge could consider at the substantive hearing.