Updates, commentary, training and advice on immigration and asylum law

Correction to earlier shared burden post


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My post on Friday about the Amos case may have been a little o’er hasty. The excellent Manjit Gill QC, who was Leading Counsel for the claimant in Amos, has sent in a correction by email, the relevant part of which is as below (reproduced with kind permission):

“Please note the judgment is carefully framed to leave the arguments on whether the SSHD should or should not assist in the particular cases to be further ventilated in the Tribunal on remittal. It simply makes the point that the burden lies on the claimant and that the SSHD is not bound to assist i.e. the question of assistance is not an inevitability. In the first instance, it must be for the claimant to produce information to support his/her case. If a claimant decides to ask the SSHD for assistance, the SSHD may assist depending on the circumstances. That was the SSHD’s position in these cases. It is up to an appellant to make a request for an appropriate direction from the tribunal. In these paticular cases, there had been no request to the SSHD or appropriate application to the Tribunal (counsel in the Court of Appeal had not appeared before the tribunal). Section 40 of the UK Borders Act 2007 was raised before the Court of Appeal but, in the absence of the matter having been raised below, the Court felt it unnecessary to say more. However, all these issues are still left open for another day. What is clear is that (i) it is not the case that the SSHD is bound to assist even without being asked and (ii) that the burden lies on the claimant to make out his case with the use, as necessary, of the procedural powers available to the Tribunal.”

Many thanks to Manjit for this. The argument lives to fight another day, basically. Mark will no doubt be exploring this and other issues in his upcoming Birmingham and London training courses.

Coincidentally, I met Manjit for the first time on Friday at the launch of the ILPA Working with refugee children: current issues in best practice publication, to which I have contributed a chapter on representing children at appeals. His presentation was as inspiring as it was interesting and his excellent reputation seemed to me entirely well deserved.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


One Response

  1. Hi

    I just wanted to know when would be the appropriate time to make a Section 40 of the UK Borders Act 2007 request and the from and and manner it should be in. would you be able to suggest short structure>

    thank you