The new, higher standard of proof doesn’t apply to human rights claims
18 June 2024
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One of the changes wrought by the Nationality and Borders Act 2022 (remember that?) is an apparent increase in the standard of proof in refugee
One of the changes wrought by the Nationality and Borders Act 2022 (remember that?) is an apparent increase in the standard of proof in refugee
In Joseph (permission to appeal requirements) [2022] UKUT 00218 (IAC), the appellant was a national of Trinidad and Tobago who had resided in the UK
There is no right of appeal against a refusal by the Upper Tribunal (Immigration and Asylum Chamber) to set aside a decision disposing of proceedings.
Immigration appeals decided without a hearing under the Upper Tribunal’s notorious COVID-19 guidance don’t automatically fall to be set aside, the Court of Appeal has
It’s hard to imagine a time when immigration lawyers will stop banging the fairness drum. Far from being responsible for an appeals “merry-go-round”, we find
Immigration appeals can last a long time: often years and years. What happens when things change during the appeal? This is the question answered by
Described in the foreword by Upper Tribunal President Peter Lane as “an invaluable work for all who practise in the field of immigration law”, the
The Court of Appeal has given its long-awaited decision in the case of MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA
The judgment in Arturas (child’s best interests: NI appeals) Lithuania [2021] UKUT 237 (IAC) looks interesting at first, but turns out to be terrifically arcane.
When a person’s visa expires whilst they have an outstanding application or appeal, they have what is referred to as “3C leave”. This is named
In Hydar (s 120 response; s 85 “new matter”: Birch) [2021] UKUT 176 (IAC), the Upper Tribunal has done an unwilling U-turn on the earlier
The Court of Appeal has rebuked the Upper Tribunal for reversing an immigration judge’s decision without identifying an error of law. The Upper Tribunal’s jurisdiction
Always a stickler for procedure, President Lane has again warned lawyers to not judicially review decisions of the Upper Tribunal refusing permission to appeal on
When someone applies for indefinite leave to remain in the UK, but is granted limited leave to remain instead, that decision does not attract a
In Bikanu (s.11 TCEA; s.117C NIAA; para. 399D) [2021] UKUT 34 (IAC), the Upper Tribunal has confirmed that paragraph 399D of the Immigration Rules has
In the latest round of the legal saga involving Egyptian dissident Yasser Al-Siri, the Court of Appeal has ruled that the Home Office acted unlawfully
Ndwanyi (Permission to appeal; challenging decision on timeliness) Rwanda [2020] UKUT 378 (IAC) is about how a respondent can challenge a decision that an application
Lowe v Secretary of State for the Home Department [2021] EWCA Civ 62 is about the role of the Upper Tribunal in deportation appeals. The
The distinction between a “claim” and an “application” was at the heart of the Upper Tribunal’s recent decision in Yerokun (Refusal of claim; Mujahid) Nigeria
Pending asylum appeals in Scotland can be affected by changes to country guidance right up to the point when they are sent out to the
Earlier this year the Court of Appeal looked at the meaning of an offence causing “serious harm” for the purposes of deportation law. Being convicted
The government wants to make it much harder to appeal from the tribunal system to the Court of Appeal. The Ministry of Justice is consulting
The High Court has declared that the arrangements for dealing with Upper Tribunal immigration appeals during the coronavirus pandemic are unlawful. Mr Justice Fordham held
In the case of Ashfaq (Balajigari: appeals) [2020] UKUT 226 (IAC), the Upper Tribunal reiterates its previous findings that First-Tier Tribunal hearings provide appellants with
The abandonment of an ongoing appeal seems to be a hot topic for the Upper Tribunal recently, with the case of Ammari (EEA appeals –
Two important (but completely different) points arise from the Upper Tribunal’s decision in MH (review; slip rule; church witnesses) Iran [2020] UKUT 125 (IAC), one
The Upper Tribunal has again considered section 104 of the Nationality, Immigration and Asylum Act 2002. Following on from the case of MSU, which I
The case of MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC) represents yet another cutback in the rights of migrant victims of
In Birch (Precariousness and mistake; new matters : Jamaica) [2020] UKUT 86 (IAC) the Upper Tribunal looks at the “precarious leave” provisions where a person
MSU (S.104(4b) notices) Bangladesh [2019] UKUT 412 (IAC) considers section 104 of the Nationality, Immigration and Asylum Act 2002 (as heavily amended), which says that
Following another paragraph 322(5) case, where an applicant was refused indefinite leave to remain on the basis of dishonesty for disclosing different income to HMRC
The headnote of Rana (s. 85A; Educational Loans Scheme) Bangladesh [2019] UKUT 396 (IAC) deals with two matters: 1. There was nothing in s 85A
Can an appeal be both finally determined and pending at the same time? This conundrum, akin to Erwin Schrödinger’s famous thought experiment involving a cat
An asylum appeal by an Eritrean woman, initially rejected by an immigration judge, has been overturned by the Upper Tribunal after it emerged the court
“Be careful what you wish for!”, could be the headline for the case of Ahmed (rule 18; PTA; Family Court materials) Pakistan [2019] UKUT 357
The Upper Tribunal has ruled that human rights appeals may be allowed on the ground that the Secretary of State has unlawfully failed to acknowledge
Always a worry (but never a surprise) when Court of Appeal judges start off a judgment by saying that the case “has a tortuous procedural
In MS (appealable decisions; PTA requirements; anonymity : Belgium) [2019] UKUT 216 (IAC), President Lane and Upper Tribunal Judges Gill and Finch provide important guidance
In the recent Court of Appeal case of UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095, Lord Justice
In immigration law, deadlines are important. They also frequently cause confusion. Bhavsar (late application for PTA: procedure) [2019] UKUT 196 (IAC) is an example of
One of the changes wrought by the Nationality and Borders Act 2022 (remember that?) is an apparent increase in the standard of proof in refugee status claims. This change applies to everyone who applied for asylum on or after 28 June 2022. There has been a huge waiting time for...
In Joseph (permission to appeal requirements) [2022] UKUT 00218 (IAC), the appellant was a national of Trinidad and Tobago who had resided in the UK since 2007. She had a costs order of £400 made against her in 2014, following an unsuccessful judicial review. In September 2019 she made an...
There is no right of appeal against a refusal by the Upper Tribunal (Immigration and Asylum Chamber) to set aside a decision disposing of proceedings. So held the Court of Appeal in DJ (Pakistan) v Secretary of State for the Home Department [2022] EWCA Civ 1057, another case dealing with...
Immigration appeals decided without a hearing under the Upper Tribunal’s notorious COVID-19 guidance don’t automatically fall to be set aside, the Court of Appeal has held in Hussain and another v Secretary of State for the Home Department [2022] EWCA Civ 145. In so finding, the court confirmed the reasoning...
It’s hard to imagine a time when immigration lawyers will stop banging the fairness drum. Far from being responsible for an appeals “merry-go-round”, we find ourselves day in and day out trying to resolve unfair issues and cases in a highly politicised area of law. Unfairness takes many forms. It...
Immigration appeals can last a long time: often years and years. What happens when things change during the appeal? This is the question answered by the Upper Tribunal in Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 272 (IAC). The main take away from this case is: don’t appeal...
Described in the foreword by Upper Tribunal President Peter Lane as “an invaluable work for all who practise in the field of immigration law”, the Immigration Appeals and Remedies Handbook by Mark Symes and Peter Jorro has entered its second edition. Published earlier this year, it is available directly from...
The Court of Appeal has given its long-awaited decision in the case of MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500. Unfortunately, it confirms that the Home Office can refuse to engage with a human rights claim for permission to stay in the UK...
The judgment in Arturas (child’s best interests: NI appeals) Lithuania [2021] UKUT 237 (IAC) looks interesting at first, but turns out to be terrifically arcane. It is about the consequences of a failure by the Home Office to comply with its duties concerning the best interests of children. In most...
When a person’s visa expires whilst they have an outstanding application or appeal, they have what is referred to as “3C leave”. This is named after section 3C of the Immigration Act 1971, which essentially provides that the person’s visa continues until the application is decided. An important and seemingly...
In Hydar (s 120 response; s 85 “new matter”: Birch) [2021] UKUT 176 (IAC), the Upper Tribunal has done an unwilling U-turn on the earlier case of Birch (precariousness and mistake; new matters) [2020] UKUT 86 (IAC). Raising “new matters” in an appeal requires the consent of the Home Office...
The Court of Appeal has rebuked the Upper Tribunal for reversing an immigration judge’s decision without identifying an error of law. The Upper Tribunal’s jurisdiction to allow an appeal from the First-tier Tribunal depends on having first identified an error of law in the decision. In this case, the Upper...
Always a stickler for procedure, President Lane has again warned lawyers to not judicially review decisions of the Upper Tribunal refusing permission to appeal on grounds that were not before the Upper Tribunal in the first place. The case is Osefiso and another (PTA decision: effect; ‘Cart’ JR) [2021] UKUT...
When someone applies for indefinite leave to remain in the UK, but is granted limited leave to remain instead, that decision does not attract a right of appeal. So held President Lane of the Upper Tribunal last year in the case of Mujahid [2020] UKUT 85 (IAC), discussed by Colin...
In Bikanu (s.11 TCEA; s.117C NIAA; para. 399D) [2021] UKUT 34 (IAC), the Upper Tribunal has confirmed that paragraph 399D of the Immigration Rules has no relevance to the human rights exceptions to deportation set out in section 117C(4)-(6) of the Nationality, Immigration and Asylum Act 2002. President Lane and...
In the latest round of the legal saga involving Egyptian dissident Yasser Al-Siri, the Court of Appeal has ruled that the Home Office acted unlawfully in only granting him restricted leave to remain after an earlier First-tier Tribunal decision that he is a refugee. There was, the court found, no...
Ndwanyi (Permission to appeal; challenging decision on timeliness) Rwanda [2020] UKUT 378 (IAC) is about how a respondent can challenge a decision that an application for permission to appeal is in time, when in fact it is not in time. In this case the Home Office had lost the appeal...
Lowe v Secretary of State for the Home Department [2021] EWCA Civ 62 is about the role of the Upper Tribunal in deportation appeals. The role of an appellate court when reviewing the findings of fact made by the court below sounds straightforward: it will only intervene if the findings...
The distinction between a “claim” and an “application” was at the heart of the Upper Tribunal’s recent decision in Yerokun (Refusal of claim; Mujahid) Nigeria [2020] UKUT 377 (IAC). Mr Yerokun made an application for permission to remain in the UK based on his human right to private and family...
Pending asylum appeals in Scotland can be affected by changes to country guidance right up to the point when they are sent out to the parties to the case, even if the judge has already signed off on his or decision, according to the Upper Tribunal in NRS and Another...
Earlier this year the Court of Appeal looked at the meaning of an offence causing “serious harm” for the purposes of deportation law. Being convicted of such an offence is one of the ways a person can find themselves facing automatic deportation from the UK. The Upper Tribunal has now...
The government wants to make it much harder to appeal from the tribunal system to the Court of Appeal. The Ministry of Justice is consulting on changes — sorry, “reforms” — where appeals that have already been heard in both the First-tier and Upper Tribunals in England and Wales would...
The High Court has declared that the arrangements for dealing with Upper Tribunal immigration appeals during the coronavirus pandemic are unlawful. Mr Justice Fordham held that the President of the Upper Tribunal’s guidance leans too heavily in favour of deciding cases on the papers rather than having a hearing, a...
In the case of Ashfaq (Balajigari: appeals) [2020] UKUT 226 (IAC), the Upper Tribunal reiterates its previous findings that First-Tier Tribunal hearings provide appellants with the necessary opportunity to rebut findings of dishonesty by the Home Office. If the Home Office process was unfair, this deficiency is remedied where a...
The abandonment of an ongoing appeal seems to be a hot topic for the Upper Tribunal recently, with the case of Ammari (EEA appeals – abandonment) [2020] UKUT 124 (IAC) following on the heels of MSU and Aziz. This time the facts concern an appeal against a refusal by the...
Two important (but completely different) points arise from the Upper Tribunal’s decision in MH (review; slip rule; church witnesses) Iran [2020] UKUT 125 (IAC), one concerning religious conversion cases and the other concerning clerical errors in a written decision. “Expert” evidence on religious conversion The first is quite a significant...
The Upper Tribunal has again considered section 104 of the Nationality, Immigration and Asylum Act 2002. Following on from the case of MSU, which I wrote about here, we have Aziz (NIAA 2002 s 104(4A): abandonment) [2020] UKUT 84 (IAC). The official headnote reads: Where a person brings an appeal...
The case of MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC) represents yet another cutback in the rights of migrant victims of domestic abuse, and in appeal rights more generally. The Upper Tribunal has ruled that the Home Office can simply refuse to engage with a human...
In Birch (Precariousness and mistake; new matters : Jamaica) [2020] UKUT 86 (IAC) the Upper Tribunal looks at the “precarious leave” provisions where a person wrongly believed that they had indefinite leave to remain. It also identifies a loophole – a term not used without hesitation, but it is difficult...
MSU (S.104(4b) notices) Bangladesh [2019] UKUT 412 (IAC) considers section 104 of the Nationality, Immigration and Asylum Act 2002 (as heavily amended), which says that an appeal shall be treated as abandoned if the appellant is granted leave to enter or remain. For many appellants section 104 won’t be a...
Following another paragraph 322(5) case, where an applicant was refused indefinite leave to remain on the basis of dishonesty for disclosing different income to HMRC as opposed to the Home Office, the Upper Tribunal has issued guidance on evidence from accountants purporting to take the blame for those tax discrepancies....
The headnote of Rana (s. 85A; Educational Loans Scheme) Bangladesh [2019] UKUT 396 (IAC) deals with two matters: 1. There was nothing in s 85A of the 2002 Act preventing the Secretary of State from adducing evidence. 2. The requirement to show that a loan was “part of an Academic...
Can an appeal be both finally determined and pending at the same time? This conundrum, akin to Erwin Schrödinger’s famous thought experiment involving a cat in a box with a lethal substance, was tackled by the Upper Tribunal in Niaz (NIAA 2002 s. 104: pending appeal) [2019] UKUT 399 (IAC)....
An asylum appeal by an Eritrean woman, initially rejected by an immigration judge, has been overturned by the Upper Tribunal after it emerged the court interpreter embarked on a political rant to the woman’s barrister at the bus stop outside court afterwards. The case is TS (interpreters) Eritrea [2019] UKUT...
“Be careful what you wish for!”, could be the headline for the case of Ahmed (rule 18; PTA; Family Court materials) Pakistan [2019] UKUT 357 (IAC). Haseeb Ahmed, a Pakistani citizen, was initially refused an application for leave to remain by the Secretary of State. He won his appeal at...
The Upper Tribunal has ruled that human rights appeals may be allowed on the ground that the Secretary of State has unlawfully failed to acknowledge that the appellant is a victim of trafficking. DC (Trafficking, Protection/Human Rights appeals : Albania) [2019] UKUT 351 (IAC) provides little guidance on how tribunals...
Always a worry (but never a surprise) when Court of Appeal judges start off a judgment by saying that the case “has a tortuous procedural history”, is “highly technical” and involves “Byzantine… provisions” of immigration law. Firdaws v Secretary of State for the Home Department [2019] EWCA Civ 1310 is...
In MS (appealable decisions; PTA requirements; anonymity : Belgium) [2019] UKUT 216 (IAC), President Lane and Upper Tribunal Judges Gill and Finch provide important guidance on jurisdiction in EEA deportation and Article 8 appeals and the correct procedure for raising “cross appeals” in the Upper Tribunal. I represented the claimant...
In the recent Court of Appeal case of UT (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1095, Lord Justice Coulson has dealt with some important issues relating to practice and procedure in the tribunal system. UT is a Sri Lankan who came to the...
In immigration law, deadlines are important. They also frequently cause confusion. Bhavsar (late application for PTA: procedure) [2019] UKUT 196 (IAC) is an example of the complications that missing a deadline can cause. In Bhavsar the Upper Tribunal decided that, where an application for permission to appeal is submitted to...
