Upper Tribunal forced to U-turn on “new matters” appeal loophole
9 August 2021
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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
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
In another reminder that leave obtained by deception can be revoked, we have the Upper Tribunal decision in R (Matusha) v Secretary of State for
This, in a sentence, is the conclusion reached by the Upper Tribunal (after 248 paragraphs!) in R (Waseem & Others) v Secretary of State for
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
If you meet the financial requirements of Appendix FM at the date of application but your sponsor then leaves their job, do you still qualify
Juba (s. 94B: access to lawyers) [2021] UKUT 95 (IAC) is the latest judgment dealing with the “deport first appeal later” policy, following on from
Readers may be forgiven for thinking that, where the Family Court finds that a person is at risk of female genital mutilation and makes a
In Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC) the Upper Tribunal has confirmed that previously disregarded overstaying between periods of leave
The Home Office’s compartmentalised approach to applications for permission to stay in the UK can sometimes cause problems. Not everyone’s claim fits neatly into pre-defined categories.
The Upper Tribunal has declared the government’s strict policy on asylum seekers working to be unlawful because it doesn’t mention that exceptions can be made.
In R (Lawal) v Secretary of State for the Home Department (death in detention, SoS’s duties) [2021] UKUT 114 (IAC), the Upper Tribunal has decided
Time is definitely a relative concept, a new Upper Tribunal decision suggests, examining the issue of what constitutes a “month” for the purposes of the
In R (AM) v Secretary of State for the Home Department (legal “limbo”) [2021] UKUT 62 (IAC) the Upper Tribunal considered the extraordinary case of
The Upper Tribunal in R (Waleed Ahmad Khattak) v Secretary of State for the Home Department (“eligible to apply”- LTR – “partner”) [2021] UKUT 63
The Upper Tribunal in QC (verification of documents; Mibanga duty) China [2021] UKUT 33 (IAC) has given useful guidance on how to approach documentary evidence
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
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
Stealing someone’s identity is not a “false representation” for the purposes of a 20-year long residence application, the Upper Tribunal has found. The case is
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
Lawyers are prone to creating “terms of art”, i.e. a phrase which has a specific meaning within a particular branch of law, distinct from its
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 Upper Tribunal has handed down a new country guidance decision on draft evaders from Ukraine, PK and OS (basic rules of human conduct) Ukraine
A non-binary gender identity can form the basis of an asylum claim, the Upper Tribunal has expressly confirmed for the first time. The case is
KAM (Nuba – return) Sudan CG [2020] UKUT 269 (IAC) is the first country guidance decision about the risk to the Nuba people on return
The extremely long-running case of AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC) has finally been allowed outright, subject to any further
DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC) is an important case for numerous reasons. It affirms the supremacy of the Refugee
As the immigration tribunal begins to reopen and cases are listed for what have become known as face-to-face hearings, lawyers, clients, witnesses and supporters, and any other
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 President of the Upper Tribunal, Mr Justice Lane, has ordered the Home Office to pay for and facilitate the return to the UK of
BH (policies/information: SoS’s duties) Iraq [2020] UKUT 189 (IAC) was the case of an Iraqi Kurd, heard by the Upper Tribunal sitting in Edinburgh. The
That is the question answered by the Upper Tribunal in SC (paras A398 – 339D: ‘foreign criminal’: procedure) Albania [2020] UKUT 187 (IAC). The appellant
Reading judgments from the Upper Tribunal on the EEA Regulations often feels like going back in time. A lot of the recent case law has
The Upper Tribunal has found that the Home Office’s policy for waiving the immigration application fee for destitute immigrants — the fees can add up
In AS (Safety of Kabul) Afghanistan CG [2020] UKUT 130 (IAC) the Upper Tribunal has approved its 2018 decision that a returning male in good
The abandonment of an ongoing appeal seems to be a hot topic for the Upper Tribunal recently, with the case of Ammari (EEA appeals –
Tribunals that decide whether someone is entitled to benefits often have to grapple with our nightmarish immigration law. HK v SSWP (PC) [2020] UKUT 73
Last year, in the important case of Balajigari [2019] EWCA Civ 673, the Court of Appeal ruled that, before refusing a settlement application on the
What happens when you enter the UK as a visitor and then apply to remain here so that you can stay with your British family
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
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...
In another reminder that leave obtained by deception can be revoked, we have the Upper Tribunal decision in R (Matusha) v Secretary of State for the Home Department (revocation of ILR policy) [2021] UKUT 175 (IAC). The case confirms that there “must be clear and justifiable evidence of deception and...
This, in a sentence, is the conclusion reached by the Upper Tribunal (after 248 paragraphs!) in R (Waseem & Others) v Secretary of State for the Home Department (long residence policy – interpretation) [2021] UKUT 146 (IAC). Background: overstaying and long residence This is the fifth time within the last...
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...
If you meet the financial requirements of Appendix FM at the date of application but your sponsor then leaves their job, do you still qualify for a spouse visa? Yes, the Upper Tribunal found in Begum (employment income; Rules/Article 8) [2021] UKUT 115 (IAC). Facts of the case Ms Begum,...
Juba (s. 94B: access to lawyers) [2021] UKUT 95 (IAC) is the latest judgment dealing with the “deport first appeal later” policy, following on from the famous Kiarie and Byndloss case. In Juba, the Upper Tribunal has found that it was acceptable for the First-Tier Tribunal to hear an appeal...
Readers may be forgiven for thinking that, where the Family Court finds that a person is at risk of female genital mutilation and makes a Female Genital Mutilation Protection Order (FGMPO), it will feed into the asylum consideration process. Not so. Or, perhaps more accurately, not necessarily so. It all...
In Asif (Paragraph 276B, disregard, previous overstaying) Pakistan [2021] UKUT 96 (IAC) the Upper Tribunal has confirmed that previously disregarded overstaying between periods of leave should be treated as lawful residence for people making 10-year long residence applications. Background Migrants who have spent 10 years in the UK with continuous...
The Home Office’s compartmentalised approach to applications for permission to stay in the UK can sometimes cause problems. Not everyone’s claim fits neatly into pre-defined categories. So what happens when there is overlap between, for instance, an asylum claim and a human rights claim? This is the issue considered by the...
The Upper Tribunal has declared the government’s strict policy on asylum seekers working to be unlawful because it doesn’t mention that exceptions can be made. The case is R (C6) v Secretary of State for the Home Department (asylum seekers’ permission to work) [2021] UKUT 94 (IAC). We originally published...
In R (Lawal) v Secretary of State for the Home Department (death in detention, SoS’s duties) [2021] UKUT 114 (IAC), the Upper Tribunal has decided that the Home Office’s policies on the death of immigration detainees are contrary to its procedural obligations under Article 2 of the European Convention on...
Time is definitely a relative concept, a new Upper Tribunal decision suggests, examining the issue of what constitutes a “month” for the purposes of the Immigration Rules on long residence. The case of Chang (paragraph 276A(a)(v); 18 months?) [2021] UKUT 65 (IAC) involved an application under the ten-year lawful residence...
In R (AM) v Secretary of State for the Home Department (legal “limbo”) [2021] UKUT 62 (IAC) the Upper Tribunal considered the extraordinary case of a Belarusian man who had been in the UK on immigration bail since 2003. The fundamental question for the tribunal: where removal cannot be effected,...
The Upper Tribunal in R (Waleed Ahmad Khattak) v Secretary of State for the Home Department (“eligible to apply”- LTR – “partner”) [2021] UKUT 63 (IAC) has provided helpful clarification on when having a partner can disqualify someone from getting permission to remain in the UK as a parent of...
The Upper Tribunal in QC (verification of documents; Mibanga duty) China [2021] UKUT 33 (IAC) has given useful guidance on how to approach documentary evidence submitted by asylum appellants. The tribunal has also clarified the circumstances in which Home Office must make enquiries to verify an appellant’s documentary evidence before...
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...
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...
Stealing someone’s identity is not a “false representation” for the purposes of a 20-year long residence application, the Upper Tribunal has found. The case is Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376 (IAC). Bangladeshi national Sultan Mahmood, 41, has been living in the UK since at least...
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...
Lawyers are prone to creating “terms of art”, i.e. a phrase which has a specific meaning within a particular branch of law, distinct from its usage in ordinary English. In Patel (historic injustice; NIAA Part 5A) India [2020] UKUT 351 (IAC), the Upper Tribunal defines the phrases “historic injustice” and...
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 Upper Tribunal has handed down a new country guidance decision on draft evaders from Ukraine, PK and OS (basic rules of human conduct) Ukraine CG [2020] UKUT 314 (IAC). The judgment contains important guidance on the relationship between the Refugee Convention and international humanitarian law (IHL), as well as...
A non-binary gender identity can form the basis of an asylum claim, the Upper Tribunal has expressly confirmed for the first time. The case is Mx M (gender identity – HJ (Iran) – terminology) El Salvador [2020] UKUT 313 (IAC). Background to asylum claim Mx M is a citizen of...
KAM (Nuba – return) Sudan CG [2020] UKUT 269 (IAC) is the first country guidance decision about the risk to the Nuba people on return to Sudan. The Upper Tribunal’s main finding is that there is no general risk to Nuba in either their home area or in Greater Khartoum....
The extremely long-running case of AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC) has finally been allowed outright, subject to any further appeal from the Secretary of State. The appellant, an Iraqi doctor employed to work at a notorious torture facility who entered the UK as long...
DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC) is an important case for numerous reasons. It affirms the supremacy of the Refugee Convention 1951 over EU law by reference to the Convention’s object and purpose; it recognises for the first time in UK asylum law that a...
As the immigration tribunal begins to reopen and cases are listed for what have become known as face-to-face hearings, lawyers, clients, witnesses and supporters, and any other court user, will need to know what to expect. Local practices may vary and having attended a handful of such hearings at the...
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...
BH (policies/information: SoS’s duties) Iraq [2020] UKUT 189 (IAC) was the case of an Iraqi Kurd, heard by the Upper Tribunal sitting in Edinburgh. The issue was whether the First-tier Tribunal judge had erred in law because he had not considered the case of AAH (Iraqi Kurds – internal relocation)...
That is the question answered by the Upper Tribunal in SC (paras A398 – 339D: ‘foreign criminal’: procedure) Albania [2020] UKUT 187 (IAC). The appellant was convicted of murder and sentenced to 15 years’ imprisonment. So he is, by any reasonable definition, a criminal. He is a citizen of Albania...
Reading judgments from the Upper Tribunal on the EEA Regulations often feels like going back in time. A lot of the recent case law has clarified points of law in favour of migrants but almost all have come far too late to be useful. The latest case of Chowdhury (Extended...
The Upper Tribunal has found that the Home Office’s policy for waiving the immigration application fee for destitute immigrants — the fees can add up to thousands of pounds for a family — is unlawful and needs to be widened. The judgment is R (Dzineku-Liggison & Ors) v Secretary of...
In AS (Safety of Kabul) Afghanistan CG [2020] UKUT 130 (IAC) the Upper Tribunal has approved its 2018 decision that a returning male in good health can safely and reasonably relocate to Kabul subject to individual factors. That decision had been set aside and remitted to the tribunal by the...
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...
Tribunals that decide whether someone is entitled to benefits often have to grapple with our nightmarish immigration law. HK v SSWP (PC) [2020] UKUT 73 (AAC) is one such case from the Administrative Appeals Chamber. It effectively confirms that a British citizen who returns to the UK with family members...
Last year, in the important case of Balajigari [2019] EWCA Civ 673, the Court of Appeal ruled that, before refusing a settlement application on the basis that the person applying has been dishonest, the Home Office must: Let the applicant know that they are minded to refuse, and allow them...
What happens when you enter the UK as a visitor and then apply to remain here so that you can stay with your British family members? Most immigration lawyers can easily answer this question: your application will be refused. But things can get a bit more complicated. While it is...
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...
