After what felt like something of a hiatus early in the year, the tribunal has been churning out new reported cases in recent months as if there was no tomorrow. As far as I know no-one has suggested scrapping the Immigration and Asylum Chamber YET, although it is surely only a matter of time! September’s batch follows below, with the official headnotes inset and in italics and any commentary by Free Movement in normal text before the headnote.

With some of these, one wonders what cases aren’t reported these days. However, highlights include two from El Presidente, one in which Treasury hotshot James Eadie QC, normally reserved for serious terrorism cases, appears, and some useful cases on Other Family Members and the general grounds for refusal.

Ihemedu (OFMs – meaning) Nigeria [2011] UKUT 340 (IAC) (17 August 2011)

This is the first of two determinations on Other Family Members, or ‘OFMs’. The second case is the more interesting as is it wider in scope. It also takes a more notably permissive approach to the Directive, more consistent with the idea of promoting free movement. This tone of this first decision is markedly more restrictive.

i) Article 3(2) of Directive 2004/38/EC (“Citizens Directive”) treats other family members (“OFMs”) as a residual category and, in contrast to close family members (“CFMs”) within the meaning of Article 2(2), does not limit it to particular types of relatives (plus spouses or civil partners). There is nothing in the Immigration (European Economic Area) Regulations 2006 akin to the Immigration Appeals (Family Visitor) Regulations 2003 which in our domestic immigration law seeks to specify exhaustively the categories of family relationship that can qualify a person. Only relatives are covered, albeit with focus on those relatives with whom the Union citizen has significant factual ties.

ii) An important  consideration in the context of an OFM/extended family member case is that if a claimant had come to the UK without applying for a family permit from abroad (for which provision is made in reg 12 of the Immigration (European Economic Area) Regulations 2006), this will mean that the UK authorities have been prevented from conducting the extensive examination of the individual’s personal circumstances envisaged by reg 12(3) and in the course of such an examination check the documentation submitted. If an applicant chooses not to apply from abroad for a family permit under reg 12 of the 2006 Regulations, thereby denying the UK authorities an opportunity to check documentation in the country concerned, he cannot expect any relaxation in the burden of proof that applies to him when seeking to establish an EEA right. 

iii) Regulation 17(4) makes the issue of a residence card to an OFM/extended family member a matter of discretion. Where the Secretary of State has not yet exercised that discretion the most an Immigration Judge is entitled to do is to allow the appeal as being not in accordance with the law leaving the matter of whether to exercise this discretion in the appellant’s favour or not to  the Secretary of State.

Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) (22 August 2011)

This case arose from the refusal of Immigration Judge Kopieczek to follow an earlier determination by the President regarding OFMs. Unsurprisingly, IJ Kopieczek’s decision was overturned on appeal. Slightly more surprisingly, the President himself did the overturning.

Note that number (viii) from the headnote below appears directly contradictory to the case above by suggesting that IJs should make findings on whether a residence card should be issued as opposed to leaving that to the UK Border Agency. However, I can find no basis for (viii) in the determination itself, so this may be an example of inaccurate head noting. Let me know what you think in the comments.

Until the Court of Justice comes back with answers to the outstanding questions on OFMs, the approach in this case is the one to be followed in OFM cases. The determination effectively overturns KG (Sri Lanka) and Bigia in the Court of Appeal on the issue of whether in a dependency case the dependency must have occurred in an EEA state, finding that it does not. However, in a same household case, the household concerned must have been in an EEA state.

i.                 A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.

ii.               In either case the dependency or membership of the household must be on a person who is an EEA national at the material time. For this reason it is essential that tribunal judges establish when the sponsor acquired EEA nationality.

iii.             By contrast with Article 2(2) family members, an OFM must show qualification as such before arrival in the United Kingdom and the application to join the EEA national who is resident here.

iv.             Membership of a household has the meaning set out in KG (Sri Lanka) [2008] EWCA Civ 13 and Bigia & Ors [2009] EWCA Civ 79; that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.

v.               By contrast the dependency on an EEA national can be dependency as a result of the material remittances sent by the EEA national to the family member, without the pair of them having lived in the same country at that time before making those remittances.

vi.             The country from which the OFM has come can be either the country from which he or she has come to the United Kingdom or his or her country of origin.

vii.           Notwithstanding the preliminary reference to the Court of Justice made by the Upper Tribunal in MR & Ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) tribunal judges can proceed to determine OFM appeals in accordance with the guidance given by the Upper Tribunal in this and related cases, making sure to make findings of fact based on a rigorous examination of the evidence.

viii.         Where relevant, findings need also to be made on whether it is appropriate to issue a residence card in accordance with the discretion afforded by regulation 17(4) of the Immigration (European Economic Area) Regulations 2006.

ix.             In deciding whether a person falls within the material scope of regulation 8 of the 2006 Regulations, policy considerations relating to such matters as the appellant’s immigration history, the impact of an adverse decision on the exercise by the EEA national of his or her Treaty rights, etc are irrelevant. Such policy considerations are relevant, however, to the exercise of regulation 17(4) discretion.

Fernandez (Dissidents and defectors) Cuba CG [2011] UKUT 343 (IAC) (26 August 2011)

It is good to see an old and obviously redundant CG case being put down.

(i)  The human rights situation in Cuba is dismal and the government continues to deny its citizens basic civil and political rights.

(ii) The authorities are intolerant of any form of unauthorised opposition to its political agenda and the law is used to criminalise dissent.

(iii) The term “dissident” in the context of Cuba does not refer to a homogenous group of people but can refer to anyone engaging in activities regarded by the authorities as contrary to its political agenda.

(iv) The “dangerousness” law is used as a political tool against those seen as dissidents or otherwise opposing the regime’s political agenda

(v) Those regarded by the Cuban authorities as opponents, dissidents or defectors can be at risk of treatment of sufficient severity to amount to persecution.  Whether a particular individual will be at such risk depends upon his background and profile but in general terms an active political opponent who has come to the attention of the authorities or someone who has been openly disloyal to the regime is likely to be at such risk. 

(vi) This guidance replaces that given in OM (Cuba returning dissident) Cuba [2004] UKAIT 00120 which is no longer to be regarded as providing country guidance.

Azimi-Rad (Art.1F(a) – complicity – Arts 7 and 25 ICC Statute) Iran [2011] UKUT 339 (IAC) (01 September 2011)

1. In establishing for the purposes of Art 1F(a) of the Refugee Convention that an individual was complicit under Art 25(3)(d) of the Rome Statute of the International Criminal Court (“ICC Statute”) in crimes against humanity perpetrated by others in an organisation, it was necessary to consider all the circumstances of the appellant’s involvement in that organisation in order to determine whether what the appellant did made a significant contribution to the organisation’s ability to carry out crimes against humanity: R (on the application of JS) (Sri Lanka) v SSHD [2010] UKSC 15. (See also Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D [2011] Imm AR 190).

2. However, in establishing this (wider) form of complicity liability under international criminal law it was not necessary to establish that the appellant’s acts formed ‘part of” a crime against humanity committed by others in the sense that the appellant’s acts were of such a character as, in themselves, to fall within one or more of the categories of acts which if committed as part of a widespread or systematic attack directed against any civilian population were capable of amounting to a crime against humanity under Art 7 of the ICC Statute.

Ahmed (general grounds of refusal – material non disclosure) Pakistan [2011] UKUT 351 (IAC) (09 September 2011)

This is a useful and welcome decision that provides clarification on a point that often arises in paragraph 320 cases, particularly around failure to disclose criminal convictions or previous immigration history.

In order to have made false representations or submitted false documents so as to attract a mandatory refusal under Part 9 of the Immigration Rules, an applicant must have deliberately practised ‘Deception’, as defined at para 6. Failing to disclose a material fact is also classed as ‘Deception’.  It follows that such failure also requires dishonesty on the part of the applicant, or by someone acting on his behalf.

Khaliq (entry clearance; para 321) Pakistan [2011] UKUT 350 (IAC) (09 September 2011)

A person who has entry clearance that, under the provisions of the Immigration (Leave to Enter and Remain) Order 2000, takes effect as leave to enter, does not on arrival in the United Kingdom “seek” leave to enter, and paragraph 321 therefore does not apply to him.  Paragraph 321A does, but only if the circumstances set out in that paragraph can be shown to exist in his case.

Guzman-Barrios (domestic violence-DLR- Article 14 ECHR) Colombia [2011] UKUT 352 (IAC) (09 September 2011)

This is a weird one.

Someone who is married to a person settled in the United Kingdom but who only has discretionary leave to remain cannot, if his marriage breaks down because of domestic violence, claim an entitlement to indefinite leave by analogy with paragraph 289A of the Immigration Rules.  There is no unlawful discrimination in terms of ‘other status’ under Article 14 of the ECHR.  That the rule only benefits those given leave to enter or remain under Part 8 of HC 395 does not itself engage the Convention, although the circumstances of the marital breakdown may be relevant to the assessment of any Article 8 claim that removal would be disproportionate.

Butt (specified documents; – judicial verification) Pakistan [2011] UKUT 353 (IAC) (13 September 2011)

An innovative argument is cruelly rejected!

Paragraph 245AA(b) of HC 395 does not require an adjournment for verification checks by the Secretary of State where what are said to be “specified documents”, called into question, are produced at the hearing or served so soon before the hearing as to provide no opportunity for the Secretary of State to take the reasonable steps to verify those documents contemplated by that paragraph.

EA (Sunni/Shi’a mixed marriages) Iraq CG [2011] UKUT 342 (IAC) (27 September 2011)

How this ended up as CG eludes me as, at least from the headnote, it seems pretty obvious.

(1) In general there is not a real risk of persecution or other significant harm to parties to a Sunni/Shi’a marriage in Iraq.

(2) It may, however, be shown that there are enhanced risks, crossing the relevant risk thresholds, in rural and tribal areas, and in areas where though a Sunni man may marry a Shi’a woman without risk, the converse may not pertain.

(3) Even if an appellant is able to demonstrate risk in his/her home area, in general it will be feasible for relocation to be effected, either to an area in a city such a Baghdad, where mixed Sunni and Shi’a families live together, or to the Kurdistan region.

Pun and others (Gurkhas – policy- article 8) Nepal [2011] UKUT 377 (IAC) (27 September 2011)

This is the case in which James Eadie QC was instructed by the Secretary of State. It was obviously considered essential to win as he is reserved for only the most important cases. It seems to have been worth it, as the tribunal basically adopt his submissions.

(i) The policy in Chapter 29(4) of the DSP (subsequently replaced by the provisions of SET 12) relating to applications for settlement by adult dependants of former members of HM Forces sets out a true discretion to be exercised outside the Rules by the respondent and cannot reasonably be interpreted as setting out a number of different requirements where the fulfilment of one or more leads to an entitlement to a grant of entry clearance.

(ii) The policy creates a broad discretion to be exercised by the decision taker in the light of the individual facts and circumstances of each case taking into account but not limited to the identified bullet points.  These serve to identify some factors which may be relevant whilst not excluding other factors which may depending on the facts of the case be equally relevant. 

(iii) As a matter of principle an appellant is entitled to a decision on any appeal before the Tribunal and an article 8 appeal should not be adjourned or sent back to be re-made by the respondent where this course is resisted by the appellant unless there is a compelling reason for doing so.  Where as in the present cases a human rights appeal is set in the context of the amendments to the Rules to deal with a particular historical issue and with specific published policies dealing with the approach to be taken in the case of adult dependants not falling within the Rules, a decision under article 8 will inevitably be informed by the provisions of the Rules and the policy. 

(iv) If the Tribunal does determine an article 8 appeal when a decision under the policy is or would otherwise be sent back to the respondent, that appeal cannot be treated as a way for the Tribunal to exercise a discretion which under the policy is a matter for the respondent but must be determined in accordance with the guidelines set out by the House of Lords and the Supreme Court.

Ara (successful appeal – no entry clearance) Bangladesh [2011] UKUT 376 (IAC) (27 September 2011)

This is an interesting one. The Appellant had previously used deception but made a new application for entry clearance. The ECO alleged previous deception but failed to produce any evidence and was unrepresented at the appeal hearing. The appeal was, of course, allowed. However, the ECO refused to act on the allowed appeal and issued another refusal. This was appealed and generated the instant appeal. The tribunal concludes that it was permissible for the ECO to act as he did. Unfortunately, this determination has the effect of permitting any ECO to fail to send in evidence to the tribunal and then to simply refuse again next time if the appeal is allowed. This cannot possibly be right and the determination is therefore to be regretted. There HAS to be a consequence to the failure of an ECO to produce evidence – the tribunal has been toothless for long enough, surely.

An appellant who succeeds in an appeal against the refusal of entry clearance is not entitled automatically to entry clearance.

An entry clearance officer considering whether to grant entry clearance following a successful appeal must decide “in the light of the circumstances existing at the time of the decision” if the appellant satisfies the requirements of the rules (paragraph 27 of HC 395). The entry clearance officer must make a decision on all the relevant evidence including evidence that could have been but was not put before the Tribunal at the appeal. An Immigration Judge does not err by considering such evidence and dismissing the appeal.

Ajakaiye (visitor appeals – right of appeal) Nigeria [2011] UKUT 375 (IAC) (27 September 2011)

Unfortunately the tribunal has its regulations mixed up on this otherwise sensible decision. In fact the section of the 2002 Act that prevents non-family visit visa refusals from being appealed is s.90, as should be apparent from the Immigration Appeals (Family Visitor) Regulations 2003 that are correctly cited by the tribunal. However, by a stunning piece of draughtsmanship, s.90 appears to have been scrapped and does not appear in the current edition of Phelan. The s.88A quoted by the tribunal is still in force, technically, but regulations were never laid. There is also, simultaneously, another s.88A also in force at the same time (how the Home Office managed to contrive this is beyond me) which scraps s.90 and s.91 but only in Points Based System applications. Sections 90 and 91 remain in force for all other types of application. Otherwise there would be a right of appeal against refusals of non-family visit visas.

At least that’s what I think, anyway.

(1) In family visitor appeals, the question whether there is a right of appeal depends on whether the application “was made” for the purpose of visiting a relative to which the applicant is related in one of the ways described at paragraph 2 of the Immigration Appeals (Family Visitor) Regulations 2003. 

(2) Ascertaining the purpose of the visit is primarily achieved by examining what the applicant said in the visit visa application form, although, as presently drafted, the forms may not provide sufficient opportunity to identify all relevant matters.

(3) In the event of ambiguity as to who is to be visited and whether they are a qualifying relative, regard may be had to extraneous evidence. 

(4) Where a judge has embarked on the hearing of an appeal without objection and reaches the conclusion that the appellant was not seeking to visit a qualified person, there is a right of appeal to the Upper Tribunal. The right of appeal does not depend on the Immigration Judge’s findings of fact.

(5) Although the Immigration Appeals (Family Visitor) Regulations 2003 distinguish between two classes of in-laws (see SB (family visit appeal: brother-in-law?) Pakistan [2008] UKAIT 00053), an intention to visit a nephew or niece is within its scope.

Mohamoud (Paras 352D and 309A – de facto adoption) Ethiopia [2011] UKUT 378 (IAC) (27 September 2011)

For the purposes of paragraph 352D of the Immigration Rules, an adopted child can include a de facto adoption under paragraph 309A but a parent who is a refugee will normally not be able to meet the residence and care requirements of paragraph 309A.