Cases Flashcards
DA & Ors v The Secretary of State for the Home Department [2020] EWHC 3080 (Admin) (13 November 2020)
Mr Justice Fordham granted interim relief pending full JR hearing next month, re abridged asylum screening interivew process being conducted pursuant to unpublished policy.
Interim relief - SIs must include asking of asking of question 3.1 (why have you come to the UK?) and question 3.3 (please outline your journey to the UK?)
DMs to be made aware of two important points:
(1) that the test for an NRM referral to the competent authority is the one articulated at paragraph 31(1) and 33(1) of R (TDT (Vietnam)) v SSHD [2018] EWCA Civ 1395 [2018] 1 WLR 4922 and (2) that “there is evidence of a particular risk to migrants of being forced into modern slavery whilst in Libya”
Many SIs currently conducted by telephone on truncated basis - 15-18m long. If guidance followed, would double the length.
R (TDT (Vietnam)) v SSHD [2018] EWCA Civ 1395 [2018] 1 WLR 4922
Test for NRM referral to competent authority at 31(1) and 33(1):
- Although it was concerned with the investigation/procedural duty, rather than the protection duty with which we are concerned in the present case, Hoang is an important reminder that, despite their inter-relationship, the obligations under article 4, as elaborated in Rantsev, and the obligations under the Guidance (reflecting the Anti-Trafficking Convention and the Directive) need to be analysed separately: there is no automatic read-across. Burnett LJ also went on to make two more general points about the NRM process which are directly in point in this case:
(1) At para. 36 he drew a distinction between the threshold for the requirement on frontline staff to make a referral to the Competent Authority under the Guidance and the threshold that triggered the investigation duty under article 4. The former he described as “very low … – in reality, any suspicion or any claim”, whereas the latter required “‘credible suspicion’ that a person has been trafficked”[3]. - I start with the obligations arising from the Guidance, which is intended to satisfy the UK’s obligations under the Anti-Trafficking Convention (and also the Directive). These arise at two stages:
(1) There is an obligation under the Guidance on front-line staff who encounter cases where there are indicators of trafficking to refer such cases to the Competent Authority. The threshold for this obligation is very low: see the observation by Burnett LJ in Hoang quoted at para. 31 (1) above. (This obligation does not explicitly arise from the Convention. It might, however, be thought to be necessarily implicit, since the UK has given the responsibility for making the necessary decisions to an authority which is not on the front line and it must accordingly be under an obligation to ensure that all potential cases are brought to the attention of that authority.)
R (Mujahid) v First-tier Tribunal and SSHD [2020] UKUT 85 (IAC)
(1) A person (C) in the United Kingdom who makes a human rights claim is asserting that C (or someone connected with C) has, for whatever reason, a right recognised by the ECHR, which is of such a kind that removing C from, or requiring C to leave [the United Kingdom], would be a violation of that right.
(2) The refusal of a human rights claim under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 involves the Secretary of State taking the stance that she is not obliged by section 6 of the Human Rights Act 1998 to respond to the claim by granting C leave.
(3) Accordingly, the Secretary of State does not decide to refuse a human rights claim when, in response to it, she grants C limited leave by reference to C’s family life with a particular family member, even though C had sought indefinite leave by reference to long residence in the United Kingdom.
Kalsi
R39E 14d grace period - one time. Doesn’t extend 3c leave
Mibanga duty
Consider in round
Sophia naturalisation act 1705
Repealed by BNA 1981
R (on the application of AM) v Secretary of State for the Home Department (legal “limbo”) [2021] UKUT 00062 (IAC)
(1) A person whose removal from the United Kingdom has become an impossibility in the sense identified by the House of Lords in R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39 cannot be subject to immigration bail (formerly temporary admission). Such “Khadir” Impossibility is, however, a high threshold to surmount.
(2) Applying the four-stage analysis of Haddon Cave LJ in RA (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 850, an individual who is subject to immigration bail may still succeed in a human rights challenge, based on ending his state of legal “limbo” in the United Kingdom, where the case is of a truly exceptional nature.
RA (Iraq) v Secretary of State for the Home Department [2019] EWCA Civ 850
Haddon-Cave LJ
Four stage analysis of “limbo” arguments raised in context of art 8
1) distinguish between prospective limbo and actual limbo
(2) Stage 2: Prospects of effecting deportation must be remote
(3) Stage 3: Fact-specific analysis
(4) Stage 4: Balancing exercise
DK and RK (Parliamentary privilege; evidence) India [2021] UKUT 61 (IAC)
All Party Parliamentary Group (“APPG”) on TOEIC not admissible as evidence
1) Although the Upper Tribunal is not bound by formal rules of evidence, it cannot act in such a way as to violate Parliamentary privilege, whether that be to interfere with free speech in Parliament or by reference to the separation of powers doctrine. The Tribunal cannot interfere with or criticise proceedings of the legislature.
(2) Courts and tribunals determine cases by reference to the evidence before them and not by reference to the views of others, expressed in a non-judicial setting, on evidence which is not the same as that before the court or tribunal. Indeed, even if the evidence were the same, the court or tribunal must reach its own views, applying the relevant burden and standard of proof.
MC (Essa principles recast) Portugal[2015] UKUT 520 (IAC) [ratio re Essa principles [29]]
- We do not understand Dumliauskas to have overruled the entirety of the guidance given by the Upper Tribunal in Essa (2013); indeed Maurice Kay LJ expressly approved parts of it. However, in light of the further analysis provided in Dumliauskas it may assist if we seek to summarise cumulatively what these principles are, as now modified by this judgment:-
a. Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
b. It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).
c. There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) ( Essa (2013) at [23]).
d. Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed ( Essa (2013) at [32]-[33]).
e. Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime ( Essa (2013) at [35]), not the mere possibility of rehabilitation.
f. Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) (( Dumliauskas [41]).
g. Such prospects are to be taken into account even if not raised by the offender ( Dumliauskas [52]).
h. Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State ( Dumliauskas [46], [52]-[53] and [59]).
i. Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like ( Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation ( Dumliauskas [55])
j. In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor ( Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognises that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence ( Dumliauskas at [46] and [54]).
MC (Essa principles recast) Portugal[2015] UKUT 520 (IAC) [facts and outcome]
MC arrived in UK aged 20.
Aged 23, sentenced to 15m for wounding.
Aged 27, sentenced to 2y imprisonment and placed on SOR for sexual assault.
Did not accept responsibility for wounding - claimed self-defence, although V stabbed in back. Drug and alcohol problems. Likely to offend again, despite expressions of remorse. Still had family in Portgual (mother), and social and cultural links there. Had daughter in UK.
DO made - appeal failed
SSHD v Van Dunem [2016]
Portuguese drug dealer and criminal enthusiast who had been in the UK since the age of about 4 or 5 years old. He received a term of 4 years imprisonment on 2 counts for possessing Class A drugs (crack cocaine) with intent to supply. He had 118 packets of cocaine in his possession and £2,000 in cash. The Home Office attempted to deport in 2012, but the appeal was allowed. However, he received another conviction after this for an identical offence of Possession with Intent to Supply and received 2 ½ years, the court accepting in mitigation the plea of coercion in meting out a slightly reduced sentence. The second attempt to deport, however, again failed as the appeal was allowed due to the extent of the appellant’s integration in the UK.
SSHD v Tamas [2016]
Hungarian rent-collector was found asleep in his car. He had been in the UK for about 11 years since he was 21. With him in his car was a crack pipe, baseball bat, drug weighing equipment, and a kitchen knife (‘just to make sandwiches’). There was no custodial sentence (the rent was lawfully collected), he received a community order for possession of the baseball bat, and fines for the drugs (possession only). Although the judge had grave suspicions about these items and the picture they painted, suggesting ‘a life on the edge’, there was not enough to amount to serious grounds of public policy or public security.
Roszkowski v SSHD[2016] UKAITUR IA/50828/2014
the appellant in this case was a Polish national who had come to the UK when he was 18 in 2007. He received a sentence of 4 years imprisonment in 2013 (after acquiring permanent residence) for robbery and wounding with intent to cause Grievous Bodily Harm. However, the forward looking assessment of risk of reoffending at the time of this decision of the Upper Tribunal meant that there were not serious grounds of public policy of public security to justify his expulsion.
[violent mugging + kicked man unconscious after argument over taxi]
"”…I have to sentence you for two extremely serious offences, a robbery in which you approached a man in the street in the evening, struck him in the face and then punched him several times and when he was knocked to the floor he was further assaulted, either by being punched or kicked. It matters not for these purposes. You then ran off, taking his wallet with [you]. He was physically hurt particularly a wound to his eye and unsurprisingly his confidence has been affected by what you did to him that night.
About an hour and a half later you got into an argument with a man over a taxi and ended up committing a very serious assault on him, Mr Lennard stop he was attacked after he told you both to fuck off, no doubt because of a question of who was going to use the taxi. He was assaulted. He managed to break free and try and run off but you both pursued him. One of you knocked him to the floor and then he was repeatedly kicked by both of you, kicked to the point where he was unconscious and he ended up with extensive bruising all over his body. He was still in pain three weeks later and unable to go back to work. The only explanation that you two can offer for this appalling behaviour is that you had both been drinking.
….
You; Mr Roszkowski, are 23 years old. You have been in trouble before including for an offence of violence in Poland but your record is not what I would regard as a really serious one…. Both of you it is right to say have never been to prison before. You have both pleaded guilty though it is clear that Mr Roszkowski is deserving of considerably more credit for his early guilty pleas than is Mr Ropelewski.
I have had to balance very carefully the gravity of these offences, the guidelines, as against in both your young ages, your relative lack of criminal experience in your case, Roszkowski…. I regard both of you is equally culpable for the offences but I think in view of your older age and the fact that you have some previous convictions, I think it is appropriate distinguish between you in terms of the sentences that would been passed in principle. However, I think that factor was balanced out by the additional credit that Roszkowski gets for pleading guilty. So in the end you both end up with the same sentence.
Roszkowski, in your case, had you pleaded not guilty to these offences, I would have passed a sentence of three years for the robbery, three years for the section 18, making a total of six years because they have to be consecutive but giving you full credit for your pleas of guilty, I reduce that sentenced to 4 years.””
JA (human rights claim: serious harm) Nigeria [2021] UKUT 97 (IAC)
(1) Where a human rights claim is made, in circumstances where the Secretary of State considers the nature of what is being alleged is such that the claim could also constitute a protection claim, it is appropriate for her to draw this to the attention of the person concerned, pointing out they may wish to make a protection claim. Indeed, so much would appear to be required, in the light of the Secretary of State’s international obligations regarding refugees and those in need of humanitarian protection.
(2) There is no obligation on such a person to make a protection claim. The person concerned may decide to raise an alleged risk of serious harm, potentially falling within Article 3 of the ECHR, solely for the purpose of making an application for leave to remain in the United Kingdom that is centred on the private life aspects of Article 8, whether by reference to paragraph 276ADE(1)(vi) or outside the immigration rules. If so, the “serious harm” element of the claim falls to be considered in that context.
(3) This is not to say, however, that the failure of a person to make a protection claim, when the possibility of doing so is drawn to their attention by the Secretary of State, will never be relevant to the assessment by her and, on appeal, by the First-tier Tribunal of the “serious harm” element of a purely human rights appeal. Depending on the circumstances, the assessment may well be informed by a person’s refusal to subject themselves to the procedures that are inherent in the consideration of a claim to refugee or humanitarian protection status. Such a person may have to accept that the Secretary of State and the Tribunal are entitled to approach this element of the claim with some scepticism, particularly if it is advanced only late in the day. That is so, whether or not the element constitutes a “new matter” for the purposes of section 85(5) of the Nationality, Immigration and Asylum Act 2002.
(4) On appeal against the refusal of a human rights claim, a person who has not made a protection claim will not be able to rely on the grounds set out in section 84(1) of the 2002 Act, but only on the ground specified in section 84(2).
