Guidance, UTIAC

Judicial Review: Guidance on Discretion and Exceptional Circumstances

In R Prathipati) v Secretary of State for the Home Department (discretion – exceptional circumstances) [2018] UKUT 427 (IAC), Mr Justice Kerr imparted the following guidance:

1)The Secretary of State has a discretion to allow an application for leave to remain to succeed even if made outside the 28 day period of grace referred to in paragraph 319C(j) of the Immigration Rules, provided that supporting evidence of exceptional circumstances is produced at the same time as making the application. The temporal requirement must, to avoid unfairness and absurdity, be read as subject to the caveat that it cannot rigidly be applied if ignorance of what constitutes the exceptional circumstances makes it impossible to comply with that requirement.

2)The efficacy of administrative review as an alternative remedy to judicial review depends on the ability of reviewers to detect and reverse decisions flawed by error at the initial stage. The more narrowly the remedy is circumscribed, the greater the risk that it may fail to do so.


CJEU, EU Law, Returns Directive, Schengen Border Code

AG Szpunar on the Returns Directive

In Case C-444/17 Préfet des Pyrénées-Orientales v Abdelaziz Arib, Procureur de la République, Procureur général près la cour d’appel de Montpellier, Advocate General Szpunar proposes that the Court should rule that the ‘Returns Directive’ must be applied to third-country national where internal border controls have been reinstated. Mr Abdelaziz Arib, of Moroccan nationality, was checked, in French territory near to the land border between France and Spain, aboard a coach coming from Morocco. He had previously been subject to an expulsion order removing him from French territory. Suspected of having entered French territory illegally, he was arrested and held in policy custody and the préfet des Pyrénées- Orientales (Prefect of the Département of Pyrénées-Orientales, France; ‘the préfet’) adopted an order requiring him to leave French territory and ordered his administrative detention. His detention in police custody was rescinded by the tribunal de grande instance de Montpellier (Regional Court, Montpellier, France) and, as a consequence, the subsequent proceedings, including the administrative detention, since it was not possible to place him in custody. The cour d’appel deMontpellier (Court of Appeal, Montpellier, France) confirmed the decision and the préfet appealed to the Cour de cassation (Court of Cassation, France).

The principle of freedom of movement within the Schengen Area entails an absence of border control of persons crossing the internal borders between the Member States. The check at issue was made in June 2016 during the period of temporary reinstatement in France of internal border controls. Since France had declared a state of emergency, checks at the internal borders, in accordance with the provisions of the Schengen Border Code or Regulation (EU) 2016/399 had been reinstated in the fact of a serious threat to public policy or internal security.

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Bangladesh, EU Law, Guidance, UTIAC

Guidance on Allegations of Judicial Bias

In PA (protection claim: respondent’s enquiries; bias) Bangladesh [2018] UKUT 337 (IAC), a presidential tribunal has held that:

  1. Respondent’s inquiries in country of origin of applicant for international protection

(1) There is no general legal requirement on the Secretary of State to obtain the consent of an applicant for international protection before making an inquiry about the applicant in the applicant’s country of origin. The decision in VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 368 (IAC) is not to be read as holding to the contrary.

(2) The United Kingdom’s actual legal obligations in this area are contained in Article 22 of the Procedures Directive (2005/85/EC), as given effect in paragraph 339IA of the Immigration Rules. So far as obtaining information is concerned, these provisions prohibit making such an inquiry in a manner that would result in alleged actors of persecution being directly informed of the fact that that an application for international protection has been made, which would jeopardise the applicant’s (or his family’s) physical integrity, liberty or security.

(3) If information is obtained in a way that has such an effect, the fact that the applicant may have given consent will not affect the fact that there is a breach of Article 22.

  1. Allegations of judicial bias

(1) An allegation of bias against a judge is a serious matter and the appellate court or tribunal will expect all proper steps to be taken by the person making it, in the light of a response from the judge.

(2) The views of an appellant who cannot speak English and who has had no prior experience of an appeal hearing are unlikely to be of assistance, insofar as they concern verbal exchanges between the judge and representatives at the hearing of the appeal. In particular, the fact that the judge had more questions for the appellant’s counsel than for the respondent’s presenting officer has no bearing on whether the judge was biased against the appellant. Continue reading “Guidance on Allegations of Judicial Bias”

Guidance, UTIAC

Guidance on Litigation Privilege

In R (on the application of the Secretary of State for the Home Department) v First-tier Tribunal (Immigration and Asylum Chamber) (Litigation Privilege; First-tier Tribunal) [2018] UKUT 243 (IAC) an presidential panel fo the UTIAC gave the following guidance:

(1)                Whether or not to entertain an application for judicial review is a matter that falls within the Upper Tribunal’s discretion, applying well-known principles that apply also in the High Court. Where there is an alternative remedy it would only be in the rarest of cases that the Upper Tribunal would consider exercising its jurisdiction to grant permission to bring judicial review proceedings.

(2)                There is a high threshold to be overcome before the Upper Tribunal will entertain an application for judicial review in challenging an interlocutory decision of the FtT. Once the very high threshold is met it is not necessary for each of the grounds to reach that threshold.

(3)                Litigation privilege attaches to communications between a client and/or his lawyer and third parties for the purpose of litigation. It entitles the privileged party not to disclose information even if it is relevant to the issues to be determined in a court or tribunal. Proceedings in the First-tier Tribunal are sufficiently adversarial in nature to give rise to litigation privilege. The fact that human rights issues are in play does not mean litigation privilege has to be balanced against those issues

Article 21 TFEU, Citizens Directive, CJEU, EU Law

CJEU: The Judgment in Banger Case C-89/17

In Secretary of State for the Home Department v Banger (Citizenship of the European Union – Right of Union citizens to move and reside freely within the territory of the European Union – Judgment) [2018] EUECJ C-89/17, the CJEU has held as follows.

Where an EU citizen returns to his Member State of origin, that Member State must facilitate the entry and residence of the non-EU partner with whom that citizen has a durable relationship. A decision to refuse such a residence authorisation to the non-EU partner must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons

Ms Rozanne Banger, a South African national, is the partner of Mr Philip Rado, a British national. Ms Banger and Mr Rado lived together in South Africa between 2008 and 2010 before moving to the Netherlands. Ms Banger was granted a residence card by the Netherlands authorities in her capacity as an extended family member of an EU citizen, in accordance with the EU directive on the freedom of movement of EU citizens and their family members (‘the directive’).

The directive requires Member States to facilitate the entry and residence of the partner with whom a EU citizen has a durable relationship, where that EU citizen has moved to a Member State other than that of which he is a national. In relation to an application from such a partner, Member States are required to undertake an extensive examination of his personal circumstances and to justify any refusal of entry or residence.
Continue reading “CJEU: The Judgment in Banger Case C-89/17”