Category: UTIAC

Guidance, UTIAC

Judicial Review: Guidance on Discretion and Exceptional Circumstances

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

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.

 

Bangladesh, EU Law, Guidance, UTIAC

Guidance on Allegations of Judicial Bias

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

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

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

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 8, DFAL, Guidance, UKSC, UTIAC

Guidance on DFAL and Correct Forum

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

In the case of R (Watson) v Secretary of State for the Home Department & Anor (Extant appeal: section 94B challenge: forum) [2018] UKUT 165 (IAC), the UTIAC imparted the following guidance:

(1)   Where an appellant’s appeal has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 and the appellant has been removed from the United Kingdom pursuant to that certificate, the First-tier Tribunal is the forum for determining whether, in all the circumstances, the appeal can lawfully be decided, without the appellant being physically present in the United Kingdom. The First-tier Tribunal is under a continuing duty to monitor the position, to ensure that the right to a fair hearing is not abrogated. In doing so, the First-tier Tribunal can be expected to apply the step-by-step approach identified in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC).

(2)   If the First-tier Tribunal stays the appeal proceedings because it concludes that they cannot progress save in a manner which breaches the procedural rights safeguarded by Article 8, then it is anticipated the Secretary of State will promptly take the necessary action to rectify this position. If this does not happen, then an application for judicial review can be made to the Upper Tribunal to challenge the Secretary of State’s decision and compel him to facilitate the appellant’s return.

(3)   If the First-tier Tribunal decides that the appeal process is Article 8 compliant, the Tribunal’s substantive decision will be susceptible to challenge, on appeal to the Upper Tribunal, on the ground that the Tribunal was wrong so to conclude.

Adoption, Guidance, Jamaica, UTIAC

Guidance on Overseas Adoptions and Certificates of Eligibility

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

In TY ( Overseas Adoptions – Certificates of Eligibility) Jamaica [2018] UKUT 197 (IAC), the UTIAC gave the following guidance:

In cases where an adoption is not recognised by the law of the United Kingdom :

(i)                  The Tribunal should be aware of the underlying legal process in each part of the Kingdom by which a Certificate of Eligibility is issued.

(ii)                The Certificate of Eligibility is the definitive outcome of the fact-finding and assessment that underlies it.

(iii)              Whilst there is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules in order for a minor to be admitted for the purposes of adoption, they ought properly to be seen as a unified whole where each plays its part in determining whether entry clearance should be granted.

(iv)              The Certificate of Eligibility is capable of informing the decision to be made on the application for entry clearance. In particular, the Immigration and Asylum Chamber should be slow to depart from the underlying circumstances (insofar as they can reasonably be ascertained) which are the subject-matter of the Certificate of Eligibility.