Refusing to return to Zimbabwe: Court of Appeal confirms Home Office cannot compel a non-consenting returnee to lie to the Zimbabwean Embassy

In The Secretary of State for the Home Department v JM (Zimbabwe) [2017] EWCA Civ 1669 (25 October 2017), the Secretary of State appealed against the declarations made by Jay J on 15 July 2016  in JM (Zimbabwe), R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1773 (Admin)  that:

 

  • she could not lawfully require JM under section 35 of the Asylum and iImmigration (Treatment of Claimants) Act 2004 to tell officials at the Zimbabwean Embassy that he agreed voluntarily to return to Zimbabwe; and

  • that he was entitled to substantial damages against the Secretary of State for unlawful immigration detention between 15 July 2014 and 25 May 2016 (save for the period between 21 April and 6 September 2015 when he was serving a sentence of imprisonment).

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ECHR evades question of whether Paragraphs 398 and 399 on deportation are incompatible with Article 8

NDIDI v. THE UNITED KINGDOM – 41215/14 (Judgment : No violation of Article 8 – Right to respect for private and family life (Article 8 – Expulsion) (Conditional) (Nigeria)) [2017] ECHR 781 is a case where the ECHR  had an opportunity to decide upon a  complaint on the compatibility  of  the requirements  of Paragraphs 398 and 399 of the Immigration Rules  with Article  8,  but evaded addressing the issue.

 

The ground  of challenge  that  the Court did  consider and make a decision  upon  resulted in an outcome which makes it  clear that  despite a deportee coming to the UK as a toddler,  residing here for twenty-eight years, having a British child,  with  little or no ties in the country of origin, deportation  can  still be effected without the UK Government breaching Article 8 of the ECHR.

 

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Just like that, High Court Judge says Kirkuk is no longer a contested area: Departure from AA(Iraq)?

So,  has a High Court Judge  really gone ahead and done what the Home Office  has been wanting  them to do these past months, ie indicate  some  sort of or indeed wholesale  “departure ”  from current country guidance  AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC)?

 

Sir Ross Cranston sitting as a Judge of the High Court has stated in Amin, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 2417 (Admin)  that  “Kirkuk is no longer a contested area”.

 

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