Category Archives: Removals

Children adequate best interests’ assessment: Whether the Secretary of State has a Section 55(1) proactive duty of enquiry

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It is all about context,  said the Upper Tribunal in Ahmed and Others (deprivation of citizenship) [2017] UKUT 00118 (IAC), in declining to find in that appeal that the Secretary  of State owed a Section 55(1)  proactive duty of enquiry in relation to the  consideration of the  welfare and best interests of the children.

 

The conjoined appeals in Ahmed had their origins in a series of decisions made by the Secretary of State proposing to deprive the Appellants of their British citizenship under section 40(2) of the British Nationality Act 1981. Within the  course  of the appeals however,  the Upper Tribunal had to consider the  content of the duty owed by the Secretary of State under section 55(1) of the 2009 Act in the Appellant’s cases.

 

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Court of Appeal approves country guidance CM( Zimbabwe) and advocates less restrictive approach to Article 3 claims

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In The Secretary of State for the Home Department v MM (Zimbabwe) [2017] EWCA Civ 797 (22 June 2017),  the Court of Appeal very recently  sought to advocate a less restrictive approach  to an Article 3 mental health condition claim from a Zimbabwean national,  yet  within its judgment,  glaringly  fails to  refer to the ECHR case of Paposhvili, from which that approach can arguably be said  to originate from.

 

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Paposhvili and HIV/AIDS: First Tier Tribunal Judge allows Article 3 medical condition appeal by a Malawian claimant

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In PAPOSHVILI v. BELGIUM – 41738/10 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)) [2016] ECHR 1113, the ECHR stated,  “The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom”.

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Deport First, Appeal later provisions unlawful: Supreme Court brings to a screeching halt the UK Government’s sustained erosion of appeal rights

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The outcome in Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 42 (14 June 2017)  in the Supreme Court is the epitome of immigration lawyer nirvana. When making deportation orders in Kiarie and Byndloss, the Secretary of State issued Section 94B certificates, the effect of which was that they could bring their appeals only after they had been deported to Kenya and Jamaica. The issue in the two appeals before the Supreme Court was whether the certificates were lawful. Did the certificates breach the rights of the appellants under Article 8 of the ECHR?  Unlike the Court of Appeal, the Supreme Court has most sensibly decided that the Section 94B certification procedure is unlawful and unfair.

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Inbuilt obstacles and mechanisms that the Home Office use to defeat, deny and deter immigration claims

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On the surface, all that is required to enable preparation and submission of a successful application to the Home Office is self-evident.  After all, the application forms themselves are free and readily accessible (postal or on-line, as relevant). These applications forms indicate what documents are required to support an application. Additionally, voluminous Home Office guidance policy is transparently available for leisurely perusal in advance of submitting an application. With all this in sight, in some categories, it seems there  isn’t even any need to consult a legal practitioner prior to submission of an application.

 

There are however in-built laws, policies and procedures in the assessment process of immigration applications, such that a seemingly straightforward application may end up falling foul of these provisions.

 

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