Immigration

1 Mitre Court Buildings has a longstanding commitment to the rights of individuals seeking asylum, entry and settlement in the United Kingdom. From initial application through to appellate litigation, our team of dedicated immigration practitioners provides a high quality comprehensive service of advice, drafting and representation to all persons affected by immigration and nationality law.

Members of the immigration team have particular expertise across the following fields of immigration law:

  • Tier 1 - Highly skilled individuals, Investor, Entrepreneur, Post Study Work
  • Tier 2 - Sponsorship Licence, Certificate of Sponsorship, Ministers of Religion, Sports People
  • Tier 3 - Low skilled
  • Tier 4 - Students
  • Tier 5 - Youth Mobility Scheme, Temporary Workers, Charity Workers, Creative Workers
  • Domestic Workers
  • EC residence permit/document
  • EEA Family permit
  • Indefinite leave to remain based on marriage, residency and long residency concessions
  • Naturalisation and Registrations as a British citizen
  • Spouses, children, same sex partners and unmarried partners
  • UK ancestry
  • Visitor - all categories
  • Worker Registration
  • Deportation
  • Detention, bail and habeas corpus
  • Asylum
  • Administrative Review
  • Appeals and Advocacy
  • Assistance against removal proceedings
  • Exceptional/Discretionary leave to remain
  • Human Rights applications

All members of the immigration team regularly appear before the Asylum and Immigration Tribunal, the Administrative Court and the Court of Appeal. Individual practitioners also have experience of litigation before the House of Lords and the European Court of Human Rights.

1mcb members' Recent reported cases

  • MA (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 953 (CA) (failure of Immigration Judge to consider the House of Lords decision in Chikwamba)
  • GOO & Others v Secretary of State for the Home Department [2008] EWCA Civ 747 (CA) (meaning of "satisfactory progress" in rule 60 (v) of the Immigration Rules HC395
  • Qaderi, R (on the application of) v Secretary of State for the Home Department [2008] EWCA 1033 (Admin) (judicial review of unlawful detention)
  • FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13 (vires of rule 19 of 2005 Procedure Rules/whether asylum applicant liable for solicitor error)
  • AL (Serbia) v Secretary of State for the Home Department [2006] EWCA Civ 1619 (compatibility of family amnesty policy with Article 14 ECHR)
  • Cabo Verde v Secretary of State for the Home Department [2004] EWCA Civ 1726 (admissibility of post-decision evidence)
  • KK IH HE (Palestinians – Lebanon – camps) Palestine CG [2004] UKIAT 00293
  • AH (Kurd-PKK-Risks in KDP area) Iraq [2004] UKIAT 00318
  • SA (GBTS Records) Turkey [2004] UKIAT 00229
  • DC (Non-traditional evangelical Group) Georgia [2004] UKIAT 00320
  • FM (IFA - Mixed Marriage - Albanian - Ashkaelian) Kosovo CG [2004] UKIAT 00081
  • MM (Article 3-Article 8-IFA) Algeria CG [2002] UKIAT 01327
  • Raheem v Secretary of State for the Home Department [2002] EWHC 601 (Admin): (extension of time limits for appealing to the AIT)

Team members are able to draw upon the knowledge and experience of non-immigration practitioners in Chambers in cases bridging immigration and other fields of law. These include social security, housing, mental health, crime, employment, education, children, extradition and prisoners' rights.

The immigration team is always happy to be approached in order to provide in-house training.

Case Law Update

European Court of Human Rights

Z.N.S. v Turkey, Application no. 21896/08

On 19 January 2010, the ECtHR found that sending the applicant, an Iranian who had left the Islamic faith and converted to Christianity, back to Iran would be a violation of Article 3 (Prohibition of inhuman or degrading treatment) and Article 5 §§ 1 and 4 (Right to liberty and security) of the ECHR.

Khan v UK - 47486/06 [2010] ECHR 27

The applicant was a Pakistani national subject to a deportation order following a seven year sentence for the involvement in the importation of a class A controlled drug.  On 12 January 2010, The ECtHR held that to deport a person who had been in the United Kingdom since the age of three; had no continuing ties to Pakistan; had strong ties with the UK, namely close relatives; had a partner and child who were British citizens and who had not reoffended following his release from prison in 2006, constituted an interference with his private and family life that was not proportionate to the legitimate aim pursued and thus was not necessary in a democratic society. Accordingly, there had been a breach of Article 8 ECHR.

United Kingdom Supreme Court

DL (DRC) & ZN (Afghanistan) v SSHD [2008] EWCA Civ 1420 overturned in Supreme Court (Judgment to follow)

The principle issue in this case was whether a recognised refugee who later acquired British citizenship could benefit from the refugee family reunion rules, namely Paragraph 352 of the Immigration Rules, with their waiver of the normal maintenance and accommodation rules. The Court of Appeal found that once an individual had become a British Citizen, they were no longer a “refugee” and thus could no longer benefit from paragraph 352. Thus, they could only sponsor their spouse under Paragraph 281 of the Immigration Rules, and their children under Paragraph 297. This ruling was overturned on 15 February 2010 by the Supreme Court who placed more weight on the natural and ordinary meaning of the words of the rules and the underlying humanitarian principle that motivates the refugee family reunion rules.

Ahmed Mahad & Ors v ECO [2009] UKSC 16

Many applicants and sponsors struggle with the maintenance requirements under Paragraphs 281, 297 and 317 of the Immigration Rules. This maintenance requirement does not exist for pre-flight spouses and children of refugees (as per Paragraphs 352A and 352D respectively of the Immigration Rules). On 16 December 2009, the Supreme Court held that third party support is not precluded from consideration by Entry Clearance Officers in relation to the maintenance requirements under Paragraphs 281, 297 and 317 of the Immigration Rules.

BA (Nigeria) v SSHD [2009] UKSC 7

On 26 November 2009, the Supreme Court upheld the decision by the Court of Appeal in BA Nigeria [2009] EWCA Civ 119 (Baroness Hale dissenting) that where an asylum claim is rejected but is not certified as clearly unfounded under section 94 or excluded under section 96 of the Nationality, Immigration and Asylum Act 2002, it should be allowed to proceed to an in-country appeal under sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002, regardless of whether the Secretary of State has accepted it as a fresh claim.

Court of Appeal

KB (Trinidad and Tobago) (Respondent) v SSHD (Appellant) [2010] EWCA Civ 11

The SSHD appealed against a determination of the AIT which allowed on Article 8 ECHR grounds an appeal by KB against a decision to make a deportation order in respect of him. The appellant argued that deportation cases required a different approach from non-criminal removal cases because the prevention of disorder or crime being in play, greater weight must be given to the SSHD’s legitimate interest in making suitable deportation orders for the public good and greater weight must also be given to the criminality which leads to such deportation orders being made.  On 22 January 2010, The Court of Appeal held that the two types of cases generally involve a different legitimate aim and therefore different relevant considerations that have to be factored in, but it did not call for a different approach, although the presence of additional factors and weight to be given to them will affect the balancing exercise. The Tribunal had directed itself correctly by reference to Uner v The Netherlands 46410/99 where the relevant criteria in deportation cases are set out and gave them careful consideration. For the relevant Strasbourg case law and general discussion of it, see  judgment in JO (Uganda) and JT (Ivory Coast) [2010] EWCA Civ 10.

(1) JO (Uganda) and (2) JT (Ivory Coast) v SSHD [2010] EWCA Civ 10

The appellants JO and JT raised issues concerning the application of recent Strasbourg case-law on the compatibility with Article 8 ECHR of decisions to deport, on grounds of criminal offending, foreign nationals who have spent most of their childhood in the host country. JO (Uganda) was a deportation case and engaged the case law directly. JT (Ivory Coast) concerned removal of an illegal entrant who also committed criminal offences. Another issue was whether the application of Article 8 required a different approach in deportation cases as compared to cases of ordinary removal. On 22 January 2010, it was held that although cases of ordinary administrative removal of persons unlawfully present in the country operate within the same legal framework and require the same approach in deportation cases, the material difference was that they generally involve the pursuit of different legitimate aims. In deportation cases it is the prevention of disorder of crime, in ordinary removal cases it is the maintenance of effective immigration control.  The difference in aim is potentially important because the factors in favour of expulsion are capable of carrying greater weight in a deportation case than in a case of ordinary removal.

JA (Ivory Coast) and ES (Tanzania) (Appellant) v SSHD [2009] EWCA Civ 1353

The appellants had entered the United Kingdom lawfully and both were diagnosed with HIV after entry. JA and ES were granted Exceptional Leave to Remain (ELR) on the basis of medical treatment although (immaterially) neither of the appellants were informed that the reason for granting the extension of stay was based on the United Kingdom assuming responsibility for their care. In 2006, there was a change in policy which was a direct result of the House of Lords decision in N v Home Secretary [2005] UKHL 31.  In N it was held that ECHR jurisprudence (D v UK (1997) 24 EHRR 423) made the protection of Article 3 ECHR to foreign nationals facing removal only in extreme and exceptional cases, going beyond those where removal was going to significantly shorten their lives. On 14 December 2009, The Court of Appeal held that the principles in N did not apply in a case where the appellant's had entered the United Kingdom lawfully and were then diagnosed as HIV-positive and consequently given ELR so they could receive medical treatment. It was held that this gave them a toehold on Article 8 ECHR by virtue of their private life. Their appeals therefore should be considered on the basis of whether their removal would be proportionate.

High Court

OM (Algeria) v SSHD [2010] EWHC 65 (Admin)

The claimant (OM), an Algerian national, was subject to a deportation order and challenged his detention under the Immigration Acts.   On 22 January 2010, it was held that the claimant's detention pending deportation had been unlawful from March 2008 to January 2010 for two reasons. Firstly, the SSHD had failed to consider the relevant operational guidance on immigration detention which provided that the mentally ill were amongst persons considered unsuitable for detention and secondly, with regard to the period between 1 March and 12 June 2009, the detention was unlawful because the SSHD failed to acted with reasonable diligence and expedition to effect removal by failing to recognise and declare the claimant’s right of appeal against a refusal to revoke the deportation order in light of the Court of Appeals Judgment in BA Nigeria [2009] EWCA Civ 119.

R (AFP Farahi, Kubrom & Gerayesus) v SSHD [2009] EWHC 3674 (Admin)

Blair J considered section 4 of the Immigration and Asylum Act 1999, concluding that the duty to provide accommodation for failed asylum seekers who find themselves destitute required the Secretary of State to act properly and promptly when determining support claims.

AIT

AZ v Entry Clearance Officer, Islamabad [2010] UKAIT 00001

The appellant, AZ, was refused entry clearance to undertake a course at a college in the United Kingdom leading to a Master’s degree to be awarded by a University based in the United States.  The ground for refusal was that the college was not itself a degree-awarding body, while the appellant was not enrolled as an external student at the University. The issue in the appeal was the correct interpretation of paragraph 57(iv) of the Immigration Rules, which made it a requirement for someone seeking leave to enter as a student that “if he has been accepted to study externally for a degree at a private education institution, he is also registered as an external student with the UK degree awarding body”. Chapter 3, Section 3 of the Immigration Directorates’ Instructions (IDIs’) which dealt with the topic of External Students, stated “It does not apply to those external students at a private education institution in the UK who are studying for a degree awarded by an overseas university”. On 31 December 2009, the AIT held that the definition of paragraph 6 which defines ‘external student’ under the Immigration Rules, is a term of art embracing a smaller class of students than all those studying externally for something. Although the Immigration Directorate Instructions are not themselves a guide to the interpretation of the Rules, a construction of paragraph 57(iv) alternative to that adopted in YS (Paragraph 57(iv): External Student India 2009 UKAIT 15) and of the external student at paragraph 6 is possible and as it agrees with the Home Office view and avoids the unfortunate effect of the construction of YS India, it is to be preferred.

AA v SSHD [2009] UKAIT 00056

On 18 December 2009, the AIT held that all non - Arab Darfuri’s are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan. HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062 is no longer to be followed, save in respect of the guidance summarised at (2) and (6) of the head note to that case. That is, (2) Neither involuntary returnees nor failed asylum seekers nor persons of military age (including draft evaders and deserters) are as such at real risk on return to Khartoum and (6) An appellant will be able to succeed on the basis of medical needs only in extreme and exceptional circumstances.

TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049

The Tribunal in TK considered whether the guidance in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 required modification since the defeat of the LTTE in May 2009. The principal country guidance issue in the case of TK was whether Tamils since the case of LP who faced enforced removal from the United Kingdom, particularly Tamils from the north or east of Sri Lanka, currently face a real risk, on return, of adverse treatment by the Sri Lankan authorities. As in LP and NA v UK, App. no. 25904/07, the primary focus was on the risk of return to Colombo, Sri Lanka.  On 11 December 2009, the AIT held: (1) The risk categories identified in LP and approved by NA remain valid; (2) Events since the military defeat of the LTTE have not aggravated the likely approach of the Sri Lankan authorities to returned failed asylum seekers who are Tamils; (3) The records kept by the Sri Lankan authorities on persons with some history of arrest and detention have become increasingly sophisticated; their greater accuracy is likely to substantially reduce the risk that a person of no real interest to the authorities would be arrested and detained and (4) The practice of immigration judges and others of referring to “objective country evidence” should cease since it obscures the need for the decision maker to subject such evidence to scrutiny to see if it conforms to legal standards for assessing the quality of Country of Origin Information as identified by the ECtHR in NA and as set out in the Refugee Qualification Directive (2004/83/EC), Article 4(1), 4(3)(a), 4(5), 4(5)(a) and 4(5)(c) and the Procedures Directive (2005)85/EC, Article 8(2)(a) and (b) and 8(3).