Update: immigration

Qualification directive

Some individuals, in particular minor asylum applicants, are granted a period of discretionary leave to remain in the UK. If that leave is for one year or more, the refusal of asylum can be appealed in accordance with section 83 of the Nationality, Immigration and Asylum Act 2002.

FA (Iraq) v Secretary of State [2010] EWCA Civ 696 held that in addition to an appeal on asylum grounds, section 83 should be read to include individuals who had sought but been refused humanitarian protection even though the Act excluded such appeals. The qualification directive (2004/83) is directly applicable as a matter of Community law.

Analysis in QD and AH (Iraq) v Secretary of State [2009] EWCA Civ 620 of Elgafaji [2009] (C-465/07) renders it 'tolerably clear that article 15 is wider than article 2 and 3 of the Human Rights Convention and to that extent is itself directly applicable in all EU countries including the United Kingdom'.

Longmore LJ drew attention to the principle of equivalence at issue and concluded: 'The humanitarian protection afforded by the [Immigration] Rules is essentially the same protection as afforded by the subsidiary protection afforded by the qualification directive.

'It is true that in one respect the rules are wider since they include the concept of an unlawful killing as well as a court sentence of death but that is beside the point. The similar claim for the purpose of the principle of equivalence is not the self-same claim to subsidiary/humanitarian protection afforded by the UK rules but the claim for that other species of international protection available under the Refugee Convention.

'If a right of appeal is given in respect of that, so should a right of appeal be given in respect of what the directive calls subsidiary, and the Immigration Rules call humanitarian protection.'

In that context the definition of 'asylum claim' will have to have the words 'and/or the qualification directive 2004/83/EC' added at the end of the definition.

Persecution and refugee criteria

Persecution because of membership of a particular social group was considered in HJ (Iran) v SSHD; HT (Cameroon) v SSHD [2010] UKSC 31. Although concerned specifically with gay and lesbian asylum seekers, the court lay down several stages to be considered in determining whether an individual met the criteria for recognition as a refugee:

(a) Is the applicant gay? Unless this can be established they will not be entitled to be treated as a member of the particular social group.

(b) What will their situation be on return? This will include consideration of how the applicant will conduct his or herself if returned and how others will react to what they do. The applicant must not be expected to conceal aspects of their sexual orientation, however unreasonable their refusal to resort to concealment may be.

(c) The question of what is reasonably tolerable has no part in this stage but the fact that an applicant cannot do everything in their country of nationality that they can do in the UK is not the test; the purpose of the convention is not to cause the reformation of human rights in the country of origin. The focus should be on what will happen in the country of origin.

(d) If it is found that an applicant will conceal aspects of his sexual orientation if returned the next question is why they will do so. If in response to social pressures or for cultural or religious reasons of their own choosing and not because of a fear of persecution, their claim for asylum must be rejected. But if the reason why they will resort to concealment is that they genuinely fear that otherwise they will be persecuted, it will be necessary to consider whether that fear is well founded.

(e) The final and conclusive question is: do they have a well-founded fear that they will be persecuted? If they have, the causative condition that Lord Bingham referred to in Januzi v Secretary of State for the Home Department [2006] UKHL 5 will have been established.

Risk of return

HH, AM, J & MA (Somalia) [2010] EWCA Civ 426 considered the risks in Somalia as of April 2010 but commented that since the tribunal decision conditions in Somalia have deteriorated to such an extent that most returnees would be at risk of article 3 mistreatment.

The judgment also considered whether the tribunal is required to consider the appellant's safety at the point of return and on any journey they must make from there to reach safety, or whether that issue only arises when removal directions are given. The court held that in the absence of removal directions or any other evidence of the method and route of return, the tribunal must assume that return would be effected in conformity with the UK's international obligations; the tribunal is required by law to consider and determine any challenge to the safety of the route or method of return proposed either directly or by implication on the basis of such information as is before it. It may not matter that specific technical details had not been specified or were unknown; the tribunal could not deal with a relevant issue because they had insufficient information before them.

Political beliefs

The ruling in TM (Zimbabwe) & Ors [2010] EWCA Civ 916 has given some guidance on the country guidance case of RN [2008] UKAIT 83. In particular it stated that belonging to a risk category was not of itself sufficient.

Patten LJ commented in relation to sur place activity that, the more significant the activity, the more likely it will become apparent and therefore of interest to those monitoring it. Sir John Dyson SCJ distinguished activity at the core of political belief and activity at its margins; it was a fundamental human right that an individual could not be expected to forfeit to avoid persecution. There was also consideration of the issue of whether a returnee could be expected to lie on return, even if they had had no qualms about lying in the UK; a more realistic scenario may be that an asylum seeker may be reasonably expected to dissemble depending on the nature and strength of his or her political beliefs.

Public interest in deportation

The head note for the deportation case MK (deportation '“ foreign criminal '“ public interest) Gambia [2010] UKUT 281 (IAC) reads:

1. In automatic deportations made under section 32 (5) of the UK Borders Act 2007 the respondent's executive responsibility for the public interest in determining whether deportation is conducive to the public good has been superseded by parliament's assessment of where the public interest lies in relation to those deemed to be foreign criminals within section 32(1)-(3). In consequence the respondent's view of the public interest has no relevance to an automatic deportation.

2. In such cases by virtue of section 32(4) it is not open to an appellant to argue that his deportation is not conducive to the public good nor is it necessary for the respondent to argue that it is.

3. The seriousness of an offence and the public interest are factors of considerable importance when carrying out the balancing exercise in article 8. As parliament has now determined where the public interest lies in cases of automatic deportation, that factor must be taken into account together with the tribunal's own assessment of the seriousness of the offence. The gravity of criminal offending will normally be clear from the facts and nature of the offence, the views expressed by the sentencing judge and, importantly, the actual sentence.

There is no need or requirement for consideration by the tribunal of the public interest in deportation. The principle ground of appeal in an automatic deportation appeal is very likely to be article 8 and although there is now no need to consider the weight to be attached to the SSHD's policy, the seriousness of the offence and the public interest are matters to be taken into account when assessing proportionality; the actual sentence is an accurate indicator of the seriousness of the offence.

Inaccurate answers

Adedoyin (Nigeria) [2010] EWCA Civ 773 considered the giving of inaccurate answers to the general questions asked on the visa application form on criminal convictions. The word 'false' can have the neutral sense of 'incorrect' or the negative sense of 'dishonest'. Both Immigration Rule 320(7A) and 322(1A) require mens rea from the applicant or a person acting on his behalf; the tribunal would be required to make a finding on whether an explanation given for failure to give an accurate answer was honest.

Policy guidance

Pankina & otrs [2010] EWCA Civ 719 drew a critical distinction between immigration rules which have attained a status akin to immigration law and policies such as those set out in the policy guidance of the points based system. Although the Court of Appeal acknowledged that policy guidance may be incorporated by reference, for example where it was in existence during the negative resolution period, that was not the case for this guidance.

Policy guidance that purports to add further requirements to those already set out in the Immigration Rules are not binding. Since this judgment, two further cases have been handed down by the UTIAC: CDS (PBS: available; Article 8) Brazil [2010] UKUT 305 (IAC) and FA & AA (PBS: effect of Pankina) Nigeria [2010] UKUT 304 (IAC). CDS and FA both confirm that funds are available if they are in reality available; they do not have to be in the appellant's or her parent's account and can be through a third party whether related '“ as in the case of FA where the sponsor was her husband or through friends as in the case of CDS.

CDS also comments on article 8 and raises the possibility of article 8 being engaged where a student is prevented from completing their studies (as opposed to remaining after completion as in MM (Tier 1 PSW; Article 8; private life) Zimbabwe [2009] UKAIT 37.

Partners and children

The gap in the rules for spouses/partners of a refugee whose relationship commenced after the refugee left the country of persecution was considered in FH (Post-flight spouses) Iran [2010] UKUT 275 (IAC). The tribunal asserts that the Immigration Rules should change to make the relevant provision but in the meantime states that it would be unlikely to refuse such an applicant where all the requirements of paragraph 281 are met save for settlement.

LD (Article 8 '“ best interests of the child) Zimbabwe [2010] UKUT 278 (IAC) considered in particular the position of minor children and found that although there may be questions as to the status of the UN Convention on the rights of the child in UK domestic law, 'there can be little reason to doubt that the interests of the child should be a primary consideration in immigration cases'.