Human Rights

In MW (Liberia) v Secretary of State  (20 December 2007) the Court of Appeal issued its judgment on the question of whether children seeking entry to the UK to join their parents can succeed in their applications for entry clearance if they are to be supported and accommodated by their parents with the financial assistance of others (“third parties”).  

Immigration Judges (they used to be called Adjudicators) consider the appeals of people whose applications, whether for asylum or for visas to come to the United Kingdom, have been refused by the Secretary of State.  In the course of making their determinations either in favour of or against Appellants they make findings of fact.  In AA (Somalia) & AH (Iran) v Secretary of State  [2007] EWCA Civ 1040 (25-10-2007) the Court of Appeal had to deal with the difficulties which are created by different Immigration Judges making different findings of fact concerning the same events.  The issue is starkly illustrated by Lord Justice Ward’s example:

At about this time in 2006 Gherson reported the Home Office’s changes to the qualifying criteria (and to the relevant immigration rules) for leave to enter under the Highly Skilled Migrant Programme (HSMP).  The changes increased the quota of points applicants needed to score in order to obtain leave to enter.   Points which had been awarded under the previous tariff for work experience obtained in an applicant’s country of origin were no longer available.  

The Appellate Committee of the House of Lords has allowed the Secretary of State’s appeal against the Court of Appeal’s judgment in Secretary of State for the Home Department v AH (Sudan) and others (FC)  [2007] UKHL 49.  

In a short ruling (SA (Section 82(2)(d): interpretation and effect) Pakistan [2007] UKAIT 00083), the Asylum and Immigration Tribunal (‘AIT’) has stated that a person whose application to vary their existing leave to enter or remain in the UK is refused has no right of appeal against that refusal if their existing leave continues beyond the date of decision.

The Asylum and Immigration Tribunal (‘AIT’) has found (in ST (s92(4)(a): meaning of “has made”) Turkey [2007] UKAIT 00085) that a person who has, at any time in the past, made an asylum claim or a human rights claim has an in-country right of appeal against any appealable immigration decision.

Deprivation of citizenship found to be persecution

In a landmark decision, EB (Ethiopia) [2007] EWCA Civ 809, the Court of Appeal has found that persecution may take the form of administrative and other measures which are discriminatory.  Consequently a person may qualify for asylum if he has been discriminatorily deprived of his citizenship rights, even if he is not at risk of physical ill-treatment.

In June, we expressed concern that some courts were seeking to reintroduce the “truly exceptional” test in relation to claims under Article 8 of the European Convention on Human Rights (ECHR). In a welcome decision, AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801, the Court of Appeal has expressed concerns about “continuing controversy” about how the immigration courts should now deal with Article 8 claims and has set down clear guidance for the interpretation of the House of Lords’ judgment in Huang.

The UK High Court has considered the case of the detention of a Jamaican woman ‘S’,  her daughter ‘C’ and her son ‘D’ who were detained under immigration act powers, at a time when D was a baby under one year old and C was about to start school.  The family were detained from late July 2005 until 1 December 2005.  The High Court ruled that detention of this mother and her young children was unlawful from 15 August 2005 to 1 December 2005 and that the human right of the baby, D,  to physical integrity had been breached by the circumstances of his detention, during which he developed rickets and anaemia.

The UK Borders Bill, a proposal for a new law on immigration, is currently being considered by the UK House of Lords in the UK parliament. But already there are proposals for more legislation on immigration and asylum in the new Criminal Justice and Immigration Bill.