Ali Bandegani

KK and RS (Sri Lanka) v The Secretary of State for the Home Department [2022] EWCA Civ 119: Judgment refusing the SSHD’s application for permission to appeal the Country Guideline decision KK and RS. Reported for what it says about (1) ‘motivation’ when assessing sur place political activity, and (2) applications for permission to appeal in-country guidance cases under CPR 52.5(1) and (2).

R (on the application of SV) v Secretary of State for the Home Department (ECAT: lawfulness of policy guidance) [2022] UKUT 39 (IAC): the President of the Upper Tribunal (IAC), Lane J, held (1) although the European Convention Against Trafficking (ECAT) is not a part of domestic law it is given “normative effect” by the Home Office in policy guidance instructing caseworkers how to make decisions giving effect to ECAT, (2) the lawfulness of the discretionary leave policy guidance falls to be determined by reference to the test in R (A) and BF (Eritrea), and (3) notwithstanding the language of the discretionary leave policy, leave for more than 30 months merely requires the applicant to show ‘good reason’.

Hussain & Anor v Secretary of State for the Home Department [2022] EWCA Civ 145: the paper determination by the Upper Tribunal (IAC) of Mr Hussain's appeal from the FTT did not satisfy the requirements of common law fairness.

R (Cardona) v SSHD [2021] EWHC 2656 (Admin): the court declared that the section of the Defendant’s Work Policy for asylum seekers (version 8), titled “Application in respect of children”, fails to comply with section 55 of the Borders, Citizenship and Immigration Act 2009, and is unlawful.

C6 v SSHD (SC/170/2020): An ‘unprecedented’ judgment in which the President of SIAC, Mr Justice Jay, struck out the Secretary of State’s reply to a protection appeal.

AA (Sudan) v SSHD [2021] EWHC 1869 (Admin): The High Court ordered the SSHD to bring back a potential victim of trafficking from France following the application of a secret policy. 

R (NB) v SSHD [2021] EWHC 1489 (Admin): The living conditions for asylum seekers accommodated at Napier Military barracks was held to be ‘inadequate’ and restrictions on their liberty breached Art 5 ECHR and the common law. Ali intervened on behalf of the Joint Council for the Welfare of Immigrants. 

KK and RS (Sur place activities: risk) Sri Lanka [2021] UKUT 0130 (IAC): The Upper Tribunal (IAC) clarified and supplemented the guidance given in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 UTIAC and allowed both appeals. 

R (Mahabir) v SSHD [2021] EWHC 1177 (Admin): the Claimant was granted Indefinite Leave to Remain under the Windrush scheme, but her family was required to pay unaffordable application fees to join her (£22,000). That breached the Claimant’s Art 8 ECHR rights, and discriminated against her family under Art 14 ECHR.

R (SM) v Lord Chancellor [2021] EWHC 418 (Admin): The failure to afford immigration detainees held in prison access to publicly funded legal advice, to an extent equivalent to that available under the Detained Duty Advice Scheme to immigration detainees held in immigration removal centres, amounted to discrimination within ECHR article 14 read with articles 2, 3, 5, and 8 ECHR.

R (on the application of C6) v SSHD (asylum seekers’ permission to work) [2021] UKUT 0094 (IAC): the Secretary of State’s policy ‘Permission to work and volunteering for asylum seekers, version 8.0, 29 May 2019’, admits no exceptions, has not been justified, and is unlawful.

FB (Afghanistan) v SSHD [2020] EWCA Civ [2020] EWCA Civ 1338: The Home Secretary’s removal policy breached the constitutional right of access to justice and was declared unlawful. 

DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 00223:  Under the Refugee Convention 1951 a ‘Particular Social Group’ may include a person who has or is perceived to have a disability or mental illness even where no firm diagnosis is possible.

MSU (S.104(4b) notices) Bangladesh [2019] UKUT 00412: the Upper Tribunal (IAC) has the power under S25 of the TCEA 2007 to extend time for continuing with a refugee status appeal otherwise deemed abandoned by statute and the procedure rules.

KV v SSHD (Helen Bamber Foundation, Freedom from Torture, and Medical Justice intervening) [2019] UKSC 10: Landmark Supreme Court ruling reasserting the role of the Istanbul protocol for the investigation of torture and medical expertise in asylum claims. AIi represented all three intervenors.

R (on the application of MW) v SSHD (Fast track appeal: Devaseelan guidelines) [2019] UKUT 00411: The “starting point” principle in second asylum appeals is not a legal straitjacket. Judicial fact-finders may depart from the earlier judicial decisions on a principled and properly-reasoned basis.

AS (Afghanistan) v SSHD (UNHCR intervening) [2019] EWCA Civ 873: A guideline case on the correct approach to ‘internal relocation’ under Art 1A(2) of the Refugee Convention 1951. Ali represented the UNHCR whose core submission was accepted by the court.

R (N) v SSHD (JR/ 7389/2018): By consent the SSHD amended her policy “Withdrawing Asylum Claims Version 5.0” introducing a range of procedural safeguards to protect disabled or incapacitous persons from inadvertent withdrawal of their asylum claims, and created a procedure for re-opening claims incorrectly treated as withdrawn.

R (FB and another) v SSHD (Public Law Project Intervening) [2018] UKUT 428 (IAC): In the course of this claim, the SSHD amended her removal policy to allow individuals to request access to advice, documents and the courts. Lane J held the amended policy was legally deficient in two further significant respects.

S.A.C. v United Kingdom, App no. 31428/2018: The ECtHR granted S.A.C. interim relief under Rule 39 of the court’s procedures. On communicating the case it asked whether concealment of sexual orientation to avoid ill-treatment is compatible with convention rights. Before trial, the UK conceded and granted SAC refugee status.

R (Bah) v SSHD [2018] EWHC 2942: Mr Bah was a serious offender posing a high-risk re-offending. When his mental health deteriorated, the decision-maker appeared to “focus on looking for reasons not to release rather than a clear application of the AAR policy in light of the new evidence.” Substantive damages awarded for the last 35 days‘ detention.

KV (Sri Lanka) v SSHD [2017] WLR(D) 159: Successful intervention on behalf of the Helen Bamber Foundation in which the Upper Tribunal's controversial guidance in KV (scarring - medical evidence) Sri Lanka [2014] UKUT 00230 was disapproved.

LT (Kosovo) v SSHD [2016] EWCA Civ 1246: Authority on the tribunal's approach to deportation orders made on the basis that an individual's offending had caused "serious harm" per para. 398(c) of the immigration rules.

R (HN and SA) (Afghanistan) v SSHD [2016] EWCA Civ 123: Ali secured 15 individual injunctions from McCloskey J, and a historic generic injunction from the Court of Appeal preventing removal to Afghanistan by charter flight which led to the suspension of charter flights to Afghanistan.

Sanneh & Ors v SSWP [2015] WLR(D) 62: Authority on issues concerning the entitlement to social benefits of non-EU nationals who were the primary carers of children who were EU citizens and British nationals.

R (Ali Zahid) v SSHD [2013] EWHC 4290: The SSHD's failure to give the Claimant notice of removal, then telling him removal would not occur, amounted to an illegality and the Claimant was entitled to more than nominal damages.

FA (Iraq) v SSHD [2010] 1 WLR 2545: Authority on the tribunal's jurisdiction in 'upgrade appeals' (s83. NIAA 2002) to determine status pursuant to subsidiary protection in addition to refugee status. Ali drafted initial permission applications for permission to appeal.

SM (Section 8: Judge's process) Iran [2006] INLR 149: Authority on approach to and meaning of s.8 of the 2004 Act concerning the Judge’s assessment of credibility.

KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023: Effectively became QD & AH (Iraq) -v- SSHD [2009] Imm AR 132, authority on the core scope and meaning of subsidiary protection in situations of armed conflict pursuant to Art. 15(c) of the Qualification Directive.

MA (Palestinian Arabs - Occupied Territories - Risk) CG [2007] UKAIT 00017: Held Palestinian males suspected of terrorist involvement by the Israeli state will be at real risk of persecution and/or Article 3. Denial of right of return without more does not give rise to a real risk of persecution, a finding upheld by the Court of Appeal: MA (Palestine) -v- SSHD [2008] Imm AR 617.

FK (FGM - Risk and Relocation) Kenya CG [2007] UKAIT 00041: Held a woman will be at real risk in her own home area if she comes from an ethnic group (or sub-group) where female genital mutilation (FGM) is practised but such women can reasonably relocate and will not be at risk of FGM from the 'Mungiki'. In the Court of Appeal it was held the tribunal did not consider FK's case with sufficient specificity: FK (Kenya) v SSHD [2008] EWCA Civ 119.

NS (Iraq: perceived collaborator: relocation) Iraq CG [2007] UKAIT 00046: Held those suspected of perceived collaboration with Multi National Forces are at real risk of persecution and/or Article 3 ECHR breach in Iraq. No internal relocation to the Kurdish Region.

LM (Educated women - Chaldo-Assyrians - risk) Iraq CG [2006] UKAIT 00060: Held that Christian, English-speaking Iraqi women are at real risk of persecution because of the armed conflict in Iraq. There is no possibility of relocating to the Kurdish Region.