Sonali Naik QC specialises in public law cases and in all aspects of immigration, asylum and nationality law. She has a significant Higher Courts practice. She is ranked for immigration in Chambers UK 2020.
Sonali is a senior public law and immigration practitioner with over 28 years’ experience. She was appointed Queen’s Counsel in 2018 and conducts almost exclusively leading work at all levels: the Court of Appeal, the Administrative Court and in the Upper Tribunal in statutory appeals and judicial reviews. She has very substantial immigration and asylum experience in her High Court and appellate court practice, acting in various country guidance asylum cases most recently in AS(Afghanistan) in the Court of Appeal, the latest leading case on internal relocation.
Sonali has an extensive judicial review practice in the areas of Article 8 ECHR certification, nationality, challenges to Home Office policy, trafficking and unlawful detention.
Currently she is acting in the test case of Watson v SSHD on the implementation of out of country appeals in the Upper Tribunal, (the only case where an Appellant has successfully persuaded a Court to order a person’s return to pursue their appeal previously certified under section 94B in-country), in the Court of Appeal challenging ‘no notice’ removals in FB v SSHD listed before the Lord Chief Justice in July 2020 (linked with appeal in Medical Justice v SSHD  EWHC (Admin) with EHRC intervening).
Sonali appeared on her feet for the first time in the Supreme Court in KO(Nigeria) v SSHD  1 WLR 5273 on the test case on the proper interpretation of ‘unduly harsh’ with regard to children’s best interests’ in deportation appeals.
Following the successful appeal in Hysaj in the Supreme Court in long-running appeals on the purported nullification of British nationality, Sonali is advising on and acting in a number of deprivation cases including the test case of Hysaj (No.2) in the Upper Tribunal before the President.
Her work has been, to date, predominantly publicly funded high profile cases. Sonali also does a significant amount of private immigration advisory work.
Sonali is Chair of Liberty and a trustee of Freedom From Torture and the Immigrant’s Aid Trust (charitable arm of the Joint Council for the Welfare of Immigrants) and was appointed to the Justice Working Group on Reform of Immigration and Asylum system led by Sir Ross Cranston. She is also a long-standing Patron of Clean Break Theatre Company.
She won Lawyer of the Year at the Diversity Legal Awards 2018. She won Highly Commended for Outstanding Contribution to Diversity & Inclusion at the Chambers Bar Awards 2019. She was a finalist for Legal Aid Lawyer of the Year in 2016 and was featured as The Times’ Lawyer of the Week in January 2018.
Sonali has a long record of acting for asylum-seekers and refugees at all levels. Over the last few years she has acted in the leading cases on the assessment of safety and reasonableness of returns to Afghanistan.
Sonali obtained three interim injunctions from the Court of Appeal preventing the removal of asylum seekers on charter flights to Afghanistan during the course of this protracted litigation, challenging decisions on fresh protection claims on the basis of risk of serious harm from indiscriminate violence and the safety and reasonableness of internal relocation to Kabul (R (on the application of HN and SA) (AFGHANISTAN) v SSHD  EWCA Civ 123).
She acted in the Court of Appeal in a preliminary issue hearing against the decision of the Upper Tribunal (in which she acted as leader) in a Country Guidance case about the return of Afghan nationals to Kabul – AS (Safety of Kabul) Afghanistan  UKUT 0018 (IAC) raising a procedural fairness question about the circumstances in which the Tribunal can correct errors in the reasons which it gives for its decisions, as contended for the SSHD, AS Afghanistan v SSHD (part 1)  1 WLR 3065.
Sonali then acted in the substantive Court of Appeal case. This was is test case country guidance appeal on the reasonableness of internal relocation for asylum-seekers on return to Afghanistan. The main issue in the appeal was the interpretation of the ‘significant minority’ test from Lord Brown’s judgment in AH(Sudan)  and whether the UT erred in law in their assessment of risk of serious harm in their interpretation of reasonableness. The Appellants succeeded on their interpretation and the appeal was remitted in light of the material mistake of fact by the Tribunal. AS(Afghanistan) v SSHD  1 WLR 5345.
Sonali has acted regularly as leading counsel in other Country Guidance appeals including HB (Kurds) Iran (illegal exit: failed asylum seeker) CG  UKUT 430 (IAC) (12 December 2018), BM and Others (returnees - criminal and non-criminal) DRC CG  00293 (IAC) BM (DRC) CG and BM (false passport) DRC  UKUT 00467 (IAC). Pre-silk she was also led by Mike Fordham QC in HM(Iraq) v SSHD  EWCA Civ 1536, HM and others (Article 15c) (Iraq) v SSHD  UKUT 409 (IAC) and the ensuing Court of Appeal case of HF(Iraq) v SSHD  1 WLR 1329.
In immigration, Sonali has particular experience in cases outside the immigration rules involving policy considerations, and in ETS/TOIEC judicial review claims. She is now advising many individuals on strategy and remedies in light of the Court of Appeal judgments in Ahsan and others and Balajigari v SSHD  1 WLR 4647.
Sonali was instructed by the Migrants Rights Network (MRN) to intervene in Balajigari in the Court of Appeal. The cases concerned the lawfulness of the use by the SSHD of the 322(5) rule to refuse indefinite leave to remain to those who had made tax amendments with HMRC. MRN had a group of 400 persons affected, whose interests were at stake in these appeals. Sonali advised on strategy and evidence and made written submissions, though formal permission to intervene orally was refused. The judgment clearly reflects the arguments made as a central part of the reasoning. Sonali is now instructed by MRN in respect of a variety of consequential matters as to remedy and costs arising from the judgment.
Arising from the Ahsan litigation Sonali was instructed to lead in the test case of Rahman v SSHD  EWCA 1572 addressing the costs consequences for a large cohort of appellants concerning the remedies available to students whose leave had been curtailed by the SSHD following an allegation of deception in the ETS language testing. The question of remedy was partly resolved in Ahsan, which led to the question of disposal and costs. Four cases were chosen, with a view to the CA giving guidance to enable many or all of the other cases to be disposed of by consent. The SSHD’s approach to the belated offer of a remedy of consideration of an article 8 ECHR claim and appeal, as opposed to a judicial review of the decision to curtail leave. The CA ordered the SSHD to pay the costs of the appeal in the judicial review, and directed that the UT deal with the question of the costs of the judicial review below, pending the outcome of any article 8 appeal and further settlement.
In Article 8 ECHR cases, Sonali appeared on her feet in the Supreme Court in KO(Nigeria) v Secretary of State for the Home Department (SSHD)  1 WLR 5273 a test case on the proper interpretation of the reasonableness of removal of children from the UK and in the context of deportation whether that was ‘unduly harsh’ on the child and the meaning of that phrase within section 117 A to D of the Nationality Immigration and Asylum Act 2002.
She is currently acting in a test case in the Upper Tribunal before the President on the status of foreign convictions for the purpose of the deportation regime.
Exclusion and SIAC
Sonali has acted as leading counsel in high profile exclusion cases (the details of which are confidential) but have for example involved complex hearings in the Administrative Court, including disclosure applications, PII applications and has appeared against senior government leading counsel.
Out of Country Appeals
Sonali acted for the First Intervener, Bail for Immigration Detainees, led by Michael Fordham QC, in the landmark test case as to the lawfulness of the SSHD’s out of country appeals regime under section 94B of the Nationality Immigration and Asylum Act 2002 in R (Kiarie; Byndloss) v Secretary of State for the Home Department  UKSC 42;  WLR 2380. The Supreme Court ruled that the certification of two human rights claims under section 94B of the Nationality, Immigration and Asylum Act 2002 was unlawful under Article 8 ECHR. She also acted as leading counsel in OO(Nigeria) in the Court of Appeal one of the few cases to succeed outright in challenging a 94B certificate OO (Nigeria) v SSHD  EWCA Civ 338. This was a successful challenge to the lawfulness of the SSHD's approach to the power to deport first, appeal later, in cases involving children, where the Court considered the public interest in removal pending appeal in such cases.
Sonali is acting in a test case in an appeal (ZF v SSHD) where the Appellant is deceased (shot dead in Afghanistan by the Taliban whilst waiting for his appeal). Sonali is instructed by his widow and 4 minor British citizen children who are Human Rights Act ‘victims’. The first issue in the appeal is whether the appeal has been abated, the second part is whether if there is an appeal his removal breached article 3/8 ECHR.
She is also acting in another 94B test case of YT v SSHD another case where the Tribunal has determined that the Appellant cannot have a procedural fair out of country appeal (where the Appellant is outside his country of origin).
Sonali regularly acts in complex detention claims:
Sonali recently acted in the Court of Appeal concerned with the lawfulness of the SSHD’s policy concerning access to medical treatment in Short-Term Holding Facilities (prior to the STHF Rules 2018) (ZA v SSHD  4 WLR 34), following the partial victory in the Administrative Court on the failure to conduct a rule 34 Detention Centre Rules 2001 compliant assessments.
Sonali is acting in QH v SSHD in respect of a damages claim inter alia under the Human Rights Act 1998 for a former disputed minor who claim for unlawfully removed from the UK to Germany in breach of Article 27 of Dublin III was allowed. Having achieved his return to the UK under Article 29, this claim for damages now proceeds in the Upper Tribunal and is listed as a test case on engagement of Article 8 ECHR and damages.
Sonali is currently acting in a challenge to the lawfulness of detention following the unlawful certification of a torture victim and certification of their asylum claim and whether the rule 35 process was compliant in ROO(Nigeria) v SSHD again following a partial success in the Administrative Court. This is a post-Hossain challenge to the Detained Asylum Casework ("DAC") process guidance and the failure to conduct a proper medical assessments in detention.
Sonali also currently acts in a very complex challenge concerned with the detention of a mentally ill torture survivor dealt with in the Detained Fast-Track ("DFT") before 2014 which was stayed behind the test case of TN(Vietnam).
Sonali led on a test case in the Court of Appeal one concerning damages arising from the unlawful failure to provide bail accommodation and the other relating to re-detention of individuals whilst on bail granted by the FTT. The issue was whether when the Appellant was released on bail by the First-Tier Tribunal ("FTT"), the general powers in Paragraph 2(3) of Schedule 3 of the Immigration Act 1971 to detain persons subject to a deportation order could not used by the SSHD to re-detain a person where a bail order was in force (SSHD v Lucas  EWCA Civ 2541).
Sonali acts in high profile and complex nationality cases both judicial reviews and statutory appeal and undertakes a significant amount of advisory work.
In nationality following the long running nationality test case in Hysaj (from 2013 to 2017) challenging the SSHD's decisions to treat as a nullity British citizenship obtained by deception, culminating in the Supreme Court judgment Hysaj v SSHD  UKSC 1195 allowing the appeals by consent, Sonali is now acting in a number of now statutory appeals challenging the ensuing deprivation decisions. She also advises and acts in judicial reviews in relation to refusals to issue or decisions to withdraw British passports, and other related satellite litigation arising from this litigation, particularly now in light of the impact of the ‘hostile environment’ including immigration status on deprivation.
Prior to Hysaj, Sonali had acted in the leading cases on deprivation in the Upper Tribunal : AB (Nigeria) AB (British citizenship: deprivation; Deliallisi considered) Nigeria  UKUT 00451 (IAC) a complex deprivation of nationality case on the test to be applied in such cases (foreseeability of the consequences of deprivation) where no simultaneous order for deportation made, whether a person retains ILR on deprivation of British citizenship, and Deliallisi (British citizen: deprivation appeal: Scope)  UKUT 439(IAC).
She has also been involved with challenges to the SSHD's practice in relation to the registration of British citizen children, refusals of nationality on good character grounds in the High Court including BE v SSHD  EWHC 905 (Admin) and in SIAC HN v SSHD - HN (Naturalisation : Substantive)  UKSIAC SN_9_2014 (28 July 2015 (naturalisation refused on grounds of national security, first in series of test cases as to the application of SIAC rules to these naturalisation JR's (private).
Sonali is currently acting in a leading test case concerning the lawfulness of the SSHD’s removal policy and specifically whether giving notice of liability only (and not notice of the date or time of the actual removal) is ultra vires section 10 of the Immigration Act 1999, because it abrogates the constitutional common law right of access to justice, breaches the public law duty to give adequate notice of a decision and/or is too uncertain and therefore arbitrary to be compliant with the rule of law and/or is a disproportionate means of achieving removal. (R (on the application of FB and another) v Secretary of State for the Home Department (removal window policy)  UKUT 428 (IAC) The President of the Upper Tribunal (UT) held that the policy was lawful but granted permission to appeal (PTA) to the Court of Appeal (CA). This is now linked to the case of Medical Justice v SSHD  EWHC (Admin) 2391 to be heard in July 2020.
R (Kiarie; Byndloss) v Secretary of State for the Home Department  UKSC 42;  WLR 2380
In a landmark judgment of general application, the Supreme Court ruled that the certification of two human rights claims under section 94B of the Nationality, Immigration and Asylum Act 2002 was unlawful under Article 8 European Convention on Human Rights. Sonali with Bijan Hoshi represented the First Intervener, Bail for Immigration Detainees, led by Michael Fordham QC.
Hysaj v SSHD  1 WLR 673,  Imm AR 329,  WLR(D) 482,  INLR 343,  EWCA Civ 1195,  WLR 673
Test case judicial review of the SSHD's decision to treat British citizenship as a nullity rather than adopting statutory procedure on deprivation where obtained by fraud. Judgment from the Supreme Court expected shortly.
Hysaj v SSHD  CP Rep 17,  2 Costs LR 191,  1 WLR 2472,  EWCA Civ 1633
The Court gave guidance following Mitchell v News Group Newspapers Ltd  EWCA Civ 1537,  1 WLR 795 and Denton v T.H. White Ltd, Decadent Vapours Ltd v Bevan and Utilise T.D.S. Ltd v Davies  EWCA Civ 906,  1 WLR 3926. Whether the approach to extensions of time to lodge appellant's notice is distinct from application for relief from sanctions and the line of authority in Sayers v Clarke Walker  EWCA Civ 645,  1 WLR 3095 is wrong inter alia in light of the approach in UKPC decision in Attorney General of Trinidad & Tobago v Matthews  UKPC 38.
Safi v SSHD  EWHC 95 (Admin)
Consideration of the Court of Appeal in R (S, H and Q)  EWCA Civ 142) in which SN acted as junior in 2009) in relation to claims to grant some form of relief not applicable at the time of the decision, but which was applicable at the time of some earlier legally flawed and unlawful decision.