Issue 25 - 7th August 2006

Monday 7 August 2006

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Domestic Law

Court of Appeal

S and Ors v Secretary of State [2006] EWCA Civ 1157
The statutory scheme of immigration control postulated that someone who successfully maintained that their removal would constitute a violation of their rights under the European Convention on Human Rights 1950 should be entitled to leave to remain for however limited a period and it was beyond the powers of the secretary of state to introduce a new category of "persons temporarily admitted" without Parliamentary sanction.

'AK' v Secretary of State [2006] EWCA Civ 1117
The Immigration Appeal Tribunal had jurisdiction under the Nationality, Immigration and Asylum Act 2002 s.82 to consider whether an appellant would be refused re-entry by the state authorities to his home country or place of former habitual residence, in a case where no removal directions had been set by the secretary of state.

Y v Secretary of State extempore judgment 26/7/2006
An adjudicator had to consider an asylum seeker's account in the context of the country in question; however, he was entitled in an appropriate case, to find that an asylum seeker's account was so far fetched that it was incapable of belief.

J v Secretary of State extempore judgment 26/7/2006
The Asylum and Immigration Tribunal had erred in upholding a decision to refuse an appellant's claim for asylum based on his risk of persecution as a practicing homosexual if he were to be returned to Iran, where it had failed to consider that a person could not be refused asylum on the basis that he could avoid otherwise persecutory conduct by modifying the behaviour that he would otherwise engage in, at least if the modification was sufficiently significant in itself to place him in a situation of persecution.

EL-SHEIKH v Secretary of State (extempore judgment) 21/7/2006
An immigration judge had made a material error of law when assessing an asylum seeker's risk of harm if returned to Sudan where he had been a member of the Democratic Unionist Party.

AHMED SAEED AHMED MUKARKAR v Secretary of State (extempore judgment) 25/7/2006
Whether the circumstances of an application for indefinite leave to remain were sufficiently exceptional to override the ordinary requirements of immigration control was a question of factual judgment, not of law. An adjudicator's decision on that issue, which had identified the correct legal tests and had been carefully and fully explained, had not been erroneous and should have been upheld by the Asylum and Immigration Tribunal.

K v Secretary of State (extempore judgment )25/7/06
Where an immigration adjudicator had referred to inconsistencies in an asylum seeker's account of events, but then decided they were insignificant, it had been appropriate for the adjudicator to explain why they were insignificant. His failure to do so meant his reasoning was inadequate.

HK v Secretary of State extempore judgment 20/7/2006
Where a fact-finding tribunal had decided to reject evidence for a number of reasons, the fact that some of those reasons did not bear analysis was not enough to justify an appellate court setting the decision aside. In such a case, the appellate court had to decide whether it would be just to let the tribunal's decision stand by considering whether one could be tolerably confident that the tribunal's decision would have been the same on the basis of the reasons that had survived its scrutiny.

Scottish Court of Session (Outer House)

NOREEN SAEED v Secretary of State
In relation to a couple who had eloped in Pakistan, the Adjudicator was entitled to find that internal relocation was not open to them given the risk from a country wide state police force. That the IAT erred by equating risk from the family with risk from the state. In deciding where to remit the case the IAT were not entitled to take into account (a)The fact that the original adjudicator might be a part-time adjudicator (b), The fact that the original adjudicator heard evidence two years previously and would find it difficult to recall her impression of the oral evidence she had hear and (c)The fact that the adjudicator had already made certain findings in fact, which might cause her difficulty in considering internal flight. Matter remitted back to original adjudicator.

Asylum and Immigration Tribunal


AA (Zimbabwe CG) [2006] UKAIT 00061
A failed asylum seeker returned involuntarily to Zimbabwe does not face on return a real risk of being subjected to persecution or serious ill-treatment on that account alone.

SM and Others (MDC - internal flight- risk categories) CG [2005] UKIAT 00100 is reaffirmed. Two further risk categories are identified: those whose military history discloses issues that will lead to further investigation by the security services upon return to HarareAirport and those in respect of whom there are outstanding and unresolved criminal issues.

A deportee from the United Kingdom who, having been subjected to the first stage interview at the airport, is allowed to pass through the airport is likely to be the subject of some monitoring in his home area by the local police or the CIO but the evidence does not indicate a real risk of persecutory ill-treatment for those who are being monitored solely because of their return from the United Kingdom.

The general country conditions are extremely difficult but those difficulties will not generally be sufficiently severe to enable an appellant to rely upon article 3 to resist removal.

LM (Iraq CG) [2006] UKAIT 00060
Female Christians not at risk of persecution or Article 3 ECHR breach but additional factors (prominent position in companies associated with Multi-National Force, westernised, women's rights activities or refusal to wear hijab, lack of KDG connections, no family support, English speaking or non-Kurdish speaking) may increase risk to level engaging both Conventions. RA (Christians) Iraq CG [2005] UKIAT 00091 remains correct on position of male Christians. No sufficiency of protection outside KDG.

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