Legal Bulletin No 174 - 15 March 2010

Monday 15 March 2010

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The European Court of Human Rights in R.C. v. Sweden (Application no. 41827/07;9 March 2010) made strong comments about medical evidence. Faced with a medical certificate giving a rather strong indication to the authorities that the applicant's scars and injuries may have been caused by ill-treatment or torture, and in that scenario the domestic tribunal ought to have directed that an expert opinion be obtained as to the probable cause of the applicant's scars in circumstances where he had made out a prima facie case as to their origin. The Court also spoke of a specific risk facing Iranians returning to their home country in circumstances where they cannot produce evidence of their having left that country legally.

Sir Anthony May in the Court of Appeal in U & Ors (R on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 169 (3 March 2010) held that there was no principle that an asylum seeker should be offered an opportunity of making representations before information was released regarding diplomatic assurances where the association or alleged association was public knowledge. Any breach of confidence claim should before the Investigatory Powers Tribunal.

Richards LJ in the Court of Appeal in Farinloye & Ors, R (on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 203 (11 March 2010) reversed Collins J below, finding that an immigration judge's determination allowing an appeal did not compel the Secretary of State to grant the claimants indefinite leave to remain in the United Kingdom. Where the immigration judge held that it would be unlawful for the Secretary of State to remove the claimants from the United Kingdom, the Secretary of State had to decide whether to exercise his discretion to grant leave to remain and, if so, for how long. The refusal of leave to remain was not itself a decision against which there lay a right of appeal and it was wrong to view an appeal to the AIT as against the Secretary of State's refusal to grant indefinite leave to remain.

Collins J granted permission for judicial review in the Administrative Court in
T (R on the application of) v Secretary of State for the Home Department [2010] EWHC 435 (Admin). In scathing criticism of the "same day" removal policy for minors, he found that where such a removal was proposed it was clearly of the utmost importance that it was established that the returning minor would on return be treated in an appropriate fashion. However it was difficult to think that there is any argument that could support the same day removal process that is at present applied by the Home Office Third Country Unit. The interests of the child in being able to contact advisers must prevail over the question of detention. Strikingly, he also considered it arguable that the Dublin Regulations do not apply to unaccompanied minors.

Carnwath LJ in the Court of Appeal in YH (R on the application) v Secretary of State for the Home Department [2010] EWCA Civ 116 (25 February 2010) became the latest judge to find that the issue of certification of fresh claims was "an issue on which he must reach his own conclusion" rather than being approached on traditional Wednesbury grounds. He also noted that the phrase "anxious scrutiny" has by usage acquired special significance as underlining the very special human context in which asylum cases are brought, which demands that decisions show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account.

Ward LJ in the Court of Appeal in SL (Vietnam) v Secretary of State for the Home Department [2010] EWCA Civ 225 (11 March 2010) found that when the Secretary of State was considering how to exercise his discretion under section 3(5)(a) of the 1971 Act and paragraph 364 of the Immigration Rules to deport an offender, he ought to have taken into account the past history of mishaps, such as a failure to grant leave to remain under the Minors policy in dealing with the case: precisely how the appellant would have behaved had he been given the status to which he was entitled was unknown but it was relevant to take into account that he had lost the opportunity to live lawfully in this country and to work lawfully whilst he was here.

Dyson LJ in the Court of Appeal in MD (Jamaica) & Anor v Secretary of State for the Home Department [2010] EWCA Civ 213 (10 March 2010) discussed the long residence immigration rule and policies. He found that the grant of leave to remain pursuant to an application made after the expiry of a previous grant of leave to remain plainly does not operate to legalise the applicant's residence during the period between the expiry of the earlier leave to remain and the subsequent grant of leave to remain, and that the lawfulness of a person's residence at any given time must be judged by reference to the law in force at that time.

Richards LJ gave permission to appeal to the Court of Appeal in IT (Sierre Leone) v Secretary of State for the Home Department (12 February 2010) [2010] EWCA Civ 188 to determine whether a direction under section 87(3)(a) must be given on the same day as the determination of the substantive appeal.


On 18 March from 16:00 to 19 :00 hours, at 1 Liverpool Street, HJT Training hold a course "Preventing removal: urgent cases and Long residence". Meanwhile on 25 March 2010 stellar advocate David Jones runs his course Advocacy in the Immigration Tribunal.,_Immigration_and_Asylum_law_courses.html#64

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