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Legal update for OISC professionals: Jan 2020

December seems to have brought forth a raft of reported decisions which are not necessarily favourable for appellants but are at the very least interesting for immigration practitioners.  The selection of important, recently reported decisions are detailed below.

AXB (Art 3 health: obligations; suicide) Jamaica [2019] UKUT 00397 (IAC)

Article 3 ECHR health cases have had a brutal history in immigration law.  They seem to start fairly enough. However, the case of N v United Kingdom [2008] ECHR 453 set a high threshold for Article 3 ECHR to be met in respect of health cases.  With the exception of D v UK (App no. 30240/96), there’s been little cause for celebration since.

AXB considered the implications on the UK of returning a person who would commit suicide on return to their home state. The UK has obligations in order to fulfil those obligations; they must provide ‘appropriate procedures’ for examination and assessment to be carried out. Those procedures can be met in the UK by Home Office consideration of the case and consideration by a tribunal following an appeal against that decision.

The decision in AXB finds that there are no obligations on the UK to make enquiries of the country to which a person is to be returned to obtain any assurances in respect of treatment on the return of that person. This was previously suggested in the case of Paposhvili.  AXB addresses the burden of proof and states that there is a burden on the appellant to establish that there is a real risk of breach of Article 3 ECHR. If the appellant establishes that that burden is met is for the Secretary of State for the Home Department to provide evidence of assurance, that can dispel the doubts the appellant’s evidence. AXB states that the evidence might include general evidence related to country situation as well as specific evidence from the country where the appellant is due to be removed to and may include evidence from that state related to the appellant but does not necessarily need to.

The threshold of establishing Article 3 harm remains the same that is that described in N v United Kingdom [2008] ECHR 453. This risk differs if it involves hostile actions of the country where the person is to be removed to. If there are hostile actions, there bear in mind the decisions in RA (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1210; Y and Z v Secretary of State for the Home Department [2009] EWCA Civ 362

SB (vulnerable adult: credibility) Ghana [2019] UKUT 00398 (IAC)

This case concerns how the tribunal treats evidence once they have determined that the witnesses are vulnerable. Treatment of an adult as a vulnerable adult does not mean that the tribunal cannot make adverse credibility findings against that person. It’s for the tribunal to determine the relationship between the vulnerability of the witness and the evidence adduced.

Niaz (NIAA 2002 s. 104: pending appeal) [2019] UKUT 00399 (IAC)

The case of Niaz states that section 104 (2) the Nationality Immigration and Asylum Act 2002 contains an exhaustive list of when an appeal under section 82 (1) is not finally determined. If none of the situations described in 104 (2) occurs, and the appeal has not lapsed, been withdrawn, or been abandoned, then the appeal is treated as finally determined.

Interestingly, an appeal that has ceased to be pending under 104 can become pending again if the Upper Tribunal’s decision refusing permission to appeal from the First-tier Tribunal is quashed by way of judicial review.

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