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2019 winter case law updates for OISC practitioners

This post is an update for OISC practitioners to give a review of cases that have come out in the Christmas season, you may have missed.

Trafficking

R (on the application of JP) v SSHD [2019] EWHC 3346 (Admin):

The Secretary of State’s policy of delaying the determination of an application for discretionary leave to remain under Article 14(1) of the European Convention on Action against Trafficking in Human Beings 2005 until after the asylum claim is convenient for the Secretary of State but unlawful. The result could be that those with a favourable claim would be waiting a considerable period where they were entitled to low-level subsistence support.

Unlawful detention and Dublin cases

R (on the application of Hemmati and Others) v SSHD [2019] UKSC 56

The Secretary of State’s policy to detain those held for return to countries where they made an initial asylum claim, i.e. ‘Dublin Regulation’ cases was declared unlawful and not in accordance with the Regulation, in particular Articles 2(n) and 28(2) of 604/2013. Because of this, those that are being or have been detained are likely to be entitled to damages for false imprisonment as the decision to detain was outside the scope of Schedule 2 Immigration Act 1971.

Citizenship and good character

R (on the application of Al-Enein) v SSHD [2019] EWCA Civ 2024

The Good Character Guidance published by the SSHD was ruled not ‘ultra vires’ (beyond the powers of the Secretary of State). The Good Character Guidance states that naturalisation will usually be refused if an applicant has been unlawfully in the UK within the last ten years, whilst the British Nationality Act 1981 requires only that an applicant was not ‘in breach of immigration laws’ for the past three years. The Court of Appeal found that the Good Character Guidance does not go beyond the powers conferred on the Secretary of State.

Turkish Businessperson: Dishonesty and procedural fairness

R (on the application of Karagul) v SSHD [ 2019] EWHC 3208 (Admin)

The Secretary of State had made decisions refusing applications for leave to remain under the Turkish Association Agreement. However, the appeals process did not allow the claimants the opportunity to adduce new evidence to rebut the assertions made. Claimants were therefore found by the Secretary of State to be dishonest but had no ability to adduce evidence that showed they were not. This was found to be procedurally unfair, and the court, therefore, quashed the decisions of the Secretary of State for the Home Department.

This is another case to add to a long list where Home Office processes of denying an applicant the chance to rebut allegations of dishonesty were found to be procedurally unfair. See other cases such as Balajigari [2019] EWCA Civ 673 where similar findings were made in Tier 1 General cases regarding procedural fairness or in R (on the application of Mushtaq) v Entry Clearance Officer of Islamabad, Pakistan (ECO – procedural fairness) IJR [2015] UKUT 224 (IAC) where the Entry Clearance Officer was found to have acted unfairly by failing to put allegations of dishonesty, or allegations which were later relied on in refusing the application to the Applicant in interview. In this case, the court found that interviews hold a two-stage duty. They provide the Entry Clearance Officer with the opportunity to probe assertions and provide the Applicant to respond to allegations. It is therefore procedurally unfair to fail to put allegations to the interviewee which are then relied on to refuse an application.

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