AS (s.55 "exclusion" certificate - process) Sri Lanka

Upper Tribunal (Immigration and Asylum Chamber)

Decision
125. The First-tier Tribunal made an error of law such that its decision was set aside.

126. We re-make the decision as dismissed on asylum, humanitarian and human rights grounds.

Section 55 of the Immigration, Asylum and Nationality Act 2006 does not require a decision on exclusion from asylum to be made at the outset of a hearing and prior to consideration of any other matters.

2. The effect of s.55 is to require a Tribunal in its written determination to decide exclusion from asylum first, before proceeding to address any other head of claim.

3. Deciding exclusion first is merely common sense, regardless of whether a s.55 certificate has been made by the respondent as it determines whether substantive consideration of the asylum claim is necessary.

4. There is no statutory provision akin to s.55 that can be applied when an applicant makes a claim for Humanitarian Protection. However, given the exclusion criteria in paragraph 339D of HC 395 (the Immigration Rules), which are very similar to those in Article 1F(a), a Tribunal should also decide on exclusion from Humanitarian Protection before substantive consideration of that claim. Published on Refworld, <> 21/11/13

EDM 743: Roma Immigrants [Blunkett's Rivers of Blood speech]
That this House condemns the derogatory comments of David Blunkett the right hon. Member for Sheffield, Brightside and Hillsborough about Roma immigrants; agrees that describing their presence in the UK as likely to lead to an explosion is widely inaccurate and could well lead to stigmatisation, prejudice and Romaphobia; understands that these migrants have been driven to the UK through poverty and prejudice; believes that they should be welcomed; and notes that repeated studies have shown that immigrants contribute more to the UK economy than they take out.

Sponsors: Galloway, George - <>House of Commons: 18.11.2013

David Blunkett in Riot Warning Over Roma Migrants
Tensions between local people and Roma migrants could escalate into rioting unless action is taken to improve integration, David Blunkett has warned. The former home secretary fears a repeat of race riots that hit northern cities in 2001. His concerns centre on the Page Hall area of Sheffield, where Roma migrants from Slovakia have set up home. But he also accused the government of "burying their head in the sand" over the scale of Roma settlement in the UK. In an interview with BBC Radio Sheffield, he said the Roma community had to make more of an effort to fit in with British culture. "We have got to change the behaviour and the culture of the incoming community, the Roma community, because there's going to be an explosion otherwise. We all know that."
Read more: BBC News, <>12/11/13

Asylum Research Consultancy (ARC) COI Update Volume 67
This document provides an update of Country Guidance case law and UKBA publications and developments in refugee producing countries between 5th November and 19th November 2013  - Volume 67 here . . .

Identity Documents (Home Office)
Stephen Doughty: Although I appreciate the courtesy that the Minister and his officials have shown, the cases I will discuss today raise serious concerns about the competence of senior Home Office officials, the processes put in place and ultimately, I am sorry to say, ministerial oversight of the immigration system. Importantly, the cases do not merely relate to the soon-to-be-defunct United Kingdom Border Agency, but to the new immigration and visas directorate under Home Office control. I have come across numerous cases where documents, such as passports, birth certificates and travel documents, have been misplaced or permanently lost, which has led to lengthy delays, erroneous decisions, expensive appeals, tribunals and compensation payouts and a great deal of personal anguish for constituents, with results ranging from being unable to attend funerals of family members and being wrongly stigmatised as illegal immigrants, to being denied work, social security and the normal family life to which they are entitled. There is disturbing evidence that documents are not being opened or included in a person's case, and wrong decisions may be made as a result.

The independent chief inspector of borders and immigration report in November 2012 found that at one point more than 150 boxes of post, including correspondence from applicants, MPs and their legal representatives, lay unopened. The independent chief inspector told the Select Committee on Home Affairs that inspectors had come across the problem of lost files "in every inspection". Worryingly, he said that 7% of the 400 files sampled were incorrectly filed—in other words, not in the right place. He said that he "would like to see a much more rigorous approach taken to data management and file management generally."

He emphasised that part of the cultural problem was that staff at UKBA did not see the human faces behind the mounting files. At a time when numerous concerns are being raised about the integrity of our immigration system, such reports hardly inspire confidence. I hope that the Minister will be able to outline any progress made since the report and say whether he is satisfied with that progress.
Read more: <> House of Commons / 19 Nov 2013 : Column 321WH

Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013

The Minister of State, Ministry of Justice (Lord McNally) (LD): My Lords, the amendment provides for the extension of the current SIAC rules to cover new applications resulting from the new jurisdiction inserted into the Special Immigration Appeals Commission Act as a result of the Justice and Security Act 2013. This enables the Home Secretary to certify that certain exclusion, naturalisation and citizenship decisions were made in reliance on sensitive information which should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.
Read mor: <>House of Lords / 19 Nov 2013 : Column GC382

JS (Former unaccompanied child – durable solution) Afghanistan

[2013] UKUT 00568 (IAC)

Upper Tribunal (Immigration and Asylum Chamber)

The First-tier Tribunal erred in law and its decision was set aside in respect of the appeals on humanitarian protection and article 8 grounds. We re-make the decision dismissing the appeal on both grounds.

(1) A local authority's obligations to an appellant as an unaccompanied child and asylum seeker and his status as a former relevant child after he becomes 18 do not of themselves determine the outcome of a decision on an appellant's immigration status but may provide evidence relevant to those issues.

(2) The failure of the Home Office to endeavour to trace family members of a child asylum seeker is only relevant to an immigration appeal after the appellant ceases to be a child, where he is able to show a causal link between that failure and issues relevant to the outcome of the appeal.

(3) For an unaccompanied asylum seeking child, the best durable solution is to be reunited with his own family unless there are good reasons to the contrary. Where reunification is not possible and there are no adequate reception facilities in the home country, an appropriate durable solution may be to grant discretionary leave during the remaining years of minority and then arrange a return to the country of origin. Where the child is of a young age on arrival, cannot be reunited with his family and will spend many years in the host state during his minority a durable solution may need to be found in the host state.

(4) Where the appellant is no longer a minor, the duty on the Secretary of State under s.55 of the Borders, Immigration and Citizenship Act 1999 no longer arises but when making the assessment of whether removal would lead to a breach of article 8 all relevant factors must be taken into account including age, background, length of residence in the UK, family and general circumstances including any particular vulnerability and whether an appellant will have family or other adult support on return to his home country appropriate to his particular needs.

(5) In the context of Afghanistan it is also necessary to take into account the guidance in AA (Unattended children) Afghanistan CG [2012] UKUT 00016 (IAC) about the risks to unattached children in the light of the reminder in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014 in the judgment of Maurice Kay LJ at [18] that there is no bright line across which the risks to and the needs of a child suddenly disappear.

Published on Refworld, <> 19/11/13

Iran: Execution of 16 Baluchi Prisoners in Ongoing State Terror
"The retaliatory execution of 16 Baluchi prisoners on Saturday 16th November 2013, in revenge for the deplorable killing of 14 border guards, is in total breach of international law. The latest executions are even more shocking as these Baluchi prisoners were not even connected to the insurgents' attack", said Karim Lahidji, FIDH President. "This further vindicates our assertion that the situation of human rights has not changed in Iran since the taking of office of Hassan Rouhani", he added.

Mohammad Marzieh, the prosecutor of the provincial capital Zahedan, confirmed that the executions were in direct retaliation for an attack that led to the killing of 14 border guards. A day after the executions, Fars News Agency reported that only 8 of the 16 victims had actually been members of a rebel group known as 'Jondollah' (Army of God) while the other eight had been drug smugglers.
Read more: <> International Federation for Human Rights

Children in Detention September 2013
A total of 27 children were detained in September 2013, seven of them were under 5, ten between five and eleven, eight between twelve and sixteen and two seventeen year olds. Fourteen were detained at Cedars pre-departure accommodation for removal and twelve detained in Tinsley House Family unit trying to enter the UK, one seventeen year old was held in Colnbrook Short Term Holding Centre.

AS (Afghanistan) & SSHD, C5/2012/1564 [2013] EWCA Civ 1469

1. The question in this appeal is the extent to which (if at all) judges of the Immigration and Asylum Chamber should regard as conclusive decisions of the "Competent Authority" determining that an appellant before them has or has not been a victim of trafficking.

18. In this context it is important to be aware that a decision to refuse asylum is not itself an immigration decision appealable pursuant to section 82(2) of the 2002 Act (any more than a trafficking decision is such a decision). The relevant immigration decision is the decision to remove the appellant under section 10 of the Immigration and Asylum Act 1999 (see s.82(2)(g) of the 2002 Act). It is in reaching the decision to remove that the Secretary of State must consider relevant matters including (where relevant) whether an applicant for asylum is a victim of trafficking. No doubt, if a conclusive decision has been reached by the Competent Authority, First Tier Tribunals will be astute not (save perhaps in rare circumstances) to allow an appellant to re-run a case already decided against him on the facts. But where, as here, it is arguable that, on the facts found or accepted, the Competent Authority has reached a decision which was not open to it, that argument should be heard and taken into account.

19. The question whether it should be heard and taken into account has been answered in the negative by the Upper Tribunal. That answer is wrong in law and I would, therefore, allow this appeal and order remission to the First Tier Tribunal for it to consider whether, in the light of the evidence about trafficking, it should allow AS's appeal and remit the matter to the Secretary of State for further consideration.

Published on Bailii, <> 21/11/13

Dying Asylum Seeker on Hunger Strike Must Stay in Detention

A failed asylum seeker said to be near death following an 85-day hunger strike in protest at his detention must remain in custody, the high court ruled yesterday. Ifa Muaza, 45, from Nigeria, has been refusing food for nearly three months. He is being held in Harmondsworth immigration removal centre, near Heathrow. His lawyers have described the ruling as a death sentence and called on the home secretary to save his life.
Read more: Eric Allison, The Guardian, <>Tuesday 19 November 2013

Assassination Of Environmental Campaigners In Colombia
EDM 746:That this House expresses its condolences to the family and friends of small-scale campesino farmer and community leader César García, who was gunned down in Cajamarca, Colombia, on 2 November 2013; notes that César was a leading figure in the campaign against the London-listed AngloGold Ashanti La Colosa open pit gold mining project, which many fear will have devastating environmental, social and economic consequences in the region; further expresses its condolences to the family and friends of Adelinda Gómez Gaviria, assassinated on 30 September 2013 in Almaguer, Colombia, in front of her 16 year-old son who was also injured in the attack; further notes that Adelinda was an active campaigner against mining in an area where AngloGold Ashanti has important business interests; further expresses concern about these crimes; calls on the Colombian authorities to carry out prompt, rigorous and independent investigations to identify the perpetrators of these crimes; and requests that other community leaders and environmental campaigners receive adequate protection so that they can peacefully exercise their democratic rights.

Sponsors: McDonnell, John / Corbyn, Jeremy / Bottomley, Peter / Durkan, Mark <>House of Commons: 18.11.2013

Garden Court Chambers - Immigration Law Bulletin - Issue 349

The UNHCR has expressed great concerns over reports that some European Union countries were placing barriers to entry or forcibly returning asylum-seekers, including people who have fled Syria.
To read further, click <>here . . . .

UKBA announces that following an open competition, grant funding has been awarded to the British Refugee Council and Migrant Helpline to provide advice and guidance to asylum seekers. The new grants will start from 1 April 2014. To read further, click here . . . .

Kabia (MF: para 398 - "exceptional circumstances") 2013 UKUT 569

Appeal to the Upper Tribunal is dismissed

(1) The new rules relating to article 8 claims advanced by foreign criminals seeking to resist deportation are a complete code and the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence: MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 at para 43.

(2) The question being addressed by a decision maker applying the new rules set out at paragraph 398 of HC 395 in considering a claim founded upon article 8 of the ECHR and that being addressed by the judge who carries out what was referred to in MF (Article 8 - New Rules) Nigeria [2012] UKUT 393 (IAC) as the second step in a two-stage process is the same one that, properly executed, will return the same answer.

(3) The new rules speak of "exceptional circumstances" but, as has been made clear by the Court of Appeal in MF (Nigeria), exceptionality is a likely characteristic of a claim that properly succeeds rather than a legal test to be met. In this context, "exceptional" means circumstances in which deportation would result in unjustifiably harsh consequences for the individual or their family such that a deportation would not be proportionate".

Determination & Reasons