New Video - Upper Tribunal (IAC) Reported Decisions: June 2020
In this series I summarise the reported decisions of the Upper Tribunal Immigration and Asylum Chamber for 2020 tackling them a month at a time. In this video I look at the reported decisions for June 2020 on tax discrepancy cases, Dublin III, PSG & mental health, 117B(6) and foreign criminals. The citations and links are below. I will put a copy of my slides on the No8 Chambers’ website.
Ashfaq (Balajigari: appeals) [2020] UKUT 226 (IAC) (17 June 2020)
1. If the decision of the Secretary of State carries a right of appeal, the availability of the appeal process corrects the defects of justice identified in Balajigari.
2. In an earnings discrepancy case there is no a priori reason to suppose that any of the declared figures is or was accurate. In particular, the fact that a person is now prepared to pay a sum of money to HMRC does not of itself prove past income at the level claimed.
3. The explanation by any accountant said to have made or contributed to an error is essential because the allegation of error goes to the accountant's professional standing. Without evidence from the accountant, the Tribunal may consider that the facts laid by the Secretary of State establish the appellant's dishonesty.
(1) Article 17(2) of Regulation 604/2013 of the European Parliament and of the Council (“Dublin III”) confers a discretion on a Member State to examine an application for international protection “in order to bring together any family relations, on humanitarian grounds, based on family or cultural considerations”. Although the discretion is wide, it is not untrammelled: R (HA & others) (Dublin III; Articles 9 and 17.2) [2018] UKUT 297 (IAC). As in the case of any other discretionary power of the Secretary of State in the immigration field, Article 17(2) must be exercised in an individual’s favour, where to do otherwise would breach the individual’s human rights (or those of some other person), contrary to section 6 of the Human Rights Act 1998.
(2) The Secretary of State’s Article 17(2) decisions are susceptible to “ordinary” or “conventional” judicial review principles, of the kind described by Beatson LJ in ZT (Syria) v SSHD [2016] 1 WLR 4894 as “propriety of purpose, relevancy of considerations and the longstop Wednesbury unreasonableness category” (para 85).
(3) Where a judicial review challenge involves an allegation of violation of an ECHR right, such as Article 8, it is now an established principle of domestic United Kingdom law that the court or tribunal must make its own assessment of the lawfulness of the decision, in human rights terms. If, in order to make that assessment, the court or tribunal needs to make findings of fact, it must do so.
(4) Nothing in paragraphs (1) to (3) above is dependent upon Article 27 (remedies) of Dublin III applying to the facts of the case. Nevertheless, what the Upper Tribunal held in R (MS) (Dublin III; duty to investigate) [2019] UKUT 9 (IAC) regarding the scope of Article 27 is correct and nothing in the Court of Appeal judgments in MS [2019] EWCA Civ 1340 suggests otherwise. The reference to a “transfer decision” in Article 27 encompasses a refusal to take charge of a Dublin III applicant. That includes a refusal to take charge under Article 17(2).
(5) It would be remarkable if the Secretary of State’s investigatory responsibilities were materially narrower in an Article 17(2) case which concerns an unaccompanied minor and his or her best interests, than they would be in respect of any other take-charge request under Dublin III. Where the request under Article 17(2) raises issues that involve an asserted family life within Article 8 ECHR/Article 7 of the Charter of Fundamental Rights, then, in the normal course of events, the Secretary of State’s degree of engagement with the relevant United Kingdom local authority should be no less than in the case of any other unaccompanied minor, where the take-charge request is made under Article 8 of Dublin III on the basis that the relation in the United Kingdom is a sibling or a “family member” or “relative” as defined.
(6) Even in Article 17(2) cases, the principles of procedural fairness may mean that the Secretary of State may be required to provide an indication or gist to an applicant or his alleged United Kingdom relation, of matters of concern that may lead to a refusal to take charge of the applicant: R v SSHD ex parte Fayed [1998] 1 WLR 763; R (Balajigari) v SSHD [2019] 1 WLR 4647. This is, however, an area where one cannot lay down hard and fast rules. Even where Article 8 ECHR is in play, there may be exceptions. Furthermore, the process must not become so elaborate as to defeat the aim of expeditious decision-making, particularly where the best interests of minors are concerned.
(7) The references to “exceptional circumstances” in the Secretary of State’s Dublin III Guidance (18 April 2019) do not render the Guidance unlawful. Those working in the immigration field know that the use of “exceptional” in the context of Article 8 ECHR is not to be used as setting a particular (high) threshold but, rather, as predictive of the outcome of the application of the principles of proportionality to the facts of a particular case. Nothing in the Guidance suggests its author is telling caseworkers to do anything other than follow the settled law on this topic.
DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC) (03 June 2020)
1. The Geneva Convention relating to the Status of Refugees 1951 provides greater protection than the minimum standards imposed by a literal interpretation) of Article 10(1)(d) of the Qualification Directive (Particular Social Group). Article 10 (d) should be interpreted by replacing the word “and” between Article 10(1)(d)(i) and (ii) with the word “or”, creating an alternative rather than cumulative test.
2. Depending on the facts, a ‘person living with disability or mental ill health’ may qualify as a member of a Particular Social Group (“PSG”) either as (i) sharing an innate characteristic or a common background that cannot be changed, or (ii) because they may be perceived as being different by the surrounding society and thus have a distinct identity in their country of origin.
3. A person unable to secure a firm diagnosis of the nature of their mental health issues is not denied the right to international protection just because a label cannot be given to his or her condition, especially in a case where there is a satisfactory explanation for why this is so (e.g. the symptoms are too severe for accurate diagnosis).
4. The assessment of whether a person living with disability or mental illness constitutes a member of a PSG is fact specific to be decided at the date of decision or hearing. The key issue is how an individual is viewed in the eyes of a potential persecutor making it possible that those suffering no, or a lesser degree of, disability or illness may also qualify as a PSG.
5. SB (PSG - Protection Regulations - Reg 6) Moldova CG [2008] UKAIT 0002 and AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) not followed.
MM (section 117B(6) - EU citizen child) [2020] UKUT 224 (IAC) (8 June 2020)
1. The definition of "qualifying child" contained in section 117D(1) of the Nationality, Immigration and Asylum Act 2002 does not include an EU citizen child resident in the United Kingdom for less than seven years.
2. The non-inclusion of EU citizen children resident for less than seven years in the definition of "qualifying child" does not breach the EU law prohibition against discrimination on grounds of nationality.
MZ (Hospital order: whether a 'foreign criminal') [2020] UKUT 225 (IAC) (15 June 2020)
An individual sentenced to a hospital order following a finding under section 5 (1) (b) of the Criminal Procedure (Insanity) Act 1964 that he 'is under a disability and that he did the act or made the omission charged against him' is neither subject to section 117C of the 2002 Act (as amended) nor to paragraphs A398-399 of the Immigration Rules. He is excluded from the statutory provisions by section 117D(3)(a) and from the Immigration Rules concerning deportation.
[Note: The difference between OLO and Andell to which the judge refers at paras [10] to [13] is now resolved in SC (paras A398-339D: 'foreign criminal': procedure) Albania [2020] UKUT 187 (IAC).]