Here are the head notes from some recent reported UT IAC decisions. They cover a number of important topics and are worth reading to keep yourself up to date with the latest developments. I have included the bailii links to the full decisions.
AZ (error of law: jurisdiction; PTA practice) [2018] UKUT 245 (IAC) (5 July 2018)
(1) Before it has re-made the decision in an appeal, pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal has jurisdiction to depart from, or vary, its decision that the First-tier Tribunal made an error of law, such that the First-tier Tribunal's decision should be set aside under section 12(2)(a).
(2) As Practice Direction 3.7 indicates, that jurisdiction will, however, be exercised only in very exceptional cases. This will be so, whether or not the same constitution of the Upper Tribunal that made the error of law decision is re-making the decision in the appeal.
(3) Permission to appeal to the Upper Tribunal should be granted on a ground that was not advanced by an applicant for permission, only if:
(a) the judge is satisfied that the ground he or she has identified is one which has a strong prospect of success:
(i) for the original appellant; or
(ii) for the Secretary of State, where the ground relates to a decision which, if undisturbed, would breach the United Kingdom's international Treaty obligations; or
(b) (possibly) the ground relates to an issue of general importance, which the Upper Tribunal needs to address.
(1) The "Hamid" jurisdiction of the High Court and the Upper Tribunal exists to ensure that lawyers conduct themselves according to proper standards of behaviour. The bringing of hopeless applications for judicial review wastes judicial time and risks delaying the prompt examination of other cases, which may have merit. In many cases, the only tangible result of such an application is that the applicant incurs significant expense.
(2) Solicitors who practise in the difficult and demanding area of immigration law and who are properly discharging their professional responsibilities can only safely enjoy the recognition they deserve if the public is confident appropriate steps are being taken to deal with the minority who are failing in their professional responsibilities.
(1) Whether or not to entertain an application for judicial review is a matter that falls within the Upper Tribunal's discretion, applying well-known principles that apply also in the High Court. Where there is an alternative remedy it would only be in the rarest of cases that the Upper Tribunal would consider exercising its jurisdiction to grant permission to bring judicial review proceedings.
(2) There is a high threshold to be overcome before the Upper Tribunal will entertain an application for judicial review in challenging an interlocutory decision of the FtT. Once the very high threshold is met it is not necessary for each of the grounds to reach that threshold.
(3) Litigation privilege attaches to communications between a client and/or his lawyer and third parties for the purpose of litigation. It entitles the privileged party not to disclose information even if it is relevant to the issues to be determined in a court or tribunal. Proceedings in the First-tier Tribunal are sufficiently adversarial in nature to give rise to litigation privilege. The fact that human rights issues are in play does not mean litigation privilege has to be balanced against those issues
Essa (Revocation of protection status appeals) [2018] UKUT 244 (IAC) (27 June 2018)
1 An appeal under s 82(1)(c) is an appeal against revocation of the basis upon which the leave referred to in s 82(2)(c) was granted.
2 The only allowable ground under s 84(3)(a) is by reference to the Refugee Convention, and by s 86(2)(a) that matter must therefore be determined in all cases.
3 Where s 72(10) applies, however, the appeal must be dismissed even if the ground is made out.
Andell (foreign criminal - para 398) [2018] UKUT 198 (IAC) (4 May 2018)
Paragraph 398 of the Rules includes not only foreign criminals as defined in the 2002 Act and the 2007 Act but also other individuals who in the view of the Secretary of State, are liable to deportation because of their criminality and/or their offending behaviour.
PK (Draft evader; punishment; minimum severity) [2018] UKUT 241 (IAC) (5 May 2018)
(i) A legal requirement for conscription and a mechanism for the prosecution or punishment of a person refusing to undertake military service is not sufficient to entitle that person to refugee protection if there is no real risk that the person will be subjected to prosecution or punishment.
(ii) A person will only be entitled to refugee protection if there is a real risk that the prosecution or punishment they face for refusing to perform military service in a conflict that may associate them with acts that are contrary to basic rules of human conduct reaches a minimum threshold of severity.
(iii) VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 79 (IAC) did not consider whether the Ukrainian conflict involved acts contrary to basic rules of human conduct.
Tirabi (Deportation: "lawfully resident": s.5(1)) [2018] UKUT 199 (IAC) (9 May 2018)
For the purposes of applying to para 399A of the Rules and s. 117C of the 2002 Act a definition of "lawfully resident" analogous to that in para 276A (as mandated by SC (Jamaica)), the invalidation provisions of s. 5(1) of the 1971 Act are to be ignored.
TY (Overseas Adoptions - Certificates of Eligibility) [2018] UKUT 197 (IAC) (12 April 2018)
In cases where an adoption is not recognised by the law of the United Kingdom :
(i) The Tribunal should be aware of the underlying legal process in each part of the Kingdom by which a Certificate of Eligibility is issued.
(ii) The Certificate of Eligibility is the definitive outcome of the fact-finding and assessment that underlies it.
(iii) Whilst there is no exact correlation between the requirements that are to be met in the law of adoption and the requirements to be met under the Immigration Rules in order for a minor to be admitted for the purposes of adoption, they ought properly to be seen as a unified whole where each plays its part in determining whether entry clearance should be granted.
(iv) The Certificate of Eligibility is capable of informing the decision to be made on the application for entry clearance. In particular, the Immigration and Asylum Chamber should be slow to depart from the underlying circumstances (insofar as they can reasonably be ascertained) which are the subject-matter of the Certificate of Eligibility.