Recent Notable Cases

Supreme Court

Alvi v Secretary of State [2012] UKSC 33; [2012] 1 W.L.R. 2208; [2012] 4 All ER. 1041; [2012] Imm. A.R. 998; [2012] I.N.L.R. 504 (Lords Hope, Walker, Clarke, Dyson and Wilson): Correctness of the Court of Appeal's judgment in Pankina and constitutional issues concerning the Crown's prerogative to control immigration at common law; legality and effect of the Point Based System policy guidance documents and rules that have not been laid before Parliament by the Secretary of State.

Munir v Secretary of State [2012] UKSC 32; [2012] 1 W.L.R 2192; [2012] 4 All ER. 1025; [2012] Imm. A.R 1038; [2012] I.N.L.R. 546; Times, August 6, 2012 (Lords Hope, Walker, Clarke, Dyson and Wilson): Nature of the duty on the Secretary of State under s3(2) of the Immigration Act 1971 and constitutional issues arising from the withdrawal by the Secretary of State of the so-called seven years children policy.

Court of Appeal (Civil Division)

Sharmila Gurung v Secretary of State [2013] EWCA Civ 8; [2013] All ER (D) 122 (Jan) (Master of the Rolls, Sullivan LJ and Patten LJ): Legality of the Secretary of State's policy about adult children of Gurkha veterans and proper approach to historic injustice argument in the context of Article 8.

RJ (India) v Secretary of State [2012] EWCA Civ 1865; [2012] All ER (D) 48 (Dec) (Laws LJ, Tomlinson LJ and and Sir David Keene): Construction of s10 of the Immigration and Asylum Act 1999 and ambit of the Secretary of State's powers to remove family members of overstayers in the United Kingdom.

Miah (2) v Secretary of State [2012] EWCA Civ 1719; [2012] All ER (D) 205 (Dec) (Pill LJ, Etherton LJ and Lewison LJ): Legality of the Secretary of State's work permits system and construction of Paragraphs 128 and 134 of the Immigration Rules.

Nirula v First Tier Tribunal (IAC) [2012] EWCA Civ 1436; [2012] All AR (D) (Nov) (Longmore LJ, Davis LJ and Sir Stephen Sedley): Construction of s92 and s113 of the Nationality, Immigration and Asylum Act 2002 and the nature of the First Tier Tribunal's appellate jurisdiction in respect of removal decisions attracting no in-country right of appeal.

Secretary of State v Hayat [2012] EWCA Civ 1054; [2013] I.N.L.R. 17; [2012] All ER (D) 35 (Aug) (Vice President of the Court of Appeal Civil Division, Elias LJ and Sir David Keene): Proper ambit of the House of Lords judgment in Chikwamba in relation to the assessment of proportionality under Article 8 and tension between domestic and ECTHR case law.

Alam v Secretary of State [2012] EWCA Civ 960; [2012] Imm. A.R 973; [2012] All ER (D) 36 (Jul) (Vice President of the Court of Appeal Civil Division, Moore Bick LJ and Sullivan LJ): Construction and scope of s85A of the Nationality, Immigration and Asylum Act 2002 and the UK Borders Act 2007 (Commencement No 7) Order 2011 and their relation to Article 8 and common law duty of fairness.

Patel v Secretary of State [2012] EWCA Civ 741; [2013] 1 W.L.R 63; [2012] 4 All ER. 94; [2012] Imm. A.R. 898; [2012] I.N.L.R. 498; Times, August 30, 2012 (The Master of the Rolls, Vice President of the Queen's Bench Division and Stanley Burnton LJ): Nature of the duty under s47 of the Immigration, Asylum and Nationality Act 2006 and the conflict between the Court of Appeal's judgments in Mirza/Sapkota and Lammichanne/AS (Afghanistan). .

MM (Ghana) v Secretary of State [2012] EWCA Civ 827; Imm A.R. 928 (Toulson LJ and Sullivan LJ): Construction of s104(4) of the Nationality, Immigration and Asylum Act 2002 which provides an appeal to become abandoned on the Appellant's departure from the United Kingdom; The reach of the Court of Appeal's supervisory jurisdiction in respect of abandoned appeals.

JD (Congo) v Secretary of State [2012] EWCA Civ 327; [2012] 1 W.L.R. 3271; [2012] Imm. A.R. 719; [2012] I.N.L.R 412; Times, May 28, 2012 (The Master of the Rolls, Vice President of the Court of Appeal Civil Division and Sullivan LJ): Nature and application of the second appeals test, introduced by s13(6) of the Tribunals, Courts and Enforcement Act 2007, in respect of the appeal to the Court of Appeal from the decisions of the Upper Tribunal.

Lammichhane v Secretary of State [2012] EWCA Civ 260; [2012] 1 W.L.R. 3064; [2012] Imm. A.R. 683; Times, May 30, 2012 (Maurice Kay LJ, Stanley Burnton LJ and Lewison LJ): Nature of the duty on the Secretary of State under s120 of the Nationality, Immigration and Asylum Act 2002 and the conflict between the Court of Appeal's judgments in AS (Afghanistan) and Mirza; Construction of s85, s86 and s96 of the 2002 Act.

Rocky Gurung v Secretary of State [2012] EWCA Civ 62; [2012] I.N.L.R. 401; [2012] All ER (D) 19 (Feb) (Rix LJ, McFarlane LJ and Sir Stephen Sedley): Weight to given by the Tribunal to the public interest in deporting foreign criminals and to the views of the Secretary of State on appeals from automatic deportation orders issued under s32 of the UK Borders Act 2007.

Miah v Secretary of State [2012] EWCA Civ 261; [2013] Q.B. 35; [2012] 3 W.L.R. 492; [2012] Imm. A.R. 702; [2012] I.N.L.R 50; Times, June 6, 2012 (Maurice Kay LJ, Stanley Burnton LJ and Lewison): Scope, reach and basis of Article 8 near miss jurisprudence and the conflict between the Court of Appeal's judgments in Pankia and Rudi.

Sapkota and others v Secretary of State [2011] EWCA Civ 1320; [2012] Imm. A.R. 254; [2012] I.N.L.R 218; [2011] All ER (D) 141 (Nov) (Arden LJ, Jackson LJ and Aikens LJ): Construction of s84(1)(e) of the Nationality, Immigration and Asylum Act 2002 and effect of the Court's judgments in Mirza, SA (Pakistan), TE (Eritrea) and AS (Afghanistan); jurisdiction of the Tribunals and the Court of Appeal; Legal consequences of the Secretary of State failure to issue removal decisions at the same time or immediately after refusing applications for leave to remain.

LB (Jamaica) v Secretary of State [2011] EWCA Civ 1420; [2012] Imm. A.R. 637; [2012] I.N.L.R 286; [2011] All ER (D) 50 (Oct) (Maurice Kay LJ, Moses LJ and Baron J): Construction of the abandonment provisions s104(4)(a) of the Nationality, Immigration and Asylum Act 2002 and the Court of Appeal's appellate jurisdiction.

R (AJ) v Secretary of State [2011] EWCA Civ 1081; [2011] All ER (D) 104 (Sep) (Pill LJ, Etherton LJ and Sir Mark Potter): Scope of s55 of the Border, Citizenship and Immigration Act 2009 in relation to non-appealable decisions and the Administrative Court’s role in considering subsequent Judicial Review applications.

AJ (India) & others v Secretary of State [2011] EWCA Civ 1191; [2011] All ER (D) 222 (Oct) (Pill LJ, Etherton LJ and Sir Mark Potter): Scope of s55 of the Border, Citizenship and Immigration Act 2009 in relation to appealable decisions and the First-Tier/Upper Tribunal's role in considering subsequent appeals.

R (Syed) and Patel v Secretary of State [2011] EWCA Civ 1059; [2012] Imm. A.R. 40; [2012] I.N.L.R 344; [2011] S.J.L.B. 31; [2011] All ER (D) 27 (Sep) (PQBD, Thomas LJ, Elias LJ): Status of the Immigration Rules and the proper approach to their construction subsequent to the Court of Appeal’s judgment in Pankina; construction of Paragraph 276B of the Immigration Rules; Scope of s13 of the UK Border Act 2007.

AQ (Pakistan) v Secretary of State [2011] EWCA Civ 833; [2011] Imm. A.R. 832; [2011] I.N.L.R 33; [2011] All ER (D) 182 (Jul) (Pill LJ, Toulson LJ, Sullivan LJ): Effect of the Court of Appeal’s judgment in AS (Afghanistan) on the ‘fixed historic time line’ requirements of the point based system; construction of one-stop appeal provisions of the Nationality, Immigration and Asylum Act 2002.

Secretary of State v Rahman & others [2011] EWCA Civ 814; [2011] All ER (D) 155 (Jul) (Thomas LJ, Moore-Bick LJ and Stanley Burnton LJ): Legality and effect of the withdrawal by the Secretary of State of the policy DP5/96, commonly known as the seven years children concession policy.

R (Alvi) v Secretary of State [2011] EWCA Civ 814; [2011] All ER (D) 117 (Jul) (PQBD, Jackson LJ, Tomlinson LJ): Legality and effect of the ‘list of skilled occupation’ published by the Secretary of State for the purpose of Tier 2 (skilled migrants) of the point based system; construction of Paragraphs 82 and 83 of Appendix A to the Immigration Rules.

RS (Pakistan) v Secretary of State [2011] EWCA Civ 434; [2011] I.N.L.R. 734; [2011] All ER (D) 172 (Apr) (Carnwath LJ, Patten LJ, Baron J): Construction of Paragraph 120 of Appendix A to the Immigration Rules, which concerns Tier 4 (student) category of the point based system.

QI (Pakistan) v Secretary of State [2011] EWCA Civ 614 (Pill LJ, Longmore LJ, Etherton LJ): Construction of s3C of the Immigration Act 1971 and its scope in respect of Paragraph 245ZX(l) of the Immigration Rules.

R (Mirza & others) v Secretary of State [2011] EWCA Civ 159; [2011] Imm. A.R. 484; [2011] I.N.L.R 464; Times, March 2, 2011; [2011] All ER (D) 245 (Feb) (Sedley LJ, Rimer LJ, Sullivan LJ): Legality of the Secretary of State’s practice to segregate decisions as to variation of leave from the decisions as to removal.

AA (Nigeria) Adedoyin v Secretary of State [2010] EWCA Civ 773; [2011] 1 W.L.R. 564; [2010] Imm. A.R. 704; [2011] I.N.L.R. 1; [2010] N.L.J.R. 1013; Times, July 13, 2010 (Rix LJ, Longmore LJ, Jacob LJ): Construction of mandatory refusal provisions, Paragraph 320(7A) and 322(1A), of the Immigration Rules, which require the Secretary of State to refuse an application if the applicant makes ‘false’ representations (whether or not material and whether or not to his knowledge).

Secretary of State v Pankina & others [2010] EWCA Civ 719; [2011] Q.B. 376; [2010] 3 W.L.R. 1526; [2011] 1 All E.R. 1043; [2010] Imm. A.R. 689; [2010] I.N.L.R. 529; [2010] A.C.D. 93; Times, July 20, 2010 (Sedley LJ, Rimer LJ, Sullivan LJ): Constitutional status of the Immigration Rules; Legality and effect of Appendix C to the Immigration Rules, which was not laid before Parliament in accordance with the Immigration Act 1971.

Anwar & others v Secretary of State [2010] EWCA Civ 1275; [2011] 1 W.L.R. 2552; [2011] Imm. A.R. 314; [2011] I.N.L.R. 111; Times, November 25, 2010; [2010] All ER (D) 114 (Nov) (Sedley LJ, Lloyd LJ, Sullivan LJ): Nature and scope of the bar in s92 of the Nationality, Immigration and Asylum Act 2002; distinction between constitutive and adjudicative jurisdiction of the Tribunal and between in-county and out-of-country appeals.

AT (Pakistan) & others v Secretary of State [2010] EWCA Civ 567; [2010] Imm. A.R. 675; [2010] NLJR 806; [2010] All ER (D) 233 (May) (Laws LJ, Hooper LJ, Rimer LJ): Construction and scope of s32 of the UK Border Act 2007; compatibility of retrospective effect of automatic deportation provisions with Article 7 of the ECHR; scope of the expression ‘penalty’ in Article 7.

AR (Pakistan) v Secretary of State [2010] EWCA Civ 816; [2010] All ER (D) 181 (Jul) (The Chancellor, Moore-Bick LJ, Jackson LJ): Weight to be given to the interests of the children in deportation appeals.

SA (Pakistan) & others v Secretary of State [2010] EWCA Civ 210; [2010] I.N.L.R. 523 (Laws LJ, Sedley LJ, Patten LJ): Construction and scope of s84(1)(e) and s103B of the Nationality, Immigration and Asylum Act 2002.

AS (Afghanistan) & others v Secretary of State [2009] EWCA Civ 1076; [2011] 1 W.L.R. 385; [2010] 2 All E.R. 21; [2010] Imm. A.R. 284; [2010] I.N.L.R. 111 (Arden LJ, Moore-Bick LJ, Sullivan LJ): Construction and scope of the one-stop appeal provisions of the Nationality, Immigration and Asylum Act 2002; jurisdiction of the Tribunal to consider matters that do not relate to the decision under challenge and have not been subject of any decision by the Secretary of State.

ZH (Bangladesh) v Secretary of State [2009] EWCA Civ 8; [2009] Imm. A.R. 450 [2009] I.N.L.R. 434; Times, April 9, 09; [2009] All ER (D) 118 (Jan) (Sedley LJ, Keene LJ, Smith LJ): Construction and scope of the public interest provision of the long residence rule, Paragraph 276B(ii) of the Immigration Rules.

AS (India) & others v Secretary of State [2009] EWCA Civ 1495 (Sedley LJ, Sullivan LJ): Construction and scope of s103 of the Nationality, Immigration and Asylum Act 2002; Court of Appeal’s jurisdiction to entertain an appeal where the Tribunal holds that there is no right of appeal.

High Court (Administrative Court)

R (West London Vocational Training College) v Secretary of State [2013] EWHC 31 (Admin); [2013] All ER (D) 83 (Jan) (Toulson LJ and Simon J): Legality of the Secretary of State's policy guidance concerning educational institutions and construction/rationality of the so-called refusal rate requirement.

R (Thebo) v Entry Clearance Officer [2013] EWHC 146 (Admin); [2013] All ER (D) 62 (Feb) (Mostyn J): Legality of the Paragraph 320(7A)/(7B) of the Immigration Rules (the so-called mandatory refusal rules) and proper role of the Court in a Judicial Review challenge to a decision taken under them.

R (Sharma and others) v Secretary of State [2012] EWHC 3930 (Admin) (Collins J): Scope of the Rule 54.7A of the CPR concerning restrictions on Judicial Review of the non-appealable decisions of the Upper Tribunal.

R (Syed and Sbatha) v Secretary of State [2012] EWHC 3370 (Admin); [2012] All ER (D) 325 (Silber J): Inter-fatih marriages in India in context of a challenge to a certificate issued under s94 of the Nationality, Immigration and Asylum Act 2006 and scope of the duty under s55 of the Borders, Citizenship and Immigration Act 2009.

R (Afzal) v Secretary of State [2012] EWHC 1487 (Admin); [2012] All ER (D) 148 (Jun) (Wyn Williams J): Scope of the duty under s55 of the Borders, Citizenship and Immigration Act 2009 (effect of removal of an Imam to his students) and the nature of the Secretary of State's powers outside the Immigration Rules.

R (Castro) v Secretary of State [2012] EWHC 281 (Admin); [2012] All ER (D) 152 (Feb) (Deputy High Court Judge Charles Geroge QC): Legality of the policy guidance documents requring certain details to be present on the CAS for international students. .

R (Nirula) v First Tier Tribunal [2011] EWHC 3336 (Admin); [2011] All ER (D) 148 (Nov) (CMG Ockelton, Deputy High Court Judge): Construction of s92(4)(a) and s113(1) of the Nationality, Immigration and Asylum Act 2002; nature and scope of the bar in s92(1) of the 2002 Act.

R (Kotecha and Das) v Secretary of State [2011] EWHC 2070 (Admin); [2011] All ER (D) 47 (Aug) (Burnett J): Apparent conflict between Strasbourg jurisprudence and domestic case law concerning marriage based Article 8 claims.

R (Ahmed) v Secretary of State [2011] EWHC 2855 (Admin); [2011] All ER (D) 122 (Nov) (Singh J): Legality of the CAS requirment for international students and the ambit of the Court of Appeal's judgment in Pankina.

R (Khan) & others v Upper Tribunal [2011] EWHC 2763 (Admin) (Ouseley J): Practical guidance as to the procedure to be followed in the Judicial Review applications challenging non-appealable decisions of the Upper Tribunal.

R (MLC) v the Law Society [2010] EWHC 981 Admin; [2010] A.C.D. 62; [2010] 107(20) L.S.G. 18; [2010] N.P.C. 52; [2010] All ER (D) 29 (May) (Sunders J): Construction and scope of s37A and Schedule 1A of the Solicitors Act 1974; effect of Rule 2.11 of the Solicitors’ Code of Conduct; common law right to exercise lien.

R (Abbassi) & others v Secretary of State [2010] EWHC 2894 (Admin); [2010] All ER (D) 145 (Nov) (HHJ Bidder QC): Effect of the withdrawal of the Policy DP5/96 and its relation to Articles 8 and 14 of the ECHR.

R (Jisha) v Secretary of State [2010] EWHC 2043 (Admin) (HHJ Thornton QC): Construction of s113(1) of the Nationality, Immigration and Asylum Act 2002, which provides definition of a human rights claim.

R (Mirza & others) v Secretary of State [2010] EWHC 2002 Admin; [2010] All ER (D) 353 (Jul) (Moses LJ): Legality of the Secretary of State’s practice to segregate decisions as to leave from decisions as to removal.

M v LBTH [2010] EWHC 2921 (Admin); [2011] R.V.R. 74 (Calvert Smith LJ): Construction and scope of Regulation 2 of the Council Tax (Liability for Owners) Regulations 1992 made under section 8 of the Local Government Finance Act 1992, which provides definition of a house in multiple occupation.

R (Juliuson) v Secretary of State [2010] EWHC 2780 (Admin); [2010] All ER (D) 165 (Oct) (Ouseley J): Availability of Judicial Review where the Secretary of State refuses a human rights claim without issuing an appealable decision to remove; the test to be used on Judicial Review claims.

R (Hussein) v Secretary of State [2010] EWHC 1220 (Admin) (Irwin J): Construction and scope of Paragraph 34J of the Immigration Rule; Legality of the practice not to permit withdrawal of applications made to the Secretary of State for policy reasons.

R (Alvi) v Secretary of State [2010] EWHC 2666 (Admin); [2010] All ER (D) 244 (Nov) (Lord Carlile): Construction and effect of the Immigration Rules concerning Tier 2 category of the Immigration Rules.

R (Nadar) v Secretary of State [2010] EWHC 1811 Admin; [2010] All ER (D) 266 (Jul) (Keeneth Parker J): Effect of the Court of Appeal’s judgment in R (H, Q and S); Fresh claim under Paragraph 353 of the Immigration Rules.

Upper Tribunal (IAC)

Mushtaq (s 85A(3)(a): scope: academic progress) Pakistan [2013] UKUT 61 (IAC) (UT Peter Lane): Construction of s85 of the Nationality, Immigration and Asylum Act 2002 and Paragraph 120A of the Immigration Rules, which stipulates the academic progress requirement for international students.

Khatel and others (s.85A: effect of continuing application) Nepal [2013] UKUT 44 (IAC) (President Blake J and UT Judge Coker): Lead Post Study Work category cases concerning individuals who graduated after the category was abolished; construction of s85, s85A and s120 of the Nationality, Immigration and Asylum Act 2002 and Table 10 of Appendix A to the Immigration Rules.

Adamally and Jaferi (section 47 removal decisions: Tribunal procedures) Pakistan CG [2012] UKUT 00414 (IAC) (Vice President CMG Ockeleton and UT Judge Hanson): Tribunal procedures in relation to removal decisions issued by the Secretary of State under s47 of the Immigration, Asylum and Nationality Act 2006.

MN and others (Ahmadis - country conditions - risk) Pakistan CG [2012] UKUT 389 (IAC) (UT Judge Storey, UT Judge Gleeson and UT Judge Dawson): Country guidance on Ahmadis in Pakistan.

Mubu (immigration appeals - res judicarta) Zimbabwe [2012] UKUT 398 (AC) (UT Judge Storey and UT Judge O'Connor): Application of the public law principles of res judicarta in relation to immigration appeal and proper approach to earlier appeal decisions.

Ali (s.120 - PBS) Pakistan [2012] UKUT 368 (UT Judge Allen and UT Judge Chalkley): Construction of s85, s85A and s120 of the Nationality, Immigration and Asylum Act 2002 in context of an appeal against refusal of an application for leave to remain made under the Point Based System of the Immigration Rules.

Ahmadi (s47. decsion; validity; Sapkota) Afghanistan [2012] UKUT 147 (IAC) (UT Judge Peter Lane): Construction of s47 of Immigration, Asylum and Nationality Act 2006 and legality of the Secretary of State's new policy to issue a removal decision at the same time as refusing a persons leave to remain in the United Kingdom.

Shahzad (s85A: Commencement) Pakistan [2012] UKUT 81 (IAC) (Vice President CMG Ockelton and UT Judge Sutheren): Effect of the Article 2 of the UK Borders Act 2007 (Commencement No 7 and Transitional Provisions) Order 2011 that amends s85 of the Nationality, Immigration and Asylum Act 2002 and introduces s85A in the 2002 Act.

Fiaz (cancellation of leave to remain - fairness) India [2012] UKUT 57 (IAC); [2012] Imm. A.R. 497; [2012] I.N.L.R 385 (President Blake J and UT Judge King): Legality and effect of Article 13(5) of the Immigration (Leave to Enter) Order 2000 made under the provisions of the Immigration Act 1971; Legality of election by the Immigration Officer to use the cancelation provision instead of curtailment provision; Construction of Paragraph 321A of the Immigration Rules.

Patel (consideration of sapkota - unfairness) India [2011] UKUT 484 (IAC) (President Blake J and UT Judge Perkins): Scope and reach of the Court of Appeal's judgment in Sapkota and public law duty of fairness.

Qureshi (Tier 4 - effect of variation - App C) Pakistan [2011] UKUT 412 (IAC) (UT Judge Kekic and UT Judge Dawson): Effect of a variation of application under s3C(5) of the Immigration Act 1971 on maintenance requirements in Appendix C to the Immigration Rules and construction of the expression "date of application".

Kishver (“limited leave”: meaning) Pakistan [2011] UKUT 00410 (IAC) (Vice President CMG Ockelton and UT Judge Southern): Construction of s10(i)(a) of the Immigration and Asylum Act 1999.

Butt (para 245AA(b) - “specified documents” - judicial verification) Pakistan [2011] UKUT 00353 (IAC) (Vice President CMG Ockelton and UT Judge Southern): Scope of Paragraph 245AA(b) of the Immigration Rules; the role of the Tribunal’s judges when an Appellant provides a document, for the first time, at the hearing so as to give to no opportunity to the Secretary of State to verify its authenticity.

RG (Automatic deport - Section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC); [2012] Imm. A.R. 84; [2011] I.N.L.R 629 (President Blake J and U Judge Eshun): Effect of the ECTHR’s judgment in Maslov v Austria; scope of s33(2)(a) exception of the UK Border Act 2007; distinction between lawful residents and unlawful residents in respect Article 8 proportionality assessment.

MU (‘statement of additional grounds’ - long residence - discretion) Bangladesh [2010] UKUT 442 (IAC) (UT Judge McKee): Construction of s3C of the Immigration Act 1971 and its scope in respect of Paragraph 276B(i) of the Immigration Rules; construction and scope of Paragraph 276A1-4 of the Immigration Rules and the nature of the knowledge of English and life in the United Kingdom requirement.

MS (AS & NV considered) Pakistan [2010] UKUT 117 (IAC) (UT Judge Allen): Effect of the Court of Appeal’s judgment in AS (Afghanistan); the role of Tribunal’s judges in determining one-stop grounds.