Where a third-country national, who is a family member of an EU citizen living in their home member state who has not exercised their right to freedom of movement, makes an application in that member state’s territory for residence on the basis of family reunification, article 20 of the Treaty on the Functioning of the EU precludes the member state refusing to examine the application solely on the ground that the third-country national is subject to an entry ban. The member state must carry out an examination of whether the EU citizen would, in practice, be compelled to leave the territory of the EU. Where the EU citizen is an adult, a relationship of dependency capable of justifying the grant of a derived right of residence to the third-country national is conceivable only in exceptional cases. Where the EU citizen is a child, the assessment must consider their best interests.

A member state cannot consider automatically that an EU citizen who has previously been excluded from refugee status under article 1F of the 1951 Convention Relating to the Status of Refugees or article 12(2) of Directive 2011/95/EU represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society capable of justifying a decision to exclude them on the grounds of public policy or public security, whether or not there is any risk of reoffending. Consideration must be given, inter alia, to the personal conduct of the person concerned, the nature and gravity of the crimes, the time that has elapsed, and the individual’s subsequent conduct.

Article 28(3)(a) of Directive 2004/38/EC (Citizens Directive), which provides that an EU citizen who has resided in the host member state for 10 years can only be expelled on ‘imperative grounds of public security’, only applies to EU citizens who have a right of permanent residence. In the case of an EU citizen who is serving a prison sentence, this condition may be satisfied where the integrative links between the person and the host member state have not been broken.

The applicant had been tested by an ‘expert’, who had administered ‘an exploratory examination, an examination of personality and several personality tests, namely the “Draw-A-Person-In-The-Rain” test and the Rorschach and Szondi tests’ (para 22), and concluded that the applicant was not gay. The court took the view that Directive 2011/95/EU does not preclude the asylum authorities and/or courts and tribunals from ordering that an expert’s report be obtained, but concluded firmly that the Directive does preclude the use of ‘a psychologist’s expert report … the purpose of which is, on the basis of projective personality tests, to provide an indication of the sexual orientation of that applicant’ (para 71).

In this case, the court found a violation of the applicant’s right to private life on the basis that, as a stateless person, he was unable to regularise his residence status in Croatia notwithstanding that he had lived in the country for most of his life.

There had been a breach of article 8 where the applicant, an Azerbaijani who had been resident in Russia since 2002 or 2003 and had not had a residence permit for most of that period, was expelled from Russia in 2014 and subjected to a five-year re-entry ban. He had a Russian wife and two children at the date of his expulsion (and their third child was born shortly after), and suffered from serious health problems that prevented him from travelling. The domestic courts ‘neither carefully balanced the different interests involved – including the best interests of the children – nor made a thorough analysis as to the proportionality of the measure applied against the first applicant and its impact on the applicants’ family life’ (para 58).

The court found no breach of article 8 in respect of a Nigerian national who had been convicted of the ‘very serious’ offence of drug trafficking and had served eight years in prison despite having been granted a residence permit for one year prior to his sentence and shared family life with his daughter, from whom deportation would cause separation. The court took account of the fact that, at the time of judgment, his daughter had nearly reached 18 and would be able to maintain contact by electronic means and via visits from the applicant twice a year for a total period of four weeks. In addition, the court noted that the applicant had committed further offences after release from prison and the exclusion was also limited to five years.

France had violated article 3 by deporting the applicant, who had been convicted of terrorist offences, to Algeria considering the evidence that those suspected of terrorism in Algeria were often detained, ill-treated or tortured. It had also violated article 34 by deporting him in breach of an interim measure and leaving him with no time to apply to the court for a second interim measure before his deportation was carried out.

The court made a reference to the Court of Justice of the EU in respect of the question of whether S was a ‘family member’ within article 2. The court also approved Khan v Secretary of State for the Home Department [2017] EWCA Civ 1755 in holding that the 2006 Regulations do confer a right of appeal on those who have unsuccessfully applied for residence cards as extended family members of EU citizens.

When a tribunal is considering whether a person has ceased to be a refugee, ‘the relevant question is whether there has been a significant and non-temporary change in circumstances so that the circumstances which caused the person to be a refugee have ceased to apply and there is no other basis on which he would be held to be a refugee’ (para 2(1)). It is not necessary for the home secretary to show that the country of return now has a functioning government or an effective legal system for protecting human rights. The question of cessation is separate from the question of whether article 3 of the European Convention on Human Rights (ECHR) would be breached by return. The First-tier Tribunal (FTT) and UT had erred in taking into account the humanitarian conditions in Somalia when determining the issue of cessation.

The Court of Appeal largely endorsed the decision in Chege (‘is a persistent offender’) [2016] UKUT 187 (IAC); July/August 2016 Legal Action 30 as regards the meaning of the expression ‘persistent offender’ in para 398 of the Immigration Rules. The court rejected the home secretary’s submission that the status of ‘persistent offender’, once acquired, could never be lost and the submission that Nationality, Immigration and Asylum Act (NIAA) 2002 s117D requires the tribunal to give ‘significant weight’ to the home secretary’s view as to whether para 398(c) is satisfied. On the facts, the court accepted the home secretary’s argument that the appellant, who had been convicted of various frauds relating to the use of false documentation over a period of several years and sentenced to three consecutive terms of seven months’ imprisonment, was a persistent offender.

Indemnity costs were ordered against the home secretary where she had sought and obtained permission to appeal on the basis that there were ‘systemic failures’ by the UT in failing to correct errors of law by the FTT in deportation appeals, but had subsequently not pursued this allegation at the substantive hearing. This was an unusual allegation and a serious one, and without it the single judge would not have granted permission to appeal. The grounds that the home secretary did pursue at the substantive hearing did not succeed.

The tribunal is entitled to go behind a factual concession made by one of the parties where there are exceptional circumstances, provided that it draws this to the attention of the parties and gives them the opportunity to address it.

The Court of Appeal reiterated that the adult dependent relative rules are ‘rigorous and demanding’, and held that the UT had been right to set aside the FTT’s decision, inter alia, because there was no independent evidence that the appellant could not receive the required level of care in the country where she was living. As to ECHR article 8, the court considered that the appellant’s daughter could reasonably be expected to go back to South Africa to provide emotional and practical support for her mother.

The UT had been wrong to permit the appellant to mount an indirect challenge to the decision of the competent authority that he was not a victim of trafficking. In an appeal, the appellant can only invite the tribunal to go behind the trafficking decision and redetermine the factual issues as to whether trafficking has in fact occurred if the decision of the authority is shown to be perverse or irrational or one that was not open to it. A challenge to a negative trafficking decision should be made by way of judicial review.

An Administrative Court judge had granted last-minute interim relief restraining the home secretary from removing the respondent from the UK. Subsequently, the respondent was removed, and two other judges granted interim relief ordering his return to the UK. The Court of Appeal allowed the home secretary’s appeal against the three orders because the respondent’s solicitors and counsel had made a mistake of fact in the application that had led to the judges granting injunctions on a mistaken factual basis. The legal team had wrongly believed, and had told the court, that the respondent’s ECHR article 8 claim had been certified as manifestly unfounded. In fact, it had been considered and rejected by the FTT. This was a fundamental mistake of fact. The court emphasised that the fact that further representations had been made did not necessarily preclude removal.

In adopting the criterion of ‘compelling personal circumstances’ for granting leave to remain to victims of trafficking, the home secretary’s guidance failed to reflect the requirements of article 14 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005.

The Court of Appeal held that, in any event, they did not satisfy the test in Paposhvili, the effect of which was that ECHR article 3 was no longer confined to ‘deathbed’ cases, but now extended to cases where the applicant faced a real risk of rapidly experiencing intense suffering in the receiving state because of their illness and the non-availability there of treatment that was available to them in the removing state, or faced a real risk of death within a short time in the receiving state for the same reason. The court rejected a wide interpretation of para 183 of Paposhvili, which would have encompassed any case where there was a significant reduction in life expectancy as a result of the difference in the available treatment. The appellants’ cases did not meet the Paposhvili threshold and were held not to be ideal vehicles for considering the impact of it as a matter of domestic law.

The UT had erred in making a mandatory order requiring the home secretary to bring the respondent, an unaccompanied asylum-seeking child then in Italy, to the UK. Contrary to the UT’s view, the responsibility of the UK under article 17 of Regulation (EU) 604/2013 (Dublin III) is not engaged unless the asylum-seeker has lodged an asylum application in the UK. The UT had also erred as regards ECHR article 8. It did not take sufficient account of the circumstances in which RSM was living and the support that was available to him, and article 8 considerations could not prevail unless the case met the high threshold of ‘an especially compelling case’ as set out in Secretary of State for the Home Department v ZAT and others [2016] EWCA Civ 810; [2016] 1 WLR 4894; February 2017 Legal Action 31.

The Court of Appeal held that where an individual is deported on the basis of an unlawful certificate, the court has a discretion as to whether to make a mandatory order against the home secretary to return them to the UK so that they can conduct their appeal in-country. There is no presumption in favour of return, even where certification is unlawful. The exercise of the discretion will be fact-sensitive. The fact that that person has been unlawfully deprived of an in-country appeal to which they are entitled under statute is the starting point and a factor telling strongly in favour of ordering their return. It will be a highly material consideration if the deportation was lawful or apparently lawful and it will also be material if the individual has been removed in the face of a stay on removal. The extent to which the individual’s appeal will be adversely affected if they are not returned to the UK will also be highly relevant. If the court assesses that they could not effectively pursue an appeal from abroad, then that may well be determinative in favour of exercising that discretion to make a mandatory order for return.

The court emphasised that a solicitor’s duty to the court ‘includes an obligation on practitioners to ensure that they are fully equipped with all relevant documentation before commencing proceedings or making applications and this means that practitioners must make real efforts to obtain documents from previously instructed solicitors. It means that practitioners must act candidly and bring to the attention of the court or tribunal gaps and lacuna in their evidence’ (para 96).

A solicitor’s appeal against the decision of the Solicitors Disciplinary Tribunal (SDT) was dismissed by the Administrative Court. The SDT had found that the solicitor, who specialised in immigration and asylum, had exploited a ‘weak spot’ in the Immigration Rules, whereby the home secretary could not remove a person who had made further submissions that purported to be a fresh claim until she had reached a decision on the submissions. The SDT considered that the appellant had assisted individuals in making last-minute submissions that lacked merit and were designed to obstruct removal. In some cases, he had not formally gone ‘on the record’ but this, in the court’s view, did not affect his obligations to the UT, including to be candid with the UT about the individual’s immigration history.

The decision was quashed.

A notice of removal window (RED.0004), served on a Pakistani national who had previously applied unsuccessfully for a residence card as a family member of a European Economic Area (EEA) national, was not an ‘EEA decision’ within the meaning of I(EEA) Regs reg 2.

This appeal, to which the pre-Immigration Act (IA) 2014 appeals provisions applied, concerned situations where the home secretary has deemed an application to be invalid due to a failure to process payment, even though the application was valid on its face. The UT held that, following Basnet (validity of application – respondent) Nepal [2012] UKUT 113 (IAC), it remained appropriate for the home secretary to bear the burden of proof.

Immigration officers carrying out an investigation into a suspected sham marriage are not required to follow the Police and Criminal Evidence Act 1984 (PACE) Codes of Practice concerning the giving of a ‘criminal’ caution, in circumstances where the investigation is only into whether an administrative breach has occurred.

Even where an appellant succeeds in a ‘Cart’ judicial review, the result of which is that the UT’s decision refusing permission to appeal is quashed, the UT still needs to be satisfied that there is in fact an error of law in the FTT’s decision before it will be set aside. A ‘Cart’ judicial review is a challenge to the UT’s decision and not an opportunity to put forward new grounds of appeal against the FTT’s decision, and sanctions can be imposed on legal representatives who draft misleading grounds.

The appellant then applied for wasted costs on the basis that the home secretary should have conceded at an earlier stage. The UT refused the application, reminding tribunals that ‘the power to award costs in rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is to be exercised with significant restraint’. The home secretary did not act unreasonably in reserving her position until she had seen all of the evidence.

If issue 4 is reached, the onus is on the home secretary to demonstrate that a satisfactory video-link facility can be established, at the home secretary’s expense. If, having dealt with the above issues, the FTT considers that the appeal cannot lawfully be determined while the appellant is outside the UK, the correct response is to give a direction to that effect and adjourn the proceedings, to enable the home secretary to secure the appellant’s return.

Under the new appeals regime, it is the refusal of a protection or human rights claim and not the making of an immigration decision that attracts a right of appeal. This appeal arose from an entry clearance application as a returning resident made by the appellant, who had been granted indefinite leave to remain in 2003 but had returned to Sierra Leone in 2004. In the application, she relied, inter alia, on her relationship with her father and sister in the UK. The FTT concluded that the application was not a human rights claim and that the appellant had no right of appeal. On appeal to the UT, the home secretary’s guidance on what constitutes a human rights claim (Rights of appeal, version 6.0, 9 October 2017) was considered, including the fact that it is not necessary for the application form to raise human rights; the home secretary still needs to consider what the applicant’s reasons are for wanting to remain in the UK and decide whether those reasons amount to a human rights claim. The UT concluded that the appellant had indeed made a human rights claim and that her appeal was valid.

The president of the UT, Lane J, held that it was no longer possible to allow an appeal on the basis that the decision was not in accordance with the law, and to that extent Greenwood (No 2) (para 398 considered) [2015] UKUT 629 (IAC); February 2016 Legal Action 19 should not be followed. Although the FTT had been wrong to allow the appeal on that basis, the error was not material because it was inevitable that the appeal would be allowed on the basis that Mr Charles’s deportation was a disproportionate interference with his ECHR article 8 rights.

A person who has already been deported, and in respect of whom a deportation order remains in force, remains ‘liable to deportation’ and therefore cannot rely on NIAA 2002 s117B(6) as amended by the IA 2014.

Where a person comes within the terms of UK Borders Act (UKBA) 2007 s32, their deportation is automatically deemed to be conducive to the public good within the meaning of IA 1971 3(5)(a). Thus, a person who has convictions that engage UKBA 2007 s32, but cannot be deported (for example, because they are at risk of serious harm on return), is nonetheless ‘liable to deportation’. Thus, the power to revoke indefinite leave to remain under NIAA 2002 s76 can be exercised in such a case. To that extent, Ali (section 76 – ‘liable to deportation’) Pakistan [2011] UKUT 250 (IAC) was held to be wrongly decided.