Legal Practitioners & Co Ltd Immigration legal Services

14/06/2024

By Sonia Lenegan on Jun 04, 2024 12:50 pm

Blue British post-Brexit passportThe British Nationality (Irish Citizens) Act 2024 was one of the final pieces of legislation passed by the government before dissolution and when brought into force it will provide an entitlement to registration as a British citizen to Irish citizens who meet the requirements.

14/06/2024

High Court decides there is no oral permission hearing in Cart judicial reviews.

The High Court has held that, when judicially reviewing a decision of the Upper Tribunal refusing permission to appeal (known as a Cart judicial review), there is no oral permission hearing. This was the conclusion reached in Karim v Upper Tribunal (Immigration and Asylum Chamber) [2024] EWHC 1368 (Admin).

The Civil Procedural Rules appear to provide two remedies following refusal of permission to proceed with a Cart judicial review:

A request for the decision to be reconsidered at an oral hearing (under rule 54.12(3)). This rule is of general application.
An appeal to the Court of Appeal (under rule 52.8(2)). This rule applies specifically to Cart judicial reviews.
The claimant argued that an oral reconsideration request was available for six reasons:

The rules confer both a right to request reconsideration at an oral hearing in the High Court and a right of appeal to the Court of Appeal.
The express restriction on oral reconsideration previously found in the rules is no longer there. The rules previously unambiguously stated: “If the application for permission is refused on paper without an oral hearing, rule 54.12(3) (request for reconsideration at a hearing) does not apply.”
The question of whether judicial review is ousted by section 11A of the Tribunals, Courts and Enforcement Act 2007 is distinct from the question of which court can consider whether judicial review is ousted.
The court only lacks jurisdiction if section 11A has been correctly applied. Such a question can, in principle, be revisited at an oral reconsideration hearing in the High Court; just as it can be revisited in the Court of Appeal. A decision refusing permission on the papers does not deprive the High Court of jurisdiction to consider, at an oral hearing, whether that decision was correct.
The question of whether an oral reconsideration hearing is unavailable was not one of the issues the Court of Appeal provided binding guidance in relation to in LA (Albania) v The Upper Tribunal (Immigration & Asylum Chamber) [2023] EWCA Civ 1337 (see here for Free Movement’s write up).
There must be jurisdiction in exceptional circumstances to avoid a serious injustice.
These arguments were rejected by the High Court. In relation to each of the points the court held:

“The rules cannot sensibly be interpreted as conferring two simultaneous rights: reconsideration in the High Court by request within 7 days (CPR 52.8(2)(4)); and application for permission to appeal to the Court of Appeal by request within 7 days (CPR 54.12(3)(4))” (at [12]).
The rules do not “need to spell the position out” even though they previously did prior to 5 April 2023 (at [12]).
The Supreme Court in Cart did not say that the level of independent scrutiny required by the rule of law involved reconsideration of permission for judicial review at an oral hearing (at [11(v)]).
Once a decision has been made, on the papers, to refuse permission that is the end of the process in the High Court. Whether the judge was right becomes a question for the Court of Appeal (at [14]).
LA (Albania) is binding on the Hight Court and could not be departed from. Although the availability of an oral hearing was not one of the main issues in that case, it was specifically addressed by the court (at [15]).
The remedy for any injustice is an appeal to the Court of Appeal (at [17]).
In LA (Albania) the Home Office had argued that the Court of Appeal could not hear the appeal as there had been no oral hearing. This argument was rejected:

…the objection made on behalf of the Secretary of State is not sustainable… the High Court was right to dismiss Ms LA’s request to have a renewed hearing of the application for permission to apply for judicial review. This was because it did not have jurisdiction to hear the application for permission to apply for judicial review. This explains why CPR 52.8(2) remains in the same terms. This is because, following the introduction of section 11A of the 2007 Act, if permission to apply for judicial review of a decision of the Upper Tribunal has been refused, the High Court will not have had jurisdiction to have an oral hearing of the renewed application for permission to apply for judicial review. The applicant may seek permission to appeal that conclusion from the Court of Appeal, as Ms LA has done here. (LA (Albania) at [29]).

The High Court in Karim suggested that: “…the Court of Appeal was plainly intending to provide clarity on an important procedural issue” (at [15]). That, in itself, was enough to justify following their decision.

As such, the only remedy available in England is an appeal to the Court of Appeal.

This decision is not binding in Scotland. Anyone pursuing judicial review north of the border will still be able to request an oral reconsideration hearing under section 27C of the Court of Session Act 1988.

In Scotland, a right of appeal against a decision refusing permission is only conferred following an oral hearing (Court of Session Act 1988, section 27D). There is no specific provision, as there is in England, providing for an appeal against a refusal of permission on the papers in a judicial review of a decision of the Upper Tribunal (known as an Eba judicial review in Scotland). As such, the rules in Scotland do not confer two simultaneous rights which need to be reconciled with one another as was the case in Karim.

29/04/2024

RWANDA FLIGHTS UPDTE, Free Movement
Weekly newsletter

Welcome to the weekly Free Movement newsletter!

First of all, a quick reminder that our membership prices are going up on Wednesday this week (1 May).

It's been a week. On Tuesday morning, hours after the Safety of Rwanda Act completed its final stages in parliament, five people included a little girl died while trying to make the journey across the Channel. 58 other people who were in that boat continued with the crossing. The same day another 402 people were detected while making the crossing. Yet we are supposed to believe that a miniscule chance of being sent to Rwanda will achieve what none of these deaths have, which is to stop people from making that journey.

Reports over the weekend indicate that people may be detained this week for Rwanda flights (despite the Prime Minister saying that flights will not take off for 10 to 12 weeks) in a desperate attempt by the government to get a boost ahead of the local elections on Thursday (don't forget to vote!). Sharing these things without proper context is likely to create a huge amount of panic. Not everyone who is reporting will be at risk and the inadmissibility guidance sets out the target group for any Rwanda removals. For those who are at risk, if they receive a new notice of intent that says they may be sent to Rwanda then lawyers are available to help and they must seek legal assistance immediately. Despite the shortage in legal aid lawyers, everyone has been clear that these cases will be prioritised.

As to what will face anyone who is sent to Rwanda, a comment made by the Rwandan official in charge of the agreement last week is instructive. When asked whether those sent there would be able to criticise the government and protest, she said that "you have to remember that refugees in general, and with regard to the political activities of refugees, they're restricted by the Refugee Convention". This is certainly news to me. For anyone who is still unaware, the context for this question is the fact that 12 refugees were killed by Rwandan police when protesting against their conditions in 2018.

Book your place now
Following on from our article on legal challenges to the inadmissibility process, last week it was reported that a judicial review in Northern Ireland challenging the use of the inadmissibility process has been granted permission with the full hearing due to take place in October. This is an incredibly important topic and our newest webinar is an advanced course on inadmissibility challenges. This will take place on 22 May and be presented by expert Jed Pennington of Wilsons. There is an earlybird discount of 20% available on bookings made before Wednesday 8 May 2024.

Also on the blog last week, I wrote up the latest ad hoc statistics on asylum, Colin got mad at the Supreme Court and there was a refreshingly well-written decision from the Upper Tribunal giving guidance on assessing well-founded fear under the Nationality and Borders Act 2022.

For anyone wondering what is going on with Ireland and the UK in relation to asylum at the moment and why this new legislation is happening, my write up of the legal case which has prompted all of this may be worth revisiting.

Read on for the rest of what was on Free Movement last week and what we have been reading elsewhere.

Cheers, Sonia

01/12/2023

https://www.icj.org/gaza-occupied-palestinian-territory-states-have-a-duty-to-prevent-genocide/?shem=sswnst

LEGAL BRIEFER: States’ Duty to Prevent Genocide under the 1948 Genocide Convention This legal briefer focuses on States’ duty to prevent genocide under international law. However, the International Commission of Jurists (ICJ) notes that there are credible allegations of other serious crimes unde...

20/11/2023

After the highest court in the country recently found against the government in a legal challenge brought by refugees who could not be returned to their country of origin, the government responded by introducing emergency legislation in a move that some experts are calling “unconstitutional”. As ever, there are interesting parallels to be found between Australia and the UK. It is also worth remembering that Australia does not have a Human Rights Act, yet cases like this are still litigated, and won.

Here in the UK, the Supreme Court was explicit last week that the decision to reject the government’s appeal in the Rwanda case was not based on the ECHR and Human Rights Act alone, however that was still not enough to discourage the usual suspects from calling for the UK to abandon the Convention. It is a good time to revisit this article on what happened when people seeking asylum arrived in Diego Garcia, where it was determined that even though the ECHR and Refugee Convention does not apply they could not act in breach of the international principle of non-refoulement. This morning Jed Pennington has set out his reflections on the case.

As to what is going to happen next, there is a lot of speculation at the moment, but it appears that the way the government intends to proceed is to fix the asylum system in Rwanda such that the risk of non-refoulement is no longer an issue. That seems an optimistic way for them to proceed, and we await further details as to how this would work and of course the relevant timescales.

There has been a lot of chat about the inability of the government to use the Parliament Act to force the legislation through, however I think it is worth bearing in mind that the government did not need to use this to pass the Illegal Migration Act, as they had enough Peers to get it voted through. So I am not sure that I would be pinning my hopes on any new legislation not passing, but if the government does intend to re-try Rwanda, the most likely course of action seems to be that it would be re-litigated and eventually time out with a general election. But who really knows at this point in time. There have been reports that we may see the new treaty with Rwanda this week, although even that would not leave it with enough time to be ratified this year. The legislation is expected after that.

The most important thing that needs to happen now is that we all work towards getting people who are in the inadmissibility procedure into the asylum system. The Home Office seems to be aware that this needs to happen. The media has been misdescribing this as an amnesty, which it is not. All that will happen is that people will have their asylum claims considered and decided on their merits.

On Friday an Albanian man died in immigration detention at Brook House IRC. A second made an attempt on his life. Brook House remains unsafe, as do forced removals, and the targetting of Albanians by the government has had a tragic outcome in this case.

Elsewhere, coverage of the Home Office refugee evictions scandal continues. The Standard spoke to one affected person and to Refugees at Home. In Northern Ireland, Participation and the Practice of Rights published a new briefing on the issue with some interesting FOI data. Liverpool Echo described it as a ‘humanitarian disaster’ and ‘a catastrophe that is only going to get worse’. Tim Farron’s written questions to the Department for Work and Pensions have now been answered. The DWP stated:

“Individuals do not need to have received their Biometric Residence Permit before making a claim to Universal Credit. They will need to be able to verify their identity and their refugee status for their claim to be processed. Although refugees normally rely on their Biometric Residence Permit to verify their identity and their refugee status, other documents can be accepted.

DWP Staff are instructed to consider all available evidence when assessing a benefit claim, including checking directly with the Home Office to confirm immigration status where they are unsure. We are currently reviewing the guidance for staff on acceptable evidence for refugees including alternative evidence for those yet to receive a Biometric Residence Permit.”

So no details were provided about what documents other than a BRP can be used to access benefits, and it appears that the DWP has not even decided on what guidance to give to staff on what alternatives can be used. It is not unusual for refugees to not have any other identity documents. All of this should have been thought about and worked through before thousands of newly recognised refugees were evicted to the streets.

On Free Movement, we updated this important briefing on Palestinian refugees in light of recent statements made by UNRWA.

Read on for our full round up of the week here and elsewhere, and a final reminder that we are looking for some new regular contributors.

Cheers, Sonia
Free Movement

28/10/2023

Children are paying the heaviest price as violence in Gaza and Israel escalates. Tell Prime Minister Rishi Sunak to do all he can to protect children.  

17/10/2023

https://freemovement.us7.list-manage.com/track/click?u=f9bd6cf96dfcc32f56ee73924&id=903f2030cc&e=fff93c8c51

The Home Office has conceded the latest in an increasingly long line of cases challenging the operation of the no recourse to public funds policy. This challenge was to the refusal to lift the no recourse condition from a person with section 3C leave as a student dependant. The case is PA & Anor, R

18/07/2023

Rishi Sunak told MP’s his illegal Migration Bill was LEGAL

A Joint Committee on Human Rights has now published a damning verdict finding it BREACHES A NUMBER OF THE UK’S INTERNATIONAL LEGAL OBLIGATIONS!

The UK media strongly does not seem all over this.

By Pever Stefanovic

18/07/2023

https://www.theguardian.com/business/2023/jul/18/uk-visa-rules-foreign-brexit-shortages-construction?CMP=share_btn_link

Bricklayers and other construction jobs added to list alongside care workers and engineers

29/06/2023

https://freemovement.us7.list-manage.com/track/click?u=f9bd6cf96dfcc32f56ee73924&id=152b3133bd&e=fff93c8c51

The Court of Appeal has found, by a majority, that the Rwanda plan is unlawful as Rwanda is not a sufficiently safe country. In short, the Rwandan authorities are not yet reliably able to sort genuine from non-genuine refugees, and therefore there is too great a risk that genuine refugees will be re...

05/06/2023

https://freemovement.org.uk/can-spouses-of-british-citizens-naturalise-after-three-years/ #:~:text=Indefinite%20leave%20to%20remain%20as%20a%20spouse,-The%20rules%20on&text=So%20although%20spouses%20of%20British,spouse%20is%20after%20five%20years.

The law of British citizenship can be confusing: while it may seem like spouses of British citizens can naturalise after three years, it's really five.

19/05/2023

https://the3million.org.uk/eu-settlement-scheme-backlog