News & Views Monday 23rd September to Sunday 29th September 2019


Power to Close Down Businesses Employing Illegal Workers Goes Virtually Unused

The Immigration Act 2016 authorises immigration officers to temporarily close businesses persistently employing illegal workers. The provision is one of several that make up the hostile environment policy, which has been rebranded the “compliant environment”. The objective of the policy is to encourage those without permission to live and work in the UK to depart voluntarily.

Under Schedule 6 of the Immigration Act 2016, a high-ranking immigration officer may prohibit access to a business’s premises if it is employing an illegal worker and its history includes an illegal working offence or an order to pay an illegal working penalty within the last three years, or it has failed to pay an illegal working penalty. The officer displays the notice on the door to the premises.

Read more: Freemovement,

Upper Tribunal: No Reason to Change Sudan Country Guidance

The Upper Tribunal in AAR & AA (Non-Arab Darfuris – return) Sudan [2019] UKUT 282 (IAC) has rejected a Home Office attempt to resume returns of non-Arab Darfuris to Sudan. The tribunal upheld its previous guidance, reaffirming the position that all non-Arab Darfuris are at risk of persecution in Sudan, and internal relocation to Khartoum is not an option.  The tribunal allowed both appeals on asylum grounds, ignoring previous adverse credibility findings relating to the appellants’ accounts of treatment in Sudan.  For those who don’t ordinarily deal with Sudanese cases, this is because non-Arab Darfuri asylum claims are based solely on ethnicity. Once this ground has been made out, everything else is irrelevant and they should be granted refugee status on that issue alone.

Read more: Freemovement,

CJEU: Expulsion of Family Members Who Lose Right of Residence Must Still Comply with EU Law

In the case of C-94/18 Chenchooliah the Court of Justice of the European Union returns to the contentious issue of the rights of family members of EU citizens. Family members like to have rights, governments like to be able to remove family members and the judges are called on time and time again to adjudicate. EU law offers a package of strong and enforceable rights which must be interpreted to reinforce their purpose; governments really don’t like that one little bit.

Read more: Freemovement,

KH v Home Secretary - 'Error of Law' Decision

1. The appellant is a citizen of Algeria. In an 'error of law' decision dated 14 February 2019, I found that the First-tier Tribunal ('FTT') erred in law and decided that the decision would be re-made by me in the Upper Tribunal ('UT') at an adjourned hearing.

2. I make it clear from the beginning that it was agreed by both parties that the appellant should be treated as a vulnerable witness, and I do so. The FTT accepted the appellant's claim to be a victim of domestic violence. The appellant has given a chilling account of sustained and very serious physical and emotional abuse over an extended period, that is now accepted.

Convention reason
30. The appellant faces a well-founded fear of persecution in Algeria for reasons relating to her being a woman, and this constitutes a 'particular social group' in Algeria. I do not need to address this in more detail because Mrs Pettersen maintained the position in the respondent's decision letter at [33] that is the relevant Convention Reason.

Para ADE(1)(vi) of the Immigration Rules
31. Given my findings in relation to the appellant's claim for international protection, it is unnecessary for me to address the alternative submission under the Immigration Rules. Ms Mair did not make any discrete oral submissions in relation to this issue.

32. I remake the decision by allowing the appellant's appeal on asylum grounds and find that her removal would breach the Qualification Directive and Article 3 of the ECHR.

Ms M. Plimmer Judge of the Upper Tribunal, Date:26 June 2019,

SO (Anonymity Direction Made) Appellant v Home Secretary 

Decision And Reasons

1. The Appellant is a national of Nigeria. The Appellant appealed against the decision of the First-tier Tribunal, who, in a determination promulgated on the 7 th March 2019, dismissed her appeal against the decision of the Respondent made on the 25 th March 2018 to refuse her application for leave to remain.

2. Permission to appeal was granted by First-tier Tribunal Judge Parkes on the 15 th April 2019.

3. An 'error of law' hearing was listed on the 20 th May 2019 and the Tribunal heard submissions from each of the advocates. I reserved my decision and, in a decision, promulgated on the 21 st May 2019, I set out why I had reached the conclusion that the decision of the FtT involved the making of an error on a point of law. The issue before the Tribunal related to the operation of S117B(6) and the best interests of the children concerned. In the decision, I preserved a number of findings of fact which were not affected by the error of law at paragraph 47 and the matter was set down for a hearing before the Upper Tribunal to remake the decision.

4. In an email sent on 24 th June 2019 the Respondent sought permission to withdraw his case under Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 on the basis that there had been fresh material since the FtT hearing and in the circumstances the Respondent was content to withdraw their case and to not oppose the appeal.

5. I have considered the basis upon which the Respondent seeks to withdraw his case. Having regard to SM (withdrawal of appealed decision: effect) Pakistan [2014] UKUT 64 (IAC) and TPN (FtT appeals - withdrawal) Vietnam [2017] UKUT 295 (IAC), I consider it appropriate, for the reasons given, to consent to the withdrawal of the Respondent's case.

6. Consequently, I proceed on the basis of the written request made on behalf of the Respondent. As there is no challenge to the case advanced by the Appellant by the Respondent having already found an error of law, I remake the appeal allowing the Appellant's appeal.

Notice of Decision

The First-tier Tribunal made a material error of law. I set aside the decision of the First-tier Tribunal and remake it allowing the appeal.

Signed Date 24 June 2019, Upper Tribunal Judge Reeds

What is the Right of Abode?

Full guide to the requirements and process for naturalising as a British citizen, including where the Home Office will show flexibility and where not. Case studies included throughout.

The “right of abode” is the right to “live in, and to come and go into and from, the United Kingdom without let or hindrance”. This right of abode is set out in section 1(1) of the Immigration Act 1971, the foundational legislation for current UK immigration law. The Home Office puts it another way in its guidance to officials: the right of abode is a “complete exemption from UK immigration control” (Nationality: right of abode, version 4.0, 23 May 2018).

If a person has the right of abode, he or she is still subject to checks to establish that he or she does genuinely have that right. Section 1 of the 1971 Act qualifies the right by continuing “except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person”.

A person who does not have the right of abode may only live in, and come and go into and from, the United Kingdom with permission.

Read more: Freemovement,

R (BG (Albania) V SSHD – Settlement Outcome

BG was a victim of abuse, multiple rapes, and enforced prostitution in Albania. As a result, she suffered from PTSD and major depression. She fled to the UK and sought protection but was issued with a Dublin II certificate by which the Secretary of State for the Home Department (SSHD) sought to return her to Italy. Her trafficking case was referred to the UK’s National Referral Mechanism (NRM) following a legal challenge and although she was given a positive reasonable grounds decision, she received a negative Conclusive Grounds decision with the SSHD finding that she was a victim of ‘severe domestic violence’ at the hands of a ‘boyfriend’ rather than a victim of human trafficking who was forced into sexual exploitation by a trafficker. The SSHD maintained his decision to return her to Italy, thereby refusing her any substantive consideration of her asylum and human rights claims in the UK. In judicial review proceedings it was argued on her behalf that in view of her accepted facts and the legal definition of human trafficking she ought to have been formally recognised by the SSHD as a confirmed victim of human trafficking and that she was consequently entitled to protection procedures, including the quashing of the Dublin II certificate.

Key questions before the High Court included whether the SSHD had erred in refusing to recognise her as being a victim of human trafficking and the High Court’s obligation to determine trafficked victim identification. The High Court refused the judicial review and the judgment of Cranston J was widely reported.

Read more: Duncan Lewis,