Immigration and Asylum Chamber Decisions from the Upper Tribunal for 2015
Recent decisions from the Upper Tribunal of the Immigration and Asylum Chamber addressed wide-ranging issues including Judicial Review procedures, the Secretary of State’s discretionary power to issue Leave to Remain, further guidance on the application of the Surinder Singh principle, and human rights implications of returning Afghan Sikhs and Hindu asylum seekers to Afghanistan. Below are the main arguments and links to the decisions made in the latest Upper Tribunal cases:
R (on the application of Soreefan and Others) v Secretary of State for the Home Department (judicial review – costs – Court of Appeal)  UKUT 59
- An appeal lies to the Court of Appeal against a costs order of the Upper Tribunal made in immigration judicial review proceedings
- In determining cost issues the Upper. Tribunal will apply M v London Borough of Croydon  EWCA Civ 595.
- Provided that a costs decision of the Upper Tribunal is in harmony with established principles and has a tenable basis, permission to appeal to the Court of Appeal is unlikely to be granted because cost decisions involve a substantial measure of discretion dependent upon one particular factual matrix.
- In judicial review proceedings where permission to appeal is not determined at a hearing, the time limit for applying to the Upper Tribunal for permission to appeal to the Court of Appeal is one calendar month, beginning on the date immediately following the day upon which the Tribunal’s substantive decision was sent and ending on the corresponding date in the immediately succeeding month.
- This time limit is capable of being extended in accordance with established principles and giving effect to the overriding objective.
- Every Permission to Appeal (PTA) application must be made in writing. There is no prescribed form.
- In judicial review cases, the prescribed fee for an application for permission to appeal to the Court of Appeal is presently £45.00. Such applications do not require notice to the other parties.
- The substantive requirements for every permission to appeal application are enshrined in rule 44(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and are of cardinal importance.
- A failure to comply with rule 44(7) engages the Upper Tribunal’s discretionary strike out powers under rule 8. The Tribunal will assess in particular the nature and gravity of the non-compliance and will give effect to the principles in R (SN) v SSHD (striking out – principles) IJR  UKUT 227 (IAC).
R (on the application of Patel) v Secretary of State for the Home Department (duration of leave – policy) IJR  UKUT 561 (IAC)
- The decision of the High Court in R (SM & Others) v Secretary of State for the Home Department EWHC 1144 (Admin) relating to the 2009 Discretionary Leave policy and instruction only applies to cases where the decision to grant leave to remain was made prior to 24 June 2013.
- There is no obligation on the Secretary of State to grant ILR or to consider granting ILR in circumstances where no formal application for ILR has been made.
- It is legitimate for the Secretary of State to grant leave to remain for 30 months on an application that is decided on or after 9 July 2012 irrespective of when the application was made unless it was made between 9 July 2012 and 6 September 2012: see para  of Singh and Khalid v Secretary of State for the Home Department EWCA Civ 74.
Osoro ( Surinder Singh)  UKUT 593 (IAC)
- The rationale of the decision in R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department ECR I-4265 is formed by two principles, namely the principle of the efficacious enjoyment of Treaty rights and the principle of non-discrimination.
- These are the two principles to which Tribunals must have particular regard in deciding cases in which the appellant does not satisfy any of the provisions of the Immigration (European Economic Area) Regulations.
- The co-existence of the decision in Surinder Singh with Directive 2004/38/EC (“the Citizens Directive”) raises questions which may require to be determined in some appropriate future case.
TG and others (Afghan Sikhs persecuted) Afghanistan CG  UKUT 595 (IAC)
- Some members of the Sikh and Hindu communities in Afghanistan continue to suffer harassment at the hands of Muslim zealots.
- Members of the Sikh and Hindu communities in Afghanistan do not face a real risk of persecution or ill-treatment such as to entitle them to a grant of international protection on the basis of their ethnic or religious identity, per se. Neither can it be said that the cumulative impact of discrimination suffered by the Sikh and Hindu communities in general reaches the threshold of persecution.
- A consideration of whether an individual member of the Sikh and Hindu communities is at risk real of persecution upon return to Afghanistan is fact-sensitive. All the relevant circumstances must be considered but careful attention should be paid to the following:
- women are particularly vulnerable in the absence of appropriate protection from a male member of the family;
- likely financial circumstances and ability to access basic accommodation bearing in mind:
- Muslims are generally unlikely to employ a member of the Sikh and Hindu communities;
- such individuals may face difficulties (including threats, extortion, seizure of land and acts of violence) in retaining property and / or pursuing their remaining traditional pursuit, that of a shopkeeper / trader; and
- the traditional source of support for such individuals, the Gurdwara is much less able to provide adequate support;
- the level of religious devotion and the practical accessibility to a suitable place of religious worship in light of declining numbers and the evidence that some have been subjected to harm and threats to harm whilst accessing the Gurdwara;
- access to appropriate education for children in light of discrimination against Sikh and Hindu children and the shortage of adequate education facilities for them.
- Although it appears there is a willingness at governmental level to provide protection, it is not established on the evidence that at a local level the police are willing, even if able, to provide the necessary level of protection required in Refugee Convention/Qualification Directive terms, to those members of the Sikh and Hindu communities who experience serious harm or harassment amounting to persecution.
- Whether it is reasonable to expect a member of the Sikh or Hindu communities to relocate is a fact sensitive assessment. The relevant factors to be considered include those set out at (iii) above. Given their particular circumstances and declining number, the practicability of settling elsewhere for members of the Sikh and Hindu communities must be carefully considered. Those without access to an independent income are unlikely to be able to reasonably relocate because of depleted support mechanisms.
- This replaces the county guidance provided in the cases of K (Risk – Sikh – Women) Afghanistan CG UKIAT 00057 and SL and Others (Returning Sikhs and Hindus) Afghanistan CG  UKAIT 00137.