IMMIGRATION LAW – AN UPDATE

1. As is de rigeur to Immigration Practitioners, Immigration Law has evolved and changed

over the last few months with the promise of more, much more to come.

2. We are promised a new Bill, this time a Consolidation Act codifying (and doubtlessly
changing) the Legislation but at least making it available in one place. However, it is worth
perhaps understanding the purpose behind the recent changes.

3. The new Points Based System, in conjunction with the amendments to HC 320 introduced
by HC 321 are clearly part of a new strategy on behalf of the Home Office. As Liam Byrne
MP, Minster said during the debate on the HC 321 command paper on the 13th May:

“When we introduce the points system, we will be seeking to replace the discretion
that an immigration officer has in judging somebody’s intention and their intention to
obey the rules and leave. We have always considered previous breaches of
immigration laws when considering whether to let somebody into the UK.”

4. He went onto say:

“However, in the past those powers have been discretionary powers that have
allowed us to refuse people who have not complied with the rules when they were
last here. I am not sure that that blanket discretion is right. I would prefer a system
with clearer rules, so that migrants are aware of the penalties that apply if they
overstay or breach the rules that are still in the Immigration Act 1971. That is why
we have sought to introduce a system of blanket bans for those who breach the rules.
We have sought to reserve the toughest rules for those who have cost the taxpayer the
most money.

It is also important that there should be sanctions for deception. People need to take
responsibility for the applications that are submitted in their names, subject to the
caveat that I am about to add. There must also be quite strict tests for what we judge
to be falsified documents. It is possible for people to make honest mistakes, and it is
important that the system should be able to accommodate them as honest mistakes.
None the less, deception must carry a sanction.
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 ...
It is important that people who have left the country at public expense should have
the opportunity to come back into the country in due course, but it is only reasonable
that we should ask them to pay back any costs incurred by the taxpayer before we
allow them back in. The hon. Gentleman will be delighted to learn that I hope that
this will be among the proposals in the legislation that I hope to bring forward. I also
hope to publish the Bill in draft form, before we bring it anywhere near the House in
a formal sense, so there will be ample opportunity over the long summer months to
study this question in depth, and to check whether we have got it right or wrong.”

5. Therefore, it is Government Policy to punish those who overstay or those the Government
believe use deception to enter or have to be removed at public expense. It seems therefore
we can expect similar changes in the future, in particular one can imagine all those removed
at public expense being required to repay the costs before they are allowed to return.

The Amended Rule 320

6. The Rule 320 has been amended and those amendments have technically been in force since
the 1st April 2008, although in effect, will not apply until October 2008 (see below for this
concession).

7. The Rule says as follows:

Refusal of entry clearance or leave to enter the United Kingdom

320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts
2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal
of entry clearance or leave to enter apply:

Grounds on which entry clearance or leave to enter the United Kingdom is to be refused

(1) the fact that entry is being sought for a purpose not covered by these Rules;
(2) the fact that the person seeking entry to the United Kingdom is currently the subject of a
deportation order;
(3) failure by the person seeking entry to the United Kingdom to produce to the Immigration

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Officer a valid national passport or other document satisfactorily establishing his identity
and nationality;
(4) failure to satisfy the Immigration Officer, in the case of a person arriving in the United
Kingdom or seeking entry through the Channel Tunnel with the intention of entering any
other part of the common travel area, that he is acceptable to the immigration authorities
there;
(5) failure, in the case of a visa national, to produce to the Immigration Officer a passport or
other identity document endorsed with a valid and current United Kingdom entry clearance
issued for the purpose for which entry is sought;
(6) where the Secretary of State has personally directed that the exclusion of a person from
the United Kingdom is conducive to the public good;
(7) save in relation to a person settled in the United Kingdom or where the Immigration
Officer is satisfied that there are strong compassionate reasons justifying admission,
confirmation from the Medical Inspector that, for medical reasons, it is undesirable to admit
a person seeking leave to enter the United Kingdom.

(7A) where false representations have been made or false documents have been submitted
(whether or not material to the application, and whether or not to the applicant's knowledge),
or material facts have not been disclosed, in relation to the application.

(7B) where the applicant has previously breached the UK's immigration laws by:
(a) Overstaying;
(b) breaching a condition attached to his leave;
(c) being an Illegal Entrant;
(d) using Deception in an application for entry clearance, leave to enter or remain
(whether successful or not);
unless the applicant:
(i) Overstayed for 28 days or less and left the UK voluntarily, not at the
expense (directly or indirectly) of the Secretary of State;
(ii) used Deception in an application for entry clearance more than 10 years
ago;
(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the
Secretary of State, more than 12 months ago;
(iv) left the UK voluntarily, at the expense (directly or indirectly) of the
Secretary of State, more than 5 years ago, or

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 (v) was removed or deported from the UK more than 10 years ago.

Where more than one breach of the UK's immigration laws has occurred, only
the breach which leads to the longest period of absence from the UK will be
relevant under this paragraph.”

8. The implications of this Rule change are of the utmost significance. The effect of it is as
follows:

Category of Appellant Length of Bar to

Returning to the
UK
An overstayer for 28 days or less who left the UK None
voluntarily, not at the expense (directly or indirectly) of
the Secretary of State;

An Appellant who used Deception In an application for 10 years

entry clearance

An overstayer of more than 28 days, an illegal entrant 12 months

or an Appellant who breached a condition attached to
his leave and left the UK voluntarily, not at the expense
(directly or indirectly) of the Secretary of State

An overstayer of more than 28 days, an illegal entrant 5 years

or an Appellant who breached a condition attached to
his leave and left the UK voluntarily, at the expense
(directly or indirectly) of the Secretary of State

An overstayer of more than 28 days, an illegal entrant 10 years

or an Appellant who breached a condition attached to
his leave or used deception and left the UK voluntarily,
removed or deported from the UK more than 10 years
ago

9. However, it is worth noting from the UK Visas website guidance to ECOs the following
(taken from http://www.ukvisas.gov.uk/en/ecg/chapter26) :

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 “Standard of proof
You must only refuse applications under 320(7A) if you are satisfied to a high
standard that false representations or documents have been used, or material facts
have not been disclosed. Note that in all cases you must have good evidence to show
this.
Any cases involving deception must be established to a higher balance of
probabilities than is required for other refusals under the immigration rules (so it
must certainly be more likely than not that deception has been used). From 1 April
2008, a person who has knowingly used a false document in a previous application
will have future applications refused for ten years. (see paragraph 26.17 below).
It is for us to prove that an applicant has used deception. This means that it is not
enough for us simply to doubt that the applicant is telling the truth. In order to refuse
under this Rule, we need positive evidence that they are lying, or that a document
that they have submitted is false.
Of course, if we are not satisfied that the applicant qualifies under the route they
have applied under, they should be refused under the rules for that route”

10. Similarly, the Guidance is actually quite helpful as the obligations on the ECO when
alleging forgery of documents.

“False representations
A false representation is made when an applicant or third party lies or makes a false
statement in an application, either orally or in writing. To refuse the application, you
must be satisfied to a high standard that a false representation has been made.
If you are so satisfied, then the application must be refused even if the false
representation is not material to it. This means that the false representation does not
need to be relevant to your decision to grant entry clearance.
The application must also be refused even where the applicant was not aware that
false representations have been made.
However, you should not refuse an applicant because you suspect that false
representations have been made or because of minor inaccuracies in the application,
for example an inaccurate address or mis-spelt name on a VAF.
Some examples of false representations:
A visa applicant states that he is a project manager for a company earning a
significant salary. It is discovered that he is in fact the cleaner for the company on a

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 low salary.
An applicant applies for entry clearance on the basis of his marriage to a British
citizen, and states in his application form that he has never been married before. But
we receive a marriage certificate from another wife, which is verified, showing that
he is already married.
False documents are submitted
You must only refuse the application under Paragraph 320(7A) of the immigration
rules on the grounds of submission of false documents if you are satisfied to a high
standard that a false document has been submitted (see the information below). You
cannot refuse the application if you only doubt or suspect that a document is false.
In order to be satisfied to a high standard that a document is false, you must:
have examined the document and written a forgery report setting out your findings
(including photographic evidence where appropriate) to justify your conclusion that
the document is false; or have written evidence, as a result of checks carried out, that
the document is false, and have completed a Document Verification Report (Annex
30.1); or show that the document is identical to another document on which you have
current and reliable evidence that it is false and have completed a Document
Verification Report (e.g. issuing body has either given information on document's
security features or already advised that an identical document is false);or have an
admission from the applicant (in writing or recorded in the Q&A notes) that they
used a false document or made false representations. The application must also be
refused even if the false document would not have been relevant to your decision to
grant entry clearance and even if you are satisfied that the applicant was unaware that
the document was false.

What is a false document?

A false document includes:
a genuine document which has been altered or tampered with; a counterfeit
document (one that is completely false); a genuine document that is being used by an
impostor a genuine document which has been fraudulently obtained or issued; a
genuine document which contains a falsified or counterfeit visa/endorsement.
Document verification

11. There still appears to be a discretion to allow entry under the Human Rights Act, as the
Guidance says the following (but not the rules):

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 “26.16.8 - Refusal process for refusals under Paragraph 320(7A)
Before you refuse an applicant, you need to: consider if there are any Human Rights
grounds to justify issuing entry clearance . . .”

12. The Guidance also confirms there will ALWAYS be an out of country appeal on Human
Rights grounds:

“26.16.6 - Does the applicant have the full right of appeal?

Only if there is a right of appeal for the category in which the applicant has applied
e.g. there is a full right of appeal for family visits but not for non-family visits. But
all applicants will have limited rights of appeal under the Human Rights Act or Race
Relations Act.”

13. It is also worth noting the section on EEA cases (which are outside in any event the ambit of
the Immigration Rules – see IS (marriages of convenience) Serbia [2008] UKAIT 00031):

“26.16.7 - EEA family permits and 320(7A) and 320(7B) [Updated]

If a non-EEA family member of an EEA national is applying for an EEA Family
Permit under the Immigration (European Economic Area) Regulations 2006, they
cannot be refused under Paragraph 320 of the Immigration Rules. If they are
applying under the Immigration Rules eg. as a visitor, they can be refused under the
Immigration Rules. Non-EEA family members of an EEA national applying for EEA
Family Permits, who are not legally resident in the EEA and are coming from outside
the EEA will also need to meet criteria under the Immigration Rules as allowed for
by the EEA Regulations. However, you need to be cautious if you intend to refuse
the application because they were either in the UK illegally, overstayed or breached
their conditions. This is because there is no requirement to obtain a residence card to
show that they are a family member of an EEA national exercising treaty rights in the
UK. If there is a possibility that the applicant was a family member of an EEA
National exercising treaty rights in the UK when they overstayed ore breached their
conditions, you cannot refuse under 320(7B) unless you have evidence that proves
otherwise.”

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 Parliamentary Concessions

The Concession in the House of Lords of the 17 March 2008

14. Lord Bassam of Brighton, Minister of State, announced a concession in a debate in the
House of Lords on 17 March 2008. This concession is intended to encourage anyone
currently in the UK in breach of immigration law to leave voluntarily.

15. He said as follows:

“A number of people have, however, suggested that we will achieve our aims better if we
give people who are currently here illegally a chance to leave before the new rules are
applied to them. We have listened to their argument and reflected on it, and we agree
with them. I can announce that we will not apply the provisions in new paragraph 320
(7B) of the Immigration Rules to anyone currently in the United Kingdom who leaves
the country voluntarily before 1 October 2008. Those people will be able to apply to
come back without being automatically refused under these provisions, although it is
possible that they will be refused under other parts of the Immigration Rules.”

16. The concession therefore means that anyone who was in the UK on 17 March 2008, and
leaves the UK voluntarily before 1 October 2008, will not face a mandatory re-entry ban.

17. Liam Byrne clarified this concession in his letter to ILPA dated 4th April (a replication of
which follows this section of notes.) He said that:

a) A returning migrant WILL need to provide evidence that he left during the currency of
the concession;
b) Migrants who left before 17th march 2008 will NOT benefit;
c) If a migrant leaves during this time there is no time limit on when he might apply to
return;
d) People must leave before this date – if the Home Office are either funding the removal
under the voluntary removal scheme or the Home Office hold the migrant’s passport
they must apply within good time to return;
e) People who have been served with removal direction but leave voluntarily will n be
caught by the returning ban – only those who are actually removed will fall within it;

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The Concessions by Liam Byrne of 13th March 2008

18. Because of the potentially draconian nature of these changes, there have been a number of
further concessions announced in the Houses of Parliament. Liam Byrne announced the
following in the House of Commons on the 13th May 2008 debate on HC 321:

“First, we will not automatically refuse applications from people applying to join
their family permanently in the UK—that is to say, those applying for visas as a
spouse, civil partner or unmarried or same-sex partner under paragraphs 281 or 295A
of the immigration rules; a fiancée or proposed civil partner, as set out in paragraph
290 of the rules; a parent, granSIJarent or other dependent relative, as set out in
paragraph 317; a person exercising rights of access to a child, as set out in paragraph
246; or a spouse, civil partner or unmarried or same-sex partner of a refugee or
person with humanitarian protection, as set out in paragraphs 352A, 352AA, 352FA
and 352FD. Following some of the comments made by hon. Members this evening, I
will of course check to see whether we have cast the scope of those exceptions
correctly, but my initial analysis is that that is where the discretion should apply.

Secondly, we will not automatically refuse anyone who is under the age of 18 at the
time of the breach of the immigration rules. My hon. Friend the Member for
Islington, North spoke powerfully on this subject, as did the hon. Member for North
Southwark and Bermondsey. That case has been well made.”

10. He also added:

“As to the caveats, this does not mean that people who need to go home and reapply
will automatically get in; they will still need to meet the requirements set out in the
immigration rules and they may be refused if they have contrived in a significant
way to frustrate those rules. Nor is it or can it be a green light for the groups I have
mentioned to deliberately overstay. We need to bring forward fresh proposals to
ensure that there are consequences for these actions.”

11. He added:
“For example, we may, because we could, make those who have breached
immigration rules wait slightly longer before they become citizens, but I do not want

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 to go into detail on that proposal this evening. I simply want to flag it up for the
House’s attention in order to illustrate the wider point: we must have sanctions for
those who overstay. These changes will have immediate effect as a concession and
will be added to the immigration rules at the first opportunity.”

Summary of the Second Set of Concessions

12. Therefore, this concession means that anyone who is applying under the Rules to join a
family member who is settled in the UK will not face a mandatory refusal because of a re-
entry ban. This covers:
a) those applying to join a spouse, civil partner, unmarried or same-sex partner
b) fiancées or proposed civil partners
c) parents, granSIJarents or other dependent relatives
d) those seeking to exercise access rights to a child (i.e. rights granted by a UK court)

13. Anyone who entered under the age of eighteen is also not covered by the general restrictions
of the Rule.

14. Victims of trafficking will benefit from a concession which would be introduced later in the
year when the UK ratifies the Council of Europe Convention on Action against Trafficking
in Human Beings.

The Third Concession of the 4th April 2008

15. In a letter to ILPA of 4 April 2008, the Minister has confirmed that anyone who is granted
leave to enter or remain in the UK, will not face a re-entry ban for any breach of
immigration law before they were granted leave to enter or remain in the UK – provided that
the leave was granted in knowledge of the breach. If someone breaches immigration law
after having been granted leave to enter or remain, he or she may face a ban.

Discretionary Refusals Remain Under The Concessions

16. It is important to re-iterate that discretionary refusals can still apply even if the announced
concessions prevent automatic exclusion The UK Visas Entry Clearance Guidance gives
some further explanation of what is meant by “contrived in a significant way to frustrate

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 those rules”. This means that significant breaches of UK immigration law may still lead to a
refusal of an application to return to the UK even though the individual is exempt from a re-
entry ban.

17. However, there appears to be a discretion not to apply the Rule, or not apply it as the
Immigration Officer seems fit. How ironic given what was said by Liam Byrne elsewhere
(and quoted above) about discretion being removed from the decision making process so
migrants have a transparent view of what the law is.

Retrospective Effect

18. Also of some concern is the apparent retrospective effect the Rule appears to have. It is well
established principle of the interpretation of HC 395 that any changes come into force
immediately and as if they had always been that way written in the absence of an explicit
transitional provision.

19. Therefore, anyone advised and did return to their country with an adverse immigration
record will be barred from re-entry for probably at least a year but those who waited a bit
longer will benefit from the concession.

20. Therefore, there will be a class of people who apply or have already applied for entry
clearance who fit within the categories of person whose case may very well fall for
automatic refusal for considerable periods of time who had no idea at the time they left the
UK they would be subject to these provisions.

21. Crucially, many would have been advised to do this (as Jeremy Corbyn and others said in
the House of Commons debate on the 13th May 2008). Such people could have left before
the window of opportunity to leave, as it were, and are now bared when they had no idea
that would be the effect of the Rule change.

22. How this can be considered to be fair is unclear and may very well form the foundation of a
challenge to the vires of the Rules.

23. It is not clear what really is hoped to be achieved here. As was clear from the debate of the
13th May 2008, the effect may very well be overstayers and illegal entrants will feel it is

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 better to stay and try and hit fourteen years than retur and b bared for considerable periods
of time.

The Impact on Article 8

24. It will be interesting to see how the impact of this rule will be seen by the Appellate Courts
when interpreting the effect of removal on family life. In cases of delay, where such a delay
pushes an Appellant over the 1st November deadline will be of particular interest.

25. It would seem that after 1st October, any deportation or administrative removal where there
is family life and insurmountable obstacles to that family life being enjoyed abroad by the
couple are bound to succeed under Article 8, applying paragraphs 16, 18 and 20 of the
House of Lords judgment of Huang.

26. Liam Byrne accepted in his letter to ILPA dated 29th February 2008 that human rights
arguments could be raised on appeal from abroad but it will be interesting to see the impact
of this in practice, given the apparent lack of discretion in the Rule. As existing Article 8
caselaw indicates that the presumption is the Immigration Rules are Article 8 compliant and
that therefore rare cases will succeed outside of the Rules. The potential therefore exists to
argue that rule 320 can be defeated by Article 8 arguments, suggesting of course that the rule
is not complaint with Article 8 in the first place.

27. As is usual, the situation is really a mess.

28. The matter has already appeared in jurisprudence, In Zarif Mohammed[2008] EWHC 1206
(Admin), the question arose in connection with an Afghani fresh claim where he had been
refused settlement as a spouse.

29. Rather intriguing, he sought to argue that his wife intended to travel to Ireland and exercise
her treaty rights there (which is certainly an argument this writer had not considered before
but is rather ingenious if genuine.)

30. Because he wished to leave the UK voluntarily and travel to the Ireland, he wished to avail
himself of Lord Bassam’s concession as outlined above but there was said to be some
discussion as to whether he could be seen to have left voluntary he if either went to Ireland

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 or to Pakistan to make an entry clearance application.

31. Permission was granted in this case, although the date of the decision is the 15th May 2008, I
wonder whether the Judge was aware of Liam Byrne’s letter (as below) which clearly settles
the question of ‘voluntary’.

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15
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 Recent Case Law Round-Up

KH (Iraq CG) [2008] UKAIT 00023 and HH & others (Mogadishu: armed conflict: risk) Somalia
CG [2008] UKAIT 00022.

32. These cases concern the concept of whether people retuned to countries like Iraq or Somalia
would face a real risk of serious harm by virtue of those conditions. This paper will analyse
the Iraq case as it is the more rigorous and detailed of the two judgements.

33. Rule 339C(iii) says as follows:

“339C. A person will be granted humanitarian protection in the United Kingdom

if the Secretary of State is satisfied that:
1. he is in the United Kingdom or has arrived at a port of entry in the United
Kingdom;
2. he does not qualify as a refugee as defined in regulation 2 of the Refugee or
Person in Need of International Protection (Qualification) Regulations 2006;
3. substantial grounds have been shown for believing that the person concerned, if
he returned to a country of return, would face a real risk of suffering serious
harm and is unable, or owing to such risk, unwilling to avail himself of the
protection of that country; and
4. he is not excluded from a grant of humanitarian protection.

Serious harm consists of a:

..
(iv) serious and individual threat to a civilian’s life or person by reason of
indiscriminate violence in situations of international or internal armed
conflict.”

The Components of 339C as Analyzed by KH

Summary of Approach in KH:

34. The Tribunal set out the following recommended approach in paragraph 131:

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 a) does there exist a situation of "international or internal armed conflict",
b) whether it is "by reason of indiscriminate violence" and
c) whether there arises a "serious and individual threat to a civilian's life or person".

Is There An Armed Conflict?

35. The Tribunal and Respondent accepted there was a situation of armed conflict in Iraq:

“75. As regards internal armed conflict, the upshot of the respondent's concession made
in the course of the hearing - that Iraq as a whole is in a state of internal armed conflict
for the purposes of IHL [International Humanitarian Law]and that the GOI [Government
of Iraq]is one of the parties to the conflict - renders it unnecessary to do anything more
than identify very basic features of this concept in IHL.”

Indiscriminate Violence

36. Indiscriminate violence was analysed by the Tribunal in KH and Storey SIJ said as follows:

“85. . .the adjective "indiscriminate" is used to designate attacks which fail to

differentiate between military and civilian targets and Article 49(1) of 1977 Additional
Protocol I to the 1949 Conventions (API) expressly defines the term "attacks" as "acts of
violence against the adversary, whether in offence or in defence". Article 51(4) of the
same Protocol provides that:"[i]ndiscriminate attacks are prohibited". The provision goes
on to define indiscriminate attacks as being:

1. Those which are not directed at a specific military objective;

2. Those which employ a method or means of combat which cannot be directed at a
specific military objective;
3. Those which employ a method or means of combat the effects of which cannot be
limited as required by this Protocol;
And consequently, in each such case, are of a nature to strike military objectives and
civilians or civilian objects without distinction".

37. The Tribunal went onto say:

“90. So it is a general principle of IHL that parties to a conflict shall at all times

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 distinguish between the civilian population and combatants in order to spare civilian
population and property. Neither the civilian population as such, nor civilian persons
shall be the object of attack. Attacks shall be directed solely at military objectives.
The principle underlying the concept of "indiscriminate" deployed in the above
sources is sometimes expressed as "the principle of distinction" ("distinction" itself
being a word quite opposite to "indiscriminate" in the ordinary sense).”

Indiscriminate Violence Against Civilians

38. It is clear that to show the risk of indiscriminate violence, it must be shown the risk is of
suffering:

“92. . . .iindiscriminate violence affecting civilians.”

39. The Tribunal further said:

“93. In the light of the above the concept of "indiscriminate violence" (affecting a
civilian's life or person) within Article 15(c) is best understood as denoting violence
which, by virtue of failing to discriminate between military and civilian targets,
violates peremptory norms of IHL.”

40. The Tribunal further added:

“94. . . [Indiscriminate violence] is capable of covering violence targeted against

civilians directly, because that in itself demonstrates that it is not directed at a
specific military objective. It further covers violence where the means and methods
(e.g. chemical weapons) disproportionately affects civilians. It is also capable of
encompassing untargeted (or random) violence where that amounts to a failure to
discriminate between military and civilian targets. But in relation to both types of
violence it can only cover them where the violence concerned is closely related, or
has a nexus to, the conduct of military operations . . .”

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The Nexus of Indiscriminate Violence and Conduct of Military Operations

41. There must be a nexus between the indiscriminate violence and a military operation. The
Tribunal observed:

“95. It follows from the approach we adopt to the meaning of "indiscriminate

violence" that Article 15(c) is not intended to cover threats that are by reason of all
kinds of violence. It does not cover purely criminal violence. It does not cover
domestic violence or indeed any other type of non-military violence; rather it is
violence inflicted by combatants and which is indiscriminate in one or more of the
ways identified earlier.

42. The Tribunal continued:

“96. One consequence of this interpretation is, we accept, that Article 15(c) would
not as such assist a civilian in a situation of armed conflict who faced a serious and
individual threat from criminal gangs who were exploiting the law and order vacuum
caused by the armed conflict to threaten the lives of many residents: take the
example of a criminal gang who in the course of stealing oil from a pipeline during
an armed conflict killed innocent civilians indiscriminately. It might be said that such
exclusion would be unjustified because armed conflicts, particularly internal armed
conflicts, are often accompanied by significant levels of violent criminal activity and
lowered levels of protection. However, we come back to the underlying purpose of
Article 15(c) which in our view is to protect civilians against certain violations of
IHL . .”

43. However, in connection with the distinction between military indiscriminate violence and
Criminal acts, the Tribunal noted:

“97. That said, it will not always be possible to draw an easy distinction between

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 military and criminal activities. We know all too well from the evidence before us in
this case, that the line between insurgents and opportunistic criminals is often blurred
and the examples from background evidence we were given on Iraq, of insurgents
stealing oil from pipelines to fund their armed actions and of police checkpoints
which turn out to be manned by criminals in fake police or military uniforms, are
two vivid illustrations of how hard it may be to draw the line in some cases. Once
again, however, we believe that assistance in developing workable criteria can be
drawn from IHL and in particular the case law of the international criminal
tribunals.”

44. In terms of the nexus between criminality and the commission of criminal acts, quoting from
Prosecutor v Kunarac, the Tribunal noted with approval the ICTY’s view that

"58. . . . The armed conflict need not have been causal to the commission of the
crime, but the existence of an armed conflict must, at a minimum, have played a
substantial part in the perpetrator's ability to commit it, his decision to commit it, the
manner in which it was committed or the purpose for which it was committed.
Hence, if it can be established, as in the present case, that the perpetrator acted in
furtherance of or under the guise of the armed conflict, it would be sufficient to
conclude that his acts were closely related to the armed conflict. . .”

45. Paragraph 59 of that Judgement identified the following factors as indicative of whether
there was such a close relation:

a) the fact that the perpetrator is a combatant;

b) the fact that the victim is a non-combatant;

c) the fact that the victim is a member of the opposing party;

d) the fact that the act may be said to serve the ultimate goal of a military campaign;

e) and the fact that the crime is committed as part of or in the context of the
perpetrators' official duties.”

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 46. In Lubanga referred to the need for there to be a "nexus" between the armed conflict and the
alleged war crime and stated at paragraph 287:

". . . The armed conflict need not be considered the ultimate reason for the conduct
and the conduct need not have taken place in the midst of battle. Nonetheless, the
armed conflict must play a substantial role in the perpetrators' decision, in his
or her ability to commit the crime or in the manner in which the conduct was
ultimately committed".

47. Also significant is paragraph 99 thus:

“99. . . The indiciae set out in para 59 of Kunarac above appear to suggest that in the
main those whose acts or threats are covered will be mainly combatants who use the
existence of an armed conflict to carry out opportunistic crimes, for example rape,
but it would appear that under certain circumstances civilians whose criminal
conduct amounts to active involvement in the armed conflict will also be culpable. In
the analysis we go on give as to how Article 15(c) is to be applied in practice - and in
our assessment of the situation in Iraq - we think it prudent to take an inclusionary
view of the extent to which violence perpetrated by criminals can be "closely
related" to the armed conflict.”

The Scope of Violence Facing Civilians

48. The Tribunal in paragraph 100 identified the need for:

“. . . a decision-maker is looking at whether civilians per se face a serious and

individual threat to their life or person by reason of indiscriminate violence, what the
above approach requires is that the fact-finder look at the evidence relating to the
scale and frequency and geographical distribution of indiscriminate violence. It is
not the overall level and degree of violence in the country or the relevant area of the
country which is key, although that will be a relevant factor. It is the extent of the

22
 violence of a particular kind and (bearing in mind the confinement of the personal
scope of Article 15(c) to civilians) the violence which disproportionately threatens
the life or person of civilians. In general, the level and degree of targeted violence
should not be taken into account, subject to the proviso that what is meant here by
"targeted violence" is violence which is conducted within the IHL rules of armed
conflict. If, however, the "targeted violence" turns out to consist in acts carried out in
the course of hostilities in a way which disproportionately affects civilians, then it
should also be taken into account. Mortar attacks carried out without warning
targeted on an army post close to a crowded market would likely be included,
whereas similar attacks carried out with due warning would likely not be included.”

A Civilian's Life or Person

49. A civilian’s life or person is defined in the following terms:

1. the phrase must encompass the means for a person's survival (paragraph 104);
2. "violence to the life, health and physical or mental well-being of persons, in
particular murder as well as cruel treatment, such as torture, mutilation or any
form of corporal punishment".(as quoted from paragraph 106)
3. What happens to a family member may well be a breach of IHL, but the claimant
must show a threat to his or her own life and person. Having said that, it may
often be that family members, merely due to their relation with another civilian
victim, will normally be vulnerable to acts of serious harm in the same manner

Meaning of ‘Individual’ Risk

50. The ‘individual risk’ that must be demonstrated is defined in the following terms.

51. The Tribunal observed as follows in paragraph 119:

“There is no reason to think that, in order for a threat to be "individual", it must be

one which is solely directed at the person concerned or exclusively affects only him
or her or must be based on a completely personalised set of facts.”

52. However, they observed in paragraph 123:

23
 “123. Nevertheless, it seems to us that "individual" does require that it be shown that
the threat is personal to the applicant. It seems to us that in combination with
"serious" this word creates a high threshold directly analogous to the well-
established high threshold required under the Refugee Convention and the Human
Rights Convention. HH & others at para 331 states that "the concept of an
"individual" threat requires there to be some form of "differential impact", of the
kind recognised by the House of Lords for the purposes of the 1951 Convention in
Adan [1999] 1 AC 293 and by the ECtHR for the purposes of Article 3 in
Vilvirajah..............". The approach we take is consistent with that since on our view
(unless civilians generally face a real risk of serious harm personal to them - and so
differentiating them - all) merely being a civilian will not suffice; something more,
relating to the person's specific characteristics or profile or circumstances, must
be shown.”

Are Threats Enough?

53. The Tribunal analyzed this and said at paragraph 126 thus:

“126. So far as the IHL context is concerned, it is noteworthy that there is strong
recognition of the ability of threats to give rise to serious violations. Thus Article 2 of
Additional Protocol II prohibits at any time and in any place whatsoever (a) violence to
the life, health and physical or mental well-being of persons’ including at (h) “threats to
commit any of the foregoing acts”; Article 13 of the same Protocol prohibits “acts or
threats of violence the primary purpose of which is to spread terror among the civilian
population” (emphasis added). Henckaerts and Doswald-Beck (supra) identify threats as
well as acts of various kinds as contrary to international humanitarian law: see Rule 2.
Indeed, it is a commonplace observation that many types of terrorist attack (whether or
in the context of an armed conflict or not) depend for their effect less on actual harm
than on the perceived threat of repetition.”

Conclusions

54. Therefore, arguments seem to me able to be constructed which point to individual

circumstances that elevate enough above ordinary citizens should win in countries like Iraq
and parts of Somalia.

24
55. In Somalian cases, individuals who are found to live in Mogadishu may, depending on their
factual history, be found to be street traders and others who would be especially exposed to
the risks of armed conflict and hence their cases would not necessarily fail applying the
ruling in HH Somalia regarding civilians in general.

56. Hence, those whose occupations force them into situations where they can become targets
could fall into the categories envisaged by HH and KA – such as teachers, civilian servants,
doctors as so forth.

57. With some creativity, it seems that Iraq cases and Somalia cases from Mogadishu can
succeed if individual factors are pointed to in the original applications.

AA(Uganda) [2008] EWCA Civ 579

A Slackening of the Undue Harshness Test in Relocation?

58. This case has a useful interpretation of AH(Sudan) and Januzi. The case concerned a young
Ugandan woman who it was accepted could not return to Northern Uganda but had been
found could return to Kampala.

59. The Immigration Judge on reconsideration found that, not withstanding an expert report
which said that the result of relocation to Kampala would force the Appellant into
prostitution, as many people would face such a risk on return, this was not unreasonable or
unduly harsh.

60. Buxton LJ disagreed, saying that:

“On the evidence accepted by the AIT, AA is faced not merely with poverty and lack
of any sort of accommodation, but with being driven into prostitution. Even if that is
the likely fate of many of her fellow countrywomen, I cannot think that either the
AIT or the House of Lords that decided AH(Sudan) would have felt able to regard
enforced prostitution as coming within the category of normal country conditions
that the refugee must be expected to put up with. Quite simply, there must be some
conditions in the place of relocation that are unacceptable to the extent that it would
be unduly harsh to return the applicant to them even if the conditions are widespread
in the place of relocation.”

25
61. This does appear to be a useful practical distinction that what had appeared the relatively
hard line approach of the House of Lords in AH(Sudan).

62. Therefore, if a more individual risk can be identified which can be considered unacceptable
by some concept of societal norm, if this individual risk is not universal (such as slum
conditions, one imagines), this is enough to point to relocation being unduly harsh.

63. There is also scope for further argument in the individual characteristics of those who face
relocation. As Buxton LJ said:

“The two particular characteristics of AA that were relied on as making her

particularly vulnerable were, first, that AA has no formal qualifications; and second
that she was traumatised and suffering from anxiety and depression. It will be
recalled from the extracts set out in §9 above that Dr Nelson relied on both of those
matters as showing that AA would be even more vulnerable than the general run of
unaccompanied young women in Kampala. The AIT did not accept that either of
those matters was made out on the facts, and that therefore Dr Nelson had been
wrong to place weight upon them.”

64. The Court went onto conclude that:

“On that evidence I have no hesitation in holding that in the context of a diagnosis by
a Fellow of the Royal College of Psychiatrists of chronic depression; the absence of
the intervention that was recommended on the basis of that diagnosis; and the
confirmation by Miss Britton that severe problems remained; there is no doubt that
AA is manifestly less able than most to bear the conditions that await her in
Kampala.”

65. So individual circumstances and general but not applicable to all risk can be sufficient to
elevate internal relocation to areas where there is no real risk or persecution or serious harm
unduly harsh. There is a subjective element of the test on which evidence should be called.

66. This Judgement is to be welcomed and it will be interesting to see how this impacts on
Sudanese cases in particular.

26
The Effect of AH (Sudan) on the Role of the Court of Appeal

67. Interesting is the continued debate referred to in the Judgement as to what had caused a
significant degree of consternation, it would appear, in the Court of Appeal is regards to
Baroness Hale appearing to make comment that scaled back the ability of the Court of
Appeal to intervene. Carnwath LJ said as follows:

“I prefer with respect the more limited view taken by this court of the effect of
AH(Sudan) and of Baroness Hale's comments, in ECO Mumbai v NH(India) [2007]
EWCA Civ 1330. Sedley LJ (with the agreement of the other members of this court)
said:
"… the House of Lords in AH (Sudan) [2007] UKHL 49 has stressed that appellate
courts should not pick over AIT decisions in a microscopic search for error, and should
be prepared to give immigration judges credit for knowing their job even if their written
determinations are imperfectly expressed. This is no more than a paraphrase of a
decision which, I respectfully think, is intended to lay down no new principle of law (cf,
for example, Retarded Children's Aid Society v Day [1978] IRLR 128, §19, per Lord
Russell) but to ensure that appellate practice is realistic and not zealous to find fault.
Their Lordships do not say, and cannot be taken as meaning, that the standards of
decision-making or the principles of judicial scrutiny which govern immigration and
asylum adjudication differ from those governing other judicial tribunals, especially when
for some asylum-seekers adjudication may literally be a matter of life and death. There is
no principle that the worse the apparent error is, the less ready an appellate court should
be to find that it has occurred."

Peter Mba Etame And Banslem Onujite Anirah vs [2008] EWHC 1192 (Admin) and
HUY QUOC VU –
When Do Fresh Representations Give Rise to an In-Country Right of Appeal?

68. Mr. Anirah had arrived in the UK since 1988 in various capacities and fathered four
children. However, in 2001, he was sentenced to ten years for drugs offences and in 2005
was the subject of a notice of intention to deport. He appealed the decision on the basis of
family life but by this time his marriage had broken down and he only had indirect contact
with his children via the telephone. His appeal was dismissed and an order for
reconsideration was also unsuccessful. The deportation order was thus signed.

27
69. There then followed judicial review proceedings on the basis (it appears) of the change in
Huang were issued contending the existence of family life. It was submitted this amounted
to a fresh claim. Mr Etama had a similar argument concerning fresh representations made
following a deportation appeal of a homosexual to Cameroon.

70. The Court concluded that a decision not to revoke a deportation order is potentially an
appealable decision under section 82 and carries a right of appeal. The question is whether
this application is in-country or out of country only? The same question arises therefore for
fresh claims for asylum or HP.
71. Rights of appeal are governed by section 92 of the NIA 2002. This says initially as follows:

“92. Appeal from within United Kingdom: general

(1) A person may not appeal under section 82(1) while he is in the United Kingdom
unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind
specified in section 82(2)(c), (d), (e), (f), (ha) and (j).”

72. So there are in country rights of appeal for the following:

(2) In this Part "immigration decision" means-

(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the
result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person's leave to enter or remain in the United Kingdom if when the
variation takes effect the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the
United Kingdom,
...
(h) a decision that an illegal entrant is to be removed from the United Kingdom by
way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act
1971 (c. 77) (control of entry: removal),
...
(ha) a decision that a person is to be removed from the United Kingdom by way of
directions under section 47 of the Immigration, Asylum and Nationality Act 2006

28
 (removal: persons with statutorily extended leave),

73. Section 92(4) confers the more general right of appeal on persons subject to, for instance
removal directions pursuant to section 10 illegal entrant removal directions:

“92. (4) This section also applies to an appeal against an immigration decision if the
appellant-
(a) has made an asylum claim, or a human rights claim, while in the United
Kingdom, or
(b) is an EEA national or a member of the family of an EEA national and
makes a claim to the Secretary of State that the decision breaches the
appellant's rights under the Community Treaties in respect of entry to or
residence in the United Kingdom.”

74. Section 113 of the Act defines an asylum claim as:

“"asylum claim" means a claim made by a person to the Secretary of State at a place
designated by the Secretary of State that to remove the person from or require him to leave
the United Kingdom would breach the United Kingdom's obligations under the Refugee
Convention,” and a human rights claim as:
“"human rights claim" means a claim made by a person to the Secretary of State at a place
designated by the Secretary of State that to remove the person from or require him to leave
the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.
42) (public authority not to act contrary to Convention) as being incompatible with his
Convention rights,”

75. It was argued in the case that ‘fresh claims’ fall for consideration under Rule 353 of HC 395:

“Where a human rights or asylum claim has been refused and any appeal relating to
that claim is no longer pending, the decision maker will consider any further
submissions and, if rejected, will then determine whether they amount to a fresh
claim per se. The submission will amount to a fresh claim if significantly different
from the material that has previously been considered. The submissions will only be
significantly different if the content:

29
 i. had not already been considered; and
ii. taken together with the previously considered material, created a realistic prospect
of success, notwithstanding its rejection”.

76. It was further argued that section 94(2) of the Act provided for:

“A person may not bring an appeal to which this section applies (in reliance on
section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned
in subsection (1) is or are clearly unfounded.”

77. Therefore, it was argued that abusive or repeated claims for asylum or HP could be certified
by the SSHD under section 94, denying an in-country right of appeal and therefore the
implication was subsequent immigration decisions such as in the case would carry an in-
country right of appeal.

78. The case turned in part on the meaning of section 92(4):

““92. (4) This section also applies to an appeal against an immigration decision if the
appellant-
(a) has made an asylum claim, or a human rights claim, while in the
United Kingdom,. . .”

and in effect the meaning of the phrase “has made”

79. Blake J said as follows:

“31. It is clear that on the literal meaning of the words in s. 92(4) (a) any historic claim to
asylum or human rights protection would generate a right of appeal to be determined before
removal where an immigration decision is taken.”

80. It was submitted by counsel for the Claimants that:

“that both claimants had made asylum claims in the past and therefore had an in-

30
 country right of appeal against the immigration decision of refusal to revoke their
deportation orders whatever the nature of the representations that led to these
decisions”

81. Blake J first observed that:

“40. The notes on clauses indicate that the draftsman contemplated appeals in respect
of immigration decisions made in response to claims made in country “during a current
period of stay.” This is inconsistent with a purely historic claim. I accept that such notes
are only admissible as to context and do not discharge the court’s duty of ascertaining
the meaning of the words used by Parliament. Despite the limited assistance such aids
can give, they are a clear pointer away from the literal meaning. When added to the rule
against absurdity and the rule of construction of a section in the statutory context, they
undermine the starting point of a literal construction of the words used.”

82. Blake J went onto observe that:

“Whilst there may be cases where the process of admission and removal may give
rise to two immigration decisions and potentially two occasions for an appeal, this is
no indication that in every case Parliament concluded that every subsequent appeal
should be heard in country. If two claimants seek to revoke a deportation order
purely on the basis of compassionate circumstances personal to them that do not
engage a protection claim too it is entirely illogical that they should be treated
differently as to whether their appeal should be heard in country by the irrelevant
happenstance of whether one of them had made a protection claim in the past that has
no bearing on their present predicament or claim to remain.”

43. I have no difficulty in concluding that the consequences of the literal

construction of s. 92(4)(a) would indeed be absurd and give rise to arbitrary
distinctions between individuals similarly placed for all relevant purposes.
Parliament must have intended that the in-country right of appeal was to be given
only where there was a nexus between the immigration decision formally generating
the appeal and the representations or application that the immigration decision was
responding to. Such a construction is consistent with the requirements of an effective
remedy where an important right is concerned and consistent with the minimum

31
 procedural rights the UK is required to afford asylum seekers whether by
extrapolation from the binding international obligation of non refoulement reflected
in Article 33(1) of the Refugee Convention or the Procedures Directives promulgated
by the European Union to which further consideration will be given later in this
Judgement.

83. Therefore, if a Claimant has brought a previous unsuccessful asylum or human rights claim
(a protection claim) and then seeks to challenge a further immigration decision which
ordinarily would not attract an in country tight of appeal, a Claimant should not be placed in
a better position than someone who had nor first made an unsuccessful protection claim.
There ought to be a ‘nexus’ between the protection claim and the subsequent immigration
decision to engender an in-country right of appeal.

84. However, Blake J went onto summarise the next argument advanced by the Claimants:

“Mr. Husain’s alternative submission was that if s. 92(4) required a nexus between
the asylum or human rights claim and the immigration decision that generated the
right of appeal that nexus was established in these cases. Both had made
representations on human rights grounds, Art 8 in the case of Mr. Anirah and Art 3 in
the case of Mr Etame and the latter had made an asylum claim as well. Both had
therefore made claims that to remove and exclude them from the United Kingdom
would be inconsistent with the United Kingdom’s obligations and both were
therefore claims within s. 113. It was illegitimate to construe “claim” in s. 92(4) by
reference to the immigration rules and the procedure for determining whether a claim
is a fresh claim or not as the rules cannot govern the meaning of primary legislation.
It was further illegitimate to construe the 2002 statute in the light of the amendments
that had subsequently been made and had not been brought into force.

85. Blake J said as follows:

“46. Where there is a current and disputed asylum or human rights claim it would
make every sense for the appeal by which the outcome is disputed to have suspensive
effect and enable it to be brought before removal in order to give practical effect to
the non-refoulement principle reflected in Article 33(1) Refuge Convention. It is
obvious that a right of appeal against a decision that refuses recognition as a refugee
by a person who has presented a credible arguable case that they face persecution or

32
 ill treatment on removal would be ineffective to prevent a breach on an international
obligation if the challenge can only be made after removal to the place where the ill
treatment is feared. You do not have to be persecuted to establish a well founded fear
of persecution. It is neither necessary nor appropriate to prove the existence of a
well-founded fear of persecution or substantial grounds for fearing a real risk of ill-
treatment by being removed to see what happens.”

86. Blake J analyzed recent European Directives on Refugees and considered as follows:

“It will be apparent from this that the concept of an effective remedy does not always
require suspensive effect where a further claim to asylum is made, but there must be
an effective remedy where the further claim is not accepted as being sufficiently
different from the earlier one to make a different outcome.”[Emphasis added]

87. Blake J said as follows:

“57. The defendant’s construction is consistent with international principles and the
EU Directive. Where a claim for protection has been considered and rejected and the
rejection upheld on appeal there is no violation of the principle of non-refoulement in
removing the person concerned. Where a repeat claim is made that is not a fresh
claim for protection there is accordingly no need to grant a suspensive right of
appeal. Certification of such claims may not always be appropriate. The claim itself
may be credible and genuine but merely unsuccessful. It is preferable not to risk
challenge by certifying such a claim as unfounded rather than indicating it is not a
claim that generates a suspensive appeal.

88. Blake J went onto say:

“58. Further the defendant’s construction ensures that there is a right of appeal
available to challenge the decision although one that can only be exercised from
abroad. This is less draconian than a s. 96 certificate that would remove all rights of
appeal. It leaves the repeat claimant who has not made a fresh claim in the same
position as a first time claimant whose claim is considered so weak that it can be the

33
 subject of a s. 92(4) certificate.”

89. However, Blake J also observed:

“60. In an asylum case, the EU Directive is applied by first requiring the SSHD to
consider whether the claim is a fresh one. If it is, it should either be allowed or be
subject to a suspensive appeal in country. Whilst the decision as to whether this is a
fresh claim is one for the defendant Secretary of State to take, it will be closely
supervised by the courts on judicial review. The test is an objective assessment of
difference in respect of the materials relied on and the assessment of a different
outcome. This has been said not to be a demanding test see WM (DRC) v SSHD
[2006] EWCA Civ 1495 at [7]. The court is not substituting itself for the decision
maker and if the objective evaluation depends on the assessment of the credibility of
the new material the review question focuses whether it was open to the decision
maker to reach the conclusion that he did (see further observations of Buxton LJ in
WM (DRC) at [16] to [19]). But if the objective analysis of the materials leads to the
conclusion that the outcome might well be different it will not be open to a
reasonable Secretary of State properly directing himself to certify the claim: see Lord
Bingham in Razgar v Secretary of State [2004] AC 368 at [17]. In all cases where
part of the analysis of the legality of the decision turns on the assessment of real risk,
the principle of anxious scrutiny applied in protection claims requires the court to
assess what the new material might well establish. If the court performs this function
in a judicial review of a fresh claim decision it is supplying the effective remedy
required both by Article 13 of the ECHR and Article 33 of the EU Directive. If it
does not I doubt whether it would. Where it has been lawfully concluded that the
claim is not a fresh claim, then nothing in the Directive or the Refugee Convention
requires a suspensive appeal to be exercised in country.”

90. Therefore, as a general principle, unless new representations are accepted as amounting to a
fresh claim for protection, there is an out of country right of appeal (unless certified under
section 96 of the Act) but not a suspensive in country right of appeal. Of course, if certified,
the decision carries no right of appeal at all other than challenging the certificate by way of
judicial review.

91. However, in regards to non-protective cases, such as Article 8, Blake J said as follows:

34
 “61. In an Art 8 human rights case such an appeal from abroad may not be futile
notwithstanding the absence of the appellant. It is not the case that an Article 8
appeal invariably requires suspensive relief, particular where the decision challenged
is a second refusal to revoke a deportation order. In Mr Anirah’s case, for example, it
can take into account not only the passage of time since the dismissal of the original
appeal, but also the fresh circumstances including the continued existence of family
ties and the absence of criminal activity by the appellant. It can also take into account
refinements and advances in the applicable law.”

92. Blake J said:

62. The defendant’s construction is materially supported by the decision of the CA in

ZT (Kosovo) [2008] EWCA Civ 14 (24th January 2008) where the court was
considering a case that had been certified under s. 94 of the 2002 Act on the basis
that the country of origin was on a white list of presumptively safe countries. Sedley
LJ was critical of aspects of Home Office in determining such claims and said at [17]
to [18] :-

“In my Judgement the process required by the 2002 Act and the Immigration Rules
where an application has been rejected and then renewed is essentially the following.
First, under §353, the Home Secretary needs to consider whether she now accepts the
claim: it is clear from the wording and structure of §353 that this does not depend on
its being a fresh claim within the meaning of the rule: the option of acceptance is
untrammelled. If the renewed claim is rejected but contains enough new material to
create a realistic prospect of success on appeal, the Home Secretary must so decide
and her refusal, being a refusal of a fresh claim, can then be appealed. If, however,
the Home Secretary lawfully decides that it is not a fresh claim, she does not need to
consider whether, having rejected it, she should also certify it as clearly unfounded;
for, not being a fresh claim, its rejection is not appealable at all, whether in-country
or out. It is only, therefore, to a first claim that the process of certification is relevant.
This will, however, include a certified claim which has been varied or added to by a
further application while an appeal against refusal is still open or pending. §353 does
not apply to such a claim, and it is accordingly here alone that the question of lifting
an extant s. 94 certificate can arise.

35
 Thus, far from a renewed claim such as the present one going straight into the s. 94
process, its proper destination is §353. Applying this rule, the Home Secretary should
have decided whether now to accept the claim and, if she decided to reject it, whether
it was nevertheless a fresh and therefore appealable claim. If it was, the claimant
would have secured what he wanted, which was an in-country right of appeal. If it
was not, he had no further recourse: his original claim had been certified; he would
now have nothing further to appeal; and the Home Secretary would have nothing
further to certify.”

93. Blake J observed then in relation to Sedley LJ’s dicta was:

“For reasons already noted no one suggests that there is no right of appeal at all in
these cases, but the reasoning is powerful support for the proposition that what
determines whether there is an in country right of appeal is whether there is a fresh
claim or not.”

94. Blake J then looked at the question of whether the subsequent representations by Mr. Etame
did amount to a fresh claim within the meaning of the rules and the guidance of the Court of
Appeal in WM (DRC).

95. In Etane’s case:

a) the AIT in its decision of 3rd August 2006 accepted that the claimant was a homosexual
and that he was beaten up and assaulted so severely that it resulted in him being in
hospital,
b) they were unable to accept his assertion as to how the injuries were caused and
specifically doubted his claim that the injuries had been inflicted in prison.
c) It considered that the account that the claimant gave in his evidence of daily torture in
prison made it unlikely that he would be in a fit state to escape, and that therefore either
the ill-treatment claimed or the ability to escape or both was false.
d) It had medical evidence in the form of a letter from a community psychiatric nurse as to
three physical problems including injury to the anus and psychological sequela.
e) It did not rule out that his problems were connected with an affair with son of the police
chief but in the end concluded that there was “some local difficulty in his home village
arising from his sexual activity.”

36
 f) The Tribunal did not consider that this state of affairs entitled him to asylum in the
United Kingdom. These difficulties would not be replicated on relocation to the capital.

96. The Claimant submitted the following fresh evidence:

a) There was a full statement from the claimant detailing anal rape in Douala prison
and sexual torture including the use of a flick knife to the anus by fellow prisoners.
b) There was a statement from a GP who is a forensic medical examiner with
considerable experience in medico-legal aspects of asylum claims. She found
evidence of 3 distinct unsutured scars one above the groin and two immediately
above the applicant’s anus. She says “in my opinion the scars above his anus are
highly consistent with injury by a thin sharp knife. They are injuries for which it is
difficult to give any causation other than assault by another person. The lack of
permanent evidence of direct trauma to the anus is still consistent with the injuries
described.”
c) There was an expert report from a social anthropologist with special expertise in
Cameroon who gave expert evidence of sexual abuse of prisoners in prison by
guards and inmates, with those known to be homosexual at particular risk. The
expert further gave evidence of the practice of sending prisoners on work gangs to
places outside the prison (which is how the claimant says he managed to escape)
and the practice of remanding those suspected of sodomy charges in custody.

97. The SSHD rejected this evidence in familiar terms, as follows. It was said that the new
evidence did not amount to a fresh claim with reasonable prospects of success because:
a) As to the evidence of rape, he could complain to the police about this and receive
adequate state protection.
b) It is not unreasonable to expect the claimant to relocate to one of the bigger cities
in the Cameroon such as Douala or Yaoundé and behave discreetly there so as not
to attract police attention.
c) There is no evidence that societal prejudice against homosexuals has resulted in
numerous actual prosecutions of homosexuals although there is some evidence of
detention of those accused of sodomy.

98. Blake J called the new evidence:

37
 “fresh, credible and was not available to be called at the original appeal hearing
either because the experts were not known to the claimant’s former solicitors or the
sexual basis of his mistreatment in prison was too difficult for the claimant to
address”

99. However, he observed the central question was:

“68. The central question is what impact might it have had on the AIT if the case
was reconsidered there. The AIT did not accept significant parts of the claimant’s
case and drew adverse inferences from the delay in putting forward the case he did
and exaggeration of what had occurred to him in prison.”
100. Blake J then formulated the standard WM(DRC) test:

“69. In my judgement the central issue for the Secretary of State was whether this
new material created a realistic chance that a fresh appellate body would accept the
claimant’s case that he had been subject to serious sexual assault in prison. If the
appellate body were to conclude that the claimant might well have suffered such
treatment in such circumstances, then it would be difficult to conclude that there was
no serious risk of harm on return:-
i. Delay in making a claim has little weight if there is an assessment that
the claimant has indeed been persecuted and/or severely ill treated
before coming to the UK as claimed.
ii. Other doubts about credibility were made in the absence of objective
material that suggests the claimant’s case is consistent with known
country conditions as to the treatment of homosexuals in Cameroon,
and that his inflated accounts of daily torture may have been a way of
avoiding the embarrassment of explaining the regular rape and sexual
torture he claims to have experienced that he objectively supported by
medical findings.
iii. The characterisation of the claimant’s problems as a local difficulty
would not be sustainable if it transpired that he had been raped and
sexually tortured in state facilities in one of the principal cities of the
country Douala.
iv. If the claimant might well have had difficulties resulting in an affair
with the local police chief’s son and had been remanded in custody in

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 suspicion of sodomy and had been sexually tortured there by officials
and prisoners with official impunity, he would be significantly worse
off than the generality of men of homosexual orientation who had come
to no adverse attention outside their local community.”

66 . Of assistance to practitioners therefore is what is said in paragraph 70:

“The difficulty that I have with the decision letters responding to this material to date
is that they do not address any of the above considerations. In my judgement the
material presented was of sufficient coherence and relevance to undermining the
previous appellate consideration that it required these consequences to be addressed.
Further the Secretary of State’s own response to the evidence of anal rape would be
wholly inadequate if directed to the core allegation that he was raped in a state
institution with at least state connivance in sexual torture of homosexuals. If this
might have happened sufficiency of state protection would not be an answer to the
claim.”

101. Therefore, he set aside the refusal to treat the new material as a fresh claim and
directed it be reconsidered by the SSHD.

Blake J’s conclusions in the case

102. Blake J concluded:

a) neither appellant has an in-country appeal as of right simply by virtue of having

made a protection claim or having made fresh representations supported by
different material in pursuit of such a claim.
b) Where there are representations that do not amount to a fresh claim or are not
argued as such, any refusal arising out of allegations already considered do
therefore not carry in in-country right of appeal;
c) In Mr. Anirah’s case it is not claimed that the representations amounted to a fresh
claim. He will have a right of appeal from abroad. As previously noted this is an
appeal can examine whether his continued exclusion from whatever family life he
enjoys with his children in the UK can be convincingly justified for one or more
reasons related to public order. This is not just a sterile repeat of the previous

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 decision, and there would be serious grounds for requiring a complete re-
evaluation in the light of developments.
d) For Mr. Etame, access to a suspensive appeal on the merits is through a decision of
whether the claim for protection is a fresh one or not. This is a decision for the
Secretary of State subject to the close supervision of the court
e) His right of appeal from abroad may be somewhat redundant in those
circumstances although could operate as a final check on his safety in the event
that the risk of ill-treatment remains a real and immediate one.

103. This is an interesting case on how fresh claims should be treated but also on the vital
need to always make representation for protection as fresh claims. If this is not done, I
believe the Home Office will rely upon this Judgement to say Appellants should have out of
country rights of appeal only.

104. I expect to see a good deal more on this case and arguments about it in the future,
especially when section 113 is amended by the 2006 Act. I also imagine the Claimants will
appeal this decision.

HUY QUOC VU v SSHD [2008] EWHC 1192 (Admin)

105. Blake J has been busy as soon after that decision he issued a second related decision
on in country rights of appeal and fresh claims.

106. He summarized himself as follows:

“15. There has been debate elsewhere as to whether, properly construed, that section
refers to any human rights claim, or whether it requires a fresh claim; but it is not
disputed in the proceedings before me (and for the purpose of this application I am
prepared to assume without deciding) that section 92(4) only applies to a human
rights claim which is a fresh claim: see the decision in R (Etanne and Anirah) v
Secretary of State (handed down on 23 May 2008). Accordingly it can be seen how
the statutory scheme of appeal, the Immigration Rules and the learning on what
constitutes a fresh claim all interconnect. The claimant contends that a reasonable
Secretary of State properly directing himself could not have concluded that this was
not a fresh claim within the meaning of the rules.”

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107. Blake J observed usefully as follows:

“17. I am content to assume, without any further examination, that the asylum
jurisprudence passes readily over to human rights claims, although it has a peculiarly
odd application in the context of the present case where what is being considered is
an article 8 case which has never in fact previously been considered on appeal by an
adjudicator or previously by the Secretary of State in an administrative decision until
the representations made in 2006 and the ensuing decisions. On any common sense
view this was a claim that had never been made previously and was therefore a fresh
claim. It is founded on material that came into existence since the previous
opportunity to appeal and could not have been ventilated before. It can only fail to be
a fresh claim within the meaning of the rules if the evidence relied on was so fragile
as to be incapable of affording a realistic prospect of success on appeal. In a case
where the evaluation does not depend on the intrinsic cogency of the material, this is
a test akin to whether a claim is manifestly unfounded for the purpose of section
94(2) of the Nationality, Immigration and Asylum Act 2002.”

108. This dicta will be of assistance to those drafting fresh claims or considering
judicially reviewing them.

109. Also of assistance is the following:

“Thirdly, that letter does not give any separate consideration to the impact of removal
(even for a limited period) upon the welfare of the claimant's son. It is well
established that, in performing the article 8 balance under the ECHR (incorporated
into our law by the Human Rights Act and the references to it in the 2002
Nationality, Immigration and Asylum Act), regard must be had to the welfare of the
child. If proposition is needed for that, there is Singh v Entry Clearance Officer for
New Delhi [2004] EWCA Civ 1075, [2005] QB 608, where the Court of Appeal
points out that Strasbourg requires that under the Convention regard must be had to
the rights of the child and that a prime consideration is the welfare of the child in the
article 8 balance. The domestic court must also have regard to those rights. The only
reference to the child in the two decision letters is in the letter of October 2006 where
the decision in Mahmood is cited to the effect that knowledge on the part of one

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 spouse at the time of the marriage that the rights of residence of the other were
precarious militates against finding that an order excluding the latter spouse violates
article 8. The letter continues:

"It is considered that the same principle applies in respect of your client's son who
was conceived at a time whilst your client was in the United Kingdom without leave
to remain."”

110. This will also be useful dicta when seeking to judicially review or challenge
decisions on Article 8 based fresh claims where children are involved.

111. Also interesting is his interpretation of the second stage of Razgar, (the Mahmoud
test), as follows:

“In my Judgement the cases show that there is a distinction between those who may
be called truly voluntary migrants, where a state is entitled to control its frontiers by
its own laws, policies and practices, and should expect people who want to come
here voluntarily to obey those laws and practices, and those who have established
family life when there is little alternative but for them to live together as a family in
the United Kingdom. In varying degrees their situation is involuntary in that they
have no choice of relocation to enjoy family life. Mahmood was a classic case of
voluntary migration of an applicant from Pakistan entering illegally, marrying a
woman who was a British citizen but who came from Pakistan, and where there was
not the slightest indication of any reason why the couple could not go back to
Pakistan and make their matrimonial home there, or go back to Pakistan for the
purpose of applying for entry clearance to come in under the rules. It was important
that they should not be able to undermine immigration control simply by ignoring
entry clearance rules which are part of the regime for controlling our frontiers.”

112. Also useful and worth quoting perhaps in future applications:

“(3) This is not simply a case of an able bodied woman who can expect to await a
period whilst her partner goes to Vietnam. She has a serious long term illness and, as
the medical letters suggest, she receives some support from her husband which is
important to her health and mental well-being.

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 (4) The wife is the mother of a 2 year old child, and juggling a business, parenthood,
health, and maintaining a home single handed would be difficult; and in
circumstances where the option of returning to Vietnam temporarily or for an
enduring basis does not exist. That is a factor that requires full weight and
assessment.

(5) This is not a case of queue jumping. There is no queue reserved for those who
cannot live together elsewhere. The immigration rules including the rules requiring
prior entry clearance do not strike the balance as they apply indifferently to those
who can live together as a family and those who cannot, the voluntary and
involuntary alike. As Lord Phillips MR said in R (Mahmood) v Secretary of State for
the Home Department [2001] 1 WLR 840 at [55] "removal will not necessarily
infringe article 8 provided that there are no insurmountable obstacles to the family
living together in the country of origin" and Baroness Hale of Richmond repeated in
Razgar v Secretary of State for the Home Department [2004] 2 AC 368 at [50] "the
Court is unsympathetic to actions that will have the effect of breaking up marriages
or separating children from their parents". It might well be considered what pressing
social need is met by requiring a person who otherwise qualifies from admission as a
spouse to leave his family and apply for abroad. It is no answer for reasons
previously given that the rules generally require it. When a human right to respect for
family life is admittedly engaged as here, it may even be that an immigration judge
considering this case in the future would be entitled to obtain guidance as to
proportionality from the European Court of Justice decision of Case C-459/99,
MRAX v Belgium [2002] 1 ECR 6591 [2003] 1 WLR 1073 at 61-62, although the
present is not a case concerned with Community law rights of entry.”

113. This last section looks rather helpful to interpreting the second stage of Razgar.

114. He was also of the opinion that, where Article 8 applications are raised late in the
day:

“I conclude that the statutory scheme would suggest that those cases would be
certified as unfounded under section 94 rather than being squeezed into the
proposition that they are not a fresh claim under section 92(4) because it is

43
 remarkable that a claim that was not ventilated could not have been ventilated and at
least engaging article 8(1) could be considered not to be a fresh claim, but that is not
a matter which needs further exploration in this application for judicial review.”

115. This principle is one I suggest will be of some usefulness in dealing with refusals of
fresh claims.

JN v SSHD [2008] EWCA Civ 464 – Dublin Convention Returns to Greece?

116. The Appellant, an Afghani national, claimed asylum in Greece and then came to the
UK. Following the Dublin II protocol, if a nation declines to respond to invitations to accept
an asylum seeker as one to whom they are deemed responsible, the UK can assume they are
responsible. However, subsequently, the Greek government responded and accepted
responsibility.

117. The Court found returnees could be returned to Greece, although I believe there is
scope for argument on further evidence than was before the SSHD.

N v UK

118. The House of Lords Judgement of N was reviewed recently by the ECHR who
affirmed it. Pertinent was the section that follows on their view of the position of those who
could be returned to countries where the difference in medical treatment could make them
very will or significantly shorten their life span:

The principles to be drawn from the case-law

42. In summary, the Court observes that since D. v. the United Kingdom it has
consistently applied the following principles.

Aliens who are subject to expulsion cannot in principle claim any entitlement to
remain in the territory of a Contracting State in order to continue to benefit from
medical, social or other forms of assistance and services provided by the expelling
State. The fact that the applicant's circumstances, including his life expectancy,
would be significantly reduced if he were to be removed from the Contracting State
is not sufficient in itself to give rise to breach of Article 3. The decision to remove an

44
alien who is suffering from a serious mental or physical illness to a country where
the facilities for the treatment of that illness are inferior to those available in the
Contracting State may raise an issue under Article 3, but only in a very exceptional
case, where the humanitarian grounds against the removal are compelling. In the D.
case the very exceptional circumstances were that the applicant was critically ill and
appeared to be close to death, could not be guaranteed any nursing or medical care in
his country of origin and had no family there willing or able to care for him or
provide him with even a basic level of food, shelter or social support.

43. The Court does not exclude that there may be other very exceptional cases where
the humanitarian considerations are equally compelling. However, it considers that it
should maintain the high threshold set in D. v. the United Kingdom and applied in its
subsequent case-law, which it regards as correct in principle, given that in such cases
the alleged future harm would emanate not from the intentional acts or omissions of
public authorities or non-State bodies, but instead from a naturally occurring illness
and the lack of sufficient resources to deal with it in the receiving country.

44. Although many of the rights it contains have implications of a social or economic
nature, the Convention is essentially directed at the protection of civil and political
rights (Airey v. Ireland, Judgement of 9 October 1979, Series A no. 32, § 26).
Furthermore, inherent in the whole of the Convention is a search for a fair balance
between the demands of the general interest of the community and the requirements
of the protection of the individual's fundamental rights (see Soering v. the United
Kingdom, Judgement of 7 July 1989, Series A no. 161, § 89). Advances in medical
science, together with social and economic differences between countries, entail that
the level of treatment available in the Contracting State and the country of origin
may vary considerably. While it is necessary, given the fundamental importance
of Article 3 in the Convention system, for the Court to retain a degree of
flexibility to prevent expulsion in very exceptional cases, Article 3 does not place
an obligation on the Contracting State to alleviate such disparities through the
provision of free and unlimited health care to all aliens without a right to stay within
its jurisdiction. A finding to the contrary would place too great a burden on the
Contracting States.

45. Finally, the Court observes that, although the present application, in common
with most of those referred to above, is concerned with the expulsion of a person
with an HIV and AIDS-related condition, the same principles must apply in relation
45
 to the expulsion of any person afflicted with any serious, naturally occurring physical
or mental illness which may cause suffering, pain and reduced life expectancy and
require specialised medical treatment which may not be so readily available in the
applicant's country of origin or which may be available only at substantial cost.@

Random Notes

119. DP 3/9, the concessionary policy on married partners has been withdrawn from the
24th April 2008.

120. BP (SIJ3/96 – Unmarried Partners) Macedonia [2008] UKAIT 00045 confirms that
in any event it only related to married partners. However, applying a common sense
approach to chapter 36.4 of the Operational Enforcement Manual dealing with common-law
relationships (as Home Office caseworkers are expected to do) a person can show he or she
has met the requirement of 2 years in a relationship akin to marriage even if for part of that
period the couple were married.

Simon Harding
Thomas More Chambers
7 Lincoln’s Inn Fields
London WC2A 3BP

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