Caselaw Update - January 2019

KC (Gambia) v The Secretary of State for the Home Department [2018] EWCA Civ 2847 (20 December 2018)

33. Overall this is a case where the Secretary of State’s decision was centrally based upon a rejection of the truth of the KC’s assertions about the risks she faced in the Gambia. When that account was vindicated by the FTT, the Secretary of State fell back on her alternative arguments relating to internal relocation and state protection. When these too were rejected, the appeal to the UT was based upon narrow forensic arguments concerning the reasoning of the FTT. After the UT, wrongly in my view, allowed itself to intervene in a case that it considered to be finely balanced, the Secretary of State has been driven to seek to bolster that decision with yet more elaborate arguments by way of a Respondent’s Notice. None of these attempts persuade me that the FTT did not direct itself correctly in law or that the decision was not one that it was entitled to reach on the evidence it heard. Ms Khan’s submission that there was nothing wrong with the FTT’s decision is unanswerable.

FB & Anor, R (on the application of) v Secretary of State for the Home Department (removal window policy) [2018] UKUT 428 (IAC) (1 November 2018)

The Secretary of State’s “removal window” policy, as set out in Chapter 60 of the General Instructions of 21 May 2018, was, as a general matter, compatible with access to justice but was legally deficient, both in its treatment of cases where a removal window is deferred and in the lack of information regarding place and route of removal.

AMA (Article 1C(5) – proviso – internal relocation) [2019] UKUT 11 (IAC) (12 November 2018)

(1)    The compelling reasons proviso in article 1C(5) of the 1951 Refugee Convention, as amended, applies in the UK only to refugees under article 1A(1) of the Convention.
(2)    Changes in a refugee’s country of origin affecting only part of the country may, in principle, lead to cessation of refugee status, albeit it is difficult to see how in practice protection could be said to be sufficiently fundamental and durable in such circumstances.
(3)    The SSHD’s guidance regarding the role of past persecution can not in itself form a lawful basis for finding that removal would lead to a breach of the Refugee Convention, given the limited appeal rights at section 82 of the Nationality, Immigration and Asylum Act 2002, as amended and SF and others (Guidance – post-2014 Act) Albania [2017] UKUT 120 (IAC) 10 when read in its proper context.

Amsar (Isle of Man: free movement) [2019] UKUT 12 (IAC) (18 December 2018)

(1 ) The Isle of Man and the Channel Islands are not part of the United Kingdom and have only a very limited legal relationship with the European Union.
(2) An EU national who works on the Isle of Man is not thereby exercising EU rights of free movement for the purposes of the Immigration (EEA) Regulations 2006.
 

SM & Ors, R (on the application of) v Secretary of State for the Home Department (Dublin Regulation – Italy) [2018] UKUT 429 (IAC) (4 December 2018)

(1)        Subject to paragraph (2) below, on the evidence before the Upper Tribunal, no judge of the First-tier Tribunal, properly directed, could find there is a real risk of an asylum seeker or Beneficiary of International Protection (BIP) suffering Article 3 ill-treatment if returned to Italy pursuant to the Dublin Regulation, by reason only of the situation that the person concerned may be reasonably likely to experience in Italy, as a “Dublin returnee”. The evidence does not rebut the general presumption that Italy will comply with its international obligations in such cases.
 
(2)       However, the evidence before the Upper Tribunal is markedly different from that previously considered by the High Court in “Dublin” cases concerning Italy, such that it cannot, without more, be said a human rights claim based on Article 3 is bound to fail, if the claim is made by a ‘particularly vulnerable person’ (as described in paragraph (3) below).
 
(3)         The categories of “vulnerable persons” identified in the Reception Directive are a starting point for assessing whether a person has a particular vulnerability for the purposes of this paragraph. The extent of a person’s particular vulnerability must be sufficiently severe to show a potential breach of Article 3. It is difficult to specify when a particular vulnerability might require additional safeguarding to protect a person’s rights under Article 3. The assessment will depend on the facts of each case. However, a person who makes general assertions about mental health problems without independent evidence or who has been diagnosed with a mild mental health condition or has a minor disability may have sufficient resilience to cope with the procedures on return to Italy, even if it entails the possibility of facing a difficult temporary period of homelessness or basic conditions in first-line reception facilities. There will be cases where a person’s particular vulnerability is sufficiently serious that the risk of even a temporary period of homelessness or housing in the basic conditions of first-line reception might cross the relevant threshold. Such cases are likely to include those with significant mental or physical health problems or disabilities. Other people may have inherent characteristics that render them particularly vulnerable e.g. unaccompanied children or the elderly.
 
(4)        In the case of a ‘particularly vulnerable person’, the following considerations apply:
 
(i)                  A failure by the respondent to consider whether to exercise discretion under article 17(2) of the Dublin Regulation is likely to render the certification decision unlawful;
 
(ii)                If the respondent considers whether to exercise such discretion but decides not to do so, the return and reception of the person concerned will need to be well-planned. Although the Italian authorities would not want to leave a particularly vulnerable asylum seeker or BIP without support, the evidence indicates that there is no general process, similar to that which exists for families with children, to ensure that particularly vulnerable persons will not be at real risk of Article 3 treatment, while waiting for suitable support and accommodation, of which there is an acute shortage. In order to protect the rights of such a person in accordance with the respondent’s duties under the European Convention, the respondent would need to seek an assurance from the Italian authorities that suitable support and accommodation will be in place, before effecting a transfer. 
 
(iii)              It follows that a failure to obtain such an assurance prior to the transfer of a particularly vulnerable person is likely to give rise to a human rights claim that is not necessarily ‘bound to fail’ before the First-tier Tribunal.