Introduction To Immigration Law - BPC Judicial Review

INTRODUCTION 2

Judicial Review and Immigration Law 2

What is the Upper Tribunal? 2

Appeals from the Upper Tribunal 2

Introduction To Asylum Law 3

THE REFUGEE CONVENTION 4

Article 1: Definition of Refugee 4

Framework of Article 1 4

‘Well-founded Fear of Persecution’ 4

Persecution 5

Hierarchy of Rights 5

Internal Flight/Relocation 5

THE ASYLUM PROCESS 7

Reasons for refusal of asylum: 7

Credibility 7

Failing to Disclose 8

Other common reasons for Refusal 9

FRESH CLAIMS 10

Substantive Law 10

Level of Scrutiny 11

Correct approach: Public Law Review + Anxious Scrutiny 11

JURISDICTION OF THE UPPER TRIBUNAL 12

Judicial Review Jurisdiction of the Upper Tribunal 12

Legislative Framework 12

Transfer Direction, August 2013 12

FCJR Procedure 12

Documents 13

Time Limits 13

Urgent Applications 13

Interim Relief 14

Duty Judge 14

Renewals 14

APPEALS 15

High Court to Court of Appeal 15

Upper Tribunal to Court of Appeal 15

As of 1 November 2013, all immigration Judicial Reviews can be issued in, and will automatically be transferred from the High Court, to the Upper Tribunal for determination. This transfer of jurisdiction to the Upper Tribunal has substantially reduced the previous backlog of immigration JRs.

According to the 2014 annual report of the Senior President of the Upper Tribunal, Jeremy Sullivan, there has been a “dramatic improvement” in the time taken to determine Asylum and Non-Asylum appeals. In the six (6) months from April 2013, over 90% were determined within the 20 – 25 day time limit which is a radical improvement on the previous situation.

The Tribunals, Courts and Enforcement Act of 2007 (“the 2007 Act”) created a unified system of tribunals within the United Kingdom. The tribunals pre-dating the Act (e.g. social security) were transferred to the new jurisdictions, the first tier tribunal, created by the Act:

There is a right of appeal against first tier tribunal decisions to the Upper Tribunal on a point of law and permission from the Upper Tribunal is required.

The Upper Tribunal is a senior court of record, i.e. of equivalent status to the High Court. The UT can set precedent without recourse to the High Court. It is the only tribunal with the power of judicial review

Appeal against UT decisions lies to the Court of Appeal on a point of law and the permission of CA is required.

The current Asylum Legislation finds its origins in the United Nations Convention Relating to the Status of Refugees which entered into force on 22^nd April 1954. The purpose of which was to protect individuals fleeing their countries post-War.

It was amended by 1967 protocol which removed temporal limitations and gave the Convention universal coverage. As a signatory to the Convention, UK legislation based on its international obligations under the Convention.

Article 1 endorses a single universal definition of the term ‘refugee.’

A person who:

“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinions, is outside the country of his nationality and is unable to , or owing to such fear, unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable to, or owing to such fear, unwilling to return to it.”

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states that "a person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition”.

In order to see whether a person fulfils or not the criteria contained in the definition for refugee status, the states parties to the 1951 Convention have developed what is known as “refugee status determination procedures” or “asylum procedures”. An asylum procedure will verify whether the person’s claim of fear of persecution falls within the definition of the 1951 Convention.

In the United Kingdom, these procedures are carried out by the UK Border Agency, under the supervision of the Secretary of State for the Home Department.

The question of whether or not an individual is subject to a ‘Well-founded Fear of Prosecution’ is established by looking at all of the factors in the case. The assessment is neither purely subjective nor purely objective in nature – the standard of proof involves an objective element not just subjective fear.

The test is ‘Is there a real and substantial risk or a real likelihood of persecution for a convention reason?’ – R v SSHD Sivakumaran [1988] AC 958.

There is authority that the standard of proof is lesser than the ‘balance of probabilities.’ It has also been expressed as ‘a reasonable chance,’ ‘substantial grounds for thinking,’ ‘a reasonable possibility’ [Fernandez v Government of Singapore [1991] 2 AER 691].

Persecution = Serious Harm + Failure of State Protection

Persecution is broken up into two (2) key elements, an approach as set out by Hathaway (1991) The law of Refugee Status. Where there is a risk of serious harm for a convention reason and there is a failure of State protection, then persecution is made out.

Persecution must be at the hands of the state or by a force that the state is unwilling or unable to control.

LEVEL 1

• Inviolable rights.

Serious violation of these rights will...