We've compiled a summary of important new legal cases on immigration and detention, with links to the full judgments:
GS and EO (Article 3 – health cases) India [2012] UKUT 003976 (IAC)
This case essentially confirmed the position in N v SSHD [2005] UKHL that the fact the life expectancy may be shortened by withdrawal of medical treatment by removal abroad is itself incapable of amounting to the highly exceptional case that engages Article 3 of the European Convention on Human Rights (ECHR). However there are certain exceptions including the impact on children, discriminatory denial of treatment or a lack of resources arising from civil war.
HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409 (IAC)
Iraqi nationals who have current or expired Iraqi passport can be returned to Baghdad International Airport (BIA). They only face a risk of ill-treatment in violation of Article 3 of the ECHR if they do not have such documents, although current UK policy is not to return people to BIA in such a situation.
Antonio Serrano v SSHD [2012] EWHC 3216 (Admin)
The case concerned an EU national who failed in his attempt at arguing that he had been discriminated against after being detained on immigration grounds following completion of a criminal sentence.
EH v SSHD [2012] EWHC 2569 (Admin)
The UKBA settled this case following an acceptance that the applicant had been unlawfully detained after the SSHD failed to apply her former policy to only detain people with mental health problems in very exceptional circumstances.
MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC)
This was the first test of the new rules introduced by the SSHD to guide her staff and the tribunal on how Article 8 of the ECHR should be interpreted. The judges found that even where an applicant may fail to come under the new rules, a First-tier Tribunal judge is still required to consider whether or not a person’s removal will be in compliance with the Human Rights Act (that brings into effect the ECHR into UK Law). When applying Article 8, in this context, the definitions in the new rules of ‘exceptional circumstances’ and ‘insurmountable obstacles’ are not criteria to be taken into account as they do not encapsulate guidance arising from EU case law. However judges must have regard to the greater specificity of the new rules including the guidance relating to thresholds of criminality and minimum lengths of residence.
HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC
This is an extradition case where the court noted:
1. Article 8 has to be considered so that the best interests of the child are a primary consideration, although not necessarily the only primary consideration and not necessarily the paramount consideration.
2. Children need a family life in a way that differs from an adult including needing to be fed, clothes and loved if they are to be properly functioning members of society. Depriving a child of family life is more serious than depriving an adult of family life.
3. There is a public interest in ensuring children are properly brought up. A parent’s past criminality may say nothing at all about their ability to bring up a child, and the opposite may also be the case.
4. As the effect on a child’s best interests is more important than that on an adult, a court needs to consider whether the public interest in extradition can be met without doing such harm to the child.
AA v SSHD [2012] EWCA Civ 1383
The UKBA is entitled to detain a person whose age is disputed, without consideration of its policy on detaining children in only exceptional circumstances, and a subsequent decision that the person is a child does not render the previous detention unlawful.
Muqtaar v SSHD [2012] EWCA Civ 1270
A detainee who had been held for 41 months could not argue that his request to the European Court for his removal to be prevented before his human rights claim was decided (known as a Rule 39 request) meant that he was not removable and should therefore have been released. An extremely disappointing decision. (Copy of judgement available from BID on request).
EM (Eritrea) & Ors v SSHD [2012] EWCA Civ 1336
The test for opposing return under the Dublin 2 Regulations is that there be ‘systemic deficiencies’ in the asylum reception conditions in the country concerned. Assertions made in individual cases were not sufficient on their own.
FV (Italy) [2012] EWCA Civ 1199
FV had been sentenced to 8 years in prison for ‘manslaughter by reason of provocation’. There might have been grounds for arguing that deportation of this EU national was justified on ‘serious grounds of public policy’. But the fact that he had been resident in the UK for over 10 years meant that there would need to be ‘imperative grounds of public security’ before he could be deported, and in this case the nature of his crime and the assessments on risk meant that he did not pose such a risk.
