A summary of the latest developments in Immigration law caselaw:
Whether the judge was entitled to find that the proceedings before the FTT under the 2005 DFT Rules were unfair and should be quashed – whether the period of detention from 29 July to 6 August 2013 was unlawful – period of detention from 10 September to 12 December 2013 was unlawful .
Interplay between obligations of the state under the Convention on the Civil Aspects of International Child Abduction concluded on 25 October 1980 (“the 1980 Hague Convention”) as incorporated by the Child Abduction and Custody Act 1985 (“the 1985 Act”) and under immigration law including the Convention and Protocol relating to the Status of Refugees adopted on 25 July 1951 and 16 December 1976 (“the 1951 Geneva Convention”) and relevant European Directives – apparent tension between the objective of the former expeditiously to return a wrongfully removed or retained child to his home jurisdiction and the principle of the latter that refugees should not be refouled (i.e. expelled or returned to a country where they may be persecuted) – raises issues as to the rights of children in the context of such situations.
(1) A decision to remove a person (P) from the United Kingdom under immigration powers will not be unlawful by reason of the fact that it is predicated upon an earlier decision which has not, at the time of removal, been found to be unlawful, but which later is so found: AB v Secretary of State for the Home Department  EWCA Civ 59; Niaz (NIAA 2002 s.104: pending appeal)  UKUT 399 (IAC).
(2) The fact that P’s removal was not unlawful will not necessarily preclude a court or tribunal on judicial review from ordering P’s return. The fact it was lawful will, however, be a “highly material factor against the exercise of such discretion”: Lewis v Secretary of State for the Home Department  EWHC 1749 (Admin).
(3) Where P’s removal was unlawful, by reference to the position at the time of removal, that fact should not only constitute the starting point for the Tribunal’s consideration of the exercise of its discretion to order return, but is also likely to be a weighty factor in favour of making such an order. The same is true where the effect of P’s removal has been to deprive P of an in-country right of appeal.
(1) Whether and, if so, when the Upper Tribunal should preserve findings of fact in a decision of the First-tier Tribunal that has been set aside has been considered by the Higher Courts in Sarkar v Secretary of State for the Home Department  EWCA Civ 195, TA (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 260 and MS and YZ v Secretary of State for the Home Department  CSIH 41.
(2) What this case law demonstrates is that, whilst it is relatively easy to articulate the principle that the findings of fact made by the First-tier Tribunal should be preserved, so far as those findings have not been “undermined” or “infected” by any “error or errors of law”, there is no hard-edged answer to what this means in practice, in any particular case.
(3) At one end of the spectrum lies the protection and human rights appeal, where a fact-finding failure by the First-tier Tribunal in respect of risk of serious harm on return to an individual’s country of nationality may have nothing to do with the Tribunal’s fact-finding in respect of the individual’s Article 8 ECHR private and family life in the United Kingdom (or vice versa). By contrast, a legal error in the task of assessing an individual’s overall credibility is, in general, likely to infect the conclusions as to credibility reached by the First-tier Tribunal.
(4) The judgment of Lord Carnwath in HMRC v Pendragon plc  UKSC 37 emphasises both the difficulty, in certain circumstances, of drawing a bright line around what a finding of fact actually is, and the position of the Upper Tribunal, as an expert body, in determining the scope of its functions under section 12 of the Tribunals, Courts and Enforcement Act 2007 in re-making a decision, following a set aside.
The “Wisniewski” Principles
(5) In Wisniewski v Central Manchester Health Authority  LI Rep Med 223, Brooke LJ set out a number of principles on the issue of when it is appropriate in the civil context to draw adverse inferences from a party’s absence or silence. These principles are not to be confused with the situation where a party who bears the legal burden of proving something adduces sufficient evidence, so as to place an evidential burden on the other party. The invocation of the principles depends upon there being a prima facie case; but what this means will depend on the nature of the case the party in question has to meet.
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