Asylum

The entitlement of people whose asylum applications have failed but have not returned to their home countries (frequently because they cannot be returned) to receive treatment on the National Health Service without being charged for it was considered by Mr Justice Mitting in R on the application of A v West Middlesex University Hospital NHS Trust [2008] EWHC 855 (11-4-2008).   As Mitting J noted early in his judgment:

Applications for asylum are usually made by people who have fled from the authorities in their home countries or from other “agents of persecution” from whom the authorities in their home countries cannot protect them.  However it is possible for people to become refugees after leaving their home countries.  This can happen because of things which they themselves have done which may caused the authorities in their home countries to regard them with hostility or because of events in their home countries whereby people who have the  asylum seeker's political or ethnic profile have become targeted.   Such people are called refugees “sur place”.  The circumstances of people who as a result of their own actions have developed a well founded fear of being persecuted in their home countries have always been seen as controversial.   

In a highly significant judgment the European Court of Human Rights has found that the proposed deportation of Nassim Saadi (a Tunisian national)  to Tunisia would breach Article 3 of the European Convention on Human Rights (the “ECHR”).  The order to deport Mr Saadi had been justified  by the Italian authorities as comprising  an “urgent measure to combat international terrorism”

In a determination demonstrating the Immigration Judge’s inspired interpretation of international refugee law a client of Gherson has succeeded in his appeal against the Secretary of State’s refusal to vary his leave to remain to that of a refugee.   

In SB (PSG - Protection Regulations – Reg 6) Moldova CG [2008] UKAIT 00002 the Asylum and Immigration Tribunal had to decide whether the Appellant, a young Moldovan woman who had been trafficked into the United Kingdom was a refugee because she was a member of a “particular social group” (“PSG”).  She was trafficked so that she could be sexually exploited in the UK. 

As part of the continuing harmonization of the determination of asylum applications by member states of the European Union (the “EU”) the Asylum (Procedures) Regulations 2007 and HC 82, a statement of changes in the immigration rules, both came into force this month.

Immigration Judges (they used to be called Adjudicators) consider the appeals of people whose applications, whether for asylum or for visas to come to the United Kingdom, have been refused by the Secretary of State.  In the course of making their determinations either in favour of or against Appellants they make findings of fact.  In AA (Somalia) & AH (Iran) v Secretary of State  [2007] EWCA Civ 1040 (25-10-2007) the Court of Appeal had to deal with the difficulties which are created by different Immigration Judges making different findings of fact concerning the same events.  The issue is starkly illustrated by Lord Justice Ward’s example:

The Appellate Committee of the House of Lords has allowed the Secretary of State’s appeal against the Court of Appeal’s judgment in Secretary of State for the Home Department v AH (Sudan) and others (FC)  [2007] UKHL 49.  

Following a reference from the United Kingdom’s House of Lords the European Court of Justice (the “ECJ”) has decided that the applications of two failed Turkish asylum seekers for leave to enter the United Kingdom for the purpose of establishing themselves in business must be considered in accordance with immigration rules in force in 1973.  The ECJ’s judgment is dated 20 September 2007.

In a short ruling (SA (Section 82(2)(d): interpretation and effect) Pakistan [2007] UKAIT 00083), the Asylum and Immigration Tribunal (‘AIT’) has stated that a person whose application to vary their existing leave to enter or remain in the UK is refused has no right of appeal against that refusal if their existing leave continues beyond the date of decision.