On any measure, most of what an immigration lawyer does is pretty mundane. Filling out forms, looking up law: updating clients about the forms you filled out, and the law you looked up.
Of course, there is the odd nerve shredding day (or night), usually involving efforts to obtain an injunction, and the imminent departure of a charter flight.
But, mostly, a solicitor’s work in this area comprises a repetitious cycle of shruggable steps: the completion and filing of documents, liaison with the Home Office, courts and other third parties, and taking your client’s instructions.
Sometimes, though, when these shuffling steps are taken in the right direction, and in the right order, and for long enough, things can change.
And it is only when stepping back that you can see each of these humdrumities for what they were: building blocks for something infinitely greater than the sum of their parts.
Perhaps it is the pandemic which has caused us to reflect, but now seems as good a time as any to look back down the beaten path, and to spur us to shuffle onwards.
Legal landscaping since 1998
We have been involved in some of the biggest immigration and asylum cases in the last two decades, regularly operating at Court of Appeal level and above.
In that time we have picked at the seams of UK human rights and refugee law, seeking always to challenge the status quo, and move the law forward for our clients.
The following is our pick of the cases, one for each year of our existence, that changed the legal landscape: our 22 @ twenty-two.
What is the correct approach to exclusion from the Refugee Convention?
This was the Secretary of State’s appeal against the decision to exclude NF from the refugee convention due to a conviction for downloading illegal material and for which he was sentenced to a term of imprisonment.
The Court of Appeal rejected the Home Office’s arguments that the Upper Tribunal had misunderstood the legal test to be applied on the evidence and that they were entitled to reach the conclusion that the existence of his conviction was not a bar to him being recognised as a refugee in the UK
SSHD v Franco Vomero (Italy)  UKSC 35 (24 July 2019)
What is the correct test for entitlement to the highest level of protection from deportation for European nationals under the pre-Brexit regime?
This was the Secretary of State’s appeal against what is now the Upper Tribunal to the Court of Appeal and then on to the Supreme Court.
The case was referred to the Court of Justice and returned to the Supreme Court for a second hearing which in turn sent the case back to the Upper Tribunal, but weeks before the further appeal was due to take place the Home office accepted that after more than 10 years of fighting, on the evidence supplied that the deportation order should be withdrawn and our client be permitted to remain in the UK.
NS, R (on the application of) v SSHD  EWHC 861 (Admin) (04 April 2019)
What is the correct approach to the assessment of potential child victims of trafficking?
Our client in this case was a potential victim of trafficking from Indonesia whose age was disputed by the Home Office based upon a passport obtained for her by agents involved in her trafficking. Although the client was by this stage an adult, the issue of her age at the time of the alleged trafficking was important as the key test for identification of a child victim of trafficking differs to that applied to an adult.
Other issues considered in this case included how the Single Competent Authority considers evidence where there are doubts about the credibility of a potential victim’s account. As there is no automatic right of appeal against negative SCA decisions, challenges which attempt to shed light on the processes and quality of SCA decision making are important.
Our challenge led to the High Court quashing the Home Office’s decision on the basis that they had failed to consider all relevant evidence contrary to their own guidance and contrary also to the basic principles of procedural fairness.
How should the Home Office treat asylum claims made by followers of the Ahmadi faith?
Following the success of our client in the Court of Appeal, the Home office guidance on Ahmadi cases had to be re-written in part, so as to include provisions as to why persons of that religious belief would refuse to practice their religion openly and whether those reasons were relevant to determining whether they were entitled to be treated as refugees.
HD (Trafficked women) Nigeria (CG)  UKUT 454 (IAC) (17 October 2016)
How should the Home Office decide which Nigerian victims of trafficking will be at risk on return?
This was a Country Guidance case that forced significant changes in the Home Office policy for consideration of Nigerian asylum claims, as well as having a more wide ranging application to trafficking related claims emanating from other countries. It remains the current Country Guidance for Nigerian trafficking cases.
The case led to the Upper Tribunal approving a holistic and victim-centred approach to the assessment of risk faced by former victims of trafficking upon return to their own country. The guidance is focused around the need for a careful and fact-sensitive analysis of the victim’s vulnerabilities, and has concluded that previous trafficking itself will probably have “enhanced further” the “characteristics of vulnerability” which were likely to have originally given rise to the victim’s initial trafficking.
OO (Gay Men) Algeria (CG)  UKUT 65 (IAC) (26 January 2016)
In what circumstances can gay men from Algeria successfully claim asylum in the UK?
In this appeal the Upper Tribunal addressed the situation in Algeria for individuals making asylum claims based on their sexual orientation, and provided guidance on the risks faced in that country by gay men. The case remains listed as a country guidance case on this issue.
AH (Algeria) v SSHD & Anor  EWCA Civ 1003 (14 October 2015)
Should receipt of a conviction in another EU state entitled the Secretary of State to exclude an individual from the Refugee Convention?
This was the second time this appellant’s case had gone to the Court of Appeal from the decision of the Upper Tribunal. The argument here was on whether the fact that AH had received a conviction in another EU Member state was a basis to conclude that he should be excluded from the protection of the refugee convention.
The arguments included an assessment of whether a past conviction was enough to prevent an individual from being recognised as a refugee, regardless of how long ago the conviction took place, and what if any impact on the exclusion decision should stem from the behaviour of the individual since the date of conviction
TN and MA (Afghanistan) v SSHD  UKSC 40 (24 June 2015)
To what extent is the Home Office required to trace the families of children claiming asylum in the UK?
This was a Supreme Court appeal involving 3 Afghan nationals who came to the UK as unaccompanied asylum seeking children and whose claims had been refused in circumstances where the Home Office had failed to take any steps required to trace family members in Afghanistan that may have had an impact on whether the accounts they had given of their escape from that country were well founded.
R (on the application of A) v London Borough of Croydon AAJR  UKUT 342 (IAC) (23 July 2013)
What is the test to be applied to evidence in relation to an age assessment?
This case involved a judicial review challenge to an age assessment decision where the tribunal were required to assess oral evidence of various officials and experts. The case is a useful reminder of the need to consider relevant expert evidence, in relevant cases, when bringing a legal challenge of this kind.
RT (Zimbabwe) & Ors v SSHD  UKSC 38 (25 July 2012)
Can an asylum seeker be expected to lie to avoid persecution upon return to their home country?
This appeal was brought in the Supreme Court by the Secretary of State against a decision of the Court of Appeal that had accepted that political indifference in the return of individuals to a state that treated anyone who failed to declare allegiance as being an enemy was enough to allow individuals to be recognised as refugees, despite the fact that none of the appellants had actively participated in open opposition.
The issue is of critical importance in demonstrating that it was wrong for the Home Office to claim that a person could or should be forced to lie about supporting the ruling party, even if that political indifference was of no consequence to the individual. Being forced to lie in the persecuting to country to avoid persecution was not a reason to deny a person asylum.
Can an asylum seeker who has received a criminal conviction be excluded from refugee protection on this basis alone?
This was an appeal arising from the decision of the Home Office to exclude the individual from the refugee convention due to a conviction in another Member state. The case was remitted back to the Upper Tribunal on the basis that the question of whether or not a crime was serious for the purposes of exclusion from the Refugee Convention was a matter that needed to be assessed and merely being convicted was not in itself enough to cross the threshold of seriousness when weighing that against the risks of persecution
HC & RC (Trafficked women) China CG  UKAIT 00027 (18 July 2009)
What is the approach to be taken to trafficked women from China making asylum claims in the UK?
This was designated a Country Guidance case for the Upper Tribunal to consider risks facing trafficked Chinese women and particularly single mothers. Evidence included the impact of the ‘hokou’ registration system used by Chinese authorities as well as changing attitudes towards single mothers in the country.
It remains the current Country Guidance case for Chinese trafficking cases 12 years on, but is probably due to be revisited following more progressive and holistic jurisprudence developed by the Upper Tribunal in other trafficking cases such as HD (Nigeria) and AD & TD (Albania)
AT & Ors v Dulghieru & Anor  EWHC 225 (QB) (19 February 2009)
Can a victim of trafficking sue their trafficker?
This case involved 4 victims of trafficking suing some of those responsible for trafficking them to the UK and as a consequence of which the Court made substantial orders for compensation in their favour.
This was the first case of its kind in the UK and established a pathway for litigation of this kind where the potential remedies available under the criminal courts did not allow for the victims to be adequately compensated.
N v. The United Kingdom – 26565/05  ECHR 453 (27 May 2008)
In what circumstances can a terminally ill person currently in receipt of life-saving medical treatment be sent home to die?
This was an appeal to the Court of Human Rights in Strasbourg from a decision of the House of Lords in respect of an individual who argued that her removal as a person suffering from AIDS to a county where the availability of adequate medical treatment was in doubt would amount to a breach of her human rights.
The Court accepted that despite the very real likelihood that she would die a slow and painful death, this was not enough to impose a positive duty on the UK to ensure that she was not removed.
AM (Cameroon), R (on the application of) v Asylum & Immigration Tribunal & Anor  EWCA Civ 100 (20 February 2008)
Can a tribunal continue to hear a case in the absence of an appellant?
This was a judicial review heard by the Court of Appeal in respect of what was alleged to have been improper conduct on the part of the Tribunal in conducting an appeal including where a judge was considering proceeding to determine a case in the appellant’s absence after she had been taken ill at the hearing centre itself and where her previous representatives were unwilling to play any part in the appeal once the original Tribunal judge had refused to agree to an adjournment.
N, R (on the application of) v London Borough of Lambeth  EWCA Civ 862 (25 July 2007)
Can an individual continue to receive support whilst their case is pending at the European Court of Human Rights?
This was an appeal to the Court of Appeal by a local authority that wanted to overturn a judicial review decision in favour of the individual who had successfully challenged the refusal by the local authority to provide her with adequate accommodation and assistance pending the outcome of her appeal to the European Court of Human Rights.
Huang v SSHD  UKHL 11 (21 March 2007)
How should the family and private life rights of individuals be balanced against the interests of the state?
This was an appeal to the House of Lords in respect of the test to be applied in the assessment of Article 8 for deciding family life questions.
Our client’s was one of 3 whose appeals were allowed in a landmark case establishing the relevant legal test for balancing the interests of individuals’ private and family life rights against the interests of the state.
Babula v Waltham Forest College  EWCA Civ 174 (07 March 2007)
Can a whistleblower be protected even if the conduct they are reporting is not actually a crime?
The appeal was in the context of employment law as to whether a person making a disclosure of what they believed was a criminal offence by the employer (a former staff member) was protected from dismissal if they had reasonable cause to believe that the conduct reported was likely to constitute an offence
MG and VC (EEA Regulations 2006; “conducive” deportation) Ireland  UKAIT 00053 (03 July 2006)
What is the correct threshold for deportation of European nationals under the pre-Brexit deportation regime?
This appeal concerned the legal test imposed under the then new EEA regulations in the context of deportation following a criminal offence, identifying the higher threshold to be met by the Home office in seeking to justify removal
Can regulations made in the UK be lawful if they discriminate against EU nationals?
This was a referral by the High Court to the Court of Justice in Luxembourg in respect of a judicial review challenge to the legality of student support regulations that had the effect of discriminating against EU nationals and which the Court of Justice accepted were unlawful and as a consequence of which the UK had to rewrite those regulations
What comprises the public interest in deportation?
This appeal concerned the relevant legal test for deportation for a person involved in very serious offences in the UK and the need to weigh up their past criminal conduct against the question of the family life considerations of the family unit that would be left behind if they were to be removed
What is the proper test in asylum and human rights appeals for future harm?
This appeal concerned the test to be applied in assessing the future risk of harm for persons to be removed and whether the assessment of that risk was entitled to explore the potential of risk as opposed to actual risk, if the person was not in fact being removed