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Caselaw

Upper Tribunal Ruling on Un-documented Iraqi

Posted by Gunes Saybak on June 20, 2016

Upper Tribunal Ruling on Un-documented Iraqi

Abdulla v Secretary of State for the Home Department (IJR) [2016] UKUT B1 (IAC) (22 March 2016) 

This instant case was heard in the Upper Tribunal (“UT”) on 22/03/16 following the Applicant’s application seeking Judicial Review of the Secretary of State’s (SSHD) decision refusing his fresh application for leave to remain in the UK on the basis of his asylum and human rights claim.

Brief Facts and Chronology

The Applicant, an Iraqi national of Kurdish ethnicity, clandestinely entered the UK on 22/05/02 and claimed asylum on the basis that he feared persecution if returned to Iraq. This claim was refused on 17/10/03. His appeal against the refusal was dismissed on 24/02/04 as his account was not found to be credible. All the Applicant’s appeal rights were exhausted on 08/07/04.

On 29/10/04 the Applicant claimed asylum in Holland, returning to the UK on 31/10/04. On 20/05/05 he claimed asylum in Belgium, returning to the UK on 19/08/05. He made a further claim for asylum upon each return to the UK – all of which were refused.

Under Dublin II provisions (where asylum seekers are returned to the EU country in which an initial asylum claim was made) the Applicant was returned to the UK from France in November 2008. He made a fourth asylum claim in the UK. This claim was refused but he was granted temporary admission, as he was considered “non-removable”.

In October 2009, the Applicant was classed as an absconder and on 30/12/09 he was arrested for possession of cannabis. He was again granted temporary admission, as he was non-removable.

On 12/02/11, the Applicant was refused leave to remain under the Legacy Scheme.

Further representations were submitted by the Applicant on 22/10/12 on the basis of the country guidance case law.HM (Art 15C) Iraq CG [2012] UKUT 409 (IAC) (‘ HM (Iraq) 2’) held, among other things, that it would not be possible to enforce removal undocumented Iraqis to Iraq.

The Applicant’s Fresh Claim

By decision dated 30/09/13, the SSHD refused the Applicant’s further representations taking into consideration the character, conduct and associations, failure to comply with reporting conditions and the fact that there had been no considerable delay in the processing of her applications to remain in the UK.

The Applicant’s solicitors challenged the decision of 30/09/13 by way of a “letter before action” relying on the Court of Appeal judgment in HF (Iraq) v SSHD [2013] EWCA Civ 1276 which had upheld the decision in HM (Iraq) 2.

Judicial Review

Proceedings for permission to Judicially Review the decision were brought by the Applicant to the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) on 24/12/13.

The SSHD provided a response to the “letter before action” and maintained her earlier refusal decision. This letter was dated 31/12/13 and post-dated the Judicial Review application.

Following an oral renewal hearing the Applicant was granted permission asserting:

  1. That the decision of 30/09/13 was unlawful as it failed to consider that the Applicant could not be removed and had been recognised (by the Respondent) to be irremovable since 2005.
  1. That the decision of 31/12/13 was unlawful as it failed to consider the evidence, his destitution and mental illness which, it was asserted, amounted to exceptional circumstances.

Conclusion of the Upper Tribunal

The lawfulness of the decision of 30/09/13

The UT noted the legal consequences of a migrant being ‘irremovable’ were considered in detail in Hamzeh v SSHD [2013] EWHC 4113 (Admin) which found that there was ” … no general policy or practice has been identified or established by the Claimants to the effect that persons whose removal from the UK cannot be enforced, should, for this reason alone, be granted leave…”

The court found:

  1. the Respondent had addressed the representations in relation to the Applicant’s asylum and human rights claim raised and Applicant had not indicated that there were exceptional circumstances under paragraph 353B and had also not referred to his ‘irremovability’
  1. Having rejected asylum and human rights claim the Respondent was not required to undertake a separate review in the absence of any specific representations as to exceptional circumstances in paragraph 353B of the Immigration Rules.
  • The Respondent had nevertheless undertaken a separate review under paragraph 353B and concluded that “character” and “compliance” had weighed against the Applicant and was not obliged to consider whether there were circumstances beyond the Applicants control as to why he could not leave the UK( including issues of enforcing removal ) under the Respondent’s Enforcement Instruction Guidelines.
  1. The Applicant had not provided copies of his immigration records dating back to 2005 which indicated entries that the Applicant was deemed not removable by the Respondent until after 30/09/13. As such the Respondent could not be obliged to have searched for or considered them without notice of their relevance.

As such the UT concluded that the 30/09/13 decision was reached in accordance with the rules and the Respondent’s guidance and that as such there was no basis on which it could be found to be unlawful

The lawfulness of the decision of 31/12/13

The UT first considered whether this SSHD response letter amounted to a reviewable decision. It concluded that as the letter merely reiterated the earlier decision of 30/09/13 and invited the Applicant to make any further submissions, it could not constitute a reviewable decision.

The UT went on to consider what the legal position amounted to in the alternative that the letter of 31/12/13 had amounted to a reviewable decision to which the exceptional circumstances criteria of 353B of the Immigration Rules applied.

The UT concluded that the Applicant could not rely on an argument that he had been left in ‘limbo’ by the SSHD’s failure to grant him leave because he was irremovable because this argument had been expressly rejected in SH (Iran) v SSHD [2014] EWCA Civ 1469.

Further, although it had been held in  Khadir v. SSHD [2005] UKHL 39  that a time could come “when the prospects of the person ever being able safely to return, whether voluntarily or compulsorily are so remote that it would be irrational to deny him …status …”  this did not apply because the SSHD had been entitled to reject the relevance of all of the Applicant’s assertions as to ‘irremovability’ under paragraph 353B of the Immigration Rules because factors relating to character and compliance weighed against him

CONCLUSION

The Applicant’s Judicial Review application was dismissed.