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Law

Immigration Appeal on Human Rights Grounds

The Home Office is known to be very harsh and strict when it comes to judging who is a genuine applicant that satisfies the Immigration Rules and who should be granted a visa. More often than not, an application to the Home Office will have elements of Human Rights claim which the Home Office must take into consideration. If the Home Office refuses an application without due consideration of your Human Rights claim, you will have the possibility to appeal the Home Office decision.

The aim of this blog is to give you an overview of the right to appeal on Human Rights grounds following a Home Office refusal.

Section 82 of the Nationality, Immigration and Asylum Act 2002: Right of Appeal

Where an immigration decision is made in respect of a person he may appeal:

  • the Secretary of State decision to refuse a protection claim;
  • the Secretary of State decision to refuse a human rights claim; or
  • the Secretary of State decision to revoke protection status.

Section 84 of the Nationality, Immigration and Asylum Act 2002: Grounds of Appeal

An appeal under section 82(1) against an immigration decision must be brought on one or more of the grounds set out in the Act. Most importantly, an appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

Case Law

Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC): The appellant in this case attempted to appeal an application refused by an Entry Clearance Officer and sent in a notice of appeal to the tribunal. The appellant also travelled to the UK and entered with temporary admission.

The notice of appeal was accepted by the tribunal and a hearing was listed. However, the tribunal decided that the appellant had not mentioned human rights and had therefore not made a human rights claim. On this basis, the appeal was declared invalid.

The appellant attempted to appeal this decision but the judge refused permission on the basis that, because there was no valid appeal, permission could not be granted. The only available remedy was said to be an application for judicial review.

A further application for permission to appeal directly to the Upper Tribunal was ultimately successful.

On the facts of the case, the Upper Tribunal found that a human rights claim had indeed been made:

29. As we have seen, the appellant was putting forward, as reasons for wishing to return, (a) that she had gone to Sierra Leone in 2004 to look after her grandmother; (b) that her grandmother had died, with the result that the appellant was left without any element of family in Sierra Leone; (c) that she was lonely without her relatives in the United Kingdom; and (d) that she wished to rejoin her father and sister in the United Kingdom.

30. The letter from the appellant’s father asserted (a) that the appellant, despite her qualification as an electrician, had been unable to obtain a permanent job in Sierra Leone; (b) that she was being supported by the father; (c) that she had no close relatives in Sierra Leone to give her emotional support; and (d) that it would be easier to support the appellant if she were living with the family in the United Kingdom.

31. Having regard to the guidance, which in this respect we consider properly accords with the meaning and scope of section 113 of the 2002 Act, the appellant’s application was, we find, a human rights claim.

In conclusion, a human rights claim is made where the facts of the case disclose a human rights claim, whether or not the words “human rights claim” are used and whether or not the application is made under the “human rights claim” paragraphs of the Immigration Rules.

This blog has been prepared on 18th May 2018 by Erald Dedja, a Paralegal at MTG Solicitors.

Categories
Law

Victim and Witness Statements in Criminal Proceedings – What happens where the victim or witness wants to withdraw the statement?

Although victims and witnesses play an important role in the prosecution of a criminal case, many do not understand the processes. This also goes for those who find themselves charged with an offence (defendants) and have to appear in court.

The Criminal Defence department at MTG Solicitors is often asked a lot of questions as to what happens when a victim or witness has withdrawn, or intends to withdraw, their statement.

Please note that we will use the term “victim” and “witness” interchangeably in this article.

Giving a witness statement

When someone witnesses a crime happening and reports it to the police, it is often the case that they will be asked to provide a witness statement. The witness will be asked to explain what they saw, either in writing or on video and they will be asked to sign the statement to say that it is true. If the defendant pleads not guilty and if the statement is not accepted as accurate by the defence the witness may be called to give evidence.

Withdrawing a witness statement

Victims and witnesses may decide to withdraw their support for a prosecution for several different reasons. It could be because they no longer want the defendant to face proceedings, have forgiven them, reconciled with them, due to a fear of reprisals, witness intimidation, anxiety caused by a forthcoming court case or because they lack support and information about an impending court case.

Once a witness has given a statement, it is not a matter for them to decide how the case against the defendant should proceed. In practical terms they cannot make the case worse or more lenient for the defendant as the damage has already been done!

Equally, the withdrawing of support by a victim or witness is not the same as that person saying that they have lied. If a victim or witness admits to lying, they are admitting to making a false statement, which in turn can mean they may be arrested and prosecuted for perverting the course of justice.

If the witness wants to go ahead and withdraw their support for the prosecution, they will have to contact the police or Crown Prosecution Service (CPS) directly and make a request to make a statement of withdrawal. The reasons for wanting to withdraw a statement will be carefully looked at by the police to make sure that there hasn’t been any undue pressure applied on that person.

The statement of withdrawal of support should contain:

  • confirmation of whether the original statement given to the police was correct (if the account given in the original statement has to be amended, an application for this should be included)
  • whether the victim has been put under pressure to withdraw or has been subjected to threats or intimidation
  • nature of the original allegation (if not fully covered in a previous statement)
  • victim’s reasons for withdrawing support for the prosecution
  • with whom the victim has discussed the case, particularly anyone who has advised them (a solicitor, for example)
  • whether any related civil proceedings have been or are likely to be instigated (this is particularly relevant in domestic serious sexual offences)
  • the likely impact on the victim’s life and that of other witnesses or people affected if the case continues. 1

Statements of withdrawal of support can subsequently be used as evidence in current or future criminal proceedings, or as evidence within the family court system. These statements are retained as information that might be relevant to future investigations. 2

In some cases, an application for special measures may provide sufficient reassurance to the victim/witness for them to decide to reconsider and to support a prosecution. 3

However, if after receiving a request from the investigator or prosecutor the witness refuses to cooperate, the prosecutor can consider whether to make an application for a witness summons.

The other option at this stage is that the prosecution may decide not to take it any further and drop the case.

Witness summons

Where the decision has been made to continue the case, the prosecution may apply for a witness summons to compel a witness to give evidence. This can be done before the court hearing or even on the day of the hearing itself, and usually when the prosecution has been made aware that the witness is unwilling to cooperate. If a witness summons is required, it will issued under section 97, Magistrates’ Courts Act 1980.

Once a witness has been summoned, they must attend Court. If the witness decides not to attend, then a warrant for their arrest may be made for them to attend court on the day. This means that the police may attend the witness’s home address, arrest them and use police transportation to convey them to court.

The witness can tell the prosecution lawyer their reasons for not wanting to give evidence and then they will decide whether to call the witness or not. Practically, if the prosecution thinks the witness is likely to be unhelpful to them, they would rather not have them there. Consequently, if the prosecution is of the view that there is insufficient evidence without the witness’s statement, then they may discontinue the case and that will be the end of the matter.

However, this is entirely the prosecutor’s decision to make and the witness will still need to attend court and discuss what will happen on the day. Contrary to popular belief, it is not a matter for the witness to decide whether or not the CPS pursue the case and the case may go on even without the witness’s consent. The case could proceed to court if the police think they have enough evidence to prosecute the defendant without the witness by using, for example, statements from other witnesses, CCTV evidence, 999 recordings and medical evidence.

If you have any questions or need expert assistance at the police station or criminal courts, MTG Solicitors are available 24 hours a day.


1. https://www.app.college.police.uk/app-content/prosecution-and-case-management/victim-and-witness-care

2. As above

3. As above

Categories
Law

The Future of Social Care

Social care has been in the news recently and we suspect it will continue to dominate headlines, at least, for the foreseeable future.

But what does “social care” actually mean? Well, that’s the first obstacle right there. It’s hard to provide a clear cut definition, and certainly not within this blog post. One of the reasons that it’s so difficult to define is that social care is very wide and can encompass a lot of things – from child protection issues to applications to the Court of Protection.
The local government’s social services department has responsibility for administering publicly funded social care as set out by Parliament. They provide information and advice, assess and monitor needs, and provide services where appropriate. However, their ability to do so is determined by funding received from the central government. This often creates an imbalance between legislation and implementation.

In recent years, the Government has overseen significant cuts to local government funding. This has resulted in the social care crisis whereby elderly patients are left stranded in hospital due to chronic delays in sourcing adequate home care as well as vulnerable children and young people who are slipping through the cracks.

With a steady rise in population levels, coupled with an increase in life expectancy, the social care system is becoming crippled under this strain.
One of the ways to address growing concerns has been outlined by the Health and Social Care Secretary, Jeremy Hunt, who has set out the Government’s proposals to reform care and support in the much anticipated green paper due to be published this summer. Although the paper has been met with some criticism from opposition parties and voluntary sector bodies, it presents a golden opportunity for the Government to reform the adult social care system.

Whether they seize this opportunity, only time will tell.

This blog has been prepared on 16th May 2018 by Lizan Ghafoor, a Solicitor at MTG Solicitors.