Immigration

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Doughty Street Chambers has one of the largest immigration teams at the Bar with nineteen juniors of between eighteen and two years' call. For more than twenty years, Doughty Street has been at the forefront of immigration and nationality litigation.

We provide expert advice and representation at every level, from tribunal appeal and bail hearings, through to the Supreme Court and the Courts of the European Union and the European Court of Human Rights.

Advice is provided across all areas from pre-application through to litigation. All areas of immigration law are covered: asylum, human rights, European Union, business, family, student, nationality, naturalisation and national security. Our clients include individuals, employers, colleges and campaigning organizations. Team members provide direct access to individuals and organisations. The full range of experience of the team can be seen from our 'interesting cases' below.

Immigration team members are specialists in the wide range of related areas of law, such as crime, social security, housing, mental health, employment, education, children, extradition and prisoners.

Over the last year, Doughty Street has maintained its leading role in immigration litigation. Highlights include:

• on asylum, the important Supreme Court judgment on asylum for gays and lesbians (HJ (Iran)), the latest cases on returns to Zimbabwe (EM (Zimbabwe)) and blocking returns of asylum-seekers to Greece (Saeedi (NS))
• on immigration detention and removal, the Supreme Court decision that detention is unlawful where Home Office policy has been breached (Lumba and Mighty), successfully blocked the Home Office policy of removals with no notification (Medical Justice) and numerous clients awarded substantial damages for unlawful detention
• on Points-Based System, acted for English UK in their successful challenge to changes in guidance, acted for numerous colleges challenging decision to suspend, downgrade or revoke Tier 4 licences including obtaining injunctions to restore licences
• on European Union law, securing references to the European Court of Justice in areas such as Turkish self-employed (Oguz), safe third countries (Saeedi) and family members of dual UK-Irish nationals (McCarthy) and acting in numerous Citizens Directive cases before the Court of Appeal and tribunals (eg Tilianu, Miskovic & Blazej)
• in national security cases, challenging Home Office refusal to disclose the gist of allegations in SIAC in bail cases (BB) and EU law cases (SS (Libya)), acting in lead cases on grounds for exclusion from refugee status (Al-Sirri, SK (Zimbabwe), SS(Libya))

The team includes several contributing editors to Butterworths Immigration Law Service; a contributing editor to Immigration Law and Practice, the authors of the Best Practice Guide to Asylum & Human Rights Appeals and the electronic update of the JCWI Immigration, Nationality & Refugee Law Handbook. Members sit on the executive of the Immigration Law Practitioners' Association and are actively involved with the Housing & Immigration Group and the Foreign National Prisoners Network. Members regularly hold seminars with solicitors and others on immigration and related areas.

Doughty Street's team of clerks has many years experience of clerking immigration cases. They understand the needs of immigration lawyers and clients for a prompt and efficient service. Doughty Street has comprehensive information technology support, including dedicated staff, and a panel of academic experts who are associate tenants.

Team Members

Cases

Interesting cases include:

Lumba and Mighty [2011] UKSC 11, Supreme Court. Detention of immigrants is unlawful where in breach of Home Office policies.

Abdi [2011] EWCA Civ 242, Court of Appeal. Time spent appealing is relevant to whether detention of an asylum-seeker has become unlawful.

Miskovic & Blazej [2011] EWCA Civ 16, Court of Appeal. Right to work of EU Accession 8 national working in UK before accession and married to a British citizen.

HJ (Iran) [2010] UKSC 31, [2010] 3 WLR 386, Supreme Court. Gay asylum-seekers cannot be expected to hide their sexuality to avoid persecution.


BB v Special Immigration Appeals Commission [2011] EWHC 336 (Admin), Divisional Court. Suspected terrorist has the right to know gist of case for opposing SIAC bail.

Suppiah [2011] EWHC 2 (Admin), Administrative Court.
Home Office detention of children unlawful for breach of policy.

EM and Others (Returnees) Zimbabwe CG [2011] UKUT 98 (IAC). Country guidance on safety of returning asylum-seekers to Zimbabwe.

Tilianu [2010] EWCA Civ 1397. Rights of self-employed EU national to reside if becomes unemployed.

Oguz [2010] EWCA Civ 311, Court of Appeal. Whether EU law concept of abuse applies to rights of self-employed Turkish nationals under the EU-Turkey Agreement. Questions referred to European Court of Justice.

Saeedi (NS) [2010] EWCA Civ 990. Greece as a 'safe third-country'. Whether ECHR and EU law allow removal to Greece while asylum-seekers do not have access to asylum procedures and welfare support required by EU law. Questions referred to European Court of Justice.

R (Clue) v Birmingham City Council [2010] EWCA Civ 460, [2011] 1 WLR 99, Court of Appeal. Local authority assistance to an overstayer with pending human rights representations.

Medical Justice [2010] EWHC 1925 (Admin). Administrative Court quashed Home Office policy of removing immigrants from the UK without giving 72 hours notice as a breach of fundamental right of access to the court. The Court had already granted interim relief preventing the Home Office from removals without notice until the case was resolved: [2010] EWHC 1425 (Admin)

Hussein [2010] EWHC 2651 (Admin). Home Office decision to continue detaining an Iraqi asylum-seeker whom Iraq had returned to UK was found to be unlawful

English UK [2010] EWHC 1726 (Admin). In a case brought by a body representing more than 400 UK colleges, the Administrative Court quashed Home Office use of guidance to impose new educational requirements on overseas students coming to the UK to study English.

Leeds Unique Education [2010] EWHC 1030 (Admin). Administrative Court granted interim relief to two colleges where Home Office had revoked their sponsor licences.

SS (Libya) [2010] SIAC. Whether EU law rights of asylum-seekers require suspected terrorist to be told the gist of the case against him in SIAC.

RS and Others (Zimbabwe - AIDS) Zimbabwe CG [2010] UKUT 363 (IAC). Country guidance on returning persons with AIDS to Zimbabwe.

SK (Article 1F(a) - exclusion) Zimbabwe [2010] UKUT 00327 (IAC). Whether participation in eviction of Zimbabwean farmers involved crimes against humanity.

E v Home Office [2010] County Court. Damages of £57,500 (including £25,000 exemplary damages) awarded to asylum-seeker detained for one month.

Nasseri [2009] UKHL 23, [2010] 1 AC 1, House of Lords. Court's power to consider safety of third-country when considering declaration of incompatibility with human rights.

RB (Algeria) [2009] UKHL 10, [2010] 2 AC 110, House of Lords. Special Immigration Appeals Commission procedure compatible with human rights.

BA (Pakistan) [2009] EWCA 1072, Court of Appeal. Assessment of asylum claims by Ahmadis.

HS (Afghanistan) [2009] EWCA Civ 771, Court of Appeal. Presumption that immigration judge's decision allowing appeal is correct.

QD (Iraq) [2009] EWCA Civ 620, [2011] 1 WLR 689, Court of Appeal. Humanitarian protection for Iraqis from a war zone.

Sonmez [2009] EWCA Civ 582, [2010] 1 CMLR 7, Court of Appeal. Use of EU law concept of abuse in cases of working without permission.

AK (Sri Lanka) [2009] EWCA Civ 447, [2010] 1 WLR 855, Court of Appeal. Right to consideration of human rights representations before removal. Success on the appeal led to the Sri Lankan appellant being returned to the UK and granted indefinite leave to remain.

Omar [2009] EWCA Civ 383, [2009] 1 WLR 2265, Court of Appeal. Principles governing extension of time for appealing for Home Office.

Y (Sri Lanka) [2009] EWCA Civ 362, [2009] HRLR 22, Court of Appeal. Art 3 ECHR can be breached by risk that removal will lead to asylum-seeker's suicide even where the asylum-seeker's fears of torture are no longer well-founded.

Al-Sirri [2009] EWCA Civ 222, [2009] INLR 586, Court of Appeal. Home Office cannot rely on foreign convictions obtained by torture or on indictments to show that asylum-seeker is a terrorist.

Rashid Hussein [2009] EWHC 2492 (Admin), [2010] Imm AR 320. Detention in automatic deportation cases.

NS (Somalia) v First Tier Tribunal [2009] EWHC 3819 (Admin). Denial of accommodation to a former asylum-seeker can breach human rights where she is taking steps to claim judicial review of an immigration decision.

FE [2009] UKUT 287 (AAC), Upper Tribunal. Right to reside as EU worker kept where claimant attended JobCentre and claimed income support: no need to claim jobseekers allowance.

TL & Others (sur place activities - risk) Burma CG [2009] UKAIT 17. Tribunal upheld country guidance that participants in demonstrations against Burmese government in UK will usually be at risk of return to Burma.

RN (Returnees) Zimbabwe CG [2008] UKAIT 83. Country guidance: unsafe to enforce return to failed asylum-seekers who cannot show support for Zimbabwean regime.

JC (Double jeopardy: Art 10 CL) China [2008] UKAIT 18, Asylum & Immigration Tribunal. Country guidance on double jeopardy in China.

Kola [2008] UKHL 54, House of Lords. Asylum-seekers who claim for a good reason late entitled to income support.

AL (Serbia) [2008] UKHL 42, [2008] 1 WLR 1434, House of Lords. Discrimination challenge to Home Office policy on refusing leave to former unaccompanied minors.

JH (Zimbabwe) [2009] EWCA Civ 78, [2009] INLR 385, Court of Appeal. Immigrant can change her pending application.

RA (Sri Lanka) [2008] EWCA Civ 1210, [2009] Imm AR 320, Court of Appeal. Assessment of art 3 ECHR risk in suicide cases.

EO (Turkey) [2008] EWCA Civ 671, [2008] INLR 295, Court of Appeal. Approach to deportation of foreign national prisoners.

McCarthy [2008] EWCA Civ 641, [2008] 3 CMLR 7, Court of Appeal. Dual British-Irish national does not have right of permanent residence. (Questions referred by House of Lords pending before ECJ).

AS (Libya) [2008] EWCA Civ 289, [2008] HRLR 28, Court of Appeal. Special Immigration Appeals Commission was entitled to decide that promises by the Government of Libya could not be relied upon.

Payir [2008] ECR I-203, [2007] 1 WLR 508, European Court of Justice. Turkish students and au pairs can be Turkish workers under EU law.

NA (risk categories - Hema) Democratic Republic of Congo CG [2008] UKAIT 71. New category of persons at risk in Congo added by Tribunal.

IA (Syria) [2007] EWCA Civ 1390, Court of Appeal. Immigration judges must take evidence from Amnesty International seriously.

NA (Iraq) [2007] EWCA Civ 759, [2008] INLR 69, Court of Appeal. Instructions to refuse to accept Iraqi passports quashed.

AI (Pakistan) [2007] EWCA Civ 386, [2007] INLR 425, Court of Appeal. Leave to remain for spouse because of domestic violence. immigration judge must base decision on the rules, not guidance.

MS (Ivory Coast) [2007] EWCA Civ 133, [2007] INLR 513, Court of Appeal. Immigrant entitled to leave to remain during proceedings for contact with her child.

WM (DR Congo) [2006] EWCA Civ 1495, [2007] INLR 126, Court of Appeal. Approach to fresh asylum claims


AA v SSHD [2006] INLR 401, CA. Whether dangers of a forced removal to Zimbabwe can found refugee status where there is a possibility of safe voluntary return.

Khadir [2005] UKHL 39, [2006] 1 AC 207, House of Lords. Failed asylum-seeker remains liable to detention even while he cannot be removed from UK

R (Bagdanavicius) v SSHD [2005] 2 WLR 1309 HL, [2005] 1 All ER 263 HL, [2004] 1 WLR 1207, CA. Effect of Article 3 ECHR where ill-treatment is feared from non-state agents and whether the same test should be applied as in relation to the Refugee Convention.

Strbac v SSHD [2005] Imm AR 504, CA. Whether removal of an ethnic Serb to Croatia would be contrary to Articles 3, 8 or 14 ECHR and whether delayed decision on asylum claim led to unfairness.

Hysi v SSHD [2005] INLR 602, CA. Internal relocation to avoid persecution and whether unduly harsh to expect a person to conceal his ethnic identity.

Ayadi v Council of European Union, T-253/02, 12.7.6, European Court of First Instance. EU law permits freezing assets of persons listed as terrorist by United Nations despite lack of any judicial remedy about that listing.

N (Kenya) v SSHD [2004] INLR 612, CA. 'Public good' deportation following conviction of serious criminal offence: role of deterrence where no propensity to re-offend.

R (M) v SSHD [2004] QB 1124, CA. Positive obligations under ECHR Article 8 and damages under the Human Rights Act 1998.

R (Pepushi) v CPS [2004] INLR 638, QBD. Impact of Refugee Convention Article 31 on the prosecution of an asylum seeker who could not rely on the defence in Asylum and Immigration Act 1999 s31.

CA v SSHD [2004] INLR 453, CA. Scope of Immigration Appeal Tribunal's jurisdiction on issues of law.

R (Razgar) v SSHD [2004] 3 WLR 58, HL. ECHR Article 8 can apply to removal of mentally ill asylum-seeker to Germany.

R (Balamurali) v SSHD [2004] INLR 426, CA. Correct approach to certification of human rights claims under Immigration & Asylum Act 1999.

R (Kariharan) v SSHD [2003] QB 933, CA. Immigrants have a right of appeal on human rights grounds from successive directions for removal from the UK.

Sepet & Bulbul v SSHD [2003] 1 WLR 856, HL. Punishment for conscientious objection to military service is not persecution for a Geneva Convention reason.

R (Sivakumar) v SSHD [2003] 1 WLR 840, HL. Torture can be persecution for a Geneva Convention reason even if the torturer suspects the victim of terrorism.

R (Q) v SSHD [2004] QB 36, CA. Denial of support to late asylum claimants can be prohibited by ECHR Article 3. Claimant's knowledge and state of mind affect whether claim was made as soon as reasonably practicable.

Carpenter v SSHD [2003] QB 416, ECJ. European Community Treaty Article 49 prohibits denial of a right of residence to overstaying spouse of a self-employed British citizen who travels for business to other European Union countries.

R v SSHD ex p Adan & Aitsegeuer [2001] 2 AC 477, HL. Geneva Convention has only one true interpretation. Persecution by non-state agents is Convention persecution. France and Germany are not safe countries for a person who fears non-state persecution.

Revenko v SSHD [2001] QB 601, CA. Statelessness or inability to return to one's country of former habitual residence is insufficient to make a person a Geneva Convention refugee.

R v SSHD ex p Saleem [2001] 1 WLR 443, CA. Immigration Acts gave no power to make a rule of immigration procedure that notice of appealable decision was deemed to have been received before it was in fact received.

R v SSHD ex p Turgut [2001] 1 All ER 719, CA. Secretary of State entitled to decide that removal of failed Kurdish asylum-seekers to Turkey would not breach ECHR Article 3, and court could not determine issue of breach for itself.

Bensaid v UK [2001] 33 EHRR 205, European Court of Human Rights. Removal of mentally ill Algerian to Algeria would not breach ECHR Articles 3 and 8.

R v SSHD ex p Savas [2000] 1 WLR 1828, ECJ. Under European Community law, a Turkish national admitted to UK who had overstayed and established a business was entitled to have his application for leave to remain determined under the 1972 Immigration Rules.

R v SSHD ex p Jeyeanthan [2000] 1 WLR 354, CA. Rules of immigration appeal procedure did not invalidate a defective appeal notice, but required tribunal to consider whether consequences of defect could and should be remedied.

M v SSHD [1996] 1 WLR 507, CA. A person is a Geneva Convention refugee even if the feared persecution arises from actions undertaken to enhance a claim to refugee status.

R v SSHD ex p Sivakumaran [1988] AC 958, HL. A person is a Geneva Convention refugee if objectively there is a reasonable degree of likelihood or a real risk of the persecution that the person fears.

R v SSHD ex p Bugdaycay [1987] 514, HL. Refugee status is determined by the Secretary of State and not by the courts. There is no in-country right of appeal from a refusal of leave to enter. Judicial review is available if the Secretary of State's decision is unlawful.

What the Directories say

Chambers & Partners, 2011

Doughty Street Chambers is a force to be reckoned with when it comes to immigration matters. Sources praise the "absolutely excellent team" of barristers, who are exceptionally committed and thoroughly hard-working.

Sources are unanimous in their agreement that "no one is more deserving of a star rating than Simon Cox." Praised for his "formidable legal mind and encyclopaedic knowledge of immigration law," Cox is undoubtedly "head and shoulders above his peers." He has an "infectious enthusiasm and passion for his subject" and remains "incredibly approachable and extremely generous with his knowledge." Judith Farbey is "an outstanding senior junior" who is praised for "having a real eye for detail and the ability to see the wood from the trees." Peers admire and respect her as an opponent: "She plucks out the important points and knows what is really going to hurt," say observers.

Mark Henderson is commended for his expertise on immigration, asylum, EU law and human rights and has recently been involved in cutting-edge judicial review cases relating to disclosure. Sources admire his "phenomenal preparation" as well as his passion and enthusiasm for his subject. The "knowledgeable and realistic" John Walsh is singled out for his excellent client manner and expertise on unlawful detention, while Laura Dubinsky wins praise for her "exceptionally thorough preparation and excellent advocacy skills." Sources say she is "incredibly bright, very focused and gets tremendous results." One instructing solicitor adds: "She is one of the most impressive lawyers I have ever come across." Philip Haywood is "extremely hard-working and always gets the very best out of a case." He is praised along with Peter Morris, who is "a very humane lawyer with a deep understanding of immigration law." Joseph Middleton joins the rankings this year, attracting praise for his "collaborative approach and extremely personable nature." He advises on a broad range of immigration and nationality law, and has been involved in a number of sensitive and high-profile cases in the field.

 

Chambers and Partners, 2010

Doughty Street's immigration practice shines brightly - "it is positively luminescent in comparison with some of its competitors," commented one source. "Neither up its own backside, nor in the business of charging offensive rates," it is merely "a collection of first-class immigration barristers." The loss of Andrew Nicol is a blow to the set but scarcely one that mortally weakens it, as it is still home to a cadre of high-calibre practitioners. The team is spearheaded by the superb Simon Cox. He maintains a full immigration practice, counselling clients on both personal and corporate immigration matters. Sources praise his "incredible mastery of immigration and asylum law," and peers acknowledge that he has an "ability to present the most complex arguments in a simple way that persuades the immigration judges." Judith Farbey advises clients on immigration, public law, human rights and extradition issues. Not only is she described by instructing solicitors as "one of the cleverest and most user-friendly members of the Bar," but she is also admired for taking a proactive approach, which has made her one of the most active barristers in the business migration sector. Farbey's key attribute is the range of her skills: "She is great at absolutely everything, from providing urgent advice on the points-based system to complex appeal work and extradition matters." Mark Henderson is a hugely passionate public lawyer who specialises in human rights, asylum, immigration and EU law. One recent highlight from his practice was the successful judicial review of the government's policy of preventing Gurkha veterans from settling in the UK. John Walsh is "one of those rare barristers who has a wonderful manner with clients, solicitors and the court." An immigration and prison law specialist, this "knowledgeable and realistic" barrister is regarded as a cool head, who is particularly effective when feelings are running high. Laura Dubinsky is a respected immigration specialist whose "advocacy and written work come up to the same high standard." She is rated along with Philip Haywood, whose dedication to the immigration sector pre-dates his call to the Bar. Haywood was previously a legal officer at the Refugee Legal Centre, and sources believe his prior experiences have certainly informed his current practice. Finally here, Peter Morris is an immigration and asylum law specialist who is praised by solicitors for his "passion, persistence and drive" in cases.

Legal 500, 2010

Doughty Street Chambers provides 'first-class counsel with first-class clerking and administrative support'. Simon Cox, the junior 'to brief when faced with a complex legal riddle', advised on Al-Sirri v SSHD in the Supreme Court. Mark Henderson, 'outstanding with encyclopaedic knowledge', appeared before the House of Lords in R (Nasseri) v SSHD. Laura Dubinsky has 'great expertise on detention and foreign offenders' and Judith Farbey 'is really outstanding'. John Walsh (noted for his 'meticulous attention to detail') is strong on European Law and Joseph Middleton is 'first rate and extremely responsive'. Alasdair Mackenzie and Alison Pickup ('always the essence of calm') are also recommended.