Immigration

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The Immigration Team is led by Andrew Nicol QC with ten juniors of between fourteen and two years' call. Each member of the team has a substantial immigration law practice.

Chambers & Partners and Legal 500 both consider Chambers a leader in the field of immigration. The team is dedicated to providing a high quality comprehensive service for those affected by immigration and nationality law. Representation and advice is provided at all levels of the appellate system and the courts. Team members appear frequently before the higher courts, the Asylum and Immigration Tribunal and the Special Immigration Appeal Commission.

Members of the team have acted in cases before the European Court of Human Rights, the European Court of Justice and the European Court of First Instance.

Much of the team's work concerns asylum and human rights. Advice is also provided on all other areas of immigration and at all stages from application through to litigation. Members of the team have considerable experience advising on work permit, business, naturalisation and nationality issues, as well as on visitor, student, family and settlement cases.

Team members have extensive expertise in cases concerning immigration and other fields of law. These include social security, housing, mental health, crime, employment, education, children, extradition and prisoners. Most team members also specialise in one of those other areas and share knowledge and experience with non-immigration practitioners in Chambers.

The team has considerable experience in all areas of immigration and nationality law. Over the last 15 years, members of the team have appeared in many leading immigration cases. Cases in the House of Bagdanavicius (Article 3 ECHR, state protection), Razgar (Article 8 ECHR, private life), Adan & Aitsegeur (third country: divergent interpretations of Refugee Convention), Sepet & Bulbul (asylum: refusal to perform military service), and Ross-Clunis (nationality).

Court of Appeal cases include many in the field of asylum and human rights such as AA (Zimbabwe) (whether Zimbabwean asylum-seekers at risk on return), N (Kenya) ('public good' deportation), Turgut (judicial review under ECHR Article 3), Kariharan (right to appeal more than once on human rights grounds), R (SSHD) (the "Afghan hijackers" case), Balamurali (certification of second human rights claims), Khadir (temporary admission or leave to remain for Iraqis who cannot be removed from UK), Demirkaya (relevance of previous persecution), M (persecution because of asylum claim) and Revenko (statelessness).

Court of Appeal cases in other immigration areas include Saleem (procedure rule ultra vires), Jeyeanthan (procedural failings and invalidity) and Marchon (deportation of EU nationals).

Cases before European courts include Bensaid (ECHR, mentally ill immigrant), Savas (ECJ, self-employed Turkish national), Carpenter (ECJ, expulsion of third-country wife of British self-employed man) and Ayadi (European Court of First Instance, freezing of assets of persons listed as terrorists).

Cases on immigrants' rights in other fields include the House of Lords' case of M (immigrant's right to disability allowance) and the Court of Appeal cases of Q (denial of support to late asylum claimants), M (Article 8 ECHR positive obligations and damages), Esfandiari (Article 14 ECHR and denial of funeral payment because burial abroad) Shah (effect of sponsorship undertaking on returning resident's right to income support).

The team includes the authors of the Best Practice Guide to Asylum & Human Rights Appeals, the immigration chapter in De Smith, Woolf and Jowell's Judicial Review of Administrative Action and the chairman of Asylum Aid. Members are actively involved with the Immigration Law Practitioners Association and Housing & Immigration Group and the Foreign National Prisoners Network. Members regularly hold seminars with solicitors and others on immigration and related areas.

last updated February 2007

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On 12th and 20th June 2006, DSC held seminars on deportation for immigration and prison law solicitors (chaired by Ed Fitzgerald QC, speakers John Walsh and Laura Dubinsky). The seminars were organised because of growing concern over re-detentions, re-categorisations and refusals to release foreign national prisoners (and those mistakenly believed to be foreign nationals). The seminars reviewed the deportation process, detention under Immigration Act powers pending deportation, and remedies for immigration detainees. The papers and notes from those seminars can be accessed by clicking on the links below :

Places of detention - Laura Dubinsky
Remedies for immigration detainees - Laura Dubinsky
Categorisation of foreign prisoners - Laura Dubinsky
Deportation - John Walsh
Finding the responsible IND department
Getting information
Invitation to join the Foreign National Prisoners Network.

Team Members

Seminars & CPD

The Immigration Team is running a series of seminars during Spring/Summer 2008.

To book on any of these seminars, please download the attached booking form by clicking here

• Immigration Detention

  Wednesday 11 June 2008 from 18:30 to 20:00

  Speakers : Richard Hermer and Laura Dubinsky This session will cover challenges to immigration detention by way of judicial review or civil actions for damages for both civil and immigration …

  
  

• Exclusion from protection of the Refugee Convention for those who have committed serious crimes

  Thursday 26 June 2008 from 18:30 to 20:00

  Speakers : John Walsh and Phil Haywood This seminar will deal with Article 33(2) of the Refugee Convention as interpreted and applied by section 72 Nationality, Immigration and Asylum Act 2002. The …

  
  

• Reconsideration of Appeals at the AIT

  Wednesday 9 July 2008 from 18:30 to 20:00

  Speakers: Seema Farazi and Alasdair Mackenzie The reconsideration process at the Asylum and Immigration Tribunal continues to cause practical and conceptual difficulties. Its aims and operation …

  
  

• Free movement rights under the Citizens Directive

  Wednesday 24 September 2008 from 18:00 to 20:00

  Speakers : Simon Cox and Mark Henderson This seminar deals with the basic rules and the latest case law from AIT and elsewhere. Topics to be covered will include: EU nationals - worker; retaining …

  
  

Cases

Interesting cases include:

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.

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.

last updated February 2007

What the Directories say

Chambers & Partners, 2008

Well known for having a firm grip on criminal, civil liberties and police issues, this set also has pronounced immigration expertise. Its efforts here dovetail nicely with members' other skills in the social security, housing, and mental health areas. Asylum and human rights matters constitute important aspects of the set's work, with it offering advice on both the business side (including assistance on work permits) and on naturalisation and nationality issues. Andrew Nicol QC heads the set's immigration team, but also targets human rights and general public law work. A well-thought-of, senior member of the Bar, he has a reputation bolstered by the enormous number of important cases on which he has advised. "People like him are never wrong-footed when the case gets on to an unexpected point, as his background experience is such that he will always bring up the right answer." Lawyers welcome his persuasive style, noting that "he puts quite complex issues in a way that can be easily understood." They realise that "the court obviously respects him for his ability, so having him on board ensures that one will be listened to on difficult points." Simon Cox spends much of his time advising claimants on a mix of private and publicly funded immigration, nationality cases and statutory appeals. A large chunk of his advice concerns removals to Iraq, and he recently appeared in the case of R (Asad) v SSHD. He further works with those whose rights derive from their own or family members' citizenship and human rights. In HM (Burma), he successfully acted for a Burmese asylum-seeker promoting an Article 3 point. Solicitors advise that when instructing this "inspiring" man, one must remember "you are instructing not only a barrister but also an encyclopaedia; he always has new ideas for approaching a problem." A man of "real enthusiasm and great moral energy," he is "motivated to put things right and cut through illogicality." Public law counsel Mark Henderson majors in asylum, human rights and immigration cases, as well as related social welfare and EU matters. He is well known for his test cases concerning the safety of Zimbabwe and of removals to that country. He impresses sources with his "enthusiastic and industrious" work on key asylum and urgent cases. Immigration and civil rights specialist Laura Dubinsky brings to the table significant experience of having assisted first generation and undocumented immigrant workers in the US. Translating this experience to the UK, she has proved an "energetic and sharp" counsel. For someone whose time at the English Bar has been relatively short, she has displayed full familiarity with the system and is known for producing "real confidence and conviction in her delivery when speaking on complex cases." Interviewees believe that she has made the deportation of foreign nationals who have committed crimes her own. "She shines in cases where the person concerned has very long ties here and families would be torn apart if the deportation went ahead." "Realistic, persuasive and an accomplished advocate," John Walsh targets immigration and prison law. Walsh adopts a quietly spoken tack that works well in court. He succeeds because "he makes submissions appropriate to the level of judge that he gets." Former solicitor Phil Haywood specialises in immigration and asylum cases, notably those with international human rights or ECHR aspects. "Committed and imaginative, he really thinks hard about his cases." He remains best known for his representations on behalf of the Afghan passengers who arrived aboard the hijacked Ariana Airlines plane at Stansted in 2000. Finally at this set, the "client-friendly, affable and committed" Peter Morris is a respected immigration and asylum counsel.

 

Chambers & Partners Guide to the Legal Profession, 2007

Specialising in human rights and civil liberties, this set also boasts an impressive immigration and asylum practice as a string to its bow. Popular as a result of its "user-friendly" barristers, sources were impressed with the range of talent on offer at all levels. Market sources touted Andrew Nicol QC as one of the most popular immigration silks on the circuit, owing to him being "accessible rather than austere" and an "incredibly nice man who never talks down to you". Although he focuses on the more detailed features of immigration law, his wider grasp of public law was perceived by sources to be "excellent in providing the court with a rounded picture". A standout practitioner, solicitors celebrate him for "never missing the point" and for always being "absolutely rigorous in his approach". In the past year, he has acted in a number of Special Immigration Appeals Commission (SIAC) cases involving national security issues and deportations linked to terrorism issues. Neither Simon Cox nor Mark Henderson are scared to step into emergencies and "fight their hardest for their clients". Cox boasts a robust practice that straddles immigration and social welfare. The producer of work of "astonishing quality," he is rated for his "ability to think outside the box". Recently, he has been acting for seven suspected terrorist associates of Osma Bin Laden before the ECJ. Henderson was described as "a master of tactics and strategy". Although the "extremely bright" John Walsh is quietly spoken, "he really delivers a menacing punch," say solicitors, many of whom view him as their "secret weapon". He "always keeps a realistic eye on things" and is "a wonderful barrister to use if you require a broad knowledge of immigration law and Home Office policy". Peter Morris continues to be acclaimed by the market for immigration and asylum work. Both he and the "very likable" Tublu Mukherjee were highlighted for their "strength in dealing with clients." Most of Mukherjee's work falls within the lower level tribunals but his practice extends to cover human rights, immigration, actions against the police and mental health work. Clients said he "always demonstrates the finest ability and commitment to the cause." Laura Dubinsky debuts in the table following strong client and peer recommendation. She specialises in immigration law and immigration-related civil actions for damages and is currently acting in judicial reviews and civil challenges to the detention of families with children under the Immigration Act. Clients appreciate her "deep-seated motivation and tenacity towards the cause."

 

Leagl 500, 2007

Barristers at Doughty Street Chambers cover the full range of immigration law between them, from asylum to business immigration. Andrew Nicol QC's reputation is built on some of the leading immigration cases, including House of Lords cases Bagdanavicius, Sepet and Sivakumar. Simon Cox acts on private cases as well as High Court and Court of Appeal cases including R (Asad) v Secretary of State for the Home Department. Mark Henderson has shown himself to be a good advocate in cases such as AA and LK v Secretary of State for the Home Department. John Walsh has appeared before tribunals, higher courts and the ECJ. Phil Haywood has conducted numerous appeals before the Immigration Appellate Authority (IAA) at adjudicator and Tribunal level and has a developing practice in judicial review. Peter Morris's forte is cases related to civil liberties. After significant experience outside the Bar, new entrant Laura Dubinsky has quickly established a good reputation for cases involving families and children. Cases include Court of Appeal case M v Secretary of State for the Home Department. Tublu Krishnendu Mukherjee represents claimants at all levels, though is currently on sabbatical in India.

Legal 500, 2007

At Doughty Street Chambers Andrew Nicol QC is an excellent choice for judicial review. Simon Cox has shown himself to be 'clear, intelligent and good with clients' on leading refugee test cases. Strong choices for immigration, asylum and social welfare issues include Mark Henderson, Peter Morris and Phil Haywood. Tublu Krishnendu Mukherjee is 'barrister of choice' for expulsion issues.