S Chelvan Immigration, Asylum and Nationality
Chelvan specialises in immigration and asylum law. Known as a ‘tenacious batter who fights with vigour and commitment’ (Legal 500 2010), Chelvan litigates from the First-tier Tribunal (Immigration and Asylum Chamber), up to and including providing advice on strategic litigation before the European Court of Human Rights and the Court of Justice of the European Union.
Known as ‘having an expansive knowledge of the law’ (Chambers UK 2007), he is committed to social justice and has a practice which is at the forefront of cutting edge litigation in the field. Chelvan’s public law practice addresses challenges to unlawful detention, refusals of fresh claims and administrative decisions relating to deportation, entry clearance or exclusion.
Chelvan has an international reputation as an expert in asylum claims based on sexual or gender identity. He is a consultant to lawyers, academics, activists, the media, NGOs and governments, and during 2011-2012 has been invited to address conferences as a keynote speaker and trainer (Kampala, Amsterdam, EU Parliament, Palermo, Warsaw, Trier, London, Brussels, Prague, IGC meeting in Geneva, University of Giessen). In 2011, Chelvan created the ‘DSSH’ (Difference, Stigma, Shame and Harm) model, as a tool to assist refugee status determination. Chelvan publishes widely with respect to international refugee law, which will contribute towards his doctoral thesis.
Chelvan is listed as a leading junior in immigration law by both Chambers & Partners UK and the Legal 500 legal directories, and has previously been shortlisted as a finalist in the barrister category for the Legal Aid Lawyer of the Year Awards.
Inner Temple (Major Scholar)
LLM (Harvard) (Kennedy Memorial Trust Scholar – UK Equivalent to Rhodes),
BSc (SocSci) Politics and Law (First Class) (Southampton)
PhD in Law Candidate (Part-Time) (King’s College London) (commenced 2008, upgraded 2010, thesis due 2014) Thesis title: “'Understanding LGBTI refugees' lives: Moving from Sexual Conduct to identity in Sexual Identity and Gender Identity Asylum Cases in the UK' (First Supervisor: Professor Robert Wintemute (KCL): Second Supervisor: Professor Jenni Millbank (University of Technology, Sydney).
Equality and Diversity Committee, General Council of the Bar (2008-to date)
UK country expert and external expert to “Fleeing Homophobia: Seeking safety in Europe” project (2010 – to date)
Bar Pro Bono Unit (Panel Member),
ILPA (Trainer since 2004),
JWCI (Trustee and Director 2007-2010),
Bail for Immigration Detainees (Volunteer Lawyer),
Foreign National Prisoners Network,
Lawyers for Liberty,
Advocacy for Lesbian and Gay Rights Internationally (ALEGRI)
Bar Lesbian and Gay Group (Co-Chair 2004-05).
“The "very impressive" S Chelvan of the same set is praised for his academic appreciation of the underpinnings of human rights law and his ground-breaking work on asylum claims based on gender or sexual identity (Chambers UK 2013)
S Chelvan is new to No5 Chambers and is highly rated amongst sources for his "strong advocacy and dedication to clients." He is known as a doyen of immigration cases involving issues of sexual identity.
(Chambers UK 2012)
Finalist, Legal Aid Barrister category, Legal Aid Lawyer of the Year Awards (2008)
S. Chelvan is a “ tenacious battler who fights with vigour and commitment”
(Legal 500 2010)
Chelvan “is renowned for his expertise in gender identity and sexual orientation cases” (2009/10). S. Chelvan’s (with others) record cases with a strong human rights element (2007/08), his “immigration experience” in successful “sexual and gender identity” claims (2008/09).
S Chelvan is a fine exponent of immigration matters concerning sexual and gender identity, and has been at the forefront of ground-breaking cases in this area. Sources say he is "extremely committed" and "a particularly effective advocate."
(Chambers UK 2011, Band 2)
Chelvan has “immense expertise” and, “the very welcome knack of putting vulnerable clients at ease.” (2010, Band 2). “You can rely on him to work exceptionally hard and more importantly, highly effectively.” (2009 edn.). “Lawyers agree that he is “leading the way in relation to [sexual orientation and gender identity] claims in this area (2008 edn). Chelvan is referred to as having an “expansive knowledge of the law” and being “an extremely principled man”, who “always demands and strives for the highest standards of fairness and goes that extra mile for the client” (2007 edn.).
B (India) (2013) (Upper Tribunal (IAC))
Case to determine flagrant breach of article 8 of the ECHR (private and family life) of same-sex couples from India.
NP (Sri Lanka) v SSHD  EWCA Civ 906
The lack of reference to internal relocation in a refusal letter refusing asylum, and/or the lack of reliance on internal relocation either at the First-tier Tribunal (IAC) or in a Rule 24 response to grounds of appeal to the Upper Tribunal, or in written submissions pursuant to specific directions, do not prevent the Upper Tribunal (IAC) from addressing this ground of appeal at a hearing. Article 8 (2) of the 2004 Qualification Directive (internal relocation, if relied upon, to be addressed in the decision on the asylum application), and the SSHD’s published Asylum Policy Instruction on Internal Relocation (internal relocation to be raised as a ground in the refusal letter), do not aid the Appellant. Only where there is an unfairness to the opposing party, should there be an adjournment granted, preventing a procedural unfairness. There is no lack of jurisdiction.
AA (Somalia) v Entry Clearance Officer (Addis Ababa)  EWCA Civ 563;  3 All. E.R. 893;  3 F.C.R. 96
Led by Manjit Gill QC. Paragraph 352D of the Immigration Rules relating to family reunion of children with parents who have been granted refugee status in the UK covers biological children and de-facto adoptive children who comply with paragraph 309A. The Somali child who has been accepted to have been recognised to have undergone a Kafaala under Islamic law, as a result of her father’s death and mother’s disappearance as a result of persecution arising out of civil war do not come under 352D. Appellant’s success under article 8 of the ECHR at first instance provides alternative route for entry to the UK.
R (on the application of AA (Afghanistan)) v SSHD  EWHC 3820 (Admin)
SSHD’s policy addressing ‘loss of chance’ where there has been an incorrect age assessment leading to denial of grant of LTR under the Unaccompanied Asylum Seeking Children policy ruled unlawful. Unpublished policy was held to be contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 (for those over 17 years and 6 months but under 18), and to the direction and guidance of the Court of Appeal in AA (Afghanistan) v SSHD  EWCA Civ 12. Claimant’s relief on the additional point that he should have been granted refugee status during the period he was accepted to be 18 dismissed (the LQ (age) and DS (Afghanistan) point). Both Claimant and Defendant granted leave to appeal. Led by Manjit Gill QC before the Court of Appeal (substantive appeal - November 2012).
MW (Democratic Republic of Congo) v SSHD  EWCA Civ 1240
Led by Geoffrey Robertson QC – Upper Tribunal (IAC) materially erred in law in not applying the “very serious reasons” requirement of Maslov in determining the deportation of a settled migrant who had been in the UK since he was a young child. SSHD’s stated case that he was a member of a criminal gang and was involved in drugs and fire arms was rejected by First-tier Tribunal (see case of V below). However, the First-tier Tribunal held that he “knowingly associated” with those involved in gangs. Prior to substantive appeal hearing before the Upper Tribunal SSHD withdrew immigration decision and reinstated Indefinite Leave to Remain.
SW (lesbians – HJ and HT applied) Jamaica CG  UKUT 251 (IAC)
Upper Tribunal finds that actual, or perceived lesbians are at real risk of curative or murder in Jamaica. Landmark decision finding that even straight women who do not live a heterosexual narrative are at real risk of persecution based on perceived sexual identity as a lesbian. First reported Upper Tribunal determination to apply, and arguably extend the understanding of the guidelines in HJ (Iran)  UKSC 31;  1 AC 596.
R (otao Razai and ors) v SSHD  EWHC 3151 (Admin)
Instructed on a pro-bono basis by Allen & Overy LLP on behalf of Bail for Immigration Detainees as intervener – challenging SSHD’s new policy in providing section 4 accommodation through pre-bail hearing assessment.
R (V) v AIT  EWCA Civ 491 and  EWHC 1902 (Admin)
Led by Geoffrey Robertson QC (judicial review challenge to Tribunal’s preliminary decision allowing SSHD to rely on redacted evidence, and other hearsay evidence, from anonymous witnesses in a deportation hearing where this evidence did not lead to conviction in criminal proceedings) (SSHD 10 days prior to substantive appeal before the Tribunal scheduled for August 2010 withdrew her deportation decision. Strasbourg application was about to be lodged to stay proceedings before the domestic Tribunal. V eventually granted 3 years DL pursuant to article 8, granted permission to judicial review decision not to grant ILR under Paragraph 276B of the Immigration Rules (long residence rule) by HHJ Henderson QC (permission granted February 2012, substantive hearing February 2013).
R (otao SB (Uganda)) v SSHD  EWHC 338 (Admin) (UNHCR refworld)
Successful judicial review of refusal of fresh claim of a lesbian from Uganda and unlawful detention claim - highlighted that JM (Uganda) CG was distinguished on the facts, and on the basis of post-CG evidence. The First Tier Tribunal allowed SB's substantive asylum claim - determination promulgated July 2010.
OO (Sudan) & JM (Uganda)  EWCA Civ 1432;  All ER (D) 17 (Jun) - Definition of persecution does not arise from unenforced criminal legislation relating to same-sex conduct. However, SSHD concedes that article 8 ECHR violations may amount to persecution.
AB (Pakistan) (Admin) (unreported) (July 2009, Ockelton J)
SSHD concedes fresh claim of trans-man from Pakistan during the judicial review substantive hearing – initial claim as a lesbian a year prior to the hearing. SSHD grants refugee status in February 2011, whilst Country Guidance proceedings on first gender identity case to be reported by the Upper Tribunal are being case managed. SSHD also grants refugee status for gay man from Pakistan thereby conceding country evidence of risk to LGBTIs from Pakistan.
NR (Jamaica) v SSHD  EWCA Civ 856;  INLR 169;  All ER (D) 43 (Aug)
Appeal allowed on basis that sexual identity is current sexual identity, and is not predicated on teenage sexual experimentation. Concessions relating to risk in Jamaica, and then acceptance of lesbian sexual identity, which were made, and then subsequently withdrawn by the SSHD were lawfully withdrawn. Appeal allowed on remittal to Upper Tribunal (IAC) finding that NR is ‘exclusively’ a lesbian and there is a real risk of persecution to her in Jamaica even on the basis of a perceived sexual identity- August 2010.
HJ (Iran) and HT (Cameroon) v SSHD  EWCA Civ 172;  Imm A.R. 600,
Led by Raza Hussain for HT (challenge to Tribunal’s finding that discretion will be reasonably tolerable where there had been a positive finding of past-persecution by state and non-state agents on the grounds of sexual identity as a gay man). This ‘reasonable tolerability’ test was over-turned by the Supreme Court - HJ (Iran)  UKSC 31;  1 AC 596 - instructed by HT (Cameroon) to deal with national and international media enquiries following judgment – HT granted refugee status in November 2010.
TK (LP updated) Sri Lanka CG  UKAIT 00049
Tribunal accepted that risk categories in December 2009 have not diminished since the May 2009 cessation of hostilities. Appeal dismissed on facts with respect to internal relocation alternative – SSHD grants TK Indefinite Leave to Remain prior to oral permission application to appeal to the Court of Appeal.
JM (homosexuality: risk) Uganda CG  UKAIT 00065
Country guidance case assessing risk to gay men in Uganda - distinguished by SB (Uganda) (see above))
RG (Colombia) v SSHD  EWCA Civ 57;  Imm AR 297 - finding that as the Appellant had been able to be discrete without coming to the attention of vigilante death squads whilst in Colombia, the Tribunal’s finding that he can be returned to Colombia was not unlawful – successful fresh claim litigation followed judgment, abandoned before Upper Tribunal only due to grant by SSHD of ILR under legacy in 2011, following indication by UT that would succeed in his article 8 ECHR appeal.
AS (Appeals raising Articles 3 and 8) Iran  UKAIT 00037 (an appeal on article 3 grounds is not precluded on the basis that the appeal has already been allowed pursuant to article 8 of the ECHR).
DW (Homosexual Men – Persecution – Sufficiency of Protection) Jamaica CG  UKAIT 00168 (UNHCR refworld) (country guidance case which accepted that those who are gay, or perceived to be gay in Jamaica, are in general, refugees – this is still current case law on the situation for gay men from Jamaica).
MM (Section 8: commencement) Iran  UKAIT 0015;  Imm A.R. 666 (section 8 of the 2004 Act is retrospective).